This Leave Policy for Childbirth, Adoption, and Foster Care supplements the current Department of Commerce leave policies by providing comprehensive guidance on the use of the various leave categories for the specific categories of childbirth, adoption, and foster care.

The Department of Commerce fully supports the use of all workplace flexibilities such as telework, alternative work schedules, part-time employment, and job sharing opportunities to support parents to ensure that they can contribute fully in the workplace, while also meeting the needs of their families.

I: Leave for Pregnancy and Childbirth

The Department of Commerce (DOC) offers various leave and work scheduling flexibilities to assist employees in meeting their work and family obligations. This section explains the available leave options that can be used separately or in combination to help an employee balance his or her work and family life related to pregnancy and childbirth.

A. Sick Leave

An employee is entitled to use sick leave for personal medical needs while pregnant or recovering from childbirth, to care for a family member who is pregnant or recovering from childbirth, to care for a family member with a serious health condition, or for general family care purposes such as well-baby doctor visits or illnesses. Managers/supervisors may request administratively acceptable evidence indicating the duration of the employee's or family member’s recovery from childbirth.

Sick leave is an entitlement that may be used without invoking leave under the Family Medical leave Act (FMLA).

Sick Leave for Employee’s Own Care

An employee who is the birth mother is entitled to use any accumulated or accrued sick leave for prenatal care, any period of incapacity due to her pregnancy—including periods of morning sickness or medically prescribed bed rest—childbirth, and recovery from childbirth. There is no limit on the amount of sick leave that an employee may use for her own personal medical needs, however an employee has no entitlement to use sick leave except for authorized sick leave purposes.

Sick Leave to Care for a Family Member

An employee is entitled to use a total of 12 weeks (480 hours) of sick leave each leave year to care for a family member with a serious health condition. Examples would include caring for the birth mother for prenatal care, any period of morning sickness or medically prescribed bed rest, childbirth, and recovery from childbirth, and care of the baby if the baby has a serious health condition. An employee may also use 13 days (104 hours) of sick leave for general family care—including well-baby visits or minor illnesses. If the employee previously has used any portion of the 13 days of sick leave for general family care or bereavement purposes in a leave year, that amount must be subtracted from the 12-week entitlement. An employee is entitled to no more than a combined total of 12 weeks of sick leave each leave year for all family care purposes.

The individual for whom the employee is providing care must meet the definition of family member used for sick leave and voluntary leave transfer program (VLTP) purposes. The terms sons and daughters is further defined by those same regulations (see below)

A family member is an individual with any of the following relationships to the employee:

1) Spouse, and parents thereof;

2) Sons and daughters, and spouses thereof;

3) Parents, and spouses thereof;

4) Brothers and sisters, and spouses thereof;

5) Grandparents and grandchildren, and spouses thereof;

6) Domestic partner and parents thereof, including domestic partners of any individual in 2 through 5 of this definition; and

7) Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Son or daughter means:

1) A biological, adopted, step, or foster son or daughter of the employee;

2) A person who is a legal ward or was a legal ward of the employee when that individual was a minor or required a legal guardian;

3) A person for whom the employee stands in loco parentis or stood in loco parentis when that individual was a minor or required someone to stand in loco parentis; or

4) A son or daughter, as described in paragraphs (1) through (3) of this definition, of an employee’s spouse or domestic partner.

Examples of authorized sick leave uses for a serious health condition are caring for the birth mother for prenatal care, any period of morning sickness or medically prescribed bed rest, childbirth, and recovery from childbirth, and care of the baby if the baby has a serious health condition. An employee may also use 13 days (104 hours) of sick leave for general family care—including well-baby visits or minor illnesses. If the employee previously has used any portion of the 13 days of sick leave for general family care or bereavement purposes in a leave year, that amount must be subtracted from the 12-week entitlement. An employee is entitled to no more than a combined total of 12 weeks of sick leave each leave year for all family care purposes.

Sick Leave to Care for Birth Mother

An employee caring for a family member who is a birth mother is entitled to use sick leave for the mother’s prenatal care, any period of incapacity due to her pregnancy—including severe morning sickness or medically prescribed bed rest—childbirth, or for the mother’s recovery from childbirth.

Sick Leave to Care for a Newborn

An employee may not use sick leave to be absent from work to bond with or care for a healthy newborn. There is no provision in law or regulation that permits the use of sick leave to care for a healthy newborn, bond with a healthy child, or for other childcare responsibilities. However, an employee is entitled to use sick leave for general family care purposes, i.e., to care for a child who has a routine illness or to take a child to medical, dental, or optical appointments or well-baby doctor visits, or if the baby has a serious health condition.

The child must meet the definition of family member (see above), or if applicable, the definition of son or daughter for sick leave and VLTP purposes.  Note: Based on the definition of family member, an employee can take sick leave to care for a grandchild. In addition, based on the definition of son or daughter, a same-sex domestic partner can care for the son or daughter of his or her partner for whom the employee will stand in loco parentis, even if the employee is not the child’s genetic parent or is not adopting the child.

B. Advanced Sick Leave

Upon an employee’s request, an employee must be granted advanced sick leave to the maximum extent practicable, in accordance with sick leave laws, regulations, and the terms of an applicable collective bargaining agreement and consistent with mission needs. Advanced sick leave may be granted for the same reason(s) as already accrued sick leave as specified in law and regulation, irrespective of the employee’s existing annual leave balance.

Repayment of Advanced Sick Leave

An employee is required to repay advanced sick leave, except in very limited circumstances, e.g., disability retirement or death. Therefore, an employee requesting advanced sick leave should think carefully about whether he or she wants to incur this debt and how the debt will be repaid.

