[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Proposed Rules]
[Pages 43064-43082]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20610]


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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.

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Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / 
Proposed Rules

[[Page 43064]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AL91


Absence and Leave; Family and Medical Leave

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management is issuing proposed 
regulations that would provide an eligible employee up to 26 
administrative workweeks of leave under the Family and Medical Leave 
Act (FMLA) to care for a member of the Armed Forces, including a member 
of the National Guard or Reserves, who is injured in the line of duty 
while on active duty. The proposed regulations would also amend the 
rules on advancing sick leave, including sick leave that may be 
substituted for FMLA unpaid leave to care for a covered servicemember 
and sick leave that may be used to provide care for a family member 
and/or for bereavement purposes, or in certain other circumstances. 
Finally, we are also proposing organizational changes to the existing 
sick leave and FMLA regulations to enhance reader understanding and 
administration of these programs.

DATES: Comments must be received on or before October 26, 2009.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL91'' using either of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay 
and Leave Administration, U.S. Office of Personnel Management, Room 
7H31, 1900 E Street, NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Doris Rippey by telephone at (202) 
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-policy@opm.gov.

SUPPLEMENTARY INFORMATION: The U.S. Office of Personnel Management 
(OPM) is issuing proposed regulations to implement section 585(b) of 
the National Defense Authorization Act for Fiscal Year 2008 (NDAA) 
(Pub. L. 110-181, January 28, 2008) that amends the Family and Medical 
Leave Act (FMLA) provisions in 5 U.S.C. 6381-6383 (applicable to 
Federal employees) to provide that a Federal employee who is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember with a serious injury or illness is entitled to a total 
of 26 administrative workweeks of leave during a single 12-month period 
to care for the covered servicemember. The covered servicemember must 
be a current member of the Armed Forces, including a member of the 
National Guard or Reserves, who has a serious injury or illness 
incurred in the line of duty on active duty for which he or she is 
undergoing medical treatment, recuperation, or therapy, is otherwise in 
outpatient status, or is otherwise on the temporary disability retired 
list. The proposed regulations would also permit an employee to 
substitute annual or sick leave, including advanced annual or sick 
leave, for any part of the 26-week period of unpaid FMLA leave to care 
for a covered servicemember. In addition, OPM is proposing to update 
its sick leave regulations to support agencies in planning for pandemic 
influenza. We are also proposing to clarify our current regulations 
regarding the advancement of up to 104 hours of sick leave to provide 
care for a family member and/or for bereavement purposes, and the 
amount of sick leave that may be advanced for other conditions 
specified under 5 CFR 630.401(a). We are also proposing organizational 
changes to the sick leave and FMLA regulations to enhance reader 
understanding and administration of the programs.
    The amendments to the FMLA became effective on the date of their 
enactment, January 28, 2008. On February 1, 2008, OPM issued a 
Compensation Policy Memorandum (CPM 2008-04), outlining the changes in 
Federal employee pay and leave laws resulting from the enactment of the 
NDAA, including the changes to the FMLA statute. (See http://www.opm.gov/oca/compmemo/2008/2008-04.asp.) In this memorandum, OPM 
stated that agencies were expected to follow the NDAA statutory 
provisions upon the effective date provided in law. Agencies are to 
continue implementing the statute to the best of their ability until 
OPM final regulations are issued.
    In accordance with 5 U.S.C. 6387, OPM is required to prescribe 
regulations that are consistent, to the extent appropriate, with those 
prescribed by the Secretary of Labor to carry out title I of the FMLA. 
The Department of Labor (DOL) issued its final regulations on November 
17, 2008 (73 FR 67934) to implement section 585(a) of the NDAA, 
amending title I of the FMLA, and to make other substantive changes to 
the DOL FMLA regulations based upon stakeholder meetings, rulings of 
the U.S. Supreme Court and other Federal courts, DOL's experience 
administering the law, information from Congressional hearings, and 
public comments filed with the Office of Management and Budget (OMB) as 
described by OMB in three annual reports to Congress on the FMLA's 
costs and benefits. In developing the NDAA portion of its regulations, 
DOL consulted with the Department of Defense (DOD), the Department of 
Veterans Affairs (VA), and a number of military service organizations 
to provide regulations that reflect the unique circumstances facing 
military families when a servicemember is deployed in support of a 
contingency operation and injured in the line of duty on active duty. 
To the extent appropriate, OPM is prescribing regulations consistent 
with the DOL regulations, as revised to incorporate the NDAA 
amendments. In order to expedite the implementation of the NDAA 
provisions for the Federal workforce, our regulations are addressing 
only the provisions in section 585(b) of the NDAA. After we issue final 
regulations incorporating the NDAA provisions in our current FMLA 
regulations, we will further review DOL's final rule to determine 
whether any additional changes are needed in our regulations. If 
changes are necessary, we will publish a proposed rule.
    We are also considering whether a comprehensive review of OPM's 
FMLA regulations is needed to identify any problems or concerns that 
our stakeholders have encountered when

[[Page 43065]]

reading and applying the provisions of subpart L, Family and Medical 
Leave, in part 630 of title 5, Code of Federal Regulations. Our FMLA 
regulations were initially published in 1993, and agencies have had 
ample experience in administering FMLA provisions. We expect it would 
be relatively easy for agencies to provide specific examples and 
feedback on how they believe our regulations could be improved. Any 
future OPM review would operate within the then-current FMLA statutory 
provisions. We are asking agencies for their recommendations on what 
significant changes, if any, are needed within the existing OPM FMLA 
regulatory framework.
    We are also proposing to reorganize the FMLA regulations in subpart 
L and the sick leave regulations in subpart D to enhance the reader's 
understanding of the regulations and make it easier to find relevant 
topics within the regulatory text.

Subpart D, Sick Leave

Overview of Sick Leave Changes

    Under 5 U.S.C. 6307(d), an agency may, when required by the 
exigencies of the situation, advance up to 30 days of sick leave for a 
serious disability or ailment, or for purposes relating to the adoption 
of a child. Under 5 CFR 630.401(f) in OPM's current regulations, 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. OPM is proposing to 
update these regulations to permit an agency to advance sick leave to 
an employee to care for a covered servicemember, pursuant to the NDAA 
amendments. These proposed regulations also support agencies in dealing 
with possible outbreaks of pandemic influenza and other serious 
communicable diseases, by permitting an agency to grant accrued or 
accumulated sick leave to an employee providing care for a family 
member who has been exposed to a serious communicable disease, and by 
permitting an agency to advance sick leave when an employee or a family 
member has been exposed to a serious communicable disease. Further, 
these proposed regulations generally clarify the amount of sick leave 
that may be advanced for conditions specified under Sec.  630.401(a).

Advanced Sick Leave To Care for a Covered Servicemember

    The NDAA amended the FMLA to authorize Federal employees up to 26 
administrative workweeks (1040 hours for a full-time employee) of 
unpaid FMLA leave to care for a covered servicemember with a serious 
injury or illness. Once an employee has invoked FMLA leave under 
Sec. Sec.  630.1203(b) and 630.1204 of the proposed regulations, the 
NDAA amendments to 5 U.S.C. 6382(d) allow an employee to substitute any 
accrued or accumulated annual or sick leave for any period of leave 
without pay. For a full-time employee, the 480-hour (12-week) 
limitation per leave year on the use of sick leave to care for a family 
member with a serious health condition under current Sec.  630.401(c) 
does not apply because the employee may substitute accrued or 
accumulated sick leave for any or all of the 26 administrative 
workweeks of unpaid leave to care for a covered servicemember. We 
believe it is also appropriate to allow the use of advanced sick leave 
for this purpose within certain limits, provided the employee has 
invoked FMLA under Sec. Sec.  630.1203(b) and 630.1204. Although an 
employee may use up to 26 administrative workweeks of accrued and 
accumulated sick leave during a single 12-month period if he or she 
invokes FMLA to care for a covered servicemember, we provide under 
proposed Sec.  630.402(a)(1)(v) and (b) that an agency may advance sick 
leave only to the extent that the employee is not indebted for more 
than 240 hours (30 days) of advanced sick leave at any time. An agency 
may not advance any sick leave to care for a covered servicemember 
under Sec.  630.402(a)(1)(v) if the employee has not invoked FMLA to 
care for a covered servicemember under Sec. Sec.  630.1203(b) and 
630.1204.
    For example, a relatively new employee learns that her husband is 
injured by gunfire in the line of duty on active duty. The employee is 
entitled to 26 weeks of unpaid leave under the FMLA to care for a 
covered servicemember; however, she has a combined total of only 160 
hours (4 weeks) of accrued and accumulated annual leave and sick leave. 
The employee requests advanced sick leave, and the agency approves the 
maximum amount allowable of 240 hours (30 days). The agency may advise 
the employee that she also can apply for donated annual leave under the 
voluntary leave transfer program (5 CFR part 630, subpart I) to 
liquidate the advanced sick leave and cover a portion of the remaining 
26 weeks of unpaid leave.

Sick Leave for Pandemic Influenza and Other Serious Communicable 
Diseases

    OPM also is proposing to update its sick leave regulations to 
support agencies' planning for pandemic influenza and other serious 
communicable diseases. The current sick leave regulations at Sec.  
630.401(a)(5) entitle an employee to use accrued or accumulated sick 
leave when it has been determined by the health authorities having 
jurisdiction or by a health care provider that the employee's presence 
on the job would jeopardize the health of others because of the 
employee's exposure to a communicable disease (e.g., Federal or State 
quarantine or isolation order).
    We propose to amend Sec.  630.401(a)(3) to entitle an employee to 
use accrued or accumulated sick leave to provide care for a family 
member when it has been determined by the health authorities having 
jurisdiction or by a health care provider that the family member's 
presence in the community would jeopardize the health of others because 
of the family member's exposure to a communicable disease, whether or 
not the family member has actually contracted the communicable disease. 
In general, this situation would only arise for serious communicable 
diseases, such as communicable diseases where federal isolation and 
quarantine are authorized under Executive Order 13295, as amended by 
Executive Order 13375, consistent with 42 U.S.C. 264(b). The current 
consolidated list of communicable diseases for which federal isolation 
and quarantine are authorized includes: cholera; diphtheria; infectious 
tuberculosis; plague; smallpox; yellow fever; viral hemorrhagic fevers; 
Severe Acute Respiratory Syndrome (SARS); and influenza that causes or 
has the potential to cause a pandemic. This list provides types of 
diseases that result in Federal quarantine and may be revised by the 
President as the need arises. As a result, this list of diseases is 
illustrative and not exhaustive. We request comment on whether 
additional changes to the regulatory text would help clarify the 
limited cases in which the situation would meet this threshold.
    In order to use sick leave in this situation, the relevant health 
authorities or a health care provider must first make a determination 
that the family member's presence in the community would jeopardize the 
health of others because of the family member's exposure to a 
communicable disease. Secondly, the employee must actively

[[Page 43066]]

be providing care for the family member. For example, a minor child of 
an employee could have been exposed to a communicable disease such as 
smallpox, and a determination has been made by the relevant health 
authorities or the health care provider that the child's presence at 
daycare or at school could jeopardize the health of other children. The 
employee could use sick leave to provide care for that child at home 
until it is determined whether or not the child has contracted the 
disease. The proposed amendment to Sec.  630.401(b) would limit the 
amount of accrued or accumulated sick leave available for this purpose 
to 104 hours per leave year, unless the family member contracts the 
communicable disease. Upon determination by health care officials that 
the family member has contracted the disease, the employee is entitled 
to use up to 12 weeks of sick leave in a leave year to care for a 
family member with a serious health condition under Sec.  630.401(c).
    Based on comments received from agencies related to OPM's existing 
pandemic guidance, we are also proposing to change our regulations 
under Sec.  630.402(a)(1)(iii) to permit agencies to advance a maximum 
of 240 hours (30 days) of sick leave to an employee if it has been 
determined by the health authorities having jurisdiction or by a health 
care provider that the employee's presence on the job would jeopardize 
the health of others because of exposure to a communicable disease. 
Similarly, we propose under Sec.  630.402(a)(2)(iii) an advancement of 
a maximum of 104 hours (13 days) of sick leave in a leave year to an 
employee to provide care for a family member who would, as determined 
by the health authorities having jurisdiction or by a health care 
provider, jeopardize the health of others by that family member's 
presence in the community because of exposure to a communicable 
disease.
    We believe these proposed regulatory changes are consistent with 
the intent of Federal sick leave laws and would benefit agencies and 
employees, especially in the event of a health crisis resulting in an 
outbreak of pandemic influenza or another communicable disease.

Proposed Regulations on Advanced Sick Leave

    OPM is also proposing to insert a new section at Sec.  630.402 that 
reinstates a longstanding practice that is not in our current 
regulations regarding the advancement of up to 104 hours (13 days) of 
sick leave to provide general care for a family member and/or for 
bereavement purposes. In this section, we are also proposing to specify 
the amount of sick leave that may be advanced for other conditions 
listed under Sec.  630.401(a).
    OPM's proposed regulations at Sec.  630.402(a)(1) would permit an 
agency to advance up to 240 hours (30 days) of sick leave to a full-
time employee (1) who is incapacitated for the performance of his or 
her duties by physical or mental illness, injury, pregnancy, or 
childbirth; (2) for a serious health condition of the employee or a 
family member; (3) when the employee 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; (4) for purposes 
relating to the adoption of a child; or (5) for the care of a covered 
servicemember with a serious injury or illness, provided the employee 
has invoked FMLA in accordance with Sec. Sec.  630.1203(b) and 
630.1204. We are also proposing under Sec.  630.402(a)(2) that an 
agency may advance up to 104 hours (13 days) of sick leave to a full-
time employee when he or she (1) receives medical, dental, or optical 
examination or treatment; (2) 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; 
(3) provides care for a family member who would, as determined by the 
health authorities having jurisdiction or by a health care provider, 
jeopardize the health of others by that family member's presence in the 
community because of exposure to a communicable disease; or (4) makes 
arrangements necessitated by the death of a family member or attends 
the funeral of a family member.
    Under proposed Sec.  630.402(a), the maximum amount of sick leave 
that may be advanced is 240 hours (30 days). Under proposed Sec.  
630.402(b), an employee may not be indebted for more than 240 hours (30 
days) at any point in 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, and for which an employee may be indebted, must be 
prorated according to the number of hours in the employee's regularly 
scheduled administrative workweek.

