Paid Parental Leave
| Citation | 85 FR 48075 |
| Record Number | 2020-14832 |
| Published date | 10 August 2020 |
| Section | Rules and Regulations |
| Court | Personnel Management Office |
Federal Register, Volume 85 Issue 154 (Monday, August 10, 2020)
[Federal Register Volume 85, Number 154 (Monday, August 10, 2020)]
[Rules and Regulations]
[Pages 48075-48096]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-14832]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 85, No. 154 / Monday, August 10, 2020 / Rules
and Regulations
[[Page 48075]]
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AN96
Paid Parental Leave
AGENCY: Office of Personnel Management.
ACTION: Interim final rule; request for comments.
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SUMMARY: The Office of Personnel Management is issuing an interim final
rule to implement the Federal Employee Paid Leave Act, which provides
12 weeks of paid parental leave to certain Federal employees covered by
the Family and Medical Leave Act (FMLA). Implementation of the new law
also requires changes to OPM's existing FMLA regulations.
DATES: Effective date: October 1, 2020.
Comments: Comments must be received on or before September 9, 2020.
ADDRESSES: You may submit comments, identified by docket number and/or
Regulatory Information Number (RIN) and title, by the following method:
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
All submissions received must include the agency name and docket
number or RIN for this document. The general policy for comments and
other submissions from members of the public is to make these
submissions available for public viewing at http://www.regulations.gov
as they are received without change, including any personal identifiers
or contact information.
FOR FURTHER INFORMATION CONTACT: Bryce Baker by email at [email protected] or by telephone at (202) 606-2858.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing an interim final rule to implement provisions of the Federal
Employee Paid Leave Act (subtitle A of title LXXVI of division F of the
National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116-
92, December 20, 2019), which will hereafter be referred to as
``FEPLA.'' FEPLA makes paid parental leave available to certain
categories of Federal civilian employees. These OPM regulations will
implement FEPLA provisions dealing with Federal employees covered by
the Family and Medical Leave Act (FMLA) provisions in subchapter V of
chapter 63 of title 5, United States Code, which were originally
enacted through title II of the Family and Medical Leave Act of 1993.
(See sections 7602, 7605(a), and 7606 of FEPLA.) The title 5 FMLA
provisions, which apply to the majority of civilian Federal employees,
are administered by OPM. (See 5 CFR part 630, subpart L.)
FEPLA amended 5 U.S.C. 6382(d) to allow the substitution of up to
12 weeks of paid parental leave for FMLA unpaid leave granted in
connection with the birth of an employee's son or daughter or the
placement of a son or daughter with an employee for adoption or foster
care. (See 5 U.S.C. 6382(a)(1)(A) and (B).) In order to implement
FEPLA, OPM is adding a new subpart--subpart Q (Paid Parental Leave)--in
part 630 (Absence and Leave) of title 5, Code of Federal Regulations,
and making necessary clarifications, changes, and additions in subpart
L (Family and Medical Leave).
Effective Dates
Section 7602(c) of FEPLA provides that the amendments to 5 U.S.C.
6382 dealing with paid parental leave are not effective with respect to
any birth or placement (for adoption or foster care) occurring before
October 1, 2020. Thus, by law, paid parental leave is available to
covered employees only in connection with the birth or placement of a
son or daughter that occurs on or after October 1, 2020. Since paid
parental leave may not be used prior to the birth or placement
involved, paid parental leave may not be used for any period of time
prior to October 1, 2020.
Section 7605(a) of FEPLA, dealing with the crediting of certain
periods of active duty in the uniformed services performed by members
of the National Guard or Reserves for the purpose of the 12-month
service requirement for FMLA leave eligibility in 5 U.S.C. 6381(1)(B),
was effective on December 20, 2019--the date FEPLA was enacted.
Section 7606 of FEPLA, dealing with the coverage of screener
personnel employed by the Transportation Security Administration (TSA)
under the title 5 FMLA law, was effective on December 20, 2019, the
date FEPLA was enacted. However, as noted above, use of paid parental
leave by TSA screener personnel under the title 5 FMLA law is available
only in connection with the birth or placement (for adoption or foster
care) of a son or daughter that occurs on or after October 1, 2020.
Summary of Law
A summary of the paid parental leave provisions incorporated within
the title 5 FMLA provisions is provided below.
An employee is eligible for paid parental leave only if he or she
is a covered ``employee'' under the definition in 5 U.S.C. 6381(1)(A)
and has completed at least 12 months of service as such an employee, as
required by 5 U.S.C. 6381(1)(B). (See also 5 CFR 630.1201(b).) We note
that the section 6381(1)(A) definition of ``employee'' excludes
individuals employed on a temporary or intermittent basis. Unlike the
title 29 FMLA eligibility requirements, employees under the title 5
FMLA are not required to be employed by a specific employer for at
least 12 months or to have at least 1,250 hours of service during the
previous 12-month period; instead, they need only 12 months of covered
service performed at any time in the past. Also, although title 29 FMLA
limits to 12 workweeks the combined FMLA leave entitlement for two
parents of the same child who are spouses and who are employed by the
same employer, there is no such limitation under title 5 FMLA; instead,
each parent-employee has a separate 12-workweek entitlement.
A covered employee may elect to substitute up to 12 weeks of paid
parental leave for FMLA unpaid leave granted under 5 U.S.C.
6382(a)(1)(A) or (B) in connection with the occurrence of the birth or
placement (for adoption or foster care) of a son or daughter. Such FMLA
unpaid leave may be used to care for the newly born or placed son or
daughter, and thus allows for bonding between parent and child.
By law, FMLA unpaid leave is generally limited to a total of 12
weeks in any 12-month period. The FMLA unpaid leave is permitted for
various
[[Page 48076]]
specified purposes, not just a birth or placement event. Thus, use of
FMLA unpaid leave for other purposes (e.g., based on the employee's own
serious health condition or to care for certain family members with a
serious health condition) can--depending on the timeframe in which it
is taken--limit the amount of FMLA unpaid leave available for a birth
or placement event, and thus limit the amount of paid parental leave
that can be substituted for it. (Employees may request to use their
annual or sick leave to cover other periods of time outside of FMLA
leave periods in accordance with governing statutes and regulations.)
Paid parental leave may be used only ``in connection with the birth
or placement involved'' (5 U.S.C. 6382(d)(2)(B)(i))--that is, after the
occurrence of the birth or placement involved--which results in the
employee assuming a ``parental'' role with respect to the newly born or
placed child. An employee may take unpaid FMLA leave under 5 U.S.C.
6382(a)(1)(A) or (B) before the birth or placement to cover certain
activities related to the birth or placement but cannot substitute paid
parental leave for those pre-birth/placement FMLA unpaid leave periods.
However, an employee could substitute annual leave or sick leave for
pre-birth/placement FMLA unpaid leave periods (e.g., sick leave for
prenatal care up to the point of birth or in connection with pre-
placement activities necessary to allow an adoption to proceed).
Paid parental leave may be used no later than the end of the 12-
month period beginning on the date of the birth or placement involved.
At the end of that 12-month period, any unused balance of paid parental
leave granted in connection with the given birth or placement
permanently expires and is not available for future use. No payment may
be made for unused paid parental leave or paid parental leave that has
expired. Paid parental leave is not considered to be annual leave and
thus may not be included in a lump-sum payment for annual leave
following separation (5 U.S.C. 6382(d)(2)(D)).
Under the law, an employee may not use any paid parental leave
unless the employee agrees in writing, before commencement of the
leave, to subsequently work for the applicable employing agency for at
least 12 weeks. This 12-week work obligation is triggered once the
employee's paid parental leave concludes. The work obligation is
statutorily fixed at 12 weeks regardless of the amount of leave used by
an employee. An agency head must waive the work obligation if an
employee is unable to return to work because of the continuation,
recurrence, or onset of a serious health condition (including mental
health) of the employee or the newly born/placed child--but only if the
condition is related to the applicable birth or placement.
If an employee fails to return to work for the required 12 weeks,
the employing agency ``may'' (but is not required to) recover from the
employee an amount equal to the total amount of Government
contributions paid by the agency under 5 U.S.C. 8906 on behalf of the
employee to maintain the employee's health insurance coverage during
the period of paid parental leave. This reimbursement provision may not
be applied if the employee is unable to return to work based on the
conditions that qualify for waiver described in the preceding
paragraph. Also, this provision may not be applied if the employee
fails to meet the 12-week work obligation for any other circumstance
beyond the employee's control (see 5 CFR 630.1705(h)).
Interim Final Rule
OPM is issuing interim final regulations that will provide more
detail regarding the implementation of the statutory provisions
summarized above.
In order to implement FEPLA, OPM is amending part 630 (Absence and
Leave) of title 5, Code of Federal Regulations, by amending subpart L
(Family and Medical Leave) and adding a new subpart Q (Paid Parental
Leave). OPM is making changes in subpart L to establish how the FMLA
provisions will now operate, since the appropriate substitution of paid
parental leave for FMLA unpaid leave hinges on having a complete
understanding of the standards for granting FMLA unpaid leave. Below we
provide a section-by-section explanation of the changes in subpart L
and the new provisions in the new subpart Q. Hereafter in this
SUPPLEMENTARY INFORMATION, references to statutory provisions in title
5 of the United States Code and to regulatory provisions in title 5 of
the Code of Federal Regulations will generally be referred to by
section number without restating the title 5 reference.
Revisions of FMLA Regulations in Subpart L of 5 CFR Part 630
Subpart L deals with FMLA unpaid leave. We are making conforming
changes to the provisions dealing with the substitution of paid leave
for FMLA unpaid leave. We are also making various changes to clarify
the appropriate application of the rules governing FMLA unpaid leave.
While paid parental leave may be substituted for FMLA unpaid leave only
for periods after birth or placement of a child, employees will still
be able to use FMLA unpaid leave for certain purposes related to an
anticipated future birth or placement and will be able to substitute
annual or sick leave (as appropriate) for such unpaid FMLA leave.
Sec. 630.1201--Purpose, Applicability, and Agency Responsibilities
The section heading for Sec. 630.1201 is revised to specifically
reference agency responsibilities, which are described in an amended
paragraph (c). (In current regulations, Sec. 630.1203(g) also
addresses agency responsibilities. We believe it is better to address
agency responsibilities in one place in the introductory Sec.
630.1201. We are revising Sec. 630.1203(g) to address other matters.)
We have added a sentence to paragraph (a) to note that the subpart L
regulations also are used in establishing eligibility for paid parental
leave under subpart Q. Paragraph (b) is revised to (1) address the
coverage of TSA screener personnel, consistent with section 7606 of
FEPLA; (2) clarify that temporary and intermittent employees in each
listed category of employees are excluded from FMLA coverage; (3)
correct obsolete references to the Secretary of Transportation (related
to the fact that Coast Guard nonappropriated fund instrumentalities are
now located in the Department of Homeland Security); and (4) address
the creditability of certain active duty service by employees who are
members of the National Guard or Reserves towards the 12-month service
requirement, consistent with section 7605(a) of FEPLA.
Sec. 630.1202--Definitions
Section 630.1202 is amended by (1) removing the definitions for
regularly scheduled, regularly scheduled administrative workweek, and
tour of duty; (2) revising the definitions of administrative workweek,
family and medical leave, leave without pay, and reduced leave
schedule; and (3) adding new definitions for birth, placement, and
scheduled tour of duty. The new term scheduled tour of duty is
replacing other terms in order to clarify that the tour referenced in
the FMLA regulations is the tour of duty established for purposes of
charging leave when an employee is absent. The definition of that term
also clarifies that there is no tour of duty during the off-season
period for seasonal employees; thus, FMLA unpaid leave and paid
parental leave would not apply during such an off-season period. The
revised definition of family and medical leave includes new
[[Page 48077]]
language addressing leave to care for covered servicemembers under
section 6382(a)(3), which is being regulated for the first time in a
new paragraph (j) in Sec. 630.1203.
The new definition of placement clarifies that it refers to a new
placement. Thus, the term excludes the adoption of a stepchild or a
foster child who has already been a member of the employee's household
and has an existing parent-child relationship with an adopting parent.
This definition of placement is consistent with Department of Labor
FMLA guidance at https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/2005_08_26_1A_FMLA.pdf. If a foster child is later adopted, the
placement has already occurred; there is no new placement with a family
that would warrant another use of FMLA leave for the same child.
Also, in the definitions of birth and placement, we are clarifying
that the terms may refer to an anticipated birth or placement. This
aligns with the regulation in Sec. 630.1203(d), which provides that
FMLA unpaid leave based on birth or placement of a child may be used
prior to the actual birth or placement.
Sec. 630.1203--Leave Entitlement
Section 630.1203(a)(2) is revised to clarify that FMLA leave taken
``because of the placement'' of a son or daughter for adoption or
foster care includes the care of the newly placed son or daughter after
the placement. This is consistent with the ``care'' language in the
provision dealing with FMLA leave for a newly born son or daughter.
Section 630.1203(b) is revised to give an employee who was
incapacitated more time to retroactively invoke FMLA leave. The
employee must retroactively invoke FMLA leave within 5 workdays--
instead of 2 workdays--after returning to work. A parallel deadline is
being established for cases of incapacitation in the paid parental
leave regulations in subpart Q.
Section 630.1203(d) is revised to delete language that seems to
suggest that there is always only one 12-month period in connection
with FMLA unpaid leave used in connection with a birth or placement. As
provided in section 6382(a)(2) and Sec. 630.1203(d), the entitlement
to use FMLA unpaid leave in connection with a birth or placement
terminates at the end of the 12-month period beginning on the date of
birth or placement. However, if an employee uses FMLA unpaid leave
before birth or placement, the associated 12-month FMLA period may end
during the 12-month period that begins on the date of birth or
placement, and the employee will be eligible to start a new entitlement
to FMLA unpaid leave after the prior FMLA period ends. (See section
630.1203(c).) If the employee uses FMLA unpaid leave after obtaining
that new entitlement, a new 12-month FMLA period will commence, and the
employee will be able to use 12 weeks of FMLA unpaid leave during that
period. However, no FMLA unpaid leave for birth or placement purposes
may be used after the date that is 12 months after birth or placement.
Paid parental leave may be substituted for FMLA unpaid leave used after
birth or placement even if there are two 12-month periods involved;
however, the total amount of paid parental leave in connection with any
given birth or placement is limited to 12 weeks.
For example, after not using FMLA leave for at least 12 months, an
employee uses a type of FMLA leave described in Sec. 630.1203(a)
(i.e., for birth, placement, serious health condition of employee or
certain family members, or exigency related to certain family members
being called to active duty) on June 1, 2021, triggering the
commencement of a 12-month FMLA period. The total amount of FMLA unpaid
leave used during the period from June 1, 2021, through May 31, 2022,
may not exceed 12 weeks. The employee uses 5 weeks of FMLA unpaid leave
in June and July of 2021. Then the employee has a child born on October
15, 2021. Because of the 12-week limit, the employee would be able to
use no more than 7 additional weeks of FMLA unpaid leave before the end
of the 12-month FMLA period expiring on May 31, 2022. On October 15,
2021, the employee invokes FMLA leave under Sec. 630.1203(a)(1) based
on the birth of, and need to care for, the new child, and uses 7 weeks
of FMLA unpaid leave during the October-December 2021 period. However,
when the 12-month FMLA period ends on May 31, 2022, the employee may
start a new 12-month entitlement to FMLA unpaid leave under Sec.
