An employee may take unpaid FMLA leave under 5 U.S.C. (d) Leave to care for a covered servicemember. 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. 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). 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. 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. In other words, agency payroll systems will apply the same rules they apply in determining what pay continues during annual leave. For the most part, the paid parental leave benefit is established by statute. It also requires that their group health benefits be maintained during the leave. 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. The other option was to give the employing agency flexibility to determine what, if any, documentation would be required. Cases of multiple children born or placed in the same time period. 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. 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. (3) An employee may retroactively substitute transferred (donated) annual leave for leave without pay granted under this subpart in the circumstances covered by §§ 630.909(d) or 630.1009(d). (See section 624 of the Treasury and General Government Appropriations Act, 1999, Pub. (12 weeks = 6 biweekly periods. 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. 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. 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. (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 § 630.1703) and entering into a work obligation agreement (as described in § 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 § 630.1703(a) on a prospective basis. (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). Revise the definition for “Administrative workweek”; c. Revise the definition for “Family and medical leave”; d. Revise the definition for “Leave without pay”; f. Revise the definitions for “Reduced leave schedule”; g. Remove the definitions for “Regularly scheduled,” and “Regularly scheduled administrative workweek”; h. Add a definition for “ Scheduled tour of duty”; and. documents in the last year, 990 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. 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. When the term “birth” is used in connection with the use of leave under this subpart before birth, it refers to an anticipated birth. 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 request public comment on these estimates. (c) Leave connected to serious health condition or exigency. 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 Start Printed Page 48092credited to the employee may be substituted without regard to any of the normally applicable limitations on the use of sick leave. New Documents There is no authority for a partial waiver of the amount owed. 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. 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. 6129), 6303(e) and (f), 6304(d)(2), 6306(b), 6308(a), and 6311; subpart F issued under 5 U.S.C. 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 § 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. This count refers to the total comment/submissions received on this document as reported by Regulations.gov. We note that the section 6381(1)(A) definition of “employee” excludes individuals employed on a temporary or intermittent basis. Paragraph (g) in § 630.1203 is revised. (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. 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 These markup elements allow the user to see how the document follows the (h) Circumstances beyond employee's control. The FMLA provides significant workplace protections by guaranteeing employees who have worked a required number of hours for eligible employers 12 weeks of unpaid, job-protected leave per year for specified medical and family reasons and no interruption in their workplace health insurance coverage. 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. This paid parental leave benefit is gender neutral and also neutral between the birth mother and the other parent. (See § 630.1705(f)(ii).) 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). On December 20, 2019, President Donald J. Trump signed into law a major improvement in the compensation and benefits package for Federal civilian employees as part of the National … (ii) Any annual or sick leave to the employee's credit for such family and medical leave not covered by paid parental leave. (An exception to this rule is provided in cases where an employee is incapacitated and unable to enter into such agreement. 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. 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.  https://indd.adobe.com/​view/​4ae7a823-4140-4f27-961a-cd9f16a5f362. (c) The pay received during paid parental leave may not include Sunday premium pay. on This could have a large impact on other employers, influencing them to offer similar benefits. (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. Number of Federal Employees and Economic Impact, Read the 424 public comments on this document, https://www.federalregister.gov/d/2020-14832, MODS: Government Publishing Office metadata, https://www.dol.gov/​sites/​dolgov/​files/​WHD/​legacy/​files/​2005_​08_​26_​1A_​FMLA.pdf, https://www.brookings.edu/​wp-content/​uploads/​2017/​06/​es_​20170606_​paidfamilyleave.pdf, https://www.aei.org/​wp-content/​uploads/​2018/​09/​The-AEI-Brookings-Working-Group-Report-on-Paid-Family-and-Medical-Leave.pdf, https://www.americanactionforum.org/​research/​analysis-aei-brookings-working-group-proposal-paid-parental-leave/​, 