Substitution of Sick Leave for Unpaid FMLA Leave To Care for a Covered 
Servicemember

    The NDAA also amended 5 U.S.C. 6382(d) to provide that an employee 
may elect to substitute any of the employee's accrued or accumulated 
annual or sick leave for any part of the 26-week period of unpaid FMLA 
leave to care for a covered servicemember. We are proposing a new Sec.  
630.403 in the sick leave regulations to implement this change, which 
provides that the amount of sick leave that an employee may substitute 
for unpaid FMLA leave when taking FMLA leave to care for a covered 
servicemember may not exceed a total of 26 administrative workweeks in 
a single 12-month period, or, for a part-time employee or an employee 
with an uncommon tour of duty, a prorated amount of sick leave equal to 
26 times the average number of hours in his or her scheduled tour of 
duty each week.

Subpart L, Family and Medical Leave

Definitions

    In Sec.  630.1202 of the proposed regulations, we added definitions 
for active duty, contingency operation, covered servicemember, next of 
kin of a covered servicemember, outpatient status, parent of a covered 
servicemember, serious injury or illness, single 12-month period, and 
son or daughter of a covered servicemember--all of which are new terms 
applicable only to taking FMLA leave to care for a covered 
servicemember.
    Active duty is defined in law (5 U.S.C. 6381(7)) to mean duty under 
a call or order to active duty under a provision of law referred to in 
Sec.  101(a)(13)(B) of title 10. OPM's proposed regulations provide an 
expanded version of this definition for clarity and to enhance the 
reader's understanding.
    Contingency operation is defined in law at 10 U.S.C. 101(a)(13). We 
are proposing to adopt this statutory definition in our regulations to 
mean a military operation that is designated by the Secretary of 
Defense as an operation in which members of the Armed Forces are or may 
become involved in military actions, operations, or hostilities against 
an enemy of the United States or against an opposing military force; or 
results in the call or order to, or retention on, active duty of 
members of the uniformed services under section 688, 12301(a), 12302, 
12304, 12305, or 12406 of title 10 of the United States Code, chapter 
15 of title 10 of the United States Code, or any other provision of law 
during a war or during a national emergency declared by the President 
or Congress.
    Covered servicemember is defined in law (5 U.S.C. 6381(8)) to mean 
a member of the Armed Forces who is undergoing medical treatment, 
recuperation, or therapy as an outpatient, or is otherwise on the

[[Page 43067]]

temporary disability retired list, for a serious injury or illness.
    For the reasons outlined in our discussion of ``Who Is a Covered 
Servicemember,'' we have altered the statutory definition slightly to 
clarify that a covered servicemember must be a current member of the 
Armed Forces, or a member on the temporary disability retired list, but 
may not be a former member of the Armed Forces, National Guard, or 
Reserve, or a member on the permanent disability retired list. The 
proposed definition therefore reads: ``Covered servicemember means a 
current member of the Armed Forces, including a member of the National 
Guard or Reserves, who is undergoing medical treatment, recuperation, 
or therapy, is otherwise in outpatient status, or is otherwise on the 
temporary disability retired list, for a serious injury or illness 
incurred in the line of duty on active duty, but does not include 
former members of the Armed Forces, former members of the National 
Guard and Reserves, and members on the permanent disability retired 
list.''
    Next of kin of a covered servicemember. The NDAA amendments provide 
that a covered servicemember's ``next of kin'' is eligible to take FMLA 
leave to care for the covered servicemember and defines the term next 
of kin as the ``nearest blood relative'' of a covered servicemember (5 
U.S.C. 6381(10)).
    After consultation with appropriate stakeholders, DOL expanded the 
definition of next of kin of a covered servicemember. We are adopting 
the DOL definition with modifications to the appropriate citations to 
our regulations.
    Outpatient status is defined in law (5 U.S.C. 6381(9)), with 
respect to a covered servicemember, to mean ``the status of a member of 
the Armed Forces assigned to (A) a military medical treatment facility 
as an outpatient; or (B) a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients.'' We are adopting this statutory 
definition of outpatient status in our proposed regulations.
    Parent of a covered servicemember. Under FMLA, the terms ``parent'' 
and ``parent of a covered servicemember'' refer to different 
circumstances for purposes of FMLA leave eligibility. Under 5 U.S.C. 
6382(a)(1)(C), an employee is entitled to ``basic'' FMLA leave to care 
for his or her parent if the parent has a serious health condition. 
However, under 5 U.S.C. 6382(a)(3), in the context of leave to care for 
a covered servicemember, the parent is the employee who has the 
entitlement to take FMLA leave to care for a son or daughter. Since the 
entitlement to leave is expressed differently in the two statutory 
provisions, the definition of parent in the current regulations (which 
is--``parent means a biological parent or an individual who stands or 
stood in loco parentis to an employee when the employee was a son or 
daughter. This term does not include parents `in law' '') does not 
accurately describe the meaning of parent as it is used in the context 
of leave to care for a covered servicemember. Accordingly, in Sec.  
630.1202, we propose a separate definition of parent of a covered 
servicemember to mean a ``covered servicemember's biological, adoptive, 
step or foster father or mother, or any other individual who stands or 
stood in loco parentis to the covered servicemember. This term does not 
include parents-in-law.''
    Based on the new definition of parent of a covered servicemember, 
we also made a conforming change to the definition of in loco parentis 
to add a reference to covered servicemembers so that the definition now 
reads: ``In loco parentis refers to the situation of an individual who 
has day-to-day responsibility for the care and financial support of a 
child or, in the case of an employee or a covered servicemember, who 
had such responsibility for the employee or the covered servicemember 
when either was a child. A biological or legal relationship is not 
necessary.''
    Serious injury or illness is defined in law (5 U.S.C. 6381(11)), in 
the case of a member of the Armed Forces, to mean an injury or illness 
incurred by the member in the line of duty on active duty in the Armed 
Forces that may render the member medically unfit to perform the duties 
of the member's office, grade, rank, or rating. Consistent with the 
approach taken by DOL in its final rule, we are changing the statutory 
definition of serious injury or illness slightly in our proposed 
regulations to use the term ``covered servicemember,'' so the 
definition in the proposed regulations reads: ``Serious injury or 
illness means an injury or illness incurred by a covered servicemember 
in the line of duty on active duty that may render the servicemember 
medically unfit to perform the duties of the servicemember's office, 
grade, rank, or rating.''
    Single 12-month period is described in DOL's final rule to mean the 
period that ``begins on the first day the eligible employee takes FMLA 
leave to care for a covered servicemember and ends 12 months after that 
date.'' 29 CFR 825.127(c)(1). We are proposing a new definition: 
``Single 12-month period means the period beginning on the first day 
the employee takes FMLA leave to care for a covered servicemember with 
a serious injury or illness and ending 12 months after that date in 
accordance with section 630.1205(b) and (c)''.
    Son or daughter of a covered servicemember. With respect to who may 
take leave to care for a covered servicemember, the NDAA amends 5 
U.S.C. 6382(a)(3) to provide that such leave is available to an 
employee who is the ``spouse, son, daughter, parent, or next of kin of 
a covered servicemember.'' Under the existing FMLA definition of son or 
daughter (5 U.S.C. 6381(6)), a son or daughter must either be (A) under 
18 years of age, or (B) 18 years of age or older and incapable of self-
care because of a mental or physical disability. Applying this 
definition to the leave to care for a covered servicemember entitlement 
would mean that most, if not all, adult children would not be permitted 
to use this entitlement to take leave to care for a parent who is a 
covered servicemember. This is so even though the same adult child 
could take ``basic'' FMLA leave (i.e., leave under 5 U.S.C. 
6382(a)(1)(C) and Sec.  630.1203(a)(3)) to care for his or her parent 
who is a covered servicemember if the parent's serious injury or 
illness also qualified as a serious health condition under the FMLA. 
Since applying the current definition of son or daughter for purposes 
of leave to care for a covered servicemember would severely undermine 
the clear intent of the NDAA provisions, DOL created a new term, son or 
daughter of a covered servicemember, for purposes of FMLA leave taken 
to care for a covered servicemember. We concur with DOL's opinion that 
such a result was not intended, and accordingly, Sec.  630.1201 of the 
proposed rule establishes a separate definition of son or daughter of a 
covered servicemember for the purpose of leave to care for a covered 
servicemember, which is ``a covered servicemember's biological, 
adopted, or foster child, stepchild, legal ward, or a child for whom 
the covered servicemember stood in loco parentis, and who is of any 
age.''

Entitlement to Leave To Care for a Covered Servicemember

    Under the NDAA, section 6382(a) of title 5, U.S. Code, was amended 
by adding a new section to entitle an employee who is the spouse, son, 
daughter, parent, or next of kin of a covered servicemember to a total 
of 26 administrative workweeks of leave during a 12-month period to 
care for the covered servicemember. This leave is

[[Page 43068]]

available only during a single 12-month period.
    We added proposed Sec.  630.1203(b) to describe an employee's 
entitlement to use a total of 26 administrative workweeks of unpaid 
leave during a single 12-month period to care for a covered 
servicemember with a serious injury or illness if the employee is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember. Consistent with DOL regulations, OPM is applying this 
entitlement on a per-covered servicemember, per-serious injury or 
illness basis, such that an employee may be entitled to take more than 
one period of up to 26 administrative workweeks of leave if the leave 
is to care for different covered servicemembers or to care for the same 
covered servicemember with a subsequent serious injury or illness, as 
long as no more than 26 administrative workweeks of leave is taken 
within any single 12-month period as described in proposed Sec.  
630.1205(b).
    Per covered servicemember. An employee who has previously invoked 
FMLA leave to care for a covered servicemember in a single 12-month 
period may subsequently invoke FMLA leave in order to care for a 
different covered servicemember in a different single 12-month period. 
If the single 12-month periods applicable to the different covered 
servicemembers do not overlap, the employee may take up to 26 
administrative workweeks of leave during each single 12-month period. 
If the single 12-month periods applicable to the different covered 
servicemembers do overlap, the employee may take no more than 26 
administrative workweeks of leave during any single 12-month period. 
However, in no case may an employee take more than 26 administrative 
workweeks of leave during any single 12-month period as described in 
proposed Sec.  630.1205(b) and (c).
    For example, on February 4, 2008, an employee invokes FMLA leave to 
care for a covered servicemember (her son) who was injured in the line 
of duty while on active duty. Since she first uses the leave on 
February 4, 2008, the single 12-month period for her son's care begins 
on February 4, 2008, and ends on February 3, 2009. She uses a total of 
17 weeks out of the 26 week entitlement, between February 4 and May 30, 
2008. On June 18, 2008, the employee's husband is seriously injured in 
the line of duty while on active duty and qualifies as a covered 
servicemember for FMLA purposes. The employee invokes her FMLA 
entitlement to care for her husband but she is limited to no more than 
9 weeks of FMLA leave to care for her husband between June 18, 2008, 
and February 3, 2009, because of the limit of 26 weeks of leave in any 
single 12-month period. If her husband continues to need care after the 
single 12-month period ends for her son (February 3, 2009), the 
employee may use an additional 17 weeks to care for her husband until 
the single 12-month period entitlement for her husband expires on June 
17, 2009.
    Per serious injury or illness. An employee may take more than one 
single 12-month period of up to 26 administrative workweeks of leave to 
care for a covered servicemember with more than one serious injury or 
illness only when the serious injury or illness is a subsequent serious 
injury or illness, including a manifestation of a second serious injury 
or illness at a later time. An employee may not take a subsequent 
period of leave to care for a covered servicemember who experiences an 
aggravation or complication of an earlier serious injury or illness. If 
the different single 12-month periods applicable to the different 
serious injuries or illnesses do not overlap, the employee may take up 
to 26 administrative workweeks of leave during each single 12-month 
period. If the single 12-month periods applicable to the different 
serious injuries or illnesses do overlap, the employee may take no more 
than 26 administrative workweeks of leave during any single 12-month 
period. In no case may an employee take more than 26 administrative 
workweeks of leave within any single 12-month period as described in 
proposed Sec.  630.1205(b) and (c).
    For example, on June 23, 2008, an employee has a daughter who is 
seriously injured in the line of duty while on active duty by a road-
side bomb. The employee is entitled to use 26 weeks of FMLA leave to 
care for his daughter, a covered servicemember. The single 12-month 
period for the daughter's care begins on June 24, 2008, when the 
employee first uses the leave, and ends on June 23, 2009. The employee 
takes 16 weeks of FMLA leave to care for his daughter, and the daughter 
recovers and returns to active duty before the end of the single 12-
month period. However, in July, 2009, the daughter is injured in the 
line of duty while on active duty by a sniper. The employee is entitled 
to use another 26 weeks of FMLA leave to care for his daughter because 
the subsequent injury provides the employee with a new 26-week 
entitlement, and the previous single 12-month period has expired.
    In this same example, however, if the daughter's second injury by 
sniper attack occurred in January of 2009 and the employee first took 
leave to care for his daughter for that injury on January 7, 2009, 
(i.e., the single 12-month periods overlapped) the employee is limited 
to no more than 10 weeks of FMLA leave to care for his daughter between 
January 7, 2009, and June 23, 2009, because of the limit of 26 weeks of 
FMLA leave in any single 12-month period. An overlapping single 12-
month period begins with the employee's use of leave as of January 7, 
2009, and runs until January 6, 2010. If the employee uses 10 weeks of 
leave to care for his daughter between January 7, 2009, and June 23, 
2009, he would then be able to use an additional 16 weeks of leave as 
of June 24, 2009, until the expiration of the second single 12-month 
period on January 6, 2010.
    As DOL has expressed in its final regulations, applying this 
entitlement on a per-injury, per-covered servicemember basis 
acknowledges the reality that servicemembers are injured and treated 
and then re-injured again on active duty. We would add that some 
employees have multiple family members who are in the military and, 
therefore, may have more than one family member who is injured in the 
line of duty on active duty. Also, we believe there will be relatively 
few instances in which an employee will have more than one covered 
servicemember for whom he or she needs to provide care, or a covered 
servicemember with a subsequent serious illness or injury. However, if 
an employee is faced with such circumstances, he or she should have 
access to FMLA leave to care for a covered servicemember.