630.1203(a)(1) to care for the child. If the employee invokes FMLA
leave in order to care for the child starting on June 1, 2022, a new
12-month FMLA period would begin at that time. However, the entitlement
to FMLA unpaid leave based on the birth of a child ends 12 months after
the date of birth; therefore, the employee would have the period from
June 1, 2022, through October 14, 2022, to use up to 12 weeks of
additional FMLA leave under Sec. 630.1203(a)(1). Since the 12-month
period after birth or placement includes parts of two 12-month FMLA
periods, the employee could have more than 12 weeks of FMLA unpaid
leave under Sec. 630.1203(a)(1); however, only 12 weeks of paid
parental leave could be substituted in connection with this particular
birth or placement during the 12-month period that begins on the date
of the child's birth or placement. Thus, the employee could substitute
12 weeks of paid parental leave for any period during which the
employee used FMLA unpaid leave under Sec. 630.1203(a)(1) from October
15, 2021 through October 14, 2022.
Section 630.1203(d) is also revised to address the circumstances
under which an employee may use FMLA unpaid leave because of an
anticipated birth (under Sec. 630.1203(a)(1)) or because of an
anticipated placement (under Sec. 630.1203(a)(2)) prior to the date of
the birth or placement. In the case of an anticipated birth, the
allowed circumstances involve a pregnancy-related health condition of
the expectant mother that prevents her from working or prenatal care
provided to that expectant mother by health care providers. This
provision applies not only to an employee who is an expectant mother
but also to an employee who is the other parent of the expected child,
to the extent that other parent is providing necessary care for the
expectant mother. We rely on the definition of ``serious health
condition'' in Sec. 630.1202 in applying this provision. We recognize
that an employee may be able to use FMLA unpaid leave before birth
based on Sec. 630.1203(a)(1) or Sec. 630.1203(a)(3) or (a)(4) based
on the same set of circumstances. We note that certain statutory and
regulatory rules differ based on which provisions are invoked (e.g.,
certification requirements). In the case of an anticipated placement,
the permissible circumstances are limited to those in which the
employee must be absent to engage in activities necessary to allow an
anticipated adoption or a foster care arrangement to proceed. For
example, an employee may be required to attend counseling sessions,
appear in court, or consult with an attorney or a doctor.
Section 630.1203(e) is revised to clarify how the entitlement of 12
administrative workweeks of family and medical leave is converted to
hours or days, depending on the nature of an employee's scheduled tour
of duty and whether leave is charged on an hourly or daily basis. For
example, for a regular full-time employee who has 80 hours in the
biweekly scheduled tour of duty and who is charged leave on an hourly
basis, 12 administrative workweeks translate into 480 hours. (12 weeks
= 6 biweekly periods. 6 times 80 hours = 480 hours.)
[[Page 48078]]
Paragraph (e) also addresses employees with part-time work schedules or
uncommon tours or who are charged leave on a daily basis.
Section 630.1203(f) is revised to clarify how to recalculate an
employee's unused balance of family and medical leave if there is a
change in an employee's scheduled tour of duty during any 12-month FMLA
period that commenced due to use of family and medical leave. For
example, if a regular full-time employee has a balance of 120 hours of
unused family and medical leave for a 12-month FMLA period that is in
progress and then converts to a part-time schedule of 20 hours per
week, the balance would be recalculated to be 60 hours. (The new part-
time tour is 40 hours biweekly, compared to 80 for a regular full-time
tour. 40/80 times 120 equals 60 hours remaining under the new scheduled
tour of duty.)
Paragraph (g) in Sec. 630.1203 is revised. The current paragraph
(g) deals with agency responsibilities to provide information to
employees. This matter is now addressed in a revised Sec. 630.1201(c).
The revised paragraph (g) establishes that FMLA unpaid leave linked to
a birth event includes leave necessary for an employee who is the birth
mother to recover from giving birth, even if the employee is not
involved in caring for the son or daughter during portions of that
recovery period. (The recovery period would be whatever is specified by
a health care provider. The medical standard for a normal recovery
period is generally 6 weeks for vaginal birth and 8 weeks for caesarian
section, unless complications arise.) The birth event provision in law
states that it applies to leave taken ``because of the birth of a son
or daughter of the employee and in order to care for such son or
daughter'' (section 6382(a)(1)(A)). A birth mother's need to recover
from giving birth is clearly ``because of the birth'' of a child.
A new paragraph (i) in Sec. 630.1203 clarifies that FMLA unpaid
leave taken to care for a newly born child generally refers to leave
covering periods when the parent-employee is in the home with the child
or is otherwise involved in spending time with the child (bonding).
Such FMLA unpaid leave may also be used to cover short periods away
from the child's physical presence to support the care of the child
(e.g., buying baby food, diapers, or other supplies). However, leave
would not be appropriate if an employee is engaged in activities not
directly connected to care of the child or if the employee is outside
the local geographic area where the child is located. For example, it
is possible that a biological father may not reside in the same home as
the birth mother and the new child. The father could receive FMLA
unpaid leave and associated paid parental leave only for the care
activities described in this paragraph.
A new paragraph (j) in Sec. 630.1203 provides regulations on FMLA
leave to care for a covered servicemember, as provided in 5 U.S.C.
6382(a)(3)-(4). OPM has not issued final regulations to address this
type of FMLA leave, which was added by Public Law 110-181 in 2008. This
FMLA unpaid leave to care for covered servicemembers is subject to
special rules, including special rules related to the substitution of
annual and sick leave. Since we are revising the leave substitution
regulations in Sec. 630.1206 to address changes made by FEPLA, we
determined we should address FMLA leave for care of covered
servicemembers in subpart L. (See revised Sec. 630.1206(d), which
links to Sec. 630.1203(j).) In contrast to other types of FMLA leave,
the leave entitlement for FMLA leave to care for a covered service
member is 26 administrative workweeks during a single 12-month period.
If an employee uses other types of FMLA leave in that single 12-month
period, the combined amount of FMLA leave is limited to 26
administrative workweeks. Thus, there could be circumstances where the
substitution of paid parental leave for a period of FMLA unpaid leave
for birth or adoption purposes would potentially be affected by the 26-
workweek limit. (See revised Sec. 630.1203(j)(3).) For example,
consider an employee who invokes FMLA unpaid leave to care for a
covered servicemember and uses 16 weeks of such leave starting on
August 15, 2022. If the same employee gave birth to a child on October
7, 2022, the employee would be able to use only 10 weeks of FMLA unpaid
leave under Sec. 630.1203(a)(1) during the single 12-month period from
August 15, 2022, to August 14, 2023, since there is a 26-week limit for
that single 12-month period. That would also limit the employee to no
more than 10 weeks of paid parental leave during that single 12-month
period. However, the employee would be able to use FMLA unpaid leave
under Sec. 630.1203(a)(1)--and to substitute 2 weeks of paid parental
leave for that unpaid leave--after August 14, 2023, and no later than
October 6, 2023 (the expiration of the 12-month period following the
birth on October 7, 2022)--since only 12 weeks of paid parental leave
is available in connection with any given birth or placement (i.e.,
only 12 weeks of paid parental leave is available for substitution for
a 12-month period commencing on the date of birth or placement because
the entitlement to FMLA unpaid leave for birth or placement expires at
the end of that 12-month period).
Sec. 630.1206--Substitution of Paid Leave
Section 630.1206, dealing with substitution of paid leave for FMLA
unpaid leave, is revised to reflect changes in the law and to clarify
certain matters. Section 7602(a) of FEPLA amended section 6382(d) of
title 5, United States Code, by making the statutory leave substitution
rules that had applied to all types of FMLA leave apply only to FMLA
leave granted under subparagraphs (C), (D), and (E) of section
6382(a)(1) and section 6382(a)(3)--which deal with an employee's care
of certain family members who have a serious health condition, the
incapacitation of an employee due to a serious health condition, a
qualifying exigency related to certain family members' Armed Forces
deployments, and an employee's care of certain covered servicemembers,
respectively. The paid leave substitution rules for FMLA unpaid leave
granted under subparagraphs (A) and (B) of section 6382(a)(1)--dealing
with a child birth event and with the placement of a child for adoption
or foster care, respectively--are now addressed in a new subsection
(d)(2) of section 6382. Section 630.1206 addresses paid leave
substitution for the various categories of FMLA unpaid leave.
Section 630.1206(b) provides that paid parental leave may be
substituted for FMLA unpaid leave based on a birth or placement event
as provided in the new subpart Q. Paragraph (b) also addresses the
possibility of substituting annual and sick leave for FMLA unpaid leave
based on birth or placement. If an employee has not already (before
birth or placement) begun a 12-month FMLA period, the employee could
have no more than 12 weeks of FMLA unpaid leave between the date of
birth or placement and the date that is 12 months after the date of
birth or placement. Thus, the 12 weeks of paid parental leave would
completely fill any FMLA unpaid leave for birth or placement purposes,
and there would be no opportunity to substitute annual or sick leave.
However, if an employee has a 12-month ``FMLA period'' (as
established under Sec. 630.1203(c)) in progress at the time of birth
or placement, that 12-month FMLA period would end after birth or
placement and before the date that is 12 months after the birth or
placement. When that 12-month FMLA
[[Page 48079]]
period ends, the employee will be eligible to start a new 12-month
entitlement to FMLA unpaid leave for birth or placement. If the
employee uses FMLA unpaid leave and thus commences a new 12-month FMLA
period, the employee will be able to use up to 12 weeks of FMLA unpaid
leave during that period. If that new FMLA period begins during the 12-
month period following the birth or placement, it would be possible for
the employee to use more than 12 weeks of FMLA unpaid leave for birth
or placement purposes between the date of birth or placement and the
date that is 12 months after the date of birth or placement. In that
case, only 12 weeks of paid parental leave could be substituted, since
only 12 weeks of paid parental leave is available in connection with
any given birth or placement (i.e., only 12 weeks of paid parental
leave is available for substitution for a 12-month period beginning on
the date of birth or placement because the entitlement to FMLA unpaid
leave for birth or placement expires at the end of that 12-month
period). An employee would be able to substitute annual or sick leave,
as appropriate, for any remaining unpaid FMLA leave.
Section 630.1206(c) addresses the paid leave substitution rules for
FMLA leave connected to a serious health condition or an exigency. (See
paragraph (3), (4), and (5) of Sec. 630.1203(a), which correspond to
subparagraphs (C), (D) and (E) of section 6382(a)(1), respectively.)
These rules are consistent with existing rules on paid leave
substitution.
Section 630.1206(d) addresses paid leave substitution for FMLA
leave to care for a covered servicemember. These rules are consistent
with statutory rules on paid leave substitution for this category of
FMLA leave. (See section 6382(a)(3), which provides authority to
provide 26 weeks of FMLA unpaid leave in a single 12-month period to
care for a covered servicemember. There are currently no OPM FMLA
regulations regarding this category of leave. In the absence of
regulations, statutory provisions of sections 6382-6383 that refer to
section 6382(a)(3) are governing.)
Section 630.1206(e) states various general rules related to an
employee's entitlement to substitute paid leave. An employee is
entitled to elect whether or not to substitute paid leave for FMLA
unpaid leave, subject to applicable law and regulation. Thus, an agency
may not deny an employee's election to make a substitution permitted
under this section. Nor may an agency require an employee to substitute
paid leave for FMLA leave without pay. Paragraph (4) adds a statement,
not previously included in the FMLA regulations, indicating that an
employee may request to use annual leave or sick leave without invoking
family and medical leave, and, in that case, the agency exercises its
normal authority with respect to approving or disapproving the timing
of when the leave may be used. OPM is aware of misconceptions held by
some that an employee must invoke FMLA for personal and family health
situations for which they could just as easily request sick leave,
thereby preserving their FMLA entitlement for any additional needs that
may arise. Sick leave, under the circumstances specified by statute and
regulation, is an employee entitlement; therefore, an agency generally
may not deny an employee's request to take sick leave outside of FMLA
for a sick leave purpose authorized at Sec. 630.401. (In certain
circumstances--for example, when the timing of a doctor's appointment
is not a medical necessity--an agency may disapprove the timing of an
employee's sick leave request and require the employee to reschedule.)
An employee also has a right to take annual leave, subject to the right
of the agency to schedule the time at which annual leave may be taken.
Therefore, the agency has the right to deny the scheduling of an
employee's annual leave requested outside of an FMLA request, but if
the employee's scheduling of FMLA leave is approved, the employee's
request to substitute annual leave for FMLA leave without pay may not
be denied.
Section 630.1206(f) addresses an employee's obligation to generally
give advance notice of the employee's election to substitute paid leave
for FMLA unpaid leave. In other words, the general rule is that
retroactive substitution is not allowed. However, paragraphs (f)(2)
through (f)(4) do address some limited exceptions. Paragraph (f)(4)
addresses the retroactive substitution of paid parental leave and links
to Sec. 630.1706, which allows retroactive substitution only if an
employee is physically or mentally incapacitated. Under section
6382(d)(2)(F)(i), as added by FEPLA, there is a general requirement
that an employee agree (in writing), before the commencement of paid
parental leave, to perform 12 weeks of work after the use of paid
parental leave concludes. Thus, the law anticipates that paid parental
leave would be provided on a prospective basis after an employee elects
to use the leave and enters into a work obligation agreement.
Sec. 630.1213--Records and Reports
Section 630.1213, dealing with records and reports in connection
with use of FMLA leave, is revised to refer to FMLA leave under the
entire subpart rather than refer solely to leave under Sec.
630.1203(a), since a provision on leave to care for covered
servicemembers has been added in Sec. 630.1203(j). Also, since Sec.
630.1206 has been revised, the reference to the substitution of paid
leave under Sec. 630.1206(b) is being changed to a more general
reference to Sec. 630.1206.
New Subpart Q in 5 CFR Part 630
Sec. 630.1701--Purpose, Applicability, and Agency Responsibilities
Section 630.1701(a) addresses the purpose of the new subpart Q.
Section 630.1701(b) states that subpart Q applies to employees to
whom subpart L applies and also to employees who are covered by agency
FMLA regulations issued under Sec. 630.1201(b)(3)--for example,
certain Department of Defense teachers or employees of certain
nonappropriated fund instrumentalities. In the case of such employees,
the subpart Q regulations will apply, but the agency may issue any
necessary supplemental regulations.
Section 630.1701(c) specifies that agency heads are responsible for
proper administration of subpart Q, including the responsibility of
informing employees of their entitlements and obligations.
Sec. 630.1702--Definitions
Section 630.1702 provides that the definitions in the FMLA
regulations in subpart L are applicable in subpart Q, to the extent
those defined terms are used, except that, to the extent any
definitions of terms have been further revised in Sec. 630.1702(b),
the provisions of that section shall apply for purposes of subpart Q.
Section 630.1702 also provides definitions of additional terms used in
subpart Q--agency, child, birth or placement, FMLA unpaid leave, and
paid parental leave.
The definition of paid parental leave makes clear that paid
parental leave is a type of leave that is used when an employee has a
``parental'' role. A parent who does not maintain a continuing parental
role with respect to a newly born or placed child would not be eligible
for paid parental leave once the parental role has ended.
