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OPM.gov / Policy / Pay & Leave / Leave Administration

Family and Medical Leave Act (FMLA) 12-Week Entitlement

Table of Contents

Introduction

Most Federal employees are covered by Title I or Title II of the Family and Medical Leave Act (FMLA).

This fact sheet addresses Title II of FMLA, which is administered by the Office of Personnel Management (OPM) and covers most civilian Federal employees. The Title II FMLA statutory provisions are codified in subchapter V of chapter 63 of title 5 of the United States Code (see 5 U.S.C. 6381-6387). OPM’s FMLA regulations are codified at 5 CFR part 630, subpart L. Since title II of FMLA is codified in title 5, it is generally referred to as “title 5 FMLA.”

Title I of FMLA, administered by the Department of Labor (DOL), applies to private sector employees, State and local government employees, as well as some Federal employees (including employees of the U.S. Postal Service, the Postal Regulatory Commission, and the Government Accountability Office). The Title I FMLA provisions are codified in subchapter I of chapter 28 of title 29 of the United States Code (see 29 U.S.C. 2611-2620). The DOL FMLA regulations can be found at 29 CFR part 825. Employees subject to these regulations should contact DOL’s Wage and Hour Division for assistance with their FMLA questions. Title I of FMLA may also be referred to as “title 29 FMLA.”

Note: Certain categories of Federal employees receive FMLA leave benefits under other statutory authorities (for example, employees of the Federal Aviation Administration, the Transportation Security Administration, the Executive Office of the President, most of the legislative branch, and the Federal Reserve Board; also, certain employees of the Veterans Health Administration in occupations covered by a title 38 leave authority). Employees in such categories must obtain information about their FMLA leave benefits from the employing agency.

This fact sheet addresses FMLA entitlements covered by OPM’s title 5 FMLA regulations implementing Title II of the FMLA. By statute, OPM’s FMLA regulations are required to be consistent with DOL’s FMLA regulations, to the extent appropriate (5 U.S.C. 6387). OPM regulations purposefully differ from DOL’s regulations in certain areas. These differences are not mistakes or omissions; they are based on policy decisions as to what is appropriate for the Federal workforce. Agencies whose employees are covered by OPM’s FMLA authorities must follow OPM’s FMLA regulations and should not apply the DOL FMLA regulations to their employees.

Employee Eligibility and Agency Responsibilities (5 CFR 630.1201)

A general overview of the FMLA eligibility requirements is provided below. Full eligibility details can be found in the FMLA statute and regulations (see References section of this fact sheet for links to those authorities.)

Agency heads are responsible for the proper administration of FMLA for the agency’s employees, including informing employees of their FMLA entitlements and obligations and making FMLA eligibility determinations. Any questions on employee coverage (that is, which FMLA statutory authority applies to the employee) or eligibility should be directed to the employee’s human resources (HR) office.

Generally, to be eligible for FMLA leave benefits under OPM’s FMLA regulations, an employee must—

  • be covered by the title 5 leave system for annual and sick leave purposes;
  • not be specifically excluded from eligibility; and
  • have completed 12 months of qualifying civilian service, military service, or a combination of both.

Excluded Employees

For Federal employees who are subject to the OPM-administered title 5 FMLA regulations, the following categories of employees are excluded from FMLA eligibility:

  • employees with an intermittent work schedule;
  • employees on a temporary, not to exceed one-year appointment (Note: Employees on multiple temporary appointments not to exceed 1 year are not eligible for FMLA regardless of the cumulative total time of the appointments); and
  • employees who are Presidential appointees who are not covered under a leave system (since they cannot be charged leave for absences from work).

