5 U.S.C. (3) This subpart applies to a birth or placement occurring on or after October 1, 2020. The new term scheduled tour of duty is replacing other terms in order to clarify that the tour referenced in the FMLA regulations is the tour of duty established for purposes of charging leave when an employee is absent. Appropriate documentation could include, but is not limited to, a birth certificate or a document from an adoption or foster care agency regarding the placement. The Office of Management and Budget has determined that this is an economically significant regulatory action. No new regulations. This interim final rule is considered an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action. Military service members already may take 12 weeks of paid leave … If an agency determines that reimbursement must be made, it must seek collection of the full amount. Except as otherwise provided in this section, family and medical leave taken under § 630.1203(a) must be leave without pay. This coverage estimate includes approximately 95,000 employees of nonappropriated fund instrumentalities described in 5 U.S.C. For employees who retire with entitlement to an immediate annuity, unused sick leave is creditable service for the purpose of computing an employee's retirement annuity. (1) Except as otherwise provided in paragraph (b)(2) of this section, this subpart applies to any employee who—, (i)(A) Is defined as an “employee” under 5 U.S.C. Any periods of leave, time off, or other periods of nonduty status will extend how long it will take the employee to fulfill the 12-week work obligation. No new mandates. i. chapter 89 during the period(s) when paid parental leave was used. Such FMLA unpaid leave may also be used to cover short periods away from the child's physical presence to support the care of the child (e.g., buying baby food, diapers, or other supplies). In order to comply with the regulatory changes in this interim final rule, affected agencies will need to review the rule and update their policies and procedures. Paragraph (b) allows an employee's personal representative to elect, on behalf of the employee, to substitute paid parental leave for applicable FMLA unpaid leave (i.e., approved FMLA leave based on birth or placement of a child). For the purpose of interpreting this definition, the terms birth and placement have the meanings given those terms in § 630.1202, except that paid parental leave may not be granted based on an anticipated birth or placement. The unused leave may not be rolled over for use in a future period, nor may a payment be made to the employee for unused paid parental leave that has expired. If agency-requested documentation or certification is not timely submitted, the agency may invalidate the paid parental leave and convert the employee to an appropriate nonpay status, which would result in a salary overpayment debt owed to the agency. Interim final rule; request for comments. We’ve made big changes to make the eCFR easier to use. More information and documentation can be found in our Paragraph (d) addresses employees who are charged leave on a daily basis. Section 630.1708(a) provides that an agency must maintain an accurate record of an employee's usage of paid parental leave. The work obligation is statutorily fixed at 12 weeks regardless of the amount of leave used by an employee. 12/17/2020, 874 Paragraph (f)(4) addresses the retroactive substitution of paid parental leave and links to § 630.1706, which allows retroactive substitution only if an employee is physically or mentally incapacitated. An employee is eligible for paid parental leave only if he or she is a covered “employee” under the definition in 5 U.S.C. This employee certification may contain a statement in which the employee acknowledges an understanding of the consequences of engaging in fraud by providing a false certification. An employee who separates from the applicable employing agency before completing the required 12 weeks of work is considered to have failed to return to duty under this paragraph. Section 630.1706 provides the application of paid parental leave in cases where an employee is incapacitated at the time the use of paid parental leave would be permissible. ), Section 630.1703(f)(1) provides that an agency may not require an employee to use annual leave or sick leave to the employee's credit before allowing the employee to use paid parental leave, consistent with section 6382(d)(2)(C). Appropriate documentation may include, but is not limited to, a birth certificate or a document from an adoption or foster care agency regarding the placement. (5) If the employee fails to provide the agency with the required documentation Start Printed Page 48094or certification within the specified time period, the agency may determine that the employee is not entitled to paid parental leave and may—, (i) Allow the employee to request that the absence be charged to leave without pay, sick leave, annual leave, or other forms of paid time off, as appropriate; or. 12/17/2020, 42 (See 5 U.S.C. The regulation explains that, with respect to FMLA leave under § 630.1203(a) (corresponding to 5 U.S.C. It’s a bit surprising to think about, but 2020 might be the year we finally get paid family leave (or at least paid parental leave) for most American employees. (c) Agency responsibilities. 