[Federal Register Volume 65, Number 114 (Tuesday, June 13, 2000)]
[Rules and Regulations]
[Pages 37234-37240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14857]



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Part IV





Office of Personnel Management





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5 CFR Part 630



Sick Leave for Family Care Purposes; Final Rule

  Federal Register / Vol. 65, No. 114 / Tuesday, June 13, 2000 / Rules 
and Regulations  

[[Page 37234]]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AI76


Sick Leave for Family Care Purposes

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management is issuing final 
regulations to expand the use of sick leave for family care purposes. 
Under the final regulations, an employee may use a total of up to 12 
weeks of accrued sick leave each year to care for a family member with 
a serious health condition. This benefit broadens the options available 
for employees to meet their family responsibilities.

EFFECTIVE DATE: June 20, 2000.

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

SUPPLEMENTARY INFORMATION: On May 24, 1999, President Clinton issued a 
memorandum directing the Office of Personnel Management (OPM) to expand 
the use of paid sick leave for family care purposes. On February 9, 
2000, OPM issued proposed regulations consistent with the President's 
goal of eliminating ``a significant barrier to caring for a family 
member with a serious health condition.'' The regulations proposed to 
permit full-time employees to use a total of up to 12 administrative 
workweeks of accrued sick leave each leave year to care for a family 
member with a serious health condition. The definition of ``family 
member'' includes the following relatives of the employee: (a) Spouse 
and parents thereof; (b) children, including adopted children, and 
spouses thereof; (c) parents; (d) brothers and sisters, and spouses 
thereof; and (e) any individual related by blood or affinity whose 
close association with the employee is the equivalent of a family 
relationship. ``Serious health condition'' has the same meaning as 
found in OPM?s regulations at 5 CFR 630.1202 for administering the 
Family and Medical Leave Act of 1993 (FMLA).
    The 45-day comment period ended on March 27, 2000. OPM received 151 
comments, 134 from individuals, 14 from agencies, 2 from employee 
associations, and 1 from a labor organization. The comments were 
overwhelmingly positive. The labor organization stated that these 
changes were long awaited and quite welcome. Many of the commenters who 
supported the adoption of the new regulations mentioned a previous 
experience dealing with a family member with a long-term or terminal 
illness and expressed gratitude that other employees would now have an 
opportunity to use their accrued sick leave in similar situations. 
Others mentioned current family medical situations that have caused 
them to exhaust their annual leave and the currently available 13 days 
of sick leave for family care. One commenter stated that if the 
employee were the one who was sick or injured, using up to 12 weeks of 
sick leave would be a non-issue and that the use of sick leave should 
remain a non-issue when an employee's family member requires the 
employee's care for an extended period.
    One commenter stated that the proposed change would reassure 
employees that efforts to conserve sick leave are beneficial. Another 
individual noted that employees with sufficient amounts of sick leave 
to make use of the new program obviously have not been abusing their 
sick leave and are dedicated employees. One commenter pointed out that 
since family health crises occur only a few times in our lives, this 
time off would not adversely affect an agency's long-term goals. An 
employee association commented that employees and family members 
stationed overseas often must be evacuated for medical conditions and 
that the new regulations would allow an employee to accompany a family 
member for what may turn out to be a protracted course of treatment.
    Nine commenters opposed the concept of allowing Federal employees 
to use additional sick leave for family care purposes. Two agencies 
expressed concern that the regulations as proposed would give employees 
more flexibility in the use of sick leave than a literal reading of the 
President's memorandum of May 24, 1999, would indicate.
    The President intended to make the expanded use of sick leave 
available to employees to use to care for all family members with a 
serious health condition. Limiting this benefit to caring for a spouse, 
son or daughter, or parent with a serious health condition would impose 
a significant hardship on employees who need to care for additional, 
but equally important, loved ones in their time of need. For example, 
the expanded use of sick leave would permit an employee to care for a 
grandchild who is suffering from leukemia or to care for an adult child 
receiving kidney dialysis or in the final stages of a terminal disease.
    Seven agencies were concerned that the proposed regulations would 
permit an employee to use 12 weeks of sick leave each year to care for 
a family member with a serious health condition and then use an 
additional 12 weeks of leave without pay under the FMLA to care for a 
spouse, son or daughter, or parent with a serious health condition. The 
agencies stated that 24 weeks of leave would be a tremendous hardship 
on a manager's ability to manage the work of the organization. One 
agency expressed the belief that the current sick leave provisions and 
FMLA entitlements provide sufficient flexibility to employees. Another 
agency concluded that while being able to meet the mission of the 
agency while balancing work and family needs of employees is of utmost 
importance, managers have expressed concern that this expanded 
entitlement to time off may diminish an organization's ability to 
efficiently and effectively accomplish the mission of the agency.
    OPM believes only a small number of employees would have a need 
and/or be able to use significant amounts of paid and unpaid leave to 
care for a family member with a serious health condition. Based on our 
experience with the current sick leave program, we believe less than 
0.5 percent of the Federal workforce with 5 or more years of Federal 
service would actually use the maximum 12 weeks of sick leave. Federal 
employees accrue 13 days of sick leave each year. Although it is 
possible for an employee not to use any sick leave for 5 years so that 
he or she would accumulate 65 days (more than 12 weeks) of sick leave 
to use for family care purposes, this is highly unlikely. It is 
possible that an employee could be entitled to a maximum of 12 weeks of 
sick leave for family care and 12 weeks of unpaid leave under the FMLA 
to care for a spouse, son or daughter, or parent with a serious health 
condition. However, we believe it is highly unlikely that many 
employees would take more than 12 weeks off for family care purposes. 
In OPM's June 1997 ``Report to Congress on the Family Friendly Leave 
Act,'' we found that less than one-half of one percent of the Federal 
workforce used even the full 13 days of sick leave that was available 
for family care purposes at that time. In addition, the purpose for 
which the sick leave may be used--i.e., a serious health condition--
will limit the circumstances in which employees can use sick leave 
under the new policy. We believe this expanded entitlement will provide 
the greatest benefit to employees who would otherwise be forced to use 
leave

