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Leave
Options
Employees
and leave-approving officials must follow the basic rules set
forth for annual leave, sick leave, and leave without pay (LWOP)
when requesting, using, granting, or denying leave indicated for
a particular situation. Supervisors are advised to administer
leave requests equitably and reasonably consonant with workload
demands and the availability of resources.
Supervisors
should be sensitive to granting all forms of leave and, in fact,
may encourage it when it seems apparent that it is in the best
interests of the employee and the office that the employee take
time to attend to these personal matters. Being supportive and
working with employees to find a solution that will accommodate
employees' needs while ensuring that office responsibilities are
met can realize significant dividends. Supervisors should also
ensure that employees' confidences are safeguarded since many
individuals consider family issues to be private matters and not
appropriate for discussion with other staff members or managers.
One issue
that is being raised with increasing frequency is the difficulty
that supervisors and employees experience in determining the appropriate
duration of maternity leave. Despite progress, locating and securing
quality infant care remains a challenge for employees. Many times,
several different arrangements ranging from nanny services to
family day care are tried before an employee finds care that is
satisfactory and meets the needs of the family.
Recognizing
that this transition period from maternity leave to resuming work
is very stressful for all, supervisors are encouraged to be supportive
when employees experience difficulties and to be open to their
requests for temporary accommodation until the situation stabilizes.
These requests involve seeking approval to participate in various
worklife initiatives that are designed to assist employees to
balance the competing demands of work and family.
For example,
the employee may wish to resume work gradually and return on a
reduced or part-time schedule until the infant is less demanding
and the employee has adjusted to the strains of juggling a challenging
work schedule and increased family responsibilities.
Elder care
is also becoming an increasingly important issue for employees
as they attempt to assist parents who become unable to care for
themselves either due to illness or advancing age. One employee,
in summarizing her experience in being the only caretaker for
family members, noted that "while there seems to be a sensitivity
and understanding about the needs of parents (for example when
a child is sick) no such compassion exists for the person whose
parent suddenly locks himself out of the house wearing only nightclothes."
Consideration of flextime, CWS, part-time, flexiplace, or temporary
reassignment to less demanding duties for employees facing family
crises could help employees through very demanding periods. It
could also reduce the negative effect on the office by enabling
the employee to use the increased flexibility to be more productive
and available to perform required tasks and to feel less stressed.
Without a
spirit of cooperation and support between manager and employee
and a balancing of the priorities and concerns of both, experienced
and productive employees may be more likely to find other opportunities,
resign when forced to choose between their families and their
work, or demonstrate a loss of morale or commitment to their jobs.
Given the changing realities of the composition of the workforce,
managers may overlook a valuable management tool if more flexible
leave options are not suggested to employees when family needs
impact office responsibilities. Such leave options include:
Annual Leave
for personal time, vacations, and personal emergencies.
- Family
and Medical Leave Act (FMLA) guarantees employees up to 12 weeks
leave without pay in a 12-month period for a personal or family
illness or emergency. Paid leave (annual or sick) may be substituted
as available.
- Leave for
Bone-Marrow or Organ Donation provides up to 7 days of paid
leave in a calendar year (in addition to sick or annual) to
serve as a bone-marrow or organ donor.
- Leave Without
Pay may be used by employees for any absence, subject to supervisory
approval.
- Sick Leave
may be used for personal illness; medical, dental, and optical
appointments; up to 40 hours a year to take care of a family
member; to make arrangements necessitated by the death of a
family member or attend the funeral of a family member; and
for adoption of a child.
- A full-time
employee who maintains a balance of at least 80 hours of sick
leave also will be able to use an additional 64 hours of sick
leave per year for these purposes, bringing the total amount
of sick leave available for family care and bereavement purposes
to a maximum of 104 hours per year. For part-time employees
or employees with an uncommon tour of duty, the maximum number
of hours of sick leave that may be used for family care or bereavement
purposes equals the total normally accrued during a leave year.
This flexible sick leave option was enacted under the Federal
Employees Family Friendly Leave Act (FEFFLA), Public Law 103-388,
October 22, 1994. It is a 3-year experimental program which
became effective December 2, 1994.