6382(d) to allow the substitution of up to 12 weeks of paid parental leave for FMLA unpaid leave granted in connection with the birth of an employee's son or daughter or the placement of a son or daughter with an employee for adoption or foster care. While we lack data, we believe that Federal employees, particularly birth mothers, use significant amounts of sick leave in connection with a birth event. While approximately 2 million employees will be covered by this interim final rule, eligibility depends on the occurrence of a birth of an employee's child or placement of a child with the employee for purposes of adoption or foster care. However, the 1.9 million employee population included in this database can reasonably be viewed as representative of the 2.0 million employee population covered by title 5 FMLA provisions. While every effort has been made to ensure that We note that at least two Federal agencies, the Securities and Exchange Commission (SEC) and the Federal Deposit Insurance Corporation (FDIC) Start Printed Page 48084began providing 6 weeks of paid parental leave to their employees—in October 2019 for SEC and January 2020 for FDIC. Section 630.1203(d) is revised to delete language that seems to suggest that there is always only one 12-month period in connection with FMLA unpaid leave used in connection with a birth or placement. It is a significant benefit that the Federal Government is acting as a role model in providing paid parental leave to its employees. Remove the definition for “Tour of duty”. (h) Documentation of entitlement and employee certification. Paid parental leave may not be considered annual leave for purposes of making a lump-sum payment for annual leave or for any other purpose. 1. This implies annual transfers of between $890 million and $1.3 billion, with a mean estimate of $1.1 billion. For example, if an employee uses 6 consecutive weeks of FMLA unpaid leave based on the employee's own serious health condition, the employee could only use 6 weeks of FMLA unpaid leave based on birth or placement (for which paid parental leave could be substituted) during the 12-month period that began when the employee commenced using FMLA unpaid leave based on the employee's serious health condition. Thus, the term 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. The conclusion of a public notice and comment period before the rule is finalized would be impracticable because it would impede due and timely execution of OPM's functions. In the context of paid parental leave, there are a variety of types of shifts or transfers, depending on what would have otherwise happened if the employee had not received paid parental leave. Section 630.1203(b) is revised to give an employee who was incapacitated more time to retroactively invoke FMLA leave. Examples of situations beyond the employee's control include such situations as where a parent chooses to stay home because a child has a serious health condition or an employee moves because the employee's spouse is unexpectedly Start Printed Page 48095transferred to a job location more than 75 miles from the employee's worksite. We estimate that this rule generates $5.9 million in annualized costs, in 2016 dollars, discounted at seven percent over a perpetual time horizon relative to 2016. It also requires that their group health benefits be maintained during the leave. Circumstances that constitute a matter of employee preference or convenience, such as an employee choosing to stay home to care for a healthy newborn will not suffice. documents in the last year, 990 We note that the section 6381(1)(A) definition of “employee” excludes individuals employed on a temporary or intermittent basis. (12 weeks = 6 biweekly periods. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. Twenty-six workweeks of leave during a single 12-month period to care for a covered servicemember with a serious injury or illness if the eligible employee is the servicemember’s spouse, son, daughter, … 6382(a)(1)(A) or (B), respectively) in connection with the occurrence of a birth or placement. This provision applies not only to an employee who is an expectant mother but also to an employee who is the other parent of the expected child, to the extent that other parent is providing necessary care for the expectant mother. (2) If an employee covered by paragraph (b)(1) of this section declines to enter into the written agreement after being determined by the agency to no longer be incapacitated, the agency must cancel any portion of the 12 weeks of paid parental leave that has not been exhausted, and designate as invalid any paid parental leave that was used based on the conditional approval. Federal employees will soon be eligible for paid parental leave under a measure President Donald Trump signed Dec. 20. The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. A 1-week non-payable waiting period** plus either up to 35 or 61 weeks of parental … a. The reimbursement requirement described in paragraph (f) of this section, if imposed, is subject to collection as a debt owed to the affected agency. However, the granting of paid parental leave will be considered to be conditional or provisional in nature, subject to the employee providing agency-required documentation or certification within required time frames. If Start Printed Page 48096the employee substitutes paid parental leave during that overlap period, that amount of paid parental leave would count towards both the 12-week limit associated with the birth event and the 12-week limit associated with the placement event. In this Issue, Documents The availability of paid parental leave will depend on when the employee uses various types of FMLA unpaid leave relative to any 12-month period established under § 630.1203(c). FMLA unpaid leave means leave without pay granted under the Family and Medical Leave Act (FMLA) regulations in subpart L of this part. Federal Register. Source of Federal employee average salary by age group: FedScope—July 2019; nonseasonal full-time permanent employees. If an employee has not already (before birth or placement) begun a 12-month FMLA period, the employee could have no more than 12 weeks of FMLA unpaid leave between the date of birth or placement and the date that is 12 months after the date of birth or placement. Under the new law, eligible federal workers are entitled to 12 weeks of paid parental leave for the birth, adoption, or fostering of a child that occurs on or after October 1, 2020. An agency head must waive