[[Page 37235]]

without pay under the FMLA to care for their family members. The 
expanded use of sick leave will permit these and other employees facing 
similar situations to maintain an income for part or all of the time 
they must be absent from work.
    In addition, the expanded use of sick leave for family care 
purposes will provide many benefits. Agencies will retain valuable 
employees and benefit from reduced costs (including training costs) to 
replace employees forced to separate from Federal service because of 
family responsibilities. Employees will have greater incentive to 
conserve their sick leave, which will be available for future personal 
and family medical needs. There will be less need for employees to 
obtain donated leave through the voluntary leave transfer and leave 
bank programs, since a potential leave recipient faced with a family 
medical emergency will be required to use up to 12 weeks of his or her 
own sick leave before receiving any donated annual leave from other 
Federal employees.

Entitlement to Sick Leave

    Two commenters questioned whether the granting of sick leave to 
care for a family member with a serious health condition would be done 
at the discretion of the agency. An employee is entitled to sick leave 
for family care, just as he or she is entitled to sick leave for his or 
her own incapacitation. If the employee complies with the agency's 
notification and medical evidence/certification requirements, the 
agency must grant sick leave.
    The labor organization requested clarification of an employee's 
appeal rights if his or her request for sick leave is denied. If an 
employee believes he or she has been unjustly denied the use of sick 
leave for family care purposes, he or she may file a grievance under 
applicable agency administrative procedures or negotiated grievance 
procedures. Agency personnel offices can provide information to 
employees concerning the administration of the grievance procedures. In 
addition, OPM has authority to settle claims involving Federal 
employees' compensation and leave. OPM's regulations at 5 CFR part 178 
provide procedures for filing written claims. However, 5 CFR 178.101(b) 
states that OPM's authority does not apply to claims concerning matters 
that are subject to negotiated grievance procedures under collective 
bargaining agreements.
    One commenter was concerned that part-time employees might not be 
included in this new initiative. However, the regulations make clear 
that both part-time employees and employees on uncommon tours of duty 
are entitled to pro-rated amounts of sick leave for family care 
purposes based on the number of hours in their regularly scheduled 
workweek. A Federal firefighter questioned whether leave accrual and 
use was truly proportional for employees on uncommon tours. Employees 
on uncommon tours earn and use leave in direct proportion to the leave-
earning rate of a full-time employee who accrues and uses leave on the 
basis of an 80-hour biweekly tour of duty. An agency must charge one 
hour (or appropriate fraction thereof) of leave for each hour (or 
appropriate fraction thereof) of absence from the uncommon tour of 
duty.
    Another individual questioned whether an employee is entitled to 
sick leave when ``caring'' for a family member who is hospitalized. OPM 
has always maintained that care of a family member includes 
psychological comfort as well as physical care, including being with 
the family member during a hospital stay or while being examined in a 
doctor's office. In response to this comment and frequent questions we 
have received on this subject, we are revising Sec. 630.401 of the 
final regulations to make clear that an employee may use sick leave to 
attend to a family member who is receiving medical, dental, or optical 
examination or treatment. In addition, we have added a new paragraph 
(c) to Sec. 630.403 to permit agencies to require a statement from an 
employee concerning a family member's need for psychological comfort 
and/or physical care. The statement from the health care provider must 
certify that (1) the family member requires psychological comfort and/
or physical care, (2) the family member would benefit from the 
employee's care or presence, and (3) the employee is needed to care for 
the family member for a specified period of time.
    Three commenters felt that 12 weeks was too long a time for 
employees to be away from their jobs. In contrast, one commenter felt 
that 12 weeks was not enough time and that an employee should be 
entitled to use all of his or her sick leave for family care purposes. 
We do not believe allowing employees to use more than 13 days of their 
own sick leave each year for family care purposes will greatly increase 
absenteeism. Many employees who must care for family members currently 
do so by using leave without pay under the FMLA. The final regulations 
will allow these employees to maintain an income and better balance 
their work and family responsibilities. We also believe the entitlement 
to use 12 weeks of sick leave to care for a family member with a 
serious health condition will meet the needs of most employees.

