Fedweek

In the wake of the recent release of interim regulations to carry out the upcoming paid parental leave authority that will apply to most federal employees, some employees have been asking about the prospects of flexibility in those rules. However, the OPM notice seems to rule out that possibility, saying the policies are set by law.

The new benefit will allow substituting paid leave for the unpaid leave available for parental purposes under the Family and Medical Leave Act, starting with births, adoptions or foster placements occurring on October 1 or later. Some employees who have scheduled placements—or who anticipate births—to occur just before that date have been questioning, for example, whether there is a way under the rules for them to obtain paid leave.

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The OPM notice of rule-making, though, says that the law authorizing paid leave specifies that it is to be available “ ‘in connection with the birth or placement involved’ (5 U.S.C. 6382(d)(2)(B)(i))—that is, after the occurrence of the birth or placement involved—which results in the employee assuming a ‘parental’ role with respect to the newly born or placed child.”

“The entitlement to paid parental leave is triggered by the actual occurrence of a birth or placement, which results in the employee having a parental role. Thus, paid parental leave must only be used after the birth or placement has occurred. Paid parental leave continues to be available only as long as the employee has a continuing parental role with respect to the newly born or placed child,” it says.

It adds that employee may take unpaid FMLA leave before the birth or placement to cover certain activities related to the birth or placement but cannot substitute paid parental leave for those pre-birth/placement FMLA unpaid leave periods. Further, an employee “could substitute annual leave or sick leave for pre-birth/placement FMLA unpaid leave periods (e.g., sick leave for prenatal care up to the point of birth or in connection with preplacement activities necessary to allow an adoption to proceed),” it says.

The rules add that FLMA unpaid leave and therefore paid leave to be substituted for it, “generally refers to leave covering periods when the parent-employee is in the home with the child or is otherwise involved in spending time with the child (bonding). Such FMLA unpaid leave may also be used to cover short periods away from the child’s physical presence to support the care of the child (e.g., buying baby food, diapers, or other supplies).

“However, leave would not be appropriate if an employee is engaged in activities not directly connected to care of the child or if the employee is outside the local geographic area where the child is located. For example, it is possible that a biological father may not reside in the same home as the birth mother and the new child. The father could receive FMLA unpaid leave and associated paid parental leave only for the care activities.”

Further, the leave will be allowed only “as long as an employee has a continuing parental role in connection with the child whose birth or placement was the basis for the leave entitlement,” an accompanying fact sheet says.

The rules also emphasize that to be eligible to use paid leave even for births or adoptions occurring after October 1, the employee must be eligible for FMLA leave in the first place. That intermittent employees and temporary employees with appointments of less than a year, and meanwhile requires that permanent employees have not for the government for at least 12 months, which can have been “performed at any time in the past.”

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They also note that with the exception of TSA screeners, employees outside the Title 5 body of civil service law are not eligible. Legislation pending in Congress would include them, however, and the VA has said it will extend the benefit to its Title 38 medical personnel regardless of whether the law is changed.

Rules Spell Out Details of Upcoming Paid Parental Leave Entitlement

Rules Issued on Preserving ‘Use or Lose’ Leave

OPM to Ease Some Leave Use Restrictions but Others Will Remain (June 23)

Looking Ahead to Cashing in Annual Leave

2020 Federal Employees Handbook