[Federal Register Volume 71, Number 159 (Thursday, August 17, 2006)]
[Rules and Regulations]
[Pages 47693-47696]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7005]


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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AK61


Absence and Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing final 
regulations concerning the use of sick leave. The final rules remove 
the requirement for an employee to maintain a minimum sick leave 
balance in his or her sick leave account in order to use the maximum 
amount of sick leave provided for family care and bereavement purposes. 
These regulations are being issued as part of OPM's effort to 
standardize leave policies and provide agencies with guidance on leave 
programs available to assist employees in the event of a pandemic 
health crisis.

DATES: Effective date: These regulations are effective on September 18, 
2006.
    Applicability date: These regulations apply on the first day of the 
first applicable pay period beginning on or after September 18, 2006.

FOR FURTHER INFORMATION CONTACT: Sharon Dobson by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
issuing final regulations to revise the rules concerning the use of 
sick leave to provide care for a family member, make arrangements 
necessitated by the death of a family member, or attend the funeral of 
a family member. The revised regulations will assist employees in 
balancing their work and family responsibilities and needs. These final 
regulations will be issued to standardize and simplify leave programs 
and policies to support consolidating agency human resources and 
payroll systems, and to continue OPM's efforts to provide agencies with 
timely guidance on leave programs and policies available to employees 
in the event of a pandemic health crisis.

[[Page 47694]]

    On January 5, 2005, OPM issued a comprehensive package of proposed 
regulations to revise the rules concerning the determination of 
official duty station for location-based pay entitlements, compensatory 
time off for religious observances, hours of work and alternative work 
schedules, and absence and leave (70 FR 1068). The proposed regulations 
were issued to aid and support the standardization of pay and leave 
policies under the e-Payroll initiative. The proposed regulations are 
available at http://frwebgate.access.gpo.gov/cgi-bin/getpage.cgi?dbname=2005_register&position=all&page=1068.
    In this final rule, OPM addresses the comments received on the 
proposed rules in 5 CFR part 630, subpart D, concerning the use of sick 
leave for family care or bereavement purposes. The 60-day comment 
period ended on March 7, 2005. A total of seven comments were received 
from five agencies, an employee organization, and an individual. We 
will address comments received on the proposed changes to other 
regulations in subsequent issuances.