Definition of ``Family Member''

    Several commenters were pleased that the regulations use the same 
definition of ``family member'' that is used in the current regulations 
on sick leave for family care purposes. However, some individuals 
requested that OPM be more specific as to who is covered by the phrase 
``any individual related by blood or affinity whose close association 
with the employee is the equivalent of a family relationship.'' Three 
commenters specifically questioned whether grandparents are covered by 
the definition, and another requested that stepchildren also be 
included. The intent of the regulation is to be family-friendly and to 
provide a benefit that goes beyond the traditional nuclear family. We 
believe a grandparent or a stepchild clearly is covered by the 
definition of ``family member.'' An agency is responsible for 
interpreting the definition to ensure that all employees are treated 
fairly and consistently.

Definition of ``Serious Health Condition''

    Most individuals and agencies supported the use of the definition 
of ``serious health condition'' that is found in the FMLA regulations 
at Sec. 630.1202. However, one agency expressed the belief that the 
term ``catastrophic illness'' implies a level of devastation to health 
and finances that would warrant the provisions included in the proposed 
regulations, while the term ``serious health condition'' does not. One 
commenter expressed appreciation for the regulations and hoped they 
would assist parents of ``special needs'' children in meeting their 
responsibilities. If the child's condition qualifies as a ``serious 
health condition'' under the definition at Sec. 630.1202, a parent 
would be entitled to use sick leave on an intermittent basis to care 
for the child when other services are not available. However, this new 
entitlement does not permit an employee to use sick leave for routine 
childcare or to care for children with minor childhood ailments. The 
definition of ``serious health condition'' at Sec. 630.1202 includes a 
list of what is not considered a serious health condition. An agency 
may require certification from a healthcare provider that the child has 
a qualifying medical condition before granting sick leave.
    An individual urged OPM to include severe mental illness, including 
schizophrenia, bi-polar disorder (manic

[[Page 37236]]

depression), and other traumatic mental conditions requiring 
hospitalization or constant care as a ``serious health condition.'' The 
definition of ``serious health condition'' at Sec. 630.1202 includes a 
``mental condition'' that requires inpatient care or continuing 
treatment by a health care provider. All of the conditions enumerated 
by the commentor are covered by this definition.
    Several commenters questioned whether childbirth and its 
recuperation would qualify as a ``serious health condition'' under 
Sec. 630.1202. Some commenters interpreted the reference to pregnancy 
and childbirth in Sec. 630.401(3)(i) to mean that the amount of sick 
leave that can be used to care for a family member during and after 
childbirth is limited to 13 days. An individual requested that we 
consider deleting the reference to childbirth at Sec. 630.401(3)(i) and 
specifically include childbirth and recovery in the definition of 
``serious health condition'' in Sec. 630.1202. We agree that such a 
change would make clear that childbirth and recovery are considered 
serious health conditions, since they generally result in a period of 
incapacitation that exceeds 13 days. Therefore, we have removed the 
specific reference to pregnancy and childbirth from 
Sec. 630.401(a)(3)(i). The final regulations provide that an agency 
must grant sick leave to an employee who provides care for a family 
member who is incapacitated by a medical or mental condition or who 
receives medical, dental, or optical examination or treatment. In 
addition, we have amended the definition of ``serious health 
condition'' in Sec. 630.1202(1)(ii)(B) of the FMLA regulations to 
include childbirth as a serious health condition.
    Commenters questioned how much sick leave a new mother would be 
able to use and whether family members such as her husband or parent 
would be entitled to use sick leave to care for her. A new mother will 
continue to be entitled to use sick leave for the period of 
incapacitation certified by the health care provider following the 
birth--generally about 6 weeks. Her husband or parent would be entitled 
to use sick leave to care for her during that entire period of 
incapacitation. In the case of both the new mother and her caregiver, 
the entitlement to use sick leave is limited to the period of 
incapacitation of the new mother. We encourage agencies to request 
documentation as to the period of incapacitation for any serious health 
condition.