Sick leave earned by an employee is automatically credited to the employee’s negative sick leave balance every pay period. If an employee leaves the Department with a negative sick leave balance, the cost of that negative leave is deducted from the employee’s last paycheck or any lump sum payment. If the last disbursement is insufficient to cover the amount owed, then the Department will bill the employee

Note: If an employee were to use 13 days of advanced sick leave, it would take him or her a full year without using another hour of sick leave to repay the sick leave debt. Because advanced sick leave must be repaid, managers/supervisors should not advance sick leave when it is known (or reasonably expected) that the employee will not return to duty.

Donated annual leave under the Voluntary Leave Transfer Program (VLTP) may be used to liquidate an indebtedness incurred by the leave recipient for advanced sick leave used because of a medical emergency, such as medically prescribed bed rest or recovery from childbirth. However, before using donated annual leave, the employee must first exhaust all his or her own annual and sick leave.

C. Annual Leave

Annual leave may be used for any purpose, subject to the right of the manager/supervisor to approve a time when the annual leave may be taken. Annual leave may be used for pregnancy, childbirth, and recovery from childbirth, bonding with or caring for a baby, or for other childcare responsibilities including taking the child to medical, dental, or optical appointments or well-baby doctor visits, or any other purpose.

Scheduling of Annual or Advanced Annual Leave

An employee has the right to request annual leave, subject to the right of the manager/supervisor to approve the time when the employee takes the annual leave and the terms of an applicable collective bargaining agreement. For pregnancy and childbirth, managers/supervisors are encouraged to grant the leave to the maximum extent practicable consistent with mission needs.

Note: An employee has an entitlement to substitute annual leave for any unpaid FMLA leave during any period approved under FMLA.

D. Advanced Annual Leave

Advanced annual leave should be granted to the maximum extent practicable, in accordance with law and the terms of an applicable collective bargaining agreement and consistent with mission needs. Managers/supervisors may advance the amount of annual leave an employee would earn during the leave year.

Note: The later in the leave year the employee requests advanced annual leave, the smaller the amount that may be advanced. Managers/supervisors are advised to advance annual leave to the maximum extent practicable for purposes related to pregnancy and childbirth. Advanced annual leave may grant for the same reasons as currently accrued annual leave is as specified in law and regulation, irrespective of the employee’s existing annual leave balance. New employees are eligible to receive advanced annual leave.

Repayment of Advanced Annual Leave

An employee is required to repay advanced annual leave, except in very limited circumstances, e.g., disability retirement or death. In each pay period, the amount of annual leave earned in that pay period is applied to the negative annual leave balance. The employee also has the option of paying the value of the negative leave balance to the Department. If the employee leaves the Department and transfers to another Federal agency without a break in service, the negative balance will transfer. If the employee leaves Federal employment, the cost of the leave will be deducted from the employee’s last paycheck or any lump sum payment. If the final disbursement in not sufficient to cover the cost, the employee will be billed by the Department.

Therefore, an employee requesting advanced annual leave should think carefully about whether he or she wants to incur this debt and how the debt will be repaid.

Donated annual leave under the Voluntary Leave Transfer Program (VLTP) may be used to liquidate an indebtedness incurred by the leave recipient for advanced annual leave used because of a medical emergency, such as medically prescribed bed rest or recovery from childbirth. However, before using donated annual leave, the employee must first exhaust all his or her own annual and sick leave.

Because advanced annual leave must be repaid, manger/supervisors should not advance annual leave when it is known (or reasonably expected) that the employee will not return to duty.

E. Family and Medical Leave

An employee is eligible for the Family and Medical Leave Act (FMLA) after completing 12 months of service (not required to be consecutive and not required to be at a DOC bureau or operating unit) as a covered Federal employee (generally, an employee at an executive agency) in order to be entitled to FMLA leave.

Under the Family and Medical Leave Act (FMLA), an employee is entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for one or more of these purposes related to childbirth:

• the birth of a son or daughter of the employee and the care of such son or daughter; the care of spouse, son or daughter, or mother 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.

FMLA leave is unpaid leave. However, in order to remain in a pay status during FMLA leave, an employee may elect to substitute accrued, accumulated, or advanced annual or sick leave or annual leave donated under the VLTP, for any unpaid leave under the FMLA, consistent with current laws and OPM’s regulations for using such leave.

FMLA for Employee’s Own Care

An employee who must be absent from work because of a serious health condition is entitled to unpaid FMLA leave for prenatal care or any period of incapacity due to pregnancy, childbirth, or recovery from childbirth. (According to the definition of serious health condition, any period of incapacity due to pregnancy or childbirth, or for prenatal care, is considered a serious health condition, even if the employee does not receive active medical treatment from a health care provider during the period of incapacity or the period of incapacity does not last more than 3 consecutive calendar days).

Note: Since sick leave and FMLA leave are two separate entitlements, and employee does not need to invoke FMLA to use sick leave for her period of recovery from childbirth. She can use 6-8 weeks of sick leave for recovery form childbirth, then later invoke FMLA to bond with her baby.

FMLA to Care for Birth Mother

An employee is entitled to use FMLA leave to care for a wife, daughter (generally under 18 years of age), or mother for prenatal care or any period of incapacity due to pregnancy, childbirth, or recovery from childbirth.

Note: The broad definition of family member used for sick leave and VLTP purposes does not apply to the FMLA, therefore an employee can only use FMLA leave to provide care for the individuals specified in law.

Spouse. The FMLA regulations define spouse as “an individual who is a husband or wife pursuant to a marriage that is a legal union between one man and one woman, including common law marriage between one man and one woman in States where it is recognized. This definition is not as broad as the definition of family member for sick leave and VLTP.

