UNCLASSIFIED (U)

 

3 FAM 3530

THE FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA) AND PAID PARENTAL LEAVE

(CT:PER-1016;   09-17-2020)
 (Office of Origin:  GTM/ER/WLD)

3 FAM 3531  general information

3 FAM 3531.1  Authorities

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

The following authorities apply to the Family and Medical Leave Act ("FMLA" or the "Act"):

(1)  5 U.S.C. 6381 through 5 U.S.C. 6387; and

(2)  5 CFR Subpart L, 5 CFR Subpart Q, and 5 CFR 890.502.

3 FAM 3531.2  Purpose

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

Employees are entitled to family and medical leave of up to a total of 12 administrative workweeks of unpaid leave for certain specified family and medical needs, and up to a total of 26 administrative workweeks of unpaid leave in connection with care of a covered servicemember, during any 12-month period.  In addition, employees may substitute paid parental leave for certain periods of unpaid leave under the FMLA, subject to the provisions set forth in 3 FAM 3535.  

3 FAM 3531.3  Applicability

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. The provisions in this subchapter apply to the following employees in accordance with the Family and Medical Leave Act (FMLA):

(1)  All full-time and part-time employees serving under permanent appointments who have completed at least 12 months of qualifying Federal Government service (not required to be consecutive or at the same agency);

(2)  Employees serving under temporary appointments of more than 1 year provided they have completed at least 12 months of qualifying Federal Government service, (not required to be consecutive or at the same agency); and

(3)  Employees serving on family member appointments who have completed at least 12 months of qualifying Federal Government service, (not required to be consecutive or at the same agency).

b. Locally employed staff, all employees on an intermittent work schedule (i.e., employees who do not have a regularly scheduled tour of duty during the administrative work week), contractor staff, and temporary employees employed abroad are not covered by this subchapter.

c.  Time spent on a temporary appointment of 1 year or less is not creditable towards the 12 months of service required for eligibility under the FMLA.

d.  Supervisors may grant leave without pay (LWOP) in accordance with 3 FAM 3510 to an employee who does not possess sufficient qualifying Federal Government service to be eligible for FMLA.

3 FAM 3531.4  Responsibilities

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Bureau executive directors are responsible for:

(1)  Advising managers, supervisors, and employees assigned to their bureau, both domestically and abroad, on the provisions of the FMLA, and ensuring that supervisors and managers are provided with training and/or guidance, as needed, on the statutory entitlements and regulatory requirements of the Act; and

(2)  Providing oversight of applications for FMLA leave to determine that requests meet all requirements; employees have not exhausted their entitlement within the previous 12 months; and appropriate documentation has been submitted;

(3)  Approving or disapproving FMLA applications accordingly, including requests for paid parental leave in connection with a birth or placement as provided in 3 FAM 3535, and returning these to the originating office; and

(4) Determining whether an employee who fails to complete the 12-week work obligation following a period of paid parental leave is required to reimburse the Department as described in 3 FAM 3535.5 and 3 FAM 3535.6

b. Supervisors and managers are responsible for:

(1)  Providing employees with available information produced by HR on FMLA;

(2)  Advising employees of their right to invoke the FMLA when the employee informs the supervisor that s/he is experiencing family and/or medical needs identified in 3 FAM 3532;

(3)  Directing employees invoking their entitlement to the FMLA to complete and submit all required forms relevant to their FMLA request, as described in 3 FAM 3536.2, including requests for paid parental leave in connection with a birth or placement as provided in 3 FAM 3535;

(4)  Signing and submitting all required forms relevant to an employee’s FMLA request (as described in 3 FAM 3536.2) to the bureau executive office or post HR (if overseas) for review and approval;

(5)  Arranging an intermittent or reduced leave schedule for an employee where medically necessary for leave taken for a serious health condition or for care for a covered servicemember under 3 FAM 3532.1, subparagraphs a(3), a(4), or 3 FAM 3532.2;

(6)  Arranging an intermittent or reduced leave schedule for an employee  for leave taken for a qualifying exigency under 3 FAM 3532.1, subparagraph a(5);

(7)  Arranging an intermittent or reduced leave schedule for an employee based on a mutual agreement between the Department and employee and to the maximum extent practicable for leave taken for a birth or placement under 3 FAM 3532.1, subparagraphs a(1) or a(2);

(8)  Providing written notice to employees who are subject to a medical evaluation program, advising them of the requirement for medical certification before returning to duty following an absence due to a serious health condition (3 FAM 3537.1, paragraph b); and

(9) If notified by an employee that he or she will not complete the 12-week work obligation following a period of paid parental leave, notifying the bureau executive office, which will determine whether a reimbursement is required under 3 FAM 3535.5 and 3 FAM 3535.6.

c. Post HR staff are responsible for:

(1) Advising managers, supervisors, and employees assigned to their post on the provisions of the FMLA;

(2) Compiling, reviewing for completeness, and submitting all required forms relevant to an employee’s FMLA request, including requests for paid parental leave in connection with a birth or placement as provided in 3 FAM 3535, to the bureau executive office for review;

(3) When notified by an employee that he or she will not complete the 12-week work obligation following a period of paid parental leave because of a circumstance listed in 3 FAM 3535.5, subparagraph c(2), coordinating with the employee, supervisor, and bureau executive office to ensure that the bureau executive office receives any documentation relevant to determining whether reimbursement is required.

d.  Employees are responsible for:

(1)  Keeping abreast of, and seeking guidance on, as necessary, policy related to the FMLA and sick and annual leave;

(2)  Providing notice to the supervisor 30 calendar days before the date that the unpaid or paid absence pursuant to the Act is to begin or as soon as is practicable, as detailed in 3 FAM 3536.1;

(3)  Completing, signing, and submitting  all required forms relevant to their FMLA request, as described in 3 FAM 3536.2;

(4)  Consulting with their supervisors regarding scheduling FMLA requests relating to an intermittent or reduced leave schedule for a birth or placement under 3 FAM 3532, subparagraphs a(1) or a(2); and

(5)  If they will not complete the 12-week work obligation following a period of paid parental leave, notifying their supervisor and bureau executive office of their situation.  The employee must also provide sufficient information for the relevant bureau executive director to determine whether a reimbursement is required consistent with 3 FAM 3535.5 and 3 FAM 3535.6.

e.  Procedures for invoking the FMLA and requesting paid parental leave are detailed in 3 FAM 3536.2.

3 FAM 3531.5  Definitions

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

Accrued leave has the meaning given that term in 5 CFR 630.201.

Accumulated leave has the meaning given that term in 5 CFR 630.201.

Administrative workweek has the meaning given that term in 3 FAM 2331.3.

Adoption refers to a legal process in which an individual becomes the legal parent of another's child.  The source of an adopted child—e.g., whether from a licensed placement agency or otherwise—is not a factor in determining eligibility for leave under this subchapter.

Birth means the delivery of a living child.  When the term “birth” is used in connection with the use of leave under this subchapter before birth, it refers to an anticipated birth.

Covered active duty or call to covered active duty status means -

(1) In the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty); and

(2) In the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty (or notification of an impending call or order to active duty) in support of a contingency operation pursuant to any of the following sections of title 10, United States Code, or any other provision of law during a war or during a national emergency declared by the President or Congress:

(i) Section 688, which authorizes ordering to active duty retired members of the Regular Armed Forces and members of the Retired Reserve retired after 20 years for length of service, and members of the Fleet Reserve or Fleet Marine Corps Reserve;

(ii) Section 12301(a), which authorizes ordering all reserve component members to active duty in the case of war or national emergency declared by Congress, or when otherwise authorized by law;

(iii) Section 12302, which authorizes ordering any unit or unassigned member of the Ready Reserve to active duty in time of national emergency declared by the President after January 1, 1953, or when otherwise authorized by law;

(iv) Section 12304, which authorizes ordering any unit or unassigned member of the Selected Reserve and certain members of the Individual Ready Reserve to active duty;

(v) Section 12305, which authorizes the suspension of promotion, retirement, or separation rules for certain Reserve components;

(vi) Section 12406, which authorizes calling the National Guard into Federal service in certain circumstances; or

(vii) Chapter 15, which authorizes calling the National Guard and State militia into Federal service in the case of insurrections and national emergencies.

Covered military member means the employee's spouse, son, daughter, or parent on covered active duty or call to covered active duty status.