12 Months of Qualifying Civilian or Military Service

The following types of service are qualifying for the required 12 months of service for FMLA eligibility purposes:

  • Civilian service—service as an employee as defined in 5 U.S.C. 2105 of the Government of the United States, including service with the United States Postal Service, the Postal Regulatory Commission, and a non-appropriated fund instrumentality as described in section 2105(c). Thus, virtually all types of civilian Federal service (including employment on a temporary or intermittent basis) are qualifying for purposes of applying the FMLA eligibility requirement for 12 months of qualifying service. (Those currently employed on a temporary or intermittent basis remain ineligible to use FMLA leave.)
  • Military service—service which qualifies as honorable active service in the Army, Navy, Air Force, Space Force, or Marine Corps of the United States. Note that other active service, such as in the Coast Guard or in the commissioned corps of the Public Health Service, is not qualifying. Such other active service would count toward the 12-month service requirement only if it is covered by the Uniformed Services Employment and Reemployment Rights Act or otherwise performed during an interruption in Federal civilian service as described in 5 CFR 630.1201(b)(1)(ii)(F). See CPM 2024-05 for more details on qualifying military service.

An employee may meet the 12-month service requirement through any combination of qualifying civilian service and qualifying military service. The required 12 months of service do not need to be consecutive or recent and, for civilian service, may have been performed at one or more agencies.

Note: The service requirement under DOL’s title 29 FMLA regulations for employees to have worked for their current employing agency for 1,250 hours in the previous year to be eligible for Title I (title 29) FMLA leave benefits does not apply to employees under OPM’s FMLA regulations.

An individual who is serving as a volunteer in the Peace Corps or in the Volunteers in Service to America (AmeriCorps VISTA) program is not eligible for FMLA under OPM’s FMLA regulations while serving as a volunteer. However, upon the individual’s subsequent employment in a position that meets the definition of “employee” for FMLA purposes at 5 U.S.C. 6381(1)(A), “[a]ny period of satisfactory service” as a Peace Corps volunteer is creditable under 22 U.S.C. 2504(g)(1)(B) and certain periods of service of at least one year as an AmeriCorps VISTA volunteer are creditable under 42 U.S.C. 5055(c) towards the 12 months of required service for FMLA eligibility purposes.

Entitlement (5 CFR 630.1203)

FMLA 12-week Entitlement (5 U.S.C. 6382(a)(1))

Covered Federal employees are entitled to a total of 12 workweeks of unpaid* FMLA leave during any 12-month period for one or more of the following purposes:

  1. the birth of a son or daughter and care of the newborn (leave must be used no later than the date that is 12 months after the birth);
  2. the placement** of a son or daughter with the employee for adoption or foster care and the care of the son or daughter (leave must be used no later than the date that is 12 months after the placement);
  3. the care of an employee’s spouse, son, daughter, or parent with a serious health condition;
  4. a serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of the employee’s position; or
  5. any qualifying exigency arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces. (See OPM’s Family and Medical Leave Qualifying Exigency Leave fact sheet for more information on this entitlement.)

* FMLA leave is a type of unpaid leave/leave without pay for which certain types of paid leave may be substituted. See Substitution of Paid Leave for Unpaid FMLA Leave section below.

** See the definition of “placement” below—note that it refers to a new placement only and excludes use for a child who has already been a member of the employee’s household.

Note 1: Each parent-employee has a separate entitlement to 12 weeks of FMLA leave in a 12-month period based on birth or placement of a child—whether they work for the same office or agency or in separate agencies. Covered Federal employees who are spouses and have a child born or placed with them are not limited to a combined total of 12 weeks of FMLA leave in connection that child. (Such a limitation does apply under the DOL FMLA regulations.)

Note 2: The use of FMLA leave to care for a covered servicemember under 5 U.S.C. 6382(a)(3)-(4) may affect an employee’s ability to use the full 12-week entitlement during a 12-month period for the FMLA purposes listed above. For more details, see the information on the FMLA leave to care for a covered servicemember entitlement in CPM 2010-06.

Any holidays that occur during the period in which the employee is on FMLA leave do not count towards the 12-week entitlement to FMLA leave. Per the regulations at 5 CFR 630.1203(e)(1), FMLA leave “is not applied to days designated as holidays and other nonworkdays when the employee would be excused from duty.” Note that an employee is paid for a holiday if the employee is in pay status either before or after a holiday. If an employee substitutes paid leave for unpaid FMLA leave (or is in pay status for any reason) either before or after a holiday, the employee will receive pay for the holiday. For additional information, see OPM’s Federal Holidays - Work Schedules and Pay fact sheet.