The definition of spouse in OPM’s FMLA regulations is being amended in response to the Supreme Court’s June 26, 2013 decision in United States v. Windsor (133 S.Ct. 2675), that determined Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. In OPM’s CPM 2013-14 entitled “Family and Medical Leave Act (FMLA) Coverage of Same-Sex Spouses” OPM explained that the ruling provides employees with same-sex spouses the same FMLA entitlements as those with opposite-sex spouses. Spouse now means a partner in any legally recognized marriage, regardless of the employee’s State of residency.

Son or Daughter. An employee may not invoke FMLA leave to care for a daughter over 18 years of age that has given birth unless she is incapable of self-care due to a mental or physical disability.

Son or daughter means a biological, adopted, or foster child; a step child; a legal ward; or a child of a person standing in loco parentis who is:

1) Under 18 years of age; or

2) 18 years of age or older and incapable of self-care because of a mental or physical disability. A son or daughter incapable of self-care requires active assistance or supervision to provide daily self-care in three or more of the “activities of daily living” or “instrumental activities of daily living.” Activities of daily living include adaptive activities such as caring appropriately for one's grooming and hygiene, bathing, dressing, and eating. Instrumental activities of daily living include cooking, cleaning, shopping, taking public transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc. A “physical or mental disability” refers to a physical or mental impairment that substantially limits one or more of the major life activities of an individual as defined in 29 CFR 1630.2 (h), (i), and (j).

FMLA to Care for a Newborn

Each parent is entitled to use FMLA leave for the birth of a child and care of the newborn. An employee may elect to substitute annual leave and/or sick leave for any or all of the leave without pay used under the FMLA, consistent with the laws and regulations for using annual and sick leave. An employee's entitlement to FMLA leave expires 12 months following the date of birth of a child.

Intermittent Use of FMLA Leave or Use on a Reduced Leave Schedule

An employee is entitled to take FMLA leave on an intermittent basis or on a reduced leave schedule for absences in connection with a serious health condition. A reduced leave schedule is a special kind of intermittent leave that amounts to a change in an employee’s usual number of working hours in a workweek or workday, in many cases reducing an employee’s full-time schedule to a part-time schedule for the period of FMLA leave. Therefore, an employee is entitled to take FMLA leave for her own or an eligible birth mother’s prenatal appointments, for any period of incapacity due to pregnancy, childbirth, or recovery from childbirth (including for “morning sickness”), or to care for his or her child with a serious health condition. Eligibility and medical certification for the serious health condition are established only at the time of the employee first invokes FMLA for a serious health condition—a medical note is not required for each absence related to the serious health condition.

Upon mutual agreement between the manager/supervisor and the employee, an employee may use FMLA leave intermittently or on a reduced leave schedule to bond with or care for his or her healthy baby. Mangers/supervisors are encouraged to approve requests for intermittent FMLA leave for bonding to the maximum extent practicable.

Parents’ Eligibility

For FMLA purposes, a 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.” In loco parentis refers to the situation of an individual who has day-today responsibility for the care and financial support of a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological or legal relationship is not necessary.

FMLA Facts Related to Pregnancy and Childbirth

• An employee must invoke his or her entitlement to FMLA leave. Generally, an employee may not retroactively invoke FMLA.
• An employee taking FMLA leave based on an expected birth of a child should provide not less than 30 calendar days’ notice to the agency of his or her intention to take FMLA leave—or as much notice as is practicable if the leave is to begin sooner.
• The 12-month period begins on the date an employee first takes FMLA leave for any purpose and continues for 12 months.
• An employee's entitlement to FMLA leave based on the birth of a son or daughter and care of the child expires 12 months after the child’s birth.

Effect of Unpaid FMLA Leave on Leave Accrual and other Benefits

Being in a leave without pay (or unpaid FMLA leave) status affects various employee entitlements, including the accrual of annual and sick leave. For example, when a full-time employee with an 80-hour biweekly tour of duty accumulates a total of 80 hours of nonpay status (either in one pay period or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period. If the employee again accumulates 80 hours of nonpay status, he, or she will again not earn leave in the pay period in which that new 80-hour total is reached.

F. Voluntary Leave Transfer Program

The VLTP allows an employee to donate annual leave directly to another employee who has a personal or family medical emergency. Generally, an employee will receive donated annual leave under the VLTP from other employees in DOC. However, family members are entitled to donate annual leave to an approved leave recipient who works at another Federal agency. The servicing human resources office may allow donations from Federal employees at other agencies if it believes that the employee may not otherwise receive enough donated annual leave to meet his or her needs.

Note: Sick leave may not be donated under the VLTP.

Medical Emergency

The term medical emergency means a medical condition of either the employee or the employee’s family member that is likely to require an employee to be absent or expected to be absent from duty for a prolonged period and to result in a substantial loss of income (expected absence without available paid leave of at least 24 work hours for a full-time employee) because of the employee's lack of available paid leave. An employee’s or family member’s incapacity of at least 24 hours due to pregnancy and/or recovery from childbirth would therefore constitute a medical emergency for purposes of VLTP.

Note: Donated leave under the VLTP cannot be used for bonding with a newborn.

Definition of Family Member for VLTP

The definition of family member is the same for VLTP purposes as it is for sick leave.

Retroactive Substitution of Donated Annual Leave

Donated annual leave may be:

· Substituted retroactively by the employee for any period of leave without pay used because of a medical emergency; or

· Used by the employee to liquidate an indebtedness incurred by the leave recipient for advanced annual or sick leave used because of a medical emergency.