Sec. 630.1703--Leave Entitlement
Section 630.1703 provides various rules related to the entitlement
to paid parental leave.
[[Page 48080]]
Section 630.1703(a) states that an employee may elect to substitute
available paid parental leave for any FMLA unpaid leave granted based
on the occurrence of a birth or placement (for adoption or foster
care).
Section 630.1703(b) states that the paid parental leave that is
available for substitution is 12 administrative workweeks in connection
with the birth or placement involved. In other words, an employee can
receive up to 12 administrative workweeks of paid parental leave for
each birth or placement event. The entitlement to paid parental leave
is triggered by the actual occurrence of a birth or placement, which
results in the employee having a parental role. Thus, paid parental
leave must only be used after the birth or placement has occurred. Paid
parental leave continues to be available only as long as the employee
has a continuing parental role with respect to the newly born or placed
child. Since paid parental leave is substituting for FMLA unpaid leave,
use of paid parental leave is constrained by the use of FMLA unpaid
leave, which is limited to 12 weeks in any 12-month FMLA period (as
established under Sec. 630.1203(c)).
The regulation explains that, with respect to FMLA leave under
Sec. 630.1203(a) (corresponding to 5 U.S.C. 6382(a)(1)) that is
limited to a total of 12 weeks in any 12-month period, any use of FMLA
unpaid leave for a purpose other than birth or placement may affect an
employee's ability to use the full 12 weeks of paid parental leave
during the 12-month period following a birth or placement. In other
words, an employee will be able to use the full amount of paid parental
leave only to the extent that there are 12 weeks of available FMLA
unpaid leave granted based on birth or placement. For example, if an
employee uses 6 consecutive weeks of FMLA unpaid leave based on the
employee's own serious health condition, the employee could only use 6
weeks of FMLA unpaid leave based on birth or placement (for which paid
parental leave could be substituted) during the 12-month period that
began when the employee commenced using FMLA unpaid leave based on the
employee's serious health condition.
We note that the 12-week entitlement to paid parental leave under 5
U.S.C. 6382(d)(2) is applied on a per employee basis without regard to
movements between different agencies during the 12-month period
following a birth or placement. As long as the employee is covered by
the title 5 FMLA unpaid leave and paid parental leave provisions while
serving in different agencies, the employee would be limited to a total
of 12 weeks of paid parental leave per qualifying birth or placement.
However, if an employee has received paid parental leave benefits in
connection with a given birth or placement under a different paid
parental leave authority applicable to Federal employees (e.g., the
paid parental leave benefit for legislative branch employees in 2
U.S.C. 1312), and moves to a position covered by the title 5 paid
parental leave authority during the 12-month period following birth or
placement, there is no basis for limiting or offsetting title 5 paid
parental leave benefits based on receipt of leave benefits under
another authority.
Section 630.1703(c) and (d) address how the entitlement of 12
administrative workweeks of paid parental leave is converted to hours
or days, depending on the nature of an employee's scheduled tour of
duty and whether leave is charged on an hourly or daily basis. For
example, paragraph (c) gives an example of a regular full-time employee
who has 80 hours in the biweekly scheduled tour of duty and who is
charged leave on an hourly basis. For such an employee, 12
administrative workweeks translate into 480 hours. (12 weeks = 6
biweekly periods. 6 times 80 hours = 480 hours.) Paragraph (c) also
addresses employees with part-time work schedules or uncommon tours.
Paragraph (d) addresses employees who are charged leave on a daily
basis. For example, for an employee who has 8 workdays each biweekly
pay period, 12 administrative workweeks translate to 48 days (12 weeks
= 6 biweekly periods. 8 days times 6 biweekly periods = 48 days.).
Section 630.1703(e) addresses how to recalculate an employee's
unused balance of paid parental leave if there is a change in an
employee's scheduled tour of duty during the 12-month period commencing
on the date of the given birth or placement. For example, if a regular
full-time employee has a balance of 120 hours of unused paid parental
leave for a 12-month period that is in progress and then converts to a
part-time schedule of 20 hours per week, the balance would be
recalculated to be 60 hours. (The new part-time tour is 40 hours
biweekly, compared to 80 for a regular full-time tour. 40/80 times 120
equals 60.)
Section 630.1703(f)(1) provides that an agency may not require an
employee to use annual leave or sick leave to the employee's credit
before allowing the employee to use paid parental leave, consistent
with section 6382(d)(2)(C). Paragraph (f)(1) also states that an
employee may request to use annual leave or sick leave without invoking
FMLA unpaid leave under subpart L. As discussed earlier in connection
with Sec. 630.1206(e), by requesting to use annual or sick leave
without invoking FMLA leave, an employee can preserve entitlement to
use FMLA unpaid leave at another time and to substitute paid parental
leave for that FMLA unpaid leave. For example, an employee who is a
birth mother has an entitlement to use sick leave for the post-birth
recovery period. By using sick leave to cover the post-birth recovery
period, the employee would preserve the ability to invoke FMLA leave
and take an additional 12 weeks of paid parental leave at a later time
(up to 1 year following birth), thus extending the time the employee
can spend with the newly born child. An agency has more control over
the scheduling of an employee's annual leave if it is requested
independent of FMLA leave. However, if an employee invokes FMLA leave
based on the birth or placement of a child, the employee would be
entitled to use that FMLA leave for a continuous block of time
following the birth or placement and then would be entitled to
substitute annual leave for that block of time. (In contrast, FMLA
leave based on the birth or placement of a child may not be taken
intermittently unless the employee and the employing agency agree
otherwise. See section 6382(b) and Sec. 630.1205(a). We note that
employees have a right to substitute paid parental leave for FMLA
unpaid leave for birth/placement purposes. Thus, if an agency agrees to
intermittent use of FMLA unpaid leave for birth/placement purposes, the
agency is, in effect, agreeing to intermittent use of paid parental
leave leave.)
Section 630.1703(f)(2) provides that paid parental leave may not be
used prior to the birth or placement involved. This restriction applies
even if an employee used FMLA unpaid leave for birth or placement
purposes prior to the birth or placement event, as allowed under Sec.
630.1203(d).
Section 630.1703(f)(3) states that an employee with a seasonal work
schedule may not use paid parental leave during the off-season period
designated by the agency--the period during which the employee is
scheduled to be released from work and placed in nonpay status. In
other words, paid parental leave cannot be used as a basis for
extending a seasonal employee's work season. (For employees appointed
under title 5, seasonal employment is addressed in 5 CFR 340.402.)
Section 630.1703(g) provides that, if an employee has any unused
balance of
[[Page 48081]]
paid parental leave remaining at the end of the 12-month period
following the birth or placement involved, the entitlement to the
unused leave expires at that time. The unused leave may not be rolled
over for use in a future period, nor may a payment be made to the
employee for unused paid parental leave that has expired. Paid parental
leave may not be considered annual leave for purposes of making a lump-
sum payment for annual leave or for any other purpose. (See section
6382(d)(2)(D)(ii) and (iii).)
Section 630.1703(h) addresses an agency's authority to require
documentation of leave entitlement and the submission of employee
certifications. At an agency's request, an employee must provide the
agency with appropriate documentation it deems necessary to establish
that the employee's use of paid parental leave is directly connected to
a birth or placement. Appropriate documentation could include, but is
not limited to, a birth certificate or a document from an adoption or
foster care agency regarding the placement. Also, an agency may require
that an employee sign a certification attesting that the paid parental
leave is being taken in connection with a birth or placement that has
occurred. The employee may also be required to attest that the paid
parental leave is being used for appropriate purposes, such as the
birth mother's recovery from giving birth or to care for the child.
(See Sec. 630.1203(g) and (i)). This employee certification may
contain a statement in which the employee acknowledges an understanding
of the consequences of engaging in fraud by providing a false
certification.
The effective date of an employee's election of paid parental leave
may not be delayed because an employee has not provided requested
certifications. However, the granting of paid parental leave will be
considered to be conditional or provisional in nature, subject to the
employee providing agency-required documentation or certification
within required time frames. The required time frame is usually 15
calendar days from the date of an agency request (if any) for
documentation. If it is not practicable for an employee to respond
within the 15-day time frame, despite the employee's diligent, good
faith efforts, the employee must provide the documentation or
certification within a reasonable period of time, but no later than 30
calendar days after the date of the agency's original request. (These
time frames are consistent with the documentation requirements for sick
leave in 5 CFR 630.405(b), the FMLA leave in 5 CFR 630.1208(h) and the
disabled veteran leave in 5 CFR 630.1307(c).) If certain documentation
desired by the agency is not readily available, an agency could require
an employee to self-certify that the leave is being taken for a valid
reason and to commit to providing the documentation as soon as
practicable. If the employee does not provide the documentation, the
agency could then make a request that triggers the 15-day clock.
If agency-requested documentation or certification is not timely
submitted, the agency may invalidate the paid parental leave and
convert the employee to an appropriate nonpay status, which would
result in a salary overpayment debt owed to the agency. An employee may
request that the debt be eliminated by applying annual leave or other
appropriate types of paid time off to the employee's credit to the
affected periods of time. If the agency determines that an employee
fraudulently claimed an entitlement to paid parental leave, the agency
may pursue an appropriate disciplinary action, up to and including
removal from the Federal service.
Sec. 630.1704--Pay During Leave
Section 630.1704(a) states the principle that the pay an employee
receives when using paid parental leave shall be the same pay the
employee would receive if the employee were using annual leave. In
other words, agency payroll systems will apply the same rules they
apply in determining what pay continues during annual leave.
Section 630.1704(b) provides that paid parental leave is a type of
leave that is counted in applying the 8-hour rule in 5 U.S.C. 5545(a)
and 5 CFR 550.122(b) that determines whether night pay is payable
during periods of leave. This is consistent with the treatment of
annual leave.
Section 630.1704(c) provides that the pay received during paid
parental leave may not include Sunday premium pay, consistent with the
statutory bar in section 624 of the Treasury and General Government
Appropriations Act, 1999 (Pub. L. 105-277, div. A, Sec. 101(h),
October 21, 1998).
Sec. 630.1705--Work Obligation
Section 630.1705(a) provides that an employee may not use paid
parental leave unless the employee agrees (in writing), before the
start of paid parental leave, to work for the applicable employing
agency for not less than 12 weeks beginning on the first scheduled
workday after such leave concludes. This means that paid parental leave
may not be provided to an employee unless the employee enters into such
an agreement. (An exception to this rule is provided in cases where an
employee is incapacitated and unable to enter into such agreement. See
Sec. 630.1706.)
Section 630.1705(b) provides rules for interpreting Sec.
630.1705(a). The term ``in writing'' in connection with an employee
agreement is defined to include an acceptable electronic signature. The
term ``work'' means a period during which the employee is in duty
status (i.e., actually working), excluding any periods (paid or unpaid)
of leave, time off, or other nonduty status. (Periods of paid time off
include paid holidays on which an employee does not work. Periods of
other nonduty status include such periods as a furlough or an absence
without leave (AWOL).) Any periods of leave, time off, or other periods
of nonduty status will extend how long it will take the employee to
fulfill the 12-week work obligation. To satisfy the work obligation,
the employee must complete 12 weeks of work regardless of how much
leave he or she takes before satisfying the obligation.
The term ``applicable employing agency'' means the agency employing
the employee at the time use of paid parental leave concludes. The time
paid parental leave concludes is the date that is the workday on which
an employee finishes using 12 administrative workweeks of paid parental
leave during the 12-month period that began on the date of birth or
placement. If the employee does not use 12 administrative workweeks of
paid parental leave during the 12-month period that began on the date
of birth or placement, the day that is the last workday on which an
employee takes paid parental leave is considered to be the date the
paid parental leave concludes.
Section 630.1705(c) provides instructions on how to convert the 12-
week work obligation to hours for employees who are charged leave on an
hourly basis (including fractions of an hour). The 12-week work
obligation must be converted to hours based on the number of hours in
the employee's scheduled tour of duty, consistent with the rules in
Sec. 630.1703(c). If an employee's scheduled tour of duty changes
before the employee completes the 12-week work obligation, the agency
must recalculate the balance of work hours owed, consistent with the
rules in Sec. 630.1703(e).
Section 630.1705(d) provides how to convert the 12-week work
obligation to days for employees who are charged leave on a daily
basis. The days
[[Page 48082]]
equivalent of 12 weeks must be derived based on the average number of
workdays in the employee's established tour of duty over a biweekly pay
period, consistent with the rules in Sec. 630.1703(d).
Section 630.1705(e) provides that, as part of the written agreement
described in Sec. 630.1705(a), an employee must agree that, in the
event the employee does not complete the 12-week work obligation, the
employee will pay the reimbursement amount specified in 630.1705(f)
unless the affected employing agency determines the reimbursement
requirement will not be applied.
Section 630.1705(f) states the rules for applying the reimbursement
requirement when an employee fails to fulfill the work obligation as
stated in the employee's written agreement. Under the work obligation,
an employee is required to return to work for 12 weeks after paid
parental leave concludes. If the employee fails to return to work for
12 weeks, an agency may require a reimbursement equal in amount to the
total amount of any Government contributions paid by the agency on
behalf of the employee to maintain the employee's health insurance
coverage under the Federal Employees Health Benefits Program
established under 5 U.S.C. chapter 89 during the period(s) when paid
parental leave was used. If an agency determines that reimbursement
must be made, it must seek collection of the full amount. There is no
authority for a partial waiver of the amount owed.
Since the statutory language about returning to work shows an
intent that the employee be continuously employed by the applicable
employing agency (i.e., the agency employing the employee at the time
use of paid parental leave concludes) while performing the required 12
weeks of work, the regulation also provides that a separation from that
agency (excluding an intra-agency reassignment without a break in
service) before completion of the required weeks of work will
constitute failure to return to work for 12 weeks.
The determination to impose the reimbursement requirement is
generally within an agency's sole and exclusive discretion. However, an
agency may not impose the reimbursement requirement if the agency
determines that the employee is unable to return to work for the
required 12 weeks because of (1) the continuation, recurrence, or onset
of serious health condition (including mental health) of the employee
or the newly born or placed child that is related to birth or
placement, or (2) any other circumstance beyond the employee's control.
In the case of a newly born or placed child, any serious health
condition of the child will be deemed to be related to the applicable
birth or placement.
We note that clauses (i) and (iii) of section 6382(d)(2)(F) speak
of an employee being ``unable to return to work'' and section
6382(d)(2)(G)(i) speaks of an employee who ``fails to return from paid
leave.'' Given the express requirement in section 6382(d)(2)(F)(i) that
an employee agree to work for the applicable employing agency for 12
weeks after paid parental leave concludes, we are interpreting the
language referenced in the preceding sentence as referring to an
employee who has not returned to work for the 12 weeks to which the
employee committed in the agreement.
Section 630.1705(g) provides that when making a determination to
forbear from requiring a reimbursement, an agency may require an
employee to provide certification from a health care provider
supporting the employee's claim that a serious health condition is
causing the employee to be unable return to work for the required 12
weeks. An agency may require additional examinations and certifications
from other health care providers if it deems it necessary. Any such
additional examinations will be at the agency's expense.
Section 630.1705(h) states the principles governing determinations
that circumstances beyond the employee's control prevent the employee
from completing the 12-week work obligation. (See Sec.