FMLA leave related to the birth or placement of a child may be taken before the anticipated birth or placement under certain conditions. In the case of an anticipated birth, the leave may be taken (1) by an employee who will give birth based on the employee’s serious health condition related to pregnancy or (2) by an employee who is caring for a spouse, daughter, or parent who will give birth based on that person’s serious health condition related to pregnancy. In the case of an anticipated placement, the leave may be taken when the employee must be absent to engage in activities necessary to allow an anticipated adoption or a foster care arrangement to proceed.

FMLA leave related to the birth of a child may be taken “because of the birth” of an employee’s child. The “because of birth” condition covers leave taken by an employee in order to recover from giving birth. It also covers leave taken by an employee who is the other parent in order to care for the birth-giving parent during the post-birth recovery period. Note that if FMLA is taken “because of the birth” to care for the birth-giving parent, the other parent can provide that care even if not married to the birth-giving parent. (If an employee-parent wishes to take FMLA leave to care for the birth-giving parent during the post-birth recovery period, the employee may take leave for a serious health condition to care for the birth-giving parent only if the employees are married, since FMLA leave to care for a serious health condition may only be taken to care for a spouse, son, daughter, or parent of the employee.)

FMLA leave related to the birth or placement of a child may be taken in order to care for the newly born or placed child during the 12-month period following the birth or placement (5 U.S.C. 6382(a)(1)(A)-(B) as regulated in 5 CFR 630.1203(a)(1)-(2)). A parent-employee is considered to be caring for a child during periods when the parent-employee is in the home with the child or is otherwise involved in spending time with the child (bonding). It may include short periods away from the child’s physical presence to purchase supplies needed to care for the child (for example, buying baby food, diapers, or other supplies). It would not be appropriate to use this leave if an employee is not engaged in activities directly connected to care of the child—for example, if the employee is physically located outside the local geographic area where the child resides.

Invoking FMLA Entitlement

An employee or the employee’s personal representative must invoke the employee’s entitlement to FMLA leave. An agency may not force an employee to use FMLA leave instead of other types of leave outside of FMLA, place an employee on FMLA leave, or unilaterally subtract leave from an employee’s FMLA entitlement. An employee generally may not retroactively invoke the employee’s entitlement to FMLA leave. However, if an employee and the employee’s personal representative are physically or mentally incapable of invoking the employee's FMLA entitlement during the entire period in which the employee is absent from work for a FMLA-qualifying purpose, the employee may retroactively invoke the employee’s FMLA entitlement within 5 workdays after returning to work.

12-Month FMLA Period

An employee is entitled to 12 weeks of FMLA leave in a 12-month period. An employee’s 12-month FMLA period (that is, the timeframe during which the employee may use the 12 weeks of FMLA leave) begins on the date the employee first takes FMLA leave and continues for a 12-month period from the date of first usage. Note that the employee’s FMLA period begins on the first day the employee uses FMLA. It does not begin on the date the employee invokes the FMLA entitlement or notifies the agency that the employee plans to take FMLA leave.

An employee is not entitled to 12 additional workweeks of FMLA leave until the previous 12-month period ends and an event or situation occurs that entitles the employee to another period of FMLA leave. This may include a continuation of a previous situation or circumstance.

For example, an employee who takes FMLA leave beginning on January 10, 2024, and exhausts the 12-week entitlement by mid-April 2024, may not take FMLA leave for any FMLA purpose until a new 12-month period begins for the employee on January 10, 2025.

Hours of FMLA Leave by Work Schedule

For a regular full-time employee who has an 80-hour biweekly tour of duty, the 12 weeks of FMLA leave are converted to 480 hours. The hours of leave are proportionally adjusted for part-time employees and those on uncommon tours of duty. There is also a conversion of the 12-week FMLA entitlement for employees who are charged leave on a daily basis. If there is change in the employee’s scheduled tour of duty during the employee’s 12-month FMLA period, any remaining balance of leave must be recalculated based on the change in the number of average hours in the employee’s new tour of duty. See the FMLA regulations at 5 CFR 630.1203(e)(2) for full details.