Essential functions means the fundamental job duties of the employee's position, as defined in 29 CFR 1630.2(n).  An employee who must be absent from work to receive medical treatment for a serious health condition is considered to be unable to perform the essential functions of the position during the absence for treatment.

Family and medical leave (or FMLA leave) means an employee's entitlement to 12 administrative workweeks (or 26 administrative workweeks in the case of leave under 3 FAM 3532.2 of unpaid leave for certain family and medical needs, as prescribed under sections 6381 through 6387 of title 5, United States Code.

Foster care means 24-hour care for children in substitution for, and away from, their parents or guardian.  Such placement is made by or with the agreement of the State as a result of a voluntary agreement by the parent or guardian that the child be removed from the home, or pursuant to a judicial determination of the necessity for foster care, and involves agreement between the State and foster family to take the child.  Although foster care may be with relatives of the child, State action is involved in the removal of the child from parental custody.

Health care provider means -

(1) A licensed Doctor of Medicine or Doctor of Osteopathy or a physician who is serving on active duty in the uniformed services and is designated by the uniformed service to conduct examinations under 5 CFR Subpart L;

(2) Any health care provider recognized by the Federal Employees Health Benefits Program or who is licensed or certified under Federal or State law to provide the service in question;

(3) A health care provider as defined in paragraph (2) of this definition who practices in a country other than the United States, who is authorized to practice in accordance with the laws of that country, and who is performing within the scope of his or her practice as defined under such law;

(4) A Christian Science practitioner listed with the First Church of Christ, Scientist, in Boston, Massachusetts; or

(5) A Native American, including an Eskimo, Aleut, and Native Hawaiian, who is recognized as a traditional healing practitioner by native traditional religious leaders who practices traditional healing methods as believed, expressed, and exercised in Indian religions of the American Indian, Eskimo, Aleut, and Native Hawaiians, consistent with Public Law 95-314, August 11, 1978 (92 Stat. 469), as amended by Public Law 103-344, October 6, 1994 (108 Stat. 3125).

In loco parentis refers to the situation of an individual who has day-to-day 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.

Incapacity means the inability to work, attend school, or perform other regular daily activities because of a serious health condition or treatment for or recovery from a serious health condition.

Intermittent leave or leave taken intermittently means leave taken in separate blocks of time, rather than for one continuous period of time, and may include leave periods of one quarter hour to several weeks.

Leave without pay means an approved absence from duty in a nonpay status during an employee’s scheduled tour of duty.  See 3 FAM 3510 for details.

Parent means a biological, adoptive, step, or foster father or mother, or any individual who stands or stood in loco parentis to an employee meeting the definition of son or daughter below.  This term does not include parents “in law.”

Placement means a new placement of a son or daughter with an employee for adoption or foster care.  For example, this excludes the adoption of a stepchild or a foster child who has already been a member of the employee’s household and has an existing parent-child relationship with an adopting parent.  When the term “placement” is used in connection with the use of leave under this subchapter before placement has occurred, it refers to a planned or anticipated placement.

Reduced leave schedule means a daily or weekly work schedule under which the usual number of hours actually worked during the employee’s scheduled tour of duty are reduced as a result of the increased use of leave.

Scheduled tour of duty means the regular work hours in an established full-time or part-time work schedule during which an employee is charged leave or time off when absent.

Serious health condition is defined in 5 CFR 630.1202 as follows:

(1) An illness, injury, impairment, or physical or mental condition that involves—

(i) Inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or

(ii) Continuing treatment by a health care provider that includes (but is not limited to) examinations to determine if there is a serious health condition and evaluations of such conditions if the examinations or evaluations determine that a serious health condition exists. Continuing treatment by a health care provider may include one or more of the following—

(A) A period of incapacity of more than 3 consecutive calendar days, including any subsequent treatment or period of incapacity relating to the same condition, that also involves—

(1) Treatment two or more times by a health care provider, by a health care provider under the direct supervision of the affected individual's health care provider, or by a provider of health care services under orders of, or on referral by, a health care provider; or

(2) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider (e.g., a course of prescription medication or therapy requiring special equipment to resolve or alleviate the health condition).

(B) Any period of incapacity due to pregnancy or childbirth, or for prenatal care, even if the affected individual does not receive active 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.

(C) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition that—

(1) Requires periodic visits for treatment by a health care provider or by a health care provider under the direct supervision of the affected individual's health care provider,

(2) Continues over an extended period of time (including recurring episodes of a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.). The condition is covered even if the affected individual does not receive active 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.

(D) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective. The affected individual must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider (e.g., Alzheimer's, severe stroke, or terminal stages of a disease).

(E) Any period of absence to receive multiple treatments (including any period of recovery) by a health care provider or by a provider of health care services under orders of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury or for a condition that would likely result in a period of incapacity or more than 3 consecutive calendar days in the absence of medical intervention or treatment (e.g., chemotherapy/radiation for cancer, physical therapy for severe arthritis, dialysis for kidney disease).

(2) (Serious health condition does not include routine physical, eye, or dental examinations; a regimen of continuing treatment that includes the taking of over-the-counter medications, bed-rest, exercise, and other similar activities that can be initiated without a visit to the health care provider; a condition for which cosmetic treatments are administered, unless inpatient hospital care is required or unless complications develop; or an absence because of an employee's use of an illegal substance, unless the employee is receiving treatment for substance abuse by a health care provider or by a provider of health care services on referral by a health care provider. Ordinarily, unless complications arise, the common cold, the flu, earaches, upset stomach, minor ulcers, headaches (other than migraines), routine dental or orthodontia problems, and periodontal disease are not serious health conditions. Allergies, restorative dental or plastic surgery after an injury, removal of cancerous growth, or mental illness resulting from stress may be serious health conditions only if such conditions require inpatient care or continuing treatment by a health care provider.)

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” (ADL's) or “instrumental activities of daily living” (IADL's). 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 the 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).

Son or daughter on covered active duty or call to covered active duty means the employee's biological, adopted, or foster child, stepchild, legal ward, or a child for whom the employee stood in loco parentis, who is on covered active duty or call to covered active duty status, and who is of any age.

Spouse, as defined in the statute, means a husband or wife. For purposes of this definition, husband or wife refers to the other person with whom an individual entered into marriage as defined or recognized under State law for purposes of marriage in the State where the marriage was entered into or, in the case of a marriage entered into outside of any State, if the marriage is valid in the place where entered into and could have been entered into in at least one State. This definition includes an individual in a same-sex or common law marriage that either:

(1) Was entered into in a State that recognizes such marriages, or

(2) If entered into outside of any State, is valid in the place where entered into and could have been entered into in at least one State.

State means any State of the United States or the District of Columbia or any Territory or possession of the United States.

3 FAM 3532  leave entitlement

3 FAM 3532.1  Births, Placements, Serious Health Conditions, Qualifying Exigencies

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. An employee is entitled to a total of up to 12 administrative workweeks of unpaid leave during any 12-month period for one or more of the following reasons:

(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 and the care of such son or daughter;

(3)  The care of a spouse, son or daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition;

(4)  A serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of his or her position; or

(5)  A qualifying (military) exigency as outlined in 3 FAM 3533.

b. An employee may take only the amount of family and medical leave that is necessary to manage the circumstances that prompted the need for leave as described above, up to the 12-week limitation.

c. The 12-month period referred to in paragraph (a) of this section begins on the date an employee first takes leave for a family or medical need specified in paragraph (a) of this section, and continues for 12 months.  Once the entitlement is used, an employee is not entitled to 12 additional workweeks of leave until the previous 12-month period ends and an event or situation occurs that entitles the employee to another period of family or medical leave (this may include a continuation of a previous situation or circumstance).

d. The entitlement to leave for a birth or placement under subparagraphs a(1) and a(2) of this section expires at the end of the 12-month period beginning on the date of birth or placement.  Leave for a birth or placement must be concluded within this 12-month period.

e. Leave taken under subparagraphs a(1) and a(2) of this section may begin prior to the actual date of birth or placement for adoption or foster care.

(1) Use of leave for a birth under subparagraph a(1) before the date of birth is limited to situations in which an employee is using the leave:

(A) (Birth parent employee) Because of the employee’s serious health condition related to the anticipated event of the employee giving birth to a son or daughter; or

(B) (Non-birth parent employee) In order to care for the birth mother of the employee’s expected son or daughter in connection with the birth mother’s serious health condition related to pregnancy.