630.1705(f)(ii).) These circumstances must be ones that truly compel an
employee to not return to work with the employing agency. Circumstances
that constitute a matter of employee preference or convenience, such as
an employee choosing to stay home to care for a healthy newborn will
not suffice.
Section 630.1705(i) provides how to apply the reimbursement
requirement described in Sec. 630.1705(f)(1) if more than one agency
provided Government contributions on behalf of an employee for that
employee's health insurance coverage during periods of paid parental
leave. In those cases, the employing agency that employed the employee
at the time use of paid parental leave concluded is responsible for
informing any other affected agency of the employee's failure to
complete the required 12 weeks of work. If an employee fails to
complete the 12-week work obligation, any agency that provided
Government contributions for health insurance during a period of paid
parental leave is responsible for determining whether the reimbursement
requirement associated with a period of agency employment should be
applied. The agency that employed the employee at the time paid
parental leave concludes must first make its reimbursement
determination and then inform any other affected agency of its
determination.
Section 630.1705(j) provides that each agency is responsible for
adopting its own set of policies governing when it will or will not
apply the reimbursement requirement described in Sec. 630.1705(f). A
single agency-wide set of policies should be in place so that employees
within an agency are treated consistently.
Section 630.1705(k) states an imposed reimbursement represents a
debt owed to the affected agency and is subject to collection
procedures under the Federal Claims Collection Standards in 31 CFR
parts 900 through 904.
Sec. 630.1706--Cases of Employee Incapacitation
Section 630.1706 provides the application of paid parental leave in
cases where an employee is incapacitated at the time the use of paid
parental leave would be permissible. Paragraph (a) allows the employee
to retroactively use paid parental leave. This provision allows for the
retroactive election to use paid parental leave under FMLA if the
agency determines that an otherwise eligible employee who could have
made an election during a past period to substitute paid parental leave
and enter a work obligation agreement was physically or mentally
incapable of doing so during that past period. Upon this determination,
the agency must allow the employee, when no longer incapacitated, to
make an election to substitute paid parental leave for applicable FMLA
unpaid leave. The employee must make this election within 5 workdays of
returning to work. As part of such election, the employee must also
sign a work obligation agreement.
Paragraph (b) allows an employee's personal representative to
elect, on behalf of the employee, to substitute paid parental leave for
applicable FMLA unpaid leave (i.e., approved FMLA leave based on birth
or placement of a child). If an agency determines that an otherwise
eligible employee is physically or mentally incapable of making an
election to substitute paid parental leave and entering into a work
obligation agreement, the agency must, upon the request of a personal
representative the agency finds acceptable, provide conditional
[[Page 48083]]
approval of substitution of paid parental leave for applicable FMLA
unpaid leave under Sec. 630.1703(a) on a prospective basis.
An employee covered by paragraph (b) who has been incapacitated
would be required--within 5 workdays after the employee returns to
work--to enter into a written agreement to (1) meet the work obligation
described in Sec. 630.1705 or (2) pay the required reimbursement (if
determined to be applicable).
An employee who does not agree to enter into the required work
obligation agreement will have any used paid parental leave cancelled
and designated as invalid. The invalidated leave that was used based on
the conditional approval during the employee's incapacitation must be
converted to an unpaid absence(s) as ``leave without pay'' (LWOP). An
employee can request to use other types of qualifying paid leave or
other paid time off to the employee's credit to cover the LWOP period.
If the employee does not elect to use other qualifying periods of paid
time off for the LWOP period, the LWOP period represents a debt owed by
the employee to which debt collection procedures apply.
Sec. 630.1707--Cases of Multiple Children Born or Placed in the Same
Time Period
Section 630.1707 addresses the application of paid parental leave
in cases in which an employee has multiple children newly born or
placed in the same time period. If an employee has multiple children
born or placed on the same day, that event will be treated as a single
event triggering a single entitlement of up to 12 weeks of paid
parental leave during the 12-month period following the event. If an
employee has one or more children born or placed during the 12-month
period following the date of an earlier birth or placement, each
subsequent birth or placement event will result in a 12-month period
commencing on the date of birth or placement with its own 12-week
limit. Any use of paid parental leave during a given 12-month period
will count toward that period's 12-week limit. Thus, when such 12-month
periods overlap, any use of paid parental leave during the overlap will
count toward each affected 12-month period's 12-week limit. The
regulations provide an example.
Sec. 630.1708--Records and Reports
Section 630.1708(a) provides that an agency must maintain an
accurate record of an employee's usage of paid parental leave.
Section 630.1708(b) provides that in agency data systems (including
timekeeping systems) and in data reports submitted to OPM, an agency
must record usage of paid parental leave in the manner prescribed by
the Office of Personnel Management.
Executive Order 13563 and Executive Order 12866
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). The
Office of Management and Budget has determined that this is an
economically significant regulatory action. In accordance with the
provisions of Executive Order 12866, this rule was reviewed by the
Office of Management and Budget.
A. Statement of Need
OPM is issuing the rule to implement the Federal Employee Paid
Leave Act. Currently, Federal employees must take unpaid parental leave
unless they use their sick or annual leave during parental leave. This
regulation will provide paid parental leave to parents of newly born or
placed children in the Federal workforce, serving as a model for the
rest of the country.
B. Number of Federal Employees and Economic Impact
This rule applies to Federal civilian employees and the agencies
that employ them covered by FMLA provisions in title 5, United States
Code. We estimate that approximately 2 million Federal civilian
employees will be covered by the interim final rule based on coverage
under title 5 FMLA provisions.
This estimate reflects coverage of most Executive Branch employees.
Employees of certain Executive Branch agencies such as the U.S. Postal
Service, the Postal Regulatory Commission, the Federal Reserve Board,
the Federal Aviation Administration, and the Transportation Security
Administration (TSA) are excluded, as those agencies are not covered by
the title 5 FMLA provisions (except for TSA screener personnel, as
discussed in this SUPPLEMENTARY INFORMATION). This coverage estimate
includes approximately 95,000 employees of nonappropriated fund
instrumentalities described in 5 U.S.C. 2105 (i.e., exchanges and other
entities that conduct activities for the comfort, pleasure,
contentment, and mental and physical improvement of armed forces
personnel) in the Department of Defense and the Coast Guard who are
covered by the title 5 FMLA provisions based on 5 U.S.C. 2105(c)(1)(E).
The estimate excludes employees of the Executive Office of the
President, the Executive Residence at the White House, and the official
residence of the Vice President, as they are covered by FMLA
regulations issued under 3 U.S.C. 412. (See also 3 U.S.C. 401(a)(2)-
(4).) (Note: Under 3 U.S.C. 412(c), the regulations implementing the
title 3 FMLA provisions may be consistent with the title 5 FMLA
regulations.) The estimate excludes approximately 100,000-150,000
employees with temporary appointments or intermittent work schedules,
as such employees are excluded from coverage under title 5 FMLA
provisions.
The estimate includes approximately 26,000 Judicial Branch
employees who are covered by title 5 FMLA provisions. The estimate
excludes Legislative Branch employees, except for approximately 1,600
employees of the Government Publishing Office (GPO), as all other
Legislative Branch employees are not covered by title 5 FMLA
provisions.
While approximately 2 million employees will be covered by this
interim final rule, eligibility depends on the occurrence of a birth of
an employee's child or placement of a child with the employee for
purposes of adoption or foster care. OPM identified annual birth rate
data for mothers and fathers (by age group) in National Vital
Statistics Reports published by the Centers for Disease Control and
Prevention.\1\
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\1\ See https://www.cdc.gov/nchs/data/nvsr/nvsr66/nvsr66_01.pdf
and https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_13-508.pdf.
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OPM then applied that data to Federal civilian employees by gender
and by age group to derive estimates of annual birth events. For the
population of approximately 1.9 million nonseasonal, full-time
permanent Federal employees, OPM estimated that there would be about
51,000 annual birth events (51,248/1,889,147 = 2.71 percent occurrence
rate). We note that a birth may be counted as two birth events if both
parents are covered by this interim final rule. We also note that this
rule may affect birth rates for Federal employees, and that many other
factors unrelated to this rule may affect birth rates. For simplicity,
we use this figure to estimate annual transfers associated with this
rule.
We note that at least two Federal agencies, the Securities and
Exchange Commission (SEC) and the Federal Deposit Insurance Corporation
(FDIC)
[[Page 48084]]
began providing 6 weeks of paid parental leave to their employees--in
October 2019 for SEC and January 2020 for FDIC. These SEC and FDIC
employees will be covered by the title 5 paid parental leave provisions
once they take effect on October 1, 2020. As the employee population at
these two agencies represents only about 0.5 percent of the total
Federal workforce, estimates here are not adjusted for the fact that
these employees have had a lesser paid parental leave benefit for a
period of time. The estimates in this regulatory impact analysis are
necessarily rough in nature and based on a number of simplifying
assumptions, and this has a minor effect on estimates.
OPM used average salaries by gender and by age group to estimate
the dollar value of salary, not including employer-paid benefits, for
12 weeks of paid parental leave in connection with a birth event. If
each birth event resulted in 12 weeks of paid parental leave for an
affected employee, OPM estimated that the total value of the salary
paid during parental leave in a year would be approximately $900
million. This equals about 0.54 percent of total basic payroll for the
1.9 million Federal employees in OPM's study population.
However, the 1.9 million employee population used to generate the
$900 million annual estimate count was based on nonseasonal, full-time
permanent employees in the OPM-managed Governmentwide database and was
not adjusted based on employee coverage under title 5 FMLA provisions.
For example, it included roughly 100,000 FAA and TSA employees but
excluded part-time and seasonal employees. In addition, some employees
covered by title 5 FMLA provisions are not in the OPM database.
However, the 1.9 million employee population included in this database
can reasonably be viewed as representative of the 2.0 million employee
population covered by title 5 FMLA provisions. Based on OPM data, the
2.0 million employee population includes approximately 50,000 part-time
employees. If we assumed that 50,000 of the 100,000 employees between
1.9 million and 2.0 million were part-time employees who on average had
a half-time work schedule, then we would adjust the $900 million
estimate to be $935 million in terms of direct salary costs.
This rule also affects an employee following the occurrence
placement of a child with the employee for purposes of adoption or
foster care. OPM does not have data regarding the extent to which
Federal employees have children placed with them for adoption or foster
care. A National Council for Adoption report stated the annual number
of adoptions in the United States is about 110,000.\2\ The Children's
Bureau of the Department of Health and Human Services collects data on
foster care in the United States. The Children's Bureau reported that
approximately 263,000 children entered the foster care system in fiscal
year (FY) 2018.\3\ That statistic does not account for children who may
have multiple placements while continuously in the foster care system.
The Children's Bureau also reported that about 62,000 of the children
who left the foster care system (25 percent of the total) in FY 2018
were adopted. It also reported that, in 52% of such adoptions (about
32,000), the child was placed with a foster parent. Since the interim
final paid parental leave regulations do not consider such an adoption
to be a new placement triggering the right to use FMLA leave and paid
parental leave, for the purpose of our estimates, those adoptions could
be subtracted from the 110,000 annual count of adoptions. Rather than
make that adjustment, OPM will assume that the number of placements of
foster children already in the foster care system is roughly the same
(32,000) so that the effects are offsetting.
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\2\ https://indd.adobe.com/view/4ae7a823-4140-4f27-961a-cd9f16a5f362.
\3\ https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport26.pdf.
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If we assume there are annually 110,000 adoptions and 260,000
foster care placements, we have 370,000 total placements. This number
can be compared to the number of persons in the United States in the
age range of 18 to 64--an age range that roughly corresponds the age
range for Federal Government employees. According to the July 2019
census data, the total U.S. population was 328,239,523. Of that total,
16% were 65 and older and another 22.4% were under 18, meaning that the
remaining 61.6%, or 202,195,546, were in the 18-64 age range. If we
divide 370,000 by 202 million, we derive 0.18 percent, which represents
the percentage of U.S. adults ages 18-64 who will have an adoption or
foster care placement in a given year. We will assume that the same
percentage of Federal employees will have an adoption or foster care
placement event in a given year. Applying that percentage (0.18
percent) to the 2 million Federal employees covered by the title 5 FMLA
provisions, we estimate that these Federal employees will have 3,600
adoption or foster care placement events annually. In contrast, we
estimated above that these Federal employees will have about 51,000
birth events annually (2.71 percent). The combined event percentage
would be 2.89 percent (2.71 + 0.18), which represents an increase of
about 6.6 percent above the 2.71 percent factor that was used to
generate the direct salary cost estimate of approximately $935 million.
Thus, we can apply that same 6.6 percent adjustment factor to derive a
revised direct salary cost estimate of about $995 million.
OPM also lacks data on Federal employees who might yield custody of
a child for adoption or under a surrogacy arrangement at the time of
birth, which would not generate a 12-week paid parental leave benefit
under the interim final rule. For purposes of this analysis, OPM
assumes these cases will not have a significant effect on the overall
estimates.
C. Transfers
The payment of paid parental leave generates a ``transfer''--a
movement or redistribution of monetary payments from one group to
another that does not affect total resources. The Government is
transferring payments from the general public to Federal employees. For
purposes of these estimates, we assume that the amount of service
performed by Federal employees is not affected by this rule. That means
that staff will perform the work that would have been performed by
employees newly taking parental leave, and that new staff may need to
be hired to complete this work. Employees may also receive additional
payment in cases where they would have otherwise taken other categories
of leave. This implies that total payments to Federal employees will
increase, while total services provided by the Federal workforce will
remain constant.
In the context of paid parental leave, there are a variety of types
of shifts or transfers, depending on what would have otherwise happened
if the employee had not received paid parental leave.
If an employee would have otherwise used leave without pay
for periods covered by paid parental leave, there is an immediate
transfer from the Government to the employee receiving paid parental
leave, but there is no need for other staff to work additional hours to
maintain the level of Government service.
If an employee would have otherwise used annual leave
during periods covered by paid parental leave, the employee will have a
higher balance of annual leave. The employee could use that annual
leave at a later time. If
[[Page 48085]]
so, that has the same effect as paid parental leave replacing work--but
the effect is not immediate. The annual leave used at a later time will
be in place of work hours; thus, to maintain the same level of service,
an agency may need to hire additional staff. On the other hand, the use
of paid parental leave instead of annual leave could cause an employee
to have a higher annual leave balance at the time of separation from
Federal service. In that case, there is no need to hire additional
staff, but an agency would have to make a larger lump-sum payment of
the unused annual-leave balance upon the employee leaving the
Government. Alternatively, an employee with a higher balance of annual
leave could hit the maximum amount of accrued annual leave (240 hours
for most employees) that an employee can carry over into the next year.
If so, excess unused annual leave hours would be lost--some of which
might be connected to higher balances resulting from the employee's use
of paid parental leave instead of annual leave. In that last scenario,
to the extent that the lost excess leave could be viewed as resulting
from paid parental leave, the employee would never use the leave and,
thus, there would be no need to hire additional staff to cover loss
productivity from the use of that leave. We lack data to estimate if
and when, and the extent to which, annual leave lump-sum payments may
be affected. We invite commenters to submit any available data
regarding this matter. So, for those who would have otherwise used
annual leave, the transfer could be delayed to a later point during the
employee's Federal service or to the point of separation from Federal
service, or could never occur due to the annual leave carry-over limit.