Set-Aside Accounts

While using donated leave, a leave recipient accrues annual and sick leave into what are called “set-aside accounts” so that the employee has some available leave when the medical emergency is over. An employee may accrue no more than 40 hours of annual leave and 40 hours of sick leave in the set-aside accounts. The leave in these accounts will be transferred to the employee’s regular leave accounts either when the medical emergency ends or if the employee exhausts all donated annual leave but the employee or his or her family member is still experiencing the medical emergency. Leave in set-aside accounts is not available for use by the employee until transferred to the employee's regular leave accounts.

Leave Sharing Facts Related to Pregnancy and Childbirth

• Donated annual leave may be used only for a medical emergency—e.g., any period of incapacitation of the mother or illness of the baby that will last at least 24 work hours and may not be used to care for a healthy child.
• There is no limit on the amount of donated annual leave a leave recipient may receive. However, any unused donated annual leave must be returned to the leave donor(s)/bank when the medical emergency ends.
• Donated annual leave may not be used to bond with or care for a healthy newborn, to care for a child with a routine illness, or to take the child to medical, dental, or optical appointments or well-baby doctor visits.
• An employee who returns to work part-time and whom uses donated leave part-time to care for a family member recovering from childbirth accrues leave in his or her regular annual and sick leave accounts for the time spent in work status and in his or her set-aside annual and sick leave accounts when using donated leave.

G. Leave Without Pay

An employee may request leave without pay (LWOP) to be absent from work for purposes related to pregnancy and childbirth. An employee may request LWOP without invoking FMLA, even if he or she has available paid leave. Supervisors/managers should refer to bureau/ operating unit internal policy and applicable collective bargaining agreements prior to granting approval. However, mangers/supervisors are encouraged to offer leave without pay for a longer period than what is provided for under the FMLA, to the maximum extent practicable for pregnancy and childbirth.

LWOP can be used in addition to the flexibilities that are already available, subject to bureau/ operating unit policy and any applicable collective bargaining agreement.

Note: Managers/supervisors can provide an employee who is not yet eligible for FMLA with a LWOP benefit that would mirror a FMLA benefit.

Effect of LWOP on Leave Accrual and Other Benefits

Being in a leave without pay (or unpaid leave) status affects various employee entitlements, including the accrual of annual and sick leave. For example, when a full-time employee with an 80-hour biweekly tour of duty accumulates a total of 80 hours of nonpay status (either in one pay period, or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period. If the employee again accumulates 80 hours of nonpay status, he or she will again not earn leave in the pay period in which that new 80-hour total is reached.

H. Part-time Employment and Job Sharing Arrangements

Managers/supervisors are encouraged to offer part-time schedules to employees who are pregnant or have given birth, or to care for a newborn, to the maximum extent practicable. Managers/supervisors are also encouraged to develop job-sharing programs in partnership with their unions and other stakeholders. Furthermore, when job-sharing programs are planned for organizations where employees are represented by a labor organization, agencies are required by law to notify the union and bargain in good faith on any negotiable proposals the union submits.

Part-time

A part-time employee works between 16 and 32 hours each week (or between 32 and 64 hours a pay period) on a prearranged schedule, and is eligible for benefits. Part-time employees are eligible, on a prorated basis, for the same benefits as full-time employees: leave, retirement, and health and life insurance coverage.

Job Sharing

Job sharing is a form of part-time employment in which the schedules of two or more part-time employees are arranged to cover the duties of a single full-time position. Generally, a job sharing team means two employees at the same grade level but other arrangements are possible. Job sharers are subject to the same personnel policies as other part-time employees. Job sharing does not necessarily mean that each job sharer works half-time, or that the total number of hours are 40 per week.

II: Leave for Adoption and Foster Care

A. Sick Leave

Sick Leave for Adoption

An employee is entitled to use sick leave when he or she must be absent from work for purposes related to his or her adoption of a child.

Examples of such adoption-related purposes may include but are not limited to:

• Appointments with adoption agencies, social workers, and attorneys;
• Court proceedings;
• Required travel;
• Any periods of time during which the employee is ordered or required by the adoption agency or by the court to take time off from work to care for the adopted child; and
• Any other activities necessary to allow the adoption to proceed.

Sick Leave for Care of the Child

An employee may not use sick leave to be absent from work to bond with or care for a healthy child. There is no provision in law or regulation that permits the use of sick leave to care for a healthy newborn, bond with a healthy child, or for other childcare responsibilities. An employee is entitled to 12 weeks of sick leave each leave year to care for his or her adopted or foster child with a serious health condition. The employee may also use up to 13 days of the 12 weeks of sick leave for general family care purposes, i.e., to care for a child who has a routine illness or to take a child to medical, dental, or optical appointments or well-baby doctor visits. An employee is entitled to no more than a combined total of 12 weeks of sick leave each leave year for all family care purposes.

The definition of serious health condition has the same meaning as used in OPM's FMLA regulations. The employee may use up to 13 days of the 12 weeks of sick leave for general family care purposes, i.e., to care for a child who has a routine illness or to take a child to medical, dental, or optical appointments or well-baby doctor visits. An employee is entitled to no more than a combined total of 12 weeks of sick leave each leave year for all family care purposes.

The child must meet the definition of son or daughter for sick leave and VLTP purposes:

Son or daughter means:

1) A biological, adopted, step, or foster son or daughter of the employee;

2) A person who is a legal ward or was a legal ward of the employee when that individual was a minor or required a legal guardian;

3) A person for whom the employee stands in loco parentis or stood in loco parentis when that individual was a minor or required someone to stand in loco parentis; or

4) A son or daughter, as described in paragraphs (1) through (3) of this definition, of an employee's spouse or domestic partner.

Note: Based on the definition of son or daughter, an employee with a domestic partner can care for the son or daughter of his or her partner for whom the employee will stand in loco parentis, even if the employees is not adopting or fostering the child.

