Article 29: Family Leave

Section 1—Leave Under the Family and Medical Leave Act of 1993 (FMLA)

A. An employee, who has completed at least twelve (12) months of Federal service and is not employed on an intermittent basis or a temporary appointment with a time limitation of one year or less, has the right, as established by the Family and Medical Leave Act and implementing regulations (5 C.F.R., Part 630, Subpart L), to twelve (12) administrative workweeks of unpaid leave during any twelve (12) month period for the following purposes:

1. The birth of a son or daughter of the employee and the care of such son or daughter;

2. The placement of a son or daughter with the employee for adoption or foster care;

3. The care of a spouse, son, daughter, or parent of the employee who has a serious health condition (as defined in 5 C.F.R. § 630.1202); or

4. A serious health condition (as defined in 5 C.F.R. § 630.1202) of the employee that makes the employee unable to perform one or more of the essential functions of their position.

An employee may use leave under the FMLA intermittently or on a reduced leave schedule in accordance with applicable laws, rules and regulations.

B. Consistent with applicable laws, rules and regulations, an employee may elect to substitute, for any unpaid leave under the FMLA, any of the following forms of paid leave: accrued or accumulated annual and/or sick leave, advanced annual and/or sick leave, and/or annual leave made available under the Voluntary Leave Transfer Program or the Leave Sharing Program.  Compensatory time and credit hours may not be substituted for unpaid leave; however, an employee may use earned compensatory time off and credit hours in addition to the period of FMLA leave.  The Employer may not deny an employee's right to substitute paid leave for any or all of the period of unpaid leave taken under the FMLA.  The Employer may not require an employee to substitute paid leave for any or all of the period of unpaid leave taken under the FMLA.

C. An employee who takes leave under the FMLA is entitled, upon return to the SEC, to be returned to the same position held by the employee when the FMLA leave commenced or an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.

D. An employee who takes leave under the FMLA is entitled to maintain health benefits coverage. An employee on unpaid FMLA leave may pay the employee share of the premiums on a current basis or pay upon return to work.

E. An employee must provide notice of their intent to take leave under the FMLA to their immediate supervisor at least thirty (30) calendar days before leave is to begin.  If the need for the leave is not known thirty (30) calendar days before leave is to begin, the employee must provide notice as soon as possible after they learn of the need.  If the need for leave is not foreseeable—e.g., a medical emergency or the unexpected availability of a child for adoption or foster care, and the employee cannot provide thirty (30) calendar days' notice of their need for leave, the employee shall provide notice within a reasonable period of time appropriate to the circumstances involved.  If necessary, notice may be given by an employee's personal representative (e.g., a family member or other responsible party).  If the need for leave is not foreseeable and the employee is unable, due to circumstances beyond their control, to provide notice of their need for leave, the leave may not be delayed or denied.

F. The Employer may require that an employee's request for leave to be taken to care for an employee's spouse, son, daughter, or parent who has a serious health condition or for the serious health condition of the employee be supported by written medical certification issued by the health care provider of the spouse, son, daughter or parent of the employee or the health care provider of the employee as specified in 5 C.F.R. § 630.1208.  If written medical certification is requested, an employee requesting FMLA may submit the U.S. Department of Labor (DOL) Form WH-380, Certification of Physician or Practitioner, to medically substantiate the serious health condition promptly to their immediate supervisor.  If written medical certification is requested, the employee will provide the written medical certification no later than fifteen (15) calendar days after the date the Employer requests such certification in accordance with 5 C.F.R. § 630.1208(h). If this is not possible, despite the employee's diligent, good faith efforts, medical certification will be provided within a reasonable period, but no later than thirty (30) calendar days after the Employer requests such medical certification.  The information on the medical certification shall relate only to the serious health condition for which the current need for family and medical leave exists.  The agency may not require any personal or confidential information in the written medical certification other than that required by 5 C.F.R. § 630.1208(b).  If an employee submits a completed medical certification signed by the health care provider, the agency may not request new information from the health care provider.  However, a health care provider representing the agency, including a health care provider employed by the agency or under administrative oversight of the agency, may contact the health care provider who completed the medical certification, with the employee's permission, for purposes of clarifying the medical certification.

