The Federal Sector FMLA Blog

OPM Announces Publication of Proposed Changes to Existing FMLA Regulations and Final Military Family Leave Regulations in Unified Agenda

OPM announced that it plans to issue final regulations implementing the military family leave amendments to Title II of the FMLA.  The military family leave amendments to Title II were included in the National Defense Authorization Act of FY 2008.  The amendments provide eligible employees up to 26 weeks of military caregiver leave, and amend the advanced sick leave regulations to allow the use of sick leave for military caregiver leave.  OPM issued proposed military family leaver regulations on August 26, 2009.

Notably, the OPM indicated hat it will also be proposing changes to the existing sick leave and FMLA leave regulations "to enhance reader understanding and administration of these programs."  OPM expects final action on the FMLA regulations to be completed by April 2010.

Comment: I do not expect OPM to issue the final military family leave regulations on or by April 2010. Generally, and as a matter of statute, OPM follows the DOL lead when it comes to FMLA regulations.  The most recent amendment of the FMLA in the 2009 National Defense Authorization Act modified military family leave in several ways. I expect that DOL will issue proposed regulations to implement these changes.  OPM will issue its own proposed military family leave regulations thereafter. 

I also believe that OPM will hold back on issuing proposed changes to the existing FMLA regulations.  The DOL announced in the Unified Agenda its intention to review the military family leave regulations, as well as the many changes made to the existing FMLA regulations in the last month of the Bush administration.  As a matter of statute, OPM's Title II FMLA regulations generally follow the DOL FMLA regulations.  As such, OPM will likely wait until DOL finishes its review of the existing Title I regulations before it makes any changes to its existing Title II FMLA regulations. 

OPM Solicits Comments Whether Civil Service Employees Should Have Qualifying Exigency Leave

The NDAA amendments to Titles I and II of the FMLA expanded the FMLA rights of most federal workers, but did so unevenly.  Military caregiver leave was extended to federal employees covered by both Titles I and II.  Qualifying exigency leave (QE leave), on the other hand, was only extended to Title I employees. QE leave give allows eligible employees to use up to 12 workweeks of leave/leave year due to a qualifying exigency related to the deployment of a covered military family member.  DOL This is not a new 12 weeks of leave. Rather, think of it as a new covered condition, like birth, adoption, foster care placement, and serious health conditions, allowing an employee to draw on the same 12 weeks of FMLA leave.  DOL has identified eight broad categories of qualifying exigencies.

In addition to stakeholder comments regarding the proposed military caregiver leave regulations, OPM also solicited comments on whether OPM should "pursue legislation to obtain this benefit for the Federal workforce."  74 FR 43064, 43072 (Aug. 26, 2009).

If you want qualifying exigency leave available to Title II federal employees be sure to say so in your comments regarding the proposed military caregiver leave regulations.  Those comments are due October 26, 2009.

Comment: In its solicitation, OPM misstates the law.  OPM observes that "The NDAA amendments do not provide this benefit [qualifying exigency leave] to Federal employees..."  On the contrary, qualifying exigency leave is available to federal employees covered by Title I of the FMLA.  Section 825.108, 29 CFR 825.108, defines a covered employer as a "public agency."  Public agency is defined, by cross reference to the 29 USC 203(x), as the government of the United States.  29 CFR 825.108(a).  Section 825.109, 29 CFR 825.109, is entitled "Federal agency coverage."  That regulation, the substance of which has not changed since 1993, lists the federal employees covered by Title I of the FMLA including, for example, all Postal employees.  29 CFR 825.109(b)(1).  Title I covers employees of all federal executive agencies not covered by Title II.  29 CFR 825.109(c).  OPM's own regulations recognize that Title II does not apply to all federal employees.  Section 630.1201(b)(2)(iv), 5 CFR 630.1201(b)(2)(iv), excludes from Title II any employee covered by Title I.  5 CFR 620.1201(b)(2)(iv).  Since OPM's jurisdiction is limited to the federal workforce, it follows that there are federal employees covered by Title I that are excluded from Title II coverage.  If there were not you would not need the regulation.

There is enough confusion regarding federal sector FMLA rights.  OPM should take care to avoid sweeping generalizations suggesting that the FMLA rights of all federal employees are covered by Title II when that is simply not the case.

