[Federal Register Volume 59, Number 231 (Friday, December 2, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-29820] [[Page Unknown]] [Federal Register: December 2, 1994] _______________________________________________________________________ Part X Office of Personnel Management _______________________________________________________________________ 5 CFR Part 630 Absence and Leave; Sick Leave for Adoption; Final Rule and Interim Rule ======================================================================= ----------------------------------------------------------------------- OFFICE OF PERSONNEL MANAGEMENT 5 CFR Part 630 RIN 3206-AE95 Absence and Leave; Sick Leave AGENCY: Office of Personnel Management. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The Office of Personnel Management is issuing final regulations on the use and recredit of sick leave for Federal employees. Consistent with the recently enacted Federal Employees Family Friendly Leave Act, the final regulations expand the use of sick leave by permitting most employees to use a total of up to 104 hours of sick leave each leave year (or, in the case of a part-time employee or an employee with an uncommon tour of duty, the number of hours of sick leave normally accrued during a leave year) to provide care for a family member as a result of physical or mental illness; injury; pregnancy; childbirth; or medical, dental, or optical examination or treatment; or to make arrangements necessitated by the death of a family member or attend the funeral of a family member. The final regulations also remove the 3-year break-in-service limitation on the recredit of sick leave for former employees who are reemployed on or after December 2, 1994. EFFECTIVE DATE: December 2, 1994. FOR FURTHER INFORMATION CONTACT: Jo Ann Perrini, (202) 606-2858. SUPPLEMENTARY INFORMATION: On May 11, 1994 (59 FR 24560), the Office of Personnel Management (OPM) published proposed regulations to amend 5 CFR 630.401 to provide that employees may use a total of up to 5 days of sick leave per leave year to provide care for a child, spouse, or parent as a result of sickness, injury, pregnancy, or childbirth; to make arrangements necessitated by the death of a family member; or to attend the funeral of a family member. In addition, OPM proposed to amend 5 CFR 630.502 and 630.504 to remove the 3-year brake-in-service limitation on the recredit of sick leave and permit employees who separate from Federal service to have their unused sick leave recredited in full to their sick leave accounts upon return to Federal service on or after the effective date of the final regulations. These changes were recommended in the Report of the National Performance Review on September 7, 1993. The proposed regulations also included conforming changes in Secs. 630.402 (Application for sick leave), 630.403 (Supporting evidence), and 630.405 (Use of sick leave during annual leave). During the comment period, OPM received comments from 1 Member of Congress, 29 Federal agencies, 1 labor organization, 13 professional organizations and associations, and 99 individuals, for a total of 143 comments. Thirty-four commenters supported the proposed revisions in the sick leave regulations without change. Five individuals opposed the proposed sick leave regulations. These individuals believed sick leave should be granted only for an employee's personal illness or injury and that Federal employees earn and accrue sufficient annual leave to provide care for family members. After the close of the comment period, Congress passed and the President signed into law the Federal Employees Family Friendly Leave Act, Public Law 103-388, on October 22, 1994. The Act authorizes the use by all covered full-time employees of a total of up to 40 hours (5 workdays) of sick leave per year to (1) give care or otherwise attend to a family member having an illness, injury, or other condition which, if an employee had such a condition, would justify the use of sick leave by the employee; or (2) make arrangements or attend the funeral of a family member. In addition, a covered full-time employee who maintains a balance of at least 80 hours of sick leave may use an additional 64 hours (8 workdays) of sick leave per year for these purposes, bringing the total amount of sick leave available for family care and bereavement purposes to a maximum of 104 hours (13 workdays) per year for employees who satisfy this condition. The Federal Employees Family Friendly Leave Act will become effective on December 22, 1994. As discussed below, however, we have determined that regulatory provisions consistent with the entitlements provided by this legislation should be made effective immediately under the regulatory authority granted to OPM by the current sick leave statute (5 U.S.C. 6311). A summary of the comments received by OPM on the proposed sick leave regulations and a description of the revisions made in the regulations as a result of the comments are presented below. Use of Sick Leave To Care for Family Members A large proportion of the commenters (65) opposed limiting the use of sick leave to provide care only for certain family members--i.e., a child, spouse, or parent. The commenters believed the proposed rule was unfair and discriminatory to many Federal employees who share close family responsibilities in a family group broader than a traditional nuclear family. Further, they suggested this policy would be inconsistent with the intent of many other OPM initiatives designed to assist Federal employees in balancing work and family needs. For example, one agency suggested that if the purpose of the proposed sick leave regulations is to be sensitive to the needs of all employees, some consideration should be given to those individuals who have legal responsibility for other family members or significant others. One commenter