Leave - Family Medical Leave Act
Under the Family and Medical Leave Act of 1993 (FMLA), most Federal
employees are entitled to a total of up to 12 workweeks of unpaid leave
during any 12-month period for the following purposes:
- the birth of a son or daughter of the employee and the care of such
son or daughter;
- the placement of a son or daughter with the employee for adoption or
- the care of spouse, son, daughter, or parent of the employee who has a
serious health condition; or
- a serious health condition of the employee that makes the employee
unable to perform the essential functions of his or her position.
Under certain conditions, an employee may use the 12 weeks of FMLA leave
intermittently. An employee may elect to substitute annual leave and/or
sick leave, consistent with current laws and OPM's regulations for using
annual and sick leave, for any unpaid leave under the FMLA. FMLA leave
is in addition to other paid time off available to an employee.
Under the National Defense Authorization Act (FY 2008), an eligible
employee who is the spouse, son, daughter, parent, or next of kin of a
covered service member who suffers a serious injury or illness on active
military duty is entitled to 26 workweeks of leave during a single
12-month period to care for the service member. This includes the 12
weeks of regular FMLA leave and is not in addition to it. The FY 2010
Defense Department Appropriations Act extended caregiver leave to cover
care for a veteran for up to five years after the veteran leaves
military service. Although these provisions are in effect, OPM
regulations are pending.
- Family member is defined only to include parent, spouse, son and
- A parent may be a biological, adoptive, step, or foster father or
mother, or any individual who stood (or
stands) in loco parentis to the employee when the employee is a son or
daughter. This term does not include parents "in-law."
- An individual may be in loco parentis when he/she has day-to-day
responsibility for the care or financial support of a child, or who did
when the employee was a child. A biological or legal relationship is not
necessary to establish this relationship.
- A serious health condition under the FMLA has been defined as an
illness, injury, impairment, or physical or mental condition that
involves either inpatient care or continuing treatment by a health care
- A spouse means a husband or wife, including a husband or wife in a
same-sex or common law marriage, as defined or recognized under State
law for purposes of marriage in the State where the marriage was entered
into or, in the case of a marriage entered into outside of any State, if
the marriage is valid in the place where entered into and could have
been entered into in at least one State.
- A State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
- The definition of "serious illness or injury" as it pertains to
military caregiver leave was changed by the FY 2010 Defense
Authorization Act of October 2009. The previous definition was an injury
or illness incurred by an active duty Armed Forces servicemember in the
line of duty that may render the servicemember medically unfit to
perform the duties of his/her office, grade, rank or rating. Now the
definition includes a condition that may have been incurred in the line
of duty or may have existed before the military service but was
aggravated by that service. The condition need not have manifested
itself during military service but, instead, could appear or develop
after the end of military service.
- To be eligible for FMLA leave, an employee must have worked as a civil
servant for 12 months.
- Time served outside the civil service (such as at the Postal Service)
and time spent as an intermittent employee does not count toward the
requisite 12 months.
- Federal holidays during the period when an employee uses FMLA leave
will not count toward the entitlement.
- A part-time employee is entitled to prorated FMLA leave. A federal
temporary employee must have an appointment with a time limitation
beyond one year and meet other employee eligibility requirements in
order to receive FMLA leave.
- FMLA leave may be taken intermittently due to a "serious health
condition," if it is medically necessary.
- Intermittent FMLA leave related to new child purposes is permissible,
if the employee and the agency agree to it.
- An employee must invoke the FMLA when requesting leave.
- A statement of unspecified illness, without accompanying medical
documentation, is not sufficient notice.
- When FMLA is based on an expected birth, placement of a child, or
planned medical treatment, an employee must give a 30 calendar day
advance notice for FMLA leave.
- If the need for leave is not foreseeable, such as a medical emergency
or due to the unexpected availability of a child for adoption or foster
care, and the employee cannot provide 30 calendar days notice of the
need for leave, the employee must provide notice within a reasonable
period of time appropriate to the circumstances involved.
- If the need for leave is foreseeable, and the employee fails to give
30 calendar days notice with no reasonable excuse for the delay of
notification, the agency may delay the taking of leave until at least 30
calendar days after the date that the employee provides notice of the
need for FMLA leave.
- An employee may not retroactively invoke entitlement to FMLA leave.
However, if an employee and his/her personal representative are
physically or mentally incapable of invoking the employee's entitlement
to FMLA leave during the entire period in which the employee is absent
from work, the employee may retroactively invoke entitlement to FMLA
leave within two workdays after returning to work.
- The FMLA provides that medical certification will be sufficient if it
satisfies the statutory minimal requirements under
5 USC 6383 (b).
- All medical records are subject to the confidentiality provisions of
the Privacy Act. The Department of Labor Medical Certification Forms
(see reference below), specifically designed for the FMLA, prompts
agencies to request the appropriate medical information as specified in
5 CFR 630.1207.
- If the agency requests medical certification, an employee must provide
the written medical certification required, signed by the health care
provider, no later than 15 calendar days after the date of request.
- If it is not practical to provide medical certification within 15
calendar days after the date requested by the agency, despite the
employee's diligent, good-faith efforts, the employee will have up to 30
calendar days to have medical certification submitted.
- If an agency doubts the validity of medical records, it can require a
second and third (and final) opinion at the agency's expense.
Job Benefits and Protection
- Upon return from FMLA leave, an employee must be returned to the same
position or to an "equivalent position with equivalent benefits, pay,
status, and other terms and conditions of employment."
- An employee who takes FMLA leave is entitled to maintain health
benefits coverage. An employee on unpaid FMLA leave may pay the employee
share of the premiums on a current basis or pay upon return to work.