(2) (Adoption or foster care) Use of leave for placement under subparagraph a(2) before the date of placement is limited to situations in which the employee must be absent to engage in activities necessary to allow an anticipated adoption or a foster care arrangement to proceed.

f.  Family and medical leave under this subchapter is available to full-time and part-time employees.  The entitlement to a total of 12 administrative workweeks of FMLA leave is converted to hours, as described in subparagraphs (1) and (2) below.  FMLA leave allows an employee to be absent during the employee’s scheduled tour of duty established for leave charging purposes.  Such leave is not applied to days designated as Federal holidays and other nonworkdays when the employee would be excused from duty.

(1) For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours.

(2) For a part-time employee, the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee’s scheduled tour of duty over a biweekly pay period.  For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours.

g. If there is a change in an employee’s scheduled tour of duty during any 12-month period that commenced due to use of family and medical leave, and the employee has not used the full allotment of family and medical leave during such 12-month period, the remaining balance of family and medical leave is recalculated based on the change in the number of average hours in the employee’s scheduled tour of duty.  For example, if a full-time employee has a balance of 120 hours of unused family and medical leave for a 12-month period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours (Since the old schedule was 80 hours biweekly or an average of 40 hours weekly, the new part-time tour is half of the former full-time tour.  40/80 times 120 equals 60.)

h. Leave taken because of the birth of a son or daughter of the employee, as described in subparagraph a(1) of this section, includes leave necessary for an employee who is the birth mother to recover from giving birth, or for an employee who is the non-birth parent to care for the birth mother during her recovery period, even if the employee is not involved in caring for the son or daughter during portions of that recovery period.

i.  Leave taken in order to care for a newly born or placed son or daughter, as described in subparagraphs a(1) and a(2) of this section, 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).  It may include short periods away from the child’s physical presence to purchase supplies needed to care for the child (e.g., buying baby food, diapers, or other supplies).  Leave based on the ‘‘care’’ language in subparagraphs a(1) and a(2) of this section would not be appropriate if an employee is not engaged in activities directly connected to care of the child— for example, if the employee is physically located outside the local geographic area where the child is located.

(1) Example 1:  Foreign Service non-birth parent employee is physically located at post.  Birth mother was medevac’d and gave birth in the United States.  The employee may not use FMLA leave for any time spent at post or traveling to the medevac location.  FMLA leave may only be used once the employee is reunited with the mother and child in the United States and is serving in a parental role and/or caring for the birth mother during her recovery period.

(2) Example 2:  Non-birth parent employee does not live in the same household as birth mother and child.  The employee may only use FMLA leave for those periods spent caring for the child as described above and is entitled to FMLA leave for such periods, regardless of the non-birth parent’s relationship status with the birth parent. 

j.  Each eligible employee has a separate entitlement to FMLA leave.  In situations where two eligible employees are parents of the same newly born or placed child, each employee would have a separate FMLA leave entitlement based on the birth/placement event.  Likewise, each employee-parent would have a separate entitlement to substitute paid parental leave for FMLA unpaid leave under 3 FAM 3535.

k. Additional details, including details on the leave entitlement for employees on uncommon tours of duty, are found in 5 CFR 630.1203.

3 FAM 3532.2  Leave to Care for a Covered Servicemember

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. For family and medical leave granted in connection with care of a covered servicemember under 5 U.S.C. 6382(a)(3) and (4), the leave entitlement is 26 administrative workweeks in a single 12-month period.  This leave is available to an employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember and who provides care for the covered servicemember.   The definitions in 5 U.S.C. 6381(8) through (12) are applicable to leave under this section.

b. The entitlement of 26 administrative workweeks of leave described in paragraph (a) of this section is converted to hours, consistent with the methodologies described in 3 FAM 3532.1, paragraph (f).  Any recalculation of the unused leave entitlement due to a change in the employee’s scheduled tour of duty is made in a manner consistent with the methodology described in 3 FAM 3532.1, paragraph (g).

c. If an employee receives both leave under this section and leave under 3 FAM 3532.1 during the single 12-month period, the combined amount of leave in that period may not exceed 26 administrative workweeks. 

(1)  With respect to the single 12-month period, an employee who uses more than 14 weeks of leave under this section will not be able to use the full allotment of 12 administrative workweeks in connection with leave granted under 3 FAM 3532.1.  The leave granted under this section will not count against the employee’s 12-week FMLA entitlement in any other 12-month period, as established under 3 FAM 3532.1

(2)  For example, consider an employee who invokes family and medical leave to care for a covered servicemember and uses 16 weeks of such leave starting on August 15, 2022.  If the same employee gave birth to a child on October 7, 2022, the employee would be able to use only 10 weeks of family and medical leave under 3 FAM 3532.1, subparagraph a(1), during the single 12-month period from August 15, 2022, to August 14, 2023, since there is a 26-week limit for that single 12-month period.  That would also limit the employee to no more than 10 weeks of paid parental leave during that single 12-month period.  However, the employee would be able to invoke and use family and medical leave under 3 FAM 3532.1, subparagraph a(1) after August 14, 2023, and before the expiration of the 12-month period following the birth on October 6, 2023, and could substitute (to the extent possible) any remaining amount of the employee’s 12 weeks of paid parental leave, or substitute annual leave or sick leave, if applicable.

d. Requests to use intermittent leave or leave on a reduced leave schedule in connection with this section are subject to the same rules governing requests connected to a serious health condition described in 3 FAM 3534.2, paragraph (b).  

e. Employees who seek to use leave under this section are subject to the same notification and scheduling requirements that apply to employees receiving leave under 3 FAM 3532.1, subparagraphs a(1) through (4) of that section in parallel circumstances. 

f.  Employees who seek to use leave under this section must provide a medical certificate from a healthcare provider certifying the covered servicemember’s medical treatment, recuperation, or therapy related to a serious injury or illness, as defined in 5 USC 6381(11).

3 FAM 3533  qualifying military exigency leave

3 FAM 3533.1  Qualifying Exigencies

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

An employee may take FMLA leave while the employee's spouse, son, daughter or parent (the "covered military member") is on covered active duty or call to covered active duty status for one or more of the following qualifying exigencies:

(1)  Short-notice deployment:  To address any issue that arises from the fact that a covered military member is notified of an impending call or order to covered active duty seven or fewer calendar days prior to the date of deployment.  Leave taken for this purpose can be used for a period of up to seven calendar days beginning on the date a covered military member is notified of an impending call or order to covered active duty;

(2)  Military events and related activities:

(a)    To attend any official ceremony, program, or event sponsored by the military that is related to the covered active duty or call to covered active duty status of a covered military member; and

(b)    To attend family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the covered active duty or call to covered active duty status of a covered military member;

(3)  Childcare and school activities:  For purposes of this paragraph, “child” means a biological, adopted, or foster child, a stepchild, or a legal ward of a covered military member, or a child for whom a covered military member stands in loco parentis, who is either under age 18, or age 18 or older and incapable of self-care because of a mental or physical disability at the time the FMLA leave is to commence.

(a)    To arrange for alternative childcare when the covered active duty or call to covered active duty status of a covered military member necessitates a change in the existing childcare arrangement for a child;

(b)    To provide childcare on an urgent, immediate need basis (but not on a routine, regular, or everyday basis) when the need to provide such care for a child arises from the covered active duty or call to covered active duty status of a covered military member;

(c)    To enroll a child in or transfer a child to a new school or day care facility when enrollment or transfer is necessitated by the covered active duty or call to covered active duty status of a covered military member; and

(d)    To attend meetings with staff at a school or a daycare facility related to  a child (e.g., meetings with school officials regarding disciplinary measures, parent-teacher conferences, or meetings with school counselors) when such meetings are necessary due to circumstances arising from the covered active duty or call to covered active duty status of a covered military member;

(4)  Financial and legal arrangements:

(a)    To make or update financial or legal arrangements to address the covered military member's absence while on covered active duty or call to covered active duty status, such as preparing and executing financial and health care powers of attorney, transferring bank account signature authority, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military identification cards, or preparing or updating a will or living trust; and

(b)    To act as the covered military member's representative before a Federal, State, or local agency for purposes of obtaining, arranging, or appealing military service benefits while the covered military member is on covered active duty or call to covered active duty status, and for a period of 90 days following the termination of the covered military member's covered active duty status;

(5)  Counseling:  To attend counseling provided by someone other than a health care provider for oneself, for the covered military member, or for a child as defined in subparagraph (3)(d) of this section, provided that the need for counseling arises from the covered active duty or call to covered active duty status of a covered military member;

(6)  Rest and recuperation:  To spend time with a covered military member who is on short-term, temporary, rest and recuperation leave during the period of deployment. Eligible employees may take up to 5 days of leave for each instance of rest and recuperation;

(7)  Post-deployment activities:

(a)    To attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military for a period of 90 days following the termination of the covered military member's covered active duty status; and

(b)    To address issues that arise from the death of a covered military member while on covered active duty status, such as meeting and recovering the body of the covered military member and making funeral arrangements;

(8) Additional activities:  To address other events that arise out of the covered military member's covered active duty or call to covered active duty status, provided that the Department and employee agree that such leave qualifies as an exigency, and that they agree to both the timing and duration of such leave.