Bonding With a Child

    We received many comments from individuals who mistakenly believe 
new mothers and fathers will be able to use 12 weeks of sick leave 
following childbirth for bonding with the newborn child. Other 
commenters requested that OPM change the regulations to permit this. 
Care for a family member with a ``serious health condition'' does not 
include care for a healthy newborn child. Once the new mother's period 
of incapacitation ends, there is no further entitlement to use sick 
leave to ``care for a family member with a serious health condition.''
    Both parents would continue to be entitled to use up to 13 days of 
sick leave each year to care for the child when he or she is ill or to 
take the child to medical appointments.
    Two commenters objected that the regulations do not allow adoptive 
parents at least 6 weeks of sick leave for bonding purposes, pointing 
to the 6 weeks of sick leave that birth parents will be able to use. 
Adoptive parents may request sick leave for adoption-related purposes, 
including, but not limited to, appointments with adoption agencies, 
social workers, and attorneys; court proceedings; required travel; and 
for any periods during which an adoptive parent is ordered or required 
by the adoption agency or by a court to be absent from work to care for 
the adopted child. There is no limitation on the amount of sick leave 
that may be used for these purposes. Agencies may require employees to 
provide evidence that is administratively acceptable to the agency in 
support of a request for sick leave for adoption-related purposes. In 
addition, adoptive parents are entitled to use up to 13 days of sick 
leave each year to care for the child when he or she is ill or to take 
the child to medical appointments.
    As stated above, sick leave is granted to birth parents only for 
the period of the mother's incapacitation. The birth parents must use 
annual leave and/or leave without pay for absences from work beyond the 
mother's period of incapacitation--e.g., for care of the newborn, 
bonding with the child, and other child care responsibilities. There is 
no provision in law or regulation that permits the use of sick leave by 
birth parents or adoptive parents who voluntarily choose to be absent 
from work to bond with a birth or adopted child.

Interaction With Current Use of Sick Leave for Family Care Purposes

    Several commenters asked how the new entitlement to 480 hours of 
sick leave to care for a family member with a serious health condition 
interacts with the current entitlement to use 13 days of sick leave 
each year for general family care and bereavement purposes. One agency 
urged OPM to consider making these two separate entitlements and 
permitting employees to use both 13 days of sick leave for general 
family care and bereavement purposes and 12 weeks (480 hours) of sick 
leave to care for a family member with a serious health condition each 
year. The agency felt this approach would simplify administration and 
reduce confusion about the two entitlements. The agency also felt that 
tracking sick leave in more than one category is burdensome to the 
manager and confusing to the employee. Similarly, an individual 
suggested that there be two entitlements, but that the use of sick 
leave to care for a family member with a serious health condition be 
limited to 10 weeks. Another agency recommended that OPM extend the 
amount of sick leave an employee may use for all family care purposes, 
instead of introducing a new entitlement.
    The intent of the expanded sick leave regulations is to permit 
employees who are faced with caring for a family member with a serious 
health condition to use more than 13 days of sick leave. If an employee 
has previously used 13 days of sick leave in a leave year for family 
care purposes, the 13 days must be subtracted from the 12-week 
entitlement. If an employee has previously used 12 weeks of sick leave 
in a leave year to care for a family member with a serous health 
condition, he or she would not be entitled to an additional 13 days of 
sick leave for family care or bereavement purposes. We have revised 
Sec. 630.401 to make clear that an employee is entitled to a maximum of 
12 weeks of sick leave for all family care purposes.

Interaction With Family and Medical Leave

    Several commenters questioned how the broadened use of sick leave 
for family care purposes would work with the use of leave without pay 
under the Family and Medical Leave Act (FMLA). One commenter expressed 
the belief that an employee already has an entitlement to use 12 weeks 
of sick leave under the FMLA to care for a spouse, son or daughter, or 
parent with a serious health condition. An individual was concerned 
that 12 weeks of sick leave for family care plus 12 weeks of leave 
without pay under the FMLA would result in an employee being absent 
from work for up to 6 months.

[[Page 37237]]

    The FMLA provides most employees with an entitlement to use a total 
of up to 12 weeks of leave without pay during any 12-month period for 
certain family and medical needs. An employee may choose to substitute 
sick leave for FMLA leave without pay consistent with current law and 
regulations for using sick leave. (See Sec. 630.1205(b)(1).) Until now, 
employees who invoked their entitlement to FMLA leave were limited to 
substituting up to 13 days of sick leave for FMLA leave without pay 
each year to care for a spouse, son or daughter, or parent with a 
serious health condition. Under the final regulations, an employee is 
entitled to substitute up to 12 weeks of sick leave each year for FMLA 
leave without pay if he or she is caring for a spouse, son or daughter, 
or parent with a serious health condition. Or, an employee may use up 
to 12 weeks of sick leave each year to care for a family member with a 
serious health condition and then invoke his or her entitlement to 12 
weeks of FMLA leave without pay to care for his or her spouse, son or 
daughter, or parent with a serious health condition.
    Another individual suggested that the regulations limit an employee 
to 12 weeks of sick leave in any 12-month period, similar to the 
requirements under the FMLA. However, the new entitlement is a 
broadening of the current regulations, not a change in the entitlements 
under the FMLA. Limiting the use of sick leave for family care by leave 
year is consistent with the current sick leave regulations and will 
provide for simpler administration of the current sick leave program.

