Absence and Leave; Family and Medical Leave, 43064-43082 [E9-20610]

Agencies

• Office of Personnel Management

[Federal Register Volume 74, Number 164 (Wednesday, August 26, 2009)]
[Proposed Rules]
[Pages 43064-43082]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20610]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 74, No. 164 / Wednesday, August 26, 2009 / 
Proposed Rules

[[Page 43064]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 630

RIN 3206-AL91


Absence and Leave; Family and Medical Leave

AGENCY: U.S. Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management is issuing proposed 
regulations that would provide an eligible employee up to 26 
administrative workweeks of leave under the Family and Medical Leave 
Act (FMLA) to care for a member of the Armed Forces, including a member 
of the National Guard or Reserves, who is injured in the line of duty 
while on active duty. The proposed regulations would also amend the 
rules on advancing sick leave, including sick leave that may be 
substituted for FMLA unpaid leave to care for a covered servicemember 
and sick leave that may be used to provide care for a family member 
and/or for bereavement purposes, or in certain other circumstances. 
Finally, we are also proposing organizational changes to the existing 
sick leave and FMLA regulations to enhance reader understanding and 
administration of these programs.

DATES: Comments must be received on or before October 26, 2009.

ADDRESSES: You may submit comments, identified by RIN number ``3206-
AL91'' using either of the following methods:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments.
    Mail: Jerome D. Mikowicz, Deputy Associate Director, Center for Pay 
and Leave Administration, U.S. Office of Personnel Management, Room 
7H31, 1900 E Street, NW., Washington, DC 20415-8200.

FOR FURTHER INFORMATION CONTACT: Doris Rippey 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 U.S. Office of Personnel Management 
(OPM) is issuing proposed regulations to implement section 585(b) of 
the National Defense Authorization Act for Fiscal Year 2008 (NDAA) 
(Pub. L. 110-181, January 28, 2008) that amends the Family and Medical 
Leave Act (FMLA) provisions in 5 U.S.C. 6381-6383 (applicable to 
Federal employees) to provide that a Federal employee who is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember with a serious injury or illness is entitled to a total 
of 26 administrative workweeks of leave during a single 12-month period 
to care for the covered servicemember. The covered servicemember must 
be a current member of the Armed Forces, including a member of the 
National Guard or Reserves, who has a serious injury or illness 
incurred in the line of duty on active duty for which he or she is 
undergoing medical treatment, recuperation, or therapy, is otherwise in 
outpatient status, or is otherwise on the temporary disability retired 
list. The proposed regulations would also permit an employee to 
substitute annual or sick leave, including advanced annual or sick 
leave, for any part of the 26-week period of unpaid FMLA leave to care 
for a covered servicemember. In addition, OPM is proposing to update 
its sick leave regulations to support agencies in planning for pandemic 
influenza. We are also proposing to clarify our current regulations 
regarding the advancement of up to 104 hours of sick leave to provide 
care for a family member and/or for bereavement purposes, and the 
amount of sick leave that may be advanced for other conditions 
specified under 5 CFR 630.401(a). We are also proposing organizational 
changes to the sick leave and FMLA regulations to enhance reader 
understanding and administration of the programs.
    The amendments to the FMLA became effective on the date of their 
enactment, January 28, 2008. On February 1, 2008, OPM issued a 
Compensation Policy Memorandum (CPM 2008-04), outlining the changes in 
Federal employee pay and leave laws resulting from the enactment of the 
NDAA, including the changes to the FMLA statute. (See https://www.opm.gov/oca/compmemo/2008/2008-04.asp.) In this memorandum, OPM 
stated that agencies were expected to follow the NDAA statutory 
provisions upon the effective date provided in law. Agencies are to 
continue implementing the statute to the best of their ability until 
OPM final regulations are issued.
    In accordance with 5 U.S.C. 6387, OPM is required to prescribe 
regulations that are consistent, to the extent appropriate, with those 
prescribed by the Secretary of Labor to carry out title I of the FMLA. 
The Department of Labor (DOL) issued its final regulations on November 
17, 2008 (73 FR 67934) to implement section 585(a) of the NDAA, 
amending title I of the FMLA, and to make other substantive changes to 
the DOL FMLA regulations based upon stakeholder meetings, rulings of 
the U.S. Supreme Court and other Federal courts, DOL's experience 
administering the law, information from Congressional hearings, and 
public comments filed with the Office of Management and Budget (OMB) as 
described by OMB in three annual reports to Congress on the FMLA's 
costs and benefits. In developing the NDAA portion of its regulations, 
DOL consulted with the Department of Defense (DOD), the Department of 
Veterans Affairs (VA), and a number of military service organizations 
to provide regulations that reflect the unique circumstances facing 
military families when a servicemember is deployed in support of a 
contingency operation and injured in the line of duty on active duty. 
To the extent appropriate, OPM is prescribing regulations consistent 
with the DOL regulations, as revised to incorporate the NDAA 
amendments. In order to expedite the implementation of the NDAA 
provisions for the Federal workforce, our regulations are addressing 
only the provisions in section 585(b) of the NDAA. After we issue final 
regulations incorporating the NDAA provisions in our current FMLA 
regulations, we will further review DOL's final rule to determine 
whether any additional changes are needed in our regulations. If 
changes are necessary, we will publish a proposed rule.
    We are also considering whether a comprehensive review of OPM's 
FMLA regulations is needed to identify any problems or concerns that 
our stakeholders have encountered when

[[Page 43065]]

reading and applying the provisions of subpart L, Family and Medical 
Leave, in part 630 of title 5, Code of Federal Regulations. Our FMLA 
regulations were initially published in 1993, and agencies have had 
ample experience in administering FMLA provisions. We expect it would 
be relatively easy for agencies to provide specific examples and 
feedback on how they believe our regulations could be improved. Any 
future OPM review would operate within the then-current FMLA statutory 
provisions. We are asking agencies for their recommendations on what 
significant changes, if any, are needed within the existing OPM FMLA 
regulatory framework.
    We are also proposing to reorganize the FMLA regulations in subpart 
L and the sick leave regulations in subpart D to enhance the reader's 
understanding of the regulations and make it easier to find relevant 
topics within the regulatory text.

