[Federal Register Volume 75, Number 232 (Friday, December 3, 2010)]
[Rules and Regulations]
[Pages 75363-75373]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30371]



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Rules and Regulations
                                                Federal Register
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to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 75, No. 232 / Friday, December 3, 2010 / 
Rules and Regulations

[[Page 75363]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AL91


Absence and Leave; Sick Leave

AGENCY: Office of Personnel Management.

ACTION: Final rule.

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SUMMARY: The U.S. Office of Personnel Management is issuing final 
regulations on the use of sick leave and advanced sick leave for 
serious communicable diseases, including pandemic influenza when 
appropriate. We are also permitting employees to substitute up to 26 
weeks of accrued or accumulated sick leave for unpaid Family and 
Medical Leave Act (FMLA) leave to care for a seriously injured or ill 
covered servicemember, as authorized under the National Defense 
Authorization Act for Fiscal Year 2008, including up to 30 days of 
advanced sick leave for this purpose. Finally, we are reorganizing the 
existing sick leave regulations to enhance reader understanding and 
administration of the program.

DATES: Effective Date: These regulations are effective on January 3, 
2011.

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 final regulations to address: (1) The use of sick 
leave for exposure to a communicable disease, (2) the purposes for and 
limitations on the use of advanced sick leave, and (3) the substitution 
of up to 26 weeks of sick leave for unpaid Family and Medical Leave Act 
(FMLA) leave to care for a seriously injured or ill covered 
servicemember. These changes are incorporated into 5 CFR part 630, 
subpart D.
    Please note that these final regulations are in response to only a 
portion of OPM's proposed regulations (74 FR 43064) issued on August 
26, 2009, to implement section 585(b) of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2008 (Pub. L. 110-181, 
January 28, 2008) that amended the FMLA provisions in 5 U.S.C. 6381-
6383 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 up to a total of 26 
administrative workweeks of unpaid FMLA leave during a single 12-month 
period to care for the covered servicemember. Comments received on the 
portion of the proposed rules at 5 CFR part 630, subpart L, will be 
addressed in a separate publication. The proposed regulations in their 
entirety are available at http://edocket.access.gpo.gov/2009/E9-20610.htm.
    Subsequent to the publication of our proposed regulations issued on 
August 26, 2009, the NDAA for FY 2010 (Pub. L. 111-84, October 28, 
2009) made additional amendments to the FMLA provisions in 5 U.S.C. 
6381-6383. These amendments: (1) Provide a new entitlement to 
qualifying exigency leave for Federal employees covered by OPM's FMLA 
regulations under title II of the FMLA parallel to the entitlement 
provided to employees covered by the Department of Labor's (DOL's) FMLA 
regulations under title I of the FMLA, and (2) expand the coverage for 
the 26-week entitlement for family members to care for a covered 
servicemember undergoing medical treatment, recuperation, or therapy, 
for a serious injury or illness by amending the definitions of 
``covered servicemember'' and ``serious injury or illness.'' 
Incorporating these changes into OPM's FMLA regulations requires 
consultation with the Department of Defense and the Department of 
Veterans Affairs. Since 5 U.S.C. 6387 requires OPM to prescribe 
regulations consistent, to the extent appropriate, with the regulations 
prescribed by the Secretary of Labor to carry out title I of the FMLA, 
it will not be possible for OPM to issue regulations implementing the 
NDAA for FY 2008 and 2010 changes until DOL issues its final FMLA 
regulations implementing the NDAA for FY 2010 FMLA amendments. 
Therefore, we have decided to separate the FMLA portion (subpart L) 
from the sick leave portion (subpart D) of the proposed regulations. 
This will allow OPM to expedite the final sick leave regulations, 
providing agencies and employees with additional flexibilities in 
planning for serious communicable diseases, including pandemic 
influenza when appropriate, by permitting the use of sick leave and 
advanced sick leave if the employee or his or her family member is 
exposed to a serious communicable disease that would jeopardize the 
health of others.
    The 60-day comment period ended on October 26, 2009. A total of 12 
comments were received addressing the changes to the sick leave 
regulations under 5 CFR part 630, subpart D, from five agencies, three 
labor organizations, two professional organizations, and two 
individuals. The overall comments were overwhelmingly positive and 
support the changes recommended to our sick leave regulations. The 
following responds to the comments received on our proposed regulation.

Use of Sick Leave for Exposure to a Communicable Disease

    In our guidance ``Human Resources Flexibilities Available to Assist 
Federal Employees During Emergencies'' (CPM 2009-09, May 5, 2009), OPM 
reminded agencies of the policies and procedures developed in planning 
for a pandemic influenza and provided references to a substantial 
amount of information and advice on human resources (HR) rules and 
flexibilities available on OPM's Web site. See http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2248. During a 
pandemic influenza or other emergency situation, Federal agencies will 
be expected to achieve two equally important goals: (1) Protect the 
Federal workforce, and (2) ensure the continuity of operations. OPM's 
Web site contains significant guidance, developed in consultation with 
the Centers for Disease Control and Prevention (CDC), on keeping the 
Federal workforce healthy during a pandemic influenza by employing 
social distancing interventions (as warranted by the severity of the 
pandemic) such as telework, alternative work schedules, evacuation, and 
various leave flexibilities. In particular, supervisors

[[Page 75364]]

should encourage telework and alternative work schedules to help 
prevent the spread of flu in their workplace during a severe pandemic. 
This will allow employees to continue to work or function while 
limiting contact with others, help maintain continuity of operations, 
and help employees manage their health and their family's needs. Before 
approving a particular leave option, federal supervisors should review 
applicable policies set forth in collective bargaining agreements and 
agency-specific human resource guidance. See http://www.opm.gov/pandemic/. These final regulations provide another tool for agencies to 
use for social distancing purposes that will help protect the Federal 
workforce. The current sick leave regulations allow an employee to use 
sick leave if health authorities or a health care provider determine 
that the employee's presence on the job would jeopardize the health of 
others because of exposure to a communicable disease. The final 
regulations allow an employee to use sick leave to care for a family 
member who has been similarly exposed.
    Two labor organizations, two professional organizations, and one 
individual were very supportive of the proposed change made to this 
portion of the regulations to allow an employee to use sick leave to 
care for a family member who has been exposed to a communicable disease 
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. The two 
professional organizations strongly approved of the positive steps 
taken that make Federal sick leave as flexible as possible to deal with 
the threat of infectious disease. They also supported advancing sick 
leave to employees and allowing employees to use sick leave to care for 
family members who have been exposed to a communicable disease. A labor 
organization noted that these changes will help Federal employees 
protect themselves, their family members, and their co-workers from 
contracting and spreading a serious communicable disease.