Interaction With the Leave Transfer and Leave Bank Programs

    One commenter asked how the expanded use of sick leave for family 
care will affect an employee's opportunity to receive donated annual 
leave from the agency's leave transfer and/or leave bank program. The 
commenter expressed the belief that an employee who has a substantial 
sick leave balance, but has used all the sick leave he or she is 
entitled to use for family care purposes, would be disqualified from 
the leave transfer program because he or she still had available paid 
sick leave. An employee may receive donated annual leave from other 
Federal employees if he or she is affected by a personal or family 
medical emergency and has exhausted his or her available paid annual 
and sick leave. Once an employee has exhausted his or her entitlement 
to 12 weeks of sick leave for family care purposes, the employee has 
exhausted all of his or her available paid sick leave.
    We believe the expanded use of sick leave for family care purposes 
will reduce the need for obtaining donated annual leave through the 
leave transfer and leave bank programs. Currently, an employee who is 
caring for a family member with a medical emergency may have 
significant amounts of accumulated sick leave that he or she cannot use 
because the employee has already used his or her entitlement to 13 days 
of sick leave for family care purposes. As a result, such employees are 
using other employees' annual leave even though they have substantial 
amounts of sick leave available in their own sick leave accounts. We 
believe it makes sense to require employees to use their own annual and 
sick leave before receiving donated annual leave. In addition, we 
revised Sec. 630.405(c) to require an employee who is using donated 
annual leave on the effective date of these regulations to use the sick 
leave available under Sec. 630.401(a)(3) for family care purposes 
before he or she can continue to use donated annual leave.

Requirement To Maintain a Balance of 80 Hours of Sick Leave

    Two commenters questioned the need to require employees to maintain 
an 80-hour sick leave balance when using more than 5 days of sick leave 
for any family care purpose. Another individual expressed the belief 
that the amount of sick leave that must be held in reserve should 
increase as the number of hours used for family care purposes 
increases--e.g., for each 30-day increment above the basic 13-day 
entitlement, an employee should have to maintain an additional 20 hours 
of sick leave (above the 80-hour requirement).
    The original intent of the 80-hour requirement was to ensure that 
Federal employees would have sufficient leave for their own medical 
needs at the end of a family member's medical emergency. With the 
possibility that an employee will be caring for a family member for an 
extended period, it is even more important that he or she have a 
reserve of sick leave for his or her own use to cover absences due to a 
personal illness. OPM believes 80 hours of sick leave is a sufficient 
reserve and that to require larger reserve balances from employees who 
seek to use greater amounts of sick leave for family care purposes 
would not be equitable.
    A commenter was under the mistaken impression that an agency could 
advance sick leave if an employee's sick leave balance falls below the 
80-hour threshold. Advancing more than the first 5 days (40 hours) of 
sick leave circumvents the intent of the regulation. We have had many 
questions about the 80-hour required balance and the restriction on the 
advance of more than 5 days of sick leave for family care purposes. We 
are taking this opportunity to revise Sec. 630.401 to clarify the 
requirement for an 80-hour balance and the restriction on advancing 
sick leave for family care purposes.

Medical Certification

    An agency recommended that the medical certification required by 
the FMLA to care for a spouse, son or daughter, or parent with a 
serious health condition also be required when an employee requests 
sick leave to care for a family member with a serious health condition. 
One individual urged that OPM write the regulations so that this 
entitlement cannot be used for anything less than a serious health 
condition. Another believes that requiring administratively acceptable 
evidence of a serious health condition or a doctor's confirmation will 
ensure that requests for sick leave are legitimate. A third commenter 
warns that unless medical certification is required, the expanded 
amounts of sick leave will be used for minor illnesses. Another asked 
OPM to make clear that an agency may request medical documentation as 
to the incapacitation of the family member, while another commenter 
felt that OPM should establish specific amounts of sick leave that may 
be used for specific types of serious health conditions. In contrast, 
however, one individual expressed the belief that ``administratively 
acceptable evidence'' is too broad a term and questioned who will 
determine what constitutes acceptable documentation. Another suggests 
that a doctor's statement should be required only after 5 days of 
absence from work and that a receipt for a doctor's visit should be 
sufficient medical documentation.
    We urge each agency to request medical certification to document 
that a serious health condition exists. In addition, obtaining medical 
documentation will ensure that the appropriate amount of sick leave is 
granted. We do not believe Governmentwide guidelines can be established 
assigning specified amounts of sick leave for certain health 
conditions. Individual circumstances differ, and individuals will 
require varying amounts of time off for treatment and recuperation. A 
certification from the health care provider will determine the length 
of the incapacitation for each individual and, therefore, the duration 
of the serious health condition. Agencies may

[[Page 37238]]

wish to modify the Department of Labor's Family and Medical Leave 
medical certification form to document the existence and probable 
duration of a serious health condition, or they may wish to establish 
their own medical certification form. Each agency has the authority to 
determine what constitutes ``administratively acceptable evidence'' for 
any use of sick leave and to request such documentation whenever it 
feels necessary.
    One agency approved of OPM's proposal to permit agencies to limit 
the amount of time given to an employee to produce acceptable 
documentation, feeling it would help to ensure that the new entitlement 
is used only as intended. We agree and are adopting as final the 
revisions at Sec. 630.403(b). We believe agencies should establish time 
limits for employees to provide required documentation of a medical or 
mental condition. This will ensure that sick leave is being used 
properly and will guarantee that all employees receive equal treatment.

