Family and Medical Leave Act and Paid Parental Leave

Under the Family and Medical Leave Act of 1993 (FMLA), covered federal employees are entitled to a total of 12 administrative work weeks of unpaid leave (leave without pay) during any 12-month period for:

  • the birth of a son or daughter and care of the newborn;
  • the placement of a son or daughter with you for adoption or foster care;
  • the care of your spouse, son, daughter, or parent with a serious health condition; and
  • your own serious health condition that makes you unable to perform the duties of your position.

A “serious health condition” includes such conditions as cancer, heart attacks, strokes, severe injuries, Alzheimer’s disease, pregnancy, and childbirth. The term “serious health condition” is not intended to cover short-term conditions for which treatment and recovery are very brief.

The common cold, the flu, earaches, upset stomach, headaches (other than migraines), routine dental or orthodontia problems, etc., are not considered serious health conditions unless complications arise.

The federal employee must provide notice of his or her intent to take family and medical leave not less than 30 days before leave is to begin or as soon as is practicable. An employee may not invoke entitlement to FMLA leave retroactively for any previous absence from work.

Note: In addition to this entitlement, the Securities and Exchange Commission and the Federal Deposit Insurance Corporation provide six weeks per 12 months of paid leave, without charge to another form of leave, for these same purposes.

Certification for FMLA Leave

An agency may request medical certification for FMLA leave taken to care for an employee’s spouse, son, daughter, or parent who has a serious health condition or for the serious health condition of the employee.

The term “spouse” does not include unmarried domestic partners unless they meet applicable requirements of common-law marriage.

The law also provides intermittent leave for chronic conditions. In such cases, an agency may require recertification of the health condition every 30 calendar days or more frequently if it receives information that casts doubt upon the continuing validity of the original medical certification.

Agencies may establish a uniformly applied practice or policy that requires all similarly situated employees (that is, same occupation, same serious health condition) who take Family and Medical Leave Act leave for a serious health condition to provide medical certification to return to work. The information on the medical certification to return to work must relate only to the serious health condition for which FMLA leave was taken.

While on FMLA leave, you are entitled to maintain health benefits coverage. If you are on leave without pay under the FMLA, you are still responsible for paying the employee share of the health benefits premium.

You may choose to substitute annual leave for unpaid leave under the FMLA. You may also substitute sick leave in those situations in which the use of sick leave is permitted. And you may use earned compensatory time off and credit hours in addition to the period of FMLA leave.

Upon return from FMLA leave, you must be returned to the same or equivalent position.

Eligible family members are defined in the FMLA law (see 5 CFR 630.1201 for the implementing rules for federal employees) and differ from those eligible under certain other programs in which leave can be taken for family-related purposes.

Paid Parental Leave

Public Law 116-92 of 2019 provides for substituting paid time for the unpaid 12 weeks of leave available for parental purposes under the Family and Medical Leave Act, effective with births and adoption and foster placements occurring after September 30, 2020. Implementing rules at 5 CFR 630 subpart Q.

The entitlement applies only to the categories of employees and only for the parental-related circumstances the FMLA law specifies; see Family and Medical Leave Act, above. (Note: An employee who was ineligible for FMLA leave at the time of a qualifying birth or placement may establish FMLA eligibility during the 12-month period following the qualifying birth or placement and use paid parental leave during that period.)

While the FMLA allows for taking unpaid leave within a 12-month period that starts before a birth, adoption or foster placement, paid leave can be substituted only during the 12-month period after such an event. There are no carryover provisions for any unused paid parental leave beyond the 12 months. An employee may not be paid for unused or expired paid parental leave.

Any amount of unpaid FMLA leave taken for either parental or other purposes will reduce the amount of time available to take as paid parental leave. However, employees may be able to take other forms of leave—such as annual leave or, in some circumstances, sick leave—rather than unpaid FMLA leave and preserve the full 12-week paid parental leave entitlement.

An agency may not require employees to use annual leave or sick leave before requesting paid parental leave. However, it may require the employee to provide appropriate documentation regarding the birth or placement.

Each federal employee has a separate entitlement; if two covered employees are parents of the same newly born or placed child, each employee has a separate entitlement based on that event. However, paid leave is available only for periods when an employee is acting in a parental role and engaged in activities directly related to the care of the child whose birth or placement triggered the entitlement, and only as long as the employee has a continuing parental role.

If an employee has one or more children born or placed during the 12-month period following a birth or placement, each event will generate its own 12-week paid leave entitlement available to be used during the following 12 months. However, use of paid leave during any period in which 12-month periods overlap will count against each entitlement.

For employees who use leave on an hourly basis the entitlement is converted to hours based on the employee’s scheduled tour of duty. For example, for a regular full-time employee, the entitlement will be 480 hours (12 weeks x 40 hours), and for a half-time employee 240 hours (12 weeks x 20 hours).

Prior to using paid parental leave and employee must agree in writing to return to work for at least 12 weeks afterward or else repay the government’s contribution toward Federal Employees Health Benefits program premiums for that time. Agencies may waive that obligation for health or other circumstances beyond the employee’s control.