Facts Related to Sick Leave for Adoption

• An employee who is fostering a child is not entitled to use sick leave for adoption-related purposes, unless the employee is adopting the foster child.
• An employee who is accompanying a family member to activities related to the placement of a child for adoption is not entitled to use sick leave for adoption.
• An employee may not use sick leave to bond with his or her healthy adopted child unless ordered or required by the adoption agency or by the court.
• A manger/supervisor may request administratively acceptable evidence for the use of sick leave for adoption-related purposes, general family care, or care of the child if the child has a serious health condition.
• There is no limitation on the amount of sick leave that may be used for adoption-related purposes. Sick leave for adoption-related purposes does not count towards the 104-hour (13 days) limit of sick leave each leave year for family care and bereavement purposes or the overall limit of 12 weeks of sick leave each leave year for all family care purposes.

B. Advanced Sick Leave

Upon an employee’s request, an employee must be granted advanced sick leave to the maximum extent practicable, in accordance with law and regulations and consistent with mission needs. An employee is eligible for a maximum of 240 hours (30 days) of advanced sick leave for purposes related to his or her adoption of a child or to care for his or her adopted or foster child with a serious health condition, and a maximum of 104 hours (13 days) to care for his or her adopted or foster child with a routine illness or to take the child to medical, dental, or optical appointments or well-baby doctor visits (if applicable). Two hundred forty (240) hours is the maximum amount of advanced sick leave a full-time employee may have to his or her credit at any one time. A manger/supervisor may grant advanced sick leave for the same reason it grants already accrued leave as specified in law and regulation, irrespective of the employee’s existing annual leave balance.

Repayment of Advanced Sick Leave

An employee is required to repay advanced sick leave, except in very limited circumstances, e.g., disability retirement or death. Therefore, an employee requesting advanced sick leave

should think carefully about whether he or she wants to incur this debt and how the debt will be repaid.

Sick leave earned by an employee is automatically credited to the employee’s negative sick leave balance every pay period. If an employee leaves the Department with a negative sick leave balance, the cost of that negative leave is deducted from the employee’s last paycheck or any lump sum payment. If the last disbursement is insufficient to cover the amount owed, then the Department will bill the employee

Note: If an employee were to use 13 days of advanced sick leave, it would take him or her a full year without using another hour of sick leave to repay the sick leave debt. Because advanced sick leave must be repaid, managers/supervisors should not advance sick leave when it is known (or reasonably expected) that the employee will not return to duty

Because advanced sick leave must be repaid, a manager/supervisor should not advance sick leave when it is known (or reasonably expected) that the employee will not return to duty.

C. Annual Leave

Annual leave may be used for any purpose. Annual leave may be used for adoption or foster care purposes, for bonding with or caring for an adopted or foster child, or other child care responsibilities including taking the child to medical, dental, or optical appointments or well-baby doctor visits (if applicable), or any other purpose.

Scheduling of Annual or Advanced Annual Leave

An employee has the right to request annual leave, subject to the right of the manager/supervisor to approve the time when the employee takes the annual leave and the terms of an applicable collective bargaining agreement. For adoption or foster care, managers/supervisors are encouraged to grant annual leave to the maximum extent practicable consistent with mission needs.

D. Advanced Annual Leave

Advanced annual leave should be granted to the maximum extent practicable, in accordance with law and the terms of an applicable collective bargaining agreement and consistent with mission needs. Managers/supervisors may advance the amount of annual leave an employee would ear during the leave year.

Note: The later in the leave year the employee requests advanced annual leave, the smaller the amount that may be advanced. Managers/supervisors are advised to advance annual leave to the maximum extent practicable for purposes related to adoption and foster care. Advanced annual leave may grant for the same reasons as currently accrued annual leave is as specified in law and regulation, irrespective of the employee’s existing annual leave balance. New employees are eligible to receive advanced annual leave. New employees are eligible to receive advanced annual leave.

Repayment of Advanced Annual Leave

An employee is required to repay advanced annual leave, except in very limited circumstances, e.g., disability retirement or death. In each pay period, the amount of annual leave earned in that pay period is applied to the negative annual leave balance. The employee also has the option of paying the value of the negative leave balance to the Department. If the employee leaves the Department and transfers to another Federal agency without a break in service, the negative balance will transfer. If the employee leaves Federal employment, the cost of the leave will be deducted from the employee’s last paycheck or any lump sum payment. If the final disbursement in not sufficient to cover the cost, the employee will be billed by the Department.

Because advanced annual leave must be repaid, an agency should not advance annual leave when it is known (or reasonably expected) that the employee will not return to duty.

E. Family and Medical Leave

Under FMLA, eligible Federal employees (see page 5 for eligibility requirements) are entitled to a maximum of 12 workweeks of unpaid leave during any 12-month period for one or more of these purposes related to adoption and foster care:

· the placement of a son or daughter with the employee for adoption or foster care; or

· the care of a son or daughter of the employee who has a serious health condition.

An employee is entitled to FMLA leave for purposes of adoption or placement of a child with the employee for adoption or foster care and care of the child.

Intermittent Use of FMLA Leave or Leave on a Reduced Leave Schedule

An employee is entitled to take FMLA leave on an intermittent basis or on a reduced leave schedule for absences in connection with a serious health condition. A reduced leave schedule is a special kind of intermittent leave that amounts to a change in an employee’s usual number of working hours in a workweek or workday, in many cases reducing an employee’s full-time schedule to a part-time schedule for the period of FMLA leave. Therefore, an employee is entitled to take FMLA leave to care for his or her adopted or foster child if the child has a serious health condition. Eligibility and medical certification for the serious health condition are established only at the time the employee first invokes FMLA for a serious health condition a medical note is not required for each absence related to the serious health condition.

