[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29820]
[[Page Unknown]]
[Federal Register: December 2, 1994]
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Part X
Office of Personnel Management
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5 CFR Part 630
Absence and Leave; Sick Leave for Adoption; Final Rule and Interim Rule
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AE95
Absence and Leave; Sick Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management is issuing final
regulations on the use and recredit of sick leave for Federal
employees. Consistent with the recently enacted Federal Employees
Family Friendly Leave Act, the final regulations expand the use of sick
leave by permitting most employees to use a total of up to 104 hours of
sick leave each leave year (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 during a leave year) to provide care for a
family member as a result of physical or mental illness; injury;
pregnancy; childbirth; or medical, dental, or optical examination or
treatment; or to make arrangements necessitated by the death of a
family member or attend the funeral of a family member. The final
regulations also remove the 3-year break-in-service limitation on the
recredit of sick leave for former employees who are reemployed on or
after December 2, 1994.
EFFECTIVE DATE: December 2, 1994.
FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858.
SUPPLEMENTARY INFORMATION: On May 11, 1994 (59 FR 24560), the Office of
Personnel Management (OPM) published proposed regulations to amend 5
CFR 630.401 to provide that employees may use a total of up to 5 days
of sick leave per leave year to provide care for a child, spouse, or
parent as a result of sickness, injury, pregnancy, or childbirth; to
make arrangements necessitated by the death of a family member; or to
attend the funeral of a family member. In addition, OPM proposed to
amend 5 CFR 630.502 and 630.504 to remove the 3-year brake-in-service
limitation on the recredit of sick leave and permit employees who
separate from Federal service to have their unused sick leave
recredited in full to their sick leave accounts upon return to Federal
service on or after the effective date of the final regulations. These
changes were recommended in the Report of the National Performance
Review on September 7, 1993. The proposed regulations also included
conforming changes in Secs. 630.402 (Application for sick leave),
630.403 (Supporting evidence), and 630.405 (Use of sick leave during
annual leave).
During the comment period, OPM received comments from 1 Member of
Congress, 29 Federal agencies, 1 labor organization, 13 professional
organizations and associations, and 99 individuals, for a total of 143
comments. Thirty-four commenters supported the proposed revisions in
the sick leave regulations without change. Five individuals opposed the
proposed sick leave regulations. These individuals believed sick leave
should be granted only for an employee's personal illness or injury and
that Federal employees earn and accrue sufficient annual leave to
provide care for family members.
After the close of the comment period, Congress passed and the
President signed into law the Federal Employees Family Friendly Leave
Act, Public Law 103-388, on October 22, 1994. The Act authorizes the
use by all covered full-time employees of a total of up to 40 hours (5
workdays) of sick leave per year to (1) give care or otherwise attend
to a family member having an illness, injury, or other condition which,
if an employee had such a condition, would justify the use of sick
leave by the employee; or (2) make arrangements or attend the funeral
of a family member. In addition, a covered full-time employee who
maintains a balance of at least 80 hours of sick leave may use an
additional 64 hours (8 workdays) of sick leave per year for these
purposes, bringing the total amount of sick leave available for family
care and bereavement purposes to a maximum of 104 hours (13 workdays)
per year for employees who satisfy this condition.
The Federal Employees Family Friendly Leave Act will become
effective on December 22, 1994. As discussed below, however, we have
determined that regulatory provisions consistent with the entitlements
provided by this legislation should be made effective immediately under
the regulatory authority granted to OPM by the current sick leave
statute (5 U.S.C. 6311).
A summary of the comments received by OPM on the proposed sick
leave regulations and a description of the revisions made in the
regulations as a result of the comments are presented below.
Use of Sick Leave To Care for Family Members
A large proportion of the commenters (65) opposed limiting the use
of sick leave to provide care only for certain family members--i.e., a
child, spouse, or parent. The commenters believed the proposed rule was
unfair and discriminatory to many Federal employees who share close
family responsibilities in a family group broader than a traditional
nuclear family. Further, they suggested this policy would be
inconsistent with the intent of many other OPM initiatives designed to
assist Federal employees in balancing work and family needs. For
example, one agency suggested that if the purpose of the proposed sick
leave regulations is to be sensitive to the needs of all employees,
some consideration should be given to those individuals who have legal
responsibility for other family members or significant others. One
commenter recommended that OPM's definition of family member be changed
so that the Federal Government could set an example as an employer of a
diverse workforce.
