[Federal Register: August 17, 2006 (Volume 71, Number 157)]
[Rules and Regulations]
[Page 47693-47696]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17au06-8]
-----------------------------------------------------------------------
OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AK61
Absence and Leave
AGENCY: Office of Personnel Management.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations concerning the use of sick leave. The final rules remove
the requirement for an employee to maintain a minimum sick leave
balance in his or her sick leave account in order to use the maximum
amount of sick leave provided for family care and bereavement purposes.
These regulations are being issued as part of OPM's effort to
standardize leave policies and provide agencies with guidance on leave
programs available to assist employees in the event of a pandemic
health crisis.
DATES: Effective date: These regulations are effective on September 18,
2006.
Applicability date: These regulations apply on the first day of the
first applicable pay period beginning on or after September 18, 2006.
FOR FURTHER INFORMATION CONTACT: Sharon Dobson by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at
pay-performance-policy@opm.gov.
SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is
issuing final regulations to revise the rules concerning the use of
sick leave to provide care for a family member, make arrangements
necessitated by the death of a family member, or attend the funeral of
a family member. The revised regulations will assist employees in
balancing their work and family responsibilities and needs. These final
regulations will be issued to standardize and simplify leave programs
and policies to support consolidating agency human resources and
payroll systems, and to continue OPM's efforts to provide agencies with
timely guidance on leave programs and policies available to employees
in the event of a pandemic health crisis.
[[Page 47694]]
On January 5, 2005, OPM issued a comprehensive package of proposed
regulations to revise the rules concerning the determination of
official duty station for location-based pay entitlements, compensatory
time off for religious observances, hours of work and alternative work
schedules, and absence and leave (70 FR 1068). The proposed regulations
were issued to aid and support the standardization of pay and leave
policies under the e-Payroll initiative. The proposed regulations are
available at http://frwebgate.access.gpo.gov/ cgi-bin/
getpage.cgi?dbname=2005 --register&position=all &page=1068.
In this final rule, OPM addresses the comments received on the
proposed rules in 5 CFR part 630, subpart D, concerning the use of sick
leave for family care or bereavement purposes. The 60-day comment
period ended on March 7, 2005. A total of seven comments were received
from five agencies, an employee organization, and an individual. We
will address comments received on the proposed changes to other
regulations in subsequent issuances.
Sick Leave for Family Care or Bereavement Purposes
Currently, an employee must maintain 80 hours of sick leave in his
or her sick leave account to be entitled to use up to 104 hours (13
workdays) of sick leave for general family care or bereavement purposes
and up to 480 hours (12 workweeks) of sick leave to care for a family
member with a serious health condition. The proposed regulations
modified Sec. 630.401 to remove the requirement an employee must
maintain 80 hours of sick leave in his or her sick leave account to use
more than 40 hours (5 workdays) of his or her sick leave for family
care or bereavement purposes. An agency recommended removing the limit
altogether on the total amount of sick leave an employee may use for
any family care purpose. The agency believes removing this requirement
would give employees greater responsibility for managing their sick
leave and would greatly simplify the administration and recordkeeping
requirements related to sick leave. In addition, the agency stated that
it is difficult for managers to make a distinction between sick leave
for general family care or bereavement purposes and sick leave to
provide care for a family member with a serious health condition.
OPM believes an annual limit of 104 hours (13 workdays) of sick
leave for general family care or bereavement purposes and 480 hours (12
workweeks) of sick leave to provide care for a family member with a
serious health condition is an ample amount of time for most employees
to give care and attendance to family members for illness or injury
when viewed in the context of other available options and entitlements.
The entitlement to use sick leave for general family care or
bereavement purposes and/or to provide care for a family member with a
serious health condition, in conjunction with a generous annual leave
system, including advance annual leave; the leave transfer and leave
bank programs; flexible work schedules; telework; unpaid leave under
the Family and Medical Leave Act (FMLA); compensatory time off; and
compensatory time off for travel will further assist the vast majority
of employees to meet their sickness-related family care needs.