Upon mutual agreement between the managers/supervisor and the employee, an employee may use FMLA leave intermittently or on a reduced leave schedule for the placement of a son or daughter with the employee for adoption or foster care. Managers/supervisors are encouraged to approve requests for intermittent FMLA leave for placement of an adopted or foster child to the maximum extent practicable.

FMLA Facts Related to Adoption and Foster Care

• An employee who is accompanying a family member to activities related to the placement of a child for adoption is not entitled to unpaid leave under FMLA.
• An employee must invoke his or her entitlement to FMLA leave.
• Generally, an employee may not retroactively invoke his or her entitlement to FMLA leave. The 12-month period begins on the date an employee first takes FMLA leave for any purpose and continues for 12 months.
• Leave may begin prior to or on the actual date of placement for adoption or foster care, and the 12-month period begins on that date.
• An employee's entitlement to FMLA leave based on adoption or foster care expires 12 months after the placement of the child with the employee.
• An employee taking FMLA leave based on an expected placement of a child should provide not less than 30 calendar day notice or as much notice as is practicable if leave is to begin sooner to the manager/supervisor of his or her intention to take FMLA leave.
• If the need for leave is not foreseeable, for example, if a child is unexpectedly available for adoption or for emergency foster care and the employee is unable to provide advance notice of his or her need for leave, the leave may not be delayed or denied.

Substitution of Paid Leave under FMLA

FMLA leave is unpaid leave. However, in order to remain in a pay status during FMLA leave, an employee may elect to substitute accrued, accumulated, or advanced annual leave or sick leave or annual leave donated under the VLTP, for any unpaid leave under the FMLA, consistent with the laws and regulations for using annual and sick leave.

“Consistent with current laws and regulations” means that sick leave may only be substituted for purposes necessary for an adoption to proceed or care of an adopted or foster child with a serious health condition. Annual leave may be substituted for any period of unpaid FMLA leave. Mangers/supervisors are encouraged to grant advanced sick and advanced annual leave to an employee with no available paid leave who has invoked FMLA so the employee can receive pay by substituting advanced leave for unpaid FMLA leave. Donated annual leave may only be substituted for medical emergencies (e.g., care of an adopted or foster child with a serious health condition).

Effect of Unpaid FMLA Leave on Leave Accrual and other Benefits

Being in a leave without pay (or unpaid leave) status affects various employee entitlements, including the accrual of annual and sick leave. For example, when a full-time employee with an 80-hour biweekly tour of duty accumulates a total of 80 hours of nonpay status (either in one pay period, or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period. If the employee again accumulates 80 hours of nonpay status, he or she will again not earn leave in the pay period in which that new 80-hour total is reached.

F. Voluntary Leave Transfer Program

The VLTP allows an employee to donate annual leave directly to another employee who has a personal or family medical emergency. Generally, an employee will receive donated annual leave under the VLTP from other employees within DOC. However, family members are entitled to donate annual leave to an approved leave recipient who works at another Federal agency. The serving human resources office may allow donations from Federal employees at other agencies if it believes that the employee may not otherwise receive enough donated annual leave to meet his or her needs.

Medical Emergency

The term medical emergency means a medical condition of either the employee or the employee's family member that is likely to require an employee to be absent or expected to be absent from duty for a prolonged period and to result in a substantial loss of income (expected absence without available paid leave of at least 24 work hours for a full-time employee) because of the employee's lack of available paid leave.

Note: Donated leave under the VLTP cannot be used for purposes related to the adoption or foster placement of a child or for bonding with the child.

Definition of Family Member for VLTP

The definition of family member is the same for VLTP as it is for sick leave purposes.

Retroactive Substitution of Donated Annual Leave

Donated annual leave may be:

· Substituted retroactively by the employee for any period of leave without pay used because of a medical emergency; or

· Used by the employee to liquidate an indebtedness incurred by the leave recipient for advanced annual or sick leave used because of a medical emergency.

Set-Aside Accounts

While using donated annual leave, a leave recipient accrues annual and sick leave into what are called “set-aside” accounts so that the employee has some available leave when the medical emergency is over. An employee may accrue no more than 40 hours of annual leave and 40 hours of sick leave in set-aside accounts. The leave in these set-aside accounts will be transferred to the employee's regular leave accounts either when the medical emergency ends or if the employee exhausts all donated annual leave but the employee’s adopted or foster child is still experiencing the medical emergency. Leave in set-aside accounts is not available for use by the employee until transferred to the employee's regular leave accounts.

Leave Sharing Facts Related to Adoption and Foster Care

· Donated annual leave may be used only for a medical emergency—e.g., any period of illness of the adopted or foster child that will last at least 24 work hours—and may not be used to care for a healthy child.

· There is no limit on the amount of donated annual leave a leave recipient may receive from the leave donor(s)/bank. However, any unused donated leave must be returned to the leave donor(s)/bank when the medical emergency ends.

· Donated annual leave may not be used for activities related to the placement of a child for adoption or foster care purposes, to bond with or care for a healthy child, to care for a child with a routine illness, or to take the child to medical, dental, or optical appointments.

· An employee who returns to work part-time and who uses donated leave part-time accrues leave in his or her regular annual and sick leave accounts for the time spent in work status and in his or her set-aside annual and sick leave accounts when using donated leave.