Final word: If you are a Title II stakeholder and you want or don't want OPM to pursue legislation to secure qualifying exigency leave make your position known to the OPM by October 26, 2009 at http://www.regulations.gov and follow the prompts.

OPM Clarifies Expectations Re: Comments to Proposed Military Caregiver Regulations and Other Changes

OPM recently clarified that it is specifically soliciting detailed comments regarding the proposed military caregiver leave regulations published in the August 26, 2009 Federal Register.  The comment period closes on October 26, 2009.  A link to the new regulations follows: http://frwebgate1.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=684026377723+0+1+0&WAISaction=retrieve 

Along with the publication of the proposed military caregiver leave regulations, OPM also announced that it was considering whether a comprehensive review of all OPM FMLA regulations is needed to identify any problems or concerns that stakeholders have experienced in administering the FMLA.  In response to a query by yours truely, OPM explained that it was not asking for a comprehensive review of all OPM FMLA regulations by October 26, 2009. Rather, OPM is instead trying to determine whether a comprehensive regulatory review is necessary.  To do that, OPM is looking for more broad-brush stakeholder (agencies, employee organizations, labor unions, etc) recommendations and comments whether the current FMLA regulations are working for them, or whether changes are needed and, if so, in what areas and why.  OPM advised that, for example, if stakeholders are consistently struggling with FMLA administration in a particular area or with a particular regulation they should be able to identify the area and the problem "without undo reflection."  As examples, OPM offered that it expected comments such as:

• Employees constantly misunderstand what is meant by xyz, which results in the following difficulties. 
• Xyz needs to be clarified. 
• Headings are too general and make it difficult to find appropriate information.
• 5 CFR 630.XXXX as currently written is difficult to administer because of xyz.

The point being that, at this juncture, OPM does not expect stakeholders to offer a painstakingly detailed, section-by-section dissection of the non-military caregiver leave FMLA regulations by October 26, 2009. Rather, what they are looking for are reasonably specific comments regarding obvious administrative challenges or satisfaction with the current OPM FMLA regulatory regime.  From those comments OPM will decide whether to conduct a more thorough regulatory review, including the solicitation of detailed stakeholder comments. 

Comment:  Provide OPM with detailed comments regarding the proposed military caregiver leave regulations by October 26, 2009.  Basically, those regulations mirror the DOL regulations.  Additionally, by the same date, provide OPM with any comments or suggests for improvement or problems you are having administering the existing or "basic" FMLA regulations.  If you don't speak up now don't complain later. 

My thanks to OPM for promptly clarifying the issue.   

       

NEWS FLASH: OPM Issues Proposed Military Family Leave Regulations Covering Federal Employees

On August 26, 2009, the OPM issued proposed FMLA regulations implementing military family leave for purposes of Title II of the FMLA.  The proposed regulations are set forth in 74 Federal Register 43064-43082 (Aug. 26, 2009).  A link to the new regulations is provided below.  

http://frwebgate2.access.gpo.gov/cgi-bin/TEXTgate.cgi?WAISdocID=OvRJay/0/1/0&WAISaction=retrieve

The proposal includes regulations implement a Title II employee's right to take up to 26 administrative workweeks of FMLA leave a year to care for a member of the Armed Forces who is injured in the line of duty while on active duty (military caregiver leave).  It also amends the rules on advancing sick leave, including sick leave that may be substituted for unpaid military caregiver leave.  The OPM is also proposing organizational changes to the existing sick leave and FMLA regulations "to enhance reader understanding and administration of these programs.

SIGNIFICANTLY, the OPM also announced that it was considering whether a comprehensive review of the OPM's FMLA regulations is needed to identify any problems or concerns that stakeholders have encountered.  OPM specifically asks agencies for their recommendations on what significant changes, if any, are needed within the existing OPM FMLA regulatory framework.

Comments regarding the proposed FMLA regulations must be received on or before October 26, 2009. To submit comments, you must use RIN number "3206-AL91."  Comments may be submitted by the following methods:

• Federal eRulmaking Portal: http://www.regulations.gov.  Follow the instructions.
• 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 [email protected].

Comment:  Once I review the regulations I will issue another post.  All stakeholders (agencies, unions, employee associations, enforcement agencies) are not going to want to pass up the chance to influence the shaping of the Title IIFMLA regulations.  Speak now or forever hold your peace!

