TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER I--OFFICE OF PERSONNEL MANAGEMENT
PART 630--ABSENCE AND LEAVE--Table of Contents
Subpart L--Family and Medical Leave
Sec. 630.1201 Purpose, applicability, and administration.
Source: 58 FR 39602, July 23, 1993, unless otherwise noted.
(a) Purpose. This subpart provides regulations to implement sections
6381 through 6387 of title 5, United States Code. This subpart must be
read together with those sections of law. Sections 6381 through 6387 of
title 5, United States Code, provide a standard approach to providing
family and medical leave to Federal employees by prescribing an
entitlement to a total of 12 administrative workweeks of unpaid leave
during any 12-month period for certain family and medical needs, as
specified in Sec. 630.1203(a) of this part.
(b) Applicability. (1) Except as otherwise provided in this
paragraph, this subpart applies to any employee who--
(i) Is defined as an ``employee'' under 5 U.S.C. 6301(2), excluding
employees covered under paragraph (b)(2) of this section; and
(ii) Has completed at least 12 months of service (not required to be
12 recent or consecutive months) as--
(A) An employee, as defined under 5 U.S.C. 6301(2), excluding any
service as an employee under paragraph (b)(2) of this section;
(B) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1);
(C) A ``teacher'' or an individual holding a ``teaching position,''
as defined in section 901 of title 20, United States Code; or
(D) An employee identified in section 2105(c) of title 5, United
States Code, who is paid from nonappropriated funds.
(2) This subpart does not apply to--
(i) An individual employed by the government of the District of
Columbia;
(ii) An employee serving under a temporary appointment with a time
limitation of 1 year or less;
(iii) An intermittent employee, as defined in 5 CFR 340.401(c); or
(iv) Any employee covered by Title I or Title V of the Family and
Medical Leave Act of 1993 (Pub. L. 103-3, February 5, 1993). The
Department of Labor has issued regulations implementing Title I at 29
CFR part 825.
(3) For the purpose of applying sections 6381 through 6387 of title
5, United States Code--
(i) An employee of the Veterans Health Administration appointed
under title 38, United States Code, in occupations listed in 38 U.S.C.
7401(1) is be governed by the terms and conditions of regulations
prescribed by the Secretary of Veterans Affairs;
(ii) A ``teacher'' or an individual holding a ``teaching position,''
as defined in section 901 of title 20, United States Code, shall be
governed by the terms and conditions of regulations prescribed by the
Secretary of Defense; and
(iii) An employee identified in section 2105(c) of title 5, United
States Code, who is paid from nonappropriated funds shall be governed by
the terms and conditions of regulations prescribed by the Secretary of
Defense or the Secretary of Transportation, as appropriate.
(4) The regulations prescribed by the Secretary of Veterans Affairs,
Secretary of Defense, or Secretary of Transportation under paragraph
(b)(3)of this section shall, to the extent appropriate, be consistent with the
regulations prescribed in this subpart and the regulations prescribed by
the Secretary of Labor to carry out Title I of the Family and Medical
Leave Act of 1993 at 29 CFR part 825.
(c) Administration. The head of an agency having employees subject
to this subpart is responsible for the proper administration of this
subpart.
[58 FR 39602, July 23, 1993, as amended at 61 FR 64451, Dec. 5, 1996;
65 FR 26486, May 8, 2000]
Sec. 630.1202 Definitions.
In this subpart:
Accrued leave has the meaning given that term in Sec. 630.201 of
this part.
Accumulated leave has the meaning given that term in Sec. 630.201 of
this part.
Administrative workweek has the meaning given that term in
Sec. 610.102 of this chapter.
Adoption refers to a legal process in which an individual becomes
the legal parent of another's child. The source of an adopted child--
e.g., whether from a licensed placement agency or otherwise--is not a
factor in determining eligibility for leave under this subpart.
Employee means an individual to whom this subpart applies.
Essential functions means the fundamental job duties of the
employee's position, as defined in 29 CFR 1630.2(n). An employee who
must be absent from work to receive medical treatment for a serious
health condition is considered to be unable to perform the essential
functions of the position during the absence for treatment.
Family and medical leave means an employee's entitlement to 12
administrative workweeks of unpaid leave for certain family and medical
needs, as prescribed under sections 6381 through 6387 of title 5, United
States Code.