Timeframe for Use of FMLA and Paid Parental Leave (PPL) Related to Birth or Placement of a Child

An employee who takes FMLA leave for the birth of a child or the placement of a child with the employee for adoption or foster care has up to 1 year following the birth or placement to use the FMLA leave. The statute provides that entitlement to FMLA leave for birth or placement purposes expires at the end of the 12-month period beginning on the date of the birth or placement. This restriction is set in statute and cannot be extended for any reason. For example, no extension can be granted if, an employee is placed in furlough status or an employee’s civilian employment status is interrupted in order to perform military service.

Please note the following:

  • As explained earlier, FMLA leave taken for birth or placement purposes may begin prior to the actual date of birth or placement for adoption or foster care and must end by the date that is 12 months after the date of birth or placement.
  • By contrast, the entitlement to PPL is triggered by the occurrence of a birth or placement. This means that the 12 weeks of PPL may be used only on or after the date of the birth or placement for adoption or foster care. Since PPL may be used only via substitution for unpaid FMLA leave based on a birth or placement, use of PPL must end by the date that is 12 months after the date of birth or placement.

Example 1

An employee’s spouse has a baby on June 3, 2024. The expiration date for use of FMLA for birth and care of the child is June 2, 2025. Initially, the employee does not invoke FMLA leave but instead takes sick leave for care of a family member with a serious health condition to care for the spouse during the recovery from childbirth from June 3, 2024, until July 26, 2024. The employee later invokes FMLA leave for the birth and care of the child and begins use of FMLA leave on November 8, 2024. Using FMLA leave on November 8, 2024, begins the employee’s 12-month FMLA period which will end on November 7, 2025. The employee substitutes paid parental leave (PPL) for unpaid FMLA leave based on the birth of a child. However, as stated previously, the 12-month period during which the employee may take FMLA leave based on the birth of a child (with substitution of PPL) expires on June 2, 2025 (that is, the end date of the 12- month period following the birth which occurred on June 3, 2024). In this example, the employee takes FMLA leave with substitution of PPL as of November 8, 2024, and has until June 2, 2025, to use the 12 weeks of FMLA/PPL for childbirth purposes. The choice of the employee to invoke FMLA on November 8, 2024, rather than immediately upon the birth of the child on June 3, 2024, means that the employee may only take FMLA leave for the birth of the child between November 8, 2024, and June 2, 2025. There is no authority to allow an employee to use FMLA leave for the birth and care of the child beyond the 12-month period prescribed in statute.

Example 2

An employee and the employee’s partner have a child placed with them for adoption on January 4, 2024. The expiration date for use of FMLA leave for placement for adoption and care of the child is January 3, 2025. The employee is approved to take FMLA leave intermittently. The employee uses FMLA leave for the adoption and care of the child with substitution of PPL starting on January 4, 2024, thus beginning the employee’s 12-month FMLA period, which will run through January 3, 2025. In this case, the 12-month FMLA period and the 12-month period during which PPL may be used coincide. The employee uses 6 weeks of FMLA leave, from January 4, 2024, through February 29, 2024. The employee intends to use the remaining 6 weeks of FMLA leave around the November and December holidays. However, the employee is mobilized for active duty for 6 months on October 1, 2024. The employee will not be able to use the remaining 6 weeks of FMLA leave with substitution of PPL because the employee will be on active duty when the date for use of FMLA for the child’s adoption expires on January 3, 2025, and there is no authority to allow an employee to use FMLA leave for the placement and care of a child beyond the 12-month period prescribed in statute.

Important Definitions (5 CFR 630.1202)

Some of the definitions below are summarized. For the full definitions of these and other terms, see the link to the regulations above.

Birth means the delivery of a living child. When the term “birth” is used in connection with the use of FMLA leave before birth, it refers to an anticipated birth.