G. Leave Without Pay

An employee may request leave without pay (LWOP) to be absent from work for adoption or foster care purposes or to bond with or care for a newly-adopted child or newly-placed foster child. An employee may request LWOP without invoking FMLA, even if he or she has available paid leave. Supervisors/mangers should refer to their bureau/operating unit policy and the terms of an applicable collective bargaining agreement prior to approval. However, managers/ supervisors are encouraged to offer leave without pay for a longer period than what is provided for under the FMLA, to the maximum extent practicable for pregnancy and childbirth.

Effect of LWOP on Leave Accrual and other Benefits

Being in a leave without pay (or unpaid leave) status affects various employee entitlements, including the accrual of annual and sick leave. For example, when a full-time employee with an 80-hour biweekly tour of duty accumulates a total of 80 hours of nonpay status (either in one pay period, or over the course of several pay periods), the employee will not earn annual and sick leave in the pay period. If the employee again accumulates 80 hours of nonpay status, he or she will again not earn leave in the pay period in which that new 80-hour total is reached.

Note: Employees should contact their servicing human resources offices for more information regarding the impact of leave without pay on Federal benefits.

H. Part-time Employment and Job Sharing Arrangements

Manager/supervisors are encouraged to offer part-time schedules to employees who are adopting or fostering a child, to the maximum extent practicable, and are also encouraged to develop job-sharing opportunities in partnership with their unions and other stakeholders. When job sharing programs are planned for bureaus/operating units where employees are represented by a union, the bureau/operating unit is required by law to notify the union and bargain in good faith on any negotiable proposals the union submits.

Part-time

A part-time employee works between 16 and 32 hours each week (or between 32 and 64 hours a pay period) on a prearranged schedule, and is eligible for benefits. Part-time employees are eligible, on a prorated basis, for the same benefits as full-time employees: leave, retirement, and health and life insurance coverage.

Appendix A

Leave for Family Care: Differences between Sick Leave/Leave Transfer and FMLA

The following chart highlights the key differences for which an employee may provide care for purposes related to sick leave, leave transfer, and FMLA. The sick leave and leave transfer programs entitle an employee to care for anyone who meets the definition of family member. The definition of family member is shown in the chart below. The term family member is not used in the FMLA regulations. Under FMLA, an employee can only care for the individuals mentioned in the FMLA statute, as shown in the chart below.

An employee may care for the following individuals using these leave programs

Sick Leave/Leave Transfer

FMLA

An individual with any of the following relationships to the employee: Spouse, and parents thereof; Sons and daughters, and spouses thereof; Parents, and spouses thereof; Brothers and sisters, and spouses thereof; Grandparents and grandchildren, and spouses thereof; Domestic partner and parents thereof, including domestic partners of any individual in the 2nd to 5th bullets of this definition; or Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship

An individual with any of the following relationships to the employee: Spouse (same-sex or opposite-sex); Son or daughter (under the age of 18 or incapable of self-care because of a mental or physical disability); or Parent

Note: The definition of spouse for FMLA purposes is not as broad as the definition of family member for sick leave and VLTP purposes, and does not include unmarried domestic partners, unless they meet the requirements of being spouses in a common-law marriage in States where such marriages are recognized. Therefore, an employee cannot currently take FMLA leave to care for a same-sex or opposite-sex domestic partner who gives birth to a child or who has a serious health condition unless the domestic partner is a common law spouse.

However, the definition of spouse in OPM’s FMLA regulations is being amended in response to the Supreme Court’s June 26, 2013 decision in United States v. Windsor (133 S.Ct. 2675), that determined Section 3 of the Defense of Marriage Act (DOMA) to be unconstitutional. In OPM’s CPM 2013-14 entitled “Family and Medical Leave Act (FMLA) Coverage of Same-Sex Spouses” OPM explained that the ruling provides employees with same-sex spouses the same FMLA entitlements as those with opposite-sex spouses. Spouse now means a partner in any legally recognized marriage, regardless of the employee’s State of residency.

Appendix B

Summary of Leave Programs Available for Childbirth

The following provides a quick summary of the various leave programs available for childbirth purposes, broken out by programs used specifically because of pregnancy, childbirth, and recovery from childbirth, and programs used to bond with a healthy baby. 

Leave programs to care for the health needs of the baby and other workplace flexibilities are not shown here. An employee may be able to use some or all of these leave programs, depending on his or her leave balances, family association, and interests and needs of the individual employee.

A new employee who is pregnant and is not eligible for FMLA may:

For prenatal care and any period of incapacity during pregnancy, and/or recovery from childbirth (usually 6-8 weeks) (Note: incapacity lasting at least 24 work hours meets the requirements for use of donated annual leave under VLTP):

• Use sick leave entitlement
• Request advanced sick leave
• Request donated annual leave under VLTP -- may only be used if employee has exhausted her annual and sick leave (her available paid leave). Donated annual leave may be used to repay advanced sick or advanced annual leave taken during a medical emergency once the employee is approved for a leave sharing program
• Request annual leave
• Request advanced annual leave
• Request leave without pay outside of FMLA

To bond with her baby after her period of recovery from childbirth:

• Request annual leave
• Request advanced annual leave
• Request leave without pay outside of FMLA

An employee who is pregnant and is FMLA eligible may:

For prenatal care and any period of incapacity during pregnancy, and/or recovery from childbirth (usually 6-8 weeks) (Note: these purposes all meet the requirements for FMLA leave for a serious health condition, and, if an incapacity lasts at least 24 work hours, meet the requirements for use of donated annual leave under VLTP):

Use sick leave entitlement

• Request advanced sick leave (may require invocation of FMLA)
• Request donated annual leave under VLTP—may only be used if employee has exhausted her annual and sick leave (her available paid leave) and if period of incapacity lasts at least 24 work hours; (may require invocation of FMLA).