recommended that OPM's definition of family member be changed so that the Federal Government could set an example as an employer of a diverse workforce. One agency and 11 individuals recommended that the phrase ``son or daughter'' be substituted for the term ``child.'' The definition of ``child'' in the proposed rule includes individuals over the age of 18 only if they are disabled. The agency was concerned that the term ``child'' may be perceived as connoting a lack of maturity and suggested that this connotation is not appropriate to individuals over 18 who are disabled because it may reinforce negative stereotypes about individuals with disabilities. The agency stated that the phrase ``son or daughter,'' as used in the Family and Medical Leave Act of 1993 (FMLA) and in OPM's implementing regulations under the Act, is less likely to connote immaturity, since the phrase identifies the relationship rather than a stage of development. Many commenters pointed out that the definition of ``child'' in the proposed rule would prohibit parents from using sick leave to arrange for or attend the funeral of an adult son or daughter who is over 18 years old and is not disabled. One agency noted that some agencies provide broader coverage for benefits under the FMLA by allowing additional family members to be covered (as encouraged in OPM's interim regulations implementing Title II of the FMLA) and that these agencies will be put in the awkward position of having different coverage for two leave programs that OPM recognizes as having a ``similarity of purpose.'' Most of the commenters recommended that OPM use the broader definition of ``family member'' found in the Voluntary Leave Transfer Program. One commenter noted that this definition is more accommodating to the needs of a wide variety of family compositions. Another suggested that the broader definition would more faithfully fulfill the Federal Government's purpose of being a responsive, competitive, and model employer. One agency noted that the broader definition is consistent with the intent of the National Performance Review recommendations. Furthermore, the agency noted that the broader definition recognizes that in today's society there are both traditional and nontraditional families and that the responsibilities placed on the employee are the same in both cases. In response to these comments and consistent with the requirements of the Federal Employees Family Friendly Leave Act, the final regulations include the broader definition of ``family member'' that is used in the Federal leave sharing program. For these purposes, ``family member'' means (a) spouse and parents thereof; (b) children, including adopted children, and spouses thereof; (c) parents; (d) brother and sisters, and spouses thereof; and (e) any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. The term ``children, including adopted children, and spouses thereof,'' as used in this definition, covers adult sons and daughters, whether disabled or not, and therefore permits an employee to use sick leave to arrange for or attend the funeral of an adult son or daughter who is over 18 years old and is not disabled. Limitation on Use of Sick Leave for Family Care or Bereavement A significant number of the commenters (42) opposed OPM's proposed 5-day limitation on the amount of sick leave to be used each leave year for family care or bereavement purposes. One commenter questioned whether 5 days of sick leave each leave year realistically would be sufficient to enable an employee to provide care for family members, especially in situations of terminal or serious illness. One commenter stated that the current move to ``empower'' employees assumes that employees are able to exercise good judgment about their jobs. Therefore, it was suggested, OPM should assume that employees can make a fair judgment about their own usage of leave. One agency commented that if the absence represents an appropriate use of sick leave, the amount should be determined by the circumstances of each case, not by an arbitrary ceiling. A professional association commented that the proposed 5-day limit on the use of sick leave to care for a family member is unnecessary and too restrictive and that it contravenes the FMLA, which imposes no such limit. The association believes the FMLA already permits Federal employees to substitute their accrued or accumulated sick leave for any or all of the 12 weeks of unpaid FMLA leave to care for a family member. Under 5 U.S.C. 6382(d), an employee may elect to substitute paid accrued or accumulated annual or sick leave for any part of the 12-week period of FMLA leave, ``except that nothing in this subchapter shall require an employing agency to provide paid sick leave in any situation in which such employer would not normally provide any such paid leave.'' The association believes the legislative history of the FMLA shows that Congress intended that employees would be entitled to unlimited substitution of sick leave for unpaid leave provided by the FMLA. The association raised these same objections in its comments to the Department of Labor (DOL) on its Notice of Proposed Rulemaking (58 FR 13394, March 10, 1993) requesting assistance in developing interim regulations implementing Title I of the FMLA and to OPM on its interim regulations implementing Title II of the FMLA (58 FR 39596, July 23, 1993). The association further stated that since OPM has not yet issued final regulations on the FMLA and has not resolved the issue of substitution of sick leave, it is premature for OPM to promulgate a sick leave rule that may contradict OPM's final FMLA regulations. DOL addressed the professional association's objections in its interim regulations implementing Title I of the FMLA in 29 CFR part 825 (58 FR 31794, June 4, 1993). DOL stated that ``the history of this provision