Who Is a Covered Servicemember

    In order for an employee to be entitled to take FMLA leave to care 
for a servicemember, the NDAA amendments require that the servicemember 
be a ``covered servicemember'' who is undergoing medical treatment, 
recuperation, or therapy, otherwise in outpatient status, or on the 
temporary disability retired list for a ``serious injury or illness'' 
that ``may render the member medically unfit to perform the duties of 
the member's office, grade, rank, or rating.'' See definitions of 
covered servicemember at 5 U.S.C. 6381(8), serious injury or illness at 
5 U.S.C. 6381(11), and outpatient status at 5 U.S.C. 6381(9).
    In light of the NDAA's focus on a covered servicemember's ability 
to perform his or her military duties when determining whether the 
servicemember has a ``serious injury or illness'' (i.e., a 
determination must be made that the injury or illness ``may render the

[[Page 43069]]

member medically unfit to perform the duties of the member's office, 
grade, rank, or rating''), DOL regulations specifically exclude a 
serious injury or illness that manifests itself after the servicemember 
has left military service. Consistent with DOL's regulations, we added 
proposed Sec.  630.1203(b)(3) to provide that an employee may not take 
leave under this paragraph to care for former members of the Armed 
Forces, former members of the National Guard and Reserves, and members 
on the permanent disability retired list.

Invoking FMLA Entitlement

    We are proposing to reorganize the FMLA regulations in title 5 to 
create a new Sec.  630.1204 describing the process for invoking the 
FMLA entitlements, in which we are adding language to account for 
amendments made by the NDAA. There are certain conditions that would 
provide an employee an entitlement to both ``basic'' FMLA leave to care 
for a family member with a serious health condition under Sec.  
630.1203(a)(3) and FMLA leave to care for a covered servicemember under 
Sec.  630.1203(b). This would be the case, for example, if an employee 
had a spouse or parent who was a covered servicemember, because the 
serious injury or illness of the covered servicemember would also fit 
the definition of serious health condition. We address this situation 
in proposed Sec.  630.1204, to which we are adding a new paragraph (c) 
to clarify that when an employee invokes his or her entitlement to FMLA 
leave for a circumstance that could qualify under Sec.  630.1203(a)(3) 
(i.e. ``basic'' FMLA leave to care for a family member with a serious 
health condition) or Sec.  630.1203(b) (i.e., FMLA leave to care for a 
covered servicemember), the FMLA leave must be designated as being 
taken under Sec.  630.1203(b). The higher 26-week entitlement applies 
in this case. Leave to care for a covered servicemember is to be 
applied on a per-covered servicemember, per-serious injury or illness 
basis. If, after the single 12-month period for leave to care for a 
covered servicemember is exhausted, the covered servicemember is still 
in need of care, the employee may take FMLA leave for any necessary 
subsequent care as ``basic'' FMLA leave to care for a family member 
with a serious health condition under Sec.  630.1203(a)(3), subject to 
all requirements relating to use of such leave.

Application of the 12-Month FMLA Periods

    With the creation of the new entitlement for leave to care for a 
covered servicemember, there are now two distinct 12-month periods 
during which FMLA leave may be used. The 12-month period referred to in 
Sec.  630.1203(a) begins on the date the employee first takes leave for 
a family or medical need specified in Sec.  630.1203(a) and provides an 
entitlement to 12 administrative workweeks of unpaid leave in a 12-
month period. The ``single 12-month period'' referred to in proposed 
Sec.  630.1203(b) begins on the first day the employee takes FMLA leave 
to care for a covered servicemember and provides up to 26 
administrative workweeks of unpaid leave during a 12-month period. 
Proposed Sec.  630.1205 is being added to explain the application of 
the two 12-month periods and how they interact with each other.
    Consistent with DOL regulations, we clarify in Sec.  630.1205(b)(1) 
that any leave used under an employee's 12-week FMLA entitlement prior 
to the first use of leave to care for a covered servicemember does not 
count towards the ``single 12-month period'' under Sec.  630.1203(b).
    For example, on February 25, 2008, an employee invokes her 
entitlement to basic FMLA for the birth of her child. She is in her 8th 
week of FMLA leave (April 17, 2008) when she receives word that her 
husband was seriously hurt in the line of duty while on active duty. On 
April 18, 2008, the employee invokes the 26-week FMLA leave entitlement 
to care for her husband. She is entitled to use up to 26 weeks of FMLA 
leave from April 18, 2008, to April 17, 2009, for this purpose. The 
time period during which she used basic FMLA leave does not count 
toward the 26-week entitlement during a single 12-month period. We note 
that the employee is not required to invoke the 26-week leave 
entitlement immediately. She may delay invoking the 26-week entitlement 
until such time as she is needed to provide care for her husband. Once 
the employee invokes her 26-week leave entitlement and begins to care 
for her husband, the single 12-month period begins. In this example, 
the employee may choose to exhaust her full 12-week basic FMLA 
entitlement for the birth of a child first, and then invoke the 26-week 
FMLA entitlement after her husband is released from the hospital and 
returns home.
    In another example, the employee's first use of FMLA leave is on 
April 18, 2008, when she invokes the 26-week FMLA leave entitlement to 
care for her husband who was seriously injured in the line of duty 
while on active duty. She is entitled to use up to 26 weeks of FMLA 
leave during the single 12-month period from April 18, 2008, to April 
17, 2009. On November 25, 2008, the employee's daughter is diagnosed 
with leukemia which entitles the employee to 12 weeks of ``basic'' FMLA 
leave under current 5 CFR 630.1203(a)(3), and she invokes her 
entitlement on this date. At this point, the employee has used a total 
of 23 weeks of FMLA leave to care for a covered servicemember in order 
to care for her husband and has 3 weeks of FMLA leave to care for her 
husband or daughter between November 25, 2008, and April 17, 2009. On 
April 18, 2009, the employee can use the remaining 9 weeks of ``basic'' 
FMLA leave to care for her daughter for additional care related to the 
leukemia.
    We state in paragraph (b)(2) that if an employee does not take all 
of his or her 26 administrative workweeks of leave entitlement to care 
for a covered servicemember during this single 12-month period, the 
remaining part of his or her 26 administrative workweeks of leave 
entitlement to care for the covered servicemember is forfeited. In 
paragraph (b)(3), we explain that when an employee takes leave to care 
for more than one covered servicemember or for a subsequent serious 
injury or illness of the same covered servicemember, and the ``single 
12-month periods'' corresponding to the different leave entitlements to 
care for a covered servicemember overlap, the employee is limited to 
taking no more than 26 administrative workweeks of leave in each single 
12-month period.

Certification for Leave Taken To Care for a Covered Servicemember

Specific Requirements

    The NDAA amended the FMLA certification requirements (5 U.S.C. 
6383(f)) to permit an agency to require that a request for leave to 
care for a covered servicemember ``be supported by a certification 
issued at such time and such manner as the Office of Personnel 
Management may by regulation prescribe.'' The NDAA amendments regarding 
entitlement to FMLA leave to care for a covered servicemember contain 
specific certification requirements that are unique to military 
servicemembers. The certification requirements for a family member's 
serious health condition under current Sec.  630.1207 do not adequately 
address the certification requirements unique to military

[[Page 43070]]

servicemembers. Specifically, the NDAA provision defining covered 
servicemember requires that the servicemember be (1) undergoing medical 
treatment, recuperation, or therapy; (2) otherwise in outpatient 
status; or (3) on the temporary disability retired list because of a 
serious injury or illness. (5 U.S.C. 6381(8)) The NDAA provisions 
further provide that a serious injury or illness means an injury or 
illness incurred by the member in the line of duty on active duty in 
the Armed Forces that may render the member medically unfit to perform 
the duties of the member's office, grade, rank, or rating (5 U.S.C. 
6381(11)). Therefore, we are proposing to create new Sec.  630.1211 on 
medical and other certification for leave to care for a covered 
servicemember that sets forth separate certification requirements for 
leave to care for a covered servicemember.
    This section provides that an agency may require certification that 
provides information specific to the NDAA requirements for taking leave 
to care for a covered servicemember, including: (1) Whether the covered 
servicemember has incurred a serious injury or illness; (2) whether the 
injury or illness may render the covered servicemember medically unfit 
to perform the duties of the member's office, grade, rank, or rating; 
(3) whether the injury or illness was incurred by the member in the 
line of duty on active duty; (4) whether the covered servicemember is 
undergoing medical treatment, recuperation, or therapy, is otherwise on 
outpatient status, or is otherwise on the temporary disability retired 
list; and (5) the family relationship of the employee to the covered 
servicemember.
    Besides the information specific to the NDAA requirements for 
taking leave to care for a covered servicemember, this section also 
provides that the certification for leave to care for a covered 
servicemember should also contain certain other information. This 
information includes: (1) The probable duration of the injury or 
illness; (2) frequency and duration of leave required; and (3) if leave 
is requested on an intermittent or reduced schedule basis, an estimate 
of the frequency and duration of such leave. These provisions are 
consistent, as appropriate, with the regulations promulgated by DOL in 
its final rule.

Authorized Health Care Providers

    Section 630.1211(a) of the proposed rule lists the health care 
providers that may complete the medical certification form. As 
described in the DOL regulations, DOL consulted with DOD and VA, and 
learned that servicemembers with a serious injury or illness may 
receive care from a number of different health care providers, 
including DOD health care providers, VA health care providers, or DOD 
TRICARE military health system authorized private health care 
providers.\1\ Members of the National Guard and Reserves and members on 
the temporary disability retired list are more likely to receive care 
from DOD TRICARE authorized private health care providers, especially 
if the servicemember resides in a rural or remote area. Consequently, 
and consistent with the DOL final rule, Sec.  630.1211(a) provides that 
any one of the following health care providers may complete the 
certification: (1) A DOD health care provider; (2) a VA health care 
provider; (3) a DOD TRICARE network authorized private health care 
provider; or (4) a DOD non-network TRICARE authorized private health 
care provider.
---------------------------------------------------------------------------

    \1\ TRICARE is the health care program serving active duty 
service members, National Guard and Reserve members, retirees, their 
families, survivors and certain former spouses worldwide. As a major 
component of the Military Health System, TRICARE brings together the 
health care resources of the uniformed services and supplements them 
with networks of civilian health care professionals, institutions, 
pharmacies, and suppliers to provide access to high-quality health 
care services while maintaining the capability to support military 
operations. To be eligible for TRICARE benefits, one must be 
registered in the Defense Enrollment Eligibility Reporting System 
(DEERS). See http://tricare.mil/mybenefit/home/overview/WhatIsTRICARE. The Military Health System is a partnership of 
medical educators, medical researchers, and health care providers 
and their support personnel worldwide. This DOD enterprise consists 
of the Office of the Assistant Secretary of Defense for Health 
Affairs; the medical departments of the Army, Navy, Marine Corps, 
Air Force, Coast Guard, and Joint Chiefs of Staff; the Combatant 
Command Surgeons; and TRICARE providers (including private sector 
health care providers, hospitals, and pharmacies). See http:/
mhs.osd.mil/aboutMHS.aspx.
---------------------------------------------------------------------------

Use of DOL Certification Form (WH-385)

    Paragraph (b) of proposed Sec.  630.1211 provides the information 
that is required from health care providers, and paragraph (c) provides 
the information that is required from the employee and/or covered 
servicemember. DOL has developed an optional form (Form WH-385) for 
employees' use in obtaining certification that meets FMLA's 
certification requirements for leave to care for a covered 
servicemember. This form can be found at http://www.dol.gov/esa/whd/forms/WH-385.pdf and may be used by Federal agencies. The new form 
includes two additional categories of internal DOD casualty assistance 
designations used by DOD health care providers ((VSI) Very Seriously 
Ill/Injured and (SI) Seriously Ill/Injured) that also meet the standard 
of serious injury or illness.) Consistent with past practice, OPM is 
not developing its own form, but encourages Federal agencies to use 
DOL's Form WH-385 to ensure the correct information is gathered for 
FMLA approval. (Federal agencies should also continue to use DOL's Form 
WH-380 for ``basic'' FMLA leave certification, but not the new DOL 
Forms WH-380-E or WH-380-F. The latter were generated by DOL as part of 
its final FMLA regulations and are based on changes to DOL's FMLA 
regulations which do not apply to our proposed regulations.)