Foster care means 24-hour care for children in substitution for, and
away from, their parents or guardian. Such placement is made by or with
the agreement of the State as a result of a voluntary agreement by the
parent or guardian that the child be removed from the home, or pursuant
to a judicial determination of the necessity for foster care, and
involves agreement between the State and foster family to take the
child. Although foster care may be with relatives of the child, State
action is involved in the removal of the child from parental custody.
Health care provider means
(1) A licensed Doctor of Medicine or Doctor of Osteopathy or a
physician who is serving on active duty in the uniformed services and is
designated by the uniformed service to conduct examinations under this
subpart;
(2) Any health care provider recognized by the Federal Employees
Health Benefits Program or who is licensed or certified under Federal or
State law to provide the service in question;
(3) A health care provider as defined in paragraph (2) of this
definition who practices in a country other than the United States, who
is authorized to practice in accordance with the laws of that country,
and who is performing within the scope of his or her practice as defined
under such law;
(4) A Christian Science practitioner listed with the First Church of
Christ, Scientist, in Boston, Massachusetts; or
(5) A Native American, including an Eskimo, Aleut, and Native
Hawaiian, who is recognized as a traditional healing practitioner by
native traditional religious leaders who practices traditional healing
methods as believed, expressed, and exercised in Indian religions of the
American Indian, Eskimo, Aleut, and Native Hawaiians, consistent with
Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by Public
Law 103-344, October 6, 1994 (108 Stat. 3125).
In loco parentis refers to the situation of an individual who has
day-to-day responsibility for the care and financial support of a child
or, in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
Incapacity means the inability to work, attend school, or perform
other regular daily activities because of a serious health condition or
treatment for or recovery from a serious health condition.
Intermittent leave or leave taken intermittently means leave taken
in separate blocks of time, rather than for one continuous period of
time, and may include leave periods of 1 hour to several weeks.
Leave may be taken for a period of less than 1 hour if agency
policy provides for a minimum charge for leave of less than 1 hour under
Sec. 630.206(a).
Leave without pay means an absence from duty in a nonpay status.
Leave without pay may be taken only for those hours of duty comprising
an employee's basic workweek.
Parent means a biological parent or an individual who stands or
stood in loco parentis to an employee when the employee was a son or
daughter. This term does not include parents ``in law.''
Reduced leave schedule means a work schedule under which the usual
number of hours of regularly scheduled work per workday or workweek of
an employee is reduced. The number of hours by which the daily or weekly
tour of duty is reduced are counted as leave for the purpose of this
subpart.
Regularly scheduled has the meaning given that term in Sec. 610.102
of this chapter.
Regularly scheduled administrative work week has the meaning given
that term in Sec. 610.102 of this chapter.
Serious health condition. (1) Serious health condition means an
illness, injury, impairment, or physical or mental condition that
involves--
(i) Inpatient care (i.e., an overnight stay) in a hospital, hospice,
or residential medical care facility, including any period of incapacity
or any subsequent treatment in connection with such inpatient care; or
(ii) Continuing treatment by a health care provider that includes
(but is not limited to) examinations to determine if there is a serious
health condition and evaluations of such conditions if the examinations
or evaluations determine that a serious health condition exists.
Continuing treatment by a health care provider may include one or more
of the following--
(A) A period of incapacity of more than 3 consecutive calendar days,
including any subsequent treatment or period of incapacity relating to
the same condition, that also involves--
(1) Treatment two or more times by a health care provider, by a
health care provider under the direct supervision of the affected
individual's health care provider, or by a provider of health care
services under orders of, or on referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the supervision
of the health care provider (e.g., a course of prescription medication
or therapy requiring special equipment to resolve or alleviate the
health condition).
(B) Any period of incapacity due to pregnancy or childbirth, or for
prenatal care, even if the affected individual does not receive active
treatment from a health care provider during the period of incapacity or
the period of incapacity does not last more than 3 consecutive calendar
days.
(C) Any period of incapacity or treatment for such incapacity due to
a chronic serious health condition that--
(1) Requires periodic visits for treatment by a health care provider
or by a health care provider under the direct supervision of the
affected individual's health care provider,
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc.). The condition is covered even
if the affected individual does not receive active treatment from a
health care provider during the period of incapacity or the period of
incapacity does not last more than 3 consecutive calendar days.
(D) A period of incapacity which is permanent or long-term due to a
condition for which treatment may not be effective. The affected
individual must be under the continuing supervision of, but need not be
receiving active treatment by, a health care provider (e.g.,
Alzheimer's, severe stroke, or terminal stages of a disease).