Reporting Requirements

    Two individuals questioned what new reporting requirements might be 
involved in the administration of this new entitlement. One agency 
recommended that OPM require agencies to report back in 1 year on the 
extent to which the new sick leave provisions are being used. When OPM 
published the original regulations on sick leave for family care 
purposes in December 1994, we added Sec. 630.408 to require agencies to 
maintain records to provide data to us on the use of sick leave for 
family care purposes. We requested the data for OPM's June 1997 
``Report to Congress on the `Federal Employees Family Friendly Leave 
Act,' Public Law 103-388.'' We no longer believe the reporting 
requirements are necessary and plan to propose removal of them from the 
regulations later this year. Nevertheless, our regulations continue to 
require that agencies maintain internal records on the amount of sick 
leave used each leave year for family care or bereavement purposes to 
ensure that employees do not exceed the limitations in 5 CFR 630.401(b) 
and (c).

Additional Use of Sick Leave

    Three individuals suggested that OPM establish programs to pay 
employees for unused sick leave. They felt this would encourage 
employees to conserve their sick leave, particularly in the case of 
employees covered by the Federal Employees Retirement System (FERS), 
since they do not receive credit at retirement for unused sick leave. 
This proposal would require legislative action. In addition, OPM 
believes the ability to use up to 12 weeks of sick leave for family 
care purposes will be an additional incentive for employees to conserve 
their sick leave for future needs. Since the Government has no short-
term disability insurance program, it is important that employees 
conserve sick leave to cover their own periods of illness, as well as 
their family care needs.
    An individual suggested broadening the leave transfer program to 
allow employees to donate their unused sick leave to other employees. 
Section 6334(a) of title 5, United States Code, permits Federal 
employees to donate or contribute annual leave, but not sick leave, to 
another employee who has a personal or family medical emergency. 
Therefore, this proposal would require legislative action. In addition, 
the ability of employees to use larger amounts of sick leave for family 
care purposes should ease the demand for donated leave, making greater 
amounts of donated annual leave available to those employees who have 
exhausted other available paid leave.

Other Comments

    A commenter expressed concern that agencies would look upon 
employees who use large amounts of sick leave to care for a family 
member as ``leave abusers.'' We believe agencies are aware that the use 
of approved sick leave is not leave abuse and is not a basis for an 
adverse action. An agency may request medical certification for the use 
of sick leave, but if proper certification is provided, the leave must 
be approved.
    Another commenter argued that the availability of 12 weeks of paid 
leave for Federal employees will place the entire burden of family care 
on the shoulders of Federal employees. The commenter felt the 
Government should pressure private industry to expand its family leave 
policies to relieve the burden on Federal employees who are caretakers. 
OPM hopes this program will become a model for non-Federal employers by 
demonstrating ways to help employees balance their work and family 
responsibilities.
    A number of agencies and individuals requested that OPM publish a 
table or matrix of leave programs that provides a basic overview of 
when and under what circumstances employees are entitled to leave under 
each of the various leave programs. The labor organization recommended 
that a special effort be made to provide training and resources to help 
agency personnel offices answer managers' and employees' questions 
concerning these regulations and their interactions with various 
family-friendly leave programs in the Government. OPM currently offers 
leave workshops to assist agencies and employees in understanding and 
administering the Government's family-friendly leave programs. Dates 
for future workshops are available on OPM's website at www.opm.gov\.\ 
In addition, we have developed, and will continue to develop, fact 
sheets and matrix tables on the various Federal leave programs. These 
materials are available on OPM's website at www.opm.gov\loca\leave. In 
the near future, we will issue additional guidance and a series of 
examples on how to apply the different leave provisions.
    Two commenters thought the Government should grant new mothers paid 
maternity leave in addition to their accrued sick leave. They pointed 
to companies in the private sector that offer this type of paid leave 
benefit. Many private sector companies provide employees with a limited 
amount of sick leave each year (which may or may not accumulate for use 
in succeeding years) and short-term disability insurance that may be 
used for maternity purposes. Generally, short-term disability insurance 
programs replace only a portion--typically 60 to 70 percent--of an 
employee's income while disabled and provide coverage for a maximum of 
6 months. Like some of the other ideas raised by other commenters, 
legislative action would be required to establish such a program. We 
believe the Government's generous sick leave and annual leave system, 
in conjunction with advanced sick and annual leave, the leave transfer 
and leave bank programs, flexible work schedules, flexiplace, unpaid 
leave under the Family and Medical Leave Act of 1993, and compensatory 
time off enable the vast majority of Federal employees to meet their 
personal and family medical needs.
    One agency commented that the leave provisions alone are confusing 
in themselves and that the variations and interworkings of these 
programs have become even more complicated and cumbersome. Several 
agencies recommended that OPM take the initiative to review Federal 
leave programs and combine and streamline where possible, including 
pursuing legislative change if necessary. In an effort to provide 
agencies with more flexibility in the way employees are compensated and 
to simplify compensation administration, OPM has embarked on a 
strategic compensation initiative. The goal of the initiative is to 
develop legislation to improve the Federal compensation system. This 
initiative will include recommendations

[[Page 37239]]

for improving and simplifying paid time off programs.