If an employee would have otherwise used sick leave during
period covered by paid parental leave, the availability of paid
parental leave will cause the employee to have a higher sick leave
balance. While we lack data, we believe that Federal employees,
particularly birth mothers, use significant amounts of sick leave in
connection with a birth event. While it is possible that some of the
extra sick leave might be used later by an employee in lieu of leave
without pay, we believe that the saved sick leave will generally be
fully reflected in the employee's balance at the time of separation.
For employees who retire with entitlement to an immediate annuity,
unused sick leave is creditable service for the purpose of computing an
employee's retirement annuity. So, for this type of shift, the transfer
is less than the value of the paid parental leave and is delayed until
retirement--and applies only to those with entitlement to an immediate
annuity. The Congressional Budget Office estimated that higher annuity
payments due to increased sick leave balances at retirement (resulting
from availability of paid parental leave) would increase direct
spending by less than $500,000 over the 2020-2029 period.\4\
---------------------------------------------------------------------------
\4\ https://www.cbo.gov/system/files/2019-12/s1790paygosenate.pdf.
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If an employee would otherwise not have taken leave, other
staff will perform the work that would have been performed by that
employee, and new staff may need to be hired to complete this work.
While we have identified scenarios in which the transfers could be
delayed or even, in the sick leave scenario, not equal to the full
value of the paid parental leave, we lack data to estimate the effects
those scenarios will have on annual costs during the 5-year timeframe
for this regulatory impact analysis.
Employees who, after use of paid parental leave concludes, do not
return to duty and complete 12 weeks of work are subject to a possible
reimbursement obligation that is based on the cost of agency
contributions to health insurance premiums during the use of paid
parental leave. However, the employing agency has considerable
discretion in imposing the reimbursement requirement and is barred from
imposing it in some cases. We expect that the number of employees who
do not complete the required 12 weeks of work would be a small
percentage. In light of those factors, we do not believe that the
reimbursement requirement will have a significant impact of transfer
estimates.
In order to estimate transfers, it is necessary to make assumptions
about utilization. We lack data to assume that employees will not take
full advantage of this paid parental leave. We are aware that there is
some data that parental leave is not fully utilized--especially by
males. However, the referenced examples of which we are aware do not
involve full income replacement, as does the new paid parental leave
for Federal employees. Until we have actual experience under the
Federal paid parental leave program, we lack data to assert that
employees will use less than the full amount of leave that is
available. However, we note that the utilization rate substantially
impacts transfer estimates.
We recognize that transfers include the cost of government-paid
benefits as well as for direct salary costs. These include
contributions towards retirement and insurance, Thrift Savings Plan
(TSP) contributions, Social Security and Medicare taxes, and paid leave
and holidays--which would inflate the total compensation costs by about
50 percent above the estimated direct salary costs of $995 million
(i.e., $498 million in benefit costs).
As noted, we lack data to quantify many important aspects of the
effects of this rule on payments to Federal staff. In particular, we
lack data to forecast utilization of paid parental leave, and the
extent to which paid parental leave will replace utilization of sick
leave. Accordingly, at this time, we estimate that the value of
transfers associated with paid parental leave, including salary and
benefits, will be about $1.49 billion ($995 million salary and $498
million benefits) per year before accounting for incomplete utilization
of paid parental leave and shifts in leave utilization from sick leave
to paid parental leave. We estimate that, after accounting for these
factors, the rule will result in transfers of between 60 and 90 percent
of this value. This implies annual transfers of between $890 million
and $1.3 billion, with a mean estimate of $1.1 billion. This represents
under 1 percent of total basic payroll for Federal employees covered by
the title 5 FMLA provisions. We request public comment on these
estimates.
D. Costs
This interim final rule will affect the operations of over 120
Federal agencies--ranging from cabinet-level departments to small
independent agencies. We estimate that this rule will require
individuals employed by these agencies to spend time in order to update
agency policies and procedures for parental leave, and to devote
additional time to manage staffing following increased utilization of
parental leave. For the purpose of this cost analysis, the assumed
average salary rate of Federal employees performing this work will be
the rate in 2020 for GS-14, step 5, from the Washington, DC, locality
pay table ($137,491 annual locality rate and $65.88 hourly locality
rate). We assume that the total dollar value of labor, which includes
wages, benefits, and overhead, is equal to 200 percent of the wage
rate, resulting in an assumed labor cost of $131.76 per hour.
In order to comply with the regulatory changes in this interim
final rule, affected agencies will need to review the rule and update
their policies and procedures. We estimate that, in the first
[[Page 48086]]
year following publication of the final rule, this will require an
average of 160 hours of work by employees with an average hourly cost
of $131.76. This would result in estimated costs in that first year of
implementation of about $21,000 per agency, and about $2.5 million in
total Governmentwide. In addition, agencies will face ongoing
administrative costs (including the administrative costs of
administering the program and hiring and training new staff to replace
lost hours of work) as Federal employees utilize additional parental
leave. We estimate that this will require an average of 520 hours of
work per agency by employees with an average hourly cost of $131.76 in
each year following publication of the final rule. This would result in
estimated annually recurring costs averaging about $69,000 per agency
and about $8.2 million in total Governmentwide.
E. Benefits
As discussed previously, we estimate that this rule results in
shifts in activity toward the care of young children by Federal
employees, and away from other activities. We are unable to quantify
the societal value of the benefits of paid parental leave and the
societal value of activities foregone as a result of the rule. As a
result, we are unable to quantify the net benefit of this shift in
activity.
The benefits of increased parental care of newborn and newly placed
children enabled by paid parental leave are significant and can be
described in qualitative terms. First of all, more Federal employees
will be able to spend significant time with newly born or placed
children during the first year after birth or placement. Various
studies have shown the positive impact of increasing bonding between
parent and child. Paid parental leave is not just a benefit for Federal
employees, but for American society as a whole. It is a significant
benefit that the Federal Government is acting as a role model in
providing paid parental leave to its employees. This could have a large
impact on other employers, influencing them to offer similar benefits.
In turn, parents around the country would be able to spend additional
time bonding with children.
Various studies indicate that paid parental leave may improve the
health of the birth mother and the child. Paid parental leave will
allow parents to preserve annual and sick leave balances for future
family needs. In general, in our society, women have traditionally
borne greater responsibility for caring for children and sacrificing
work careers. This paid parental leave benefit is gender neutral and
also neutral between the birth mother and the other parent. This may
help change expectations that parents have regarding the role each will
play in raising children. It is expected to result in fathers having
more involvement in child care, which could provide significant
societal benefits, such as stronger marriage and family relationships.
We believe that this benefit may support greater income equality
between men and women by reducing the length of interruptions in the
woman's career--by making it easier to have a child and then return to
work. Such a policy may also address women's declining labor force
participation that has been dropping since 2000, which has potential to
positively impact the U.S. economy.
While it is difficult to demonstrate cause and effect when it comes
to adopting one new employee benefit, there are surveys and other
indications that a family-friendly paid parental leave policy can help
make an employer more attractive to job seekers, increase job
satisfaction, increase employee morale and engagement, increase the
likelihood of a birth mother returning to work, and reduce turnover
(i.e., increase retention). While some assert that paid parental leave
will produce monetary benefits that offset gross transfers, we do not
believe it is possible to attribute reductions in spending on
recruitment efforts, training costs, and related effects to a single
factor. This new benefit will likely improve the desirability of
Federal employment, and likely increase the quality of Federal
employees, leading to improved services for the general public. Reduced
turnover can have a positive effect on agency productivity and reduce
the burdens on other employees while reducing recruitment costs. At the
same time, the use of paid parental leave may temporarily increase the
burdens on other employees.
F. Regulatory Alternatives
For the most part, the paid parental leave benefit is established
by statute. The amount of leave is set by statute at 12 weeks for each
eligible employee. By statute, it applies equally to both parents. The
statute requires that paid parental leave be provided via substitution
for FMLA unpaid leave for purposes of birth and placement for adoption
or foster care. The statute requires a fixed 12-week work obligation
after paid parental leave concludes but allows agencies to decide
whether to apply a reimbursement requirement (linked to Government
contributions toward health insurance premiums), subject to specified
limitations. The statute requires that OPM ``shall prescribe
regulations necessary for administration'' of the title 5 FMLA leave
provisions, including the paid parental leave provisions (5 U.S.C.
6387)
In many cases, the OPM regulations are explanatory in nature. OPM
regulations do fill in some policy gaps, but any regulatory decisions
had a marginal impact on transfers, costs, and benefits. OPM considered
alternatives with respect to the documentation that would be required
from employees seeking paid parental leave. One option was to require
documentation in all cases and to specify the necessary types of
documentation in regulation (e.g., birth certificate, adoption agency
letter). The other option was to give the employing agency flexibility
to determine what, if any, documentation would be required. Under this
option, the regulation would give the employing agency authority to
require submission of documentation and/or an employee certification
when it felt it was necessary.
In considering these options, we weighed the burden on supervisors
and employees versus the need to ensure that appropriated monies are
properly used and to prevent fraud. We recognized that in some cases, a
supervisor may have personal knowledge of an employee's situation and a
paperwork requirement would be unnecessary. In general, we believe the
risk of fraud is low--especially in birth cases. We determined that the
regulations should not mandate documentation in all cases, but should
give agencies, as a necessary tool, the authority to require submission
of documentation and/or employee certifications. We also determined
that the employing agency should be responsible for determining what
documentation is sufficient proof of entitlement to paid parental
leave.
G. List of Studies Considered
AEI-Brookings Working Group on Paid Family Leave, ``Paid Family and
Medical Leave: AN ISSUE WHOSE TIME HAS COME''--May 2017, https://www.brookings.edu/wp-content/uploads/2017/06/es_20170606_paidfamilyleave.pdf
AEI-Brookings Working Group on Paid Family Leave, ``The AEI-Brookings
Working Group Report on Paid Family and Medical Leave: CHARTING A PATH
FORWARD''--September 2018, https://www.aei.org/wp-content/uploads/2018/09/The-AEI-Brookings-Working-Group-Report-on-Paid-Family-and-Medical-Leave.pdf
[[Page 48087]]
American Action Forum, ``Analysis of AEI-Brookings Working Group
Proposal on Paid Parental Leave''--June 2017, https://www.americanactionforum.org/research/analysis-aei-brookings-working-group-proposal-paid-parental-leave/
American Action Forum, ``The Fiscal Implications of the FAMILY Act: How
New Paid Leave Benefits Increase Leave-Taking and Drive Up Estimated
Program Costs''--March 2019, https://www.americanactionforum.org/research/the-fiscal-implications-of-the-family-act-how-new-paid-leave-benefits-increase-leave-taking-and-drive-up-estimated-program-costs/
Institute for Women's Policy Research, ``Paid Parental Leave in the
United States: What the data tell us about access, usage, and economic
and health benefits''--January 23, 2014, https://iwpr.org/wp-content/uploads/wpallimport/files/iwpr-export/publications/B334-Paid%20Parental%20Leave%20in%20the%20United%20States.pdf
National Partnership for Women & Families, ``Leading on Leave:
Companies With New or Expanded Paid Leave Policies (2015-2019)''--
August 2019, https://www.nationalpartnership.org/our-work/resources/economic-justice/paid-leave/new-and-expanded-employer-paid-family-leave-policies.pdf
Pew Research Center, ``Americans Widely Support Paid Family and Medical
Leave, but Differ Over Specific Policies''--March 2017, https://www.pewsocialtrends.org/2017/03/23/americans-widely-support-paid-family-and-medical-leave-but-differ-over-specific-policies/
Urban Institute, ``Paid Family Leave in the United States: Time for a
New National Policy''--May 2017, https://www.urban.org/sites/default/files/publication/90201/paid_family_leave_0.pdf
H. Supporting Data Tables
Table 1a--Projected Birth Events for Female Federal Employees Based on Nationwide Maternity Rates
----------------------------------------------------------------------------------------------------------------
Projected number
Number of Federal Nationwide of female Federal
Age group employees * maternity rates employees with
(%) birth event
----------------------------------------------------------------------------------------------------------------
18-19............................................... 246 3.23 8
20-24............................................... 11,345 6.80 771
25-29............................................... 40,412 9.53 3,851
30-34............................................... 77,780 9.97 7,755
35-39............................................... 106,474 5.26 5,601
40-44............................................... 102,229 1.18 1,206
45-49............................................... 109,753 0.09 99
-----------------------------------------------------------
Total........................................... 448,239 .................. 19,291
----------------------------------------------------------------------------------------------------------------
Source of Federal employee counts: FedScope--July 2019; * nonseasonal full-time permanent employees.
Source of maternity rates: National Vital Statistics Reports: Volume 68, number 13, Births: Final Data for 2018
(11-27-19)--See Tables 2 or 5 for birth rates for mothers. Those tables do not show data for higher female age
ranges. https://www.cdc.gov/nchs/data/nvsr/nvsr68/nvsr68_13-508.pdf.
Table 1b--Projected Birth Events for Male Federal Employees Based on Nationwide Paternity Rates
----------------------------------------------------------------------------------------------------------------
Projected number
Number of Federal Nationwide of male Federal
Age group employees * paternity rates employees with
(%) birth event
----------------------------------------------------------------------------------------------------------------
18-19............................................... 461 1.04 5
20-24............................................... 16,493 5.16 851
25-29............................................... 53,526 8.74 4,678
30-34............................................... 103,909 10.38 10,786
35-39............................................... 142,268 6.91 9,831
40-44............................................... 132,208 2.86 3,781
45-49............................................... 147,679 0.96 1,418
50-54............................................... 165,670 0.29 480
55+................................................. 317,653 0.04 127
-----------------------------------------------------------
Total........................................... 1,079,867 .................. 31,957
----------------------------------------------------------------------------------------------------------------
Source of Federal employee counts: FedScope--July 2019; * nonseasonal full-time permanent employees.
Source of paternity rates: National Vital Statistics Reports: Volume 66, number 1, Births: Final Data for 2015
(1-5-17)--see Table 17 for birth rates for fathers. https://www.cdc.gov/nchs/data/nvsr/nvsr66/nvsr66_01.pdf.
Table 2--Average Salary for Female and Male Employees
------------------------------------------------------------------------
Female average Male average
Age group salary salary
------------------------------------------------------------------------
18-19........................... $32,808 $36,196
20-24........................... 46,172 49,799
25-29........................... 59,505 61,333
30-34........................... 73,703 74,974
35-39........................... 82,216 84,045
40-44........................... 86,048 89,418
[[Page 48088]]
45-49........................... 88,324 92,057
50-54........................... .................. 96,413
55+............................. .................. 99,732
---------------------------------------
Weighted average salary..... 73,070 77,979
---------------------------------------
Hourly rate................. 35.01 37.36
------------------------------------------------------------------------
Source of Federal employee average salary by age group: FedScope--July
2019; nonseasonal full-time permanent employees.
Weighted average salary computed separately for females and males by
multiplying number of projected births in age group (from Table 1a) by
respective average salary, summing those products for each age group,
and dividing that sum by the number of birth events (i.e., weighted
average weighted based on number of births by age group). Then derive
average hourly rate by dividing weighted average salary by 2087.