(E) Any period of absence to receive multiple treatments (including
any period of recovery) by a health care provider or by a provider of
health care services under orders of, or on referral by, a health care
provider, either for restorative surgery after an accident or other
injury or for a condition that would likely result in a period of
incapacity or more than 3 consecutive calendar days in the absence of
medical intervention or treatment (e.g., chemotherapy/radiation for cancer,
physical therapy for severe arthritis, dialysis for kidney disease).
(2) (Serious health condition does not include routine physical,
eye, or dental examinations; a regimen of continuing treatment that
includes the taking of over-the-counter medications, bed-rest, exercise,
and other similar activities that can be initiated without a visit to
the health care provider; a condition for which cosmetic treatments are
administered, unless inpatient hospital care is required or unless
complications develop; or an absence because of an employee's use of an
illegal substance, unless the employee is receiving treatment for
substance abuse by a health care provider or by a provider of health
care services on referral by a health care provider. Ordinarily, unless
complications arise, the common cold, the flu, earaches, upset stomach,
minor ulcers, headaches (other than migraines), routine dental or
orthodontia problems, and periodontal disease are not serious health
conditions. Allergies, restorative dental or plastic surgery after an
injury, removal of cancerous growth, or mental illness resulting from
stress may be serious health conditions only if such conditions require
inpatient care or continuing treatment by a health care provider.)
Son or daughter means a biological, adopted, or foster child; a step
child; a legal ward; or a child of a person standing in loco parentis
who is--
(1) Under 18 years of age; or
(2) 18 years of age or older and incapable of self-care because of a
mental or physical disability. A son or daughter incapable of self-care
requires active assistance or supervision to provide daily self-care in
three or more of the ``activities of daily living'' (ADL's) or
``instrumental activities of daily living'' (IADL's). Activities of
daily living include adaptive activities such as caring appropriately
for one's grooming and hygiene, bathing, dressing, and eating.
Instrumental activities of daily living include cooking, cleaning,
shopping, taking public transportation, paying bills, maintaining a
residence, using the telephones and directories, using a post office,
etc. A ``physical or mental disability'' refers to a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual as defined in 29 CFR 1630.2 (h), (i) and
(j).
Spouse means an individual who is a husband or wife pursuant to a
marriage that is a legal union between one man and one woman, including
common law marriage between one man and one woman in States where it is
recognized.
Tour of duty has the meaning given that term in Sec. 610.102 of this
chapter.
[58 FR 39602, July 23, 1993, as amended at 60 FR 67287-67288, Dec. 29,
1995; 61 FR 64451, Dec. 5, 1996; 65 FR 37240, June 13, 2000]
Sec. 630.1203 Leave entitlement.
(a) An employee shall be entitled to a total of 12 administrative
workweeks of unpaid leave during any 12-month period for one or more of
the following reasons:
(1) The birth of a son or daughter of the employee and the care of
such son or daughter;
(2) The placement of a son or daughter with the employee for
adoption or foster care;
(3) The care of a spouse, son, daughter, or parent of the employee,
if such spouse, son, daughter, or parent has a serious health condition;
or
(4) A serious health condition of the employee that makes the
employee unable to perform any one or more of the essential functions of
his or her position.
(b) An employee must invoke his or her entitlement to family and
medical leave under paragraph (a) of this section, subject to the
notification and medical certification requirements in Secs. 630.1206
and 630.1207. An employee may not retroactively invoke his or her
entitlement to family and medical leave. However, if an employee and his
or her personal representative are physically or mentally incapable of
invoking the employee's entitlement to FMLA leave during the entire
period in which the employee is absent from work for an FMLA-qualifying
purpose under paragraph (a) of this section, the employee may
retroactively invoke his or her entitlement to FMLA leave within 2
workdays after returning to work. In such cases, the incapacity of the
employee must be documented by a written medical certification from a
health care provider. In addition, the employee must provide
documentation acceptable to the agency explaining the inability
of his or her personal representative to contact the agency and
invoke the employee's entitlement to FMLA leave during the entire
period in which the employee was absent from work for
an FMLA-qualifying purpose. An employee may take only the amount of
family and medical leave that is necessary to manage the circumstances
that prompted the need for leave under paragraph (a) of this section.
(c) The 12-month period referred to in paragraph (a) of this section
begins on the date an employee first takes leave for a family or medical
need specified in paragraph (a) of this section and continues for 12
months. An employee is not entitled to 12 additional workweeks of leave
until the previous 12-month period ends and an event or situation occurs
that entitles the employee to another period of family or medical leave.