- Voluntary
Leave Transfer/Voluntary Leave Bank Programs allow employees
to donate annual leave directly to another employee or to a
bank. Recipients must have exhausted all of their own leave
due to personal illness or family emergency.
A.
Case Histories
Case #1—Economist
Participating in Voluntary Leave Transfer
The employee
is an economist, GS-11, in a research division and has worked
for the agency 4 years. In 1993, he had surgery and was a leave
recipient for approximately a 2-month period. Without the voluntary
leave transfer program, the economist would have taken advanced
sick leave for the 2-month period. The employee indicated that
the leave transfer program allowed him to devote his energy to
recovering from the surgery rather than worrying about paying
back 300 hours of advanced sick leave. He stated, "I feel certain
that my recovery was quicker, enabling me to return to work sooner
than expected and complete a critical work assignment. So, my
participation in the voluntary leave transfer program was beneficial
to the agency too. Despite my illness and absence for a 2-month
recovery period, I received a superior performance evaluation
for the year."
Case #2—Management
Specialist Using FMLA
A GS-13 management
specialist has been working with the agency for 17 years. The
employee stated, "The Family and Medical Leave Act was excellent
in allowing me the time I needed to assist a family member in
obtaining quarterly treatments for a potentially life-threatening
disease. I was able to preserve annual leave so I could spend
quality time with my family. It is crucial for family members
facing this sort of health care crisis to have the time, both
to offer each other support and still have time for relaxation.
I feel the agency benefited because I was able to work more productively,
take care of my family needs, and have peace of mind knowing that
through FMLA the needs of both the agency and my family were met."
B.
Leave Options Questions and Answers
Who is
eligible for FMLA?
Those employees
who meet definition of "employee" under 5 U.S.C. 6301 (2). All
eligible employees must have completed at least 12 months of service
as an employee as defined above. (The 12 months of service need
not be recent service.) However, temporary or intermittent employees
are not covered under Title II of the FMLA that covers Federal
employees, but may be covered under Title I of the FMLA, that
covers private sector employees.
What are
the restrictions of the 12-month period?
The 12-month
period begins on the date the employee first takes FMLA leave
and continues for 12 months. An employee is not entitled to 12
additional weeks of FMLA leave until the previous 12-month period
ends and an event or situation occurs that entitles the employee
to another period of FMLA leave. This may include a continuation
of a previous situation or circumstance.
For what
purposes can the FMLA be taken?
The FMLA provides
eligible Federal employees with an entitlement 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 care of the newborn.
(Note: Entitlement to 12 weeks of FMLA leave expires 12 months
after the date of birth or placement for adoption or foster
care. Employees may begin FMLA leave prior to the birth or placement.)
- The placement
of a son or daughter with the employee for adoption or foster
care. (Note: Entitlement to 12 weeks of FMLA leave expires 12
months after the date of birth or placement for adoption or
foster care. Employees may begin FMLA leave prior to the birth
or placement.)
- The care
of a spouse, son, daughter, or parent of the employee who has
a serious health condition. A serious health condition of the
employee that makes the employee unable to perform the essential
functions of his or her position.
What justification
is required to use the FMLA?
The employee
may be required to provide advance leave notice and medical certification.
The employee ordinarily must provide 30 days advance notice when
the need for FMLA leave is foreseeable. If the need for leave
is not foreseeable, e.g., medical emergency, the employee must
provide notice within a reasonable period of time appropriate
to the circumstances involved. An agency may require medical certification
to support a request for leave because of a serious health condition
and may require second or third opinions (at the employer's expense).
If an employee
cannot provide the required medical certification before FMLA
leave is to begin, the employee must be provided provisional leave.
Once FMLA leave has commenced and the employee fails to provide
the medical certification, the agency may charge the employee
as absent without leave (AWOL) or may allow the employee to request
that the provisional leave be charged as LWOP or to the employee's
appropriate leave account.
What are
the job benefits and protections provided under FMLA?