One agency and 11 individuals recommended that the phrase ``son or
daughter'' be substituted for the term ``child.'' The definition of
``child'' in the proposed rule includes individuals over the age of 18
only if they are disabled. The agency was concerned that the term
``child'' may be perceived as connoting a lack of maturity and
suggested that this connotation is not appropriate to individuals over
18 who are disabled because it may reinforce negative stereotypes about
individuals with disabilities. The agency stated that the phrase ``son
or daughter,'' as used in the Family and Medical Leave Act of 1993
(FMLA) and in OPM's implementing regulations under the Act, is less
likely to connote immaturity, since the phrase identifies the
relationship rather than a stage of development.
Many commenters pointed out that the definition of ``child'' in the
proposed rule would prohibit parents from using sick leave to arrange
for or attend the funeral of an adult son or daughter who is over 18
years old and is not disabled.
One agency noted that some agencies provide broader coverage for
benefits under the FMLA by allowing additional family members to be
covered (as encouraged in OPM's interim regulations implementing Title
II of the FMLA) and that these agencies will be put in the awkward
position of having different coverage for two leave programs that OPM
recognizes as having a ``similarity of purpose.''
Most of the commenters recommended that OPM use the broader
definition of ``family member'' found in the Voluntary Leave Transfer
Program. One commenter noted that this definition is more accommodating
to the needs of a wide variety of family compositions. Another
suggested that the broader definition would more faithfully fulfill the
Federal Government's purpose of being a responsive, competitive, and
model employer. One agency noted that the broader definition is
consistent with the intent of the National Performance Review
recommendations. Furthermore, the agency noted that the broader
definition recognizes that in today's society there are both
traditional and nontraditional families and that the responsibilities
placed on the employee are the same in both cases.
In response to these comments and consistent with the requirements
of the Federal Employees Family Friendly Leave Act, the final
regulations include the broader definition of ``family member'' that is
used in the Federal leave sharing program. For these purposes, ``family
member'' means (a) spouse and parents thereof; (b) children, including
adopted children, and spouses thereof; (c) parents; (d) brother 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. The term ``children, including adopted
children, and spouses thereof,'' as used in this definition, covers
adult sons and daughters, whether disabled or not, and therefore
permits an employee to use sick leave to arrange for or attend the
funeral of an adult son or daughter who is over 18 years old and is not
disabled.
Limitation on Use of Sick Leave for Family Care or Bereavement
A significant number of the commenters (42) opposed OPM's proposed
5-day limitation on the amount of sick leave to be used each leave year
for family care or bereavement purposes. One commenter questioned
whether 5 days of sick leave each leave year realistically would be
sufficient to enable an employee to provide care for family members,
especially in situations of terminal or serious illness. One commenter
stated that the current move to ``empower'' employees assumes that
employees are able to exercise good judgment about their jobs.
Therefore, it was suggested, OPM should assume that employees can make
a fair judgment about their own usage of leave. One agency commented
that if the absence represents an appropriate use of sick leave, the
amount should be determined by the circumstances of each case, not by
an arbitrary ceiling.
A professional association commented that the proposed 5-day limit
on the use of sick leave to care for a family member is unnecessary and
too restrictive and that it contravenes the FMLA, which imposes no such
limit. The association believes the FMLA already permits Federal
employees to substitute their accrued or accumulated sick leave for any
or all of the 12 weeks of unpaid FMLA leave to care for a family
member. Under 5 U.S.C. 6382(d), an employee may elect to substitute
paid accrued or accumulated annual or sick leave for any part of the
12-week period of FMLA leave, ``except that nothing in this subchapter
shall require an employing agency to provide paid sick leave in any
situation in which such employer would not normally provide any such
paid leave.''
The association believes the legislative history of the FMLA shows
that Congress intended that employees would be entitled to unlimited
substitution of sick leave for unpaid leave provided by the FMLA. The
association raised these same objections in its comments to the
Department of Labor (DOL) on its Notice of Proposed Rulemaking (58 FR
13394, March 10, 1993) requesting assistance in developing interim
regulations implementing Title I of the FMLA and to OPM on its interim
regulations implementing Title II of the FMLA (58 FR 39596, July 23,
1993). The association further stated that since OPM has not yet issued
final regulations on the FMLA and has not resolved the issue of
substitution of sick leave, it is premature for OPM to promulgate a
sick leave rule that may contradict OPM's final FMLA regulations.
DOL addressed the professional association's objections in its
interim regulations implementing Title I of the FMLA in 29 CFR part 825
(58 FR 31794, June 4, 1993). DOL stated that ``the history of this
provision lacks an explanation that it is so intended and cannot,
therefore, overcome the clearer reading of the statutory language.''