Request for Military-Related Information

    In the supplementary information accompanying DOL's final 
regulations, DOL stated that, based on consultation with DOD, it was 
DOL's understanding that every covered servicemember will have a DOD 
representative who can serve as a point of contact for health care 
providers should they need information regarding the military-related 
determinations requested in the FMLA certification form. For example, 
the most seriously injured or ill covered servicemembers (i.e., those 
servicemembers with injuries DOD terms catastrophic or severe) will 
have either a ``Federal Recovery Coordinator'' or ``Recovery Care 
Coordinator'' assigned to assist the covered servicemember and his or 
her family. Therefore, proposed Sec.  630.1211(b) provides that if the 
authorized health care provider is unable to make certain military-
related determinations, the health care provider may complete the 
certification form by relying on determinations from an authorized DOD 
representative, such as a DOD recovery care coordinator.

No Recertification for Leave To Care for a Covered Servicemember

    Proposed section 630.1211(d) specifies that (as is the case with 
the certification process for leave taken to care for a family member 
with a serious health condition) no information may be required beyond 
that specified in this certification section. It also states that an 
agency may seek authentication or clarification of the certification. 
Since FMLA leave to care for a covered servicemember is a per-serious 
injury or illness entitlement limited to a single 12-month period, we 
do not believe that a recertification process, such as that provided 
for under current 5 CFR 630.1207(j) for ``basic'' FMLA leave, is 
necessary for leave to care for a covered servicemember. Also, since 
several of

[[Page 43071]]

the amendments made by the NDAA contain specific requirements that are 
unique to military servicemembers and that only the military can 
determine (such as whether the serious injury or illness was incurred 
in the line of duty on active duty), we believe that, consistent with 
DOL regulations, it would be inappropriate to permit a second or third 
opinion process such as that provided for ``basic'' FMLA leave under 
current Sec.  630.1207(d) and (e). Therefore, Sec.  630.1211(d) also 
states that second and third opinions and recertifications are not 
permitted for leave to care for a covered servicemember.

Invitational Travel Orders (ITOs) or Invitational Travel Authorizations 
(ITAs)

    Proposed section 630.1211(e) provides that an agency requiring an 
employee to submit a certification for leave to care for a covered 
servicemember must accept the submission of ``invitational travel 
orders'' (``ITOs'') or ``invitational travel authorizations'' 
(``ITAs'') issued for medical purposes as sufficient certification of 
the employee's request for leave to care for a covered servicemember.
    As described in DOL's regulations, based on consultation with DOD, 
DOL believes, and we concur, that the issuance of such orders or 
authorizations qualifies a servicemember as a covered servicemember for 
purposes of the FMLA provisions governing leave to care for a covered 
servicemember. The issuance of an ITO or ITA for medical purposes 
permits the named family member of the injured or ill servicemember to 
travel immediately to the servicemember's bedside, at DOD's expense. 
These ITOs or ITAs for medical purposes are not routinely issued by 
DOD, but rather only when the servicemember is, at minimum, seriously 
injured or ill. In its regulations, DOL further indicated its 
understanding that, in such cases, the ITO or ITA is issued to a 
servicemember's family upon the direction of a DOD health care provider 
and will state on its face that the travel order or authorization is 
for ``medical purposes.''
    We agree that permitting ITOs or ITAs to serve as sufficient 
certification is appropriate in light of the fact that DOD has 
determined that the injury or illness incurred by the servicemember is 
serious enough to warrant the immediate presence of a family member at 
the servicemember's bedside. Moreover, in many circumstances where ITOs 
or ITAs are issued, it may be extremely difficult for an employee to 
provide an agency an otherwise timely certification that complies with 
the requirements of this section. This approach accommodates an 
agency's right to obtain a sufficient certification from an employee in 
order to verify the employee's entitlement to FMLA leave to care for a 
covered servicemember.
    Section 630.1211(e) further provides that an ITO or ITA issued to 
any family member to join an injured or ill covered servicemember at 
his or her bedside is sufficient certification regardless of whether 
the employee is named in the ITO or ITA. These provisions are 
consistent with those provided in DOL's final rule. Thus, for example, 
a covered servicemember's son may submit an ITO issued to the covered 
servicemember's spouse to support the son's request for FMLA leave to 
care for the covered servicemember during the time period specified by 
the ITO. DOD does not issue an ITO or ITA to every family member of an 
injured or ill covered servicemember who might be eligible to take FMLA 
leave to care for the covered servicemember. In some situations, the 
servicemember may have additional family members who are eligible to 
take FMLA leave to care for the covered servicemember, even if DOD has 
not authorized an ITO for that person. For example, an ITO or ITA can 
be issued to the spouse of a servicemember without also being issued to 
a servicemember's parents, children, or siblings. We agree with DOL's 
determination, as indicated in DOL's regulations, that all family 
members of a covered servicemember who are eligible to take FMLA leave 
to care for the covered servicemember should be able to rely on DOD's 
issuance of an ITO or ITA as sufficient certification to support a 
request for FMLA leave during the period covered by the ITO or ITA.
    Given the seriousness of the injuries or illness incurred by a 
covered servicemember whose family member receives an ITO or ITA, and 
the immediate need for the family member at the covered servicemember's 
bedside, our intention is to remove as many certification impediments 
for the employee as possible for the duration of the order or 
authorization. Accordingly, Sec.  630.1211(e)(1) further provides that 
an ITO or ITA is sufficient certification for the duration of the time 
specified in the ITO or ITA, and that during this time, an employee may 
take leave to care for the covered servicemember in a continuous block 
of time or on an intermittent basis. Section 630.1211(e)(2) states that 
an employee who provides an ITO or ITA to support his or her request 
for leave may not be required to provide any additional or separate 
certification that leave taken on an intermittent basis during the 
period of time specified in the ITO or ITA is medically necessary.
    If an employee needs leave to care for a covered servicemember 
beyond the expiration date specified in an ITO or ITA, paragraph (e)(3) 
of Sec.  630.1211 permits an agency to request that the employee have 
one of the authorized health care providers listed under Sec.  
630.1211(a) furnish the required certification for the remainder of the 
employee's necessary leave period. This is consistent with the approach 
taken by DOL in its final rule. Permitting this additional 
certification, if an agency chooses to request it, allows the agency to 
obtain information about the employee's continued need for leave once 
the ITO or ITA expires, including specific information regarding the 
covered servicemember's injury or illness and its expected duration, 
since the ITO or ITA will not provide the agency with such information 
initially. As DOL stated in its final rule, once an ITO or ITA expires, 
the employee will be in a better position to have an authorized health 
care provider furnish a complete certification as to the 
servicemember's medical condition and the employee's continuing need 
for leave. Paragraphs (e)(4) and (e)(5) of Sec.  630.1211 state, 
respectively, that when an employee supports his or her request for 
leave with an ITO or ITA, a health care provider of the agency may seek 
authentication and clarification of the ITO or ITA, but the agency may 
not require a second and third opinion or use a recertification 
process.

Further Certification Requirements

    Paragraphs (f)-(i) of proposed Sec.  630.1211 parallel similar 
provisions in the certification requirements for ``basic'' FMLA leave. 
Paragraph (f) provides that the agency must grant provisional leave 
pending final written certification if the employee cannot provide the 
certification before leave begins, or if the agency questions the 
validity of the original certification provided by the employee and the 
medical treatment requires the leave to begin. Paragraph (g) states 
that an employee must provide certification to the requesting agency 
within 15 calendar days of the agency's request, unless it is not 
practicable to do so under the particular circumstances, despite the 
employee's diligent, good-faith efforts, in which case the employee 
must provide the certification within a reasonable period of time, but 
no later

[[Page 43072]]

than 30 calendar days after the agency's request. Paragraph (h) states 
that if the employee fails to provide the requested certification after 
the leave has commenced, the agency may charge the employee as absent 
without leave (AWOL) or allow the employee to request that the 
provisional leave be charged as leave without pay or to the employee's 
annual and/or sick leave account. Paragraph (i) addresses the security 
and confidentiality of this certification.

Qualifying Exigency Leave

    The amendments made by the NDAA provided DOL with the authority to 
establish ``qualifying exigency leave'' for employees covered by DOL's 
regulations. See 29 CFR 825.126. This type of leave helps families of 
members of the National Guard and Reserves manage family affairs when a 
family member is on active duty. Qualifying exigencies for which 
employees can use FMLA leave are: (1) Short-notice deployment; (2) 
military events and related activities; (3) childcare and school 
activities; (4) financial and legal arrangements; (5) counseling; (6) 
rest and recuperation; (7) post-deployment activities; and (8) 
additional activities not encompassed in the other categories that the 
employer and employee agree qualify as exigencies and agree to the 
timing and duration of the leave. The NDAA amendments did not provide 
this benefit to Federal employees; therefore, it is not included in 
OPM's proposed regulations. OPM requests comments on whether we should 
pursue legislation to obtain this benefit for the Federal workforce.
    OPM is publishing subpart L, Family and Medical Leave, in its 
entirety because of the extent of the additions and the reorganization 
of the text.

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 apply only to Federal agencies and employees.

List of Subjects in 5 CFR 630

    Government employees.

Office of Personnel Management.
John Berry,
Director.
    Accordingly, OPM is proposing to amend 5 CFR part 630 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.  630.205 also issued under Pub. 
L. 108-411, 118 Stat 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  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.
* * * * *
    2. In Sec.  630.401, remove paragraph (f) and revise paragraphs 
(a)(3) and (b) to read as follows:


Sec.  630.401  Granting sick leave.

    (a) * * *
    (3) Provides care for a family member--
    (i) Who is incapacitated by a medical or mental condition or 
attends to a family member receiving medical, dental, or optical 
examination or treatment;
    (ii) With a serious health condition; or
    (iii) Who would, as determined by the health authorities having 
jurisdiction or by a health care provider, jeopardize the health of 
others by that family member's presence in the community 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)(i), 
(a)(3)(iii), and (a)(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).
* * * * *


Sec. Sec.  630.402 through 630.406  [Redesignated as Sec. Sec.  630.404 
through 630.408].

    3a. Redesignate Sec. Sec.  630.402 through 630.406 as Sec. Sec.  
630.404 through 630.408 respectively, and add new Sec. Sec.  630.402 
and 630.403 to read as follows:


Sec.  630.402  Advancing sick leave.

    (a) At the beginning of a leave year or at any time thereafter when 
required by the exigencies of the situation, an agency may advance sick 
leave in the amount of:
    (1) Up to 240 hours to a full-time employee--
    (i) Who is incapacitated for the performance of his or her duties 
by physical or mental illness, injury, pregnancy, or childbirth;
    (ii) For a serious health condition of the employee or a family 
member;
    (iii) When the employee 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;
    (iv) For purposes relating to the adoption of a child; or
    (v) For the care of a covered servicemember with a serious injury 
or illness, provided the employee is exercising his or her entitlement 
under Sec. Sec.  630.1203(b) and 630.1204.
    (2) Up to 104 hours to a full-time employee--
    (i) When he or she receives medical, dental or optical examination 
or treatment;
    (ii) To provide care for a family member who is incapacitated by a 
medical or mental condition or to attend to a family member receiving 
medical, dental, or optical examination or treatment;
    (iii) To provide care for a family member who would, as determined 
by the health authorities having jurisdiction or by a health care 
provider, jeopardize the health of others by that family member's 
presence in the community because of exposure to a communicable 
disease; or
    (iv) To make arrangements necessitated by the death of a family 
member or to attend the funeral of a family member.
    (b) Two hundred forty hours is the maximum amount of advanced sick 
leave an employee may have to his or her 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.  630.403  Substitution of sick leave for unpaid family and medical 
leave to care for a covered servicemember.

    The amount of accumulated and accrued sick leave which an employee 
may substitute for unpaid family and medical leave under Sec.  
630.1203(b) may not exceed a total of 26 administrative workweeks in a 
single 12-month period

[[Page 43073]]

(or, for a part-time employee or an employee with an uncommon tour of 
duty, an amount of sick leave equal to 26 times the average number of 
hours in his or her scheduled tour of duty each week).
    3b. Revise paragraphs (b) and (c) of Sec.  630.502 to read as 
follows:


Sec.  630.502  Sick leave recredit.

* * * * *
    (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.
* * * * *
    4. Revise subpart L to read as follows:
Subpart L--Family and Medical Leave
630.1201 Purpose, applicability, and administration.
630.1202 Definitions.
630.1203 Leave entitlement.
630.1204 Invoking FMLA entitlement.
630.1205 Application of the 12-month FMLA periods.
630.1206 Non-standard workschedules and holidays.
630.1207 Intermittent leave or reduced leave schedule.
630.1208 Substitution of paid leave.
630.1209 Notice of leave.
630.1210 Medical certification for basic FMLA leave for serious 
health condition of the employee or family member.
630.1211 Medical and other certification for leave to care for a 
covered servicemember.
630.1212 Protection of employment and benefits.
630.1213 Health benefits.
630.1214 Greater leave entitlements.
630.1215 Records and reports.