Table 3--Projected Salary Cost and Birth Event Percentage
----------------------------------------------------------------------------------------------------------------
Females Males
----------------------------------------------------------------------------------------------------------------
Hourly rate............................ $35.01............................. $37.36
No. hours of leave (12 weeks).......... 480 hours.......................... 480 hours
Total cost by gender................... $324,181,397....................... $573,078,490
------------------------------------------------------------------------
Total Combined Cost (direct salary $897,259,886
costs).
------------------------------------------------------------------------
Total annual birth events.............. 51,248
------------------------------------------------------------------------
Total employees (all ages) *........... 1,889,147
------------------------------------------------------------------------
Percentage of all employees * 2.71%
having a birth event in a year.
----------------------------------------------------------------------------------------------------------------
Source of number of Federal employees (all ages): FedScope--July 2019; * nonseasonal full-time permanent
employees.
Table 4--Projected Salary Cost for Birth and Placements
------------------------------------------------------------------------
------------------------------------------------------------------------
Total number of covered employees * (all ages)...... 2,000,000
Percentage of all employees * having a birth event 2.71%
in a year..........................................
Total annual birth events........................... 54,200
Percentage of all employees * having an adoption/ 0.18%
foster care placement event in a year..............
Total annual placement events....................... 3,600
Combined percentage of all employees* have a birth 2.89%
or placement event.................................
Total annual birth/placement events................. 57,800
Total direct salary costs........................... $995 million
------------------------------------------------------------------------
Source of number of Federal employees (all ages): FedScope--July 2019
and other data sources for employees not in FedScope; * full-time and
part-time permanent employees.
Executive Order 13771
This interim final rule is considered an Executive Order 13771 (82
FR 9339, February 3, 2017) regulatory action. We estimate that this
rule generates $5.9 million in annualized costs, in 2016 dollars,
discounted at seven percent over a perpetual time horizon relative to
2016.
Regulatory Flexibility Act
I certify that this regulation will not have a significant economic
impact on a substantial number of small entities because it will apply
only to Federal agencies and employees.
Waiver of Proposed Rulemaking
OPM is issuing this rulemaking as an interim final rule and has
determined that, under the Administrative Procedure Act (APA), 5 U.S.C.
553(b)(B), it would be impracticable and contrary to the public
interest to delay a final regulation until a public notice and comment
process has been completed. For the same reasons, under the Civil
Service Reform Act's parallel rulemaking provision, 5 U.S.C.
1103(b)(3), OPM is waiving general notice of proposed rulemaking
because the interim rule is temporary in nature and necessary to be
implemented expeditiously as a result of an emergency.
The conclusion of a public notice and comment period before the
rule is finalized would be impracticable because it would impede due
and timely execution of OPM's functions. Specifically, OPM issuing an
interim final rule is required by events and circumstances beyond its
control, which were not foreseen in time to comply with the usual
notice and comment procedures. On December 20, 2019, the Federal
Employee Paid Leave Act (the Act) was enacted, in which Congress set
the effective date for the new paid parental leave rules as October 1,
2020, just 9 months after enactment. This was insufficient time for the
notice and comment rulemaking process because of the need for OPM to
conduct a detailed regulatory impact analysis accounting for costs,
benefits, and alternatives, and because the regulation requires
significant changes to personnel processing and payroll systems at
Federal agencies. To properly prepare for the congressionally-mandated
effective date of the new rules on paid parental leave, agencies need
this regulation to be promulgated with sufficient lead time to create
internal policies and procedures, to modify their payroll systems, to
retrain their human resources staff, and to provide effective notice to
eligible employees.
[[Page 48089]]
In addition to the short window for preparing this rule, OPM has
had to unexpectedly devote its pay and leave policy resources to
coordinate Federal employee policies in response to the COVID-19 public
health emergency during this time period, including implementing the
Families First Coronavirus Response Act, Public Law 116-127 and the
Coronavirus Aid, Relief, and Economic Security Act, Public Law 116-136,
and advising agencies on the optimal use of pay, leave, and incentives
to respond to the national emergency. As such, 9 months was an
insufficient amount of time for OPM to publish a notice of proposed
rulemaking seeking public comments and a final rule responding to
comments with enough lead time for agencies to prepare for the October
1, 2020 deadline.
The conclusion of a public notice and comment period before the
rule is finalized would be also be contrary to public interest, because
it would result in serious damage to important interests. If OPM does
not have regulations in place with sufficient lead time for over 120
Federal agencies to implement their policies and procedures, and
payroll systems, eligible employees may not be able to claim their paid
parental leave benefits on October 1, 2020. Likewise, ensuring that
expectant parents have complete information about paid parental leave
policies will allow them to prepare for taking paid parental leave.
Thus, OPM has determined that the rule must be implemented
expeditiously as a result of an emergency.
For these reasons, OPM has determined that the public notice and
participation that the law ordinarily requires would, in this case, be
impracticable and contrary to the public interest and that good cause
exists for waiving proposed rulemaking and delaying its solicitation of
comments from the public until after it issues an interim final rule.
The interim final rule is temporary in nature, and OPM will promulgate
a final rule as soon as practical after receiving public comments on
the interim final rule.
Congressional Review Act (CRA)
This action is subject to the CRA, 5 U.S.C. 801 et seq., and OPM
will submit a rule report to each House of the Congress and to the
Comptroller General of the United States. This action is a ``major
rule'' as defined by 5 U.S.C. 804(2).
Paperwork Reduction Act Requirements
This rule does not impose any new reporting or record-keeping
requirements subject to the Paperwork Reduction Act.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.
For the reasons stated in the preamble, OPM amends part 630 of
title 5 of the Code of Federal Regulations as follows:
PART 630--ABSENCE AND LEAVE
0
1. Revise the authority citation for part 630 to read as follows:
Authority: 5 U.S.C. chapter 63 as follows: Subparts A through E
issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129), 6303(e) and
(f), 6304(d)(2), 6306(b), 6308(a), and 6311; subpart F issued under
5 U.S.C. 6305(a) and 6311 and E.O. 11228, 30 FR 7739, 3 CFR, 1974
Comp., p. 163; subpart G issued under 5 U.S.C. 6305(c) and 6311;
subpart H issued under 5 U.S.C. 6133(a) (read with 5 U.S.C. 6129)
and 6326(b); subpart I issued under 5 U.S.C. 6332, 6334(c),
6336(a)(1) and (d), and 6340; subpart J issued under 5 U.S.C. 6340,
6363, 6365(d), 6367(e), and 6373(a); subpart K issued under 5 U.S.C.
6391(g); subpart L issued under 5 U.S.C. 6383(f) and 6387; subpart M
issued under sec. 2(d), Pub. L. 114-75, 129 Stat. 641 (5 U.S.C. 6329
note); subpart P issued under 5 U.S.C. 6329c(d); and subpart Q
issued under 5 U.S.C. 6387.
Subpart L--Family and Medical Leave
0
2. Amend Sec. 630.1201 as follows:
0
a. Revise the section heading;
0
b. Add a new sentence at the end of paragraph (a);
0
c. Revise paragraph (b)(1);
0
d. Amend paragraph (b)(3)(iii) by removing ``Transportation'' and
adding ``Homeland Security'' in its place;
0
e. Amend paragraph (b)(4) by removing ``Transportation'' and adding
``Homeland Security'' in its place; and
0
f. Revise paragraph (c).
The revisions and addition read as follows:
Sec. 630.1201 Purpose, applicability, and agency responsibilities.
(a) * * * This subpart also provides the basis for determining the
periods of unpaid leave for which paid parental leave may be
substituted under subpart Q of this part, which must be read with this
subpart to establish eligibility.
(b) Applicability. (1) Except as otherwise provided in paragraph
(b)(2) of this section, this subpart applies to any employee who--
(i)(A) Is defined as an ``employee'' under 5 U.S.C. 6301(2); or
(B) Is an employee carrying out screening functions who is
appointed under section 111(d) of Public Law 107-71 (49 U.S.C. 44935
note); and
(ii) Has completed at least 12 months of service (excluding any
service as an employee identified in paragraph (b)(2) of this section)
at any time as--
(A) An employee, as defined under 5 U.S.C. 6301(2);
(B) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7421;
(C) A ``teacher'' or an individual holding a ``teaching position,''
as defined in section 901 of title 20, United States Code;
(D) An employee identified in section 2105(c) of title 5, United
States Code, who is paid from nonappropriated funds;
(E) An employee carrying out screening functions who is appointed
under section 111(d) of Public Law 107-71 (49 U.S.C. 44935 note); or
(F) An employee performing covered active duty (as defined in 5
U.S.C. 6381(7)(B)) that interrupts civilian service due to a qualifying
call or order for deployment to a foreign country as a member of the
National Guard or Reserves, to the extent that such active duty is not
already creditable service under paragraphs (A) through (E) of this
paragraph (b)(1)(ii).
* * * * *
(c) Agency responsibilities. The head of an agency having employees
subject to this subpart is responsible for the proper administration of
this subpart, including the responsibility of informing employees of
their entitlements and obligations.
0
3. Amend Sec. 630.1202 as follows:
0
a. Revise the definition for ``Administrative workweek'';
0
b. Add a definition for ``Birth'';
0
c. Revise the definition for ``Family and medical leave'';
0
d. Revise the definition for ``Leave without pay'';
0
e. Add a definition for ``Placement'';
0
f. Revise the definitions for ``Reduced leave schedule'';
0
g. Remove the definitions for ``Regularly scheduled,'' and ``Regularly
scheduled administrative workweek'';
0
h. Add a definition for ``Scheduled tour of duty''; and
0
i. Remove the definition for ``Tour of duty''.
The revisions and additions read as follows:
Sec. 630.1202 Definitions.
* * * * *
[[Page 48090]]
Administrative workweek means the scheduled tour of duty within the
workweek established by the agency for an employee under the definition
of ``administrative workweek'' in 5 CFR 610.102.
* * * * *
Birth means the delivery of a living child. When the term ``birth''
is used in connection with the use of leave under this subpart before
birth, it refers to an anticipated birth.
* * * * *
Family and medical leave means an employee's entitlement to 12
administrative workweeks (or 26 administrative workweeks in the case of
leave under Sec. 630.1203(j)) of unpaid leave for certain family and
medical needs, as prescribed under sections 6381 through 6387 of title
5, United States Code.
* * * * *
Leave without pay means an approved absence from duty in a nonpay
status during an employee's scheduled tour of duty.
* * * * *
Placement means a new placement of a son or daughter with an
employee for adoption or foster care. For example, this excludes the
adoption of a stepchild or a foster child who has already been a member
of the employee's household and has an existing parent-child
relationship with an adopting parent. When the term ``placement'' is
used in connection with the use of leave under this subpart before
placement has occurred, it refers to a planned or anticipated
placement.
Reduced leave schedule means a daily or weekly work schedule under
which the usual number of hours actually worked during the employee's
scheduled tour of duty are reduced as a result of the increased use of
leave.
Scheduled tour of duty means the regular work hours in an
established full-time or part-time work schedule during which an
employee is charged leave or time off when absent. A seasonal employee
is not considered to have such a tour during off-season periods when
the employee is scheduled to be released from work and placed in full-
time nonpay status.
* * * * *
0
4. Amend Sec. 630.1203 as follows:
0
a. Revise paragraph (a)(2);
0
b. Amend paragraph (b) by removing ``2 workdays'' and adding ``5
workdays'' in its place;
0
c. Revise paragraphs (d), (e), (f), and (g); and
0
d. Add paragraphs (i) and (j).
The revisions and additions read as follows:
Sec. 630.1203 Leave entitlement.
(a) * * *
(2) The placement of a son or daughter with the employee for
adoption or foster care and the care of such son or daughter.
* * * * *
(d)(1) The entitlement to leave under paragraphs (a)(1) and (2) of
this section shall expire at the end of the 12-month period beginning
on the date of birth or placement. Leave for a birth or placement must
be concluded within this 12-month period.
(2)(i) Leave taken under paragraphs (a)(1) and (2) of this section,
may begin prior to the actual date of birth or placement for adoption
or foster care.
(ii) Use of leave under paragraph (a)(1) of this section before the
date of birth is limited to situations in which an employee is using
the leave--
(A) Because of the employee's serious health condition related to
the anticipated event of the employee giving birth to a son or
daughter; or
(B) In order to care for the birth mother of the employee's
expected son or daughter in connection with the birth mother's serious
health condition related to pregnancy.
(iii) Use of leave under paragraph (a)(2) before the date of
placement is limited to situations in which the employee must be absent
to engage in activities necessary to allow an anticipated adoption or a
foster care arrangement to proceed.
(e)(1) Family and medical leave under this subpart is available to
full-time and part-time employees. The entitlement to a total of 12
administrative workweeks of leave in connection with leave granted
under paragraph (a) of this section must be converted to hours or days,
as provided in paragraphs (e)(2) and (e)(3) of this section. Leave
under paragraph (a) allows an employee to be absent during the
employee's scheduled tour of duty established for leave charging
purposes. Such leave is not applied to days designated as holidays and
other nonworkdays when the employee would be excused from duty.
(2) For employees who are charged leave on an hourly basis
(including fractions of an hour), the 12 administrative workweeks
referenced in paragraph (a) of this section must be converted to hours
based on the number of hours in the employee's scheduled tour of duty
(at the time the 12-month period of leave eligibility commences)
subject to the following rules:
(i) For a regular full-time employee with 80 hours in the scheduled
tour of duty over a biweekly pay period, the hours equivalent of 12
administrative workweeks is 480 hours.
(ii) For a full-time employee with an uncommon tour of duty (as
defined in Sec. 630.201 and described in Sec. 630.210), the hours
equivalent of 12 administrative workweeks is derived by multiplying 6
times the number of hours in the employee's biweekly scheduled tour of
duty (or 6 times the average hours if the biweekly tour hours vary over
an established cycle). For example, if an employee has an uncommon tour
consisting of six 24-hour shifts (144 hours) per biweekly pay period,
the amount would be 864 hours.
(iii) For a part-time employee, the hours equivalent of 12
administrative workweeks is derived by multiplying 6 times the number
of hours in the employee's scheduled tour of duty over a biweekly pay
period. For example, if an employee has a part-time scheduled tour of
duty that consists of 40 hours in a biweekly pay period, the amount
would be 240 hours.
(3) For employees who are charged leave on a daily basis, the days
equivalent of 12 administrative workweeks must be derived based on the
average number of workdays in the employee's established tour of duty
over a biweekly pay period. For example, if an employee had 8 workdays
each biweekly pay period, the days equivalent of 12 administrative
workweeks would be 48 days.
(f) If there is a change in an employee's scheduled tour of duty
during any 12-month period that commenced due to use of family and
medical leave, and the employee has not used the full allotment of
family and medical leave during such 12-month period, the remaining
balance of family and medical leave must be recalculated based on the
change in the number of average hours in the employee's scheduled tour
of duty. For example, if a regular full-time employee has a balance of
120 hours of unused family and medical leave for a 12-month period that
is in progress and then converts to a part-time schedule of 20 hours
per week, the balance would be recalculated to be 60 hours. (Since the
old schedule was 80 hours biweekly or an average of 40 hours weekly,
the new part-time tour is half of the former full-time tour. 40/80
times 120 equals 60.)
(g) Leave taken because of the birth of a son or daughter of the
employee, as described in paragraph (a)(1) of this section, includes
leave necessary for an employee who is the birth mother to recover from
giving birth, or for an employee who is the other parent to care for
the birth mother during her recovery period, even if the employee is
not involved in caring for the son or
[[Page 48091]]
daughter during portions of that recovery period.