Subpart D, Sick Leave

Overview of Sick Leave Changes

    Under 5 U.S.C. 6307(d), an agency may, when required by the 
exigencies of the situation, advance up to 30 days of sick leave for a 
serious disability or ailment, or for purposes relating to the adoption 
of a child. Under 5 CFR 630.401(f) in OPM's current regulations, 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. OPM is proposing to 
update these regulations to permit an agency to advance sick leave to 
an employee to care for a covered servicemember, pursuant to the NDAA 
amendments. These proposed regulations also support agencies in dealing 
with possible outbreaks of pandemic influenza and other serious 
communicable diseases, by permitting an agency to grant accrued or 
accumulated sick leave to an employee providing care for a family 
member who has been exposed to a serious communicable disease, and by 
permitting an agency to advance sick leave when an employee or a family 
member has been exposed to a serious communicable disease. Further, 
these proposed regulations generally clarify the amount of sick leave 
that may be advanced for conditions specified under Sec.  630.401(a).

Advanced Sick Leave To Care for a Covered Servicemember

    The NDAA amended the FMLA to authorize Federal employees up to 26 
administrative workweeks (1040 hours for a full-time employee) of 
unpaid FMLA leave to care for a covered servicemember with a serious 
injury or illness. Once an employee has invoked FMLA leave under 
Sec. Sec.  630.1203(b) and 630.1204 of the proposed regulations, the 
NDAA amendments to 5 U.S.C. 6382(d) allow an employee to substitute any 
accrued or accumulated annual or sick leave for any period of leave 
without pay. For a full-time employee, the 480-hour (12-week) 
limitation per leave year on the use of sick leave to care for a family 
member with a serious health condition under current Sec.  630.401(c) 
does not apply because the employee may substitute accrued or 
accumulated sick leave for any or all of the 26 administrative 
workweeks of unpaid leave to care for a covered servicemember. We 
believe it is also appropriate to allow the use of advanced sick leave 
for this purpose within certain limits, provided the employee has 
invoked FMLA under Sec. Sec.  630.1203(b) and 630.1204. Although an 
employee may use up to 26 administrative workweeks of accrued and 
accumulated sick leave during a single 12-month period if he or she 
invokes FMLA to care for a covered servicemember, we provide under 
proposed Sec.  630.402(a)(1)(v) and (b) that an agency may advance sick 
leave only to the extent that the employee is not indebted for more 
than 240 hours (30 days) of advanced sick leave at any time. An agency 
may not advance any sick leave to care for a covered servicemember 
under Sec.  630.402(a)(1)(v) if the employee has not invoked FMLA to 
care for a covered servicemember under Sec. Sec.  630.1203(b) and 
630.1204.
    For example, a relatively new employee learns that her husband is 
injured by gunfire in the line of duty on active duty. The employee is 
entitled to 26 weeks of unpaid leave under the FMLA to care for a 
covered servicemember; however, she has a combined total of only 160 
hours (4 weeks) of accrued and accumulated annual leave and sick leave. 
The employee requests advanced sick leave, and the agency approves the 
maximum amount allowable of 240 hours (30 days). The agency may advise 
the employee that she also can apply for donated annual leave under the 
voluntary leave transfer program (5 CFR part 630, subpart I) to 
liquidate the advanced sick leave and cover a portion of the remaining 
26 weeks of unpaid leave.

Sick Leave for Pandemic Influenza and Other Serious Communicable 
Diseases

    OPM also is proposing to update its sick leave regulations to 
support agencies' planning for pandemic influenza and other serious 
communicable diseases. The current sick leave regulations at Sec.  
630.401(a)(5) entitle an employee to use accrued or accumulated sick 
leave when it has been determined by the health authorities having 
jurisdiction or by a health care provider that the employee's presence 
on the job would jeopardize the health of others because of the 
employee's exposure to a communicable disease (e.g., Federal or State 
quarantine or isolation order).
    We propose to amend Sec.  630.401(a)(3) to entitle an employee to 
use accrued or accumulated sick leave to provide care for a family 
member when it has been determined by the health authorities having 
jurisdiction or by a health care provider that the family member's 
presence in the community would jeopardize the health of others because 
of the family member's exposure to a communicable disease, whether or 
not the family member has actually contracted the communicable disease. 
In general, this situation would only arise for serious communicable 
diseases, such as communicable diseases where federal isolation and 
quarantine are authorized under Executive Order 13295, as amended by 
Executive Order 13375, consistent with 42 U.S.C. 264(b). The current 
consolidated list of communicable diseases for which federal isolation 
and quarantine are authorized includes: cholera; diphtheria; infectious 
tuberculosis; plague; smallpox; yellow fever; viral hemorrhagic fevers; 
Severe Acute Respiratory Syndrome (SARS); and influenza that causes or 
has the potential to cause a pandemic. This list provides types of 
diseases that result in Federal quarantine and may be revised by the 
President as the need arises. As a result, this list of diseases is 
illustrative and not exhaustive. We request comment on whether 
additional changes to the regulatory text would help clarify the 
limited cases in which the situation would meet this threshold.
    In order to use sick leave in this situation, the relevant health 
authorities or a health care provider must first make a determination 
that the family member's presence in the community would jeopardize the 
health of others because of the family member's exposure to a 
communicable disease. Secondly, the employee must actively

[[Page 43066]]

be providing care for the family member. For example, a minor child of 
an employee could have been exposed to a communicable disease such as 
smallpox, and a determination has been made by the relevant health 
authorities or the health care provider that the child's presence at 
daycare or at school could jeopardize the health of other children. The 
employee could use sick leave to provide care for that child at home 
until it is determined whether or not the child has contracted the 
disease. The proposed amendment to Sec.  630.401(b) would limit the 
amount of accrued or accumulated sick leave available for this purpose 
to 104 hours per leave year, unless the family member contracts the 
communicable disease. Upon determination by health care officials that 
the family member has contracted the disease, the employee is entitled 
to use up to 12 weeks of sick leave in a leave year to care for a 
family member with a serious health condition under Sec.  630.401(c).
    Based on comments received from agencies related to OPM's existing 
pandemic guidance, we are also proposing to change our regulations 
under Sec.  630.402(a)(1)(iii) to permit agencies to advance a maximum 
of 240 hours (30 days) of sick leave to an employee if it has been 
determined by the health authorities having jurisdiction or by a health 
care provider that the employee's presence on the job would jeopardize 
the health of others because of exposure to a communicable disease. 
Similarly, we propose under Sec.  630.402(a)(2)(iii) an advancement of 
a maximum of 104 hours (13 days) of sick leave in a leave year to an 
employee to provide care for a family member who would, as determined 
by the health authorities having jurisdiction or by a health care 
provider, jeopardize the health of others by that family member's 
presence in the community because of exposure to a communicable 
disease.
    We believe these proposed regulatory changes are consistent with 
the intent of Federal sick leave laws and would benefit agencies and 
employees, especially in the event of a health crisis resulting in an 
outbreak of pandemic influenza or another communicable disease.