OPM agrees with DOL's assessment that the legislative history does not
support the idea that Congress intended unlimited substitution of paid
sick leave for FMLA leave without pay. In addition, Sec. 630.1205(b)(1)
of OPM's interim regulations implementing Title II of the FMLA
specifically states that an employee may elect to substitute annual or
sick leave for unpaid FMLA leave, ``consistent with current law and
regulations governing the granting and use of annual and sick leave.''
Most of the agencies commenting on the 5-day limitation suggested
that OPM impose no limit on the amount of sick leave that an employee
may use to provide care for an ill or injured family member. Two
agencies recommended that, because of the similarity of purpose between
this initiative and the Family and Medical Leave Act, the sick leave
regulations should be amended to permit employees to substitute sick
leave for any or all of the 12 weeks of unpaid leave provided by the
FMLA. One agency noted that by aligning the sick leave regulations with
the FMLA, OPM could reduce the need for another set of tracking systems
covering time off to care for family members. Several agencies reported
that tracking and monitoring the proposed 5-day limit would impose an
additional administrative burden on their payroll and timekeeping
functions because they would be required to track two types of sick
leave--sick leave used for the employee's own medical needs and sick
leave used for family needs. One agency stated that the potential for
abuse appears high, since an employer may have difficulty verifying the
medical status of family members.
A professional organization stated that limiting the use of sick
leave to 5 days per year for family care or bereavement purposes is
both inadequate and impractical to administer and would send a mixed
message to Federal employees that family-friendly programs are
encouraged but only minimally supported. The organization objected to
what it characterized as OPM's patronizing tone in expressing a need to
exercise caution in making changes in the sick leave regulations that
might allow for abuse or harm the employee's ability to save enough
sick leave for his or her own personal use. The organization suggested
that employees should be viewed as fully responsible for accommodating
their own personal and family needs and recommended allowing employees
to use an unlimited amount of sick leave for family care purposes.
As noted above, the Federal Employees Family Friendly Leave Act
establishes a maximum limitation of 104 hours (13 workdays) of sick
leave that may be used by most employees to care for a family member or
for bereavement purposes. Consistent with the limitations established
by this legislation and in response to the comments described above,
the final regulations provide that all covered full-time employees may
use a total of up to 40 hours (5 workdays) of sick leave each year for
family care or bereavement purposes. In addition, a covered full-time
employee who maintains a balance of at least 80 hours of sick leave may
use an additional 64 hours (8 workdays) of sick leave per year for
these purposes, bringing the total amount of sick leave available for
family care and bereavement purposes to a maximum of 104 hours (13
workdays) per year for employees who satisfy this condition. (See
Sec. 630.401 (b) through (d).)
For a part-time employee or an employee with an uncommon tour of
duty, the final regulations provide that the basic amount of sick leave
to be made available for family care or bereavement purposes shall be
equal to the average number of hours of work in the employee's
scheduled tour of duty each week. In addition, a part-time employee or
an employee with an uncommon tour of duty who maintains a sick leave
balance equal to at least twice the average number of hours of work in
the employee's scheduled tour of duty each week may use an amount equal
to the number of hours of sick leave normally accrued by the employee
during a leave year for these purposes. These limitations are
consistent with the amendments made by the Federal Employees Family
Friendly Leave Act, which authorizes OPM to prescribe limitations for
such employees that are proportional to those applicable to full-time
employees with a tour of duty of 40 hours per week.
OPM believes an annual limit of 104 hours (13 workdays) of sick
leave to provide care for an ill or injured family member will be 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 a
total of up to 104 hours of sick leave, in conjunction with a generous
annual leave system, advanced annual leave, the leave transfer and
leave bank programs, flexible work schedules, flexiplace, unpaid leave
under the FMLA, and compensatory time off will further assist the vast
majority of employees to meet their sickness-related family care needs.
Sick Leave for Exposure to a Communicable Disease
A labor organization, an agency, and some individuals commented
that the 5-day limit on the use of sick leave for family care purposes
would restrict, rather than expand, entitlement to use sick leave in
the case of employees who provide care for a family member who is
afflicted with a contagious disease. The labor organization pointed out
that Sec. 630.401(c) of the current regulations places no limit on the
amount of sick leave that may be used under these circumstances and
suggested that the 5-day limit would impose an unfair hardship when
compared to the current policy.