(This may include a continuation of a previous situation or
circumstance.)
(d) 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. Leave taken under paragraphs
(a)(1) and (2) of this section, may begin prior to or on the actual date
of birth or placement for adoption or foster care, and the 12-month
period, referred to in paragraph (a) of this section begins on that
date.
(e) Leave under paragraph (a) of this section is available to full-
time and part-time employees. A total of 12 administrative workweeks
will be made available equally for a full-time or part-time employee in
direct proportion to the number of hours in the employee's regularly
scheduled administrative workweek. The 12 administrative workweeks of
leave will be calculated on an hourly basis and will equal 12 times the
average number of hours in the employee's regularly scheduled
administrative workweek. If the number of hours in an employee's
workweek varies from week to week, a weekly average of the hours
scheduled over the 12 weeks prior to the date leave commences shall be
used as the basis for this calculation. Any holidays authorized under 5
U.S.C. 6103 or by Executive order and nonworkdays established by Federal
statute, Executive order, or administrative order that occur during the
period in which the employee is on family and medical leave may not be
counted toward the 12-week entitlement to family and medical leave.
(f) If the number of hours in an employee's regularly scheduled
administrative workweek is changed during the 12-month period of family
and medical leave, the employee's entitlement to any remaining family
and medical leave will be recalculated based on the number of hours in
the employee's current regularly scheduled administrative workweek.
(g) Each agency shall inform its employees of their entitlements and
responsibilities under this subpart, including the requirements and
obligations of employees.
(h) An agency may not put an employee on family and medical leave
and may not subtract leave from an employee's entitlement to leave under
paragraph (a) of this section unless the agency has obtained
confirmation from the employee of his or her intent to invoke
entitlement to leave under paragraph (b) of this section. An employee's
notice of his or her intent to take leave under Sec. 630.1206 may
suffice as the employee's confirmation.
[58 FR 39602, July 23, 1993, as amended at 61 FR 64452, Dec. 5, 1996; 65
FR 26486, May 8, 2000]
Sec. 630.1204 Intermittent leave or reduced leave schedule.
(a) Leave under Sec. 630.1203(a) (1) or (2) of this part shall not
be taken intermittently or on a reduced leave schedule unless the
employee and the agency agree to do so.
(b) Leave under Sec. 630.1203(a) (3) or (4) of this part may be
taken intermittently or on a reduced leave schedule when medically
necessary, subject to Secs. 630.1206 and 630.1207(b)(6) of this part.
(c) If an employee takes leave under Sec. 630.1203(a) (3) or (4) of
this part intermittently or on a reduced leave schedule that is
foreseeable based on planned medical treatment or recovery from a
serious health condition, the agency may place the employee temporarily
in an available alternative position for which the employee is qualified
and that can better accommodate recurring periods of leave. Upon
returning from leave, the employee shall be entitled to be returned to
his or her permanent position or an equivalent position, as provided in
Sec. 630.1208(a) of this part.
(d) For the purpose of applying paragraph (c) of this section, an
alternative position need not consist of equivalent duties, but must be
in the same commuting area and must provide--
(1) An equivalent grade or pay level, including any applicable
locality-based comparability payment under 5 U.S.C. 5304; special rate
of pay for law enforcement officers or special pay adjustment for law
enforcement officers under section 403 or 404 of the Federal Employees
Pay Comparability Act of 1990 (Pub. L. 101-509), respectively; continued
rate of pay under subpart G of part 531 of this chapter; or special
salary rate under 5 U.S.C. 5305 or similar provision of law;
(2) The same type of appointment, work schedule, status, and tenure;
and
(3) The same employment benefits made available to the employee in
his or her previous position (e.g., life insurance, health benefits,
retirement coverage, and leave accrual).
(e) The agency shall determine the available alternative position
that has equivalent pay and benefits consistent with Federal laws,
including the Rehabilitation Act of 1973 (29 U.S.C. 701) and the
Pregnancy Discrimination Act of 1978 (42 U.S.C. 2000e).
(f) Only the amount of leave taken intermittently or on a reduced
leave schedule, as these terms are defined in Sec. 630.1202, shall be
subtracted from the total amount of leave available to the employee
under Sec. 630.1203 (e) and (f).
[58 FR 39602, July 23, 1993, as amended at 61 FR 3544, Feb. 1, 1996; 61
FR 64453, Dec. 5, 1996]
Sec. 630.1205 Substitution of paid leave.