In loco parentis refers to a situation of an individual who has day-to-day responsibility for the care or financial support of a child. In applying FMLA leave provisions—

  • A child with respect to whom an employee has “in loco parentis” status is considered a child (“son or daughter”) of the employee; and
  • A person who had “in loco parentis” status with respect to an employee when that an employee was a child is considered the employee’s “parent.”

A biological or legal relationship is not necessary. (For more information on the interpretation of “in loco parentis,” please see CPM 2010-15, Interpretation of “Son or Daughter” Under the Family and Medical Leave Act.)

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.

Parent means a biological, adoptive, step, or foster father or mother, or any individual who stands or stood “in loco parentis” to an employee meeting the definition of son or daughter below. This term does not include parents “in law.”

Placement means a new placement of a son or daughter with an employee for adoption or foster care. For example, this excludes the adoption of a stepchild or a foster child who has already been a member of the employee’s household and has an existing parent-child relationship with an adopting parent. When the term “placement” is used in connection with FMLA leave before placement has occurred, it refers to a planned or anticipated placement.

Reduced leave schedule means a work schedule under which the usual number of hours of regularly scheduled work per workday or workweek for an employee are reduced as a result of the increased use of leave.

Serious health condition is fully defined at 5 CFR 630.1202. The definition covers such conditions as cancer, heart attacks, strokes, severe injuries, Alzheimer’s disease, any incapacity resulting from pregnancy or childbirth, or for prenatal care. The term “serious health condition” is not intended to cover short-term conditions for which treatment and recovery are very brief. The common cold, earaches, upset stomach, headaches (other than migraines), routine dental or orthodontia problems, etc., are not serious health conditions unless complications arise.

Son or daughter is a biological, adopted, or foster child; a stepchild; a legal ward; or a child of a person standing “in loco parentis” who is—

  • Under 18 years of age; or
  • 18 years of age or older and incapable of self-care because of a mental or physical disability (see full regulatory definition of “son or daughter” at link above for more information on the meaning of “incapable of self-care”).

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State where the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

  1. Was entered into in a State that recognizes such marriages, or
  2. If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

State means any State of the United States or the District of Columbia or any Territory or possession of the United States.

Intermittent Use of FMLA Leave (5 CFR 630.1205)

Employees are entitled to use FMLA leave intermittently or on a reduced leave schedule—

  • when medically necessary for
  • the care of the spouse, or a son, daughter, or parent of the employee who has a serious health condition; or
  • a serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of the employee’s position; or
  • for qualifying exigency purposes. For more information, please see OPM’s Family and Medical Leave Qualifying Exigency Leave fact sheet.

If the need for an intermittent or reduced leave schedule under FMLA leave is foreseeable based on planned medical treatment or recovery from a serious health condition, the agency may place the employee temporarily in an alternative position for which the employee is qualified and that can better accommodate recurring periods of leave. Upon returning from leave, the employee is entitled to be returned to the employee’s permanent or an equivalent position, per the normal requirements for employees returning from FMLA leave.

For FMLA leave taken based on the following circumstances, an employee may use FMLA leave intermittently or on a reduced leave schedule only if both the agency and the employee agree to such use:

  • for the birth of a son or daughter of the employee and the care of such son or daughter; or
  • for the placement of a son or daughter with the employee for adoption or foster care.

Substitution of Paid Leave for Unpaid FMLA Leave (5 CFR 630.1206)

Family and Medical Leave is a type of leave without pay or unpaid leave for which an employee may choose to substitute certain types of paid leave. An employee may choose to substitute paid leave for unpaid FMLA leave, consistent with the statutes and OPM’s regulations governing use of that type of paid leave. An agency may not require an employee to substitute paid leave for unpaid FMLA leave.

The types of paid leave that may be substituted for FMLA leave without pay are:

An employee may not substitute any other type of paid leave or paid time off for unpaid FMLA leave.

For unpaid FMLA leave taken in connection with a birth or placement, an employee may substitute any of the types of paid leave above, consistent with the statutes and OPM’s regulations governing use of that type of leave, for any birth or placement purpose. (See 5 CFR 630.1206(b).) Generally, an employee must notify the agency of the employee’s election to substitute paid leave for unpaid FMLA leave prior to the date the paid leave commences. However, there are some limited exceptions to this rule, one of which is that donated annual leave under the VLTP or VLBP may be retroactively substituted for unpaid FMLA leave since in some cases an employee may not have received donated annual leave to substitute for a period of unpaid FMLA leave until after the employee has taken unpaid FMLA leave.