Proposed Regulations on Advanced Sick Leave

    OPM is also proposing to insert a new section at Sec.  630.402 that 
reinstates a longstanding practice that is not in our current 
regulations regarding the advancement of up to 104 hours (13 days) of 
sick leave to provide general care for a family member and/or for 
bereavement purposes. In this section, we are also proposing to specify 
the amount of sick leave that may be advanced for other conditions 
listed under Sec.  630.401(a).
    OPM's proposed regulations at Sec.  630.402(a)(1) would permit an 
agency to advance up to 240 hours (30 days) of sick leave to a full-
time employee (1) who is incapacitated for the performance of his or 
her duties by physical or mental illness, injury, pregnancy, or 
childbirth; (2) for a serious health condition of the employee or a 
family member; (3) when the employee 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; (4) for purposes 
relating to the adoption of a child; or (5) for the care of a covered 
servicemember with a serious injury or illness, provided the employee 
has invoked FMLA in accordance with Sec. Sec.  630.1203(b) and 
630.1204. We are also proposing under Sec.  630.402(a)(2) that an 
agency may advance up to 104 hours (13 days) of sick leave to a full-
time employee when he or she (1) receives medical, dental, or optical 
examination or treatment; (2) 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; 
(3) provides care for a family member who would, as determined by the 
health authorities having jurisdiction or by a health care provider, 
jeopardize the health of others by that family member's presence in the 
community because of exposure to a communicable disease; or (4) makes 
arrangements necessitated by the death of a family member or attends 
the funeral of a family member.
    Under proposed Sec.  630.402(a), the maximum amount of sick leave 
that may be advanced is 240 hours (30 days). Under proposed Sec.  
630.402(b), an employee may not be indebted for more than 240 hours (30 
days) at any point in 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, and for which an employee may be indebted, must be 
prorated according to the number of hours in the employee's regularly 
scheduled administrative workweek.

Substitution of Sick Leave for Unpaid FMLA Leave To Care for a Covered 
Servicemember

    The NDAA also amended 5 U.S.C. 6382(d) to provide that an employee 
may elect to substitute any of the employee's accrued or accumulated 
annual or sick leave for any part of the 26-week period of unpaid FMLA 
leave to care for a covered servicemember. We are proposing a new Sec.  
630.403 in the sick leave regulations to implement this change, which 
provides that the amount of sick leave that an employee may substitute 
for unpaid FMLA leave when taking FMLA leave to care for a covered 
servicemember may not exceed a total of 26 administrative workweeks in 
a single 12-month period, or, for a part-time employee or an employee 
with an uncommon tour of duty, a prorated amount of sick leave equal to 
26 times the average number of hours in his or her scheduled tour of 
duty each week.

Subpart L, Family and Medical Leave

Definitions

    In Sec.  630.1202 of the proposed regulations, we added definitions 
for active duty, contingency operation, covered servicemember, next of 
kin of a covered servicemember, outpatient status, parent of a covered 
servicemember, serious injury or illness, single 12-month period, and 
son or daughter of a covered servicemember--all of which are new terms 
applicable only to taking FMLA leave to care for a covered 
servicemember.
    Active duty is defined in law (5 U.S.C. 6381(7)) to mean duty under 
a call or order to active duty under a provision of law referred to in 
Sec.  101(a)(13)(B) of title 10. OPM's proposed regulations provide an 
expanded version of this definition for clarity and to enhance the 
reader's understanding.
    Contingency operation is defined in law at 10 U.S.C. 101(a)(13). We 
are proposing to adopt this statutory definition in our regulations to 
mean a military operation that is designated by the Secretary of 
Defense as an operation in which members of the Armed Forces are or may 
become involved in military actions, operations, or hostilities against 
an enemy of the United States or against an opposing military force; or 
results in the call or order to, or retention on, active duty of 
members of the uniformed services under section 688, 12301(a), 12302, 
12304, 12305, or 12406 of title 10 of the United States Code, chapter 
15 of title 10 of the United States Code, or any other provision of law 
during a war or during a national emergency declared by the President 
or Congress.
    Covered servicemember is defined in law (5 U.S.C. 6381(8)) to mean 
a member of the Armed Forces who is undergoing medical treatment, 
recuperation, or therapy as an outpatient, or is otherwise on the

[[Page 43067]]