(a) Except as provided in paragraph (b) of this section, leave taken
under Sec. 630.1203(a) of this part shall be leave without pay.
(b) An employee may elect to substitute the following paid leave for
any or all of the period of leave without pay to be taken under
Sec. 630.1203(a)--
(1) Accrued or accumulated annual or sick leave under subchapter I
of chapter 63 of title 5, United States Code, consistent with current
law and regulations governing the granting and use of annual or sick
leave;
(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) Leave made available to an employee under the Voluntary Leave
Transfer Program or the Voluntary Leave Bank Program consistent with
subparts I and J of part 630 of this chapter.
(c) An agency may not deny an employee's right to substitute paid
leave under paragraph (b) of this section for any or all of the period
of leave without pay to be taken under Sec. 630.1203(a), consistent with
current law and regulations.
(d) An agency may not require an employee to substitute paid leave
under paragraph (b) of this section for any or all of the period of
leave without pay to be taken under Sec. 630.1203(a).
(e) An employee shall notify the agency of his or her intent to
substitute paid leave under paragraph (b) of this section for the period
of leave without pay to be taken under Sec. 630.1203(a) prior to the
date such paid leave commences. An employee may not retroactively
substitute paid leave for leave without pay previously taken under
Sec. 630.1203(a)
[58 FR 39602, July 23, 1993, as amended at 61 FR 64453, Dec. 5, 1996]
Sec. 630.1206 Notice of leave.
(a) If leave taken under Sec. 630.1203(a) of this part is
foreseeable based on an expected birth, placement for adoption or foster
care, or planned medical treatment, the employee shall provide notice to
the agency of his or her intention to take leave not less than 30
calendar days before the date the leave is to begin. If the date of
birth or placement or planned medical treatment requires leave to
begin within 30 calendar days, the employee shall provide such
notice as is practicable.
(b) If leave taken under Sec. 630.1203(a) (3) or (4) of this part is
foreseeable based on planned medical treatment, the employee shall
consult with the agency and make a reasonable effort to schedule medical
treatment so as not to disrupt unduly the operations of the agency,
subject to the approval of the health care provider. The agency may, for
justifiable cause, request that an employee reschedule medical
treatment, subject to the approval of the health care provider.
(c) If the need for leave is not foreseeable--e.g., a medical
emergency or the unexpected availability of a child for adoption or
foster care, and the employee cannot provide 30 calendar days' notice of
his or her need for leave, the employee shall provide notice within a
reasonable period of time appropriate to the circumstances involved. If
necessary, notice may be given by an employee's personal representative
(e.g., a family member or other responsible party). If the need for
leave is not foreseeable and the employee is unable, due to
circumstances beyond his or her control, to provide notice of his or her
need for leave, the leave may not be delayed or denied.
(d) If the need for leave is foreseeable, and the employee fails to
give 30 calendar days' notice with no reasonable excuse for the delay of
notification, the agency may delay the taking of leave under
Sec. 630.1203(a) of this part until at least 30 calendar days after the
date the employee provides notice of his or her need for family and
medical leave.
(e) An agency may waive the notice requirements under paragraph (a)
of this section and instead impose the agency's usual and customary
policies or procedures for providing notification of leave. The agency's
policies or procedures for providing notification of leave must not be
more stringent than the requirements in this section. However, an agency
may not deny an employee's entitlement to leave under Sec. 630.1203(a)
of this part if the employee fails to follow such agency policies or
procedures.
(f) An agency may require that a request for leave under
Sec. 630.1203(a) (1) and (2) be supported by evidence that is
administratively acceptable to the agency.
[58 FR 39602, July 23, 1993, as amended at 59 FR 62274, Dec. 2, 1994; 61
FR 64453, Dec. 5, 1996; 65 FR 26487, May 8, 2000]
Sec. 630.1207 Medical certification.
(a) An agency may require that a request for leave under
Sec. 630.1203(a) (3) or (4) be supported by written medical
certification issued by the health care provider of the employee or the
health care provider of the spouse, son, daughter, or parent of the
employee, as appropriate. An agency may waive the requirement for an
initial medical certificate in a subsequent 12-month period if the leave
under Sec. 630.1203(a) (3) or (4) is for the same chronic or continuing
condition.
