[Federal Register Volume 63, Number 156 (Thursday, August 13, 1998)]
[Proposed Rules]
[Pages 43325-43327]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21741]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 63, No. 156 / Thursday, August 13, 1998 /
Proposed Rules
[[Page 43325]]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AI35
Family and Medical Leave
AGENCY: Office of Personnel Management.
ACTION: Proposed rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management is issuing proposed
regulations on the Family and Medical Leave Act of 1993 to ensure that
both employees' and agencies' rights are protected and their
responsibilities fulfilled.
DATES: Comments must be received on or before October 13, 1998.
ADDRESSES: Comments may be sent or delivered to Donald J. Winstead,
Assistant Director for Compensation Administration, Office of Personnel
Management, Room 7H31, 1900 E Street NW., Washington, DC 20415; FAX
(202) 606-0824; or email to payleave@opm.gov.
FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858, FAX
(202) 606-0824, or email to payleave@opm.gov.
SUPPLEMENTARY INFORMATION: On December 5, 1996, the Office of Personnel
Management (OPM) published final regulations (61 FR 64441) to implement
the requirements set forth in sections 6381 through 6387 of title 5,
United States Code, as added by Title II of the Family and Medical
Leave Act of 1993 (FMLA) (Public Law 103-3, February 5, 1993). The
final regulations became effective on January 6, 1997. The FMLA
provides eligible Federal employees with a total of 12 administrative
workweeks of unpaid leave during any 12-month period for (a) the birth
of a son or daughter and care of the newborn; (b) the placement of a
child with the employee for adoption or foster care; (c) the care of
the employee's spouse, son, daughter, or parent with a serious health
condition; or (d) a serious health condition of the employee that makes
the employee unable to perform the essential functions of his or her
position. OPM's regulations implementing the FMLA are found in subpart
L of part 630 of title 5, Code of Federal Regulations.
Questions and concerns continue to be received by OPM on an
employee's obligation to notify the agency of his or her intent to use
family and medical leave and provide required medical certification of
the serious health condition. We are issuing these proposed regulations
to ensure that both employees and agencies are complying with the
requirements of the Act.
We believe it is Congress' intent to provide Federal employees with
an entitlement to FMLA leave in a fair and equitable manner while
minimizing the impact of such leave on an employing agency. Although
individual situations may require some flexibility in meeting the
notification and medical certification requirements of the Act,
employees remain responsible for meeting their obligations under the
FMLA.
Invoking Entitlement to Family and Medical Leave
There is a major difference between Title I and Title II of the
FMLA in terms of the responsibility of an employer versus an employee
to invoke entitlement to FMLA leave. Under section 102(c)(2) of Title I
of the FMLA, which covers non-Federal employees, an employee may elect,
or an employer may require the employee to substitute paid leave for
unpaid leave under the FMLA, except that nothing in that section would
require an employer to provide paid sick leave in any situation in
which the employing agency would not normally provide sick leave. The
Department of Labor's (DOL's) regulations implementing Title I of the
FMLA therefore require the employer to designate leave, paid or unpaid,
as FMLA leave and to give notice of such designation to the employee.
In addition, if an employee does not initially request substitution of
paid leave for unpaid leave under the FMLA, DOL's regulations permit
the employer to require the employee to substitute appropriate paid
leave for unpaid leave.
In contrast, 5 U.S.C. 6382 (as added by section 201 of Title II of
the FMLA) states that an employee may elect to substitute any of the
employee's accrued or accumulated annual or sick leave for unpaid leave
under the FMLA, except that nothing in section 201 would require an
agency to provide paid sick leave in any situation in which the
employing agency would not normally provide sick leave. OPM's
regulations implementing Title II of the FMLA for Federal employees
therefore require employees to take responsibility for invoking their
entitlement to FMLA leave. In addition, an employee may elect to
substitute paid leave, as appropriate, for leave without pay under the
FMLA. An agency may not designate leave, paid or unpaid, as FMLA leave
unless it has obtained confirmation from an employee of his or her
intent to use FMLA leave and the employee chooses to substitute
appropriate paid leave for FMLA leave. The requirement that the
employee must initiate action to take FMLA leave is consistent with all
other Federal leave policies and programs in that the employee is
responsible for requesting leave or other time off from work. The 12
workweeks of unpaid leave under the FMLA are in addition to any annual
leave, sick leave, or other leave or compensatory time off available to
an employee, and an employee may choose to take FMLA leave in
combination with any other available leave.