Donated annual leave may be used to repay advanced sick or advanced annual leave taken during the medical emergency once the employee is approved for a leave transfer sharing program

• Request annual leave (may require invocation of FMLA)
• Request advanced annual leave (may require invocation of FMLA)
• Invoke FMLA entitlement for up to 12 weeks—unpaid leave
  • May substitute sick leave for unpaid FMLA leave
  • May substitute advanced sick leave for unpaid FMLA leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May substitute donated annual leave for unpaid FMLA leave
  • May take on an intermittent basis
• Request leave without pay outside of FMLA

 

To bond with baby after period of recovery from childbirth:

• Request annual leave (may require invocation of FMLA)
• Request advanced annual leave (may require invocation of FMLA)
• Invoke FMLA entitlement for remainder of the 12 week period—unpaid leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May take on an intermittent basis, if approved
• Request leave without pay outside of FMLA

An employee who will care for a family member who is pregnant, during recovery from childbirth, and to bond with the baby may:

Accompany a family member to prenatal care appointments and care for her during any period of incapacity during pregnancy, and/or recovery from childbirth (usually 6-8 weeks) (Note that these purposes all meet the requirements for sick leave and FMLA leave for a serious health condition):

• Use sick leave entitlement—limited to 12 weeks per leave year to care for a family member with a serious health condition and a total of 12 weeks per leave year for all family care purposes
• Request advanced sick leave (may require invocation of FMLA if employee is FMLA eligible and caring for a wife, mother, or daughter under 18 or over 18 but incapable of self-care because of a mental or physical disability)
• Request donated annual leave under VLTP—may only be used if employee has exhausted his or her annual and sick leave (his or her available paid leave) (may require invocation of FMLA if employee is FMLA eligible and caring for a wife, mother, or daughter under 18 or over 18 but incapable of self-care because of a mental or physical disability). Donated annual leave may be used to repay advanced sick or advanced annual leave taken during the medical emergency once the employee is approved for the leave transfer program in question
• Request annual leave (may require invocation of FMLA if employee is FMLA eligible and caring for a wife, mother, or daughter under 18 or over 18 but incapable of self-care because of a mental or physical disability)
• Request advanced annual leave (may require invocation of FMLA if employee is FMLA eligible and caring for a wife, mother, or daughter under 18 or over 18 but incapable of self-care because of a mental or physical disability) 
• Invoke FMLA if employee is FMLA eligible and caring for a wife, mother, or daughter under 18 or over 18 but incapable of self-care because of a mental or physical disability for up to 12 weeks—unpaid leave
  • May substitute sick leave for unpaid FMLA leave
  • May substitute advanced sick leave for unpaid FMLA leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May substitute donated annual leave for unpaid FMLA leave
  • May take on an intermittent basis
• Request leave without pay outside of FMLA

To bond with baby after period of recovery from childbirth:

• Request annual leave (may require invocation of FMLA if employee is FMLA eligible and is the parent or standing in loco parentis) 
• Request advanced annual leave (may require invocation of FMLA if employee is FMLA eligible and is the parent or standing in loco parentis)
• Invoke FMLA entitlement to bond with baby for the remainder of the 12-week period if employee is FMLA eligible and is the parent or standing in loco parentis—unpaid leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May take on an intermittent basis, if approved
• Request leave without pay outside of FMLA

Appendix C

Summary of Leave Programs Available for Adoption or Foster Care

The following provides a quick summary of the various leave programs available for adoption and foster care purposes, broken out by programs used specifically prior to the placement of the child for adoption or foster care, and those to bond with the child post-placement. 

Leave programs to care for the health needs of the child and other workplace flexibilities are not shown here, but are discussed throughout the handbook text. 

An employee may be able to use some or all of these leave programs, depending on his or her leave balances, interests, and needs. FMLA leave is in addition to other paid time off available to an employee. For adoption purposes, this means that an employee can invoke his or her sick leave entitlement first. Then, after all activities necessary for the adoption to proceed are completed, he or she can invoke his or her FMLA entitlement to bond with the adopted child.

An employee Adopting a Child May:

Planning for adoption of child. For adoption-related purposes such as appointments with adoption agencies, social workers, and attorneys; court proceedings; required travel; and any other activities necessary for the adoption to proceed:

• Use sick leave entitlement
• Request advanced sick leave
• Request annual leave
• Request advanced annual leave
• Invoke FMLA entitlement for up to 12 weeks if employee is FMLA eligible - unpaid leave
  • May substitute sick leave for unpaid FMLA leave
  • May substitute advanced sick leave for unpaid FMLA leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May take on an intermittent basis, if approved
• Request leave without pay outside of FMLA

To bond with child after child is adopted:

• Use sick leave entitlement only if bonding period is ordered by a court or adoption agency
• Request advanced sick leave only if bonding period is ordered by a court or adoption agency
• Request annual leave
• Request advanced annual leave (may require invocation of FMLA if employee is FMLA eligible)
• Invoke FMLA entitlement for any remainder of the 12-week period to bond with child—unpaid leave
  • May substitute sick leave for unpaid FMLA leave only if a bonding period is ordered by a court or adoption agency
  • May substitute advanced sick leave for unpaid FMLA leave only if a bonding period is ordered by a court or adoption agency
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May take on an intermittent basis, if approved
• Request leave without pay outside of FMLA

An Employee Fostering a Child May:

Planning for the placement of a foster child or after child is placed for foster care:

• Request annual leave
• Request advanced annual leave
• Invoke 12-week FMLA entitlement for up to 12 weeks (if eligible for FMLA) - unpaid leave
  • May substitute annual leave for unpaid FMLA leave
  • May substitute advanced annual leave for unpaid FMLA leave
  • May take on an intermittent basis, if approved
• Request leave without pay outside of FMLA