Definition of Communicable Disease

    The use of sick leave due to exposure to a communicable disease 
would be limited to circumstances where exposure alone would jeopardize 
the health of others and would only arise in cases of serious 
communicable diseases, such as communicable diseases where Federal 
isolation and quarantine are authorized. Isolation means the separation 
of persons who have a specific infectious illness from those who are 
healthy and the restriction of their movement to stop the spread of 
that illness. Quarantine means the separation and restriction of 
movement of persons who, while not yet ill, have been exposed to an 
infectious agent and therefore may become infectious. As mentioned in 
the supplementary information accompanying the proposed regulations, 
the current consolidated list of communicable diseases for which 
Federal isolation and quarantine are authorized includes (as determined 
by the Secretary of Health and Human Services and published in 
Executive order): 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. (See Executive Order 13295, as amended 
by Executive Order 13375, consistent with 42 U.S.C. 264(b).) This 
provides an illustrative, but not exhaustive, list of the types of 
serious communicable diseases where exposure alone would jeopardize the 
health of others, thereby allowing the use of sick leave for exposure 
to a communicable disease.
    While the list of serious communicable diseases was not included in 
the text of the proposed regulations, OPM requested comments on whether 
additional changes to the regulatory text would help clarify the 
limited cases in which the situation would meet the threshold of 
communicable disease. We received responses from three agencies and two 
professional organizations. Generally, agencies requested that the list 
of communicable diseases provided in the supplementary information 
accompanying the proposed regulations be included in the regulations 
themselves. In contrast however, one labor organization and one 
professional organization did not believe additional regulatory 
language was necessary since the narrowness of the term communicable 
disease is evident from the determination that must be made by the 
health authorities or a health care provider that the employee or 
family member could jeopardize the health of others because of his or 
her exposure to a communicable disease. They believe we should maintain 
flexibility for new and emerging infectious diseases which may not yet 
be on the current list for which Federal isolation and quarantine are 
authorized. The labor organization stated that the proposed language 
would preserve the necessary flexibility to adapt rapidly if new 
communicable diseases emerge.
    While we understand the agencies' request for more information in 
the regulatory text, the CDC list of communicable diseases where 
Federal isolation and quarantine are authorized may be updated as 
vaccinations are developed or when influenza mutates into new strains 
that have the potential to cause a pandemic. The Administrative 
Procedures Act establishes rules for the regulatory process, which 
would mean that, if the list were included in the regulations, OPM 
would not be able to update the list of communicable diseases in a 
timeframe that is useful to our customers. For the reasons listed 
above, OPM is not adding this list to its regulations. As a result, 
when reviewing a request for sick leave for exposure to a communicable 
disease, we strongly encourage agencies to refer to CDC's Web site for 
the current list of communicable diseases for which Federal isolation 
and quarantine are authorized.

Determinations of Communicable Disease--Pandemic Influenza

    Determinations of communicable disease are made by the CDC. While 
influenza that causes or has the potential to cause a pandemic may be 
on the list of serious communicable diseases for which Federal 
isolation and quarantine are authorized, influenza will not 
automatically meet the criteria of a communicable disease for sick 
leave purposes. Influenza that has the potential to cause a pandemic is 
very broad and can encompass many variations of the flu. However, to 
highlight the limited circumstances in which this new sick leave 
provision would apply, pandemic influenza would not meet the threshold 
of a serious communicable disease until the CDC has declared that 
exposure alone is enough to jeopardize the health of others. During a 
potential pandemic influenza, the CDC will assess the risk factors of 
the influenza, provide guidance to health authorities and health care 
providers on pandemic status, and recommend appropriate guidelines to 
prevent the spread of the influenza. OPM will work with the CDC to 
provide agencies and employees with ongoing information regarding the 
impact of the pandemic influenza on the health of the Federal workforce 
and the appropriate use of HR flexibilities to keep employees safe. 
While agencies have the discretion to administer their sick leave 
programs, they should await specific guidance from the appropriate

[[Page 75365]]

officials (e.g., CDC, OPM) to determine whether the use of sick leave 
is appropriate for exposure to a communicable disease. The use of sick 
leave for exposure to a communicable disease should be used only in 
very limited circumstances, and agencies should not grant sick leave 
for this purpose until they receive guidance from the appropriate 
officials.
    For example, for the 2009-2010 H1N1 influenza season, the CDC has 
provided ongoing guidance designed to prevent the spread of the 
influenza in the workplace. Because there was no determination that 
exposure alone would jeopardize the health of others, the CDC advised 
that an employee could continue to go to work if a member of the 
employee's household had contracted 2009-2010 H1N1 influenza. OPM also 
issued workplace guidance entitled ``Pandemic Influenza 2009: 
Additional Guidance'' (CPM 2009-14, July 31, 2009) and collaborated 
with the CDC in issuing ``Preparing for the Flu--A Communication 
Toolkit for the Federal Workforce.'' See documents at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2452 
and http://www.flu.gov/professional/federal/workplace/federal 
toolkit.pdf, respectively. Following CDC guidance that exposure to 
2009-2010 H1N1 influenza would not jeopardize the health of others, 
agencies should not have granted any employee exposed to H1N1 influenza 
sick leave for exposure to communicable disease. Should an influenza 
become more serious and require quarantine of exposed individuals, the 
CDC would issue guidance on the procedures to be followed. Based on 
that information, OPM would issue appropriate guidance to keep Federal 
employees safe while maintaining continuity of operations.

Determinations of Communicable Disease--Non-Pandemic

    For examples of non-pandemic diseases that automatically meet the 
criteria of a serious communicable disease for sick leave purposes, 
agencies should refer to the CDC list of communicable diseases for 
which Federal isolation and quarantine are authorized. Excluding 
influenza that causes or has the potential to cause pandemic, for the 
reasons cited previously, the CDC has already determined that an 
individual's exposure to any of the other listed diseases would 
jeopardize the health of others. A health authority or health care 
provider can then advise that an employee or his or her family member 
has been exposed to a communicable disease that would jeopardize the 
health of others. If the disease is not on the CDC list of communicable 
diseases for which Federal isolation and quarantine are authorized, and 
a health authority or health care provider has concerns that an 
employee's or employee's family member has been exposed to a 
communicable disease that could jeopardize the health of others at the 
workplace or in the community, the health authority or health care 
provider should contact CDC for evaluation of the risk factors and 
further recommendations.

Health Authority or Health Care Provider

    One agency asked OPM to emphasize that a relevant health authority 
or health care provider must make a determination that the family 
member's presence in the community could put others' health at risk. We 
believe the proposed regulations at 5 CFR 630.401(a)(3)(iii) stating 
that sick leave is authorized when an employee ``provides care for a 
family member * * * (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'' already 
addressed this issue. Therefore, we are making no changes in the final 
regulations.
    Another agency asked for a definition of ``health authorities.'' We 
do not believe adding a definition of health authorities to the 
regulations would be helpful. Communicable diseases can cover 
widespread geographic areas, but may also be localized in scattered 
outbreaks. The health authorities having jurisdiction may be different, 
depending on the area affected by the communicable disease. Guidance on 
a widespread communicable disease would be issued by the CDC. Scattered 
outbreaks of a communicable disease would be handled by Federal, State 
or local health authorities.