lacks an explanation that it is so intended and cannot, therefore, overcome the clearer reading of the statutory language.'' OPM agrees with DOL's assessment that the legislative history does not support the idea that Congress intended unlimited substitution of paid sick leave for FMLA leave without pay. In addition, Sec. 630.1205(b)(1) of OPM's interim regulations implementing Title II of the FMLA specifically states that an employee may elect to substitute annual or sick leave for unpaid FMLA leave, ``consistent with current law and regulations governing the granting and use of annual and sick leave.'' Most of the agencies commenting on the 5-day limitation suggested that OPM impose no limit on the amount of sick leave that an employee may use to provide care for an ill or injured family member. Two agencies recommended that, because of the similarity of purpose between this initiative and the Family and Medical Leave Act, the sick leave regulations should be amended to permit employees to substitute sick leave for any or all of the 12 weeks of unpaid leave provided by the FMLA. One agency noted that by aligning the sick leave regulations with the FMLA, OPM could reduce the need for another set of tracking systems covering time off to care for family members. Several agencies reported that tracking and monitoring the proposed 5-day limit would impose an additional administrative burden on their payroll and timekeeping functions because they would be required to track two types of sick leave--sick leave used for the employee's own medical needs and sick leave used for family needs. One agency stated that the potential for abuse appears high, since an employer may have difficulty verifying the medical status of family members. A professional organization stated that limiting the use of sick leave to 5 days per year for family care or bereavement purposes is both inadequate and impractical to administer and would send a mixed message to Federal employees that family-friendly programs are encouraged but only minimally supported. The organization objected to what it characterized as OPM's patronizing tone in expressing a need to exercise caution in making changes in the sick leave regulations that might allow for abuse or harm the employee's ability to save enough sick leave for his or her own personal use. The organization suggested that employees should be viewed as fully responsible for accommodating their own personal and family needs and recommended allowing employees to use an unlimited amount of sick leave for family care purposes. As noted above, the Federal Employees Family Friendly Leave Act establishes a maximum limitation of 104 hours (13 workdays) of sick leave that may be used by most employees to care for a family member or for bereavement purposes. Consistent with the limitations established by this legislation and in response to the comments described above, the final regulations provide that all covered full-time employees may use a total of up to 40 hours (5 workdays) of sick leave each year for family care or bereavement purposes. In addition, a covered full-time employee who maintains a balance of at least 80 hours of sick leave may use an additional 64 hours (8 workdays) of sick leave per year for these purposes, bringing the total amount of sick leave available for family care and bereavement purposes to a maximum of 104 hours (13 workdays) per year for employees who satisfy this condition. (See Sec. 630.401 (b) through (d).) For a part-time employee or an employee with an uncommon tour of duty, the final regulations provide that the basic amount of sick leave to be made available for family care or bereavement purposes shall be equal to the average number of hours of work in the employee's scheduled tour of duty each week. In addition, a part-time employee or an employee with an uncommon tour of duty who maintains a sick leave balance equal to at least twice the average number of hours of work in the employee's scheduled tour of duty each week may use an amount equal to the number of hours of sick leave normally accrued by the employee during a leave year for these purposes. These limitations are consistent with the amendments made by the Federal Employees Family Friendly Leave Act, which authorizes OPM to prescribe limitations for such employees that are proportional to those applicable to full-time employees with a tour of duty of 40 hours per week. OPM believes an annual limit of 104 hours (13 workdays) of sick leave to provide care for an ill or injured family member will be an ample amount of time for most employees to give care and attendance to family members for illness or injury when viewed in the context of other available options and entitlements. The entitlement to use a total of up to 104 hours of sick leave, in conjunction with a generous annual leave system, advanced annual leave, the leave transfer and leave bank programs, flexible work schedules, flexiplace, unpaid leave under the FMLA, and compensatory time off will further assist the vast majority of employees to meet their sickness-related family care needs. Sick Leave for Exposure to a Communicable Disease A labor organization, an agency, and some individuals commented that the 5-day limit on the use of sick leave for family care purposes would restrict, rather than expand, entitlement to use sick leave in the case of employees who provide care for a family member who is afflicted with a contagious disease. The labor organization pointed out that Sec. 630.401(c) of the current regulations places no limit on the amount of sick leave that may be used under these circumstances and suggested that the 5-day limit would impose an unfair hardship when compared to the current policy. The current regulatory provision authorizing the use of sick leave to care for ``a member of [the employee's] immediate