An agency and an individual commented that by removing the
requirement for an employee to maintain a minimum sick leave balance to
use more than 40 hours of sick leave for family care purposes is
contrary to the law at 5 U.S.C. 6307(d)(3). This is incorrect. The
provisions of the Federal Employees Family Friendly Leave Act (Pub. L.
103-388, October 22, 1994) expired on December 21, 1997. The Federal
Employees Family Friendly Leave Act amended the law to provide for a 3-
year trial period to expand the purposes for which sick leave may be
used by an employee, to include family care and bereavement. Under 5
U.S.C. 6311, OPM has been granted authority to prescribe regulations
necessary for the administration of annual and sick leave. (See the
memorandum to Directors of Personnel, CPM 97-13, on the ``Use of Sick
Leave for Family Care or Bereavement Purposes'' at http://www.opm.gov/flsa/oca/compmemo/1997_1996/cpm97-13.asp.
) Thus, OPM used its
permanent regulatory authority to issue regulations to permit an
employee to use sick leave to (1) care for a family member who is
incapacitated as a result of physical or mental illness, injury,
pregnancy, or childbirth; (2) assist a family member who receives
medical, dental, or optical examination or treatment; (3) make
arrangements for or attend the funeral of a family member; or (4) care
for a family member with a serious health condition.
An agency was concerned that removing the 80-hour sick leave
balance requirement may result in more employees depleting their sick
leave accounts and resorting to requesting advance leave or donated
leave under the voluntary leave transfer and leave bank programs. The
agency believes the requirement to maintain a minimum sick leave
balance of 80 hours reduces the number of employee requests for advance
leave and donated leave and the costs associated with administering
those programs. We have not made this change. Employees continue to be
responsible for managing their use of sick leave to ensure they retain
enough sick leave for both personal and family needs. An employee would
continue to be limited to 13 days of sick leave each leave year for
general family care or bereavement purposes and a maximum of 12 weeks
of sick leave each leave year to care for a family member with a
serious health condition.
An agency recommended the final regulations include information on
the amount of sick leave an agency may advance to an employee for
family care or bereavement purposes or to provide care for a family
member with a serious health condition. We agree and have added Sec.
630.401(f) to clarify an agency may advance a maximum of 30 days of
sick leave when required by the exigencies of the situation for a
serious disability or ailment of the employee or a family member or for
purposes related to the adoption of a child.
We also proposed amending Sec. 630.403(b) to establish a
Governmentwide policy on the time limit for the receipt of medical
documentation supporting an employee's need for sick leave. We proposed
this change to ensure all employees are treated equitably and to aid in
establishing standardized Governmentwide pay and leave policies. The
proposed regulations at Sec. 630.403(b) would require an employee to
provide administratively acceptable evidence as to the reason for his
or her use of sick leave. The employee must provide such evidence no
later than 15 calendar days after the date his or her agency requests
documentation. An agency and an employee organization believed imposing
a stringent time limitation of 15 calendar days would not be fair for
employees facing extenuating circumstances, such as an employee who may
not be able to obtain medical certification because of the remoteness
of his or her location. We agree and have revised Sec. 630.403(b) to
require an employee to provide administratively acceptable evidence, in
accordance with the agency's policy, no later than 15 calendar days
after the date the agency requests such documentation. If it is not
practicable to provide the requested certification, despite the
employee's diligent good faith efforts, the employee must provide such
certification within a reasonable period of time, but no later than 30
[[Page 47695]]
calendar days. This requirement is consistent with the medical
certification requirements under the Family and Medical Leave Act
(FMLA) provided in the regulations at 5 CFR Part 630, Subpart L.
An agency and an individual commented that providing 15 calendar
days for an employee to present medical certification may conflict with
the terms of a more restrictive leave policy imposed upon an individual
by an agency (often referred to as ``leave restriction''). This
requirement is consistent with the medical certification requirements
for using leave without pay under the FMLA. Because many employees may
choose to substitute their sick leave for leave without pay under the
FMLA, we believe it is necessary to impose the same requirement for
using sick leave that is required under the FMLA--i.e., an employee
must provide administratively acceptable evidence no later than 15 days
after the agency requests documentation.
