Collapse to view only § 6384. Employment and benefits protection
- § 6381. Definitions
- § 6382. Leave requirement
- § 6383. Certification
- § 6384. Employment and benefits protection
- § 6385. Prohibition of coercion
- § 6386. Health insurance
- § 6387. Regulations
§ 6381. DefinitionsFor the purpose of this subchapter—
(1) the term “employee” means any individual who—
(A) is an “employee”, as defined by section 6301(2), including any individual employed in a position referred to in clause (ix) of section 6301(2), but excluding any individual employed by the government of the District of Columbia 1
1 So in original. Probably should be followed by a comma.
any individual employed on a temporary or intermittent basis, and any employee of the Government Accountability Office or the Library of Congress; and(B) has completed at least 12 months of service—
(i) as an employee (as that term is defined in section 2105) of the Government of the United States, including service with the United States Postal Service, the Postal Regulatory Commission, and a nonappropriated fund instrumentality as described in section 2105(c); or
(ii) which qualifies as honorable active service in the Army, Navy, Air Force, Space Force, or Marine Corps of the United States;
(2) the term “health care provider” means—
(A) a doctor of medicine or osteopathy who is authorized to practice medicine or surgery (as appropriate) by the State in which the doctor practices; and
(B) any other person determined by the Director of the Office of Personnel Management to be capable of providing health care services;
(3) the term “parent” means the biological parent of an employee or an individual who stood in loco parentis to an employee when the employee was a son or daughter;
(4) the term “reduced leave schedule” means a leave schedule that reduces the usual number of hours per workweek, or hours per workday, of an employee;
(5) the term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider;
(6) the term “son or daughter” means a biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis, who is—
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care because of a mental or physical disability;
(7) the term “covered active duty” means—
(A) 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; and
(B) 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 under a provision of law referred to in section 101(a)(13)(B) of title 10, United States Code;
(8) the term “covered servicemember” means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy;
(9) the term “outpatient status”, with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to—
(A) a military medical treatment facility as an outpatient; or
(B) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients;
(10) the term “next of kin”, used with respect to an individual, means the nearest blood relative of that individual;
(11) the term “serious injury or illness”—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating; and
(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (8)(B), means an injury or illness that was incurred by the member in line of duty on active duty in the Armed Forces (or existed before the beginning of the member’s active duty and was aggravated by service in line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran; and
(12) the term “veteran” has the meaning given the term in section 101 of title 38, United States Code.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 19; amended Pub. L. 104–1, title II, § 202(c)(2), Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–181, div. A, title V, § 585(b)(1), Jan. 28, 2008, 122 Stat. 131; Pub. L. 111–84, div. A, title V, § 565(b)(1)(A), (2), (3), Oct. 28, 2009, 123 Stat. 2311, 2312; Pub. L. 116–283, div. A, title XI, § 1103(f)(2), Jan. 1, 2021, 134 Stat. 3889; Pub. L. 118–31, div. A, title XI, § 1114(a), Dec. 22, 2023, 137 Stat. 432.)
§ 6382. Leave requirement
(a)
(1) Subject to section 6383 and subsection (d)(2) of this section, an employee shall be entitled to a total of 12 administrative workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the employee’s position.
(E) Because of any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
(2) The entitlement to leave under subparagraph (A) or (B) of paragraph (1) based on the birth or placement of a son or daughter shall expire at the end of the 12-month period beginning on the date of such birth or placement.
(3) Subject to section 6383, an employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember shall be entitled to a total of 26 administrative workweeks of leave during a 12-month period to care for the servicemember. The leave described in this paragraph shall only be available during a single 12-month period.
(4) Subject to subsection (d)(2), during the single 12-month period described in paragraph (3), an employee shall be entitled to a combined total of 26 administrative workweeks of leave under paragraphs (1) and (3). Nothing in this paragraph shall be construed to limit the availability of leave under paragraph (1) during any other 12-month period.
(b)
(1) Leave under subparagraph (A) or (B) of subsection (a)(1) shall not be taken by an employee intermittently or on a reduced leave schedule unless the employee and the employing agency of the employee agree otherwise. Subject to paragraph (2), subsection (e)(2), and subsection (b)(5) or (f) (as appropriate) of section 6383, leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) may be taken intermittently or on a reduced leave schedule when medically necessary. Subject to subsection (e)(3) and section 6383(f), leave under subsection (a)(1)(E) may be taken intermittently or on a reduced leave schedule. In the case of an employee who takes leave intermittently or on a reduced leave schedule pursuant to this paragraph, any hours of leave so taken by such employee shall be subtracted from the total amount of leave remaining available to such employee under subsection (a), for purposes of the 12-month period involved, on an hour-for-hour basis.
(2) If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3), that is foreseeable based on planned medical treatment, the employing agency may require such employee to transfer temporarily to an available alternative position offered by the employing agency for which the employee is qualified and that—
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave than the regular employment position of the employee.
(c) Except as provided in subsection (d), leave granted under subsection (a) shall be leave without pay.