Use of Paid Leave Outside of FMLA

An employee does not have to invoke FMLA for personal and family health situations in order to be absent from work for these purposes. An employee is not required to invoke FMLA for these circumstances and may instead invoke sick leave outside of FMLA (or request other types of paid leave or paid time off), thereby preserving the employee’s FMLA entitlement for additional needs that may arise. An employee’s request to use types of paid leave without invoking FMLA is subject to the agency’s normal authority to approve or disapprove the use and timing for use of the leave.

Sick leave, under the circumstances specified by statute and regulation, is an employee entitlement. An agency generally may not deny an employee’s request to use sick leave outside of FMLA for a sick leave purpose authorized at 5 CFR 630.401 (although certain scheduling requirements must be met for its use—see our Sick Leave (General Information) fact sheet for more information).

For example, an employee whose spouse has a serious health condition may choose to take up to 12 weeks of sick leave in a leave year to care for the spouse (5 CFR 630.401(c)), then invoke FMLA to take up to 12 weeks of FMLA leave for the spouse’s care.

An employee also has a right to take annual leave, subject to the right of the agency to schedule the time at which it may be taken. Generally, an agency has the right to deny the scheduling of an employee’s annual leave request—that is, the agency may control the timing of when annual leave is used. However, if the employee invokes FMLA leave for a valid purpose, the employee’s request to substitute annual leave for unpaid FMLA leave may not be denied. The same principle applies for the scheduling of donated annual leave under the VLTP or VLBP. An agency may deny an employee’s scheduling (that is, timing) of the donated annual leave unless the employee invokes FMLA leave and requests to substitute donated annual leave for unpaid FMLA leave.

PPL may be used only by substituting it for unpaid FMLA leave taken in connection with the birth or placement of a child and only during the 12-month period following the birth or placement. Under the statutory provisions, PPL cannot be used outside of a FMLA leave period. Therefore, an employee must have an available period of FMLA leave usage to access the use of PPL. For further details on PPL, please see the PPL fact sheet.

Notice of Leave (5 CFR 630.1207)

When the Need for Leave is Foreseeable

When the need for FMLA leave is foreseeable based on expected birth, placement for adoption or foster care, or planned medical treatment, the employee must provide the agency at least 30 calendar days’ notice of the employee’s intention to take FMLA leave. If the employee fails to provide 30 calendar days’ notice with no reasonable excuse for the delay, the agency may delay the employee’s FMLA leave until at least 30 calendar days after the date the employee notifies the agency of the employee’s need for FMLA leave. If the need requires the leave to begin within 30 calendar days, the employee must provide as much notice as is practicable.

If an employee’s need for FMLA leave is because of a serious health condition of the employee or the employee’s spouse, son, daughter or parent, and the need for FMLA leave is foreseeable based on planned medical treatment for the serious health condition, the employee must consult with the agency and make a reasonable effort to schedule the medical treatment so as not to disrupt unduly the agency’s operations, subject to the approval of the employee’s health care provider. If the agency has a justifiable reason for doing so, the agency may request that the employee reschedule medical treatment, subject to the approval of the employee’s health care provider.

When the leave is taken for qualifying exigency purposes and the need for it is foreseeable, the employee must provide notice as soon as practicable, regardless of how far in advance the leave is being requested. See OPM’s Family and Medical Leave Qualifying Exigency Leave fact sheet for what constitutes a qualifying exigency purpose.

When the Need for Leave is Not Foreseeable

When the need for leave is not foreseeable (for example, 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 the employee’s intention to take FMLA leave, the employee must provide notice within a reasonable period of time. If necessary, notice may be given by an employee’s personal representative. If the employee is unable, due to circumstances beyond the employee’s control, to provide notice of the employee’s need for leave, the agency may not delay or deny the leave.