Miscellaneous
In this final rule, we are removing the reporting requirements in
Sec. 630.408 to reduce the amount of information agencies must
maintain on the use of sick leave for family care purposes. However,
agencies are required to maintain records sufficient to ensure
employees do not exceed their entitlement to sick leave for family care
purposes. We are also deleting the procedures in former Sec. 630.409
for the retroactive substitution of sick leave for annual leave used
for adoption-related purposes between September 1991 and September
1994, because the time limit for retroactive substitution under this
section expired on September 30, 1996.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify these regulations would not have a significant economic
impact on a substantial number of small entities because they would
apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 630
Government employees.
U.S. Office of Personnel Management.
Linda M. Springer,
Director.
0
Accordingly OPM is amending 5 CFR part 630, to read as follows:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 continues to read as follows:
Authority: 5 U.S.C. 6311; 630.205 also issued under Pub. L. 108-
411, 118 Stat 2312; 630.301 also issued under Pub. L. 103-356, 108
Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; 630.303 also issued
under 5 U.S.C. 6133(a); 630.306 and 630.308 also issued under 5
U.S.C. 6304(d)(3), Pub. L. 102-484, 106 Stat. 2722, and Pub. L. 103-
337, 108 Stat. 2663; subpart D also issued under Pub. L. 103-329,
108 Stat. 2423; 630.501 and subpart F also issued under E.O. 11228,
30 FR 7739, 3 CFR, 1974 Comp., p. 163; subpart G also issued under 5
U.S.C. 6305; subpart H also issued under 5 U.S.C. 6326; subpart I
also issued under 5 U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834,
and Pub. L. 103-103, 107 Stat. 1022; subpart J also issued under 5
U.S.C. 6362, Pub. L 100-566, and Pub. L. 103-103; subpart K also
issued under Pub. L. 105-18, 111 Stat. 158; subpart L also issued
under 5 U.S.C. 6387 and Pub. L. 103-3, 107 Stat. 23; and subpart M
also issued under 5 U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.
0
2. Part 630, subpart D is revised to read as follows:
Subpart D--Sick Leave
Sec.
630.401 Granting sick leave.
630.402 Requesting sick leave.
630.403 Supporting evidence for the use of sick leave.
630.404 Use of sick leave during annual leave.
630.405 Sick leave used in the computation of an annuity.
630.406 Records on the use of sick leave.
Subpart D--Sick Leave
Sec. 630.401 Granting sick leave.
(a) Subject to paragraphs (b) through (e) of this section, an
agency must grant sick leave to an employee when he or she--
(1) Receives medical, dental, or optical examination or treatment;
(2) Is incapacitated for the performance of his or her duties by
physical or mental illness, injury, pregnancy, or childbirth;
(3)(i) Provides care for a family member who is incapacitated by a
medical or mental condition or attends to a family member receiving
medical, dental, or optical examination or treatment; or
(ii) Provides care for a family member with a serious health
condition;
(4) Makes arrangements necessitated by the death of a family member
or attends the funeral of a family member;
(5) Would, as determined by the health authorities having
jurisdiction or by a health care provider, jeopardize the health of
others by his or her presence on the job because of exposure to a
communicable disease; or
(6) Must be absent from duty for purposes relating to his or her
adoption of a child, including appointments with adoption agencies,
social workers, and attorneys; court proceedings; required travel; and
any other activities necessary to allow the adoption to proceed.
(b) The amount of sick leave granted to an employee during any
leave year for the purposes described in paragraphs (a)(3)(i) and (4)
of this section may not exceed a total of 104 hours (or, for a part-
time employee or an employee with an uncommon tour of duty, the number
of hours of sick leave he or she normally accrues during a leave year).
(c) The amount of sick leave granted to an employee during any
leave year for the purposes described in paragraph (a)(3)(ii) of this
section may not exceed a total of 480 hours (or, for a part-time
employee or an employee with an uncommon tour of duty, an amount of
sick leave equal to 12 times the average number of hours in his or her
scheduled tour of duty each week), subject to the limitation found in
paragraph (d) of this section.