family who is afflicted with a contagious disease'' is based primarily on the need to prevent the spread of contagion in the workplace. When the health authorities having jurisdiction or a health care provider determines that an employee's exposure to a communicable disease would jeopardize the health of other employees, we continue to believe it is appropriate to grant sick leave to the employee for the entire period of time during which the danger to the health of other employees exists. However, when it cannot be determined that an employee's exposure to a communicable disease would jeopardize the health of other employees, we do not believe there is any justification for allowing the employee to use more sick leave than would be available to other employees who wish to provide care for a family member whose illness or incapacitation is not the result of a communicable disease. In such cases, employees may request annual leave or leave without pay to provide additional care and may also be eligible for participation in the Federal leave sharing program. The determination as to whether an employee's exposure to a communicable disease would jeopardize the health of other employees necessarily is a matter of judgment. Supervisors should rely on the expertise of the health authorities having jurisdiction or a health care provider in determining the period of time for which sick leave should be authorized and may require the employee to submit medical documentation to support the use of sick leave under these circumstances for an extended period of time. OPM also received five comments relating to other aspects of the proposed regulation on the use of sick leave in cases of communicable disease. Some asked for additional clarification concerning what constitutes a ``severe communicable disease.'' One agency recommended that the word ``severe'' be deleted. The agency reasoned that if the local health authorities or health care provider has determined that a person so exposed is required to be isolated for a specified period of time, the communicable disease must be ``severe.'' The agency suggested that using the modifier ``severe.'' may put management in the difficult position of second-guessing health authorities. We find this observation compelling and have deleted the word ``severe.'' We have not attempted to define the term ``communicable disease,'' however, because the key determination that has to be made is not whether a particular illness constitutes a ``communicable disease,'' but whether an employees's exposure to the illness would jeopardize the health of other employees. This determination can be made only by the health authorities having jurisdiction or a health care provider. A labor organization objected to the characterization of a ``severe communicable disease'' as one that requires ``isolation for a specified period.'' It suggested that this characterization implies that if the health authorities or health care provider does not, or cannot, identify a ``specified period'' of isolation, an application for sick leave will be denied. We agree that this characterization is unnecessary and have revised Sec. 630.401(a)(5) to remove the reference to ``isolation'' altogether. In addition, we have removed the definition of ``contagious disease'' in Sec. 630.201(b)(3). In response to another comment, we have also provided a definition of ``health care provider'' in Sec. 630.201(b)(5). As a result of these changes, employees will be permitted to use sick leave for the entire period of time during which the health authorities having jurisdiction or a health care provider determines that an employee's exposure to a communicable disease would jeopardize the health of other employees. Full-time employees will be limited to a total of 13 days of sick leave per year (subject to the requirement in Sec. 630.401(c) to maintain 80 hours of sick leave in their account) when it cannot be determined that an employee's exposure to a family member's communicable disease would jeopardize the health of other employees. Calculation of Sick Leave The proposed regulations would permit employees to use a total of up to 5 days of sick leave each year (or, in the case of a part-time employee or an employee with an uncommon tour of duty, the average number of hours of work in the employee's scheduled tour of duty each week) to provide care for a family member or for bereavement purposes. Several agencies requested guidance on how to calculate the 5 days of sick leave for part-time employees or employees working compressed work schedules. They asked what period of time an agency should use to determine the average number of hours of work in an employee's tour of duty each week. One agency suggested that OPM use either days or hours, but not both. The agency further recommended the use of hours to calculate the entitlement to sick leave to care for a family member because granting 5 days of sick leave to a full-time employee on a compressed work schedule amounts to 50 hours for an employee with a 10- hour daily tour of duty (and represents more that 1 week). OPM agrees that it would be desirable to express these entitlements in terms of ``hours'' rather than ``days.'' As a result, 5 CFR 630.401 has been revised accordingly. If the number of hours of work in an employee's tour of duty is changed during the leave year, the employee's entitlement to use sick leave to care for a family member or for bereavement purposes must be recalculated based on the new tour of duty. As provided in 5 CFR 630.206, employees may take sick leave to care for a family member in increments of less than 1 hour if the agency's leave policies allow the granting of leave in increments of less than 1 hour. Recredit of Sick Leave Nineteen commenters supported OPM's proposal to remove the 3-year break-in-service limitation on the recredit