Sec.  630.1201  Purpose, applicability, and administration.

    (a) Purpose. This subpart provides regulations to implement 
sections 6381 through 6387 of title 5, United States Code. This subpart 
must be read together with those sections of law. Sections 6381 through 
6387 of title 5, United States Code, provide a standard approach to 
providing family and medical leave to Federal employees by prescribing 
an entitlement to a total of 12 administrative workweeks of unpaid 
leave during any 12-month period for certain family and medical needs, 
as specified in Sec.  630.1203(a) of this part, and an entitlement to a 
total of 26 administrative workweeks of unpaid leave during a single 
12-month period to care for a covered servicemember with a serious 
injury or illness, as specified in Sec.  630.1203(b) of this part.
    (b) Applicability. (1) Except as otherwise provided in paragraph 
(b)(2) of this section, this subpart applies to any employee who--
    (i) Is defined as an ``employee'' under 5 U.S.C. 6301(2), excluding 
employees covered under paragraph (b)(2) of this section; and
    (ii) Has completed at least 12 months of service (not required to 
be 12 recent or consecutive months) as--
    (A) An employee, as defined under 5 U.S.C. 6301(2), excluding any 
service as an employee under paragraph (b)(2) of this section;
    (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);
    (C) A ``teacher'' or an individual holding a ``teaching position,'' 
as defined in section 901 of title 20, United States Code; or
    (D) An employee identified in section 2105(c) of title 5, United 
States Code, who is paid from nonappropriated funds.
    (2) This subpart does not apply to--
    (i) An individual employed by the government of the District of 
Columbia;
    (ii) An employee serving under a temporary appointment with a time 
limitation of 1 year or less;
    (iii) An intermittent employee, as defined in 5 CFR 340.401(c); or
    (iv) Any employee covered by Title I or Title V of the Family and 
Medical Leave Act of 1993 (Pub. L. 103-3, February 5, 1993). The 
Department of Labor has issued regulations implementing Title I at 29 
CFR part 825.
    (3) For the purpose of applying sections 6381 through 6387 of title 
5, United States Code--
    (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) is subject to regulations prescribed by the Secretary of 
Veterans Affairs;
    (ii) A ``teacher'' or an individual holding a ``teaching 
position,'' as defined in section 901 of title 20, United States Code, 
is subject to regulations prescribed by the Secretary of Defense; and
    (iii) An employee identified in section 2105(c) of title 5, United 
States Code, who is paid from nonappropriated funds is subject to 
regulations prescribed by the Secretary of Defense or the Secretary of 
Transportation, as appropriate.
    (4) The regulations prescribed by the Secretary of Veterans 
Affairs, Secretary of Defense, or Secretary of Transportation under 
paragraph (b)(3) of this section must, to the extent appropriate, be 
consistent with the regulations prescribed in this subpart and the 
regulations prescribed by the Secretary of Labor to carry out Title I 
of the Family and Medical Leave Act of 1993 at 29 CFR part 825.
    (c) Administration. The head of an agency having employees subject 
to this subpart is responsible for the proper administration of this 
subpart.


Sec.  630.1202  Definitions.

    In this subpart:
    Accrued leave has the meaning given that term in Sec.  630.201 of 
this part.
    Accumulated leave has the meaning given that term in Sec.  630.201 
of this part.
    Active duty means duty under a call or order to active duty in 
support of a contingency operation pursuant to:
    (1) Section 688 of title 10 of the United States Code, which 
authorizes ordering to active duty retired members of the Regular Armed 
Forces and members of the Retired Reserve retired after 20 years for 
length of service, and members of the Fleet Reserve or Fleet Marine 
Corps Reserve;
    (2) Section 12301(a) of title 10 of the United States Code, which 
authorizes ordering all reserve component members to active duty in the 
case of war or national emergency declared by Congress, or when 
otherwise authorized by law;
    (3) Section 12302 of title 10 of the United States Code, which 
authorizes ordering any unit or unassigned member of the Ready Reserve 
to active duty in time of national emergency declared by the President 
after January 1, 1953, or when otherwise authorized by law;
    (4) Section 12304 of title 10 of the United States Code, which 
authorizes ordering any unit or unassigned member of the Selected 
Reserve and certain members of the Individual Ready Reserve to active 
duty;
    (5) Section 12305 of title 10 of the United States Code, which 
authorizes the suspension of promotion, retirement or separation rules 
for certain Reserve components;
    (6) Section 12406 of title 10 of the United States Code, which 
authorizes

[[Page 43074]]

calling the National Guard into Federal service in certain 
circumstances;
    (7) Chapter 15 of title 10 of the United States Code, which 
authorizes calling the National Guard and State militia into Federal 
service in the case of insurrections and national emergencies; or
    (8) Any other provision of law during a war or during a national 
emergency declared by the President or Congress.
    Administrative workweek has the meaning given that term in Sec.  
610.102 of this chapter.
    Adoption refers to a legal process in which an individual becomes 
the legal parent of another's child. The source of an adopted child--
i.e., whether from a licensed placement agency or otherwise--is not a 
factor in determining eligibility for leave under this subpart.
    Contingency operation means a military operation that:
    (1) Is designated by the Secretary of Defense as an operation in 
which members of the Armed Forces are or may become involved in 
military actions, operations, or hostilities against an enemy of the 
United States or against an opposing military force; or
    (2) Results in the call or order to, or retention on, active duty 
of members of the uniformed services under section 688, 12301(a), 
12302, 12304, 12305, or 12406 of title 10 of the United States Code, 
chapter 15 of title 10 of the United States Code, or any other 
provision of law during a war or during a national emergency declared 
by the President or Congress.
    Covered servicemember means a current member of the Armed Forces, 
including a member of the National Guard or Reserves, who is undergoing 
medical treatment, recuperation, or therapy, is otherwise in outpatient 
status, or is otherwise on the temporary disability retired list, for a 
serious injury or illness incurred in the line of duty on active duty, 
but does not include former members of the Armed Forces, former members 
of the National Guard and Reserves, and members on the permanent 
disability retired list.
    Employee means an individual to whom this subpart applies as 
described under Sec.  630.1201(b).
    Essential functions means the fundamental job duties of the 
employee's position, as defined in 29 CFR 1630.2(n). An employee who 
must be absent from work to receive medical treatment for a serious 
health condition is considered to be unable to perform the essential 
functions of the position during the absence for treatment.
    Family and medical leave (or FMLA leave) means an employee's 
entitlement to 12 or 26 administrative workweeks of unpaid leave for 
certain family and medical needs, as prescribed under sections 6381 
through 6387 of title 5, United States Code.
    Foster care means 24-hour care for children in substitution for, 
and away from, their parents or guardian. Such placement is made by or 
with the agreement of the State as a result of a voluntary agreement by 
the parent or guardian that the child be removed from the home, or 
pursuant to a judicial determination of the necessity for foster care, 
and involves agreement between the State and foster family to take the 
child. Although foster care may be with relatives of the child, State 
action is involved in the removal of the child from parental custody.
    Health care provider means, for purposes of leave taken under Sec.  
630.1203(a)(3) or (4)--
    (1) A licensed Doctor of Medicine or Doctor of Osteopathy or a 
physician who is serving on active duty in the uniformed services and 
is designated by the uniformed service to conduct examinations under 
this subpart;
    (2) Any health care provider recognized by the Federal Employees 
Health Benefits Program or who is licensed or certified under Federal 
or State law to provide the service in question;
    (3) A health care provider as defined in paragraph (2) of this 
definition who practices in a country other than the United States, who 
is authorized to practice in accordance with the laws of that country, 
and who is performing within the scope of his or her practice as 
defined under such law;
    (4) A Christian Science practitioner listed with the First Church 
of Christ, Scientist, in Boston, Massachusetts; or
    (5) A Native American, including an Eskimo, Aleut, and Native 
Hawaiian, who is recognized as a traditional healing practitioner by 
native traditional religious leaders who practices traditional healing 
methods as believed, expressed, and exercised in Indian religions of 
the American Indian, Eskimo, Aleut, and Native Hawaiians, consistent 
with Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by 
Public Law 103-344, October 6, 1994 (108 Stat. 3125).
    (6) For purposes of leave taken to care for a covered servicemember 
under Sec.  630.1205(b), see the list of authorized health care 
providers at Sec.  630.1211(a)(1) through (4).
    In loco parentis refers to the situation of an individual who has 
day-to-day responsibility for the care and financial support of a child 
or, in the case of an employee or a covered servicemember, who had such 
responsibility for the employee or the covered servicemember when 
either was a child. A biological or legal relationship is not 
necessary.
    Incapacity means the inability to work, attend school, or perform 
other regular daily activities because of a serious health condition or 
treatment for or recovery from a serious health condition.
    Intermittent leave or leave taken intermittently means leave taken 
in separate blocks of time, rather than for one continuous period of 
time, and may include leave periods of 1 hour to several weeks. Leave 
may be taken for a period of less than 1 hour if agency policy provides 
for a minimum charge for leave of less than 1 hour under Sec.  
630.206(a).
    Leave without pay means an absence from duty in a nonpay status. 
Leave without pay may be taken only for those hours of duty comprising 
an employee's basic workweek.
    Next of kin of a covered servicemember means the nearest blood 
relative other than the covered servicemember's spouse, parent, son, or 
daughter, in the following order of priority:
    (1) Blood relatives who have been granted legal custody of the 
covered servicemember by court decree or statutory provisions;
    (2) Brothers and sisters;
    (3) Grandparents;
    (4) Aunts and uncles; and
    (5) First cousins, unless the covered servicemember has 
specifically designated in writing another blood relative as his or her 
nearest blood relative for purposes of leave taken under Sec.  
630.1203(b). When such designation has been made, the designated 
individual is deemed to be the covered servicemember's only next of 
kin. When no such designation is made, and there are multiple family 
members with the same level of relationship to the covered 
servicemember, all such family members will be considered the covered 
servicemember's next of kin and may take FMLA leave to provide care to 
the covered servicemember, either consecutively or simultaneously.
    Outpatient status means, with respect to a covered servicemember, 
the status of a member of the Armed Forces assigned to--
    (1) A military medical treatment facility as an outpatient; or
    (2) A unit established for the purpose of providing command and 
control of members of the Armed Forces receiving medical care as 
outpatients.
    Parent means a biological parent or an individual who stands or 
stood in loco

[[Page 43075]]

parentis to an employee when the employee was a son or daughter. This 
term does not include parents-in-law.
    Parent of a covered servicemember means a covered servicemember's 
biological, adoptive, step or foster father or mother, or any other 
individual who stands or stood in loco parentis to the covered 
servicemember. This term does not include parents-in-law.
    Reduced leave schedule means a work schedule under which the usual 
number of hours of regularly scheduled work per workday or workweek of 
an employee is reduced. The number of hours by which the daily or 
weekly tour of duty is reduced are counted as leave for the purpose of 
this subpart.
    Regularly scheduled work has the meaning given that term in Sec.  
610.102 of this chapter.
    Regularly scheduled administrative workweek has the meaning given 
that term in Sec.  610.102 of this chapter.
    Serious health condition. (1) Serious health condition means an 
illness, injury, impairment, or physical or mental condition that 
involves--
    (i) Inpatient care (i.e., an overnight stay) in a hospital, 
hospice, or residential medical care facility, including any period of 
incapacity or any subsequent treatment in connection with such 
inpatient care; or
    (ii) Continuing treatment by a health care provider that includes 
(but is not limited to) examinations to determine if there is a serious 
health condition and evaluations of such conditions if the examinations 
or evaluations determine that a serious health condition exists. 
Continuing treatment by a health care provider may include one or more 
of the following--
    (A) A period of incapacity of more than 3 consecutive calendar 
days, including any subsequent treatment or period of incapacity 
relating to the same condition, that also involves--
    (1) Treatment two or more times by a health care provider, by a 
health care provider under the direct supervision of the affected 
individual's health care provider, or by a provider of health care 
services under orders of, or on referral by, a health care provider; or
    (2) Treatment by a health care provider on at least one occasion 
that results in a regimen of continuing treatment under the supervision 
of the health care provider (e.g., a course of prescription medication 
or therapy requiring special equipment to resolve or alleviate the 
health condition).
    (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.
    (C) Any period of incapacity or treatment for such incapacity due 
to a chronic serious health condition that--
    (1) Requires periodic visits for treatment by a health care 
provider or by a health care provider under the direct supervision of 
the affected individual's health care provider,
    (2) Continues over an extended period of time (including recurring 
episodes of a single underlying condition); and
    (3) May cause episodic rather than a continuing period of 
incapacity (e.g., asthma, diabetes, epilepsy, etc.). The condition is 
covered 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.
    (D) A period of incapacity that is permanent or long-term due to a 
condition for which treatment may not be effective. The affected 
individual must be under the continuing supervision of, but need not be 
receiving active treatment by, a health care provider (e.g., 
Alzheimer's, severe stroke, or terminal stages of a disease).
    (E) Any period of absence to receive multiple treatments (including 
any period of recovery) by a health care provider or by a provider of 
health care services under orders of, or on referral by, a health care 
provider, either for restorative surgery after an accident or other 
injury or for a condition that would likely result in a period of 
incapacity of more than 3 consecutive calendar days in the absence of 
medical intervention or treatment (e.g., chemotherapy/radiation for 
cancer, physical therapy for severe arthritis, dialysis for kidney 
disease).
    (2) Serious health condition does not include routine physical, 
eye, or dental examinations; a regimen of continuing treatment that 
includes the taking of over-the-counter medications, bed-rest, 
exercise, and other similar activities that can be initiated without a 
visit to the health care provider; a condition for which cosmetic 
treatments are administered, unless inpatient hospital care is required 
or unless complications develop; or an absence because of an employee's 
use of an illegal substance, unless the employee is receiving treatment 
for substance abuse by a health care provider or by a provider of 
health care services on referral by a health care provider. Ordinarily, 
unless complications arise, the common cold, the flu, earaches, upset 
stomach, minor ulcers, headaches (other than migraines), routine dental 
or orthodontia problems, and periodontal disease are not serious health 
conditions. Allergies, restorative dental or plastic surgery after an 
injury, removal of a cancerous growth, or mental illness resulting from 
stress may be serious health conditions only if such conditions require 
inpatient care or continuing treatment by a health care provider.
    Serious injury or illness means an injury or illness incurred by a 
covered servicemember in the line of duty on active duty that may 
render the servicemember medically unfit to perform the duties of the 
servicemember's office, grade, rank, or rating.
    Single 12-month period means the period beginning on the first day 
the employee takes FMLA leave to care for a covered servicemember with 
a serious injury or illness and ending 12 months after that date in 
accordance with section 630.1205(b) and (c).
    Son or daughter means a biological, adopted, or foster child; a 
step child; a legal ward; or a child of a person standing in loco 
parentis who is--
    (1) Under 18 years of age; or
    (2) 18 years of age or older and incapable of self-care because of 
a mental or physical disability. A son or daughter incapable of self-
care requires active assistance or supervision to provide daily self-
care in three or more of the ``activities of daily living'' (ADLs) or 
``instrumental activities of daily living'' (IADLs). Activities of 
daily living include adaptive activities such as caring appropriately 
for one's grooming and hygiene, bathing, dressing, and eating. 
Instrumental activities of daily living include cooking, cleaning, 
shopping, taking public transportation, paying bills, maintaining a 
residence, using the telephones and directories, using a post office, 
etc. A ``physical or mental disability'' refers to a physical or mental 
impairment that substantially limits one or more of the major life 
activities of an individual as defined in 29 CFR 1630.2 (h), (i) and 
(j).
    Son or daughter of a covered servicemember means a covered 
servicemember's biological, adopted, or foster child, stepchild, legal 
ward, or a child for whom the covered servicemember stood in loco 
parentis, and who is of any age.
    Spouse means an individual who is a husband or wife pursuant to a 
marriage that is a legal union between one man and one woman, including 
common law marriage between one man and one woman in States where it is 
recognized.
    Tour of duty has the meaning given that term in Sec.  610.102 of 
this chapter.