(9)  Additional details are found in 5 CFR 630.1204.

3 FAM 3533.2  Certification for Qualifying Military Exigency Leave

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Active duty orders:  The first time an employee requests leave because of a qualifying exigency under 3 FAM 3533.1, the bureau executive director, in consultation with GTM/ER/WLD, may require the employee to provide a copy of the covered military member's active duty orders or other documentation issued by the military that indicates the covered military member is on covered active duty or call to covered active duty status, and the dates of the covered military member's active duty service.  This information need only be provided once.  A copy of new active duty orders or other documentation issued by the military must be provided to the bureau executive director if the need for leave because of a qualifying exigency arises out of a different covered active duty or call to covered active duty status of the same or a different covered military member.

b. The bureau executive director, in consultation with GTM/ER/WLD, may require that leave for any qualifying exigency specified under 3 FAM 3533.2 be supported by a certification from the employee that sets forth the following information:

(1)  A statement or description, signed by the employee, of appropriate facts regarding the qualifying exigency for which FMLA leave is requested.  The facts must be sufficient to support the need for leave.  Such facts include the type of qualifying exigency for which leave is requested and any available written documentation that supports the request for leave, such as a copy of a meeting announcement for informational briefings sponsored by the military, a document confirming an appointment with a counselor or school official, or a copy of a bill for services for the handling of legal or financial affairs;

(2)  The approximate date on which the qualifying exigency commenced or will commence;

(3)  If an employee requests leave because of a qualifying exigency for a single, continuous period of time, the beginning and end dates for such absence;

(4)  If an employee requests leave because of a qualifying exigency on an intermittent or reduced leave schedule basis, an estimate of the frequency and duration of the qualifying exigency; and

(5)  If the qualifying exigency involves meeting with a third party, appropriate contact information for the individual or entity with whom the employee is meeting (such as the name, title, organization, address, telephone number, fax number, and e-mail address) and a brief description of the purpose of the meeting.

c.  If an employee submits complete and sufficient certification to support his or her request for leave because of a qualifying exigency, the bureau executive director may not request additional information from the employee.  However, the bureau executive director, in consultation with GTM/ER/WLD, may verify the information described in subparagraphs c(1) and c(2) of this section and does not need the employee's permission to do so:

(1)  If the qualifying exigency involves meeting with a third party, the Department may contact the individual or entity with whom the employee is meeting for purposes of verifying a meeting or appointment schedule and verifying the information provided in the employee's statement under subparagraph b(1) of this section regarding the meeting between the employee and the specified individual or entity. No additional information will be requested by the Department.

(2)  The Department may contact an appropriate unit of the Department of Defense to request verification that a covered military member is on covered active duty or call to covered active duty status.  No additional information will be requested by the Department.

3 FAM 3534  LEAVE OPTIONS UNDER THE FMLA

3 FAM 3534.1  Substitution of Paid Leave

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Leave without pay:  Except as otherwise provided in this section, family and medical leave must be leave without pay.  See 3 FAH-1 H-3510 regarding the issuance of a form SF-50, Notification of Personnel Action, for periods of leave without pay.

b. Leave connected to a birth or placement: 

(1) For family and medical leave taken under 3 FAM 3532.1, subparagraphs a(1) or (2), an employee may elect to substitute –

(a) Up to 12 administrative workweeks of paid parental leave in connection with the occurrence of a birth or placement, as provided in 3 FAM 3535; and

(b)  Any annual or sick leave to the employee’s credit for such family and medical leave not covered by paid parental leave;

(2) The annual or sick leave to the employee’s credit under subparagraph b(1) of this section consists of the following:

(a) Accrued or accumulated annual or sick leave (as provided in 3 FAM 3410 and 3 FAM 3420), without regard to the limitations on the qualifying purposes for which sick leave may be used and the hours limitations on sick leave, as described in 3 FAM 3423, paragraph (a), 3 FAH-1 H-3424.2, and 3 FAH-1 H-3425;

(b) Advanced annual or sick leave approved under the provisions of 3 FAM 3416 and 3 FAM 3428, but without regard to the limitations on the qualifying purposes for which sick leave may be advanced and the hours limitations on the use of advanced sick leave, as described in 3 FAM 3428, paragraph (a).  The limitation on the total deficit of 240 hours of advanced sick leave at any one time, described in 3 FAM 3428.1, subparagraph (1) remains in effect.  The limitations on advanced annual leave described in 3 FAM 3416 remain in effect;

(c) Annual leave donated to the employee under the Voluntary Leave Transfer Program or Voluntary Leave Program, subject to the rules set forth in 3 FAM 3340.

c. Leave connected to a serious health condition or qualifying exigency:  For family and medical leave taken under 3 FAM 3532.1, subparagraphs a(3), (4), or (5), an employee may elect to substitute the following paid leave for any or all of the leave without pay:

(1)  Accrued or accumulated annual or sick leave, consistent with the rules governing the granting and use of annual or sick leave as provided in 3 FAM 3410 and 3 FAM 3420 (including the limitations on the purposes for which sick leave may be used and the hours limitations on sick leave);

(2)  Advanced annual or sick leave approved under the provisions of 3 FAM 3416 and 3 FAM 3428;

(3)  Annual leave donated to the employee under the Voluntary Leave Transfer Program or Voluntary Leave Program, subject to the rules set forth in 3 FAM 3340.

d. Leave to care for a covered servicemember:  For family and medical leave take under 3 FAM 3532.2, an employee may elect to substitute the following paid leave for any or all of the leave without pay:

(1)  Accrued or accumulated annual or sick leave (as provided in 3 FAM 3410 and 3 FAM 3420), without regard to the limitations on the qualifying purposes for which sick leave may be used and the hours limitations on sick leave, as described in 3 FAM 3423, paragraph (a), 3 FAH-1 H-3424.2, and 3 FAH-1 H-3425;

(2)  Advanced annual or sick leave approved under the provisions of 3 FAM 3416 and 3 FAM 3428, but without regard to the limitations on the qualifying purposes for which sick leave may be advanced and the  hours limitations on the use of advanced sick leave, as described in 3 FAM 3428, paragraph (a).  The limitation on the total deficit of 240 hours of advanced sick leave at any one time, described in 3 FAM 3428.1, subparagraph (1) remains in effect.  The limitations on advanced annual leave described in 3 FAM 3416 remain in effect;

(3)  Annual leave donated to the employee under the Voluntary Leave Transfer Program or Voluntary Leave Program, subject to the rules set forth in 3 FAM 3340.

e.  An employee is entitled to elect whether or not to substitute paid leave for leave without pay under the FMLA, as permitted in this section. 

f.  A leave approver may not deny an employee’s election to make a substitution permitted under this section. 

g. A leave approver may not require an employee to substitute paid leave for leave without pay.

h. Notification by employee and retroactive substitution:  An employee must notify his or her supervisor of his or her election to substitute paid leave for leave without pay under this section prior to the date such paid leave commences (i.e., no retroactive substitution), except as provided below:

(1) An employee may retroactively substitute annual leave or sick leave for leave without pay granted under this subchapter covering a past period of time, if the substitution is made in conjunction with the retroactive granting of leave without pay under 3 FAM 3536.1.

(2) An employee may retroactively substitute transferred (donated) annual leave received under the Voluntary Leave Bank or Voluntary Leave Transfer Program for leave without pay granted under this subchapter, subject to the rules governing the use of transferred annual leave set forth in 3 FAM 3340.