(b) The written medical certification shall include--
(1) The date the serious health condition commenced;
(2) The probable duration of the serious health condition or specify
that the serious health condition is a chronic or continuing condition
with an unknown duration and whether the patient is presently
incapacitated and the likely duration and frequency of episodes of
incapacity;
(3) The appropriate medical facts within the knowledge of the health
care provider regarding the serious health condition, including a
general statement as to the incapacitation, examination, or treatment
that may be required by a health care provider;
(4) For the purpose of leave taken under Sec. 630.1203(a)(3) of this
part--
(i) A statement from the health care provider that the spouse, son,
daughter, or parent of the employee requires psychological comfort and/
or physical care; needs assistance for basic medical, hygienic,
nutritional, safety, or transportation needs or in making arrangements
to meet such needs; and would benefit from the employee's care or
presence; and
(ii) A statement from the employee on the care he or she will
provide and an estimate of the amount of time needed to care for
his or her spouse, son, daughter, or parent;
(5) For the purpose of leave taken under Sec. 630.1203(a)(4), a
statement that the employee is unable to perform one or more of the
essential functions of his or her position or requires medical treatment
for a serious health condition, based on written information provided by
the agency on the essential functions of the employee's position or, if
not provided, discussion with the employee about the essential functions
of his or her position; and
(6) In the case of certification for intermittent leave or leave on
a reduced leave schedule under Sec. 630.1203(a) (3) or (4) for planned
medical treatment, the dates (actual or estimates) on which such
treatment is expected to be given, the duration of such treatment, and
the period of recovery, if any, or specify that the serious health
condition is a chronic or continuing condition with an unknown duration
and whether the patient is presently incapacitated and the likely
duration and frequency of episodes of incapacity.
(c) The information on the medical certification shall relate only
to the serious health condition for which the current need for family
and medical leave exists. The agency may not require any personal or
confidential information in the written medical certification other than
that required by paragraph (b) of this section. If an employee submits a
completed medical certification signed by the health care provider, the
agency may not request new information from the health care provider.
However, a health care provider representing the agency, including a
health care provider employed by the agency or under administrative
oversight of the agency, may contact the health care provider who
completed the medical certification, with the employee's permission, for
purposes of clarifying the medical certification.
(d) If the agency doubts the validity of the original certification
provided under paragraph (a) of this section, the agency may require, at
the agency's expense, that the employee obtain the opinion of a second
health care provider designated or approved by the agency concerning the
information certified under paragraph (b) of this section. Any health
care provider designated or approved by the agency shall not be employed
by the agency or be under the administrative oversight of the agency on
a regular basis unless the agency is located in an area where access to
health care is extremely limited--e.g., a rural area or an overseas
location where no more than one or two health care providers practice in
the relevant specialty, or the only health care providers available are
employed by the agency.
(e) If the opinion of the second health care provider differs from
the original certification provided under paragraph (a) of this section,
the agency may require, at the agency's expense, that the employee
obtain the opinion of a third health care provider designated or
approved jointly by the agency and the employee concerning the
information certified under paragraph (b) of this section. The opinion
of the third health care provider shall be binding on the agency and the
employee.
(f) To remain entitled to family and medical leave under
Sec. 630.1203(a) (3) or (4) of this part, an employee or the employee's
spouse, son, daughter, or parent must comply with any requirement from
an agency that he or she submit to examination (though not treatment) to
obtain a second or third medical certification from a health care
provider other than the individual's health care provider.
(g) If the employee is unable to provide the requested medical
certification before leave begins, or if the agency questions the
validity of the original certification provided by the employee and the
medical treatment requires the leave to begin, the agency shall grant
provisional leave pending final written medical certification.
(h) An employee must provide the written medical certification
required by paragraphs (a), (d), (e), and (g) of this section, signed by
the health care provider, no later than 15 calendar days after the date
the agency requests such medical certification. If it is not practicable
under the particular circumstances to provide the requested medical
certification no later than 15 calendar days after the date requested by
the agency despite the employee's diligent, good faith efforts, the
employee must provide the medical certification within a reasonable
period of time under the circumstances involved, but no later than
30 calendar days after the date the agency requests such medical certification.
(i) If, after the leave has commenced, the employee fails to provide
the requested medical certification, the agency may--
(1) Charge the employee as absent without leave (AWOL); or
(2) Allow the employee to request that the provisional leave be
charged as leave without pay or charged to the employee's annual and/or
sick leave account, as appropriate.