temporary disability retired list, for a serious injury or illness.
    For the reasons outlined in our discussion of ``Who Is a Covered 
Servicemember,'' we have altered the statutory definition slightly to 
clarify that a covered servicemember must be a current member of the 
Armed Forces, or a member on the temporary disability retired list, but 
may not be a former member of the Armed Forces, National Guard, or 
Reserve, or a member on the permanent disability retired list. The 
proposed definition therefore reads: ``Covered servicemember means a 
current member of the Armed Forces, including a member of the National 
Guard or Reserves, who is undergoing medical treatment, recuperation, 
or therapy, is otherwise in outpatient status, or is otherwise on the 
temporary disability retired list, for a serious injury or illness 
incurred in the line of duty on active duty, but does not include 
former members of the Armed Forces, former members of the National 
Guard and Reserves, and members on the permanent disability retired 
list.''
    Next of kin of a covered servicemember. The NDAA amendments provide 
that a covered servicemember's ``next of kin'' is eligible to take FMLA 
leave to care for the covered servicemember and defines the term next 
of kin as the ``nearest blood relative'' of a covered servicemember (5 
U.S.C. 6381(10)).
    After consultation with appropriate stakeholders, DOL expanded the 
definition of next of kin of a covered servicemember. We are adopting 
the DOL definition with modifications to the appropriate citations to 
our regulations.
    Outpatient status is defined in law (5 U.S.C. 6381(9)), with 
respect to a covered servicemember, to mean ``the status of a member of 
the Armed Forces assigned to (A) a military medical treatment facility 
as an outpatient; or (B) a unit established for the purpose of 
providing command and control of members of the Armed Forces receiving 
medical care as outpatients.'' We are adopting this statutory 
definition of outpatient status in our proposed regulations.
    Parent of a covered servicemember. Under FMLA, the terms ``parent'' 
and ``parent of a covered servicemember'' refer to different 
circumstances for purposes of FMLA leave eligibility. Under 5 U.S.C. 
6382(a)(1)(C), an employee is entitled to ``basic'' FMLA leave to care 
for his or her parent if the parent has a serious health condition. 
However, under 5 U.S.C. 6382(a)(3), in the context of leave to care for 
a covered servicemember, the parent is the employee who has the 
entitlement to take FMLA leave to care for a son or daughter. Since the 
entitlement to leave is expressed differently in the two statutory 
provisions, the definition of parent in the current regulations (which 
is--``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' '') does not 
accurately describe the meaning of parent as it is used in the context 
of leave to care for a covered servicemember. Accordingly, in Sec.  
630.1202, we propose a separate definition of parent of a covered 
servicemember to mean a ``covered servicemember's biological, adoptive, 
step or foster father or mother, or any other individual who stands or 
stood in loco parentis to the covered servicemember. This term does not 
include parents-in-law.''
    Based on the new definition of parent of a covered servicemember, 
we also made a conforming change to the definition of in loco parentis 
to add a reference to covered servicemembers so that the definition now 
reads: ``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 or a covered servicemember, who 
had such responsibility for the employee or the covered servicemember 
when either was a child. A biological or legal relationship is not 
necessary.''
    Serious injury or illness is defined in law (5 U.S.C. 6381(11)), in 
the case of a member of the Armed Forces, to mean an injury or illness 
incurred by the member in the line of duty on active duty in the Armed 
Forces that may render the member medically unfit to perform the duties 
of the member's office, grade, rank, or rating. Consistent with the 
approach taken by DOL in its final rule, we are changing the statutory 
definition of serious injury or illness slightly in our proposed 
regulations to use the term ``covered servicemember,'' so the 
definition in the proposed regulations reads: ``Serious injury or 
illness means an injury or illness incurred by a covered servicemember 
in the line of duty on active duty that may render the servicemember 
medically unfit to perform the duties of the servicemember's office, 
grade, rank, or rating.''
    Single 12-month period is described in DOL's final rule to mean the 
period that ``begins on the first day the eligible employee takes FMLA 
leave to care for a covered servicemember and ends 12 months after that 
date.'' 29 CFR 825.127(c)(1). We are proposing a new definition: 
``Single 12-month period means the period beginning on the first day 
the employee takes FMLA leave to care for a covered servicemember with 
a serious injury or illness and ending 12 months after that date in 
accordance with section 630.1205(b) and (c)''.
    Son or daughter of a covered servicemember. With respect to who may 
take leave to care for a covered servicemember, the NDAA amends 5 
U.S.C. 6382(a)(3) to provide that such leave is available to an 
employee who is the ``spouse, son, daughter, parent, or next of kin of 
a covered servicemember.'' Under the existing FMLA definition of son or 
daughter (5 U.S.C. 6381(6)), a son or daughter must either be (A) under 
18 years of age, or (B) 18 years of age or older and incapable of self-
care because of a mental or physical disability. Applying this 
definition to the leave to care for a covered servicemember entitlement 
would mean that most, if not all, adult children would not be permitted 
to use this entitlement to take leave to care for a parent who is a 
covered servicemember. This is so even though the same adult child 
could take ``basic'' FMLA leave (i.e., leave under 5 U.S.C. 
6382(a)(1)(C) and Sec.  630.1203(a)(3)) to care for his or her parent 
who is a covered servicemember if the parent's serious injury or 
illness also qualified as a serious health condition under the FMLA. 
Since applying the current definition of son or daughter for purposes 
of leave to care for a covered servicemember would severely undermine 
the clear intent of the NDAA provisions, DOL created a new term, son or 
daughter of a covered servicemember, for purposes of FMLA leave taken 
to care for a covered servicemember. We concur with DOL's opinion that 
such a result was not intended, and accordingly, Sec.  630.1201 of the 
proposed rule establishes a separate definition of son or daughter of a 
covered servicemember for the purpose of leave to care for a covered 
servicemember, which is ``a covered servicemember's biological, 
adopted, or foster child, stepchild, legal ward, or a child for whom 
the covered servicemember stood in loco parentis, and who is of any 
age.''

Entitlement to Leave To Care for a Covered Servicemember

    Under the NDAA, section 6382(a) of title 5, U.S. Code, was amended 
by adding a new section to entitle an employee who is the spouse, son, 
daughter, parent, or next of kin of a covered servicemember to a total 
of 26 administrative workweeks of leave during a 12-month period to 
care for the covered servicemember. This leave is

[[Page 43068]]