Effective Date of Regulations

    Three commenters requested that OPM make the final regulations 
effective retroactively--on the date of President Clinton's memorandum 
(May 24, 1999), at the beginning of this fiscal year (October 1, 1999), 
or at the beginning of this calendar year (January 1, 2000). The labor 
organization recommended that every effort be made to ensure the 
changes are implemented immediately, since employees continue to suffer 
under the current limitation of 13 days of sick leave each year for 
family care purposes. However, an agency requested delaying the 
effective date of the final regulations to permit additional time for 
reprogramming its payroll and accounting system to accommodate the 
expanded use of sick leave for family care purposes.
    Because the implementation of a new sick leave policy requires 
changes in OPM's Governmentwide sick leave regulations, we must follow 
the procedural requirements of the Administrative Procedure Act (APA). 
The APA generally calls for a 30-day delay in the effective date of any 
regulatory change following the publication of final regulations. The 
issuance of retroactive regulations is neither the preferred nor usual 
method for rulemaking. Retroactivity in rulemaking is permissible where 
Congress has expressly authorized it in law, but that is not the case 
here. To enable employees to use this expanded benefit immediately, we 
are modifying the requirement to delay the effective date of the final 
regulations so that they can become effective 7 days after the date of 
publication in the Federal Register.

Waiver of Delay in Effective Date

    Pursuant to 5 U.S.C. 553(d)(3), I find that good cause exists to 
make this rule effective in less than 30 days. We continue to receive 
inquiries from employees, agency officials, and other interested 
parties who are experiencing a family medical emergency and need 
additional paid time off. To accommodate the pressing need for this 
benefit, we are making these regulations effective 7 days after the 
date of publication.

Regulatory Flexibility Act

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

E.O. 12866, Regulatory Review

    The Office of Management and Budget has reviewed this rule in 
accordance with Executive Order 12866.

Family Assessment Certification

    I certify that these regulations would strengthen the stability of 
the family, help families meet their responsibilities, and increase the 
disposable income of families in accordance with section 654 of the 
Treasury and General Government Appropriations Act, 1999, as contained 
in section 101(h) of Public Law 105-277, the Omnibus Consolidated and 
Emergency Supplemental Appropriations Act, 1999.

List of Subjects in 5 CFR Part 630

    Government employees.

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

    Accordingly, OPM is amending 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 continues 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. 105-18, 111 Stat. 158; 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. 102-25, 105 Stat. 92.

Subpart B--Definitions and General Provisions for Annual and Sick 
Leave

    2. In Sec. 630.201(b), a new definition of serious health condition 
is added in alphabetical order to read as follows:


Sec. 630.201  Definitions.

* * * * *
    Serious health condition has the meaning given that term in 
Sec. 630.1202.
* * * * *

Subpart D--Sick Leave

    3. In Sec. 630.401, the introductory text of paragraph (a) and 
paragraphs (a)(3) and (b) are revised; paragraphs (c) through (e) are 
redesignated as paragraphs (e) through (g), respectively; in newly 
redesignated paragraph (f), ``(c)'' is removed and ``(d)'' is added in 
its place wherever it appears; and new paragraphs (c) and (d) are added 
to read as follows:


Sec. 630.401  Grant of sick leave.

    (a) Subject to paragraphs (b) through (f) of this section, an 
agency must grant sick leave to an employee when the employee--
* * * * *
    (3)(i) Provides care for a family member who is incapacitated by a 
medical or mental condition or attends to a family member receiving 
medical, dental, or optical examination or treatment; or
    (ii) Provides care for a family member with a serious health 
condition.
* * * * *
    (b) The amount of sick leave granted to an employee during any 
leave year for the purposes described in paragraphs (a)(3)(i) and (4) 
of this section may not exceed a total of 104 hours (or, in the case of 
a part-time employee or an employee with an uncommon tour of duty, the 
number of hours of sick leave normally accrued by that employee during 
a leave year).
    (c)(1) An employee who is caring for a family member with a serious 
health condition under paragraph (a)(3)(ii) of this section may use not 
more than a total of up to 480 hours of sick leave (or, in the case of 
a part-time employee or an employee with an uncommon tour of duty, an 
amount of sick leave equal to 12 times the average number of hours in 
his or her scheduled tour of duty each week) during a leave year, 
subject to the limitation found in paragraph (c)(2) of this section.
    (2) If, at the time an employee uses sick leave to care for a 
family member with a serious health condition under paragraph (c)(1) of 
this section, he or she has used any portion of the sick leave 
authorized under paragraph (b) of this section during that leave year, 
the agency must subtract that amount from the maximum number of hours 
authorized under paragraph (c)(1) of this section to determine the 
total amount of sick leave that may be used during the remainder of the 
leave year to care for a family member with a serious health condition. 
If the employee previously has used the maximum amount of sick leave 
permitted under paragraph (c)(1) of this section in a leave year, he or 
she is not entitled to use additional sick leave under paragraph (b).
    (3) A full-time employee may use not more than a total of 480 hours 
of sick