* * * * *
(i) Leave taken in order to care for a newly born or placed son or
daughter, as described in paragraphs (a)(1) and (a)(2) of this section,
generally refers to leave covering periods when the parent-employee is
in the home with the child or is otherwise involved in spending time
with the child (bonding). It may include short periods away from the
child's physical presence to purchase supplies needed to care for the
child (e.g., buying baby food, diapers, or other supplies). Leave based
on the ``care'' language in paragraph (a)(1) of this section would not
be appropriate if an employee is not engaged in activities directly
connected to care of the child--for example, if the employee is
physically located outside the local geographic area where the child is
located.
(j)(1) For family and medical leave granted in connection with care
of a covered servicemember under 5 U.S.C. 6382(a)(3) and (4), the leave
entitlement is 26 administrative workweeks in a single 12-month period.
This leave applies to an employee who is the spouse, son, daughter,
parent, or next of kin of a covered servicemember and who provides care
for the covered servicemember. In applying this leave, the definitions
in 5 U.S.C. 6381(8) through (12) must be applied.
(2) The entitlement of 26 administrative workweeks of leave
described in paragraph (j)(1) of this section must be converted to
hours or days, consistent with the methodologies set forth in paragraph
(e) of this section. Any recalculation of the unused leave entitlement
due to a change in the employee's scheduled tour of duty must be made
in a manner consistent with the methodology described in paragraph (f)
of this section.
(3) If an employee receives leave under this paragraph (j) and
leave under paragraph (a) of this section during the single 12-month
period, the combined amount of leave in that period may not exceed 26
administrative workweeks. With respect to the single 12-month period,
an employee who uses more than 14 weeks of leave under this paragraph
(j) will not be able to use the full allotment of 12 administrative
workweeks in connection with leave granted under paragraph (a) of this
section. The leave granted under this paragraph (j) will not count
against the employee's 12-week FMLA entitlement in any other 12-month
period, as established under paragraph (a) of this section. For
example, consider an employee who invokes family and medical leave to
care for a covered servicemember and uses 16 weeks of such leave
starting on August 15, 2022. If the same employee gave birth to a child
on October 7, 2022, the employee would be able to use only 10 weeks of
family and medical leave under Sec. 630.1203(a)(1) during the single
12-month period from August 15, 2022, to August 14, 2023, since there
is a 26-week limit for that single 12-month period. That would also
limit the employee to no more than 10 weeks of paid parental leave
during that single 12-month period. However, the employee would be able
to use family and medical leave under Sec. 630.1203(a)(1) after August
14, 2023, and before the expiration of the 12-month period following
the birth on October 6, 2023, and could substitute (to the extent
possible) any remaining amount of the employee's 12 weeks of paid
parental leave, or substitute annual leave or sick leave, if
applicable.
(4) In addressing requests to use intermittent leave, or leave on a
reduced leave schedule, in connection with leave under this paragraph
(j), an agency is subject to the same rules that govern such requests
for leave under paragraphs (a)(3) and (a)(4) of this section. (See 5
U.S.C. 6382(b) and Sec. 630.1205.)
(5) Employees who seek to use leave under this paragraph (j) are
subject to the same notification and scheduling requirements that apply
to employees receiving leave under paragraph (a)(1) through (4) of this
section in parallel circumstances. (See 5 U.S.C. 6382(e)(1) and (2) and
Sec. 630.1207.)
(6) An agency may require that a request for leave under this
paragraph (j) be supported by a medical certification, as provided by 5
U.S.C. 6383(f).
0
5. Revise Sec. 630.1206 to read as follows:
Sec. 630.1206 Substitution of paid leave.
(a) Leave without pay. Except as otherwise provided in this
section, family and medical leave taken under Sec. 630.1203(a) must be
leave without pay.
(b) Leave connected to birth or placement. (1) For family and
medical leave taken under Sec. 630.1203(a)(1) or (2) (corresponding to
subparagraphs (A) and (B) of 5 U.S.C. 6382(a)(1), respectively), an
employee may elect to substitute--
(i) Up to 12 administrative workweeks of paid parental leave in
connection with the occurrence of a birth or placement, as provided in
subpart Q of this part; and
(ii) Any annual or sick leave to the employee's credit for such
family and medical leave not covered by paid parental leave.
(2) The annual or sick leave to the employee's credit under
paragraph (b)(1)(ii) of this section consists of the following:
(i) Accrued or accumulated annual or sick leave under subchapter I
of chapter 63 of title 5, United States Code (or equivalent annual or
sick leave under another authority), without regard to the normal
limitations on the use of sick leave;
(ii) Advanced annual or sick leave approved under the same terms
and conditions that apply to any other agency employee who requests
advanced annual or sick leave, except that the normal limitations on
the use of sick leave are not applicable; and
(iii) Annual leave donated to an employee under the Voluntary Leave
Transfer Program or the Voluntary Leave Bank Program, consistent with
subparts I and J of this part, or equivalent donated annual leave under
another authority.
(c) Leave connected to serious health condition or exigency. For
family and medical leave taken under Sec. 630.1203(a)(3), (4), or (5)
(corresponding to subparagraphs (C), (D) and (E) of 5 U.S.C.
6382(a)(1), respectively), an employee may elect to substitute the
following paid leave for any or all of the leave without pay:
(1) Accrued or accumulated annual or sick leave under subchapter I
of chapter 63 of title 5, United States Code (or equivalent annual or
sick leave under another authority), consistent with the law and
regulations governing the granting and use of annual or sick leave
(including the limitations on the purposes for which sick leave may be
used under Sec. 630.401(a) and the hours limitations in Sec.
630.401(b) through (e));
(2) Advanced annual or sick leave approved under the same terms and
conditions that apply to any other agency employee who requests
advanced annual or sick leave; and
(3) Annual leave donated to an employee under the Voluntary Leave
Transfer Program or the Voluntary Leave Bank Program, consistent with
subparts I and J of this part, or equivalent donated annual leave under
another authority.
(d) Leave to care for a covered servicemember. For family and
medical leave taken under Sec. 630.1203(j) (corresponding to 5 U.S.C.
6382(a)(3) and (4)), an employee may elect to substitute the annual and
sick leave identified in paragraph (c) of this section, except that any
sick leave
[[Page 48092]]
credited to the employee may be substituted without regard to any of
the normally applicable limitations on the use of sick leave.
(e) Employee entitlement to substitute. (1) An employee is entitled
to elect whether or not to substitute paid leave for leave without pay
under this subpart, as permitted in this section.
(2) An agency may not deny an employee's election to make a
substitution permitted under this section.
(3) An agency may not require an employee to substitute paid leave
for leave without pay.
(4) An employee may request to use annual leave or sick leave
without invoking family and medical leave, and, in that case, the
agency exercises its normal authority with respect to approving or
disapproving the timing of when the leave may be used.
(f) Notification by employee and retroactive substitution. (1) An
employee must notify the agency of the employee's election to
substitute paid leave for leave without pay under this section prior to
the date such paid leave commences (i.e., no retroactive substitution),
except as provided in paragraphs (f)(2) through (f)(4) of this section.
(2) An employee may retroactively substitute annual leave or sick
leave for leave without pay granted under this subpart covering a past
period of time, if the substitution is made in conjunction with the
retroactive granting of leave without pay under Sec. 630.1203(b).
(3) An employee may retroactively substitute transferred (donated)
annual leave for leave without pay granted under this subpart in the
circumstances covered by Sec. Sec. 630.909(d) or 630.1009(d).
(4) An employee may retroactively substitute paid parental leave
for applicable leave without pay granted under this subpart, as
provided in Sec. 630.1706(a) and subject to the requirements governing
paid parental leave in subpart Q of this part. If the employee's leave
without pay was not granted on a prospective basis under this subpart,
the retroactive substitution of paid parental leave may not be made
unless the leave without pay period has been retroactively designated
as leave under this subpart, as allowed under Sec. 630.1203(b).
0
6. Revise Sec. 630.1213(b)(3) to read as follows:
Sec. 630.1213 Records and reports.
* * * * *
(b) * * *
(3) The number of hours or days of leave taken under this subpart,
including any paid leave substituted for leave without pay under Sec.
630.1206; and
* * * * *
0
7. Add subpart Q to read as follows:
Subpart Q--Paid Parental Leave
Sec.
630.1701 Purpose, applicability, and agency responsibilities.
630.1702 Definitions.
630.1703 Leave entitlement.
630.1704 Pay during leave.
630.1705 Work obligation.
630.1706 Cases of employee incapacitation.
630.1707 Cases of multiple children born or placed in the same time
period.
630.1708 Records and reports.
Subpart Q--Paid Parental Leave
Sec. 630.1701 Purpose, applicability, and agency responsibilities.
(a) Purpose. This subpart provides regulations to govern the
granting of paid parental leave to covered employees. Since paid
parental leave may only be substituted for unpaid leave granted
following a birth or placement under specific provisions of the Family
and Medical Leave Act in title 5, United States Code--specifically,
section 6382(a)(1)(A) and (B) in 5 U.S.C. chapter 63, subchapter V--
this subpart links to subpart L (Family and Medical Leave) of this
part.
(b) Applicability. (1) Except as otherwise provided in this
paragraph (b), this subpart applies to employees to whom subpart L of
this part applies, as provided in Sec. 630.1201(b).
(2) An agency head authorized to issue regulations on family and
medical leave under 5 U.S.C. chapter 63, subchapter V, as provided in
Sec. 630.1201(b)(3), is authorized to issue any necessary supplemental
regulations on paid parental leave, providing those supplemental
regulations are consistent with the regulations in this subpart.
(3) This subpart applies to a birth or placement occurring on or
after October 1, 2020. Paid parental leave may not be provided under
this subpart for any period of time before October 1, 2020.
(c) Agency responsibilities. The head of an agency having employees
covered by this subpart is responsible for the proper administration of
this subpart, including the responsibility of informing employees of
their entitlements and obligations.
Sec. 630.1702 Definitions.
(a) Applicability of subpart L definitions. The definitions of
terms in Sec. 630.1202 are applicable in this subpart to the extent
the terms are used, except that, to the extent any definitions of terms
have been further revised in Sec. 630.1702(b), the provisions of that
section shall apply for purposes of this subpart.
(b) Other definitions. In this subpart--
Agency means an Executive agency as defined in 5 U.S.C. 105,
excluding the Government Accountability Office. When the term
``agency'' is used in the context of an agency making determinations or
taking actions, it means the agency head or management officials who
are authorized (including by delegation) to make the given
determination or take the given action.
Birth or placement means the birth of a son or daughter of a
covered employee, or a new placement of a son or daughter with a
covered employee for adoption or foster care, that is the basis for
unpaid leave granted under Sec. 630.1203(a)(1) or (2) (which
correspond to 5 U.S.C. 6382(a)(1)(A) or (B), respectively). For the
purpose of interpreting this definition, the terms birth and placement
have the meanings given those terms in Sec. 630.1202, except that paid
parental leave may not be granted based on an anticipated birth or
placement.
Child means a son or daughter as defined in Sec. 630.1202 whose
birth or placement is the basis for entitlement to paid parental leave.
FMLA unpaid leave means leave without pay granted under the Family
and Medical Leave Act (FMLA) regulations in subpart L of this part.
Paid parental leave means paid time off from an employee's
scheduled tour of duty that is authorized under 5 U.S.C.
6382(d)(2)(B)(i) and this subpart and that is granted to cover periods
of time within the 12-month period commencing on the date of birth or
placement to an employee who has a current parental role in connection
with the child whose birth or placement was the basis for granting FMLA
unpaid leave under Sec. 630.1203(a)(1) or (2). This leave is not
available to an employee who does not have a current parental role.
Sec. 630.1703 Leave entitlement.
(a) Election. An employee may elect to substitute available paid
parental leave for any FMLA unpaid leave granted under Sec.
630.1203(a)(1) or (2) (which correspond to 5 U.S.C. 6382(a)(1)(A) or
(B), respectively) in connection with the occurrence of a birth or
placement. (See Sec. 630.1206(b).)
(b) Available paid parental leave. (1) The paid parental leave that
is available for purposes of paragraph (a) of this section is 12
administrative workweeks in connection with the birth or placement
involved. The entitlement to paid parental leave is triggered by the
[[Page 48093]]
occurrence of a birth or placement. The paid parental leave is
considered to be available only if the employee has a continuing
parental role with respect to the child whose birth or placement
triggered the leave entitlement. The 12 administrative workweeks of
paid parental leave may be used only during the 12-month period
beginning on the date of the birth or placement involved.
(2) Since an employee may use only 12 weeks of FMLA unpaid leave in
any 12-month period under Sec. 630.1203(a), use of FMLA unpaid leave
not associated with paid parental leave may affect an employee's
ability to use the full 12 weeks of paid parental leave.
Notwithstanding paragraph (b)(1) of this section, an employee will be
able to use the full amount of paid parental leave only to the extent
that there are 12 weeks of available FMLA unpaid leave granted under
the birth or placement provisions in Sec. 630.1203(a)(1) or (2) during
the 12-month period commencing on the date of birth or placement. The
availability of paid parental leave will depend on when the employee
uses various types of FMLA unpaid leave relative to any 12-month period
established under Sec. 630.1203(c).
(c) Conversion of weeks to hours. For employees who are charged
leave on an hourly basis (including fractions of an hour), the 12
administrative workweeks referenced in paragraph (b) of this section
must be converted to hours based on the number of hours in the
employee's scheduled tour of duty (as in effect on the date the
employee begins a period of using paid parental leave) as follows:
(1) For a regular full-time employee with 80 hours in the scheduled
tour of duty over a biweekly pay period, the hours equivalent of 12
administrative workweeks is 480 hours.
(2) For a full-time employee with an uncommon tour of duty (as
defined in Sec. 630.201 and described in Sec. 630.210), the hours
equivalent of 12 administrative workweeks is derived by multiplying 6
times the number of hours in the employee's biweekly scheduled tour of
duty (or 6 times the average hours if the biweekly tour hours vary over
an established cycle). For example, if an employee has an uncommon tour
consisting of six 24-hours shifts (144 hours) per biweekly pay period,
the amount would be 864 hours.
(3) For a part-time employee, the hours equivalent of 12
administrative workweeks is derived by multiplying 6 times the number
of hours in the employee's scheduled tour of duty over a biweekly pay
period. For example, if an employee has a part-time scheduled tour of
duty that consists of 40 hours in a biweekly pay period, the amount
would be 240 hours.
(d) Conversion of weeks to days. For employees who are charged
leave on a daily basis, the days equivalent of 12 administrative
workweeks must be derived based on the average number of workdays in
the employee's established tour of duty over a biweekly pay period. For
example, if an employee had 8 workdays each biweekly pay period, the
days equivalent of 12 administrative workweeks would be 48 days.
(e) Change in tour. If there is a change in an employee's scheduled
tour of duty during the 12-month period commencing on the date of a
given birth or placement, and the employee has not used the full
allotment of paid parental leave during such 12-month period, the
remaining balance of paid parental leave must be recalculated based on
the change in the number of average hours in the employee's scheduled
tour of duty. For example, if a regular full-time employee has a
balance of 120 hours of unused paid parental leave for a 12-month
period that is in progress and then converts to a part-time schedule of
20 hours per week, the balance would be recalculated to be 60 hours.