The current regulatory provision authorizing the use of sick leave
to care for ``a member of [the employee's] immediate family who is
afflicted with a contagious disease'' is based primarily on the need to
prevent the spread of contagion in the workplace. When the health
authorities having jurisdiction or a health care provider determines
that an employee's exposure to a communicable disease would jeopardize
the health of other employees, we continue to believe it is appropriate
to grant sick leave to the employee for the entire period of time
during which the danger to the health of other employees exists.
However, when it cannot be determined that an employee's exposure to a
communicable disease would jeopardize the health of other employees, we
do not believe there is any justification for allowing the employee to
use more sick leave than would be available to other employees who wish
to provide care for a family member whose illness or incapacitation is
not the result of a communicable disease. In such cases, employees may
request annual leave or leave without pay to provide additional care
and may also be eligible for participation in the Federal leave sharing
program.
The determination as to whether an employee's exposure to a
communicable disease would jeopardize the health of other employees
necessarily is a matter of judgment. Supervisors should rely on the
expertise of the health authorities having jurisdiction or a health
care provider in determining the period of time for which sick leave
should be authorized and may require the employee to submit medical
documentation to support the use of sick leave under these
circumstances for an extended period of time.
OPM also received five comments relating to other aspects of the
proposed regulation on the use of sick leave in cases of communicable
disease. Some asked for additional clarification concerning what
constitutes a ``severe communicable disease.'' One agency recommended
that the word ``severe'' be deleted. The agency reasoned that if the
local health authorities or health care provider has determined that a
person so exposed is required to be isolated for a specified period of
time, the communicable disease must be ``severe.'' The agency suggested
that using the modifier ``severe.'' may put management in the difficult
position of second-guessing health authorities. We find this
observation compelling and have deleted the word ``severe.'' We have
not attempted to define the term ``communicable disease,'' however,
because the key determination that has to be made is not whether a
particular illness constitutes a ``communicable disease,'' but whether
an employees's exposure to the illness would jeopardize the health of
other employees. This determination can be made only by the health
authorities having jurisdiction or a health care provider.
A labor organization objected to the characterization of a ``severe
communicable disease'' as one that requires ``isolation for a specified
period.'' It suggested that this characterization implies that if the
health authorities or health care provider does not, or cannot,
identify a ``specified period'' of isolation, an application for sick
leave will be denied. We agree that this characterization is
unnecessary and have revised Sec. 630.401(a)(5) to remove the reference
to ``isolation'' altogether. In addition, we have removed the
definition of ``contagious disease'' in Sec. 630.201(b)(3). In response
to another comment, we have also provided a definition of ``health care
provider'' in Sec. 630.201(b)(5).
As a result of these changes, employees will be permitted to use
sick leave for the entire period of time during which the health
authorities having jurisdiction or a health care provider determines
that an employee's exposure to a communicable disease would jeopardize
the health of other employees. Full-time employees will be limited to a
total of 13 days of sick leave per year (subject to the requirement in
Sec. 630.401(c) to maintain 80 hours of sick leave in their account)
when it cannot be determined that an employee's exposure to a family
member's communicable disease would jeopardize the health of other
employees.
Calculation of Sick Leave
The proposed regulations would permit employees to use a total of
up to 5 days of sick leave each year (or, in the case of a part-time
employee or an employee with an uncommon tour of duty, the average
number of hours of work in the employee's scheduled tour of duty each
week) to provide care for a family member or for bereavement purposes.
Several agencies requested guidance on how to calculate the 5 days of
sick leave for part-time employees or employees working compressed work
schedules. They asked what period of time an agency should use to
determine the average number of hours of work in an employee's tour of
duty each week. One agency suggested that OPM use either days or hours,
but not both. The agency further recommended the use of hours to
calculate the entitlement to sick leave to care for a family member
because granting 5 days of sick leave to a full-time employee on a
compressed work schedule amounts to 50 hours for an employee with a 10-
hour daily tour of duty (and represents more that 1 week).
OPM agrees that it would be desirable to express these entitlements
in terms of ``hours'' rather than ``days.'' As a result, 5 CFR 630.401
has been revised accordingly. If the number of hours of work in an
employee's tour of duty is changed during the leave year, the
employee's entitlement to use sick leave to care for a family member or
for bereavement purposes must be recalculated based on the new tour of
duty. As provided in 5 CFR 630.206, employees may take sick leave to
care for a family member in increments of less than 1 hour if the
agency's leave policies allow the granting of leave in increments of
less than 1 hour.