available only during a single 12-month period.
    We added proposed Sec.  630.1203(b) to describe an employee's 
entitlement to use a total of 26 administrative workweeks of unpaid 
leave during a single 12-month period to care for a covered 
servicemember with a serious injury or illness if the employee is the 
spouse, son, daughter, parent, or next of kin of a covered 
servicemember. Consistent with DOL regulations, OPM is applying this 
entitlement on a per-covered servicemember, per-serious injury or 
illness basis, such that an employee may be entitled to take more than 
one period of up to 26 administrative workweeks of leave if the leave 
is to care for different covered servicemembers or to care for the same 
covered servicemember with a subsequent serious injury or illness, as 
long as no more than 26 administrative workweeks of leave is taken 
within any single 12-month period as described in proposed Sec.  
630.1205(b).
    Per covered servicemember. An employee who has previously invoked 
FMLA leave to care for a covered servicemember in a single 12-month 
period may subsequently invoke FMLA leave in order to care for a 
different covered servicemember in a different single 12-month period. 
If the single 12-month periods applicable to the different covered 
servicemembers do not overlap, the employee may take up to 26 
administrative workweeks of leave during each single 12-month period. 
If the single 12-month periods applicable to the different covered 
servicemembers do overlap, the employee may take no more than 26 
administrative workweeks of leave during any single 12-month period. 
However, in no case may an employee take more than 26 administrative 
workweeks of leave during any single 12-month period as described in 
proposed Sec.  630.1205(b) and (c).
    For example, on February 4, 2008, an employee invokes FMLA leave to 
care for a covered servicemember (her son) who was injured in the line 
of duty while on active duty. Since she first uses the leave on 
February 4, 2008, the single 12-month period for her son's care begins 
on February 4, 2008, and ends on February 3, 2009. She uses a total of 
17 weeks out of the 26 week entitlement, between February 4 and May 30, 
2008. On June 18, 2008, the employee's husband is seriously injured in 
the line of duty while on active duty and qualifies as a covered 
servicemember for FMLA purposes. The employee invokes her FMLA 
entitlement to care for her husband but she is limited to no more than 
9 weeks of FMLA leave to care for her husband between June 18, 2008, 
and February 3, 2009, because of the limit of 26 weeks of leave in any 
single 12-month period. If her husband continues to need care after the 
single 12-month period ends for her son (February 3, 2009), the 
employee may use an additional 17 weeks to care for her husband until 
the single 12-month period entitlement for her husband expires on June 
17, 2009.
    Per serious injury or illness. An employee may take more than one 
single 12-month period of up to 26 administrative workweeks of leave to 
care for a covered servicemember with more than one serious injury or 
illness only when the serious injury or illness is a subsequent serious 
injury or illness, including a manifestation of a second serious injury 
or illness at a later time. An employee may not take a subsequent 
period of leave to care for a covered servicemember who experiences an 
aggravation or complication of an earlier serious injury or illness. If 
the different single 12-month periods applicable to the different 
serious injuries or illnesses do not overlap, the employee may take up 
to 26 administrative workweeks of leave during each single 12-month 
period. If the single 12-month periods applicable to the different 
serious injuries or illnesses do overlap, the employee may take no more 
than 26 administrative workweeks of leave during any single 12-month 
period. In no case may an employee take more than 26 administrative 
workweeks of leave within any single 12-month period as described in 
proposed Sec.  630.1205(b) and (c).
    For example, on June 23, 2008, an employee has a daughter who is 
seriously injured in the line of duty while on active duty by a road-
side bomb. The employee is entitled to use 26 weeks of FMLA leave to 
care for his daughter, a covered servicemember. The single 12-month 
period for the daughter's care begins on June 24, 2008, when the 
employee first uses the leave, and ends on June 23, 2009. The employee 
takes 16 weeks of FMLA leave to care for his daughter, and the daughter 
recovers and returns to active duty before the end of the single 12-
month period. However, in July, 2009, the daughter is injured in the 
line of duty while on active duty by a sniper. The employee is entitled 
to use another 26 weeks of FMLA leave to care for his daughter because 
the subsequent injury provides the employee with a new 26-week 
entitlement, and the previous single 12-month period has expired.
    In this same example, however, if the daughter's second injury by 
sniper attack occurred in January of 2009 and the employee first took 
leave to care for his daughter for that injury on January 7, 2009, 
(i.e., the single 12-month periods overlapped) the employee is limited 
to no more than 10 weeks of FMLA leave to care for his daughter between 
January 7, 2009, and June 23, 2009, because of the limit of 26 weeks of 
FMLA leave in any single 12-month period. An overlapping single 12-
month period begins with the employee's use of leave as of January 7, 
2009, and runs until January 6, 2010. If the employee uses 10 weeks of 
leave to care for his daughter between January 7, 2009, and June 23, 
2009, he would then be able to use an additional 16 weeks of leave as 
of June 24, 2009, until the expiration of the second single 12-month 
period on January 6, 2010.
    As DOL has expressed in its final regulations, applying this 
entitlement on a per-injury, per-covered servicemember basis 
acknowledges the reality that servicemembers are injured and treated 
and then re-injured again on active duty. We would add that some 
employees have multiple family members who are in the military and, 
therefore, may have more than one family member who is injured in the 
line of duty on active duty. Also, we believe there will be relatively 
few instances in which an employee will have more than one covered 
servicemember for whom he or she needs to provide care, or a covered 
servicemember with a subsequent serious illness or injury. However, if 
an employee is faced with such circumstances, he or she should have 
access to FMLA leave to care for a covered servicemember.

Who Is a Covered Servicemember

    In order for an employee to be entitled to take FMLA leave to care 
for a servicemember, the NDAA amendments require that the servicemember 
be a ``covered servicemember'' who is undergoing medical treatment, 
recuperation, or therapy, otherwise in outpatient status, or on the 
temporary disability retired list for a ``serious injury or illness'' 
that ``may render the member medically unfit to perform the duties of 
the member's office, grade, rank, or rating.'' See definitions of 
covered servicemember at 5 U.S.C. 6381(8), serious injury or illness at 
5 U.S.C. 6381(11), and outpatient status at 5 U.S.C. 6381(9).
    In light of the NDAA's focus on a covered servicemember's ability 
to perform his or her military duties when determining whether the 
servicemember has a ``serious injury or illness'' (i.e., a 
determination must be made that the injury or illness ``may render the

[[Page 43069]]

member medically unfit to perform the duties of the member's office, 
grade, rank, or rating''), DOL regulations specifically exclude a 
serious injury or illness that manifests itself after the servicemember 
has left military service. Consistent with DOL's regulations, we added 
proposed Sec.  630.1203(b)(3) to provide that an employee may not take 
leave under this paragraph to care for former members of the Armed 
Forces, former members of the National Guard and Reserves, and members 
on the permanent disability retired list.

Invoking FMLA Entitlement

    We are proposing to reorganize the FMLA regulations in title 5 to 
create a new Sec.  630.1204 describing the process for invoking the 
FMLA entitlements, in which we are adding language to account for 
amendments made by the NDAA. There are certain conditions that would 
provide an employee an entitlement to both ``basic'' FMLA leave to care 
for a family member with a serious health condition under Sec.  
630.1203(a)(3) and FMLA leave to care for a covered servicemember under 
Sec.  630.1203(b). This would be the case, for example, if an employee 
had a spouse or parent who was a covered servicemember, because the 
serious injury or illness of the covered servicemember would also fit 
the definition of serious health condition. We address this situation 
in proposed Sec.  630.1204, to which we are adding a new paragraph (c) 
to clarify that when an employee invokes his or her entitlement to FMLA 
leave for a circumstance that could qualify under Sec.  630.1203(a)(3) 
(i.e. ``basic'' FMLA leave to care for a family member with a serious 
health condition) or Sec.  630.1203(b) (i.e., FMLA leave to care for a 
covered servicemember), the FMLA leave must be designated as being 
taken under Sec.  630.1203(b). The higher 26-week entitlement applies 
in this case. Leave to care for a covered servicemember is to be 
applied on a per-covered servicemember, per-serious injury or illness 
basis. If, after the single 12-month period for leave to care for a 
covered servicemember is exhausted, the covered servicemember is still 
in need of care, the employee may take FMLA leave for any necessary 
subsequent care as ``basic'' FMLA leave to care for a family member 
with a serious health condition under Sec.  630.1203(a)(3), subject to 
all requirements relating to use of such leave.