Also, in accordance with 5 C.F.R. § 630.1208:

1. If an employee submits a completed medical certification, signed by the health care provider, the Employer may not request new information from the health care provider.  However, a health care provider representing the agency may contact the health care provider who completed the medical certification, with the employee's permission, for purposes of clarifying the medical certification.  If the agency doubts the validity of the original certification provided, the agency may require, at the agency's expense, that the employee obtain the opinion of a second health care provider designated or approved by the agency concerning the information contained in the original certification.  Any health care provider designated or approved by the agency shall not be employed by the agency or be under the administrative oversight of the agency.  If the opinion of the second health care provider differs from the original certification provided under 5 C.F.R. § 630.1208(a), the agency may require, at the agency's expense, that the employee obtain the opinion of a third health care provider designated or approved jointly by the agency and the employee concerning the information certified under 5 C.F.R. § 630.1208(b).  The opinion of the third health care provider shall be binding on the agency and the employee.

2. If the employee is unable to provide the requested medical certification before leave begins, or if the Employer questions the validity of the original certification provided by the employee and the medical treatment requires the leave to begin, the Employer shall grant provisional leave pending final written medical certification.

G. The Employer will treat as confidential any medical information given by an employee in support of a request for leave under the FMLA. The Employer may only disclose such information in accordance with the Privacy Act, Health Insurance Portability and Accountability Act of 1996 (HIPAA), and other applicable laws, rules and regulations.

H. The Employer will inform employees of their entitlements and responsibilities under the FMLA at least annually.

Section 2—Sick Leave for Family Care or Bereavement Purposes

A. In accordance with applicable laws, rules and regulations, the Employer will grant accrued sick leave to an employee when the employee:

1) Provides care for a family member who is incapacitated by a medical or mental condition or attends to a family member receiving medical, dental, or optical examination or treatment;

2) Provides care for a family member with a serious health condition;

3) Makes arrangements necessitated by the death of a family member or attends the funeral of a family member;

4) Must be absent from duty for purposes related to the adoption of a child, including appointments with adoption agencies, social workers, and attorneys; court proceedings; required travel; and any other activities necessary to allow the adoption to proceed.

B. For purposes of this Article, family member is defined as:

  • The employee's spouse, and parents thereof;
  • The employee's children, including adopted children, and spouses thereof;
  • The employee's parents;
  • The employee's brothers and sisters, and spouses thereof; and
  • Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

C. For purposes of this Article, a serious health condition shall have the meaning set forth in 5 C.F.R. § 630.1202.

D. An employee may use up to one hundred four (104) hours of sick leave each leave year for the purposes described in Section 2.A. paragraphs (1) and (3) above. An employee may use up to 480 hours of sick leave each leave year for the purposes described in Section 2. A. paragraph (2) above. This paragraph will be applied proportionately in the case of a part-time employee.

E. An employee may use up to four hundred eighty (480) hours of sick leave each leave year for the purposes described in Section 2. A. paragraph (2) above.  If in the same leave year the employee previously has used any portion of the one hundred four (104) hours of sick leave permitted for the purposes described in Section 2.A. paragraphs (1) and (3) above, that amount will be subtracted from the four hundred eighty (480) hour entitlement. If in a leave year the employee has already used four hundred eighty (480) hours of sick leave for the purposes described above in Section 2.A. paragraph (2), they cannot use an additional one hundred four (104) hours of sick leave in the same leave year for the purposes described in Section 2.A. paragraphs (1) and (3) above. An employee is entitled to a total of four hundred eighty (480) hours of sick leave each year for all family care purposes, including sick leave substituted for unpaid leave under the FMLA.