Requirement for Medical Documentation

    One agency and one professional organization questioned the type of 
medical certification required to support a request for sick leave due 
to exposure to communicable disease, if any. Another agency asked if 
exposure to a communicable disease is to be treated as a serious health 
condition for purposes of medical documentation requirements. Another 
agency asked whether ``one's personal physician stating the person is 
contagious'' is all that is required to grant sick leave to care for a 
family member who has been exposed to a communicable disease.
    In a memorandum to Chief Human Capital Officers on January 29, 
2010, (CPM-2010-02) at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalId=2831, OPM noted that if influenza 
becomes widespread in a given geographic area, the demands on medical 
providers and facilities would be great, and employees may have 
difficulty obtaining timely documentation to support their requests for 
use of sick leave. If that occurs, agencies should consider relaxing 
sick leave documentation requirements. OPM's regulations do not require 
medical certification when granting sick leave. See Sec.  630.403 of 
the current regulations (redesignated as Sec.  630.405 in these final 
regulations). Agencies have both the flexibility and the specific 
authority to administer their programs as circumstances dictate. 
Accordingly, OPM recommends relaxing any agency-imposed medical 
certification requirements for sickness or exposure to influenza during 
a pandemic influenza, and an employee should not be required to seek 
medical examination for the purpose of obtaining medical documentation 
for sick leave--agencies should monitor official announcements by 
Federal, State, or local public health authorities, and/or tribal 
governments related to exposure to pandemic influenza. OPM does 
recognize, however, that medical certification may remain necessary for 
employees on leave restriction. For exposure to a communicable disease 
other than pandemic influenza, agencies may follow their established 
sick leave policies.
    One professional organization recommended that, during an outbreak 
of pandemic influenza or other communicable disease, agencies should be 
able to verify employees' conditions through call centers or other 
contingent operations that may be developed during a severe pandemic. 
OPM would consider this an acceptable form of communication that could 
be adopted by agencies.

Requirement To Actively Provide Care for Family Member

    One labor organization questioned OPM's intent in specifying that 
an employee must be actively providing care for a family member when 
taking sick leave to care for a family member who has been exposed to a 
communicable disease. The organization wanted to know whether OPM 
intended to require that an

[[Page 75366]]

employee be the sole provider of care. In the example we cited in the 
Supplementary Information that accompanied the proposed regulations, 
the employee is providing care for a minor child who is not exhibiting 
any symptoms, but 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 others because of 
the child's exposure to that communicable disease. Since the employee 
would not be providing care for a sick family member, but one who is 
asymptomatic, the employee may request sick leave only if the exposed 
family member could not otherwise care for himself or herself (e.g., a 
minor child, or elderly relative). Although the employee does not need 
to be the sole provider of care, the employee must be providing care 
actively to the family member in order to invoke sick leave to care for 
the family member exposed to a communicable disease. In contrast, it 
would not be appropriate for the employee to invoke sick leave to care 
for an able-bodied spouse who has been exposed to a communicable 
disease, but is not exhibiting any symptoms, since the employee would 
not need to provide care actively to the spouse. If the exposed family 
member contracts the communicable disease and becomes ill, the employee 
is entitled to use up to 13 days of sick leave for general family care 
or up to 12 weeks for care of a family member with a serious health 
condition, depending on the severity of the illness.

Definition of Family Member

    OPM received two requests to expand the definition of family member 
used for sick leave purposes. One labor organization mentioned that 
family units have evolved in modern times. A professional organization 
requested the inclusion of a primary guardian. Although these requests 
are outside the scope of these regulatory changes, we note that since 
the publication of these proposed regulations, the definition of family 
member for sick leave purposes found at Sec.  630.201 has been 
expanded. On June 14, 2010, OPM issued final regulations (75 FR 33491) 
amending the definition of family member for sick leave purposes to now 
cover grandparents and grandchildren, same-sex and opposite domestic 
partners, step parents, step children, foster, guardianship, and other 
relationships. The final regulations are available at http://www.gpo.gov/fdsys/pkg/FR-2010-06-14/pdf/2010-14252.pdf.

Employee's Return to Work

    One agency asked if an employee who has been exposed to a 
communicable disease will have to provide a release from a health care 
provider declaring the employee is healthy enough to return to work. 
Agencies cannot require a medical release form from the employee's 
physician unless the employee's position has specific medical standards 
or physical requirements, or unless it is covered by a medical 
evaluation program under Sec.  339.301(b)(3). Most positions do not 
have established physical or medical requirements. If the employee's 
position requires a medical examination and the employee refuses the 
exam, he or she may be disciplined, up to and including removal from 
Federal service. However, since the current regulations at Sec.  
630.403(a) (redesignated as Sec.  630.405(a) in these final 
regulations) provide that an agency may request administratively 
acceptable documentation to support an employee's request for sick 
leave, even for an employee whose position does not have an established 
physical or medical requirement, an agency could ask that the 
documentation include a date on which the employee's presence on the 
job would no longer jeopardize the health of others, i.e., the date on 
which the employee would be considered no longer contagious. Similar 
documentation could be required to support an employee's use of sick 
leave to care for a family member who has been exposed to a 
communicable disease showing the date on which the family member's 
presence in the community would no longer jeopardize the health of 
others.

Request for Additional Sick Leave for Communicable Disease

    One individual, who supports the new rule, would like the Federal 
Government to provide up to 40 hours of additional paid sick leave to 
employees with ``serious infectious illnesses.'' The commenter argues 
this new category of sick leave would be particularly helpful to 
employees who have no sick leave due to prior serious illness or 
maternity leave. This request is outside the scope of OPM's regulatory 
authority. A statutory change would be required to create such a new 
entitlement. However, under current authorities, employees without sick 
leave may invoke their FMLA entitlement (a serious infectious illness 
would likely qualify as a serious health condition) and may be granted 
annual leave, advanced sick leave, advanced annual leave, or leave 
without pay. If they have exhausted their available paid leave, they 
could request donated leave under the voluntary leave transfer and/or 
leave bank programs.

Federal Contractors

    Two professional organizations would like OPM to require that all 
Federal contractors be provided sick leave during public health 
emergencies. One of the organizations noted that OPM's proposed rules 
are intended to protect Federal workers, maintain continuity of 
operations, and minimize the cost and risk from an infectious disease 
outbreak, and that the same goals are true for contractors assigned to 
work in Federal agencies. The other stated that the public health and 
the health of Federal workers will not be protected by the proposed 
regulatory changes if the contract worker in the cubicle next to the 
Federal employee lacks paid sick time and is either forced to come to 
work sick or is forced to send a sick child to school. The professional 
organization further stated that, since the Federal Government 
contracts with outside businesses to run daycare centers in Federal 
Government buildings, workers at these centers should have access to 
paid sick time as Federal employees do--otherwise the health of the 
children in these centers may suffer. Dictating pay and leave policies 
for Federal contractors is outside the scope of OPM's authority. As 
contractors are increasingly relied upon to perform many essential 
functions of some agencies, agencies are encouraged to contact their 
acquisition professionals for advice and guidance on dealing with human 
resources management issues associated with contractors and contract 
workers.