the work obligation if an employee is unable to return to work because of the continuation, recurrence, or onset of a serious health condition (including mental health) of the employee or the newly born/placed child—but only if the condition is related to the applicable birth or placement. No new taxes. Then the employee has a child born on October 15, 2021. Each document posted on the site includes a link to the OPM regulations do fill in some policy gaps, but any regulatory decisions had a marginal impact on transfers, costs, and benefits. (See special rules governing cases of incapacitation in § 630.1706. While it is difficult to demonstrate cause and effect when it comes to adopting one new employee benefit, there are surveys and other indications that a family-friendly paid parental leave policy can help make an employer more attractive to job seekers, increase job satisfaction, increase employee morale and engagement, increase the likelihood of a birth mother returning to work, and reduce turnover (i.e., increase retention). on Each agency is responsible for adopting its own set of policies governing when it will or will not apply the reimbursement requirement described in paragraph (f) of this section. These can be useful Any such additional examinations will be at the agency's expense. chapter 89 during the period(s) when paid parental leave was used. Regarding the start date for the program, federal employees will be eligible for paid parental leave if the child is born or adopted on or after Oct. 1, 2020. provide legal notice to the public or judicial notice to the courts. Use the PDF linked in the document sidebar for the official electronic format. (a) Leave without pay. Section 7602(c) of FEPLA provides that the amendments to 5 U.S.C. documents in the last year, 236 Unlike the title 29 FMLA eligibility requirements, employees under the title 5 FMLA are not required to be employed by a specific employer for at least 12 months or to have at least 1,250 hours of service during the previous 12-month period; instead, they need only 12 months of covered service performed at any time in the past. Various studies have shown the positive impact of increasing bonding between parent and child. (2) For a full-time employee with an uncommon tour of duty (as defined in § 630.201 and described in § 630.210), the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's biweekly scheduled tour of duty (or 6 times the average hours if the biweekly tour hours vary over an established cycle). Family and medical leave means an employee's entitlement to 12 administrative workweeks (or 26 administrative workweeks in the case of leave under § 630.1203(j)) of unpaid leave for certain family and medical needs, as prescribed under sections 6381 through 6387 of title 5, United States Code. Section 630.1701(c) specifies that agency heads are responsible for proper administration of subpart Q, including the responsibility of informing employees of their entitlements and obligations. An acceptable alternative approach is to express each period of work as a fraction or percentage of the average weekly scheduled tour of duty hours in the affected biweekly pay period and to sum those fractions or percentages until the 12-week obligation is completed. OPM has not issued final regulations to address this type of FMLA leave, which was added by Public Law 110-181 in 2008. The statute requires that OPM “shall prescribe regulations necessary for administration” of the title 5 FMLA leave provisions, including the paid parental leave provisions (5 U.S.C. FMLA Maternity Leave The Family Medical Leave Act (FMLA) is a nationwide law that provides unpaid job protections lasting for up to 12-weeks for men and women who qualify. An agency's determination not to apply the reimbursement requirement may be conditioned upon the employee's supplying of a health care provider certification supporting the employee's claim that a serious health condition described in paragraph (f)(2)(i) is causing the employee to be unable return to work for the required 12 weeks. 8906 on behalf of the employee to maintain the employee's health insurance coverage during the period of paid parental leave. If an employee would have otherwise used sick leave during period covered by paid parental leave, the availability of paid parental leave will cause the employee to have a higher sick leave balance. Among those excluded from the new benefit are District of Columbia non-judicial court employees and public defenders, and bankruptcy and magistrate judges. (a) Applicability of subpart L definitions. An employee may not use paid parental leave in connection with a birth or placement unless the employee agrees (in writing), before the commencement of such leave, to work for the applicable employing agency for not less than 12 weeks beginning on the employee's first scheduled workday after such leave concludes. (2) An employee may retroactively substitute annual leave or sick leave for leave without pay granted under this subpart covering a past period of time, if the substitution is made in conjunction with the retroactive granting of leave without pay under § 630.1203(b). 401(a)(2)-(4).) Section 630.1206(b) provides that paid parental leave may be substituted for FMLA unpaid leave based on a birth or placement event as provided in the new subpart Q. Paragraph (b) also addresses the possibility of substituting annual and sick leave for FMLA unpaid leave based on birth or placement. Until we have actual experience under the Federal paid parental leave program, we lack data to assert that employees will use less than the full amount of leave that is available. We also determined that the employing agency should be responsible for determining what documentation is sufficient proof of entitlement to paid parental leave. For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours. 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