F. The Employer may require that an employee's request for leave to be taken to care for an employee's spouse, son, daughter, or parent who has a serious health condition be supported by written medical certification issued by the health care provider of the spouse, son, daughter or parent of the employee as specified in 5 C.F.R. § 630.1207. If written medical certification is requested, an employee requesting FMLA may submit the U.S. Department of Labor (DOL) Form WH-380, Certification of Physician or Practitioner, to medically substantiate the serious health condition promptly to their immediate supervisor. If written medical certification is requested, the employee will provide the written medical certification no later than fifteen (15) calendar days after the date the Employer requests such certification in accordance with 5 C.F.R. § 630.1208(h). If this is not possible, despite the employee's diligent, good faith efforts, medical certification will be provided within a reasonable period, but no later than thirty (30) days after the Employer requests such medical certification. The information on the medical certification shall relate only to the serious health condition for which the current need for family and medical leave exists. The agency may not require any personal or confidential information in the written medical certification other than that required by 5 C.F.R. § 630.1208(b). If an employee submits a completed medical certification signed by the health care provider, the agency may not request new information from the health care provider. However, a health care provider representing the agency, including a health care provider employed by the agency or under administrative oversight of the agency, may contact the health care provider who completed the medical certification, with the employee's permission, for purposes of clarifying the medical certification.

G. When an employee's sick leave balance has been exhausted, the Employer will consider and may approve a written request for advanced sick leave when required by the exigencies of the situation for a serious disability or ailment of a family member or for purposes related to the adoption of a child and when all of the following conditions are met:

  • The employee has provided acceptable documentation of the need for sick leave;
  • Repayment can reasonably be expected;
  • The employee's request is for a minimum of five (5) business days and does not exceed thirty (30) business days;
  • There is no reason to believe the employee will not return to work and continue employment after having used the leave; and
  • The employee is not currently under a leave warning or leave restriction.

Section 3—Leave for Maternity Reasons

A. Pregnancy will be treated like any other medical condition. The Employer will make a reasonable effort to accommodate a pregnant employee's request for a modification of duties or a temporary assignment when the request is supported by acceptable medical evidence.

B. Leave for maternity reasons may be a combination of sick leave, annual leave, leave without pay, credit hours, and compensatory time earned consistent with applicable laws, rules and regulations.

C. An employee who invokes the FMLA under this Section will be entitled to take up to twelve (12) administrative workweeks of unpaid leave during any time up until the child's first (lst) birthday and in accordance with Section 1 above.

D. The Employer recognizes that an employee may request to take leave for maternity reasons beyond any entitlement, and the Employer will give fair and equitable consideration to such requests.

Section 4—Leave for Paternity Reasons

A. An employee who desires to take leave for paternity reasons may invoke the FMLA. An employee who invokes the FMLA under this Section will be entitled to take up to twelve (12) administrative workweeks of unpaid leave during any time up until the child's first (1st) birthday and in accordance with Section 1 above.

B. Leave for paternity reasons may be a combination of sick leave, annual leave, leave without pay, credit hours, and compensatory time earned consistent with applicable laws, rules and regulations.

C. The Employer recognizes that an employee may request to take leave for paternity reasons beyond any entitlement, and the Employer will give fair and equitable consideration to such requests.

Section 5—Other Family and Medical Leave

A. Absent a severe workload problem, the Employer will approve written requests by an employee to use paid or unpaid leave of up to twenty-four (24) hours per year, in accordance with law, Presidential Memorandum to Agency Heads (dated April 11, 1997) and OPM guidance:

1. To participate in school activities directly related to the educational advancement of a child (e.g., parent-teacher conferences, field trips or other related functions);

2. To accompany a child to routine medical or dental appointments, exams and vaccinations; or

3. To accompany an elderly relative to routine medical or dental appointments, or other professional services related to the care of the relative, such as providing for housing, meals, telephones, banking services and similar activities.

B. The Employer will approve an employee's written request for such leave unless the employee's absence would have an adverse effect on staffing, workload or mission requirements.