Application of the 12-Month FMLA Periods

    With the creation of the new entitlement for leave to care for a 
covered servicemember, there are now two distinct 12-month periods 
during which FMLA leave may be used. The 12-month period referred to in 
Sec.  630.1203(a) begins on the date the employee first takes leave for 
a family or medical need specified in Sec.  630.1203(a) and provides an 
entitlement to 12 administrative workweeks of unpaid leave in a 12-
month period. The ``single 12-month period'' referred to in proposed 
Sec.  630.1203(b) begins on the first day the employee takes FMLA leave 
to care for a covered servicemember and provides up to 26 
administrative workweeks of unpaid leave during a 12-month period. 
Proposed Sec.  630.1205 is being added to explain the application of 
the two 12-month periods and how they interact with each other.
    Consistent with DOL regulations, we clarify in Sec.  630.1205(b)(1) 
that any leave used under an employee's 12-week FMLA entitlement prior 
to the first use of leave to care for a covered servicemember does not 
count towards the ``single 12-month period'' under Sec.  630.1203(b).
    For example, on February 25, 2008, an employee invokes her 
entitlement to basic FMLA for the birth of her child. She is in her 8th 
week of FMLA leave (April 17, 2008) when she receives word that her 
husband was seriously hurt in the line of duty while on active duty. On 
April 18, 2008, the employee invokes the 26-week FMLA leave entitlement 
to care for her husband. She is entitled to use up to 26 weeks of FMLA 
leave from April 18, 2008, to April 17, 2009, for this purpose. The 
time period during which she used basic FMLA leave does not count 
toward the 26-week entitlement during a single 12-month period. We note 
that the employee is not required to invoke the 26-week leave 
entitlement immediately. She may delay invoking the 26-week entitlement 
until such time as she is needed to provide care for her husband. Once 
the employee invokes her 26-week leave entitlement and begins to care 
for her husband, the single 12-month period begins. In this example, 
the employee may choose to exhaust her full 12-week basic FMLA 
entitlement for the birth of a child first, and then invoke the 26-week 
FMLA entitlement after her husband is released from the hospital and 
returns home.
    In another example, the employee's first use of FMLA leave is on 
April 18, 2008, when she invokes the 26-week FMLA leave entitlement to 
care for her husband who was seriously injured in the line of duty 
while on active duty. She is entitled to use up to 26 weeks of FMLA 
leave during the single 12-month period from April 18, 2008, to April 
17, 2009. On November 25, 2008, the employee's daughter is diagnosed 
with leukemia which entitles the employee to 12 weeks of ``basic'' FMLA 
leave under current 5 CFR 630.1203(a)(3), and she invokes her 
entitlement on this date. At this point, the employee has used a total 
of 23 weeks of FMLA leave to care for a covered servicemember in order 
to care for her husband and has 3 weeks of FMLA leave to care for her 
husband or daughter between November 25, 2008, and April 17, 2009. On 
April 18, 2009, the employee can use the remaining 9 weeks of ``basic'' 
FMLA leave to care for her daughter for additional care related to the 
leukemia.
    We state in paragraph (b)(2) that if an employee does not take all 
of his or her 26 administrative workweeks of leave entitlement to care 
for a covered servicemember during this single 12-month period, the 
remaining part of his or her 26 administrative workweeks of leave 
entitlement to care for the covered servicemember is forfeited. In 
paragraph (b)(3), we explain that when an employee takes leave to care 
for more than one covered servicemember or for a subsequent serious 
injury or illness of the same covered servicemember, and the ``single 
12-month periods'' corresponding to the different leave entitlements to 
care for a covered servicemember overlap, the employee is limited to 
taking no more than 26 administrative workweeks of leave in each single 
12-month period.

Certification for Leave Taken To Care for a Covered Servicemember

Specific Requirements

    The NDAA amended the FMLA certification requirements (5 U.S.C. 
6383(f)) to permit an agency to require that a request for leave to 
care for a covered servicemember ``be supported by a certification 
issued at such time and such manner as the Office of Personnel 
Management may by regulation prescribe.'' The NDAA amendments regarding 
entitlement to FMLA leave to care for a covered servicemember contain 
specific certification requirements that are unique to military 
servicemembers. The certification requirements for a family member's 
serious health condition under current Sec.  630.1207 do not adequately 
address the certification requirements unique to military

[[Page 43070]]

servicemembers. Specifically, the NDAA provision defining covered 
servicemember requires that the servicemember be (1) undergoing medical 
treatment, recuperation, or therapy; (2) otherwise in outpatient 
status; or (3) on the temporary disability retired list because of a 
serious injury or illness. (5 U.S.C. 6381(8)) The NDAA provisions 
further provide that a serious injury or illness means an injury or 
illness incurred by the member in the line of duty on active duty in 
the Armed Forces that may render the member medically unfit to perform 
the duties of the member's office, grade, rank, or rating (5 U.S.C. 
6381(11)). Therefore, we are proposing to create new Sec.  630.1211 on 
medical and other certification for leave to care for a covered 
servicemember that sets forth separate certification requirements for 
leave to care for a covered servicemember.
    This section provides that an agency may require certification that 
provides information specific to the NDAA requirements for taking leave 
to care for a covered servicemember, including: (1) Whether the covered 
servicemember has incurred a serious injury or illness; (2) whether the 
injury or illness may render the covered servicemember medically unfit 
to perform the duties of the member's office, grade, rank, or rating; 
(3) whether the injury or illness was incurred by the member in the 
line of duty on active duty; (4) whether the covered servicemember is 
undergoing medical treatment, recuperation, or therapy, is otherwise on 
outpatient status, or is otherwise on the temporary disability retired 
list; and (5) the family relationship of the employee to the covered 
servicemember.
    Besides the information specific to the NDAA requirements for 
taking leave to care for a covered servicemember, this section also 
provides that the certification for leave to care for a covered 
servicemember should also contain certain other information. This 
information includes: (1) The probable duration of the injury or 
illness; (2) frequency and duration of leave required; and (3) if leave 
is requested on an intermittent or reduced schedule basis, an estimate 
of the frequency and duration of such leave. These provisions are 
consistent, as appropriate, with the regulations promulgated by DOL in 
its final rule.