[[Page 43076]]

Sec.  630.1203  Leave entitlement.

    (a) 12-week entitlement for basic FMLA leave. An employee is 
entitled to a total of 12 administrative workweeks of unpaid leave 
during any 12-month period for one or more of the following reasons:
    (1) The birth of a son or daughter of the employee and the care of 
such son or daughter;
    (2) The placement of a son or daughter with the employee for 
adoption or foster care;
    (3) The care of a spouse, son, daughter, or parent of the employee, 
if such spouse, son, daughter, or parent has a serious health 
condition; or
    (4) A serious health condition of the employee that makes the 
employee unable to perform any one or more of the essential functions 
of his or her position.
    (b) 26-week entitlement for FMLA leave to care for a covered 
servicemember. (1) An employee is entitled to a total of 26 
administrative workweeks of unpaid leave during a single 12-month 
period to care for a covered servicemember with a serious injury or 
illness if the employee is the spouse, son, daughter, parent, or next 
of kin of a covered servicemember as defined in Sec.  630.1202.
    (2) The leave entitlement described in this section is to be 
applied on a per-covered servicemember, per-serious injury or illness 
basis such that an employee may be entitled to take more than one 
period of up to 26 administrative workweeks of leave if the leave is to 
care for different covered servicemembers or to care for the same 
covered servicemember with a subsequent serious injury or illness, 
except that no more than 26 administrative workweeks of leave may be 
taken within any single 12-month period as described in Sec.  
630.1205(b).
    (i) Per covered servicemember. Subject to Sec.  630.1205(b) and the 
conditions in paragraphs (b)(2)(i)(A) through (C) of this section, an 
employee may take more than one period of up to 26 administrative 
workweeks of FMLA leave to care for more than one covered 
servicemember.
    (A) An employee who has previously invoked FMLA leave to care for a 
covered servicemember in a single 12-month period may subsequently 
invoke FMLA leave to care for a different covered servicemember in a 
different single 12-month period.
    (B) If the single 12-month periods applicable to the different 
covered servicemembers do not overlap, the employee may take up to 26 
administrative workweeks of leave during each single 12-month period. 
If the single 12-month periods applicable to the different covered 
servicemembers do overlap, the employee may take no more than 26 
administrative workweeks of leave during any single 12-month period. In 
no case may an employee take more than 26 administrative workweeks of 
leave during any single 12-month period, as described in Sec.  
630.1205(b) and (c).
    (C) For purposes of applying paragraphs (b)(2)(i)(A) and (B) of 
this section, the beginning of each period of leave to care for each 
covered servicemember begins a new single 12-month period.
    (ii) Per serious injury or illness. Subject to Sec.  630.1205(b) 
and the conditions in paragraphs (b)(2)(ii)(A) through (C) of this 
section, an employee may take more than one single 12-month period of 
up to 26 administrative workweeks of leave to care for a covered 
servicemember with more than one serious injury or illness only when 
the serious injury or illness is a subsequent serious injury or 
illness, including a manifestation of a second serious injury or 
illness at a later time. An employee may not take a subsequent period 
of leave to care for a covered servicemember who experiences an 
aggravation or complication of an earlier serious injury or illness.
    (A) An employee who has previously invoked FMLA leave to care for a 
covered servicemember in a single 12-month period may subsequently 
invoke FMLA leave to care for the same covered servicemember in a 
different single 12-month period for a different serious injury or 
illness.
    (B) If the different single 12-month periods applicable to the 
different serious injuries or illnesses do not overlap, the employee 
may take up to 26 administrative workweeks of leave during each single 
12-month period. If the different single 12-month periods applicable to 
the different serious injuries or illnesses do overlap, the employee 
may take no more than 26 administrative workweeks of leave during any 
single 12-month period. In no case may an employee take more than 26 
administrative workweeks of leave within any single 12-month period, as 
described in Sec.  630.1205(b) and (c).
    (C) For purposes of applying paragraphs (b)(2)(ii)(A) and (B) of 
this section, the beginning of each period of leave to care for each 
separate serious injury or illness begins a new single 12-month period.
    (3) An employee may not take leave under this paragraph to care for 
a former member of the Armed Forces, a former member of the National 
Guard or Reserves, or a member on the permanent disability retired 
list.
    (c)(1) An employee may take only the amount of family and medical 
leave that is necessary to manage the circumstances that prompted the 
need for leave under paragraph (a) or (b) of this section.
    (2) An employee's entitlement to the use of leave under paragraphs 
(a) and (b) of this section is applied in accordance with Sec.  
630.1205.
    (d) Each agency must inform its employees of their entitlements and 
responsibilities under this subpart, including the requirements and 
obligations of employees.


Sec.  630.1204  Invoking FMLA entitlement.

    (a) An employee must invoke his or her entitlement to family and 
medical leave under Sec.  630.1203(a) or (b), subject to the 
notification and medical certification requirements in Sec. Sec.  
630.1209, 630.1210, or 630.1211.
    (b) An employee may not retroactively invoke his or her entitlement 
to family and medical leave. However, if an employee and his or her 
personal representative are physically or mentally incapable of 
invoking the employee's entitlement to FMLA leave during the entire 
period in which the employee is absent from work for an FMLA-qualifying 
purpose under Sec.  630.1203(a) or (b), the employee may retroactively 
invoke his or her entitlement to FMLA leave within 2 workdays after 
returning to work. In such cases, the incapacity of the employee must 
be documented by a written medical certification from a health care 
provider. In addition, the employee must provide documentation 
acceptable to the agency, explaining the inability of his or her 
personal representative to contact the agency and invoke the employee's 
entitlement to FMLA leave during the entire period in which the 
employee was absent from work for an FMLA-qualifying purpose.
    (c) When an employee invokes his or her entitlement to FMLA leave 
for a circumstance which could qualify under both Sec.  630.1203(a)(3) 
and Sec.  630.1203(b), then the FMLA leave must be designated as being 
taken under Sec.  630.1203(b). The higher 26-week entitlement applies 
in this case. The single 12-month period starts upon first use of leave 
for this purpose. Leave to care for a covered servicemember is to be 
applied on a per-covered servicemember, per-serious injury or illness 
basis, as described under Sec.  630.1203(b)(2). Once the single 12-
month period for leave to care for a covered servicemember is exhausted 
in accordance with 630.1205(b), leave for

[[Page 43077]]

any necessary subsequent care may be taken under Sec.  630.1203(a)(3) 
subject to all requirements relating to use of such leave.
    (d) An agency may not place an employee on family and medical leave 
and may not subtract leave from an employee's entitlement to leave 
under Sec.  630.1203(a) or (b) unless the agency has obtained 
confirmation from the employee or his or her personal representative of 
the employee's intent to invoke his or her entitlement to leave under 
paragraph (a) or (b) of this section. An employee's notice of his or 
her intent to take leave under Sec.  630.1209 may suffice as the 
employee's confirmation.


Sec.  630.1205  Application of the 12-month FMLA periods.

    (a) 12-week entitlement for basic FMLA leave. The 12-month period 
referred to in Sec.  630.1203(a) begins on the date an employee first 
takes leave under this subpart for a family or medical need specified 
in Sec.  630.1203(a) and continues for 12 months.
    (1) An employee is not entitled to 12 additional administrative 
workweeks of leave until the previous 12-month period ends and an event 
or situation occurs that entitles the employee to another period of 
family or medical leave. (This may include a continuation of a previous 
situation or circumstance.)
    (2) The entitlement to leave under Sec.  630.1203(a)(1) and (2) 
expires at the end of the 12-month period beginning on the date of 
birth or placement. Leave for a birth or placement must be concluded 
within this 12-month period. Leave taken under Sec.  630.1203(a)(1) and 
(2) may begin prior to, or on the actual date of, birth or placement 
for adoption or foster care, and the 12-month period referred to in 
Sec.  630.1203(a) begins on that date.
    (b) 26-week entitlement for FMLA leave to care for a covered 
servicemember. The single 12-month period described in Sec.  
630.1203(b) begins on the first day the employee takes FMLA leave to 
care for a covered servicemember and ends 12 months after that date.
    (1) Any leave used under Sec.  630.1203(a) prior to the first use 
under Sec.  630.1203(b) does not count towards the single 12-month 
period under this paragraph.
    (2) If an employee does not take all of his or her 26 
administrative workweeks of leave entitlement to care for a covered 
servicemember during this single 12-month period, the remaining part of 
his or her 26 administrative workweeks of leave entitlement to care for 
the covered servicemember is forfeited.
    (3) When an employee takes leave to care for more than one covered 
servicemember or for a subsequent serious injury or illness of the same 
covered servicemember, and the single 12-month periods corresponding to 
the different leave entitlements to care for a covered servicemember 
overlap, the employee is limited to taking a combined total of no more 
than 26 administrative workweeks of leave in each single 12-month 
period.
    (c) Limit of combined total of 26 weeks. During any single 12-month 
period described in paragraph (b) of this section, an employee's FMLA 
leave entitlement is limited to a combined total of 26 administrative 
workweeks of FMLA leave for any reason under Sec.  630.1203 (a) and 
(b).


Sec.  630.1206  Non-standard workschedules and holidays.

    (a) Part-time and uncommon tours of duty. Leave under Sec.  
630.1203(a) and (b) is available to full-time and part-time employees. 
The appropriate total of administrative workweeks (12 if taken under 
Sec.  630.1203(a), and 26 if taken under Sec.  630.1203(b)) will be 
made available equally for a full-time or part-time employee in direct 
proportion to the number of hours in the employee's regularly scheduled 
administrative workweek. The appropriate number (i.e., 12 or 26) of 
administrative workweeks of leave will be calculated on an hourly basis 
and will equal 12 or 26 times the average number of hours in the 
employee's regularly scheduled administrative workweek. If the number 
of hours in an employee's administrative workweek varies from week to 
week, a weekly average of the hours scheduled over the 12 or 26 weeks 
prior to the date leave commences must be used as the basis for this 
calculation.
    (b) Holidays. Any holidays authorized under 5 U.S.C. 6103 or by 
Executive order and nonworkdays established by Federal statute, 
Executive order, or administrative order that occur during the period 
in which the employee is on family and medical leave may not be counted 
toward the employee's 12 or 26-week entitlement to family and medical 
leave.
    (c) Change in schedule. If the number of hours in an employee's 
regularly scheduled administrative workweek is changed during the 12-
month period of family and medical leave, the employee's entitlement to 
any remaining family and medical leave will be recalculated based on 
the number of hours in the employee's current regularly scheduled 
administrative workweek.


Sec.  630.1207  Intermittent leave or reduced leave schedule.