[[Page 37240]]

leave (or, in the case of a part-time employee or an employee with an 
uncommon tour of duty, an amount of sick leave equal to 12 times the 
average number of hours in his or her scheduled tour of duty each week) 
for all family care purposes under paragraphs (a)(3) and (4) of this 
section.
    (d) For family care purposes as described in paragraphs (a)(3) and 
(4) of this section--
    (1) A full-time employee may use a total of up to 40 hours (or, in 
the case of a part-time employee or an employee with an uncommon tour 
of duty, the average number of hours in his or her regularly scheduled 
administrative workweek) of accrued and accumulated sick leave without 
further regard to his or her sick leave balance.
    (2) A full-time employee may use more than 40 hours of his or her 
accrued and accumulated sick leave up to the maximum provided by 
paragraphs (b) and (c)(1) of this section only if he or she maintains a 
sick leave balance of at least 80 hours (or, in the case of a part-time 
employee or an employee with an uncommon tour of duty, two times the 
average number of hours in his or her regularly scheduled 
administrative workweek). An employee must maintain this balance during 
any period of time during which the employee is using more than his or 
her basic entitlement to sick leave under paragraph (d)(1) of this 
section.
    (3) An agency may advance only the initial 40 hours of sick leave 
under paragraph (d)(1) of this section, or a proportional amount for an 
employee with a part-time or uncommon tour of duty. An agency may not 
advance sick leave for the purpose of meeting the requirement to retain 
a minimum sick leave balance under paragraph (d)(2) of this section or, 
if the employee has the required minimum sick leave balance, for using 
additional sick leave as provided in paragraphs (b) and (c) of this 
section.
* * * * *

    4. Section Sec. 630.403 is revised to read as follows:


Sec. 630.403  Supporting Evidence.

    (a) An agency may grant sick leave only when supported by 
administratively acceptable evidence. Regardless of the duration of the 
absence, an agency may consider an employee's certification as to the 
reason for his or her absence as administratively acceptable evidence. 
For an absence in excess of 3 workdays, or for a lesser period when 
determined necessary, the agency may also require a medical certificate 
or other administratively acceptable evidence as to the reason for an 
absence for any of the purposes described in Sec. 630.401(a).
    (b) An agency may establish a uniformly applied policy that 
requires employees to provide administratively acceptable evidence or 
medical certification for a request for sick leave within a specified 
time period. An employee who does not provide the required evidence or 
medical certification within the specified time period is not entitled 
to sick leave.
    (c) An agency may require an employee requesting sick leave to care 
for a family member under Sec. 630.401(a)(3)(ii) to provide an 
additional written statement from the health care provider concerning 
the family member's need for psychological comfort and/or physical 
care. The statement must certify that--
    (1) The family member requires psychological comfort and/or 
physical care;
    (2) The family member would benefit from the employee's care or 
presence; and
    (3) The employee is needed to care for the family member for a 
specified period of time.


Sec. 630.405  Use of sick leave during annual leave or to become 
eligible for donated leave.

    5. In Sec. 630.405, paragraph (a) is amended by removing ``(e)'' 
and adding in its place ``(f),'' by removing the last sentence in 
paragraph (b), and by revising paragraph (c) to read as follows:
* * * * *
    (c) In the case of an employee already in a shared leave status 
(i.e., using donated annual leave) on June 20, 2000 under the voluntary 
leave transfer or leave bank programs established under subchapters III 
and IV of chapter 63 of title 5, United States Code, any sick leave 
available to care for a family member under Sec. 630.401 must be used 
before continuing to use transferred annual leave or annual leave 
withdrawn from a leave bank.

Subpart L--Family and Medical Leave


Sec. 630.1202  Definitions.

    6. In Sec. 630.1202, paragraph (1)(ii)(B) of the definition of 
serious health condition is revised to read as follows:
* * * * *
    Serious health condition. (1) * * *
    (ii) * * *
    (B) Any period of incapacity due to pregnancy or childbirth, or for 
prenatal care, even if the affected individual does not receive active 
treatment from a health care provider during the period of incapacity 
or the period of incapacity does not last more than 3 consecutive 
calendar days.
* * * * *
[FR Doc. 00-14857 Filed 6-12-00; 8:45 am]
BILLING CODE 6325-01-P