Sick Leave for Family Care or Bereavement Purposes

    Currently, an employee must maintain 80 hours of sick leave in his 
or her sick leave account to be entitled to use up to 104 hours (13 
workdays) of sick leave for general family care or bereavement purposes 
and up to 480 hours (12 workweeks) of sick leave to care for a family 
member with a serious health condition. The proposed regulations 
modified Sec.  630.401 to remove the requirement an employee must 
maintain 80 hours of sick leave in his or her sick leave account to use 
more than 40 hours (5 workdays) of his or her sick leave for family 
care or bereavement purposes. An agency recommended removing the limit 
altogether on the total amount of sick leave an employee may use for 
any family care purpose. The agency believes removing this requirement 
would give employees greater responsibility for managing their sick 
leave and would greatly simplify the administration and recordkeeping 
requirements related to sick leave. In addition, the agency stated that 
it is difficult for managers to make a distinction between sick leave 
for general family care or bereavement purposes and sick leave to 
provide care for a family member with a serious health condition.
    OPM believes an annual limit of 104 hours (13 workdays) of sick 
leave for general family care or bereavement purposes and 480 hours (12 
workweeks) of sick leave to provide care for a family member with a 
serious health condition is an ample amount of time for most employees 
to give care and attendance to family members for illness or injury 
when viewed in the context of other available options and entitlements. 
The entitlement to use sick leave for general family care or 
bereavement purposes and/or to provide care for a family member with a 
serious health condition, in conjunction with a generous annual leave 
system, including advance annual leave; the leave transfer and leave 
bank programs; flexible work schedules; telework; unpaid leave under 
the Family and Medical Leave Act (FMLA); compensatory time off; and 
compensatory time off for travel will further assist the vast majority 
of employees to meet their sickness-related family care needs.
    An agency and an individual commented that by removing the 
requirement for an employee to maintain a minimum sick leave balance to 
use more than 40 hours of sick leave for family care purposes is 
contrary to the law at 5 U.S.C. 6307(d)(3). This is incorrect. The 
provisions of the Federal Employees Family Friendly Leave Act (Pub. L. 
103-388, October 22, 1994) expired on December 21, 1997. The Federal 
Employees Family Friendly Leave Act amended the law to provide for a 3-
year trial period to expand the purposes for which sick leave may be 
used by an employee, to include family care and bereavement. Under 5 
U.S.C. 6311, OPM has been granted authority to prescribe regulations 
necessary for the administration of annual and sick leave. (See the 
memorandum to Directors of Personnel, CPM 97-13, on the ``Use of Sick 
Leave for Family Care or Bereavement Purposes'' at http://www.opm.gov/flsa/oca/compmemo/1997_1996/cpm97-13.asp.) Thus, OPM used its 
permanent regulatory authority to issue regulations to permit an 
employee to use sick leave to (1) care for a family member who is 
incapacitated as a result of physical or mental illness, injury, 
pregnancy, or childbirth; (2) assist a family member who receives 
medical, dental, or optical examination or treatment; (3) make 
arrangements for or attend the funeral of a family member; or (4) care 
for a family member with a serious health condition.
    An agency was concerned that removing the 80-hour sick leave 
balance requirement may result in more employees depleting their sick 
leave accounts and resorting to requesting advance leave or donated 
leave under the voluntary leave transfer and leave bank programs. The 
agency believes the requirement to maintain a minimum sick leave 
balance of 80 hours reduces the number of employee requests for advance 
leave and donated leave and the costs associated with administering 
those programs. We have not made this change. Employees continue to be 
responsible for managing their use of sick leave to ensure they retain 
enough sick leave for both personal and family needs. An employee would 
continue to be limited to 13 days of sick leave each leave year for 
general family care or bereavement purposes and a maximum of 12 weeks 
of sick leave each leave year to care for a family member with a 
serious health condition.
    An agency recommended the final regulations include information on 
the amount of sick leave an agency may advance to an employee for 
family care or bereavement purposes or to provide care for a family 
member with a serious health condition. We agree and have added Sec.  
630.401(f) to clarify an agency may advance a maximum of 30 days of 
sick leave when required by the exigencies of the situation for a 
serious disability or ailment of the employee or a family member or for 
purposes related to the adoption of a child.
    We also proposed amending Sec.  630.403(b) to establish a 
Governmentwide policy on the time limit for the receipt of medical 
documentation supporting an employee's need for sick leave. We proposed 
this change to ensure all employees are treated equitably and to aid in 
establishing standardized Governmentwide pay and leave policies. The 
proposed regulations at Sec.  630.403(b) would require an employee to 
provide administratively acceptable evidence as to the reason for his 
or her use of sick leave. The employee must provide such evidence no 
later than 15 calendar days after the date his or her agency requests 
documentation. An agency and an employee organization believed imposing 
a stringent time limitation of 15 calendar days would not be fair for 
employees facing extenuating circumstances, such as an employee who may 
not be able to obtain medical certification because of the remoteness 
of his or her location. We agree and have revised Sec.  630.403(b) to 
require an employee to provide administratively acceptable evidence, in 
accordance with the agency's policy, no later than 15 calendar days 
after the date the agency requests such documentation. If it is not 
practicable to provide the requested certification, despite the 
employee's diligent good faith efforts, the employee must provide such 
certification within a reasonable period of time, but no later than 30

[[Page 47695]]

calendar days. This requirement is consistent with the medical 
certification requirements under the Family and Medical Leave Act 
(FMLA) provided in the regulations at 5 CFR Part 630, Subpart L.
    An agency and an individual commented that providing 15 calendar 
days for an employee to present medical certification may conflict with 
the terms of a more restrictive leave policy imposed upon an individual 
by an agency (often referred to as ``leave restriction''). This 
requirement is consistent with the medical certification requirements 
for using leave without pay under the FMLA. Because many employees may 
choose to substitute their sick leave for leave without pay under the 
FMLA, we believe it is necessary to impose the same requirement for 
using sick leave that is required under the FMLA--i.e., an employee 
must provide administratively acceptable evidence no later than 15 days 
after the agency requests documentation.

Miscellaneous

    In this final rule, we are removing the reporting requirements in 
Sec.  630.408 to reduce the amount of information agencies must 
maintain on the use of sick leave for family care purposes. However, 
agencies are required to maintain records sufficient to ensure 
employees do not exceed their entitlement to sick leave for family care 
purposes. We are also deleting the procedures in former Sec.  630.409 
for the retroactive substitution of sick leave for annual leave used 
for adoption-related purposes between September 1991 and September 
1994, because the time limit for retroactive substitution under this 
section expired on September 30, 1996.

E.O. 12866, Regulatory Review

    This rule has been reviewed by the Office of Management and Budget 
in accordance with E.O. 12866.

Regulatory Flexibility Act

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

List of Subjects in 5 CFR Part 630

    Government employees.

    U.S. Office of Personnel Management.
Linda M. Springer,
Director.

0
Accordingly OPM is amending 5 CFR part 630, to read as follows:

PART 630--ABSENCE AND LEAVE

0
1. The authority citation for part 630 continues to read as follows:

    Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108 
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued 
under 5 U.S.C. 6133(a); 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; 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.


0
2. Part 630, subpart D is revised to read as follows:
Subpart D--Sick Leave
Sec.
630.401 Granting sick leave.
630.402 Requesting sick leave.
630.403 Supporting evidence for the use of sick leave.
630.404 Use of sick leave during annual leave.
630.405 Sick leave used in the computation of an annuity.
630.406 Records on the use of sick leave.