    (a) Leave under Sec.  630.1203(a)(1) or (2) may not be taken 
intermittently or on a reduced leave schedule unless the employee and 
the agency agree to do so.
    (b) Leave under Sec.  630.1203(a)(3) or (4) may be taken 
intermittently or on a reduced leave schedule when medically necessary, 
subject to Sec. Sec.  630.1209 and 630.1210(b)(6). Leave under Sec.  
630.1203(b) may be taken intermittently or on a reduced leave schedule 
when medically necessary, subject to Sec. Sec.  630.1209, 
630.1211(b)(7) and (8) and 630.1211(e)(1) and (2).
    (c) If an employee takes leave under Sec.  630.1203(a)(3) or (4) or 
Sec.  630.1203(b) intermittently or on a reduced leave schedule that is 
foreseeable based on planned medical treatment, recovery from a serious 
health condition, or care of a covered servicemember, the agency may 
place the employee temporarily in an available alternative position for 
which the employee is qualified and that can better accommodate 
recurring periods of leave. Upon returning from leave, the employee is 
entitled to be returned to his or her permanent position or an 
equivalent position, as provided in Sec.  630.1212(a).
    (d) For the purpose of applying paragraph (c) of this section, an 
alternative position need not consist of equivalent duties, but must be 
in the same commuting area and must provide--
    (1) An equivalent grade or pay level, including any applicable 
locality payment under 5 CFR part 531, subpart F; special rate 
supplement under 5 CFR part 530, subpart C; or similar payment or 
supplement under other legal authority;
    (2) The same type of appointment, work schedule, status, and 
tenure; and
    (3) The same employment benefits made available to the employee in 
his or her previous position (e.g., life insurance, health benefits, 
retirement coverage, and leave accrual).
    (e) The agency must determine the available alternative position 
that has equivalent pay and benefits consistent with Federal laws, 
including the Rehabilitation Act of 1973 (29 U.S.C. 701) and the 
Pregnancy Discrimination Act of 1978 (42 U.S.C. 2000e).
    (f) Only the amount of leave taken intermittently or on a reduced 
leave schedule, as these terms are defined in Sec.  630.1202 of this 
part, may be subtracted from the total amount of leave available to the 
employee under Sec.  630.1206 (a) and (c).

[[Page 43078]]

Sec.  630.1208  Substitution of paid leave.

    (a) Except as provided in paragraph (b) of this section, leave 
taken under Sec.  630.1203(a) or (b) must be leave without pay.
    (b) An employee may elect to substitute the following paid leave 
for any or all of the period of leave without pay to be taken under 
Sec.  630.1203(a) or (b):
    (1) Accrued or accumulated annual or sick leave under subchapter I 
of chapter 63 of title 5, United States Code, consistent with current 
law and regulations governing the granting and use of annual or sick 
leave under subparts C and D of this part;
    (2) Advanced annual leave under 5 U.S.C. 6302(d) or sick leave 
under 5 U.S.C. 6307(d) and Sec.  630.402 approved under the same terms 
and conditions that apply to any other agency employee who requests 
advanced annual or sick leave; and
    (3) Leave made available to an employee under the Voluntary Leave 
Transfer Program or the Voluntary Leave Bank Program consistent with 
subparts I and J of this part.
    (c) An agency may not deny an employee's right to substitute paid 
leave under paragraph (b) of this section for any or all of the period 
of leave without pay to be taken under Sec.  630.1203(a) or (b), 
consistent with current law and regulations.
    (d) An agency may not require an employee to substitute paid leave 
under paragraph (b) of this section for any or all of the period of 
leave without pay to be taken under Sec.  630.1203(a) or (b).
    (e) An employee must notify the agency of his or her intent to 
substitute paid leave under paragraph (b) of this section for the 
period of leave without pay to be taken under Sec.  630.1203(a) or (b) 
prior to the date such paid leave commences. An employee may not 
retroactively substitute paid leave for leave without pay previously 
taken under Sec.  630.1203(a) or (b).


Sec.  630.1209  Notice of leave.

    (a) If the need for leave taken under Sec.  630.1203(a) or (b) is 
foreseeable based on an expected birth, placement for adoption or 
foster care, planned medical treatment for the serious health condition 
of employee or of a family member, or the planned medical treatment for 
a serious injury or illness of a covered servicemember, the employee 
must provide notice to the agency of his or her intention to take leave 
not less than 30 calendar days before the date the leave is to begin. 
If 30 calendar days notice is not practicable (e.g., due to lack of 
knowledge of approximately when leave will be required to begin, a 
change in circumstances, a medical emergency, or the date of birth or 
placement or planned medical treatment requires leave to begin within 
30 calendar days), the employee must provide such notice as soon as is 
practicable.
    (b) If the need for leave taken under Sec.  630.1203(a)(3) or (4) 
or (b) is foreseeable based on planned medical treatment, the employee 
must consult with the agency and make a reasonable effort to schedule 
medical treatment so as not to disrupt unduly the operations of the 
agency, subject to the approval of the health care provider. The agency 
may, for justifiable cause, request that an employee reschedule medical 
treatment, subject to the approval of the health care provider.
    (c) If the need for leave taken under Sec.  630.1203(a) or (b) is 
not foreseeable (e.g., a medical emergency, the serious injury of a 
covered servicemember, or the unexpected availability of a child for 
adoption or foster care), and the employee cannot provide 30 calendar 
days' notice of his or her need for leave, the employee must provide 
notice within a reasonable period of time appropriate to the 
circumstances involved. If necessary, notice may be given by an 
employee's personal representative (e.g., a family member or other 
responsible party). If the need for leave is not foreseeable and the 
employee is unable, due to circumstances beyond his or her control, to 
provide notice of his or her need for leave, the leave may not be 
delayed or denied.
    (d) If the need for leave taken under Sec.  630.1203(a) or (b) is 
foreseeable, and the employee fails to give 30 calendar days' notice 
with no reasonable excuse for the delay of notification, the agency may 
delay the taking of leave under Sec.  630.1203(a) or (b) until at least 
30 calendar days after the date the employee provides notice of his or 
her need for family and medical leave.
    (e) An agency may waive the notice requirements under paragraph (a) 
of this section and instead impose the agency's usual and customary 
policies or procedures for providing notification of leave. The 
agency's policies or procedures for providing notification of leave 
must not be more stringent than the requirements in this section. 
However, an agency may not deny an employee's entitlement to leave 
under Sec.  630.1203(a) or (b) if the employee fails to follow such 
agency policies or procedures.
    (f) An agency may require that a request for leave under Sec.  
630.1203(a)(1) and (2) be supported by evidence that is 
administratively acceptable to the agency.


Sec.  630.1210  Medical certification for basic FMLA leave for serious 
health condition of the employee or family member.

    (a) An agency may require that a request for leave under Sec.  
630.1203(a)(3) or (4) be supported by written medical certification 
issued by the health care provider of the employee or the health care 
provider of the spouse, son, daughter, or parent of the employee, as 
appropriate. An agency may waive the requirement for an initial medical 
certificate in a subsequent 12-month period if the leave under Sec.  
630.1203(a)(3) or (4) is for the same chronic or continuing condition.
    (b) The written medical certification must include--
    (1) The date the serious health condition commenced;
    (2) The probable duration of the serious health condition or a 
statement that the serious health condition is a chronic or continuing 
condition with an unknown duration, including whether the patient is 
presently incapacitated and the likely duration and frequency of 
episodes of incapacity;
    (3) The appropriate medical facts within the knowledge of the 
health care provider regarding the serious health condition, including 
a general statement as to the incapacitation, examination, or treatment 
that may be required by a health care provider;
    (4) For the purpose of leave taken under Sec.  630.1203(a)(3)--
    (i) A statement from the health care provider that the spouse, son, 
daughter, or parent of the employee requires psychological comfort and/
or physical care; needs assistance for basic medical, hygienic, 
nutritional, safety, or transportation needs or in making arrangements 
to meet such needs; and would benefit from the employee's care or 
presence; and
    (ii) A statement from the employee on the care he or she will 
provide and an estimate of the amount of time needed to care for his or 
her spouse, son, daughter, or parent;
    (5) For the purpose of leave taken under Sec.  630.1203(a)(4), a 
statement that the employee is unable to perform one or more of the 
essential functions of his or her position or requires medical 
treatment for a serious health condition, based on written information 
provided by the agency on the essential functions of the employee's 
position or, if not provided, discussion with the employee about the 
essential functions of his or her position; and
    (6) In the case of certification for intermittent leave or leave on 
a reduced

[[Page 43079]]

leave schedule under Sec.  630.1203(a)(3) or (4) for planned medical 
treatment, the dates (actual or estimates) on which such treatment is 
expected to be given, the duration of such treatment, and the period of 
recovery, if any, or specify that the serious health condition is a 
chronic or continuing condition with an unknown duration and whether 
the patient is presently incapacitated and the likely duration and 
frequency of episodes of incapacity.
    (c) The information on the medical certification must relate only 
to the serious health condition for which the current need for family 
and medical leave exists. The agency may not require any personal or 
confidential information in the written medical certification other 
than that required by paragraph (b) of this section. If an employee 
submits a completed medical certification signed by the health care 
provider, the agency may not request new information from the health 
care provider. However, a health care provider representing the agency, 
including a health care provider employed by the agency or under 
administrative oversight of the agency, may contact the health care 
provider who completed the medical certification, with the employee's 
permission, for purposes of clarifying the medical certification.
    (d) If the agency doubts the validity of the original certification 
provided under paragraph (a) of this section, the agency may require, 
at the agency's expense, that the employee obtain the opinion of a 
second health care provider designated or approved by the agency 
concerning the information certified under paragraph (b) of this 
section. Any health care provider designated or approved by the agency 
may not be employed by the agency or be under the administrative 
oversight of the agency on a regular basis unless the agency is located 
in an area where access to health care is extremely limited--e.g., a 
rural area or an overseas location where no more than one or two health 
care providers practice in the relevant specialty, or the only health 
care providers available are employed by the agency.
    (e) If the opinion of the second health care provider differs from 
the original certification provided under paragraph (a) of this 
section, the agency may require, at the agency's expense, that the 
employee obtain the opinion of a third health care provider designated 
or approved jointly by the agency and the employee concerning the 
information certified under paragraph (b) of this section. The opinion 
of the third health care provider is binding on the agency and the 
employee.
    (f) To remain entitled to family and medical leave under Sec.  
630.1203(a)(3) or (4), an employee or the employee's spouse, son, 
daughter, or parent must comply with any requirement from an agency 
that he or she submit to examination (though not treatment) to obtain a 
second or third medical certification from a health care provider other 
than the individual's health care provider.
    (g) If the employee is unable to provide the requested medical 
certification before leave begins, or if the agency questions the 
validity of the original certification provided by the employee and the 
medical treatment requires the leave to begin, the agency must grant 
provisional leave pending final written medical certification.
    (h) An employee must provide the written medical certification 
required by paragraphs (a), (d), (e), and (g) of this section, signed 
by the health care provider, 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 
medical certification no later than 15 calendar days after the date 
requested by the agency despite the employee's diligent, good-faith 
efforts, the employee must provide the 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 
medical certification.
    (i) If, after the leave has commenced, the employee fails to 
provide the requested medical certification, the agency may--
    (1) Charge the employee as absent without leave (AWOL); or
    (2) Allow the employee to request that the provisional leave be 
charged as leave without pay or charged to the employee's annual and/or 
sick leave account, as appropriate.
    (j) At its own expense, an agency may require subsequent medical 
recertification on a periodic basis, but not more than once every 30 
calendar days, for leave taken for purposes relating to pregnancy, 
chronic conditions, or long-term conditions, as these terms are used in 
the definition of serious health condition in Sec.  630.1202. For leave 
taken for all other serious health conditions and including leave taken 
on an intermittent or reduced leave schedule, if the health care 
provider has specified on the medical certification a minimum duration 
of the period of incapacity, the agency may not request recertification 
until that period has passed. An agency may require subsequent medical 
recertification more frequently than every 30 calendar days, or more 
frequently than the minimum duration of the period of incapacity 
specified on the medical certification, if the employee requests that 
the original leave period be extended, the circumstances described in 
the original medical certification have changed significantly, or the 
agency receives information that casts doubt upon the continuing 
validity of the medical certification.
    (k) To ensure the security and confidentiality of any written 
medical certification under Sec. Sec.  630.1210 or 630.1212(h), the 
medical certification shall be subject to the provisions for 
safeguarding information about individuals under subpart A or part 293 
of this chapter.


Sec.  630.1211  Medical and other certification for leave to care for a 
covered servicemember.