(3) An employee may retroactively substitute paid parental leave for applicable leave without pay granted under this subchapter, as provided in 3 FAM 3535.7 and subject to the requirements governing paid parental leave in 3 FAM 3535.  If the employee’s leave without pay was not granted on a prospective basis under this subchapter, the retroactive substitution of paid parental leave may not be made unless the leave without pay period has been retroactively designated as leave under this subchapter, as allowed under 3 FAM 3536.1, paragraph (h).

3 FAM 3534.2  Intermittent Leave or Reduced Leave Schedule

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Family and medical leave for births or placements under 3 FAM 3532.1, subparagraphs a(1) or a(2) may be taken intermittently or on a reduced leave schedule subject to the mutual agreement of the employee and the supervisor in accordance with 3 FAM 3531.4, subparagraph b(6) and b(7).

b. Family and medical leave for a serious health condition or for care for a covered service member under 3 FAM 3532.1, subparagraphs a(3), a(4), or 3 FAM 3532.2, may be taken intermittently or on a reduced leave schedule when medically necessary, subject to the provisions in 3 FAM 3536.

c. Family and medical leave for a qualifying exigency may be taken on an intermittent or reduced leave schedule basis, subject to the provisions in 3 FAM 3536 and 3 FAM 3533.2, subparagraph b(4).   

d. 5 CFR 630.1205 provides additional details on use of leave under an intermittent or reduced leave schedule.

3 FAM 3534.3  Use of Leave Without Invoking the FMLA

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. An employee may request to use annual leave or sick leave without invoking family and medical leave, and, in such a case, leave approvers exercise their normal authority with respect to reviewing such leave requests.  The act of requesting leave under normal procedures with the intent of using FMLA leave at a later date is known as “stacking” leave, and is permitted, subject to the normal rules governing the approval of such leave.  For example, an employee who gave birth to a child could request and use her accrued and accumulated sick leave during her recovery period.  Following the recovery period, the employee could invoke her FMLA entitlement and substitute paid leave for leave without pay, as described in 3 FAM 3534.1

b. Sick leave is a separate entitlement from family and medical leave.  As set forth in 3 FAM 3420, employees who follow procedures for requesting sick leave and who provide any required medical certification must be granted their accrued sick leave.  An employee may choose to use his or her entitlement to accrued sick leave to care for a family member with a serious health condition or for the employee’s own serious health condition before or instead of invoking his or her entitlement to family and medical leave.

c.  An employee may also use annual leave for the purposes listed in 3 FAM 3532 before or instead of invoking family and medical leave, subject to the approval of the supervisor.  If disapproved, the employee may invoke family and medical leave and substitute accrued, accumulated, or advanced annual leave for any or all of the period of unpaid leave, as described in 3 FAM 3534.1.  For example, an employee may request to use annual leave for his own serious health condition.  If disapproved, the employee may invoke his FMLA entitlement and then substitute annual leave for the applicable FMLA period.

3 FAM 3535  PAID PARENTAL LEAVE

3 FAM 3535.1  General Information

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

Purpose:  This section governs the granting of paid parental leave to covered employees.  Paid parental leave may only be substituted for unpaid leave granted following a birth or placement under specific provisions of the Family and Medical Leave Act, as provided in 3 FAM 3532.1, subparagraphs a(1) and (2). 

Applicability:  As provided in the applicable statute and regulations, paid parental leave is available to employees who are eligible for FMLA leave (see 3 FAM 3531.3, paragraph (a)) and who invoke FMLA under 3 FAM 3532.1(a)(1) or (a)(2) with respect to a birth or placement  occurring on or after October 1, 2020.  Paid parental leave may not be provided under this section for any period of time before October 1, 2020. 

3 FAM 3535.2  Definitions

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

Applicability of 3 FAM 3531.5 definitions:  The definitions of terms in 3 FAM 3531.5 are applicable in this section to the extent the terms are used, except that, to the extent any definitions of terms have been further revised in paragraph (b) of this subsection, the definitions in paragraph (b) shall apply for purposes of this section. 

Other definitions:  In this section -

Birth or placement means the birth of a son or daughter of a covered employee, or a new placement of a son or daughter with a covered employee for adoption or foster care, that is the basis for unpaid leave granted under 3 FAM 3532.1, subparagraphs a(1) or (2).  Paid parental leave may not be granted based on an anticipated birth or placement. 

Child means a son or daughter as defined in 3 FAM 3531.5 whose birth or placement is the basis for entitlement to paid parental leave. 

FMLA unpaid leave means leave without pay granted under the Family and Medical Leave Act provisions in this subchapter. 

Paid parental leave means paid time off from an employee’s scheduled tour of duty that is authorized in this section and that is granted to cover periods of time within the 12-month period commencing on the date of birth or placement to an employee who has a current parental role in connection with the child whose birth or placement was the basis for granting FMLA unpaid leave under 3 FAM 3532.1, subparagraphs a(1) or (2).  This leave is not available to an employee who does not have a current parental role.

3 FAM 3535.3  Leave Entitlement

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Election:  An employee may elect to substitute available paid parental leave for any FMLA unpaid leave granted under 3 FAM 3532.1, subparagraphs a(1) or (2), in connection with the occurrence of a birth or placement. 

b. Available paid parental leave:

(1) The paid parental leave that is available for purposes of paragraph (a) of this section is 12 administrative workweeks in connection with the birth or placement involved.  The entitlement to paid parental leave is triggered by the occurrence of a birth or placement.  The paid parental leave is considered to be available only if the employee has a continuing parental role with respect to the child whose birth or placement triggered the leave entitlement.  The 12 administrative workweeks of paid parental leave may be used only during the 12-month period beginning on the date of the birth or placement involved.

(2) Since an employee may use only 12 weeks of FMLA unpaid leave in any 12-month period under 3 FAM 3532.1, paragraph (a), use of FMLA unpaid leave not associated with paid parental leave may affect an employee’s ability to use the full 12 weeks of paid parental leave.  Notwithstanding paragraph (b)(1) of this section, an employee will be able to use the full amount of paid parental leave only to the extent that there are 12 weeks of available FMLA unpaid leave granted under the birth or placement provisions in 3 FAM 3532.1, subparagraphs a(1) or (2), during the 12-month period commencing on the date of birth or placement.  The availability of paid parental leave will depend on when the employee uses various types of FMLA unpaid leave relative to any 12-month period established under 3 FAM 3532.1, paragraph (c).

c. Conversion of weeks to hours:  The 12 administrative workweeks referenced in paragraph (b) of this section is converted to hours based on the number of hours in the employee’s scheduled tour of duty (as in effect on the date the employee begins a period of using paid parental leave) as follows:  The 12 administrative workweeks referenced in paragraph (b) of this section is converted to hours based on the number of hours in the employee’s scheduled tour of duty (as in effect on the date the employee begins a period of using paid parental leave) as follows:

(1)  For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours.

(2)  For a part-time employee, the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee’s scheduled tour of duty over a biweekly pay period.  For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours.

d. Change in tour:  If there is a change in an employee’s scheduled tour of duty during the 12-month period commencing on the date of a given birth or placement, and the employee has not used the full allotment of paid parental leave during such 12-month period, the remaining balance of paid parental leave must be recalculated based on the change in the number of average hours in the employee’s scheduled tour of duty.  For example, if a regular full-time employee has a balance of 120 hours of unused paid parental leave for a 12-month period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours (since the old schedule was 80 hours biweekly or an average of 40 hours weekly, the new part-time tour is half of the former full-time tour.  40/80 times 120 equals 60.).

e. Leave usage

(1)  A supervisor may not require an employee to use annual leave or sick leave to the employee’s credit as a condition to be met before the employee uses paid parental leave.   

(2)  Paid parental leave may be used in connection with the occurrence of a birth or placement only during the 12-month period following birth or placement, per paragraph (b) of this section.  Paid parental leave may not be used prior to the birth or placement involved even if the employee was granted FMLA unpaid leave under 3 FAM 3532.1, subparagraphs a(1) or (2) for periods prior to the birth or placement event, as allowed under 3 FAM 3532.1, paragraph (e).

f. Treatment of unused leave:  If an employee has any unused balance of paid parental leave that remains at the end of the 12-month period following the birth or placement involved, the entitlement to the unused leave elapses at that time.  No payment may be made for unused paid parental leave that has expired.  Paid parental leave may not be considered annual leave for purposes of making a lump-sum payment for annual leave or for any other purpose.

g. Required documentation to request paid parental leave:

(1) In order to request paid parental leave, an employee must provide his or her bureau executive office or post HR office (if overseas) appropriate documentation that shows that the employee’s use of paid parental leave is directly connected to a birth or placement that has occurred (e.g., birth certificate, certificate of live birth, consular report of birth abroad, adoption agency documentation confirming the placement and date of placement, adoptive placement agreement).  This can be the same document required to establish the employee’s entitlement to FMLA unpaid leave, as described in 3 FAM 3536.2, subparagraph a(1).