of sick leave; one individual opposed the change, believing that there should be a penalty for voluntary separation. Many agencies and individuals believe the elimination of the 3-year limitation on the recredit of sick leave would be an incentive for employees under the Federal Employees Retirement system (FERS) to save their sick leave as insurance for possible future use. However, several individual employees objected to OPM's intent to make this change prospective. These individuals thought our proposal unfairly discriminated against employees who had forfeited sick leave as a result of returning to Federal service prior to the effective date of the rule change. OPM agrees that the proposed change in the rules on the recredit of sick leave fosters the conscientious use of sick leave. Employees will no longer feel forced to use their sick leave prior to separating from the Federal Government because there will no longer be a risk of forfeiting accrued sick leave when they return to Federal employment. However, OPM does not believe it is feasible to give this change retroactive effect. Under the Administrative Procedure Act, retroactivity is not favored where it could work an inequity. OPM believes retroactivity could create as many inequities as it alleviates, since any effective date that OPM selects (except an indefinite retroactive effective date) will be perceived as unfair by employees who do not benefit from the change. An indefinite retroactive effective date for the recredit of sick leave would cause administrative problems for Federal agencies because it may be difficult to identify all employees who were adversely affected. In addition, it may be difficult, if not impossible, to reconstruct affected employees' sick leave records. Based on the comments we received, there appears to be confusion as to whether the removal of the 3-year break-in-service limitation on the recredit of sick leave applies to an employee who resigns before the effective date of the regulations and returns after the effective date. (OPM also received numerous telephone inquiries on this matter.) Therefore, we have revised Sec. 630.502(b) to state that a former employee is entitled to a recredit of sick leave (without regard to the date of his or her separation) if reemployed in the Federal Government on or after the effective date of these regulations, unless the sick leave was forfeited upon reemployment in the Federal Government before the effective date of these regulations. Similar revisions have also been made in Secs. 630.502(c), (e), and (f) and 630.504(b). Reemployed annuitants also are entitled to a recredit of sick leave. However, the elimination of the 3-year restriction on sick leave recredit does not affect the sick leave the reemployed annuitant had at the time of retirement if that sick leave was creditable in the annuity computation. That sick leave balance became part of the annuity computation and is no longer available for use as sick leave. Recredited sick leave will be added to the reemployed annuitant's current sick leave account for use in his or her current employment. If the reemployed annuitant qualifies for a supplemental or redetermined annuity under the Civil Service Retirement System, 5 U.S.C. 8344, any unused sick leave in his or her sick leave account upon separation after reemployment may be included in the computation of the supplemental or redetermined benefit. Voluntary Leave Transfer and Leave Bank Programs Three agencies noted that an employee who applies to become a leave recipient under the voluntary leave transfer or leave bank programs to care for a family member with a medical emergency must exhaust all available leave (excluding advanced leave) before he or she becomes eligible for any donated leave. Since an employee was previously not permitted to use sick leave to care for a family member (except in cases of contagious disease), there was no requirement to exhaust available sick leave before requesting donated leave in such cases. The agencies suggested that an employee be required to use the sick leave provided under Sec. 630.401(b) to care for a family member before he or she can become eligible for donated leave. OPM agrees that an employee is required to use the sick leave available under Sec. 630.401(b) through (d) before becoming eligible for donated leave to care for a family member. The regulations have been revised to clarify this matter in the case of applications to become a leave recipient that are approved on or after the effective date of these regulations. (See Sec. 630.405(b).) In addition, the regulations have been revised to require an employee who is in a shared leave status on the effective date of these regulations to use the sick leave available under Sec. 630.401(b) through (d) before he or she can continue using donated leave. (See Sec. 630.405(c).) Sick Leave for Adoption Five commenters noted that OPM's proposal to revise the sick leave regulations did not include any provisions authorizing the use of sick leave for purposes related to adoption, as recommended by the Report of the National Performance Review. Under previous law, OPM did not have authority to permit the use of sick leave for adoption. However, section 629(b) of Public Law 103-329, September 30, 1994, the Treasury, Postal Service, and General Government Appropriations Act for fiscal year 1995, amends 5 U.S.C. 6307 to permit the use of sick leave for purposes relating to the adoption of a child. In addition, the new law allows sick leave to be substituted retroactively for any annual leave used by an employee for adoption-related purposes between September 30, 1991, and September 30, 1994. OPM is issuing interim regulations permitting the use of sick leave for adoption-related purposes at the same time as the final sick leave regulations are issued. Recordkeeping