Subpart D--Sick Leave


Sec.  630.401  Granting sick leave.

    (a) Subject to paragraphs (b) through (e) of this section, an 
agency must grant sick leave to an employee when he or she--
    (1) Receives medical, dental, or optical examination or treatment;
    (2) Is incapacitated for the performance of his or her duties by 
physical or mental illness, injury, pregnancy, or childbirth;
    (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;
    (4) Makes arrangements necessitated by the death of a family member 
or attends the funeral of a family member;
    (5) Would, as determined by the health authorities having 
jurisdiction or by a health care provider, jeopardize the health of 
others by his or her presence on the job because of exposure to a 
communicable disease; or
    (6) Must be absent from duty for purposes relating to his or her 
adoption of a child, including appointments with adoption agencies, 
social workers, and attorneys; court proceedings; required travel; and 
any other activities necessary to allow the adoption to proceed.
    (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, for a part-
time employee or an employee with an uncommon tour of duty, the number 
of hours of sick leave he or she normally accrues during a leave year).
    (c) The amount of sick leave granted to an employee during any 
leave year for the purposes described in paragraph (a)(3)(ii) of this 
section may not exceed a total of 480 hours (or, for 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), subject to the limitation found in 
paragraph (d) of this section.
    (d) If, at the time an employee uses sick leave to care for a 
family member with a serious health condition under paragraph (c) 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) of this section to determine the total 
amount of sick leave the employee may use during the remainder of the 
leave year to care for a family member with a serious health condition. 
If an employee has previously used the maximum amount of sick leave 
permitted under paragraph (c) of this section in a leave year, he or 
she is not entitled to use additional sick leave under paragraph (b) of 
this section.
    (e) If the number of hours in the employee's tour of duty is 
changed during the leave year, his or her entitlement to use sick leave 
for the purposes described in paragraphs (a)(3) and (4) of this section 
must be recalculated based on the new tour of duty.
    (f) An agency may advance a maximum of 30 days of sick leave to a 
full-time employee at the beginning of a leave year or at any time 
thereafter when required by the exigencies of the situation for a 
serious disability or ailment of the employee or a family member or for 
purposes relating to the adoption of a child. Thirty days is the 
maximum amount of advance sick leave an employee may have to his or her

[[Page 47696]]

credit at any one time. For a part-time employee (or an employee on an 
uncommon tour of duty), the maximum amount of sick leave an agency may 
advance must be prorated according to the number of hours in the 
employee's regularly scheduled administrative workweek.


Sec.  630.402  Requesting sick leave.

    An employee must file an application--written, oral, or electronic, 
as required by the agency--for sick leave within such time limits as 
the agency may require. The employee must request advance approval for 
sick leave for the purpose of receiving medical, dental, or optical 
examination or treatment and, to the extent possible, for the purposes 
described in Sec.  630.401(a)(3), (4), and (6).


Sec.  630.403  Supporting evidence for the use of sick leave.

    (a) An agency may grant sick leave only when the need for sick 
leave is supported by administratively acceptable evidence. An agency 
may consider an employee's self-certification as to the reason for his 
or her absence as administratively acceptable evidence, regardless of 
the duration of the absence. An 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) for an absence in excess of 3 workdays, or for a lesser 
period when the agency determines it is necessary.
    (b) An employee must provide administratively acceptable evidence 
or medical certification for a request for sick leave no later than 15 
calendar days after the date the agency requests such medical 
certification. If it is not practicable under the particular 
circumstances to provide the requested evidence or medical 
certification within 15 calendar days after the date requested by the 
agency despite the employee's diligent, good faith efforts, the 
employee must provide the evidence or medical certification within a 
reasonable period of time under the circumstances involved, but no 
later than 30 calendar days after the date the agency requests such 
documentation. 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.  630.404  Use of sick leave during annual leave.

    Subject to Sec.  630.401(b) through (e), an agency may grant sick 
leave to an employee during a period of annual leave for any of the 
purposes described in Sec.  630.401(a).


Sec.  630.405  Sick leave used in the computation of an annuity.

    Sick leave used in the computation of an annuity is charged against 
an employee's sick leave account and may not thereafter be used, 
transferred, or recredited. All sick leave to the credit of an employee 
as of the date of his or her retirement (or death) and reported to OPM 
for credit towards the calculation of an annuity is considered used.


Sec.  630.406  Records on the use of sick leave.

    An agency must maintain records of the amount of sick leave used by 
an employee for family care purposes and to make arrangements for or 
attend the funeral of a family member under Sec.  630.401(a)(3) and 
(4). The records must be sufficient to ensure that an employee does not 
exceed the limitations in Sec.  630.401(b) and (c).

[FR Doc. 06-7005 Filed 8-16-06; 8:45 am]
BILLING CODE 6325-39-P