(2) In order to request paid parental leave, an employee must also complete and sign the form DS-5155, Paid Parental Leave Request Form.

(3) In order to request paid parental leave, an employee must also complete and sign the form DS-5154, FEPLA Work Obligation Agreement.

(4) An employee must provide the above documentation no later than 15 calendar days after the supervisor requests such documentation.  If it is not practicable under the particular circumstances for an employee to respond within the 15-day time frame, despite the employee’s diligent, good faith efforts, the employee must provide the documentation or certification within a reasonable period of time under the circumstances involved, but no later than 30 calendar days after the date of the supervisor's original request.

(5) Bureau executive directors may grant paid parental leave prior to receiving any requested documentation described in subparagraphs (1), (2), and (3) of this section based on an employee’s communications with a supervisor or management.  Under these circumstances, the granting of paid parental leave is considered to be provisional, pending receipt of the requested documentation or certification. 

(6) If the employee fails to provide the required documentation within the specified time period, that employee is not entitled to paid parental leave.  In such a case, the supervisor may:

(a) Allow the employee to request that the absence be charged to leave without pay, sick leave, annual leave, or other forms of paid time off, as appropriate; or

(b) If the employee acted fraudulently, charge the employee as absent without leave (AWOL) and pursue any other appropriate action.

h.  Each eligible employee has a separate entitlement to FMLA leave.  In situations where two eligible employees are parents of the same newly born or placed child, each employee would have a separate FMLA leave entitlement based on the birth/placement event.  Likewise, each employee-parent would have a separate entitlement to substitute paid parental leave for FMLA unpaid leave, as provided in this section.

3 FAM 3535.4  Pay During Leave

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. The pay an employee receives when using paid parental leave is the same pay the employee would receive if the employee were using annual leave.

b. Paid parental leave is a type of leave that is counted in applying the 8-hour rule in 5 CFR 550.122(b) that determines whether night pay is payable during periods of leave.

c. The pay received during paid parental leave may not include Sunday premium pay. 

3 FAM 3535.5  Work Obligation

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Advance Agreement:  An employee may not use paid parental leave in connection with a birth or placement unless the employee agrees (in writing), before the commencement of such leave, to work for the Department for not less than 12 weeks beginning on the employee’s first scheduled workday after such leave concludes.  Special rules governing cases of incapacitation are addressed in 3 FAM 3535.6.

b. For purposes of applying paragraph (a) of this section: 

(1) The required written agreement is the form DS-5154, FEPLA Work Obligation Agreement;

(2) The term “work” means a period during which the employee is in duty status, excluding any periods (paid or unpaid) of leave, time off (including holiday time off), or other nonduty status (including furlough or AWOL status).  Such excluded periods will not count toward completion of the 12-week work obligation.

(3) Employees who are employees of the Department of State at the time the paid parental leave period concludes are required to complete the 12-week work requirement at the Department. Paragraph (f) addresses situations where an employee is employed by multiple federal agencies during the period of paid parental leave and provides an illustrative example of this provision.         

(4) The date paid parental leave concludes is:

(a) The workday on which an employee finishes using 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement; or

(b) If the employee does not use 12 administrative workweeks of paid parental leave during the 12-month period that began on the date of birth or placement, the day that is the last workday on which an employee used paid parental leave.

(5) Conversion of weeks to hours:  The 12-week work obligation is converted to hours based on the number of hours in the employee’s scheduled tour of duty, consistent with the rules in 3 FAM 3535.3, paragraph (c).

(6) The 12-week work obligation is statutorily fixed and applies regardless of the actual amount of paid parental leave an employee used (i.e., an employee who uses less than 12 weeks of paid parental leave would still be obligated to work 12 weeks after concluding the paid parental leave period, subject to any required hours conversion as described in subparagraph (5) of this subsection). 

c. Application of reimbursement requirement:

(1)  If an employee fails to return for the required 12 weeks of work with the Department after paid parental leave concludes (as described in paragraphs (a) and (b) of this section), the employee will be required to make a reimbursement equal to the total amount of any Government contributions paid by the Department on behalf of the employee to maintain the employee’s health insurance coverage under the Federal Employees Health Benefits Program established under 5 U.S.C. chapter 89 during the period(s) when paid parental leave was used.  An employee who separates from the Department before completing the required 12 weeks of work is considered to have failed to return to duty under this paragraph.  For the purpose of the preceding sentence, Department employees who transfer to another position or assignment within the Department are not considered to be “separated” from the Department.

(2)  Reimbursement will not be required if, in the Department’s judgment, the employee is unable to return to work for the required 12 weeks because of:

(a) The continuation, recurrence, or onset of a serious health condition (including mental health) of the employee or the child whose birth or placement was the basis for the paid parental leave, but, in the case of the employee’s serious health condition, only if the condition is related to the applicable birth or placement; or

(b)  Any other circumstance beyond the employee’s control, subject to paragraph (e) of this section.

d. Medical certification:  An employee who claims that he or she is unable to complete the 12-week work requirement based on a serious health condition described in subparagraph c(2)(a) must provide a health care provider certification supporting his or her claim to his or her bureau executive office or post HR office (if overseas).  In cases where an employee’s claim based on subparagraph c(2)(b) relies on a health condition, the employee must also provide a health care provider certification supporting his or her claim. 

e. Circumstances beyond employee’s control:  The circumstances beyond the employee’s control referenced in subparagraph c(2)(b) of this section must be ones that truly preclude an employee from returning to work with the Department. 

(1)  Examples of situations beyond an employee’s control include, but are not limited to:  Situations where a parent chooses to stay home because a child has a serious health condition, or an employee moves because the employee’s spouse is unexpectedly transferred to a job location more than 75 miles from the employee’s worksite, or an employee on a family member appointment whose appointment is terminated because the employee’s sponsoring spouse transfers to another assignment.

(2)  Matters of employee preference or convenience will not suffice.  For example, a situation where an employee chooses not to return to work to stay home with a well, newborn child would not constitute a circumstance beyond the employee’s control for purposes of this exception.

f. Multiple agencies involved:  If an employee does not complete the 12-week work obligation, and if more than one agency provided Government contributions on behalf of an employee for that employee’s health insurance coverage during a period of paid parental leave, the Department will make a determination regarding whether to apply the reimbursement requirement described in paragraph (c) of this section with respect to periods of paid parental leave used during employment with the Department.  In cases where the employee failed to complete the 12-week work obligation with the Department, (i.e., where an employee transferred to the Department from another agency during a period of paid parental leave), the employing bureau executive office is responsible for informing any other affected agency of the employee’s failure to complete the work obligation and for making the determination regarding application of the reimbursement requirement for periods of paid parental leave taken at the Department, as outlined in 3 FAM 3535.6. Any other affected agency will make its own determination regarding application of the reimbursement requirement associated with employment at that agency.

(1) Example:  Employee begins period of paid parental leave with another federal agency, and during the period of paid parental leave, transfers to the Department of State.  Upon conclusion of the period of paid parental leave, the employee owes a 12-week work obligation to the Department.  If the employee fails to complete the 12-week work obligation and does not otherwise fall under one of the exceptions detailed in subparagraph c(2) of this section, as determined by the bureau executive director, the employee will owe a debt to the Department for any Government contributions to FEHB during the period of paid parental leave taken at the Department, as described in subparagraph c(1). The employee’s former federal agency will determine whether reimbursement is required for periods of leave taken during employment at that agency. 

g. Collection of reimbursement:  The reimbursement requirement described in paragraph (c) of this section, if imposed, is subject to collection as a debt owed to the Department.  Debt collection is managed by the Bureau of the Comptroller and Global Financial Services (CGFS) and is subject to the provisions outlined in 4 FAM 490

3 FAM 3535.6  Reimbursement Determinations

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. An employee who learns that he or she will not complete the 12-week work obligation following a period of paid parental leave as described in 3 FAM 3535.5 must notify his or her supervisor and bureau executive office (or post HR if overseas) as soon as possible after learning of the situation.  The supervisor must inform the bureau executive office (or post HR if overseas) upon learning that an employee will not complete the 12-week work obligation. Post HR is responsible for coordinating with the employee and bureau executive office to determine whether reimbursement is required under 3 FAM 3535.5, paragraph (c).

b. The supervisor (and post HR if overseas) and the employee must coordinate to ensure that the bureau executive office receives sufficient information and any required documentation relevant to determining whether the employee is required to reimburse the Department consistent with 3 FAM 3535.5, subparagraph (c).  Employees must provide any required documentation directly to their bureau executive office or post HR office (if overseas).

c. Bureau executive directors are responsible for determining whether an employee who fails to complete the 12-week work obligation following a period of paid parental leave is required to reimburse the Department under 3 FAM 3535.5, paragraph (c).