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
and may choose to pay the employee share of the premium on a current
basis or pay upon return to work. The use of FMLA leave cannot
result in the loss of any employment benefit that accrued prior
to the start of an employee's leave.
Can paid
leave be substituted for FMLA leave?
An employee
may elect, but the agency may not require an employee to substitute
accrued or accumulated annual and/or sick leave or other paid
time off for the unpaid FMLA leave in accordance with current
law and regulations. Further, employees may substitute a portion
of their sick leave for unpaid FMLA leave to care for a spouse,
son, daughter, or parent. (See Federal Employees Family-Friendly
Leave Act.) However, an employee may not retroactively substitute
paid time off for unpaid FMLA leave. Moreover, FMLA leave is in
addition to other paid time off available to an employee.
Under certain
conditions, FMLA leave may be taken intermittently or the employee
may work under a work schedule that is reduced by the number of
hours of leave taken as family and medical leave.
Can a manager
temporarily transfer an employee on FMLA to an alternative position?
Under the
FMLA, if an employee requests intermittent leave or leave on a
reduced leave schedule that is foreseeable based on planned medical
treatment, the manager or supervisor may temporarily transfer
the employee to an available alternative position that has equivalent
pay and benefits and that can better accommodate recurring periods
of leave. However, the alternative position must be in the same
commuting area and must provide an equivalent grade or pay level,
including any special or geographical/locality pay adjustment;
the same type of appointment, work schedule, status, and tenure;
and the same employment benefits made available to the employee
in the previous position.
What is
a "medical emergency" under the voluntary leave transfer program?
A "medical
emergency" is a medical condition of an employee or a family member
that would most likely require a prolonged absence from work and
would result in a substantial loss of income because of the unavailability
of paid leave. Examples of situations which doÊnot constitute
medical emergencies include care of a newborn or adopted child,
unless extenuating medical circumstances exist, and time off for
elective surgery.
What constitutes
a "substantial loss of income?"
A substantial
loss of income is an absence from duty without available paid
leave (excluding any advanced leave) because of a medical emergency
when the absence is or is expected to be:
- At least
24 hours in duration for a full-time employee, or
- At least
30 percent of the average number of hours of work in the biweekly
tour for a part-time employee or an employee with an uncommon
tour of duty.
A leave recipient
must use accrued annual leave (or sick leave, if applicable) before
using donated leave. (Note that beginning December 2, 1994, an
eligible employee may use up to 13 days of sick leave to care
for a family member. See Federal Employees Family Friendly Leave
Act.) If the medical emergency involves a family member, the leave
recipient first must use his or her 13 days of sick leave, if
appropriate, for family care and bereavement before using donated
leave.
When does
a "medical emergency" end?
A medical
emergency ends:
- When the
leave recipient leaves the Federal Service;
- When the
employing agency receives written notice from the leave recipient
that he or she is no longer affected by a medical emergency;
- When the
employing agency determines, after written notice and opportunity
for the leave recipient to reply, that the medical emergency
has ended; or
- When OPM
has approved an application for disability retirement for the
leave recipient.
It is the
agency's responsibility to monitor the status of the medical emergency
affecting the leave recipient to ensure that he or she continues
to be affected. After the emergency ends, any unused transferred
annual leave remaining must be restored to the leave donors. Unused
leave contributed to an employee under the leave bank program
remains in the leave bank. It is not restored to the contributor.
May employees
covered by the voluntary leave transfer program participate in
the voluntary leave bank program?
Yes. Under
the law, an employee may be eligible to be a leave recipient under
both programs if the agency has both programs.
Under the
voluntary leave transfer program, can transferred annual leave
be substituted to cover periods of LWOP and/or an indebtedness
for advanced annual or sick leave?
Transferred
annual leave may be substituted retroactively to the approved
beginning date of the medical emergency. Agencies control when
an employee may submit an application to become a leave recipient
for a medical emergency that has terminated. For example, an agency
could require that an employee must submit an application within
30 days after the medical emergency has ended.
The law and
OPM's regulations do not require an order of precedence in applying
transferred annual leave (e.g., liquidating an indebtedness for
advanced annual or sick leave before substituting for periods
of LWOP). The intent of the law is to permit the leave recipient
to decide how transferred annual leave is used.