Privacy Concerns

    One labor organization requested that OPM consider the privacy of 
employees and the role of confidentiality in medical procedures for 
H1N1 influenza. OPM has always held that agencies must maintain strict 
privacy controls in handling medical certification for H1N1 influenza 
or any other sick leave request. Requirements for confidentiality of 
medical records are addressed through the Health Insurance Portability 
and Accountability Act of 1996 (HIPAA) Privacy Rule, at 45 CFR part 160 
and subparts A and E of part 164, and are not addressed in the sick 
leave regulations.

School Closures

    One professional organization would like to allow the use of 
accrued or advanced sick leave by an employee whose child's school is 
closed due to

[[Page 75367]]

communicable disease even when the child has not been exposed to the 
disease. OPM disagrees. There is no authority that would permit an 
employee to use sick leave to care for a child who is healthy or is 
kept at home to prevent exposure to a communicable disease. Leave 
requests due to school closures should be handled the way they would in 
non-pandemic influenza situations.
    The fact that schools have closed due to a pandemic influenza or 
other serious communicable disease should not be the sole factor in 
determining the type of leave an employee may use. For example, when 
the school is closed and--
     The child is healthy and has not been exposed to a 
communicable disease, the employee may not take sick leave.
     The child has been exposed to a communicable disease but 
is not sick, the final regulations allow the employee to take up to 13 
days of sick leave only if it has been determined that the child's 
presence in the community would jeopardize the health of others.
     The child is sick, due to a communicable disease or 
otherwise, the employee may use up to 13 days of sick leave to care for 
that child. If the child's illness rises to the level of a serious 
health condition, the employee may use up to 12 weeks of sick leave and 
may also invoke FMLA, which would provide up to an additional 12 weeks 
of unpaid leave (with substitution of annual or sick leave, according 
to the appropriate regulations).
    In summary, an employee is not necessarily entitled to use sick 
leave just because the child's school has been closed to prevent 
exposure to a communicable disease (a commonly-used tool for social 
distancing) or for sanitation of the school building. In order for the 
employee to qualify to use sick leave to care for that child, there 
must be a determination that the child's exposure to the communicable 
disease would jeopardize the health of others. The Federal Government 
has other workplace flexibilities to assist an employee in situations 
where sick leave is not appropriate, including use of annual leave, 
telework, alternative work schedules, compensatory time off, advanced 
annual leave, or leave without pay.

Contracting a Communicable Disease at Work

    One professional organization expressed concern that Federal 
employees who acquire a communicable disease during the course of their 
work should not be required to use their own leave for their recovery 
and requested that OPM provide this flexibility and communicate this to 
Federal health care workers. They cited the hypothetical example of an 
employee of a Veterans Affairs hospital or of a workplace-based clinic 
who might become ill as a result of exposure to a patient or employee 
with the H1N1 virus. A new leave flexibility is not appropriate because 
a provision already exists for this situation. If an employee believes 
his or her illness resulted from a work-related incident, the employee 
can file a workers' compensation claim. Workers' compensation claims 
are administered by the U.S. Department of Labor, and each claim will 
be judged on its own merit.

Opposition to Provision of Additional Leave

    One individual stated he was opposed to giving Federal employees 
additional leave, thereby expanding their benefits. The individual 
believed that, in addition to employees' existing leave benefits, OPM 
was proposing to ``pay Federal employees for 30 days of sick time and 
also advance them 30 days if they get the flu.'' We can assure the 
commenter that these regulations provide no additional paid leave; they 
merely explain the circumstances under which employees can use their 
own accumulated and accrued sick leave. If an employee is advanced sick 
leave for any purpose cited in the regulations, it must be repaid. If 
the employee separates from Federal service with a negative leave 
balance, he or she will be required to refund the amount of 
indebtedness in accordance with Sec.  630.209.

Advanced Sick Leave

    Advanced sick leave is not an entitlement, but may be granted at 
the agency's discretion. In many cases, it may not have been an 
agency's practice to provide advanced sick leave for some of the 
purposes stated in the final regulations. These final regulations are 
intended to provide consistency throughout agencies as to the purposes 
and limitations of advanced sick leave. Overall, many commenters were 
supportive of the proposed changes made to this portion of the 
regulations that outline the amount of sick leave that may be advanced 
for various purposes. One labor organization strongly supported stating 
the amount of sick leave that may be advanced for various 
circumstances, especially welcoming the use of advanced sick leave to 
provide general care for a family member or to make arrangements 
necessitated by the death of a family member, or to attend the funeral 
of a family member. Another labor organization noted that the proposed 
changes would help minimize situations where employees without 
available sick leave had to exhaust their annual leave balances or were 
forced to choose between coming to work sick or facing economic 
uncertainty. One agency approved of the reorganization of the 
regulatory text and specifically mentioned that the creation of the new 
section on advancing sick leave (redesignated ``Advanced Sick Leave'' 
in these final regulations) makes it easier to find this information in 
the regulations.
    OPM did receive a few objections on both sides of the spectrum--
some commenters objected to expanding the purposes for which advanced 
sick leave may be used, and some objected to limiting them. Two 
agencies opposed allowing any advanced sick leave unless the employee 
had a serious disability or ailment as stated in 5 U.S.C. 6307(d). They 
also questioned both OPM's interpretation of the law and our 
longstanding practice of permitting up to 13 days of advanced sick 
leave for general family care and bereavement purposes. The two 
agencies do not currently authorize advanced sick leave for these 
purposes. Another agency objected to placing any limitation on the 
amount of sick leave that may be advanced to an employee for his or her 
own medical, dental, or optical examination or treatment.