and Reporting Requirements As required by the Federal Employees Family Friendly Leave Act, OPM must submit a report to Congress by June 22, 1997, to evaluate the use of sick leave under the Federal Employees Family Friendly Leave Act and make a recommendation as to whether or not the entitlements under the Act should continue beyond December 22, 1997. To enable OPM to have access to sufficient information to make such an evaluation, a new section has been added at 5 CFR 630.408 to require agencies to maintain and report to OPM information on each employee's use of sick leave to care for a family member or for bereavement purposes as provided under the final regulations. Beginning with leave year 1995, the regulations require agencies to maintain records on (1) the grade or pay level and gender of each employee; (2) the total number of hours of sick leave used by each employee for family care or bereavement purposes and for all other purposes; and (3) any additional information OPM may require. Suggestions for Leave Reform Three agencies observed that opening up sick leave usage to situations other than the employee's own medical needs blurs the distinction between sick leave and annual leave. One agency suggested that this should be considered in future discussions on how the Federal leave program can be reformed to help Federal employees cope with their work and family responsibilities. Miscellaneous Comments A labor organization requested that OPM clarify that the 5-day limitation on the use of sick leave to make arrangements necessitated by the death of a family member or attend the funeral of a family member does not apply to an employee's incapacitation due to sickness, including severe depression or emotional distress, resulting from the death of a family member. OPM concurs with this comment. Employees who are incapacitated as a result of severe emotional distress due to the death of a family member are entitled to use sick leave for their own sickness or illness. This is consistent with an opinion of the Comptroller General (B-207444, October 20, 1982). In response to this comment, Sec. 630.401(a)(2) has been clarified to state that an employee may use sick leave because of incapacitation for the performance of duties by physical or mental illness. A professional organization suggested that OPM consider permitting Federal employees to transfer their available annual leave to family members who are also employed by the Federal Government. This suggestion would require legislation. Under current law, sections 6332 and 6362 of title 5, United States Code, specifically provide for the transfer of annual leave only for medical emergencies. Several agencies requested guidance as to whether the 5 days of sick leave to care for a family member or for bereavement purposes could be advanced and whether an employee may substitute the 5 days of sick leave for unpaid leave under the FMLA, when appropriate. The sick leave available to covered employees for these purposes under the final regulations may be advanced, and such employees may substitute sick leave for unpaid leave under the FMLA. In addition, an agency questioned whether the 5 days of sick leave may accumulate over the years without limit, like sick leave generally, even though only 5 days of sick leave may be used each leave year. If an employee does not use any or all of the amount of sick leave provided under Sec. 630.401 for family care or bereavement purposes in a leave year, it cannot be accumulated in succeeding years to be used to care for a family member or for bereavement purposes. Some agencies requested that OPM clearly define the situations in which an employee may use sick leave to care for a family member--e.g., for medical and dental appointments or for a common cold, fever, or vomiting, since a child care facility typically will not permit the attendance of a child with these symptoms. An agency questioned how the sick leave program will be used in conjunction with other leave programs--e.g., the leave sharing program, the FMLA, and advanced leave. Agencies have discretionary authority to administer the Federal leave program, consistent with current law and regulations. OPM encourages agencies to assist employees in balancing their work and family responsibilities. Agencies must apply the same criteria they would apply if an employee were suffering from a similar symptoms or receiving medical, dental, or optical examination or treatment. Finally, an agency requested that OPM consider revisions that would result in the crediting of sick leave in retirement computations for employees covered by FERS or allow some type of payback for sick leave. This comment is beyond the scope of these regulations and would require a legislative change. Other Changes The final regulations at Sec. 630.401(a)(2) have been revised to permit the use of sick leave by an employee who is incapacitated for the performance of his or her duties by physical or mental illness or to care for a family member incapacitated as a result of physical or mental illness. The purpose of this change is to clarify the circumstances in which an employee is entitled to use sick leave. Waiver of Delay in Effective Date In the spirit of the President's memorandum of July 11, 1994, directing agencies to establish and support family-friendly work arrangements, and consistent with the recent changes in law on the purposes for which sick leave may be used, I find good cause exists for making these rules effective in less than 30 days pursuant to 5 U.S.C. 553(d)(3). The delay in the effective date is being waived to give affected employees the benefit of these new provisions as of December 2, 1994. E.O. 12866, Regulatory Review This rule has been reviewed by the Office of Management and Budget in accordance with E.O. 12866. Regulatory Flexibility Act I certify