DOL Forwards Revised FMLA Regulations to OMB for Approval

On October 20, 2008, the U.S. Department of Labor forwarded revised FMLA regulations to the Office of Management and Budget for approval.  If approved, the regulations could be issued in the next few weeks.  The White House previously issued a memorandum to all federal agencies setting November 1, 2008, as the deadline for the issuance of any new final regulations.  The White House memo did, however, reserve the right to allow exceptions. 

The scope of the DOL regulations forwarded to OMB is unclear.  The DOL was preparing final regulations to implement the military family leave amendments to the FMLA.  DOL also proposed changes to the existing FMLA regulations in light of case law and statutory developments since the enactment of the original regulations some 15 years ago.     

The OPM is also supposed to be working on new OPM FMLA regulations to address the military family leave amendments to the FMLA.  No word on whether OPM has similarly forwarded revised FMLA regulations to OMB for approval. Unlike DOL, OPM has not announced that they were working on updating the existing FMLA regulations.

Stay tuned! 

Thanks to the BLR for the tip.  http://hr.blr.com/news.aspx?id=79032

  

October 28, 2008 in DOL, Legislation, News Flash | Permalink

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On October 20, 2008, the U.S. Department of Labor forwarded revised FMLA regulations to the Office of Management and Budget for approval.  If approved, the regulations could be issued in the next few weeks.  The White House previously issued a memorandum to all federal agencies setting November 1, 2008, as the deadline for the issuance of any new final regulations.  The White House memo did, however, reserve the right to allow exceptions. 

The scope of the DOL regulations forwarded to OMB is unclear.  The DOL was preparing final regulations to implement the military family leave amendments to the FMLA.  DOL also proposed changes to the existing FMLA regulations in light of case law and statutory developments since the enactment of the original regulations some 15 years ago.     

The OPM is also supposed to be working on new OPM FMLA regulations to address the military family leave amendments to the FMLA.  No word on whether OPM has similarly forwarded revised FMLA regulations to OMB for approval. Unlike DOL, OPM has not announced that they were working on updating the existing FMLA regulations.

Stay tuned! 

Thanks to the BLR for the tip.  http://hr.blr.com/news.aspx?id=79032

  

OPM Issues Final Regulations Expanding Sick Leave Usage

Federal civil service empoyees may use up to 480 hours of accrued sick leave for to provide care for a family member with a serious health condition and up to 104 hours of sick leave for general family care or bereavement purposes under new regulations issued by the Office of Personnel Management. 

The final OPM regulations, published in the August 17, 2006 edition of the Federal Register, became effective September 18, 2006. 

Under the new regulations, employees will not longer have to maintain minimum sick leave balance to be able to use their accrued and available sick leave.  Prior to this change, employees were requried to maintain 80 hours of sick leave in his or her sick leave account to be entilted to use up to the maximum 104 hours of sick leave for general family care/bereavement purposes or up to 480 hours of sick leave to care for a family member with a serious health condition. 

Agencies may advance up to up to 30 days of sick leave to an epmloyee for family care or bereavement purposes or to provide care for a family member with a serious health condition where requried by the exigencies of the situation for a serious disability  or ailment of the employee or a family member or for purposes releated to the adoption of a child.

Employees must apply for sick leave by means and within time limits esga blished by the agency.  Employees must request advance approval for sick leave to receive medical, dental, or optical examination or treatment, or, to the extent ossible, to provide care for an incapciated family member, to make arrangements necessitated by the death of a family member or to attend the funeral, and because the emloyee must be absent from duty for purposes relating to the adoption of a child.

The new OPM regulations set a governmentwide standard governing the time period an employee has to rpvodie medical documentation supporting an employee's request for sick leave.  Employees are not required to provide medical documentation in the absence of an agency request.  If medical documenation is requested, the employee generally has fifteen calendar days from the request to provide acceptable medical documentation.  If, despite the employee's good faith efforts, he or she is unable to provide the documentaiton with fifteen calendar days, the employee must provide the documentation within a reasonable period of time, but no later than 30 calednar days from the agency's request.  An employee who does not timely provide medical documentation is not entilted to sick leave. 

The new OPM regulations are codified at 5 CFR Part 630, Sections 630.401-406.

Comment:  The changes bring some of the sick leave provisions in line with the requirements of Title II of the Family and Medical Leave Act.