Recredit of Sick Leave
Nineteen commenters supported OPM's proposal to remove the 3-year
break-in-service limitation on the recredit of sick leave; one
individual opposed the change, believing that there should be a penalty
for voluntary separation. Many agencies and individuals believe the
elimination of the 3-year limitation on the recredit of sick leave
would be an incentive for employees under the Federal Employees
Retirement system (FERS) to save their sick leave as insurance for
possible future use. However, several individual employees objected to
OPM's intent to make this change prospective. These individuals thought
our proposal unfairly discriminated against employees who had forfeited
sick leave as a result of returning to Federal service prior to the
effective date of the rule change.
OPM agrees that the proposed change in the rules on the recredit of
sick leave fosters the conscientious use of sick leave. Employees will
no longer feel forced to use their sick leave prior to separating from
the Federal Government because there will no longer be a risk of
forfeiting accrued sick leave when they return to Federal employment.
However, OPM does not believe it is feasible to give this change
retroactive effect.
Under the Administrative Procedure Act, retroactivity is not
favored where it could work an inequity. OPM believes retroactivity
could create as many inequities as it alleviates, since any effective
date that OPM selects (except an indefinite retroactive effective date)
will be perceived as unfair by employees who do not benefit from the
change. An indefinite retroactive effective date for the recredit of
sick leave would cause administrative problems for Federal agencies
because it may be difficult to identify all employees who were
adversely affected. In addition, it may be difficult, if not
impossible, to reconstruct affected employees' sick leave records.
Based on the comments we received, there appears to be confusion as
to whether the removal of the 3-year break-in-service limitation on the
recredit of sick leave applies to an employee who resigns before the
effective date of the regulations and returns after the effective date.
(OPM also received numerous telephone inquiries on this matter.)
Therefore, we have revised Sec. 630.502(b) to state that a former
employee is entitled to a recredit of sick leave (without regard to the
date of his or her separation) if reemployed in the Federal Government
on or after the effective date of these regulations, unless the sick
leave was forfeited upon reemployment in the Federal Government before
the effective date of these regulations. Similar revisions have also
been made in Secs. 630.502(c), (e), and (f) and 630.504(b).
Reemployed annuitants also are entitled to a recredit of sick
leave. However, the elimination of the 3-year restriction on sick leave
recredit does not affect the sick leave the reemployed annuitant had at
the time of retirement if that sick leave was creditable in the annuity
computation. That sick leave balance became part of the annuity
computation and is no longer available for use as sick leave.
Recredited sick leave will be added to the reemployed annuitant's
current sick leave account for use in his or her current employment. If
the reemployed annuitant qualifies for a supplemental or redetermined
annuity under the Civil Service Retirement System, 5 U.S.C. 8344, any
unused sick leave in his or her sick leave account upon separation
after reemployment may be included in the computation of the
supplemental or redetermined benefit.
Voluntary Leave Transfer and Leave Bank Programs
Three agencies noted that an employee who applies to become a leave
recipient under the voluntary leave transfer or leave bank programs to
care for a family member with a medical emergency must exhaust all
available leave (excluding advanced leave) before he or she becomes
eligible for any donated leave. Since an employee was previously not
permitted to use sick leave to care for a family member (except in
cases of contagious disease), there was no requirement to exhaust
available sick leave before requesting donated leave in such cases. The
agencies suggested that an employee be required to use the sick leave
provided under Sec. 630.401(b) to care for a family member before he or
she can become eligible for donated leave. OPM agrees that an employee
is required to use the sick leave available under Sec. 630.401(b)
through (d) before becoming eligible for donated leave to care for a
family member. The regulations have been revised to clarify this matter
in the case of applications to become a leave recipient that are
approved on or after the effective date of these regulations. (See
Sec. 630.405(b).) In addition, the regulations have been revised to
require an employee who is in a shared leave status on the effective
date of these regulations to use the sick leave available under
Sec. 630.401(b) through (d) before he or she can continue using donated
leave. (See Sec. 630.405(c).)
Sick Leave for Adoption
Five commenters noted that OPM's proposal to revise the sick leave
regulations did not include any provisions authorizing the use of sick
leave for purposes related to adoption, as recommended by the Report of
the National Performance Review. Under previous law, OPM did not have
authority to permit the use of sick leave for adoption. However,
section 629(b) of Public Law 103-329, September 30, 1994, the Treasury,
Postal Service, and General Government Appropriations Act for fiscal
year 1995, amends 5 U.S.C. 6307 to permit the use of sick leave for
purposes relating to the adoption of a child. In addition, the new law
allows sick leave to be substituted retroactively for any annual leave
used by an employee for adoption-related purposes between September 30,
1991, and September 30, 1994. OPM is issuing interim regulations
permitting the use of sick leave for adoption-related purposes at the
same time as the final sick leave regulations are issued.