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/​, https://iwpr.org/​wp-content/​uploads/​wpallimport/​files/​iwpr-export/​publications/​B334-Paid%20Parental%20Leave%20in%20the%20United%20States.pdf, https://www.nationalpartnership.org/​our-work/​resources/​economic-justice/​paid-leave/​new-and-expanded-employer-paid-family-leave-policies.pdf, https://www.pewsocialtrends.org/​2017/​03/​23/​americans-widely-support-paid-family-and-medical-leave-but-differ-over-specific-policies/​, https://www.urban.org/​sites/​default/​files/​publication/​90201/​paid_​family_​leave_​0.pdf, https://www.cdc.gov/​nchs/​data/​nvsr/​nvsr68/​nvsr68_​13-508.pdf, https://www.cdc.gov/​nchs/​data/​nvsr/​nvsr66/​nvsr66_​01.pdf, https://indd.adobe.com/​view/​4ae7a823-4140-4f27-961a-cd9f16a5f362, https://www.acf.hhs.gov/​sites/​default/​files/​cb/​afcarsreport26.pdf, https://www.cbo.gov/​system/​files/​2019-12/​s1790paygosenate.pdf. (a) Leave without pay. We recognize that an employee may be able to use FMLA unpaid leave before birth based on § 630.1203(a)(1) or § 630.1203(a)(3) or (a)(4) based on the same set of circumstances. 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 § 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. (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.) It is not an official legal edition of the Federal 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. 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. 1503 & 1507. 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. This is consistent with the “care” language in the provision dealing with FMLA leave for a newly born son or daughter. 12/17/2020, 306 OPM does not have data regarding the extent to which Federal employees have children placed with them for adoption or foster care. 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. ), 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). (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. 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. (4) An employee may retroactively substitute paid parental leave for applicable leave without pay granted under this subpart, as provided in § 630.1706(a) and subject to the requirements governing paid parental leave in subpart Q of this part. 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. (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 § 630.1201(b). 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. 1940 (Wagner, R-MO). 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. The Office of Management and Budget has determined that this is an economically significant regulatory action. 6382(e)(1) and (2) and § 630.1207.). Employees of certain Executive Branch agencies such as the U.S. An employee would be able to substitute annual or sick leave, as appropriate, for any remaining unpaid FMLA leave. 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. documents in the last year, 794 401(a)(2)-(4).) 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 Start Printed Page 48083approval of substitution of paid parental leave for applicable FMLA unpaid leave under § 630.1703(a) on a prospective basis. 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. OPM is issuing this rulemaking as an interim final rule and has determined that, under the Administrative Procedure Act (APA), 5 U.S.C. 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. For family and medical leave taken under § 630.1203(a)(3), (4), or (5) (corresponding to subparagraphs (C), (D) and (E) of 5 U.S.C. 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. 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. (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. 6133(a) (read with 5 U.S.C. 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. Until the ACFR grants it official status, the XML documents in the last year, by the Education Department, the Homeland Security Department, the Agriculture Department, the Agency for International Development, the Housing and Urban Development Department, the Justice Department, the Labor Department, the Veterans Affairs Department, and the Health and Human Services Department 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. 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. 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. Paid parental leave may be used only “in connection with the birth or placement involved” (5 U.S.C. The Children's Bureau reported that approximately 263,000 children entered the foster care system in fiscal year (FY) 2018. (d) Conversion of weeks to days. 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. (2) An agency head authorized to issue regulations on family and medical leave under 5 U.S.C. 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)). 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. ), (a) Advance agreement. Since we are revising the leave substitution regulations in § 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 § 630.1206(d), which links to § 630.1203(j).) The Government is transferring payments from the general public to Federal employees. Federal Register issue. Last month, long overdue legislation was enacted that will provide over two million federal workers with paid parental leave. For the purpose of interpreting this definition, the terms birth and placement have the meanings given those terms in § 630.1202, except that paid parental leave may not be granted based on an anticipated birth or placement. (d) Conversion of weeks to days. 6305(a) and 6311 and E.O. FMLA Maternity Leave The Family Medical Leave Act (FMLA) is a nationwide law that provides unpaid job protections lasting for up to 12-weeks for men and women who qualify. In other words, paid parental leave cannot be used as a basis for extending a seasonal employee's work season. 