Do agencies
accept donations of annual leave from employees of other agencies
under the voluntary leave transfer program?
Yes. Interagency/department
leave transfer is mandatory if a family member of a leave recipient
is employed by another agency/department and requests the transfer
of annual leave to the leave recipient. Also, an agency or department
may accept leave from donors in other agencies if, in the judgment
of the leave recipient's employing agency/department, the amount
of annual leave donated from agency leave donors may not be sufficient
to meet the needs of the leave recipient or acceptance of leave
transferred from another agency/department would further the purpose
of the voluntary leave transfer program.
How does
leave accrued while using shared annual leave affect a leave recipient
who is able to work during his or her medical emergency?
If a leave
recipient is able to return to work on a temporary or part-time
basis, the annual and sick leave earned while the employee is
working should be placed in his or her regular annual and sick
leave accounts. Because the purpose of the leave transfer program
is to allow employees who have exhausted all their earned leave
to use leave donated by others, the leave recipient must use up
any leave earned while working on a temporary or part-time basis
before using any additional shared leave.
Are there
any limitations on the amount of leave an employee may donate?
Yes. Generally,
an employee may not donate more than one-half of the amount of
annual leave he or she would be entitled to accrue in the leave
year. Also, an employee may not donate annual leave that is projected
to be forfeited at the end of a leave year.
For what
purposes can sick leave be used under the FEFFLA?
Employees
may use sick leave:
- To care
for a family member as a result of physical or mental illness;
pregnancy; or childbirth; or medical, dental, or optical examination
or treatment; or
- To make
arrangements necessitated by the death of a family member or
to attend the funeral of a family member.
Is there
a limit to the amount of sick leave an employee can use?
Yes. The amount
of sick leave aÊfull-time employeemay use in any leave year is
40 hours plus up to an additional 64 hours, only if the employee's
sick leave balance does not fall below 80 hours.
The amount
of sick leave aÊpart-time employee may use in any leave year is
prorated as follows:
- The average
number of hours of work in the part-time employee's scheduled
tour of duty each week, plus
- Up to the
number of hours of sick leave the part-time employee would normally
accrue in a leave year, only if the employee's sick leave balance
does not fall below an amount equal to twice the average number
of hours of work in the employee's scheduled tour of duty each
week.
For example,
an employee who works 20 hours a week, may use up to 20 hours
of sick leave in a leave year, or up to 52 hours if he/she maintains
a sick leave balance of at least 40 hours.
Can an
employee use sick leave to care for a family member with a communicable
disease?
Yes. If a
doctor or a health care official having jurisdiction determines
that the employee's exposure to the communicable disease would
jeopardize the health of other employees, the employee may use
sick leave for the entire period of time during which the danger
to other employees exists. If the health care professional cannot
make a determination that an employee's exposure to a communicable
disease would jeopardize the health of other employees, the employee
is limited to the maximum of 13 days of sick leave to care for
a family member.
Can an
employee be advanced the 40 hours of sick leave to care for a
sick family member or for bereavement?
Yes. An employee
may be advanced 40 hours of sick leave to care for a family member
or to use for bereavement. However, an employee mayÊnot be advanced
sick leave to meet the legal requirement to maintain 80 hours
of sick leave in his/her account.
What types
of adoption-related activities are covered under the leave for
adoption?
The purposes
for which an adoptive parent may request sick leave include appointments
with adoption agencies, social workers, and attorneys; court proceedings;
required travel; and any other activities necessary to allow the
adoption to proceed.
Is the
amount of sick leave an employee may use for adoption-related
purposes limited to 13 days as it is for other family care purposes?
No. The amount
of sick leave taken for adoption-related activities is not limited
to 13 days and does not count towards the annual 13-day limit
under the FEFFLA.
What is
the deadline for requesting that sick leave be substituted for
annual leave used for adoption purposes between September30, 1991,
to September 30, 1994?
The employing
agency must have received the employee's written application no
later than September 30, 1996.
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