OPM's Authority To Regulate Advanced Sick Leave

    Two agencies opposed allowing advanced sick leave unless the 
employee had a serious disability or ailment, and questioned whether 
permitting use of up to 13 days of advanced sick leave for general 
family care and bereavement purposes is permitted under the law. 
Section 6311 gives OPM the authority to prescribe regulations necessary 
for the administration of annual and sick leave programs, and OPM has 
the authority to regulate and provide guidelines on when it is 
appropriate to advance sick leave in accordance with 5 U.S.C. 6311. OPM 
has used its regulatory authority to administer the sick leave 
provisions on many occasions to define appropriate purposes and 
limitations for the use of sick leave (e.g., establishing 12 weeks of 
sick leave to care for a family member with a serious health condition, 
establishing 13 days of sick leave for general family care and 
bereavement, and permitting an agency to advance sick leave for general 
family care and bereavement). Enacted in 1994, the

[[Page 75368]]

Federal Employees Family Friendly Leave Act (Pub. L. 103-388, October 
22, 1994) (FEFFLA) amended the law to provide for a 3-year trial period 
to expand the purposes for which sick leave may be used by an employee, 
and these purposes included family care and bereavement. The provisions 
of the FEFFLA expired on December 21, 1997. However, OPM used its broad 
regulatory authority under 5 U.S.C. 6311 to prescribe regulations 
permitting agencies to provide sick leave for the purposes of general 
family care and bereavement, and those regulations continued to be in 
effect after expiration of the FEFFLA. (See the memorandum to Directors 
of Personnel, CPM 97-13, on the ``Use of Sick Leave for Family Care or 
Bereavement Purposes'' at http://www.opm.gov/oca/compmemo/1997_1996/cpm97-13.asp). Thus, OPM used its permanent regulatory authority to 
issue regulations to permit an employee to use sick leave to make 
arrangements for or attend the funeral of a family member. The scope of 
OPM's regulatory authority also encompasses advancement of sick leave 
for these purposes.
    We further note that this authority was also discussed in OPM's 
August 17, 2006, final sick leave regulations removing the requirement 
that an employee maintain an 80-hour sick leave balance in order to use 
the maximum amount of sick leave for general family care and 
bereavement purposes. (See 71 FR 47694, August 17, 2006.) In the 
supplementary information accompanying that final rule, OPM addressed 
an agency's request for information on the amounts of sick leave an 
agency may advance to an employee for general family care and 
bereavement purposes or to provide care for a family member with a 
serious health condition. In response, we added Sec.  630.401(f) to 
clarify that an agency may advance a maximum of 30 days of sick leave 
when required by the exigencies of the situation for a serious 
disability or ailment of the employee or a family member or for 
purposes related to the adoption of a child. While our intent to allow 
an agency also to advance sick leave for general family care and 
bereavement purposes was expressed in the supplementary information 
accompanying those final regulations, the change was not reflected in 
the regulatory text. We are therefore addressing that oversight in 
these regulations.
    One agency believed it is too generous to allow up to 104 hours (13 
days) of advanced sick leave for an employee's own medical, dental or 
optical examination or treatment; to care for an incapacitated family 
member or a family member receiving medical, dental or optical 
examination or treatment; to care for a family member exposed to a 
communicable disease; or to make arrangements necessitated by the death 
of a family member or to attend the funeral of a family member. The 
agency challenged OPM's rationale that allowing up to 104 hours of 
advanced sick leave for general family care and bereavement purposes 
``reinstates a longstanding practice,'' saying this has not been the 
practice at that agency. OPM reasserts that the final regulations are 
consistent with OPM's broad authority to regulate and provide 
guidelines on when it is appropriate to advance sick leave in 
accordance with 5 U.S.C. 6311. Within the guidelines established by 
OPM, an agency has the discretion to grant advanced sick leave. An 
agency is not required to grant advanced sick leave for general family 
care and bereavement or any other purpose under Sec.  630.402 of this 
final rule, but is provided this flexibility to use for new employees 
and employees who have experienced personal hardships.

104-Hour Limitation on Advanced Sick Leave

    One agency objected to placing any limitation on the amount of sick 
leave that may be advanced to an employee for his or her own medical, 
dental, or optical examination or treatment. The agency pointed out 
that the current regulations do not limit the amount of sick leave that 
an employee may use for his or her own medical, dental, or optical 
examination or treatment, and that it has been a longstanding practice 
that the amount of sick leave that could be advanced for these purposes 
was left to the discretion of the agency. The agency was concerned that 
limiting the amount of advanced sick leave for an employee's own 
medical, dental, or optical examination or treatment to 104 hours may 
have an adverse impact on a new employee, an employee with a chronic 
medical condition, or an employee experiencing a medical emergency that 
would require ongoing medical treatment.
    While we agree that the amount of sick leave an agency may advance 
is within the discretion of the agency, we disagree that an agency 
should authorize more than 104 hours for an employee's routine medical 
care or appointments that are not related to a serious health 
condition. A full-time employee accrues 13 days of sick leave (104 
hours) during the leave year. We believe that this is a sufficient 
amount of leave both for the employee's own medical, dental, or optical 
examination or treatment and for providing general care for a family 
member. If the employee needs more than 104 hours of advanced sick 
leave because a condition requires treatment beyond routine care, the 
agency may grant up to a maximum of 240 hours of advanced sick leave 
for a serious health condition.
    For example, an agency may authorize up to 13 days of advanced sick 
leave for an employee to actively provide care for a family member 
exposed to a communicable disease that may jeopardize the health of 
others. If the family member contracts the communicable disease and the 
employee requires more paid time off, the agency has the discretion to 
advance additional sick leave (up to 240 hours) for the employee to 
care for a family member with a serious health condition. Another 
example would be an employee who goes for routine dental examination 
and, as a result, is required to undergo extensive dental work that 
extends beyond the 13 days authorized for an employee's own dental 
examination or treatment. Because the employee experiences 
complications beyond routine care, likely rising to the level of a 
serious health condition, the agency may provide the employee with 
additional advanced sick leave of up to 240 hours because of 
incapacitation due to physical illness or because of the employee's own 
serious health condition.

Negative Leave Balance at Time of Separation

    One agency believed that advanced sick leave would essentially 
provide an additional sick leave benefit, without any restrictions or 
limits for paying the leave back, other than not exceeding a negative 
240-hour leave balance at any given time. To avoid having an employee 
separate from Federal service with a negative leave balance, 
supervisors must use their judgment in reviewing a request for advanced 
sick leave and may deny the request if not supported by 
administratively acceptable evidence or if the employee is unlikely to 
return to Federal service. Advanced sick leave is not an employee 
entitlement and is not a substitute for temporary or permanent 
disability retirement. An employee who has a medical emergency and has 
exhausted his or her available paid leave can also apply for donated 
annual leave under the voluntary leave transfer and/or leave bank 
programs. The donated annual leave can help an employee liquidate any 
indebtedness of advanced annual or sick leave prior to separation from 
Federal service.

[[Page 75369]]

Medical Documentation for Advanced Sick Leave

    One agency and one professional organization commented that there 
is no mention of medical documentation requirements for advanced sick 
leave. A request for advanced sick leave is essentially a request for 
sick leave, therefore, the medical documentation standards for granting 
of sick leave at current Sec.  630.403 (redesignated as Sec.  630.405 
in these final regulations) apply. We are not making changes in the 
final regulations.
    One labor organization mentioned that the regulations at Sec.  
630.401(a)(3)(i) and (ii) provide two circumstances under which 
advanced sick leave may be granted to care for a family member who is 
sick (the first for a family member incapacitated by a medical or 
mental condition, and the second for a family member with a serious 
health condition), but the amount of advanced sick leave authorized is 
different in the two cases. The organization suggested that the 
difference between the two cases should be made clearer and that the 
ending phrase should read, ``with a serious health condition as defined 
in Sec.  630.1202.'' Such a reference is not necessary, since serious 
health condition is already defined at Sec.  630.201 and refers to the 
definition in Sec.  630.1202.

