[Federal Register Volume 63, Number 156 (Thursday, August 13, 1998)]
[Proposed Rules]
[Pages 43325-43327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21741]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 63, No. 156 / Thursday, August 13, 1998 / 
Proposed Rules  

[[Page 43325]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AI35


Family and Medical Leave

AGENCY: Office of Personnel Management.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Office of Personnel Management is issuing proposed 
regulations on the Family and Medical Leave Act of 1993 to ensure that 
both employees' and agencies' rights are protected and their 
responsibilities fulfilled.

DATES: Comments must be received on or before October 13, 1998.

ADDRESSES: Comments may be sent or delivered to Donald J. Winstead, 
Assistant Director for Compensation Administration, Office of Personnel 
Management, Room 7H31, 1900 E Street NW., Washington, DC 20415; FAX 
(202) 606-0824; or email to [email protected].

FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858, FAX 
(202) 606-0824, or email to [email protected].

SUPPLEMENTARY INFORMATION: On December 5, 1996, the Office of Personnel 
Management (OPM) published final regulations (61 FR 64441) to implement 
the requirements set forth in sections 6381 through 6387 of title 5, 
United States Code, as added by Title II of the Family and Medical 
Leave Act of 1993 (FMLA) (Public Law 103-3, February 5, 1993). The 
final regulations became effective on January 6, 1997. The FMLA 
provides eligible Federal employees with a total of 12 administrative 
workweeks of unpaid leave during any 12-month period for (a) the birth 
of a son or daughter and care of the newborn; (b) the placement of a 
child with the employee for adoption or foster care; (c) the care of 
the employee's spouse, son, daughter, or parent with a serious health 
condition; or (d) a serious health condition of the employee that makes 
the employee unable to perform the essential functions of his or her 
position. OPM's regulations implementing the FMLA are found in subpart 
L of part 630 of title 5, Code of Federal Regulations.
    Questions and concerns continue to be received by OPM on an 
employee's obligation to notify the agency of his or her intent to use 
family and medical leave and provide required medical certification of 
the serious health condition. We are issuing these proposed regulations 
to ensure that both employees and agencies are complying with the 
requirements of the Act.
    We believe it is Congress' intent to provide Federal employees with 
an entitlement to FMLA leave in a fair and equitable manner while 
minimizing the impact of such leave on an employing agency. Although 
individual situations may require some flexibility in meeting the 
notification and medical certification requirements of the Act, 
employees remain responsible for meeting their obligations under the 
FMLA.

Invoking Entitlement to Family and Medical Leave

    There is a major difference between Title I and Title II of the 
FMLA in terms of the responsibility of an employer versus an employee 
to invoke entitlement to FMLA leave. Under section 102(c)(2) of Title I 
of the FMLA, which covers non-Federal employees, an employee may elect, 
or an employer may require the employee to substitute paid leave for 
unpaid leave under the FMLA, except that nothing in that section would 
require an employer to provide paid sick leave in any situation in 
which the employing agency would not normally provide sick leave. The 
Department of Labor's (DOL's) regulations implementing Title I of the 
FMLA therefore require the employer to designate leave, paid or unpaid, 
as FMLA leave and to give notice of such designation to the employee. 
In addition, if an employee does not initially request substitution of 
paid leave for unpaid leave under the FMLA, DOL's regulations permit 
the employer to require the employee to substitute appropriate paid 
leave for unpaid leave.
    In contrast, 5 U.S.C. 6382 (as added by section 201 of Title II of 
the FMLA) states that an employee may elect to substitute any of the 
employee's accrued or accumulated annual or sick leave for unpaid leave 
under the FMLA, except that nothing in section 201 would require an 
agency to provide paid sick leave in any situation in which the 
employing agency would not normally provide sick leave. OPM's 
regulations implementing Title II of the FMLA for Federal employees 
therefore require employees to take responsibility for invoking their 
entitlement to FMLA leave. In addition, an employee may elect to 
substitute paid leave, as appropriate, for leave without pay under the 
FMLA. An agency may not designate leave, paid or unpaid, as FMLA leave 
unless it has obtained confirmation from an employee of his or her 
intent to use FMLA leave and the employee chooses to substitute 
appropriate paid leave for FMLA leave. The requirement that the 
employee must initiate action to take FMLA leave is consistent with all 
other Federal leave policies and programs in that the employee is 
responsible for requesting leave or other time off from work. The 12 
workweeks of unpaid leave under the FMLA are in addition to any annual 
leave, sick leave, or other leave or compensatory time off available to 
an employee, and an employee may choose to take FMLA leave in 
combination with any other available leave.
    In most cases, an employee must provide the employing agency with 
not less than 30 days notice of his or her intention to take FMLA 
leave. An employee is responsible for giving adequate notice of his or 
her intent to use FMLA leave so that agencies may (1) determine that 
the employee's need for leave is consistent with the purposes for which 
FMLA leave may be used and (2) provide guidance concerning an 
employee's rights and obligations under the FMLA. If an employee seeks 
to invoke his or her entitlement to FMLA leave retroactively, an agency 
may be severely hampered in fulfilling its statutory responsibilities 
for administering the FMLA. Therefore, we propose to add a sentence to 
Sec. 630.1203(b) to state that an employee may not retroactively invoke 
his or her entitlement to leave under the FMLA.