Authorized Health Care Providers

    Section 630.1211(a) of the proposed rule lists the health care 
providers that may complete the medical certification form. As 
described in the DOL regulations, DOL consulted with DOD and VA, and 
learned that servicemembers with a serious injury or illness may 
receive care from a number of different health care providers, 
including DOD health care providers, VA health care providers, or DOD 
TRICARE military health system authorized private health care 
providers.\1\ Members of the National Guard and Reserves and members on 
the temporary disability retired list are more likely to receive care 
from DOD TRICARE authorized private health care providers, especially 
if the servicemember resides in a rural or remote area. Consequently, 
and consistent with the DOL final rule, Sec.  630.1211(a) provides that 
any one of the following health care providers may complete the 
certification: (1) A DOD health care provider; (2) a VA health care 
provider; (3) a DOD TRICARE network authorized private health care 
provider; or (4) a DOD non-network TRICARE authorized private health 
care provider.
---------------------------------------------------------------------------

    \1\ TRICARE is the health care program serving active duty 
service members, National Guard and Reserve members, retirees, their 
families, survivors and certain former spouses worldwide. As a major 
component of the Military Health System, TRICARE brings together the 
health care resources of the uniformed services and supplements them 
with networks of civilian health care professionals, institutions, 
pharmacies, and suppliers to provide access to high-quality health 
care services while maintaining the capability to support military 
operations. To be eligible for TRICARE benefits, one must be 
registered in the Defense Enrollment Eligibility Reporting System 
(DEERS). See https://tricare.mil/mybenefit/home/overview/WhatIsTRICARE. The Military Health System is a partnership of 
medical educators, medical researchers, and health care providers 
and their support personnel worldwide. This DOD enterprise consists 
of the Office of the Assistant Secretary of Defense for Health 
Affairs; the medical departments of the Army, Navy, Marine Corps, 
Air Force, Coast Guard, and Joint Chiefs of Staff; the Combatant 
Command Surgeons; and TRICARE providers (including private sector 
health care providers, hospitals, and pharmacies). See http:/
mhs.osd.mil/aboutMHS.aspx.
---------------------------------------------------------------------------

Use of DOL Certification Form (WH-385)

    Paragraph (b) of proposed Sec.  630.1211 provides the information 
that is required from health care providers, and paragraph (c) provides 
the information that is required from the employee and/or covered 
servicemember. DOL has developed an optional form (Form WH-385) for 
employees' use in obtaining certification that meets FMLA's 
certification requirements for leave to care for a covered 
servicemember. This form can be found at https://www.dol.gov/esa/whd/forms/WH-385.pdf and may be used by Federal agencies. The new form 
includes two additional categories of internal DOD casualty assistance 
designations used by DOD health care providers ((VSI) Very Seriously 
Ill/Injured and (SI) Seriously Ill/Injured) that also meet the standard 
of serious injury or illness.) Consistent with past practice, OPM is 
not developing its own form, but encourages Federal agencies to use 
DOL's Form WH-385 to ensure the correct information is gathered for 
FMLA approval. (Federal agencies should also continue to use DOL's Form 
WH-380 for ``basic'' FMLA leave certification, but not the new DOL 
Forms WH-380-E or WH-380-F. The latter were generated by DOL as part of 
its final FMLA regulations and are based on changes to DOL's FMLA 
regulations which do not apply to our proposed regulations.)

Request for Military-Related Information

    In the supplementary information accompanying DOL's final 
regulations, DOL stated that, based on consultation with DOD, it was 
DOL's understanding that every covered servicemember will have a DOD 
representative who can serve as a point of contact for health care 
providers should they need information regarding the military-related 
determinations requested in the FMLA certification form. For example, 
the most seriously injured or ill covered servicemembers (i.e., those 
servicemembers with injuries DOD terms catastrophic or severe) will 
have either a ``Federal Recovery Coordinator'' or ``Recovery Care 
Coordinator'' assigned to assist the covered servicemember and his or 
her family. Therefore, proposed Sec.  630.1211(b) provides that if the 
authorized health care provider is unable to make certain military-
related determinations, the health care provider may complete the 
certification form by relying on determinations from an authorized DOD 
representative, such as a DOD recovery care coordinator.

No Recertification for Leave To Care for a Covered Servicemember

    Proposed section 630.1211(d) specifies that (as is the case with 
the certification process for leave taken to care for a family member 
with a serious health condition) no information may be required beyond 
that specified in this certification section. It also states that an 
agency may seek authentication or clarification of the certification. 
Since FMLA leave to care for a covered servicemember is a per-serious 
injury or illness entitlement limited to a single 12-month period, we 
do not believe that a recertification process, such as that provided 
for under current 5 CFR 630.1207(j) for ``basic'' FMLA leave, is 
necessary for leave to care for a covered servicemember. Also, since 
several of

[[Page 43071]]

the amendments made by the NDAA contain specific requirements that are 
unique to military servicemembers and that only the military can 
determine (such as whether the serious injury or illness was incurred 
in the line of duty on active duty), we believe that, consistent with 
DOL regulations, it would be inappropriate to permit a second or third 
opinion process such as that provided for ``basic'' FMLA leave under 
current Sec.  630.1207(d) and (e). Therefore, Sec.  630.1211(d) also 
states that second and third opinions and recertifications are not 
permitted for leave to care for a covered servicemember.

Invitational Travel Orders (ITOs) or Invitational Travel Authorizations 
(ITAs)