that these regulations will not have a significant economic impact on a substantial number of small entities because they will affect only Federal employees and agencies. List of Subjects in 5 CFR Part 630 Government employees. U.S. Office of Personnel Management. James B. King, Director. Accordingly, OPM is amending part 630 of title 5 of the Code of Federal Regulations as follows: PART 630--ABSENCE AND LEAVE 1. The authority citation for part 630 is revised to read as follows: Authority: 5 U.S.C. 6311; Sec. 630.303 also issued under 5 U.S.C. 6133(a); subpart D also issued under Pub. L. 103-329 (108 Stat. 2423); Sec. 630.501 and subpart F also issued under E.O. 11228; 30 FR 7739, June 16, 1965, 3 CFR 1974 Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H issued under 5 U.S.C. 6326; subpart I also issued under 5 U.S.C. 6332 and Pub. L. 100-566 (102 Stat. 2834), and 103-103 (107 Stat. 1022); subpart J also issued under 5 U.S.C. 6362 and Pub. L. 100-566 and 103-103; subpart K also issued under Pub. L. 102-25 (105 Stat. 92); and subpart L also issued under 5 U.S.C. 6387 and Pub. L. 103-3 (107 Stat. 23). Subpart B--Definitions and General Provisions for Annual and Sick Leave 2. In Sec. 630.201, paragraph (b)(3) is removed; paragraph (b)(4) is redesignated as paragraph (b)(3); paragraphs (b) (5), (6), and (7) are redesignated as paragraphs (b) (6), (7), and (8), respectively; and new paragraphs (b) (4) and (5) are added to read as follows: Sec. 630.201 Definitions. * * * * * (b) * * * (b) Family member means the following relatives of the employee: (i) Spouse, and parents thereof; (ii) Children, including adopted children and spouses thereof; (iii) Parents; (iv) Brothers and sisters, and spouses thereof; and (v) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship. (5) Health care provider has the meaning given that term in Sec. 630.1202. * * * * * Subpart D--Sick Leave 3. In subpart D, Sec. 630.401 is revised to read as follows: Sec. 630.401 Grant of sick leave. (a) Subject to paragraphs (b) through (e) of this section, an agency shall grant sick leave to an employee when the employee-- (1) Receives medical, dental, or optical examination or treatment; (2) Is incapacitated for the performance of duties by physical or mental illness, injury, pregnancy, or childbirth; (3) Provides care for a family member as a result of physical or mental illness; injury; pregnancy; childbirth; or medical, dental, or optical examination or treatment; (4) Makes arrangements necessitated by the death of a family member or attends the funeral of a family member; or (5) Would, as determined by the health authorities having jurisdiction or by a health care provider, jeopardize the health of others by his or her presence on the job because of exposure to a communicable disease. (b) The amount of sick leave granted to an employee during any leave year for the purposes described in paragraphs (a)(3) and (4) of this section many not exceed a total of 104 hours (or, in the case of a part-time employee or an employee with an uncommon tour of duty, the number of hours of sick leave normally accrued by that employee during a leave year). (c) To be granted any sick leave for the purposes described in paragraphs (a)(3) or (4) of this section during any leave year in an amount exceeding a total of 40 hours (or, in the case of a part-time employee or an employee with an uncommon tour of duty, the average number of hours of work in the employee's scheduled tour of duty each week), the employee concerned shall retain in his or her sick leave account a balance of at least 80 hours (or, in the case of a part-time employee or an employee with an uncommon tour of duty, an amount equal to twice the average number of hours of work in the employee's scheduled tour of duty each week). (d) When sick leave is granted to an employee under the condition specified in paragraph (c) of this section, the amount of sick leave retained in the employee's sick leave account shall, in each instance, be at least equal to the minimum prescribed by paragraph (b) of this section after deducting the amount to be used for the purposes described in paragraphs (a)(3) and (4) of this section. (e) If the number of hours in the employee's tour of duty is changed during the leave year, the employee's entitlement to use sick leave for the purposes described in paragraphs (a)(3) and (4) of this section shall be recalculated based on the employee's new tour of duty. 4. Section 630.402 is revised to read as follows: Sec. 630.402 Application for sick leave. An employee shall file a written application for sick leave within such time limits as the agency may require. An employee shall request advance approval for sick leave for the purpose of receiving medical, dental, or optical examination or treatment and to the extent possible, for the purposes described in Sec. 630.401(a)(3) and (4). 630.403 Supporting evidence. An agency may grant sick leave only when supported by evidence administratively acceptable. Regardless of the duration of the absence, an agency may consider an employee's certification as to the reason for his or her absence as evidence administratively acceptable. However, for an absence in excess of 3 workdays, of for a lesser period when determined necessary by an agency, the agency may also require a medical certificate or other administratively acceptable evidence as to the reason for an absence for any of the purposes described in Sec. 630.401(a). 