(d) If, at the time an employee uses sick leave to care for a
family member with a serious health condition under paragraph (c) of
this section, he or she has used any portion of the sick leave
authorized under paragraph (b) of this section during that leave year,
the agency must subtract that amount from the maximum number of hours
authorized under paragraph (c) of this section to determine the total
amount of sick leave the employee may use during the remainder of the
leave year to care for a family member with a serious health condition.
If an employee has previously used the maximum amount of sick leave
permitted under paragraph (c) of this section in a leave year, he or
she is not entitled to use additional sick leave under paragraph (b) of
this section.
(e) If the number of hours in the employee's tour of duty is
changed during the leave year, his or her entitlement to use sick leave
for the purposes described in paragraphs (a)(3) and (4) of this section
must be recalculated based on the new tour of duty.
(f) An agency may advance a maximum of 30 days of sick leave to a
full-time employee at the beginning of a leave year or at any time
thereafter when required by the exigencies of the situation for a
serious disability or ailment of the employee or a family member or for
purposes relating to the adoption of a child. Thirty days is the
maximum amount of advance sick leave an employee may have to his or her
[[Page 47696]]
credit at any one time. For a part-time employee (or an employee on an
uncommon tour of duty), the maximum amount of sick leave an agency may
advance must be prorated according to the number of hours in the
employee's regularly scheduled administrative workweek.
Sec. 630.402 Requesting sick leave.
An employee must file an application--written, oral, or electronic,
as required by the agency--for sick leave within such time limits as
the agency may require. The employee must request advance approval for
sick leave for the purpose of receiving medical, dental, or optical
examination or treatment and, to the extent possible, for the purposes
described in Sec. 630.401(a)(3), (4), and (6).
Sec. 630.403 Supporting evidence for the use of sick leave.
(a) An agency may grant sick leave only when the need for sick
leave is supported by administratively acceptable evidence. An agency
may consider an employee's self-certification as to the reason for his
or her absence as administratively acceptable evidence, regardless of
the duration of the absence. An agency may also require a medical
certificate or other administratively acceptable evidence as to the
reason for an absence for any of the purposes described in Sec.
630.401(a) for an absence in excess of 3 workdays, or for a lesser
period when the agency determines it is necessary.
(b) An employee must provide administratively acceptable evidence
or medical certification for a request for sick leave 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 evidence or medical
certification within 15 calendar days after the date requested by the
agency despite the employee's diligent, good faith efforts, the
employee must provide the evidence or 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
documentation. An employee who does not provide the required evidence
or medical certification within the specified time period is not
entitled to sick leave.
(c) An agency may require an employee requesting sick leave to care
for a family member under Sec. 630.401(a)(3)(ii) to provide an
additional written statement from the health care provider concerning
the family member's need for psychological comfort and/or physical
care. The statement must certify that--
(1) The family member requires psychological comfort and/or
physical care;
(2) The family member would benefit from the employee's care or
presence; and
(3) The employee is needed to care for the family member for a
specified period of time.
Sec. 630.404 Use of sick leave during annual leave.
Subject to Sec. 630.401(b) through (e), an agency may grant sick
leave to an employee during a period of annual leave for any of the
purposes described in Sec. 630.401(a).
Sec. 630.405 Sick leave used in the computation of an annuity.
Sick leave used in the computation of an annuity is charged against
an employee's sick leave account and may not thereafter be used,
transferred, or recredited. All sick leave to the credit of an employee
as of the date of his or her retirement (or death) and reported to OPM
for credit towards the calculation of an annuity is considered used.
Sec. 630.406 Records on the use of sick leave.
An agency must maintain records of the amount of sick leave used by
an employee for family care purposes and to make arrangements for or
attend the funeral of a family member under Sec. 630.401(a)(3) and
(4). The records must be sufficient to ensure that an employee does not
exceed the limitations in Sec. 630.401(b) and (c).
[FR Doc. 06-7005 Filed 8-16-06; 8:45 am]
BILLING CODE 6325-39-P