Recourse for Denial of Advanced Sick Leave

    One professional organization requested an expedited mechanism for 
challenging the denial of advanced sick leave to care for a family 
member who has been exposed to or has contracted a communicable disease 
and that the employee should be allowed to use sick leave pending the 
outcome of the review. This process is handled through an agency's 
internal grievance procedures and is beyond the scope of our 
regulations. It is also important to remember that, although use of 
sick leave is an entitlement, by law, the advancement of sick leave is 
always at the discretion of the agency.

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

    This portion of the final regulations is in response to the portion 
of OPM's proposed regulations (74 FR 43064) issued on August 26, 2009, 
to implement section 585(b) of the NDAA for FY 2008 (Pub. L. 110-181, 
January 28, 2008). That law permits the substitution of up to 26 weeks 
of sick leave during a single 12-month period when an employee invokes 
the FMLA to provide care for a spouse, son, daughter, parent, or next 
of kin who is a covered servicemember with a serious injury or illness. 
See 5 U.S.C. 6382(d). Since the NDAA for FY 2008 went into effect on 
the date of enactment, and since nothing in section 565(b) of the NDAA 
for FY 2010, which also amends parts of the FMLA for Federal employees, 
changes the provisions regarding substitution of annual or sick leave 
for unpaid FMLA leave, we believe it is useful for OPM to address this 
portion of the NDAA for FY 2008 in these final regulations. Additional 
guidance on the NDAAs for FY 2008 and FY 2010 can be found on OPM's Web 
site in CPM 2008-04, February 1, 2008, at http://www.opm.gov/oca/compmemo/2008/2008-04.asp, CPM 2009-26, December 29, 2009, at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2703, 
and CPM 2010-06 at http://www.chcoc.gov/Transmittals/TransmittalDetails.aspx?TransmittalID=2884.

Interaction Between the Sick Leave and FMLA Entitlements

    In the comments received on the proposed regulations, one agency 
asked how sick leave which is substituted for unpaid FMLA leave to care 
for a covered servicemember will be categorized. The agency asked 
whether such leave will be considered regular sick leave or family-
friendly sick leave (13 days of sick leave for general family care and 
bereavement or 12 weeks of sick leave for care of a family member with 
a serious health condition) and, if considered family-friendly sick 
leave, how an employee's use of the 26 administrative workweeks of sick 
leave is affected by the limitations on family-friendly sick leave for 
general purposes or serious health conditions. The statutes authorizing 
the two entitlements are quite complex, and the response below is 
accordingly quite detailed in order to give agencies and employees as 
much guidance as practicable in administering and using the various 
paid and unpaid leave entitlements for treatment of illnesses or 
injuries of employees and the individuals for whom they may provide 
care.
    Sick leave and FMLA leave are authorized under two separate sets of 
statutes, each with different entitlements and conditions, such as the 
categories of individuals for whom an employee may take leave to care, 
number of hours or weeks of leave allowed, and the rules on the 
substitution of paid leave for unpaid leave. An employee is entitled to 
use 13 days (104 hours) of sick leave for general family care and 
bereavement in accordance with Sec.  630.401(a)(3)(i) and (4), and 12 
weeks of sick leave to care for a family member with a serious health 
condition in accordance with Sec.  630.401(a)(3)(ii). The basic 12-week 
FMLA entitlement to care for a family member with a serious health 
condition is found at 5 U.S.C. 6382(a)(1)(C) and Sec.  630.1203(a)(3), 
and the 26-week FMLA entitlement to care for a covered servicemember is 
found at 5 U.S.C. 6382(a)(3).
    Table 1 outlines the various sick leave and FMLA flexibilities 
available to an employee for purposes of caring for a family member 
and/or for a covered servicemember. To know which leave options are 
available, an employee must first determine the type of leave to which 
he or she is entitled based on the person for whom the leave is being 
taken. Table 1 provides useful information to help agencies and/or 
employees determine appropriate leave options.

[[Page 75370]]



 Table 1--Leave Flexibilities Available To Care for a Family Member and/
                       or a Covered Servicemember
------------------------------------------------------------------------
                                                    Individuals for whom
         Entitlement           Amount and purpose    leave may be taken
------------------------------------------------------------------------
Sick Leave for General        13 days (104 hours)   May be taken for a
 Family Care and Bereavement   to:                   family member.*
 (5 CFR 630.401(a)(3)(i) and   Provide       ``Family member''
 (4)).                         care for a family     means the following
                               member who is         relatives of the
                               incapacitated by a    employee:
                               medical or mental    (1) Spouse, and
                               condition;.           parents thereof;
                               Attend to a  (2) Sons and
                               family member         daughters, and
                               receiving medical,    spouses thereof;
                               dental, or optical   (3) Parents, and
                               examination or        spouses thereof;
                               treatment; or.       (4) Brothers and
                               Make          sisters, and
                               arrangements          spouses thereof;
                               necessitated by the  (5) Grandparents and
                               death of a family     grandchildren, and
                               member or attend      spouses thereof;
                               the funeral of a     (6) Domestic partner
                               family member..       and parents
                                                     thereof, including
                                                     domestic partners
                                                     of any individual
                                                     in paragraphs (2)
                                                     through (5) of this
                                                     definition; and
                                                    (7) Any individual
                                                     related by blood or
                                                     affinity whose
                                                     close association
                                                     with the employee
                                                     is the equivalent
                                                     of a family
                                                     relationship.
Sick Leave for Serious        12 weeks (480 hours)  * See definition of
 Health Condition of Family    to care for a         family member at 5
 Member (5 CFR                 family member with    CFR 630.201(b) in
 630.401(a)(3)(ii)).           a serious health      the final
                               condition.            regulations on
                                                     Definitions of
                                                     Family Member,
                                                     Immediate Relative,
                                                     and Related Terms
                                                     (75 FR 33491, June
                                                     14, 2010), at http://www.gpo.gov/fdsys/pkg/FR-2010-06-14/pdf/2010-14252.pdf).
------------------------------------------------------------------------
Advanced Sick Leave (5        Up to 30 days (240
 U.S.C. 6307(d)).              hours) of paid sick
                               leave to care for a
                               family member with
                               a serious
                               disability or
                               ailment. (Agency
                               discretion.)
FMLA (Basic) to care for      12 weeks (480 hours)  For the care of a
 spouse, son, daughter, or     of unpaid leave       spouse, son,
 parent with a serious         during any 12-month   daughter, or parent
 health condition (5 U.S.C.    period to care for    of the employee, if
 6382(a)(1)(C) and 5 CFR       a spouse, son,        such spouse, son,
 630.1203(a)(3)).              daughter, or parent   daughter, or parent
                               with a serious        has a serious
                               health condition.     health condition.
                                                    (Note: Son or
                                                     daughter must be
                                                     under 18, or over
                                                     18 but incapable of
                                                     self-care because
                                                     of a mental or
                                                     physical
                                                     disability.)
 