    (a) An agency may require that a request for leave under Sec.  
630.1203(b) be supported by a written medical certification issued by 
an authorized health care provider of the covered servicemember. For 
purposes of leave taken to care for a covered servicemember under Sec.  
630.1203(b), any one of the following health care providers may 
complete such a certification:
    (1) A United States Department of Defense (DOD) health care 
provider;
    (2) A United States Department of Veterans Affairs (VA) health care 
provider;
    (3) A DOD TRICARE network authorized private health care provider; 
or
    (4) A DOD non-network TRICARE authorized private health care 
provider.
    (b) Required information from health care provider. An agency may 
request that the health care provider provide any or all of the 
information listed below. (If the authorized health care provider is 
unable to make certain military-related determinations outlined below, 
the authorized health care provider may rely on determinations from an 
authorized DOD representative, such as a DOD recovery care 
coordinator):
    (1) The name, address, and appropriate contact information 
(telephone number, fax number, and/or e-mail address) of the health 
care provider, the type of medical practice, the medical specialty, and 
which of the categories listed in paragraph (a) of this section 
describes the health care provider;

[[Page 43080]]

    (2) Whether the covered servicemember has incurred a serious injury 
or illness;
    (3) Whether the covered servicemember's serious injury or illness 
was incurred in the line of duty on active duty;
    (4) The approximate date on which the serious injury or illness 
commenced, and its probable duration;
    (5) A statement or description of appropriate medical facts 
regarding the covered servicemember's health condition for which FMLA 
leave is requested. The medical facts must be sufficient to support the 
need for leave. Such medical facts must include information on whether 
the serious injury or illness may render the covered servicemember 
medically unfit to perform the duties of the covered servicemember's 
office, grade, rank, or rating and whether the member is receiving 
medical treatment, recuperation, or therapy;
    (6) Information sufficient to establish that the covered 
servicemember is in need of care, (i.e., requires psychological comfort 
and/or physical care; needs assistance for basic medical, hygienic, 
nutritional, safety, or transportation needs or in making arrangements 
to meet such needs; and would benefit from the employee's care or 
presence) and whether the covered servicemember will need care for a 
single continuous period of time, including any time for treatment and 
recovery, and an estimate as to the beginning and ending dates of this 
period of time;
    (7) If an employee requests leave on an intermittent or reduced 
schedule basis for planned medical treatment appointments for the 
covered servicemember, whether there is a medical necessity for the 
covered servicemember to have such periodic care and an estimate of the 
treatment schedule of such appointments; and
    (8) If an employee requests leave on an intermittent or reduced 
schedule basis to care for a covered servicemember other than for 
planned medical treatment (e.g., episodic flare-ups of a medical 
condition), whether there is a medical necessity for the covered 
servicemember to have such periodic care, which can include assisting 
in the covered servicemember's recovery, and an estimate of the 
frequency and duration of the periodic care.
    (c) Required information from employee and/or covered 
servicemember. In addition to the information that may be required 
under Sec.  630.1211(b), an agency may also require that such 
certification set forth the following information provided by an 
employee and/or covered servicemember:
    (1) The name and address of the employing agency of the individual 
requesting leave to care for a covered servicemember, the name of the 
employee requesting such leave, and the name of the covered 
servicemember for whom the employee is requesting leave to care;
    (2) The relationship of the employee to the covered servicemember 
for whom the employee is requesting leave to care;
    (3) Whether the covered servicemember is a current member of the 
Armed Forces or the National Guard or Reserves, and the covered 
servicemember's military branch, rank, and current unit assignment;
    (4) Whether the covered servicemember is assigned to a military 
medical facility as an outpatient or to a unit established for the 
purpose of providing command and control of members of the Armed Forces 
receiving medical care as outpatients (such as a medical hold or 
warrior transition unit), and the name of the medical treatment 
facility or unit;
    (5) Whether the covered servicemember is on the temporary 
disability retired list; and
    (6) A description of the care to be provided to the covered 
servicemember and an estimate of the amount of leave needed by the 
employee to provide the care.
    (d) No information may be required beyond that specified in this 
section. In all instances, the information on the certification must 
relate only to the serious injury or illness for which the current need 
for leave exists. An agency may seek authentication and/or 
clarification of the certification. However, second and third opinions 
such as those outlined in Sec.  630.1210(d) and (e) or recertifications 
such as those outlined in Sec.  630.1210(j) are not permitted for leave 
to care for a covered servicemember.
    (e) An agency requiring an employee to submit a certification for 
leave to care for a covered servicemember must accept as sufficient 
certification ``invitational travel orders'' (ITOs) or ``invitational 
travel authorizations'' (ITAs) issued to any family member to join an 
injured or ill covered servicemember at his or her bedside. An ITO or 
ITA is sufficient certification for an employee entitled to take FMLA 
leave to care for a covered servicemember regardless of whether the 
employee is named in the order or authorization.
    (1) An ITO or ITA is sufficient certification for the duration of 
time specified in the ITO or ITA. During that time period, an employee 
may take leave to care for the covered servicemember in a continuous 
block of time or on an intermittent basis.
    (2) An employee who provides an ITO or ITA to support his or her 
request for leave may not be required to provide any additional or 
separate certification that leave taken on an intermittent basis during 
the period of time specified in the ITO or ITA is medically necessary.
    (3) If an employee will need leave to care for a covered 
servicemember beyond the expiration date specified in an ITO or ITA, an 
agency may request that the employee have one of the authorized health 
care providers listed under Sec.  630.1211(a) complete the required 
certification form as certification for the remainder of the employee's 
necessary leave period.
    (4) An agency may seek authentication and clarification of the ITO 
or ITA.
    (5) An agency may not use a second or third opinion process such as 
those outlined in Sec.  630.1210(d) and (e), or the recertification 
process such as that outlined in Sec.  630.1210(j), for the period of 
time in which leave is supported by an ITO or ITA.
    (f) If the employee is unable to provide the requested medical 
certification before leave begins, or if the agency questions the 
validity of the original certification provided by the employee and the 
medical treatment requires the leave to begin, the agency must grant 
provisional leave pending final written medical certification.
    (g) An employee must provide the written medical certification 
required by paragraphs (a), (b), and (f) of this section, signed by the 
health care provider, 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 medical 
certification no later than 15 calendar days after the date requested 
by the agency despite the employee's diligent, good-faith efforts, the 
employee must provide the 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 medical 
certification.
    (h) If, after the leave has commenced, the employee fails to 
provide the requested medical certification, the agency may--
    (1) Charge the employee as absent without leave (AWOL); or
    (2) Allow the employee to request that the provisional leave be 
charged as leave without pay or charged to the

[[Page 43081]]

employee's annual and/or sick leave account, as appropriate.
    (i) To ensure the security and confidentiality of any written 
medical certification under Sec.  630.1211, the medical certification 
shall be subject to the provisions for safeguarding information about 
individuals under subpart A of part 293 of this chapter.


Sec.  630.1212  Protection of employment and benefits.

    (a) Any employee who takes leave under Sec.  630.1203(a) or (b) is 
entitled, upon return to the agency, to be returned to--
    (1) The same position held by the employee when the leave 
commenced; or
    (2) An equivalent position with equivalent benefits, pay, status, 
and other terms and conditions of employment.
    (b) For the purpose of applying paragraph (a)(2) of this section, 
an equivalent position must be in the same commuting area and must 
carry or provide at a minimum--
    (1) The same or substantially similar duties and responsibilities, 
which must entail substantially equivalent skill, effort, 
responsibility, and authority;
    (2) An equivalent grade or pay level, including any applicable 
locality payment under 5 CFR part 531, subpart F; special rate 
supplement under 5 CFR part 530, subpart C; or similar payment or 
supplement under other legal authority;
    (3) The same type of appointment, work schedule, status, and 
tenure;
    (4) The same employment benefits made available to the employee in 
his or her previous position (e.g., life insurance, health benefits, 
retirement coverage, and leave accrual);
    (5) The same or equivalent opportunity for a within-grade increase, 
performance award, incentive award, or other similar discretionary and 
non-discretionary payments, consistent with applicable laws and 
regulations; however, the entitlement to be returned to an equivalent 
position does not extend to intangible or unmeasurable aspects of the 
job;
    (6) The same or equivalent opportunity for premium pay consistent 
with applicable law and regulations under 5 CFR part 550, subpart A, or 
5 CFR part 551, subpart E; and
    (7) The same or equivalent opportunity for training or education 
benefits, consistent with applicable laws and regulations, including 
any training that an employee may be required to complete to qualify 
for his or her previous position.
    (c) As a result of taking leave under Sec.  630.1203(a) or (b), an 
employee must not suffer the loss of any employment benefit accrued 
prior to the date on which the leave commenced.
    (d) Except as otherwise provided by or under law, a restored 
employee is not entitled to--
    (1) The accrual of any employment benefits during any period of 
leave; or
    (2) Any right, benefit, or position of employment other than any 
right, benefit, or position to which the employee would have been 
entitled had the employee not taken the leave.
    (e) For the purpose of applying paragraph (d) of this section, the 
same entitlements and limitations in law and regulations that apply to 
the position, pay, benefits, status, and other terms and conditions of 
employment of an employee in a leave without pay status apply to any 
employee taking leave without pay under this part, except where 
different entitlements and limitations are specifically provided in 
this subpart.
    (f) An employee is not entitled to be returned to the same or 
equivalent position under paragraph (a) of this section if the employee 
would not otherwise have been employed in that position at the time the 
employee returns from leave.
    (g) An agency may not return an employee to an equivalent position 
where written notification has been provided that the equivalent 
position will be affected by a reduction in force if the employee's 
previous position is not affected by a reduction in force.
    (h) As a condition of returning an employee who takes leave under 
Sec.  630.1203(a)(4), an agency may establish a uniformly applied 
practice or policy that requires all similarly-situated employees 
(i.e., same occupation, same serious health condition) to obtain 
written medical certification from the health care provider of the 
employee that the employee is able to perform the essential functions 
of his or her position. An agency may delay the return of an employee 
until the medical certification is provided. The same conditions for 
verifying the adequacy of a medical certification in Sec.  630.1210(c) 
apply to the medical certification to return to work. No second or 
third opinion on the medical certification to return to work may be 
required. An agency may not require a medical certification to return 
to work during the period the employee takes leave intermittently or 
under a reduced leave schedule under Sec.  630.1207.
    (i) If an agency requires an employee to obtain written medical 
certification under paragraph (h) of this section before he or she 
returns to work, the agency must notify the employee of this 
requirement before leave commences or to the extent practicable in 
emergency medical situations, and must pay the expenses for obtaining 
the written medical certification. An employee's refusal or failure to 
provide written medical certification under paragraph (h) of this 
section may be grounds for appropriate disciplinary or adverse action, 
as provided in part 752 of this chapter.
    (j) An agency may require an employee to report periodically to the 
agency on his or her status and intention to return to work. An 
agency's policy requiring such reports must take into account all of 
the relevant facts and circumstances of the employee's situation.
    (k) An employee's decision to invoke FMLA leave under Sec. Sec.  
630.1203(a) or (b) and 630.1204 does not prohibit an agency from 
proceeding with appropriate actions under part 432 or part 752 of this 
chapter.
    (l) An employee who does not comply with the notification 
requirements in Sec.  630.1209 and does not provide medical 
certification signed by the health care provider that includes all of 
the information required in Sec. Sec.  630.1210(b) and 630.1211(b) and 
(c), as applicable, is not entitled to family and medical leave.


Sec.  630.1213  Health benefits.

    An employee enrolled in a health benefits plan under the Federal 
Employees Health Benefits Program (established under chapter 89 of 
title 5, United States Code) who is placed in a leave-without-pay 
status as a result of entitlement to leave under Sec.  630.1203(a) or 
(b) may continue his or her health benefits enrollment while in the 
leave-without-pay status and arrange to pay the appropriate employee 
contributions into the Employees Health Benefits Fund (established 
under section 8909 of title 5, United States Code). The employee must 
make such contributions consistent with 5 CFR 890.502.


Sec.  630.1214  Greater leave entitlements.

    (a) An agency must comply with any collective bargaining agreement 
or any agency employment benefit program or plan that provides greater 
family or medical leave entitlements to employees than those provided 
under this subpart. Nothing in this subpart prevents an agency from 
amending such policies, provided the policies comply with the 
requirements of this subpart.
    (b) The entitlements established for employees under this subpart 
may not be diminished by any collective

[[Page 43082]]

bargaining agreement or any employment benefit program or plan.
    (c) An agency may adopt leave policies more generous than those 
provided in this subpart, except that such policies may not provide 
entitlement to paid time off in an amount greater than that otherwise 
authorized by law or provide sick leave in any situation in which sick 
leave would not normally be allowed by law or regulation.
    (d) The entitlements under sections 6381 through 6387 of title 5, 
United States Code, and this subpart do not modify or affect any 
Federal law prohibiting discrimination. If the entitlements under 
sections 6381 through 6387 of title 5, United States Code, and this 
subpart conflict with any Federal law prohibiting discrimination, an 
agency must comply with whichever statute provides greater entitlements 
to employees.


Sec.  630.1215  Records and reports.

    (a) So that OPM can evaluate the use of family and medical leave by 
Federal employees and provide the Congress and others with information 
about the use of this entitlement, each agency must maintain records on 
employees who take leave under this subpart and submit to OPM such 
records and reports as OPM may require.
    (b) At a minimum, each agency must maintain the following 
information concerning each employee who takes leave under this 
subpart:
    (1) The employee's rate of basic pay, as defined in 5 CFR 550.103;
    (2) The occupational series for the employee's position;
    (3) The number of hours of leave taken under Sec.  630.1203(a) and 
(b), including any paid leave substituted for leave without pay under 
Sec.  630.1208(b); and
    (4) Whether leave was taken--
    (i) Under Sec.  630.1203(a)(1), (2), or (3);
    (ii) Under Sec.  630.1203(a)(4); or
    (iii) Under Sec.  630.1203(b).
    (c) When an employee transfers to a different agency, the losing 
agency must provide the gaining agency with information on leave taken 
under Sec.  630.1203(a) or (b) by the employee during the 12 months 
prior to the date of transfer. The losing agency must provide the 
following information:
    (1) The beginning and ending dates of the employee's 12-month 
period, as determined under Sec.  630.1205(a) or (b); and
    (2) The number of hours of leave taken under Sec.  630.1203(a) or 
(b) during the employee's 12-month period or single 12-month period, 
respectively, as determined under Sec.  630.1205(a) or (b), 
respectively.

[FR Doc. E9-20610 Filed 8-25-09; 8:45 am]
BILLING CODE 6325-39-P