    Proposed section 630.1211(e) provides that an agency requiring an 
employee to submit a certification for leave to care for a covered 
servicemember must accept the submission of ``invitational travel 
orders'' (``ITOs'') or ``invitational travel authorizations'' 
(``ITAs'') issued for medical purposes as sufficient certification of 
the employee's request for leave to care for a covered servicemember.
    As described in DOL's regulations, based on consultation with DOD, 
DOL believes, and we concur, that the issuance of such orders or 
authorizations qualifies a servicemember as a covered servicemember for 
purposes of the FMLA provisions governing leave to care for a covered 
servicemember. The issuance of an ITO or ITA for medical purposes 
permits the named family member of the injured or ill servicemember to 
travel immediately to the servicemember's bedside, at DOD's expense. 
These ITOs or ITAs for medical purposes are not routinely issued by 
DOD, but rather only when the servicemember is, at minimum, seriously 
injured or ill. In its regulations, DOL further indicated its 
understanding that, in such cases, the ITO or ITA is issued to a 
servicemember's family upon the direction of a DOD health care provider 
and will state on its face that the travel order or authorization is 
for ``medical purposes.''
    We agree that permitting ITOs or ITAs to serve as sufficient 
certification is appropriate in light of the fact that DOD has 
determined that the injury or illness incurred by the servicemember is 
serious enough to warrant the immediate presence of a family member at 
the servicemember's bedside. Moreover, in many circumstances where ITOs 
or ITAs are issued, it may be extremely difficult for an employee to 
provide an agency an otherwise timely certification that complies with 
the requirements of this section. This approach accommodates an 
agency's right to obtain a sufficient certification from an employee in 
order to verify the employee's entitlement to FMLA leave to care for a 
covered servicemember.
    Section 630.1211(e) further provides that an ITO or ITA issued to 
any family member to join an injured or ill covered servicemember at 
his or her bedside is sufficient certification regardless of whether 
the employee is named in the ITO or ITA. These provisions are 
consistent with those provided in DOL's final rule. Thus, for example, 
a covered servicemember's son may submit an ITO issued to the covered 
servicemember's spouse to support the son's request for FMLA leave to 
care for the covered servicemember during the time period specified by 
the ITO. DOD does not issue an ITO or ITA to every family member of an 
injured or ill covered servicemember who might be eligible to take FMLA 
leave to care for the covered servicemember. In some situations, the 
servicemember may have additional family members who are eligible to 
take FMLA leave to care for the covered servicemember, even if DOD has 
not authorized an ITO for that person. For example, an ITO or ITA can 
be issued to the spouse of a servicemember without also being issued to 
a servicemember's parents, children, or siblings. We agree with DOL's 
determination, as indicated in DOL's regulations, that all family 
members of a covered servicemember who are eligible to take FMLA leave 
to care for the covered servicemember should be able to rely on DOD's 
issuance of an ITO or ITA as sufficient certification to support a 
request for FMLA leave during the period covered by the ITO or ITA.
    Given the seriousness of the injuries or illness incurred by a 
covered servicemember whose family member receives an ITO or ITA, and 
the immediate need for the family member at the covered servicemember's 
bedside, our intention is to remove as many certification impediments 
for the employee as possible for the duration of the order or 
authorization. Accordingly, Sec.  630.1211(e)(1) further provides that 
an ITO or ITA is sufficient certification for the duration of the time 
specified in the ITO or ITA, and that during this time, an employee may 
take leave to care for the covered servicemember in a continuous block 
of time or on an intermittent basis. Section 630.1211(e)(2) states that 
an employee who provides an ITO or ITA to support his or her request 
for leave may not be required to provide any additional or separate 
certification that leave taken on an intermittent basis during the 
period of time specified in the ITO or ITA is medically necessary.
    If an employee needs leave to care for a covered servicemember 
beyond the expiration date specified in an ITO or ITA, paragraph (e)(3) 
of Sec.  630.1211 permits an agency to request that the employee have 
one of the authorized health care providers listed under Sec.  
630.1211(a) furnish the required certification for the remainder of the 
employee's necessary leave period. This is consistent with the approach 
taken by DOL in its final rule. Permitting this additional 
certification, if an agency chooses to request it, allows the agency to 
obtain information about the employee's continued need for leave once 
the ITO or ITA expires, including specific information regarding the 
covered servicemember's injury or illness and its expected duration, 
since the ITO or ITA will not provide the agency with such information 
initially. As DOL stated in its final rule, once an ITO or ITA expires, 
the employee will be in a better position to have an authorized health 
care provider furnish a complete certification as to the 
servicemember's medical condition and the employee's continuing need 
for leave. Paragraphs (e)(4) and (e)(5) of Sec.  630.1211 state, 
respectively, that when an employee supports his or her request for 
leave with an ITO or ITA, a health care provider of the agency may seek 
authentication and clarification of the ITO or ITA, but the agency may 
not require a second and third opinion or use a recertification 
process.

Further Certification Requirements

    Paragraphs (f)-(i) of proposed Sec.  630.1211 parallel similar 
provisions in the certification requirements for ``basic'' FMLA leave. 
Paragraph (f) provides that the agency must grant provisional leave 
pending final written certification if the employee cannot provide the 
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. Paragraph (g) states 
that an employee must provide certification to the requesting agency 
within 15 calendar days of the agency's request, unless it is not 
practicable to do so under the particular circumstances, despite the 
employee's diligent, good-faith efforts, in which case the employee 
must provide the certification within a reasonable period of time, but 
no later

[[Page 43072]]

than 30 calendar days after the agency's request. Paragraph (h) states 
that if the employee fails to provide the requested certification after 
the leave has commenced, the agency may charge the employee as absent 
without leave (AWOL) or allow the employee to request that the 
provisional leave be charged as leave without pay or to the employee's 
annual and/or sick leave account. Paragraph (i) addresses the security 
and confidentiality of this certification.

Qualifying Exigency Leave

    The amendments made by the NDAA provided DOL with the authority to 
establish ``qualifying exigency leave'' for employees covered by DOL's 
regulations. See 29 CFR 825.126. This type of leave helps families of 
members of the National Guard and Reserves manage family affairs when a 
family member is on active duty. Qualifying exigencies for which 
employees can use FMLA leave are: (1) Short-notice deployment; (2) 
military events and related activities; (3) childcare and school 
activities; (4) financial and legal arrangements; (5) counseling; (6) 
rest and recuperation; (7) post-deployment activities; and (8) 
additional activities not encompassed in the other categories that the 
employer and employee agree qualify as exigencies and agree to the 
timing and duration of the leave. The NDAA amendments did not provide 
this benefit to Federal employees; therefore, it is not included in 
OPM's proposed regulations. OPM requests comments on whether we should 
pursue legislation to obtain this benefit for the Federal workforce.
    OPM is publishing subpart L, Family and Medical Leave, in its 
entirety because of the extent of the additions and the reorganization 
of the text.

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 that these regulations will not have a significant 
economic impact on a substantial number of small entities because they 
will apply only to Federal agencies and employees.

List of Subjects in 5 CFR 630

    Government employees.

Office of Personnel Management.
John Berry,
Director.
    Accordingly, OPM is proposing to amend 5 CFR part 630 as follows:

PART 630--ABSENCE AND LEAVE

    1. The authority citation for part 630 continues to read as 
follows:

    Authority:  5 U.S.C. 6311; Sec.  630.205 also issued under Pub. 
L. 108-411, 118 Stat 2312; Sec.  630.301 also issued under Pub. L. 
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat 2312; Sec.  
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec.  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; Sec.  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.
* * * * *
    2. In Sec.  630.401, remove paragraph (f) and revise paragraphs 
(a)(3) and (b) to read as follows:


Sec.  630.401  Granting sick leave.

    (a) * * *
    (3) Provides care for a family member--
    (i) Who is incapacitated by a medical or mental condition or 
attends to a family member receiving medical, dental, or optical 
examination or treatment;
    (ii) With a serious health condition; or
    (iii) Who would, as determined by the health authorities having 
jurisdiction or by a health care provider, jeopardize the health of 
others by that family member's presence in the community because of 
exposure to a communicable disease;
* * * * *
    (b) The amount of sick leave granted to an employee during any 
leave year for the purposes described in paragraphs (a)(3)(i), 
(a)(3)(iii), and (a)(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).
* * * * *


Sec. Sec.  630.402 through 630.406  [Redesignated as Sec. Sec.  630.404 
through 630.408].

    3a. Redesignate Sec. Sec.  630.402 through 630.406 as Sec. Sec.  
630.404 through 630.408 respectively, and add new Sec. Sec.  630.402 
and 630.403 to read as follows:


Sec.  630.402  Adva