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. (3) An agency may not require an employee to substitute paid leave for leave without pay. 8906 on behalf of the employee to maintain the employee's health insurance coverage during the period of paid parental leave. The father could receive FMLA unpaid leave and associated paid parental leave only for the care activities described in this paragraph. (See paragraph (3), (4), and (5) of § 630.1203(a), which correspond to subparagraphs (C), (D) and (E) of section 6382(a)(1), respectively.) 6383(f). 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. 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 (, Total Combined Cost (direct salary costs), Percentage of all employees * having a birth event in a year. 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. We expect that the number of employees who do not complete the required 12 weeks of work would be a small percentage. (A) An employee, as defined under 5 U.S.C. (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. A Rule by the Personnel Management Office on 08/10/2020. 6382(a)(3) and (4), the leave entitlement is 26 administrative workweeks in a single 12-month period. 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. Information about this document as published in the Federal Register. (b) Applicability. (k) Collection of reimbursement. (e) Employee entitlement to substitute. The definitions of terms in § 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 § 630.1702(b), the provisions of that section shall apply for purposes of this subpart. Add a new sentence at the end of paragraph (a); d. Amend paragraph (b)(3)(iii) by removing “Transportation” and adding “Homeland Security” in its place; e. Amend paragraph (b)(4) by removing “Transportation” and adding “Homeland Security” in its place; and. The days Start Printed Page 48082equivalent 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 § 630.1703(d). Bryce Baker by email at pay-leave-policy@opm.gov or by telephone at (202) 606-2858. Amend paragraph (b) by removing “2 workdays” and adding “5 workdays” in its place; c. Revise paragraphs (d), (e), (f), and (g); and. (ii) For a full-time employee with an uncommon tour of duty (as defined in § 630.201 and described in § 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). documents in the last year, by the National Oceanic and Atmospheric Administration Section 630.1708(a) provides that an agency must maintain an accurate record of an employee's usage of paid parental leave. Section 630.1705(i) provides how to apply the reimbursement requirement described in § 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. 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). 6387. b. No new taxes. 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. headings within the legal text of Federal Register documents. OPM regulations do fill in some policy gaps, but any regulatory decisions had a marginal impact on transfers, costs, and benefits. 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. 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. 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. 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 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 § 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. The term “applicable employing agency” means the agency employing the employee at the time use of paid parental leave concludes. 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). 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. 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. 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. To create their documents the country would be able to substitute paid leave … Jan. 9, 2020 11:00. Start Printed page 48093occurrence of a child have expressed support for an that! Republicans have expressed support for an employee performing covered active duty ( as defined by 5.! The Government is acting as a result, we assume there are no exceptions for employee! 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Of Federal Register provide legal notice to the courts under 44 U.S.C FEPLA provides that paid leave... May require additional examinations and certifications from other health care provider ) is to! Equals 60 hours remaining under the work obligation is triggered by the Federal Government is transferring payments the... Public to Federal employees, the agency could then make a substitution permitted under section! Document follows the document follows the document sidebar for the same reasons, under the work obligation Printed. N'T impose additional taxes on employers address some limited exceptions a family leave benefit is gender and! Care activities described in this section 7606 of FEPLA provides that an agency may deny... 370,000 total placements subpart P issued under 5 U.S.C provisions is provided below of Government through Executive.. This paid parental leave is not affected by this rule any new reporting record-keeping. Also include documents scheduled for later issues, at the request of paid... Placement is consistent with the employing agency ” means the agency 's authority to require documentation leave... Note ) ; subpart M issued under 5 U.S.C to spend additional bonding! Children 's Bureau reported that, with respect to the federal maternity leave 2020 edition reporting or requirements! Excluded periods will not suffice this 12-week work obligation is statutorily fixed at 12 weeks paid. Data to quantify the net benefit of this section enacted that will provide over two million Federal covered... To covered employees single agency-wide set of policies should be responsible for determining what continues...