6. Section 630.405 is revised to read as follows: Sec. 630.405 Use of sick leave during annual leave or to become eligible for donated leave. (a) Subject to Sec. 630.401(b) through (e), an agency may grant sick leave during a period of annual leave for any of the purposes described in Sec. 630.401(a). (b) An employee's entitlement to use sick leave to care for a family member under Sec. 630.401 shall be considered as available paid leave for the purpose of determining an employee's eligibility to become a leave recipient under the voluntary leave transfer and leave bank program established under subchapters III and IV of title 5, United States Code, if the medical emergency involves a family member of the employee. This determination shall be made for any application to be a leave recipient approved on or after December 2, 1994. (c) In the case of an employee already in a shared leave status on December 2, 1994, under the voluntary leave transfer or leave bank programs established under subschapters III and IV of title 5, United States Code, any sick leave available to care for a family member under Sec. 630.401 shall be used, if the medical emergency involves a family member of the employee, before continuing to use transferred annual leave or annual leave withdrawn from a leave bank. 7. Section 630.408 is added to read as follows: Sec. 630.408 Records and reports. (a) Beginning with leave year 1995, each agency shall maintain records concerning the use of sick leave to care for a family member or to make arrangements for or attend the funeral of a family member under Sec. 630.401(a) (3) and (4) and shall report such information as may be required by the Office of Personnel Management (OPM) for the purpose of evaluating the use of sick leave. (b) Beginning with leave year 1995, each agency shall maintain the following information by leave year for each employee using sick leave for the purpose described in Sec. 630.401(a) (3) or (4): (1) The grade or pay level and gender of each employee; (2) The total number of hours of sick leave used by each employee-- (i) For the purposes described in Sec. 630.401(a) (3) or (4); and (ii) For all other purposes described in Sec. 630.401(a); and (3) Any additional information OPM may require. 8. The heading for subpart E of part 630 is revised to read as follows: Subpart E--Recredit of Leave 9. In subpart E, Sec. 630.502 is revised to read as follows: Sec. 630.502 Sick leave recredit. (a) When an employee transfers between positions under subchapter I of chapter 63 of title 5, United States Code, the agency from which the employee transfers shall certify his or her sick leave account to the employing agency for credit or charge. (b) Except as provided in Sec. 630.407 and in paragraph (c) of this section, an employee who has had a break in service is entitled to a recredit of sick leave (without regard to the date of his or her separation), if he or she returns to Federal employment on or after December 2, 1994, unless the sick leave was forfeited upon reemployment in the Federal Government before December 2, 1994. (c) Except as provided in Sec. 630.407, an employee of the government of the District of Columbia who was first employed by the government of the District of Columbia before October 1, 1987, who has had a break in service is entitled to a recredit of sick leave (without regard to the date of his or her separation), if he or she returns to Federal employment on or after December 2, 1994, unless the sick leave was forfeited upon reemployment in the Federal Government before December 2, 1994. (d) When sick leave is transferred between different leave systems under section 6308 of title 5, United States Code, 7 calendar days of sick leave are deemed equal to 5 workdays of sick leave. (e) An employee who transfers to a position under a different leave system to which he or she can transfer only a part of his or her sick leave is entitled to a recredit of the untransferred sick leave (without regard to the date of the original transfer) if the employee returns to the leave system under which it was earned on or after December 2, 1994. (f) An employee who transfers to a position to which he or she cannot transfer his or her sick leave is entitled to a recredit of the untransferred sick leave (without regard to the date of the original transfer) if the employee returns to the leave system under which it was earned on or after December 2, 1994. (g) The recredit of sick leave under this section shall be supported by written documentation available to the employing agency in its official personnel records concerning the employee, the official records of the employee's former employing agency, copies of contemporaneous earnings and leave statement(s) provided by the employee, or copies of other contemporaneous written documentation acceptable to the agency. (h) The sick leave to be recredited under this section must have been accrued under 5 U.S.C. 6307 or transferred to the employee's credit under 5 U.S.C. 6308 (or the corresponding provisions of prior statutes). 10. Section 630.504 is revised to read as follows: Sec. 630.504 Reestablishment of leave account after military service. (a) When an employee leaves his or her civilian position to enter the military service, the employing agency shall certify his or her leave account for credit or charge. (b) If the employee returns to a civilian position following military service, the agency to which the employee returns shall reestablish the certified leave account as a credit or charge (without regard to the date he or she left the civilian position) when the employee is-- (1) Restored in accordance with a right of restoration after separation from active military duty or hospitalization continuing thereafter as provided by law or in accordance with the mandatory provisions of a statute, Executive order, or regulation; or (2) Reemployed in a position under subchapter I of chapter 63 of title 5, United States Code, on or after December 2, 1994. (c) For the purpose of documenting a returning employee's entitlement to a recredit of sick leave under this section, the documentation criteria established in Sec. 630.502(g) shall apply. [FR Doc. 94-29820 Filed 2-1-94; 8:45 am] BILLING CODE 6325-01-M