Additional Evidence

    Agencies have asked whether they may request additional evidence to 
support a claim that an employee used

[[Page 43326]]

FMLA leave to care for a spouse, son, daughter, or parent. For example, 
an agency may wish to request that an employee obtain and provide to 
the agency his or her child's school attendance records coinciding with 
the period during which the employee used FMLA leave. Currently, OPM's 
regulations in Sec. 630.1206(f) permit agencies to require that a 
request for FMLA leave for birth or adoption or foster care be 
supported by evidence that is administratively acceptable to the 
agency. We believe the law permits an agency to establish a policy that 
requires an employee to submit administratively acceptable evidence 
that would support the use of FMLA leave for any of the cited purposes. 
Therefore, we propose to revise Sec. 630.1206(f) to permit agencies to 
require that a request for FMLA leave be supported by evidence that is 
administratively acceptable to the agency. Such a policy must be 
nondiscriminatory and made known to all employees.

Medical Certification

    In its final regulations, OPM did not establish a time limit for 
submitting the medical certification of a serious health condition. 
However, after careful reconsideration, we believe a Governmentwide 
time limit for submitting medical certification for FMLA leave is 
necessary to ensure that the entitlements provided under the FMLA are 
provided to all Federal employees in a fair and consistent manner. 
Therefore, we propose to revise Sec. 630.1207(a) to ensure that 
employees are given at least 15 workdays in which to provide written 
medical certification of a serious health condition. In addition, 
Sec. 630.1207(d) and (e) would be revised to give employees 15 workdays 
in which to submit a second or third written medical certification.
    If an employee is unable to provide the requested medical 
certification before FMLA leave begins, or if the agency requires a 
second opinion under Sec. 630.1207(d) and the medical treatment 
requires the leave to begin, the agency must grant provisional leave 
pending final written certification that must be received by the agency 
no later than 15 workdays after the date the FMLA leave began. We 
believe it is Congress' intent that in all circumstances, employees be 
required to provide complete medical certification, when requested by 
an agency, within a reasonable period based on the circumstances 
involved.

Insufficient Notification and Medical Certification

    The law and regulations require employees to provide notification 
and medical certification (if requested by the agency) for FMLA leave. 
When an employee requests FMLA leave immediately for a medical 
emergency and either cannot provide medical certification or submits 
incomplete medical certification, the agency must grant the employee 
provisional leave under Sec. 630.1207(g). However, if the employee does 
not comply with the agency's requests for sufficient medical 
certification, the employee is not entitled to leave under the FMLA. To 
reinforce this principle, we propose to add paragraph (l) to 
Sec. 630.1208 to state that an employee who does not comply with the 
notification requirements in Sec. 630.1206, and who does not provide 
medical certification that includes all the information required by law 
and OPM's regulations in Sec. 630.1207(b), is not entitled to FMLA 
leave. Further, the employee would not receive any of the employment 
and benefit protections in Sec. 630.1208.
    Agencies are reminded that their FMLA notification and medical 
certification requirements may be less stringent than those contained 
in an agency's leave restriction policies. However, agencies' policies 
or procedures for providing notification of FMLA leave or medical 
certification may not be more stringent than the requirements in 
Secs. 630.1206 and 630.1207(b).