In most cases, an employee must provide the employing agency with
not less than 30 days notice of his or her intention to take FMLA
leave. An employee is responsible for giving adequate notice of his or
her intent to use FMLA leave so that agencies may (1) determine that
the employee's need for leave is consistent with the purposes for which
FMLA leave may be used and (2) provide guidance concerning an
employee's rights and obligations under the FMLA. If an employee seeks
to invoke his or her entitlement to FMLA leave retroactively, an agency
may be severely hampered in fulfilling its statutory responsibilities
for administering the FMLA. Therefore, we propose to add a sentence to
Sec. 630.1203(b) to state that an employee may not retroactively invoke
his or her entitlement to leave under the FMLA.
Additional Evidence
Agencies have asked whether they may request additional evidence to
support a claim that an employee used
[[Page 43326]]
FMLA leave to care for a spouse, son, daughter, or parent. For example,
an agency may wish to request that an employee obtain and provide to
the agency his or her child's school attendance records coinciding with
the period during which the employee used FMLA leave. Currently, OPM's
regulations in Sec. 630.1206(f) permit agencies to require that a
request for FMLA leave for birth or adoption or foster care be
supported by evidence that is administratively acceptable to the
agency. We believe the law permits an agency to establish a policy that
requires an employee to submit administratively acceptable evidence
that would support the use of FMLA leave for any of the cited purposes.
Therefore, we propose to revise Sec. 630.1206(f) to permit agencies to
require that a request for FMLA leave be supported by evidence that is
administratively acceptable to the agency. Such a policy must be
nondiscriminatory and made known to all employees.
Medical Certification
In its final regulations, OPM did not establish a time limit for
submitting the medical certification of a serious health condition.
However, after careful reconsideration, we believe a Governmentwide
time limit for submitting medical certification for FMLA leave is
necessary to ensure that the entitlements provided under the FMLA are
provided to all Federal employees in a fair and consistent manner.
Therefore, we propose to revise Sec. 630.1207(a) to ensure that
employees are given at least 15 workdays in which to provide written
medical certification of a serious health condition. In addition,
Sec. 630.1207(d) and (e) would be revised to give employees 15 workdays
in which to submit a second or third written medical certification.
If an employee is unable to provide the requested medical
certification before FMLA leave begins, or if the agency requires a
second opinion under Sec. 630.1207(d) and the medical treatment
requires the leave to begin, the agency must grant provisional leave
pending final written certification that must be received by the agency
no later than 15 workdays after the date the FMLA leave began. We
believe it is Congress' intent that in all circumstances, employees be
required to provide complete medical certification, when requested by
an agency, within a reasonable period based on the circumstances
involved.
Insufficient Notification and Medical Certification
The law and regulations require employees to provide notification
and medical certification (if requested by the agency) for FMLA leave.
When an employee requests FMLA leave immediately for a medical
emergency and either cannot provide medical certification or submits
incomplete medical certification, the agency must grant the employee
provisional leave under Sec. 630.1207(g). However, if the employee does
not comply with the agency's requests for sufficient medical
certification, the employee is not entitled to leave under the FMLA. To
reinforce this principle, we propose to add paragraph (l) to
Sec. 630.1208 to state that an employee who does not comply with the
notification requirements in Sec. 630.1206, and who does not provide
medical certification that includes all the information required by law
and OPM's regulations in Sec. 630.1207(b), is not entitled to FMLA
leave. Further, the employee would not receive any of the employment
and benefit protections in Sec. 630.1208.
Agencies are reminded that their FMLA notification and medical
certification requirements may be less stringent than those contained
in an agency's leave restriction policies. However, agencies' policies
or procedures for providing notification of FMLA leave or medical
certification may not be more stringent than the requirements in
Secs. 630.1206 and 630.1207(b).