Recordkeeping and Reporting Requirements
As required by the Federal Employees Family Friendly Leave Act, OPM
must submit a report to Congress by June 22, 1997, to evaluate the use
of sick leave under the Federal Employees Family Friendly Leave Act and
make a recommendation as to whether or not the entitlements under the
Act should continue beyond December 22, 1997. To enable OPM to have
access to sufficient information to make such an evaluation, a new
section has been added at 5 CFR 630.408 to require agencies to maintain
and report to OPM information on each employee's use of sick leave to
care for a family member or for bereavement purposes as provided under
the final regulations. Beginning with leave year 1995, the regulations
require agencies to maintain records on (1) the grade or pay level and
gender of each employee; (2) the total number of hours of sick leave
used by each employee for family care or bereavement purposes and for
all other purposes; and (3) any additional information OPM may require.
Suggestions for Leave Reform
Three agencies observed that opening up sick leave usage to
situations other than the employee's own medical needs blurs the
distinction between sick leave and annual leave. One agency suggested
that this should be considered in future discussions on how the Federal
leave program can be reformed to help Federal employees cope with their
work and family responsibilities.
Miscellaneous Comments
A labor organization requested that OPM clarify that the 5-day
limitation on the use of sick leave to make arrangements necessitated
by the death of a family member or attend the funeral of a family
member does not apply to an employee's incapacitation due to sickness,
including severe depression or emotional distress, resulting from the
death of a family member. OPM concurs with this comment. Employees who
are incapacitated as a result of severe emotional distress due to the
death of a family member are entitled to use sick leave for their own
sickness or illness. This is consistent with an opinion of the
Comptroller General (B-207444, October 20, 1982). In response to this
comment, Sec. 630.401(a)(2) has been clarified to state that an
employee may use sick leave because of incapacitation for the
performance of duties by physical or mental illness.
A professional organization suggested that OPM consider permitting
Federal employees to transfer their available annual leave to family
members who are also employed by the Federal Government. This
suggestion would require legislation. Under current law, sections 6332
and 6362 of title 5, United States Code, specifically provide for the
transfer of annual leave only for medical emergencies.
Several agencies requested guidance as to whether the 5 days of
sick leave to care for a family member or for bereavement purposes
could be advanced and whether an employee may substitute the 5 days of
sick leave for unpaid leave under the FMLA, when appropriate. The sick
leave available to covered employees for these purposes under the final
regulations may be advanced, and such employees may substitute sick
leave for unpaid leave under the FMLA. In addition, an agency
questioned whether the 5 days of sick leave may accumulate over the
years without limit, like sick leave generally, even though only 5 days
of sick leave may be used each leave year. If an employee does not use
any or all of the amount of sick leave provided under Sec. 630.401 for
family care or bereavement purposes in a leave year, it cannot be
accumulated in succeeding years to be used to care for a family member
or for bereavement purposes.
Some agencies requested that OPM clearly define the situations in
which an employee may use sick leave to care for a family member--e.g.,
for medical and dental appointments or for a common cold, fever, or
vomiting, since a child care facility typically will not permit the
attendance of a child with these symptoms. An agency questioned how the
sick leave program will be used in conjunction with other leave
programs--e.g., the leave sharing program, the FMLA, and advanced
leave. Agencies have discretionary authority to administer the Federal
leave program, consistent with current law and regulations. OPM
encourages agencies to assist employees in balancing their work and
family responsibilities. Agencies must apply the same criteria they
would apply if an employee were suffering from a similar symptoms or
receiving medical, dental, or optical examination or treatment.
Finally, an agency requested that OPM consider revisions that would
result in the crediting of sick leave in retirement computations for
employees covered by FERS or allow some type of payback for sick leave.
This comment is beyond the scope of these regulations and would require
a legislative change.
Other Changes
The final regulations at Sec. 630.401(a)(2) have been revised to
permit the use of sick leave by an employee who is incapacitated for
the performance of his or her duties by physical or mental illness or
to care for a family member incapacitated as a result of physical or
mental illness. The purpose of this change is to clarify the
circumstances in which an employee is entitled to use sick leave.
Waiver of Delay in Effective Date
In the spirit of the President's memorandum of July 11, 1994,
directing agencies to establish and support family-friendly work
arrangements, and consistent with the recent changes in law on the
purposes for which sick leave may be used, I find good cause exists for
making these rules effective in less than 30 days pursuant to 5 U.S.C.