Medical Certification (5 CFR 630.1208)

An agency may accept an employee’s self-certification of the need for FMLA leave for a serious health condition or may require a written medical certification from the health care provider of the employee or the health care provider of the employee’s spouse, son, daughter, or parent, as appropriate. Both the statute and OPM’s regulations specify what information is required in the medical certification form.

OPM has not published its own FMLA medical certification forms. Agencies may use the forms developed by DOL (see links below) or may create their own FMLA medical certification forms. In any case, agencies may only request the information specified in OPM’s regulations. The information on the medical certification may relate only to the serious health condition for which the need for FMLA leave exists. An agency may not require any personal or confidential information other than that specified in regulations.

If the employee submits a medical certification that is incomplete, the agency may require that the missing information be provided. If the 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 agency administrative oversight, may contact the health care provider who completed the medical certification, with the employee's permission, for purposes of clarifying the medical certification.

Some employees affected by a serious health condition may feel uncomfortable with their agencies knowing their medical diagnosis. The FMLA regulations do not require that the medical certification include a diagnosis. The current FMLA Medical Certification Form for Employee’s Serious Health Condition - WH-380-E permits, but does not require, that the healthcare provider include a diagnosis.

Note that the FMLA regulations do not specify to whom the medical certification must be provided, but only indicate that it must be provided to the agency. The medical certification is subject to the provisions for safeguarding information about individuals under 5 CFR part 293, subpart A.

Medical Certification Deadlines

An employee must provide the medical certification no later than 15 calendar days after the date the agency requests it. If the employee is unable to meet this deadline, despite diligent, good faith efforts, the employee must provide the medical certification no later than 30 calendar days after the agency’s request.

Provisional FMLA Leave

The FMLA statute and regulations do not require that the agency receive or approve an employee’s FMLA medical certification before the employee may take FMLA leave.

If an employee is unable to provide 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 must provide the employee provisional FMLA leave pending final written medical certification. If the employee has followed the required FMLA notification requirements, the employee does not need to wait until the agency reviews and approves the medical certification form before taking FMLA leave.

Example 1

An employee’s parent is hospitalized following a fall in which the employee’s parent suffers a broken hip. The employee invokes FMLA leave and immediately begins to care for the parent. The agency then requests medical certification to support the use of FMLA. The employee must provide the FMLA medical certification to the agency no later than 15 days after the agency requests it (or, no later than 30 days after the agency requests it if the employee is unable to meet the 15-day deadline despite diligent, good faith efforts as outlined above).

Example 2

An employee receives a cancer diagnosis and will need to receive chemotherapy and radiation treatments immediately. The employee invokes entitlement to unpaid FMLA leave and begins taking FMLA leave. The agency requests medical certification to support the employee’s use of FMLA leave. The employee must provide the FMLA medical certification to the agency no later than 15 days after the agency requests it (or, no later than 30 days after the agency requests it if the employee is unable to meet the 15-day deadline despite diligent, good faith efforts as outlined above).

Missing FMLA Medical Certification

If, ultimately, the employee fails to provide the medical certification, the employee is not entitled to FMLA leave benefits or protections. In such cases, the agency should cancel the FMLA leave status. The agency has the choice to then charge the employee as absent without leave (AWOL) or allow the employee to request that the provisional FMLA leave be charged as leave without pay or charged to annual leave or sick leave, as appropriate. Note that AWOL is a non-pay status and covers any absence from duty that has not been approved. (Note: Placing an employee in AWOL status is not in and of itself a disciplinary action. Depending on the circumstances, an agency may or may not choose to take disciplinary action as a result of an employee being AWOL.)

Second and Third Opinions

If an agency doubts the validity of the original medical certification, the agency may require a second opinion by a second health care provider designated or approved by the agency. The agency must pay for the second opinion.

If the second opinion differs from the original medical certification, the agency may require a third opinion, which is final and binding on both the agency and the employee. The employee and agency must agree on the third health care provider, and the agency pays for the third opinion. If the employee does not agree to the second and third opinion process, the employee is not entitled to FMLA leave benefits or protections.