(1) In the event that the employee meets one of the exception criteria detailed in 3 FAM 3535.5, subparagraph c(2), the bureau executive director must notify the employee and supervisor (or post HR if overseas) accordingly.

(2) In the event that the employee’s situation does not meet exception criteria, the bureau executive director must notify the employee and supervisor of the reimbursement requirement and also notify CGFS of the debt via PayIntake@state.gov.

d. Appeals:  If the bureau executive director determines that the employee’s situation does not meet the exception criteria, the employee will have 10 business days following notification from the bureau executive director to appeal the determination directly to the Office of the Director General of the Foreign Service and Director of Global Talent (DGTM) at DGDirect@state.gov.  Upon receipt of the appeal, DGTM will review the employee’s case to determine whether the executive director’s determination was consistent with the exception criteria detailed in 3 FAM 3535.5, subparagraph c(2).  If DGTM upholds the original determination that exception criteria are not met, the employee will be required to reimburse the Department per 3 FAM 3535.5, paragraph (g).  If DGTM finds that the exception criteria are met, the employee will not be required to reimburse the Department.  Any determination of the DGTM under this provision is final and not subject to further review except as provided by law.

3 FAM 3535.7  Cases of Employee Incapacitation

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. If an otherwise eligible employee who could have made an election during a past period to substitute paid parental leave and enter a work obligation agreement was physically or mentally incapable of doing so during that past period, the employee may, within 5 workdays of the employee’s return to duty status, make an election to substitute paid parental leave for applicable FMLA unpaid leave under 3 FAM 3535.3, paragraph (a), on a retroactive basis.  Such a retroactive election is effective on the date that such an election would have been effective if the employee had not been incapacitated at the time.

b. If the FMLA unpaid leave was not already approved, this retroactive election must be made in conjunction with a retroactive election under 3534.1, paragraph (h) and 3 FAM 3536.1, paragraph (h).  As part of such election, the employee must agree to meet the work obligation (via the form DS-5154, FEPLA Work Obligation Agreement) or pay the required reimbursement (if applicable) unless the employee’s situation meets one of the exception criteria described in 3 FAM 3535.5, subparagraph c(2).

c. If an otherwise eligible employee is physically or mentally incapable of making an election to substitute paid parental leave and entering into a work obligation agreement, the Department will, upon the request of a personal representative of the employee whom the Department finds acceptable, provide conditional approval of substitution of paid parental leave for applicable FMLA unpaid leave on a prospective basis.  The conditional approval is based on the presumption that the employee would have elected to substitute paid parental leave for the applicable FMLA unpaid leave and would have entered into the work obligation agreement if the employee had not been incapacitated.  Within 5 workdays after returning to work, the employee must enter into a written agreement to meet the work obligation (via the form DS-5154, FEPLA Work Obligation Agreement) or pay the required reimbursement (if applicable) unless the employee’s situation meets one of the exception criteria described in 3 FAM 3535.5, subparagraph c(2), as provided in 3 FAM 3535.5.

d. If an employee covered by paragraph (c) of this section declines to enter into the written agreement after being determined by the Department to no longer be incapacitated, the Department will cancel any portion of the 12 weeks of paid parental leave that has not been exhausted, and designate as invalid any paid parental leave that was used based on the conditional approval.  The time covered by the invalidated paid parental leave must be converted to leave without pay unless the employee requests that other paid leave or paid time off to the employee’s credit be applied (as appropriate) in place of the invalidated paid parental leave.  To the extent the employee has invalidated paid parental leave hours not replaced by other paid leave or paid time off, pay received for those hours is a debt to the Department and is subject to collection under the 4 FAM 490

3 FAM 3535.8  Multiple Children Born or Placed in Same Period

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. If an employee has multiple children born or placed on the same day, the multiple-child birth/placement event is considered to be a single event that triggers a single entitlement of up to 12 weeks of paid parental leave under 3 FAM 3535.3, paragraph (b).

b. If an employee has one or more children born or placed during the 12-month period following the date of an earlier birth or placement of a child of the employee, the provisions of 3 FAM 3535 shall be independently administered for each birth or placement event.  Any paid parental leave substituted for FMLA unpaid leave during the 12-month period beginning on the date of a child’s birth or placement shall count towards the 12-week limit on paid parental leave described in 3 FAM 3535.3, paragraph (b), applicable in connection with the birth or placement involved.  The substitution of paid parental leave may count toward multiple 12-week limits to the extent that there are multiple ongoing 12-month periods beginning on the date of an applicable birth or placement, each of which encompasses the day on which the leave is used.  Therefore, whenever paid parental leave is substituted during periods of time when separate 12-month periods (each beginning on a date of birth or placement) overlap, the paid parental leave will count toward each affected period’s 12-week limit.

c. Example:  If an employee has a child born on June 1 and another child placed for adoption on October 1 of the same year, each event would generate entitlement to substitute up to 12 weeks of paid parental leave during the separate 12-month periods beginning on the date of the birth and on the date of the placement, respectively.  Those two 12-month periods would be June 1 to May 31 and October 1 to September 30.  The overlap period for these two 12-month periods would be October 1 to May 31.  If the employee substitutes paid parental leave during that overlap period, that amount of paid parental leave would count towards both the 12-week limit associated with the birth event and the 12-week limit associated with the placement event.

3 FAM 3536  REQUESTING FMLA LEAVE

3 FAM 3536.1  Advance Notification to Invoke FMLA

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a.   An employee who seeks leave for one of the reasons in 3 FAM 3532 is responsible for invoking his or her entitlement to FMLA.  Supervisors must be aware of employee rights under FMLA and advise employees accordingly.  If the employee’s leave is foreseeable based on an expected birth, placement for adoption or foster care, or planned medical treatment (including for treatment for a covered servicemember), the employee must provide notice to the supervisor of his or her intention to take family and medical leave not less than 30 calendar days before the date the leave is to begin.  If one of these events requires the leave to begin within 30 calendar days, the employee must provide notice as soon as is practicable.

b.   If leave taken for a serious health condition or to care for a covered servicemember, under 3 FAM 3532.1, subparagraphs a(3) and (4), and 3 FAM 3532.2, is foreseeable based on planned medical treatment, the employee must provide notice to the supervisor of the employee’s intention to take leave or leave without pay not less than 30 calendar days before the date the absence is to begin, except if the date of treatment requires leave to begin in less than 30 days, in which case the employee must provide such notice as is practicable.  The employee must consult with the supervisor and make a reasonable effort to schedule medical treatment so as not to unduly disrupt the operations of the Department, subject to the approval of the health care provider.  A supervisor may, for justifiable case, request that an employee reschedule medical treatment, subject to the approval of the health care provider.

c.   If the need for leave taken for a qualifying exigency under 3 FAM 3532.1, subparagraph a(5), is foreseeable, the employee must provide notice as soon as practicable, regardless of how far in advance the leave is being requested.

d.   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 30 calendar days’ notice, the employee must 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 the employee’s control, to provide notice of his or her need for leave, the leave may not be delayed or denied. 

e.   If the need for leave is foreseeable and the employee fails to provide 30 calendar days’ notice, with no reasonable excuse for the delay of notification, leave approvers may delay the taking of leave under 3 FAM 3532 until at least 30 calendar days after the date on which the employee provides notice of his or her need for family and medical leave.

f.    An employee may not retroactively invoke entitlement to family and medical leave unless the employee and his or her personal representative were physically or mentally incapable of invoking the employee’s entitlement to FMLA leave during the entire period in which the employee is absent from work for an FMLA-qualifying purpose.  In such cases, the employee must retroactively invoke his or her entitlement to FMLA leave within five workdays after returning to work.  The employee's incapacity must be documented by a written medical certification from a health care provider and the employee must provide documentation acceptable to the Department explaining the inability of the employee's personal representative to invoke the employee's entitlement to FMLA leave during the entire period in which the employee was absent from work for an FMLA-qualifying purpose.

 g. 5 CFR 630.1207 provides additional details on notice of leave.