553(d)(3). The delay in the effective date is being waived to give
affected employees the benefit of these new provisions as of December
2, 1994.
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 that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will affect only Federal employees and agencies.
List of Subjects in 5 CFR Part 630
Government employees.
U.S. Office of Personnel Management.
James B. King,
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 is revised to read as
follows:
Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5
U.S.C. 6133(a); 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, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart
G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C.
6326; subpart I also issued under 5 U.S.C. 6332 and Pub. L. 100-566
(102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also
issued under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart
K also issued under Pub. L. 102-25 (105 Stat. 92); and subpart L
also issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23).
Subpart B--Definitions and General Provisions for Annual and Sick
Leave
2. In Sec. 630.201, paragraph (b)(3) is removed; paragraph (b)(4)
is redesignated as paragraph (b)(3); paragraphs (b) (5), (6), and (7)
are redesignated as paragraphs (b) (6), (7), and (8), respectively; and
new paragraphs (b) (4) and (5) are added to read as follows:
Sec. 630.201 Definitions.
* * * * *
(b) * * *
(b) Family member means the following relatives of the employee:
(i) Spouse, and parents thereof;
(ii) Children, including adopted children and spouses thereof;
(iii) Parents;
(iv) Brothers and sisters, and spouses thereof; and
(v) Any individual related by blood or affinity whose close
association with the employee is the equivalent of a family
relationship.
(5) Health care provider has the meaning given that term in
Sec. 630.1202.
* * * * *
Subpart D--Sick Leave
3. In subpart D, Sec. 630.401 is revised to read as follows:
Sec. 630.401 Grant of sick leave.
(a) Subject to paragraphs (b) through (e) of this section, an
agency shall grant sick leave to an employee when the employee--
(1) Receives medical, dental, or optical examination or treatment;
(2) Is incapacitated for the performance of duties by physical or
mental illness, injury, pregnancy, or childbirth;
(3) Provides care for a family member as a result of physical or
mental illness; injury; pregnancy; childbirth; or medical, dental, or
optical examination or treatment;
(4) Makes arrangements necessitated by the death of a family member
or attends the funeral of a family member; or
(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.
(b) The amount of sick leave granted to an employee during any
leave year for the purposes described in paragraphs (a)(3) and (4) of
this section many 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) To be granted any sick leave for the purposes described in
paragraphs (a)(3) or (4) of this section during any leave year in an
amount exceeding a total of 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 of work in the employee's scheduled tour of duty each
week), the employee concerned shall retain in his or her sick leave
account a balance of at least 80 hours (or, in the case of a part-time
employee or an employee with an uncommon tour of duty, an amount equal
to twice the average number of hours of work in the employee's
scheduled tour of duty each week).
(d) When sick leave is granted to an employee under the condition
specified in paragraph (c) of this section, the amount of sick leave
retained in the employee's sick leave account shall, in each instance,
be at least equal to the minimum prescribed by paragraph (b) of this
section after deducting the amount to be used for the purposes
described in paragraphs (a)(3) and (4) of this section.
(e) If the number of hours in the employee's tour of duty is
changed during the leave year, the employee's entitlement to use sick
leave for the purposes described in paragraphs (a)(3) and (4) of this
section shall be recalculated based on the employee's new tour of duty.
4. Section 630.402 is revised to read as follows:
Sec. 630.402 Application for sick leave.
An employee shall file a written application for sick leave within
such time limits as the agency may require. An employee shall 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) and (4).
630.403 Supporting evidence.
An agency may grant sick leave only when supported by evidence
administratively acceptable. 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 evidence administratively acceptable. However,
for an absence in excess of 3 workdays, of for a lesser period when
determined necessary by an agency, 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).
6. Section 630.405 is revised to read as follows:
Sec. 630.405 Use of sick leave during annual leave or to become
eligible for donated leave.
(a) Subject to Sec. 630.401(b) through (e), an agency may grant
sick leave during a period of annual leave for any of the purposes
described in Sec. 630.401(a).
(b) An employee's entitlement to use sick leave to care for a
family member under Sec. 630.401 shall be considered as available paid
leave for the purpose of determining an employee's eligibility to
become a leave recipient under the voluntary leave transfer and leave
bank program established under subchapters III and IV of title 5,
United States Code, if the medical emergency involves a family member
of the employee. This determination shall be made for any application
to be a leave recipient approved on or after December 2, 1994.