(j) At its own expense, an agency may require subsequent medical
recertification on a periodic basis, but not more than once every 30
calendar days, for leave taken for purposes relating to pregnancy,
chronic conditions, or long-term conditions, as these terms are used in
the definition of serious health condition in Sec. 630.1202. For leave
taken for all other serious health conditions and including leave taken
on an intermittent or reduced leave schedule, if the health care
provider has specified on the medical certification a minimum duration
of the period of incapacity, the agency may not request recertification
until that period has passed. An agency may require subsequent medical
recertification more frequently than every 30 calendar days, or more
frequently than the minimum duration of the period of incapacity
specified on the medical certification, if the employee requests that
the original leave period be extended, the circumstances described in
the original medical certification have changed significantly, or the
agency receives information that casts doubt upon the continuing
validity of the medical certification.
(k) To ensure the security and confidentiality of any written
medical certification under Secs. 630.1207 or 630.1208(h) of this part,
the medical certification shall be subject to the provisions for
safeguarding information about individuals under subpart A or part 293
of this chapter.
[58 FR 39602, July 23, 193, as amended at 61 FR 64453, Dec. 5, 1996; 65
FR 26487, May 8, 2000; 65 FR 38409, June 21, 2000]
Sec. 630.1208 Protection of employment and benefits.
(a) Any employee who takes leave under Sec. 630.1203(a) of this part
shall be entitled, upon return to the agency, to be returned to--
(1) The same position held by the employee when the leave commenced;
or
(2) An equivalent position with equivalent benefits, pay, status,
and other terms and conditions of employment.
(b) For the purpose of applying paragraph (a)(2) of this section, an
equivalent position must be in the same commuting area and must carry or
provide at a minimum--
(1) The same or substantially similar duties and responsibilities,
which must entail substantially equivalent skill, effort,
responsibility, and authority;
(2) An equivalent grade or pay level, including any applicable
locality-based comparability payment under 5 U.S.C. 5304; special rate
of pay for law enforcement officers or special pay adjustment for law
enforcement officers under section 403 or 404 of the Federal Employees
Pay Comparability Act of 1990 (Pub. L. 101-509), respectively; continued
rate of pay under subpart G of part 531 of this chapter; or special
salary rate under 5 U.S.C. 5305 or similar provision of law;
(3) The same type of appointment, work schedule, status, and tenure;
(4) The same employment benefits made available to the employee in
his or her previous position (e.g., life insurance, health benefits,
retirement coverage, and leave accrual);
(5) The same or equivalent opportunity for a within-grade increase,
performance award, incentive award, or other similar discretionary and
non-discretionary payments, consistent with applicable laws and
regulations; however, the entitlement to be returned to an equivalent
position does not extend to intangible or unmeasurable aspects of the
job;
(6) The same or equivalent opportunity for premium pay consistent
with applicable law and regulations under 5 CFR part 550, subpart A, or
5 CFR part 551, subpart E; and
(7) The same or equivalent opportunity for training or education
benefits consistent with applicable laws and regulations, including any
training that an employee may be required to complete to qualify for his
or her previous position.
(c) As a result of taking leave under Sec. 630.1203(a) of this part,
an employee shall not suffer the loss of any employment benefit accrued
prior to the date on which the leave commenced.
(d) Except as otherwise provided by or under law, a restored
employee shall not be entitled to--
(1) The accrual of any employment benefits during any period of
leave; or
(2) Any right, benefit, or position of employment other than any
right, benefit, or position to which the employee would have been
entitled had the employee not taken the leave.
(e) For the purpose of applying paragraph (d) of this section, the
same entitlements and limitations in law and regulations that apply to
the position, pay, benefits, status, and other terms and conditions of
employment of an employee in a leave without pay status shall apply to
any employee taking leave without pay under this part, except where
different entitlements and limitations are specifically provided in this
subpart.
(f) An employee is not entitled to be returned to the same or
equivalent position under paragraph (a) of this section if the employee
would not otherwise have been employed in that position at the time the
employee returns from leave.
(g) An agency may not return an employee to an equivalent position
where written notification has been provided that the equivalent
position will be affected by a reduction in force if the employee's
previous position is not affected by a reduction in force.
(h) As a condition to returning an employee who takes leave under
Sec. 630.1203(a)(4), an agency may establish a uniformly applied
practice or policy that requires all similarly-situated employees (i.e.,
same occupation, same serious health condition) to obtain written
medical certification from the health care provider of the employee that
the employee is able to perform the essential functions of his or her
position. An agency may delay the return of an employee until the
medical certification is provided. The same conditions for verifying the
adequacy of a medical certification in Sec. 630.1207(c) shall apply to
the medical certification to return to work. No second or third opinion
on the medical certification to return to work may be required. An
agency may not require a medical certification to return to work during
the period the employee takes leave intermittently or under a reduced
leave schedule under Sec. 630.1204.