                                                    (See 5 CFR
                                                     630.1203(a)(3) and
                                                     630.1202).
------------------------------------------------------------------------
FMLA to care for a covered    26 weeks (1,040       Available to an
 servicemember (5 U.S.C.       hours) of unpaid      employee who is the
 6382(a)(3)).                  leave during a        spouse, son,
                               single 12-month       daughter, parent,
                               period to care for    or next of kin of a
                               a covered             covered
                               servicemember with    servicemember. Next
                               a serious injury or   of kin means the
                               illness.              nearest blood
                                                     relative of that
                                                     individual.
------------------------------------------------------------------------
Explanatory Information:
 
1. Leave To Care for Different Individuals Varies by Entitlement:
 
    An employee may take leave to care for different individuals,
     depending on the applicable entitlement. For example, the
     definition of family member under the sick leave regulations is
     very broad and includes many more categories of individuals than
     the nuclear family. In contrast, the FMLA statute and regulations
     do not use the term ``family member'' at all; rather they specify
     specific individuals for whose care an employee may take FMLA
     leave. The individuals for whom an employee may take FMLA leave to
     provide care are slightly different depending on whether the leave
     is the basic 12-week entitlement for the eligible relatives shown
     in the second-to-last entry above, or the 26-week entitlement to
     care for a covered servicemember, as shown in the last entry above..
 
2. Sick Leave:
 
    Under 5 U.S.C. 6307, an employee accrues 4 hours of paid sick leave
     per full biweekly pay period that may be accumulated without
     limitation. An employee has an entitlement to use his or her
     accumulated sick leave for self, family care or bereavement, and
     care of a family member with a serious health condition. No more
     than a combined total of 12 weeks of sick leave may be used by a
     full-time employee on a regular tour of duty for general family
     care, bereavement, or care of a family member with a serious health
     condition within a leave year. See 5 CFR 630.401(c). Because sick
     leave is a separate entitlement, an employee does not need to
     invoke FMLA to use the sick leave entitlement for general family
     care. Under 5 U.S.C. 6307(d), sick leave may be advanced up to 30
     days for a serious disability or ailment, including for care of a
     family member with a serious disability or ailment. The advancement
     of sick leave is at the agency's sole discretion, based upon the
     exigencies of the situation..
 
3. Basic FMLA Leave (12 Weeks of Unpaid Leave):
 

[[Page 75371]]

 
    The Family and Medical Leave Act (FMLA) provisions are found at 5
     U.S.C. 6381-6387 and provide a total of either 12 or 26 weeks of
     unpaid leave, as well as permit an employee to elect to substitute
     annual leave and/or sick leave, as appropriate, for the unpaid
     leave. Under the 12-week basic FMLA entitlement (for the birth of a
     son or daughter of the employee and in order to care for such son
     or daughter; for the placement of a son or daughter with the
     employee for adoption or foster care; for the employee to care for
     his or her spouse, son, daughter, or parent with a serious health
     condition; for a serious health condition that makes the employee
     unable to perform the functions of his or her position; for a
     qualifying exigency arising out of the fact that the spouse, son,
     daughter, or parent of the employee is on covered active duty or
     has been notified of an impending call or order to covered active
     duty in the Armed Forces), an employee can substitute annual or
     sick leave consistent with the laws and regulations for using
     annual and sick leave. Therefore, the employee can substitute only
     as much accumulated and accrued sick leave so that the cumulative
     amount of sick leave usage does not exceed 12 weeks of sick leave
     in a leave year..
 
4. FMLA Leave To Care for a Covered Servicemember (26 Weeks of Unpaid
 Leave):
 
    In contrast to basic FMLA leave, there are no limitations on the
     amount of sick leave that may be substituted for unpaid FMLA leave
     to care for a covered servicemember, since the FMLA statute at 5
     U.S.C. 6382(d) states that an employee may 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. Since the statute
     provides the authority to substitute any of the employee's accrued
     or accumulated sick leave for any part of the 26-week period of
     unpaid FMLA leave, there are no limits to the amount of sick leave
     that can be substituted for unpaid FMLA leave to care for a covered
     servicemember..
------------------------------------------------------------------------

Examples of the Interaction Between Sick Leave and FMLA Leave

    Example I: Interaction of 13 Days of Sick Leave for General Family 
Care and 12 Weeks of Sick Leave for a Serious Health Condition. Under 
the authority for sick leave in Sec. Sec.  630.401(a)(3)(i), 
630.401(a)(4), and 630.401(b), an employee can use 13 days of sick 
leave each leave year for general family care or bereavement. Under 
Sec.  630.401(a)(3)(ii) and (c), most Federal employees may use a total 
of up to 12 administrative workweeks of sick leave each leave year to 
care for a family member with a serious health condition. Under Sec.  
630.401(d), if an employee previously has used any portion of the 13 
days of sick leave for general family care or bereavement purposes in a 
leave year, that amount must be subtracted from the 12-week 
entitlement. If an employee has already used 12 weeks of sick leave to 
care for a family member with a serious health condition, he or she 
cannot use an additional 13 days in the same leave year for general 
family care or bereavement.
    Example II: Interaction of Sick Leave With Basic FMLA Leave. As 
referenced above, sick leave and FMLA are two separate entitlements. An 
employee has an entitlement to use his or her accrued and accumulated 
sick leave in addition to invoking FMLA. For example, if an employee 
takes 12 weeks of sick leave to care for a parent with a serious health 
condition and then invokes FMLA, the employee has exhausted his 
entitlement to sick leave to care for a family member with a serious 
health condition and cannot substitute any sick leave (but may 
substitute annual leave) for the 12 weeks of unpaid leave under FMLA. 
In summary, the employee providing care for a family member is eligible 
to use a total of 12 weeks of sick leave and then 12 weeks of unpaid 
leave under FMLA, and may substitute any annual leave for the unpaid 
FMLA leave.
    Example III: Interaction of Sick Leave With FMLA Leave To Care for 
a Covered Servicemember. In contrast to the amount of sick leave which 
may be substituted for unpaid FMLA leave for the 12-week basic FMLA 
entitlement, the legislation that authorized the 26 weeks of FMLA leave 
to care for a covered servicemember includes different provisions 
regarding the amount of paid leave which can be substituted for unpaid 
FMLA leave. Under 5 U.S.C. 6382(d), an employee may 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. There are no limitations on the substitution of sick 
leave as there are for basic FMLA leave. For example, an employee can 
use 12 weeks of sick leave to care for her son who has been injured in 
combat and then invoke FMLA leave to care for a covered servicemember 
and substitute another 26 weeks of sick leave for unpaid FMLA leave. 
The employee may also substitute annual leave, or request donated 
annual leave, advanced sick leave or advanced annual leave. In summary, 
an eligible employee who has the accumulated leave and meets the 
entitlement requirements for sick leave and FMLA leave to care for the 
covered servicemember can potentially take leave for up to 38 weeks (12 
weeks of sick leave to care for a family member with a serious health 
condition and 26 weeks of leave to care for a covered servicemember).
    Example IV: Interaction of Basic FMLA Leave and FMLA Leave To Care 
for a Covered Servicemember. In our proposed changes to 5 CFR part 630, 
subpart L (74 FR at 43069, August 26, 2009), we clarified in proposed 
Sec.  630.1205(b)(1), consistent with DOL regulations, that any leave 
used under an employee's 12-week basic 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 leave for the birth of her child. On April 17, 2008, in her 
8th week of FMLA leave, she receives word that her husband was 
seriously injured in the line of duty while on active duty. On April 
18, 2008, the employee invokes her entitlement to 26 weeks of FMLA 
leave to care for a covered servicemember to care for her husband. She 
is entitled to use up to 26 weeks of FMLA leave during a single 12-
month period for this purpose, from April 18, 2008, to April 17, 2009. 
The time period during which she used basic FMLA leave, from February 
25, 2008, to April 17, 2008, does not count toward her 26-week FMLA 
entitlement to care for a covered servicemember. We note that the 
employee is not required to invoke her 26-week FMLA leave entitlement 
immediately. She may delay invoking the 26-week FMLA entitlement until 
such time as she is needed to provide care for her husband. Once the 
employee invokes her 26-week FMLA entitlement and begins to care for 
her husband, the single 12-month period begins. In this example, the 
employee may choose to first exhaust her full 12-week basic FMLA 
entitlement for the