3 FAM 3536.2  Application Procedures

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a.  An employee who seeks to use family and medical leave must follow the notification procedures set forth in 3 FAM 3536.1 and must submit the form DS-1923, Family and Medical Leave Act (FMLA), and form DS-7100, Request for Leave or Approved Absence, (or form OPM-71), to their supervisor.  In addition:

(1) If FMLA leave is for a birth or placement:  Employee must submit to their bureau executive office or post HR office (if overseas) a health care provider note certifying the expected due date (if requesting prior to the birth), or document certifying the birth (e.g. birth certificate, certificate of live birth, or consular report of birth abroad), or adoption or foster care paperwork indicating the child’s placement with the employee and the date of placement.  If requesting paid parental leave under 3 FAM 3535, employee must also submit to their supervisor the form DS-5154, FEPLA Work Obligation Agreement, and the form DS-5155, Paid Parental Leave Request Form.

(2) If FMLA leave is for a serious health condition:  Employee must submit a medical certificate to their bureau executive office or post HR office.  Employees can use the Department of Labor’s form WH-380-E (for employee) or WH-380-F (for family member).  If providing their own certification (i.e., not a completed, signed WH-380 form), the medical certification must meet the requirements detailed in 3 FAM 3536.3.

(3) If FMLA leave is for a qualifying exigency:  Employee may be required to provide documentation as described in 3 FAM 3533.2 to their bureau executive office or post HR office (if overseas). 

(4) If FMLA leave is for care of a covered servicemember:  Employee must submit to their bureau executive office or post HR office (if overseas) a medical certificate from a healthcare provider certifying the covered servicemember’s medical treatment, recuperation, or therapy related to a serious injury or illness, as defined in 5 USC 6381(11),per 3 FAM 3532.2, paragraph (f). 

b. Supervisors must:

(1) If overseas:  Sign form DS-1923 and form DS-7100 and submit to post HR for review;

(2) If domestic:  Sign form DS-1923 and form DS-7100 and submit to bureau executive office for review. 

(3) If FMLA request is for birth or placement:  In addition to forms DS-1923 and DS-7100, sign form DS-5155.  Submit forms DS-1923, DS-7100, DS-5154, and DS-5155 to bureau executive office or post HR office (if overseas) for review.

c. Post HR staff must:

(1) Ensure that employees have provided the forms DS-1923, DS-7100, and any other required FMLA documentation relevant to their FMLA request, as described above;

(2) Ensure that managers have signed the forms DS-1923, DS-7100, and DS-5155 (if applicable);

(3) Forward the DS-1923, DS-7100, and any other required documentation relevant to the employee’s FMLA request to the regional bureau executive office for review.

d. Bureau executive offices must:

(1)  Review FMLA applications to determine whether they meet all relevant requirements and include all required FMLA documentation as described in this subchapter;

(2)  Confirm whether employee has previously used and/or exhausted his or her FMLA entitlement within the previous 12 months;

(3)  If employee has used his or her FMLA entitlement within the previous 12 months, calculate the remaining FMLA entitlement as described in 3 FAM 3532;

(4)  Executive directors:  Approve or disapprove FMLA applications, including requests for paid parental leave in connection with a birth or placement, according to the provisions set forth in this subchapter.

(5)  Upon approval or disapproval, notify employee, supervisor, and post HR (if overseas).

3 FAM 3536.3  Medical Certificates

(CT:PER-981;   03-13-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a.  An employee seeking family and medical leave related to a serious health condition under 3 FAM 3532.1, subparagraphs a(3) or a(4) must submit a medical certification completed by the health care provider of the employee or the health care provider of the spouse, son, daughter, or parent of the employee, as appropriate.  An employee must provide the completed medical certification to their bureau's HR official along with the application form, or as soon as possible thereafter, but no later than 15 calendar days after the Department requests it.  If it is not practicable, despite the employee’s diligent good faith efforts, to provide the medical certificate within 15 calendar days, the employee must provide the medical certificate no later than 30 calendar days from the time the Department first requests it. 

b. The written medical certification must include:

(1)  The date the serious health condition commenced;

(2)  The probable duration of the serious health condition or specify that the serious health condition is a chronic or continuing condition with an unknown duration.  For a chronic or continuing condition with an unknown duration, include whether the patient is presently incapacitated and the likely duration and frequency of episodes of incapacity;

(3)  The appropriate medical facts within the knowledge of the health care provider regarding the serious health condition, including a general statement as to the incapacitation, examination, or treatment that may be required by a health care provider;

(4)  In the case of an employee's own serious health condition, a statement that the employee is unable to perform one or more of the essential functions of the employee's position or requires medical treatment for a serious health condition, based on written information provided by the Department on the essential functions of the employee's position or, if not provided, discussion with the employee about the essential functions of his or her position;

(5)  In the case of an employee caring for a family member,

(a)  A statement from the health care provider that the spouse, son, daughter, or parent of the employee requires psychological comfort and/or physical care; needs assistance for basic medical, hygienic, nutritional, safety, or transportation needs or in making arrangements to meet such needs; and would benefit from the employee’s care or presence; and

(b)  A statement from the employee on the care the employee will provide and an estimate of the amount of time needed to care for the employee's spouse, parent, son or daughter; and

(6)  In the case of certification of intermittent leave or leave on a reduced schedule for planned medical treatment, the dates (actual or estimates) on which such treatment is expected to be given, the duration of such treatment, and any recovery period.  Should such intermittent leave or leave on a reduced schedule be for a serious health condition that is a chronic or continuing condition with an unknown duration, the certification should specify this, whether the patient is presently incapacitated, and the likely duration and frequency of episodes of incapacity.

c.  The U.S. Department of Labor Form WH-380, Certification of Health Care Provider, may be used by the health care provider to provide the required information.

3 FAM 3537  EFFECT ON EMPLOYEE BENEFITS

3 FAM 3537.1  Protection of Employment and Benefits

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. Any employee who takes leave under the Family and Medical Leave Act (FMLA) is entitled, upon return to the agency, to be returned to:

(1)  The same position held by the employee when the leave commenced; or

(2)  An equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment (see 5 CFR 630.1210).

b. If an employee subject to a medical evaluation program (e.g., FS employee) is approved for leave because of a serious health condition that renders an employee unable to perform the essential functions of his or her position, that employee will be required to provide written medical certification from a health care provider certifying that the employee is able to perform these functions prior to returning to duty.  Employees must be notified of this requirement by the employee’s supervisor before leave commences (or to the extent practicable in emergency situations), and the cost of the written medical certification will be paid by the Department (5 CFR 630.1210(i)).

3 FAM 3537.2  Health Benefits

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

a. An employee enrolled in a health benefits plan under the Federal Employees’ Health Benefits Program (FEHB) who is placed in an unpaid leave status under the FMLA, may continue his or her health benefits enrollment while in the unpaid leave status and arrange to pay the appropriate employee contributions during the time of unpaid leave or upon returning to duty.  Human resources offices are responsible for ensuring that each employee going on leave without pay (LWOP) is counseled about health benefits, and that each employee completes the appropriate statement electing to continue or stop health benefits coverage.

b. In most circumstances, an employee may not retain FEHB coverage beyond 365 days of LWOP, except when an employee is granted LWOP status under the FMLA, which in combination with other leave without pay exceeds 365 days of continued coverage.  In the latter circumstance, the employee must arrange to pay the appropriate employee contributions into the Employee Health Benefits Fund with the employing office.

3 FAM 3537.3  Leave Accrual

(CT:PER-1016;   09-17-2020)
(State Only)
(Applies to Foreign Service and Civil Service Employees)

Various employee entitlements are affected by unpaid FMLA status, 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 in which the employee accumulates 80 hours of nonpay status.  If the employee again accumulates 80 hours of nonpay status, the employee will again not earn leave in the pay period in which that new 80-hour total is reached.  See 3 FAM 3515.

3 FAM 3538 THROUGH 3539 UNASSIGNED

 

 

 

UNCLASSIFIED (U)