The Family and Medical Leave Act requires that an employer must grant an eligible employee up to a total of 12 workweeks of unpaid leave during any 12-month period for several reasons, one being the placement with the employee of a son or daughter for adoption or foster care.

This document is adapted from the Department of Labor website.


 

TITLE II–LEAVE FOR CIVIL SERVICE EMPLOYEES

SEC. 201. LEAVE REQUIREMENT.

(a) CIVIL SERVICE EMPLOYEES.–

IN GENERAL.–Chapter 63 of title 5, United States Code, is amended by adding at the end the following new subchapter:

SUBCHAPTER V–FAMILY AND MEDICAL LEAVE

“6381. Definitions

For the purpose of this subchapter–

  1. “the term ’employee’ means any individual who–
    • ” is an ’employee’, as defined by section 6301(2), including any individual employed in a position referred to in clause (v) or (ix) of section 6301(2), but excluding any individual employed by the government of the District of Columbia and any individual employed on a temporary or intermittent basis; and
    • ” has completed at least 12 months of service as an employee (within the meaning of subparagraph (A));
  2. ” the term ‘health care provider’ means–
    • ” a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; and
    • ” any other person determined by the Director of the Office of Personnel Management to be capable of providing health care services;
  3. ” the term ‘parent’ means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter;
  4. ” the term ‘reduced leave schedule’ means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee;
  5. ” the term ‘serious health condition’ means an illness, injury, impairment, or physical or mental condition that involves–
    • ” inpatient care in a hospital, hospice, or residential medical care facility; or
    • ” continuing treatment by a health care provider; and
  6. the term ‘son or daughter’ means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is–
    • ” under 18 years of age; or
    • ” 18 years of age or older and incapable of self-care because of a mental or physical disability.

“6382. Leave requirement

(a)(1) Subject to section 6383, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following:

  • ” Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
  • Because of the placement of a son or daughter with the employee for adoption or foster care.
  • ” In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
  • ” Because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.

“(2) The entitlement to leave under subparagraph (A) or (B) of paragraph (1) based on the birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.

“(b)(1) Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employing agency of the employee agree otherwise. Subject to paragraph (2), subsection (e)(2), and section 6383(b)(5), leave under subparagraph (C) or (D) of subsection (a)(1) may be taken intermittently or on a reduced leave schedule when medically necessary. In the case of an employee who takes leave intermittently or on a reduced leave schedule pursuant to this paragraph, any hours of leave so taken by such employee shall be subtracted from the total amount of leave remaining available to such employee under subsection (a), for purposes of the 12-month period involved, on an hour-for-hour basis.

“(2) If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1); that is foreseeable based on planned medical treatment, the employing agency may require such employee to transfer temporarily to an available alternative position offered by the employing agency for which the employee is qualified and that–

  • “has equivalent pay and benefits; and
  • ” better accommodates recurring periods of leave than the regular employment position of the employee.
  • ” Except as provided in subsection (d), leave granted under subsection (a) shall be leave without pay.
  • ” An employee may elect to substitute for leave under subparagraph (A), (B), (C), or (D) of subsection (a)(1) any of the employee’s accrued or accumulated annual or sick leave under subchapter I for any part of the 12-week period of leave under such subsection, except that nothing in this subchapter shall require an employing agency to provide paid sick leave in any situation in which such employing agency would not normally provide any such paid leave.
  • “(1) In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) is foreseeable based on an expected birth or placement, the employee shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

“(2) In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) is foreseeable based on planned medical treatment, the employee–

  • ” shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employing agency, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate; and
  • ” shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

“6383. Certification

“(a) An employing agency may require that a request for leave under subparagraph (C) or (D) of section 6382(a)(1) be supported by certification issued by the health care provider of the employee or of the son, daughter, spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employing agency.

“(b) A certification provided under subsection (a) shall be sufficient if it states–

  1. ” the date on which the serious health condition commenced;
  2. ” the probable duration of the condition;
  3. ” the appropriate medical facts within the knowledge of the health care provider regarding the condition;
  4. “(A) for purposes of leave under section 6382(a)(1)(C), a statement that the employee is needed to care for the son, daughter, spouse, or parent, and an estimate of the amount of time that such employee is needed to care for such son, daughter, spouse, or parent; and “(B) for purposes of leave under section 6382(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee; and
  5. ” in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment.

“(c)(1) In any case in which the employing agency has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) of section 6382(a)(1), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a second health care provider designated or approved by the employing agency concerning any information certified under subsection (b) for such leave.

“(2) Any health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employing agency.

“(d)(1) In any case in which the second opinion described in subsection (c) differs from the original certification provided under subsection (a), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employing agency and the employee concerning the information certified under subsection (b).

“(2) The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employing agency and the employee.

“(e) The employing agency may require, at the expense of the agency, that the employee obtain subsequent recertifications on a reasonable basis.

“6384. Employment and benefits protection

” Any employee who takes leave under section 6382 for the intended purpose of the leave shall be entitled, upon return from such leave–

  1. ” to be restored by the employing agency to the position held by the employee when the leave commenced; or
  2. ” to be restored to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.

” The taking of leave under section 6382 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.

” Except as otherwise provided by or under law, nothing in this section shall be construed to entitle any restored employee to–

  1. ” the accrual of any employment benefits during any period of leave; or
  2. ” any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.

” As a condition to restoration under subsection (a) for an employee who takes leave under section 6382(a)(1)(D), the employing agency may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.

” Nothing in this section shall be construed to prohibit an employing agency from requiring an employee on leave under section 6382 to report periodically to the employing agency on the status and intention of the employee to return to work.

“6385. Prohibition of coercion

“(a) An employee shall not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other employee for the purpose of interfering with the exercise of any rights which such other employee may have under this subchapter.

“(b) For the purpose of this section–

  1. ” the term “intimidate, threaten, or coerce’ includes promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or taking or threatening to take any reprisal (such as deprivation of appointment, promotion, or compensation); and
  2. ” the term ’employee’ means any ’employee’, as defined by section 2105.

“6386. Health insurance

“An employee enrolled in a health benefits plan under chapter 89 who is placed in a leave status under section 6382 may elect to continue the health benefits enrollment of the employee while in such leave status and arrange to pay currently into the Employees Health Benefits Fund (described in section 8909), the appropriate employee contributions.

“6387. Regulations

“The Office of Personnel Management shall prescribe regulations necessary for the administration of this subchapter. The regulations prescribed under this subchapter shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of Labor to carry out title I of the Family and Medical Leave Act of 1993.”.

TABLE OF CONTENTS.–The table of contents for chapter 63 of title 5, United States Code, is amended by adding at the end the following:

  • “SUBCHAPTER V–FAMILY AND MEDICAL LEAVE
  • “6381. Definitions.
  • “6382. Leave requirement.
  • “6383. Certification.
  • “6384. Employment and benefits protection.
  • “6385. Prohibition of coercion.
  • “6386. Health insurance.
  • “6387. Regulations.”.

EMPLOYEES PAID FROM NONAPPROPRIATED FUNDS.–Section 2105(c)(1) of title 5, United States Code, is amended–

  1. by striking “or” at the end of subparagraph (C); and
  2. by adding at the end the following new subparagraph:

“(E) subchapter V of chapter 63, which shall be applied so as to construe references to benefit programs to refer to applicable programs for employees paid from nonappropriated funds; or”.