Miscellaneous
We propose to add a sentence to Sec. 630.1203(e) to state that any
Federal holidays that occur during the period in which an employee is
on FMLA leave will be counted toward the 12-week entitlement to FMLA
leave. In addition, Sec. 630.1201(b)(1)(ii)(B) and (b)(3)(i) would be
revised as requested by the Department of Veterans Affairs to identify
employees of the Veterans Health Administration that are covered by
title II of the FMLA.
Regulatory Flexibility Act
I certify that these regulations would not have a significant
economic impact on a substantial number of small entities because they
would affect only Federal employees and agencies.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Janice R. Lachance,
Director.
Accordingly, OPM proposes to amend part 630 of title 5 of the Code
of Federal Regulations as follows:
PART 630--ABSENCE AND LEAVE
1. The authority citation for part 630 is revised to read as
follows:
Authority: 5 U.S.C. 6311; Sec. 630.301 also issued under Pub. L.
103-356, 108 Stat. 3410; Sec. 630.303 also issued under 5 U.S.C.
6133(a); Secs. 630.306 and 630.308 also issued under 5 U.S.C.
6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-337,
108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 108
Stat. 2423; Sec. 630.501 and subpart F also issued under E.O. 11228,
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also
issued under Pub. L. 102-25, 105 Stat. 92; subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M
also issued under 5 U.S.C. 6391 and Pub. L. 105-18, 111 Stat. 158.
Subpart L--Family and Medical Leave
2. Section 630.1201(b)(1)(ii)(B) and (b)(3)(i) are revised to read
as follows:
Sec. 630.1201 Purpose, applicability, and administration.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
(B) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1);
* * * * *
(3) * * *
(i) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1) shall be governed by the terms and conditions of regulations
prescribed by the Secretary of Veterans Affairs;
* * * * *
3. In Sec. 630.1203, a sentence is added at the end of paragraph
(b) and a sentence is added at the end of paragraph (e) to read as
follows:
Sec. 630.1203 Leave entitlement.
* * * * *
(b) * * * An employee may not retroactively invoke his or her
entitlement to family and medical leave.
* * * * *
(e) * * * Any holidays authorized under 5 U.S.C. 6103 or by
Executive order that occur during the period in which the employee is
on family and medical leave shall be counted toward the 12-week
entitlement to family and medical leave.
* * * * *
4. In Sec. 630.1206, paragraph (f) is revised to read as follows:
[[Page 43327]]
Sec. 630.1206 Notice of leave.
* * * * *
(f) An agency may require that a request for leave under
Sec. 630.1203(a) be supported by evidence that is administratively
acceptable to the agency.
5. In Sec. 630.1207, the second sentence in paragraph (a) is
revised and a sentence is added at the end of paragraphs (d), (e), and
(g) to read as follows:
Sec. 630.1207 Medical certification.
(a) * * * Except as provided in paragraph (g) of this section, an
employee shall provide the written medical certification signed by the
health care provider no later than 15 workdays after the date the
agency requests such medical certification. * * *
* * * * *
(d) * * * Except as provided in paragraph (g) of this section, an
employee shall provide the second written medical certification signed
by the health care provider no later than 15 workdays after the date
the agency requests such medical certification.
(e) * * * Except as provided in paragraph (g) of this section, an
employee shall provide the third written medical certification signed
by the health care provider no later than 15 workdays after the date
the agency requests such medical certification.
* * * * *
(g) * * * The medical certification signed by the health care
provider must be received by the agency no later than 15 workdays after
the date the family and medical leave began.
* * * * *
6. In Sec. 630.1208, paragraph (l) is added to read as follows:
Sec. 630.1208 Protection of employment and benefits.
* * * * *
(l) An employee who does not comply with the notification
requirements in Sec. 630.1206 and does not provide medical
certification signed by the health care provider that includes all of
the information required in Sec. 630.1207(b) is not entitled to family
and medical leave.
[FR Doc. 98-21741 Filed 8-12-98; 8:45 am]
BILLING CODE 6325-01-P