(c) In the case of an employee already in a shared leave status on
December 2, 1994, under the voluntary leave transfer or leave bank
programs established under subschapters III and IV of title 5, United
States Code, any sick leave available to care for a family member under
Sec. 630.401 shall be used, if the medical emergency involves a family
member of the employee, before continuing to use transferred annual
leave or annual leave withdrawn from a leave bank.
7. Section 630.408 is added to read as follows:
Sec. 630.408 Records and reports.
(a) Beginning with leave year 1995, each agency shall maintain
records concerning the use of sick leave to care for a family member or
to make arrangements for or attend the funeral of a family member under
Sec. 630.401(a) (3) and (4) and shall report such information as may be
required by the Office of Personnel Management (OPM) for the purpose of
evaluating the use of sick leave.
(b) Beginning with leave year 1995, each agency shall maintain the
following information by leave year for each employee using sick leave
for the purpose described in Sec. 630.401(a) (3) or (4):
(1) The grade or pay level and gender of each employee;
(2) The total number of hours of sick leave used by each employee--
(i) For the purposes described in Sec. 630.401(a) (3) or (4); and
(ii) For all other purposes described in Sec. 630.401(a); and
(3) Any additional information OPM may require.
8. The heading for subpart E of part 630 is revised to read as
follows:
Subpart E--Recredit of Leave
9. In subpart E, Sec. 630.502 is revised to read as follows:
Sec. 630.502 Sick leave recredit.
(a) When an employee transfers between positions under subchapter I
of chapter 63 of title 5, United States Code, the agency from which the
employee transfers shall certify his or her sick leave account to the
employing agency for credit or charge.
(b) Except as provided in Sec. 630.407 and in paragraph (c) of this
section, an employee who has had a break in service is entitled to a
recredit of sick leave (without regard to the date of his or her
separation), if he or she returns to Federal employment on or after
December 2, 1994, unless the sick leave was forfeited upon reemployment
in the Federal Government before December 2, 1994.
(c) Except as provided in Sec. 630.407, an employee of the
government of the District of Columbia who was first employed by the
government of the District of Columbia before October 1, 1987, who has
had a break in service is entitled to a recredit of sick leave (without
regard to the date of his or her separation), if he or she returns to
Federal employment on or after December 2, 1994, unless the sick leave
was forfeited upon reemployment in the Federal Government before
December 2, 1994.
(d) When sick leave is transferred between different leave systems
under section 6308 of title 5, United States Code, 7 calendar days of
sick leave are deemed equal to 5 workdays of sick leave.
(e) An employee who transfers to a position under a different leave
system to which he or she can transfer only a part of his or her sick
leave is entitled to a recredit of the untransferred sick leave
(without regard to the date of the original transfer) if the employee
returns to the leave system under which it was earned on or after
December 2, 1994.
(f) An employee who transfers to a position to which he or she
cannot transfer his or her sick leave is entitled to a recredit of the
untransferred sick leave (without regard to the date of the original
transfer) if the employee returns to the leave system under which it
was earned on or after December 2, 1994.
(g) The recredit of sick leave under this section shall be
supported by written documentation available to the employing agency in
its official personnel records concerning the employee, the official
records of the employee's former employing agency, copies of
contemporaneous earnings and leave statement(s) provided by the
employee, or copies of other contemporaneous written documentation
acceptable to the agency.
(h) The sick leave to be recredited under this section must have
been accrued under 5 U.S.C. 6307 or transferred to the employee's
credit under 5 U.S.C. 6308 (or the corresponding provisions of prior
statutes).
10. Section 630.504 is revised to read as follows:
Sec. 630.504 Reestablishment of leave account after military service.
(a) When an employee leaves his or her civilian position to enter
the military service, the employing agency shall certify his or her
leave account for credit or charge.
(b) If the employee returns to a civilian position following
military service, the agency to which the employee returns shall
reestablish the certified leave account as a credit or charge (without
regard to the date he or she left the civilian position) when the
employee is--
(1) Restored in accordance with a right of restoration after
separation from active military duty or hospitalization continuing
thereafter as provided by law or in accordance with the mandatory
provisions of a statute, Executive order, or regulation; or
(2) Reemployed in a position under subchapter I of chapter 63 of
title 5, United States Code, on or after December 2, 1994.
(c) For the purpose of documenting a returning employee's
entitlement to a recredit of sick leave under this section, the
documentation criteria established in Sec. 630.502(g) shall apply.
[FR Doc. 94-29820 Filed 2-1-94; 8:45 am]
BILLING CODE 6325-01-M