[[Page 75372]]

birth of a child, and then invoke the 26-week FMLA entitlement to care 
for a covered servicemember after her husband is released from the 
hospital and returns home.
    Example V: Importance of the Employee's Relationship With the 
``Person for Whom Leave May Be Taken.'' Since an employee may take 
leave to care for different individuals depending on the applicable 
entitlement, it is important to pay close attention to the person for 
whom the employee is taking leave to care. If the person for whom the 
employee wishes to care does not meet the criteria set out in statute 
and regulation, the employee will not have the option of using this 
type of leave. For example, an employee's fianc[eacute] is seriously 
injured by a roadside bomb. The employing agency may decide, at its 
discretion, that the fianc[eacute] meets the definition of family 
member for sick leave purposes (based on the clause ``any individual 
related by blood or affinity whose close association with the employee 
is the equivalent of a family relationship''); therefore, the employee 
is eligible to use up to 12 weeks of sick leave to care for her 
fianc[eacute] who has a serious health condition. However, this 
employee does not meet the FMLA definition of an individual who can use 
the 26-week entitlement to care for a covered servicemember, because 
coverage is limited to an employee who is the spouse, son, daughter, 
parent, or next of kin of the covered servicemember. In contrast, if 
the employee were married to the covered servicemember, she would be 
entitled to both sick leave and FMLA leave to care for a covered 
servicemember, as shown in table 1.

Employee Must Invoke FMLA Leave To Care for a Covered Servicemember To 
Use the Maximum Amount of Sick Leave

    An agency wanted to know why, under proposed Sec.  
630.402(a)(1)(v), agencies may not advance sick leave to care for a 
covered service member unless the employee has invoked his or her FMLA 
entitlement to leave to care for a covered servicemember. The agency 
pointed out that an employee is not required to invoke his or her FMLA 
entitlement before using sick leave to care for a family member with a 
serious health condition, and it questioned why an employee is required 
to invoke his or her FMLA entitlement to care for a covered 
servicemember.
    The proposed regulations do not require an employee to invoke the 
FMLA entitlement to be advanced sick leave. The proposed regulations at 
Sec.  630.402(a)(1)(i)-(v) provide that an agency may grant advanced 
sick leave in the amount of 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 5 U.S.C. 6382(a)(3). Although the care of a covered 
servicemember is only one circumstance that qualifies for the 
advancement of sick leave, it is the authority that will provide the 
greatest benefit to the employee.
    As referenced in the leave flexibilities table, sick leave is 
limited to 12 weeks for an employee to care for a family member with a 
serious health condition. In order for the employee to use additional 
sick leave, he or she must invoke FMLA to care for a covered 
servicemember. For example, an employee uses 12 weeks of sick leave to 
care for her son who has been injured in the line of duty while on 
active duty and requests additional sick leave to continue to care for 
her son. At this point, the employee must invoke her FMLA entitlement 
to care for a covered servicemember to use additional sick leave. By 
invoking the entitlement, the employee may substitute up to 26 
additional weeks of sick leave for unpaid leave under FMLA. If the 
employee has accumulated and accrued sick leave to cover only a part of 
the 26-week period, because she has invoked her FMLA entitlement to 
care for a covered servicemember, she can request advanced sick leave 
for up to 30 days.

E.O. 12866, Regulatory Review

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

Regulatory Flexibility Act

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

List of Subjects in 5 CFR Part 630

    Government employees.

U.S. Office of Personnel Management.
John Berry,
Director.


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

PART 630--ABSENCE AND LEAVE

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

    Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108 
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued 
under 5 U.S.C. 6133(a); 630.306 and 630.308 also issued under 5 
U.S.C. 6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-
337, 108 Stat. 2663; subpart D also issued under Pub. L. 103-329, 
108 Stat. 2423; 630.501 and subpart F also issued under E.O. 11228, 
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5 
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I 
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, 
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5 
U.S.C. 6362, Pub. L. 100-566, and Pub. L. 103-103; subpart K also 
issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued 
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M 
also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.

Subpart D--Sick Leave

0
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).
* * * * *

[[Page 75373]]

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

0
3a. Redesignate Sec. Sec.  630.402 through 630.406 as Sec. Sec.  
630.404 through 630.408, respectively.
0
3b. Add new Sec.  630.402 to read as follows:


Sec.  630.402  Advanced 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 grant 
advanced 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 5 U.S.C. 6382(a)(3).
    (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.
0
3c. Add new Sec.  630.403 to read as follows:


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 an employee may 
substitute for unpaid family and medical leave under 5 U.S.C. 
6382(a)(3) for 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, 
an amount of sick leave equal to 26 times the average number of hours 
in his or her scheduled tour of duty each week).

0
4. 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, and 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.
* * * * *
[FR Doc. 2010-30371 Filed 12-2-10; 8:45 am]
BILLING CODE 6325-39-P