Miscellaneous

    We propose to add a sentence to Sec. 630.1203(e) to state that any 
Federal holidays that occur during the period in which an employee is 
on FMLA leave will be counted toward the 12-week entitlement to FMLA 
leave. In addition, Sec. 630.1201(b)(1)(ii)(B) and (b)(3)(i) would be 
revised as requested by the Department of Veterans Affairs to identify 
employees of the Veterans Health Administration that are covered by 
title II of the FMLA.

Regulatory Flexibility Act

    I certify that these regulations would not have a significant 
economic impact on a substantial number of small entities because they 
would affect only Federal employees and agencies.

List of Subjects in 5 CFR Part 630

    Government employees.

Office of Personnel Management.
Janice R. Lachance,
Director.

    Accordingly, OPM proposes to amend part 630 of title 5 of the Code 
of Federal Regulations as follows:

PART 630--ABSENCE AND LEAVE

    1. The authority citation for part 630 is revised to read as 
follows:

    Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C. 
6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C. 
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337, 
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108 
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228, 
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I 
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, 
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also 
issued under Pub. L. 102-25, 105 Stat. 92; subpart L also issued 
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M 
also issued under 5 U.S.C. 6391 and Pub. L. 105-18, 111 Stat. 158.

Subpart L--Family and Medical Leave

    2. Section 630.1201(b)(1)(ii)(B) and (b)(3)(i) are revised to read 
as follows:


Sec. 630.1201  Purpose, applicability, and administration.

* * * * *
    (b) * * * 
    (1) * * *
    (ii) * * *
    (B) An employee of the Veterans Health Administration appointed 
under title 38, United States Code, in occupations listed in 38 U.S.C. 
7401(1);
* * * * *
    (3) * * *
    (i) An employee of the Veterans Health Administration appointed 
under title 38, United States Code, in occupations listed in 38 U.S.C. 
7401(1) shall be governed by the terms and conditions of regulations 
prescribed by the Secretary of Veterans Affairs;
* * * * *
    3. In Sec. 630.1203, a sentence is added at the end of paragraph 
(b) and a sentence is added at the end of paragraph (e) to read as 
follows:


Sec. 630.1203  Leave entitlement.

* * * * *
    (b) * * * An employee may not retroactively invoke his or her 
entitlement to family and medical leave.
* * * * *
    (e) * * * Any holidays authorized under 5 U.S.C. 6103 or by 
Executive order that occur during the period in which the employee is 
on family and medical leave shall be counted toward the 12-week 
entitlement to family and medical leave.
* * * * *
    4. In Sec. 630.1206, paragraph (f) is revised to read as follows:

[[Page 43327]]

Sec. 630.1206  Notice of leave.

* * * * *
    (f) An agency may require that a request for leave under 
Sec. 630.1203(a) be supported by evidence that is administratively 
acceptable to the agency.
    5. In Sec. 630.1207, the second sentence in paragraph (a) is 
revised and a sentence is added at the end of paragraphs (d), (e), and 
(g) to read as follows:


Sec. 630.1207  Medical certification.

    (a) * * * Except as provided in paragraph (g) of this section, an 
employee shall provide the written medical certification signed by the 
health care provider no later than 15 workdays after the date the 
agency requests such medical certification. * * *
* * * * *
    (d) * * * Except as provided in paragraph (g) of this section, an 
employee shall provide the second written medical certification signed 
by the health care provider no later than 15 workdays after the date 
the agency requests such medical certification.
    (e) * * * Except as provided in paragraph (g) of this section, an 
employee shall provide the third written medical certification signed 
by the health care provider no later than 15 workdays after the date 
the agency requests such medical certification.
* * * * *
    (g) * * * The medical certification signed by the health care 
provider must be received by the agency no later than 15 workdays after 
the date the family and medical leave began.
* * * * *
    6. In Sec. 630.1208, paragraph (l) is added to read as follows:


Sec. 630.1208  Protection of employment and benefits.

* * * * *
    (l) An employee who does not comply with the notification 
requirements in Sec. 630.1206 and does not provide medical 
certification signed by the health care provider that includes all of 
the information required in Sec. 630.1207(b) is not entitled to family 
and medical leave.

[FR Doc. 98-21741 Filed 8-12-98; 8:45 am]
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