(Since the old schedule was 80 hours biweekly or an average of 40 hours
weekly, the new part-time tour is half of the former full-time tour.
40/80 times 120 equals 60.)
(f) Leave usage. (1) An agency may not require an employee to use
annual leave or sick leave to the employee's credit as a condition to
be met before the employee uses paid parental leave. An employee may
request to use annual leave or sick leave without invoking FMLA unpaid
leave under subpart L of this part, and, in that case, the agency
exercises its normal authority with respect to approving or
disapproving the timing of when the leave may be used.
(2) Paid parental leave may be used in connection with the
occurrence of a birth or placement only during the 12-month period
following birth or placement. (See Sec. 630.1703(b).) Paid parental
leave may not be used prior to the birth or placement involved even if
the employee was granted FMLA unpaid leave under Sec. 630.1203(a)(1)
or (2) for periods prior to the birth or placement event, as allowed
under Sec. 630.1203(d).
(3) An employee with a seasonal work schedule may not use paid
parental leave during the off-season period designated by the agency--
the period during which the employee is scheduled to be released from
work and placed in nonpay status.
(g) Treatment of unused leave. If an employee has any unused
balance of paid parental leave that remains at the end of the 12-month
period following the birth or placement involved, the entitlement to
the unused leave elapses at that time. No payment may be made for
unused paid parental leave that has expired. Paid parental leave may
not be considered annual leave for purposes of making a lump-sum
payment for annual leave or for any other purpose.
(h) Documentation of entitlement and employee certification. (1) At
the request of the employee's agency, an employee must provide the
agency with appropriate documentation that shows that the employee's
use of paid parental leave is directly connected to a birth or
placement that has occurred. Appropriate documentation may include, but
is not limited to, a birth certificate or a document from an adoption
or foster care agency regarding the placement. An agency is responsible
for determining what documentation is sufficient proof of entitlement.
(2) An agency may require that an employee sign a certification
attesting that the paid parental leave is being taken in connection
with a birth or placement. This employee certification may contain a
statement in which the employee acknowledges an understanding of the
consequences of providing a false certification (e.g., the possibility
that the employing agency could pursue appropriate disciplinary action,
up to and including removal from Federal Service, or make a referral to
a Federal entity that investigates whether conduct constitutes a
criminal violation).
(3) An employee must provide any documentation or certification
required by the agency no later than 15 calendar days after the date
the agency requests such documentation or certification. If it is not
practicable under the particular circumstances for an employee to
respond within the 15-day time frame, despite the employee's diligent,
good faith efforts, the employee must provide the documentation or
certification within a reasonable period of time under the
circumstances involved, but no later than 30 calendar days after the
date of the agency's original request.
(4) An agency may grant paid parental leave prior to receiving any
requested documentation or certification under this paragraph (h) based
on an employee's communications with a supervisor or management. Under
these circumstances, the granting of paid parental leave is considered
to be provisional, pending receipt of the requested documentation or
certification.
(5) If the employee fails to provide the agency with the required
documentation
[[Page 48094]]
or certification within the specified time period, the agency may
determine that the employee is not entitled to paid parental leave and
may--
(i) Allow the employee to request that the absence be charged to
leave without pay, sick leave, annual leave, or other forms of paid
time off, as appropriate; or
(ii) If the employee acted fraudulently, charge the employee as
absent without leave (AWOL) and pursue any other appropriate action.
Sec. 630.1704 Pay during leave.
(a) The pay an employee receives when using paid parental leave
shall be the same pay the employee would receive if the employee were
using annual leave.
(b) Paid parental leave is a type of leave that is counted in
applying the 8-hour rule in 5 CFR 550.122(b) that determines whether
night pay is payable during periods of leave.
(c) The pay received during paid parental leave may not include
Sunday premium pay. (See section 624 of the Treasury and General
Government Appropriations Act, 1999, Pub. L. 105-277, div. A, Sec.
101(h), 112 Stat. 2681-518 (Oct. 21, 1998).)
Sec. 630.1705 Work obligation.
(a) Advance agreement. An employee may not use paid parental leave
in connection with a birth or placement unless the employee agrees (in
writing), before the commencement of such leave, to work for the
applicable employing agency for not less than 12 weeks beginning on the
employee's first scheduled workday after such leave concludes. (See
special rules governing cases of incapacitation in Sec. 630.1706.)
(b) Interpretation. For the purpose of applying paragraph (a) of
this section--
(1) The term ``in writing'' means an agreement with the employee's
handwritten signature or an acceptable electronic signature, consistent
with the requirements in 5 CFR 850.106, and also is deemed to include
an agreement documented in an email or text message from the employee,
as long as the employee, within 24 hours, supplies the required
signature;
(2) The term ``work'' means a period during which the employee is
in duty status, excluding any periods (paid or unpaid) of leave, time
off (including holiday time off), or other nonduty status (including
furlough or AWOL status). Such excluded periods will not count toward
completion of the 12-week work obligation.
(3) The term ``applicable employing agency'' means the agency
employing the employee at the time use of paid parental leave
concludes; and
(4) The date paid parental leave concludes is--
(i) The workday on which an employee finishes using 12
administrative workweeks of paid parental leave during the 12-month
period that began on the date of birth or placement; or
(ii) If the employee does not use 12 administrative workweeks of
paid parental leave during the 12-month period that began on the date
of birth or placement, the day that is the last workday on which an
employee used paid parental leave.
(c) Conversion of weeks to hours. For employees who are charged
leave on an hourly basis (including fractions of an hour), the 12-week
work obligation must be converted to hours based on the number of hours
in the employee's scheduled tour of duty, consistent with the rules in
Sec. 630.1703(c). If an employee's scheduled tour of duty changes
before the employee completes the 12-week obligation, the agency must
recalculate the balance of work hours owed, consistent with the rules
in Sec. 630.1703(e). An acceptable alternative approach is to express
each period of work as a fraction or percentage of the average weekly
scheduled tour of duty hours in the affected biweekly pay period and to
sum those fractions or percentages until the 12-week obligation is
completed.
(d) Conversion of weeks to days. For employees who are charged
leave on a daily basis, the days equivalent of 12 weeks must be derived
based on the average number of workdays in the employee's established
tour of duty over a biweekly pay period, consistent with the rules in
Sec. 630.1703(d).
(e) Agreement to make reimbursement when applicable. In the written
agreement described in paragraph (a) of this section, the employee must
attest that, in the event the employee does not complete the 12-week
work obligation, he or she agrees, pursuant to paragraph (f), to make
reimbursement unless the affected employing agency (or agencies)
determines (determine) that the reimbursement provision will not be
applied.
(f) Application of reimbursement requirement. (1) If an employee
fails to return for the required 12 weeks of work with the applicable
employing agency after paid parental leave concludes (as described in
paragraphs (a) and (b) of this section), an agency may require that the
employee make a reimbursement equal to the total amount of any
Government contributions paid by the agency on behalf of the employee
to maintain the employee's health insurance coverage under the Federal
Employees Health Benefits Program established under 5 U.S.C. chapter 89
during the period(s) when paid parental leave was used. An employee who
separates from the applicable employing agency before completing the
required 12 weeks of work is considered to have failed to return to
duty under this paragraph. For the purpose of the preceding sentence,
an intra-agency reassignment without a break in service will not be
considered a separation.
(2) The determination to impose the reimbursement requirement is at
the agency's sole and exclusive discretion, except that an agency may
not impose the requirement if, in the agency's judgment, the employee
is unable to return to work for the required 12 weeks because of--
(i) The continuation, recurrence, or onset of a serious health
condition (including mental health) of the employee or the child whose
birth or placement was the basis for the paid parental leave, but, in
the case of the employee's serious health condition, only if the
condition is related to the applicable birth or placement; or
(ii) Any other circumstance beyond the employee's control, subject
to paragraph (h) of this section.
(g) Medical certification. An agency's determination not to apply
the reimbursement requirement may be conditioned upon the employee's
supplying of a health care provider certification supporting the
employee's claim that a serious health condition described in paragraph
(f)(2)(i) is causing the employee to be unable return to work for the
required 12 weeks. In cases where an agency's determination regarding
whether to apply the reimbursement requirement relies on a health
condition that is not related to the applicable birth or placement or
that applies to a person not covered by paragraph (f)(2)(i) of this
section, the agency may also require a medical certification. An agency
may require additional examinations and certification from other health
care providers if it deems it necessary, but any such additional
examinations must be at the agency's expense.
(h) Circumstances beyond employee's control. The circumstances
beyond the employee's control referenced in paragraph (f)(2)(ii) of
this section must be ones that truly preclude an employee from
returning to work with the employing agency. Examples of situations
beyond the employee's control include such situations as where a parent
chooses to stay home because a child has a serious health condition or
an employee moves because the employee's spouse is unexpectedly
[[Page 48095]]
transferred to a job location more than 75 miles from the employee's
worksite. Matters of employee preference or convenience will not
suffice. For example, a situation where an employee chooses not to
return to work to stay home with a well, newborn child would not
constitute a circumstance beyond the employee's control for purposes of
this exception.
(i) Multiple agencies involved. If an employee does not complete
the 12-week work obligation and if more than one agency provided
Government contributions on behalf of an employee for that employee's
health insurance coverage during a period of paid parental leave, each
agency is responsible for making a determination regarding whether to
apply the reimbursement requirement described in paragraph (f) of this
section with respect to periods of paid parental leave during
employment with the agency. The employing agency that employed the
employee at the time use of paid parental leave concluded is
responsible for informing any other affected agency of the employee's
failure to complete the required 12 weeks of work and of its
determination regarding application of the reimbursement requirement.
Any other affected agency will make its own determination regarding
application of the reimbursement requirement associated with agency
employment.
(j) Agency policies on applying the reimbursement requirement. Each
agency is responsible for adopting its own set of policies governing
when it will or will not apply the reimbursement requirement described
in paragraph (f) of this section. A single agency-wide set of policies
should be in place so that employees within an agency are treated
consistently.
(k) Collection of reimbursement. The reimbursement requirement
described in paragraph (f) of this section, if imposed, is subject to
collection as a debt owed to the affected agency. (See the Federal
Claims Collection Standards in 31 CFR parts 900 through 904.)
Sec. 630.1706 Cases of employee incapacitation.
(a) If an agency determines that an otherwise eligible employee who
could have made an election during a past period to substitute paid
parental leave (as provided in Sec. 630.1703) and enter a work
obligation agreement (as described in Sec. 630.1705) was physically or
mentally incapable of doing so during that past period, the employee
may, within 5 workdays of the employee's return to duty status, make an
election to substitute paid parental leave for applicable FMLA unpaid
leave under Sec. 630.1703(a) on a retroactive basis. Such a
retroactive election shall be effective on the date that such an
election would have been effective if the employee had not been
incapacitated at the time. Consistent with Sec. 630.1206(f)(4), this
retroactive election must be made in conjunction with a retroactive
election under Sec. 630.1203(b), if the FMLA unpaid leave was not
already approved. As part of such election, the employee must agree (in
writing, as described in Sec. 630.1705(b)(1)) to meet the work
obligation or pay the required reimbursement (if applicable) unless--
(1) Applying the work obligation and the associated reimbursement
requirement is barred under Sec. 630.1705(f)(2); or
(2) The agency later concludes under its policies established under
Sec. 630.1705(f)(1) that the circumstances support a determination to
not apply the reimbursement requirement.
(b)(1) If an agency determines that an otherwise eligible employee
is physically or mentally incapable of making an election to substitute
paid parental leave (as provided in Sec. 630.1703) and entering into a
work obligation agreement (as described in Sec. 630.1705), the agency
must, upon the request of a personal representative of the employee
whom the agency finds acceptable, provide conditional approval of
substitution of paid parental leave for applicable FMLA unpaid leave
under Sec. 630.1703(a) on a prospective basis. The conditional
approval is based on the presumption that the employee would have
elected to substitute paid parental leave for the applicable FMLA
unpaid leave and would have entered into the work obligation agreement
if the employee had not been incapacitated. Within 5 workdays after
returning to work, the employee must enter into a written agreement to
meet the work obligation described in Sec. 630.1705 or pay the
required reimbursement (if applicable) unless--
(i) Applying the work obligation and the associated reimbursement
requirement is barred under Sec. 630.1705(f)(2); or
(ii) The agency later concludes under its policies established
under Sec. 630.1705(f)(1) that the circumstances support a
determination to not apply the reimbursement requirement.
(2) If an employee covered by paragraph (b)(1) of this section
declines to enter into the written agreement after being determined by
the agency to no longer be incapacitated, the agency must cancel any
portion of the 12 weeks of paid parental leave that has not been
exhausted, and designate as invalid any paid parental leave that was
used based on the conditional approval. The time covered by the
invalidated paid parental leave must be converted to leave without pay
unless the employee requests that other paid leave or paid time off to
the employee's credit be applied (as appropriate) in place of the
invalidated paid parental leave. To the extent the employee has
invalidated paid parental leave hours not replaced by other paid leave
or paid time off, pay received for those hours is a debt to the
employing agency and is subject to collection under the Federal Claims
Collection Standards in 31 CFR parts 900 through 904.
Sec. 630.1707 Cases of multiple children born or placed in the same
time period.
(a) If an employee has multiple children born or placed on the same
day, the multiple-child birth/placement event is considered to be a
single event that triggers a single entitlement of up to 12 weeks of
paid parental leave under Sec. 630.1703(b).
(b) If an employee has one or more children born or placed during
the 12-month period following the date of an earlier birth or placement
of a child of the employee, the provisions of this subpart shall be
independently administered for each birth or placement event. Any paid
parental leave substituted for FMLA unpaid leave during the 12-month
period beginning on the date of a child's birth or placement shall
count towards the 12-week limit on paid parental leave described in
Sec. 630.1703(b) applicable in connection with the birth or placement
involved. The substitution of paid parental leave may count toward
multiple 12-week limits to the extent that there are multiple ongoing
12-month periods beginning on the date of an applicable birth or
placement, each of which encompasses the day on which the leave is
used. Therefore, whenever paid parental leave is substituted during
periods of time when separate 12-month periods (each beginning on a
date of birth or placement) overlap, the paid parental leave will count
toward each affected period's 12-week limit. For example, if an
employee has a child born on June 1 and another child placed for
adoption on October 1 of the same year, each event would generate
entitlement to substitute up to 12 weeks of paid parental leave during
the separate 12-month periods beginning on the date of the birth and on
the date of the placement, respectively. Those two 12-month periods
would be June 1-May 31 and October 1-September 30. The overlap period
for these two 12-month periods would be October 1-May 31. If
[[Page 48096]]
the employee substitutes paid parental leave during that overlap
period, that amount of paid parental leave would count towards both the
12-week limit associated with the birth event and the 12-week limit
associated with the placement event.
Sec. 630.1708 Records and reports.
(a) Record of usage of paid parental leave. An agency must maintain
an accurate record of an employee's usage of paid parental leave.
(b) Reporting. In agency data systems (including timekeeping
systems) and in data reports submitted to OPM, an agency must record
usage of paid parental leave in the manner prescribed by the Office of
Personnel Management.
[FR Doc. 2020-14832 Filed 8-6-20; 4:15 pm]
BILLING CODE 6325-39-P