Any health care provider designated or approved by the agency may not be employed by the agency or be under its administrative oversight unless the agency is in an area where access to health care is extremely limited.

Medical Recertification

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. For leave taken for all other serious health conditions, 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 more frequent recertification than every 30 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.

Protection of Employment and Benefits, Return to Work, and RIF or Adverse or Performance-based Actions (5 CFR 630.1210)

Upon return from FMLA leave, an employee must be returned to the same or equivalent position in the same commuting area with equivalent benefits, pay, status, and other terms and conditions of employment.

An agency may establish a uniformly applied policy that requires all similarly situated employees who take FMLA leave for a personal serious health condition to provide written medical certification from the health care provider that the employee is able to perform the essential functions of the employee’s position as a condition of returning to work. The agency must pay for the medical certification and may delay the employee’s return until it is provided. The agency must notify the employee of this requirement before the employee’s FMLA leave begins, or as soon as possible in emergency medical situations.

An employee who invokes the employee’s entitlement to FMLA leave is not immune from the impact of a reduction in force (RIF) before, during, or after the period of FMLA leave.

Similarly, an employee’s use of leave under the FMLA does not prevent an agency from taking appropriate action under 5 CFR part 432 or 5 CFR part 752. Pending adverse actions or performance-based actions may be taken and made effective even if the employee is taking FMLA leave.

For example, an employee was unsuccessful in improving performance during an opportunity period to improve and invoked their FMLA entitlement immediately following the opportunity period. The agency may issue the proposal and decision notices for removal based on unacceptable performance and effect the action just as the agency would for an employee who did not invoke FMLA.

There is no obligation to wait until the employee has returned from FMLA leave to proceed with an otherwise valid adverse action or performance-based action. Agencies cannot remove or otherwise discipline an employee based on the employee’s use of leave under the FMLA.

Health Benefits (5 CFR 630.1211)

An employee who takes FMLA leave is entitled to maintain health benefits coverage. An employee on FMLA leave may continue to pay the employee contribution share of the health benefits premiums while taking FMLA leave or pay the associated premium upon return to work, consistent with 5 CFR 890.502. For more information on the possible effects of leave without pay status, please see our Effect of Extended Leave Without Pay (LWOP) (or Other Nonpay Status) on Federal Benefits and Programs fact sheet.

Grievance Procedures

Congress has not provided OPM with specific oversight or investigative authority with respect to agencies’ FMLA leave programs. If an employee believes an agency has not fully complied with the rights and requirements provided by the Family and Medical Leave Act and OPM’s FMLA regulations, the employee may file a grievance under the agency’s administrative or negotiated grievance procedures.

For information about initiating a grievance, employees should contact their servicing HR office or, if applicable, a representative of the labor organization that represents the employee. Except when a claim is covered by an agency negotiated grievance procedure, an employee whose agency denies the employee’s claim may appeal the claim to OPM’s Merit System Audit and Compliance (MSAC) office under the procedures contained in 5 CFR part 178 subpart A. Please see OPM’s Compensation and Leave Claims fact sheet for instructions relating to filing a claim with OPM’s MSAC office.

Other Available Leave Options and Work Schedule Flexibilities

The Federal Government offers a wide range of leave options and workplace flexibilities to assist an employee who needs to be away from the workplace. These flexibilities include annual leave, sick leave, advanced annual leave or advanced sick leave, donated annual leave under the voluntary leave transfer program, leave without pay, alternative work schedules, credit hours under flexible work schedules, compensatory time off and telework. Agencies may also have a voluntary leave bank program.

Questions

Agencies are responsible for the administration of leave for their employees and establishing their own HR policies based on the leave statutes in chapter 63 of title 5, United States Code, and the leave regulations in part 630 of title 5, Code of Federal Regulations. Therefore, if you are an employee, timekeeper, supervisor or other agency official, or union representative, you should contact your servicing HR office for assistance with any questions you may have. If you are a component HR office, you should contact your agency headquarters office for assistance. If your HR chain of command needs assistance answering your question, inquiries should be directed to OPM through the headquarters HR policy office.

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References

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