(i) If an agency requires an employee to obtain written medical
certification under paragraph (h) of this section before he or she
returns to work, the agency shall notify the employee of this
requirement before leave commences, or to the extent practicable in
emergency medical situations, and pay the expenses for obtaining the
written medical certification. An employee's refusal or failure to
provide written medical certification under paragraph (h) of this
section may be grounds for appropriate disciplinary or adverse action,
as provided in part 752 of this chapter.
(j) An agency may require an employee to report periodically to the
agency on his or her status and intention to return to work. An agency's
policy requiring such reports must take into account all of the relevant
facts and circumstances of the employee's situation.
(k) An employee's decision to invoke FMLA leave under
Sec. 630.1203(a) does not prohibit an agency from proceeding with
appropriate actions under part 432 or part 752 of this chapter.
(l) An employee who does not comply with the notification
requirements in Sec. 630.1206 and does not provide medical certification
signed by the health care provider that includes all of the information
required in Sec. 630.1207(b) is not entitled to family and medical
leave.
[58 FR 39602, July 23, 1993, as amended at 61 FR 3544, Feb. 1, 1996; 61
FR 64453, Dec. 5, 1996; 65 FR 26487, May 8, 2000]
Sec. 630.1209 Health benefits.
An employee enrolled in a health benefits plan under the Federal
Employees Health Benefits Program (established under chapter 89 of title
5, United States Code) who is placed in a leave without pay status as a
result of entitlement to leave under Sec. 630.1203(a) of this part may
continue his or her health benefits enrollment while in the leave
without pay status and arrange to pay the appropriate employee
contributions into the Employees Health Benefits Fund (established under
section 8909 of title 5, United States Code). The employee shall make
such contributions consistent with 5 CFR 890.502.
Sec. 630.1210 Greater leave entitlements.
(a) An agency shall comply with any collective bargaining agreement
or any agency employment benefit program or plan that provides greater
family or medical leave entitlements to employees than those provided
under this subpart. Nothing in this subpart prevents an agency from
amending such policies, provided the policies comply with the
requirements of this subpart.
(b) The entitlements established for employees under this subpart
may not be diminished by any collective bargaining agreement or any
employment benefit program or plan.
(c) An agency may adopt leave policies more generous than those
provided in this subpart, except that such policies may not provide
entitlement to paid time off in an amount greater than that otherwise
authorized by law or provide sick leaved in any situation in which sick
leave would not normally be allowed by law or regulation.
(d) The entitlements under sections 6381 through 6387 of title 5,
United States Code, and this subpart do not modify or affect any Federal
law prohibiting discrimination. If the entitlements under sections 6381
through 6387 of title 5, United States Code, and this subpart conflict
with any Federal law prohibiting discrimination, an agency must comply
with whichever statute provides greater entitlements to employees.
[58 FR 39602, July 23, 1994, as amended at 61 FR 64454, Dec. 5, 1996]
Sec. 630.1211 Records and reports.
(a) So that OPM can evaluate the use of family and medical leave by
Federal employees and provide the Congress and others with information
about the use of this entitlement, each agency shall maintain records on
employees who take leave under this subpart and submit to OPM such
records and reports as OPM may require.
(b) At a minimum, each agency shall maintain the following
information concerning each employee who takes leave under this subpart:
(1) The employee's rate of basic pay, as defined in 5 CFR 550.103;
(2) The occupational series for the employee's position;
(3) The number of hours of leave taken under Sec. 630.1203(a),
including any paid leave substituted for leave without pay under
Sec. 630.1205(b); and
(4) Whether leave was taken--
(i) Under Sec. 630.1203(a) (1), (2) or (3) of this part; or
(ii) Under Sec. 630.1203(a)(4) of this part.
(c) When an employee transfers to a different agency, the losing
agency shall provide the gaining agency with information on leave taken
under Sec. 630.1203(a) of this part by the employee during the 12 months
prior to the date of transfer. The losing agency shall provide the
following information:
(1) The beginning and ending dates of the employee's 12-month
period, as determined under Sec. 630.1203(c) of this part; and
(2) The number of hours of leave taken under Sec. 630.1203(a) of the
part during the employee's 12-month period, as determined under
Sec. 630.1203(c) of this part.
[58 FR 39602, July 23, 1993, as amended at 60 FR 67288, Dec. 29, 1995;
61 FR 64454, Dec. 5, 1996]