(d)
(1) An employee may elect to substitute for leave under subparagraph (C), (D), or (E) of subsection (a)(1) any of the employee’s accrued or accumulated annual or sick leave for any part of the 12-week period of leave under such subsection, except that nothing in this subchapter shall require an employing agency to provide paid sick leave in any situation in which such employing agency would not normally provide any such paid leave. An employee may elect to substitute for leave under subsection (a)(3) any of the employee’s accrued or accumulated annual or sick leave for any part of the 26-week period of leave under such subsection.
(2)
(A) An employee may elect to substitute for any leave without pay under subparagraph (A) or (B) of subsection (a)(1) any paid leave which is available to such employee for that purpose.
(B) The paid leave that is available to an employee for purposes of subparagraph (A) is—
(i) 12 administrative workweeks of paid parental leave under this subparagraph in connection with the birth or placement involved; and
(ii) during the 12-month period referred to in subsection (a)(1), and in addition to the 12 administrative workweeks under clause (i), any annual or sick leave accrued or accumulated by such employee.
(C) Nothing in this subsection shall be considered to require that an employee first use all or any portion of the leave described in subparagraph (B)(ii) before being allowed to use the paid parental leave described in subparagraph (B)(i).
(D) Paid parental leave under subparagraph (B)(i)—
(i) shall be payable from any appropriation or fund available for salaries or expenses for positions within the employing agency;
(ii) shall not be considered to be annual or vacation leave for purposes of section 5551 or 5552 or for any other purpose; and
(iii) if not used by the employee before the end of the 12-month period (as referred to in subsection (a)(1)) to which it relates, shall not accumulate for any subsequent use.
(E) Nothing in this paragraph shall be construed to modify the requirement to complete at least 12 months of service as an employee (within the meaning of section 6381(1)(A)) before the date of the applicable birth or placement involved to be eligible for paid parental leave under subparagraph (B)(i) of this paragraph.
(F)
(i) An employee may not take leave under this paragraph unless the employee agrees (in writing), before the commencement of such leave, to work for the applicable employing agency for not less than a period of 12 weeks beginning on the date such leave concludes.
(ii) The head of the agency shall waive the requirement in clause (i) in any instance where the employee is unable to return to work because of the continuation, recurrence, or onset of a serious health condition (including mental health), related to the applicable birth or placement of a child, of the employee or the child.
(iii) The head of the employing agency may require that an employee who claims to be unable to return to work because of a health condition described under clause (ii) provide certification supporting such claim by the health care provider of the employee or the child (as the case may be). The employee shall provide such certification to the head in a timely manner.
(G)
(i) If an employee fails to return from paid leave provided under this paragraph after the date such leave concludes, the employing agency may recover, from such employee, an amount equal to the total amount of Government contributions paid by the agency under section 8906 on behalf of the employee for maintaining such employee’s health coverage under chapter 89 during the period of such leave.
(ii) Clause (i) shall not apply to any employee who fails to return from such leave due to—(I) the continuation, recurrence, or onset of a serious health condition as described under, and consistent with the requirements of, subparagraph (F); or(II) any other circumstance beyond the control of the employee.
(e)
(1) In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) or under subsection (a)(3) is foreseeable based on an expected birth or placement, the employee shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the birth or placement requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(2) In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) is foreseeable based on planned medical treatment, the employee—
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employing agency, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and
(B) shall provide the employing agency with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(3) In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, whether because the spouse, or a son, daughter, or parent, of the employee is on covered active duty, or because of notification of an impending call or order to covered active duty, the employee shall provide such notice to the employer as is reasonable and practicable.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 20; amended Pub. L. 110–181, div. A, title V, § 585(b)(2)–(3)(C), Jan. 28, 2008, 122 Stat. 132; Pub. L. 110–417, [div. A], title X, § 1061(b)(2), Oct. 14, 2008, 122 Stat. 4612; Pub. L. 111–84, div. A, title V, § 565(b)(1)(B), (4), Oct. 28, 2009, 123 Stat. 2311, 2312; Pub. L. 116–92, div. F, title LXXVI, § 7602(a), (b), Dec. 20, 2019, 133 Stat. 2304, 2305; Pub. L. 116–283, div. A, title XI, § 1103(f)(3), Jan. 1, 2021, 134 Stat. 3889.)
§ 6383. Certification
(a) An employing agency may require that a request for leave under subparagraph (C) or (D) of section 6382(a)(1) be supported by certification issued by the health care provider of the employee or of the son, daughter, spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely manner, a copy of such certification to the employing agency.
(b) A certification provided under subsection (a) shall be sufficient if it states—
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4)
(A) for purposes of leave under section 6382(a)(1)(C), a statement that the employee is needed to care for the son, daughter, spouse, or parent, and an estimate of the amount of time that such employee is needed to care for such son, daughter, spouse, or parent; and
(B) for purposes of leave under section 6382(a)(1)(D), a statement that the employee is unable to perform the functions of the position of the employee; and
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment.
(c)
(1) In any case in which the employing agency has reason to doubt the validity of the certification provided under subsection (a) for leave under subparagraph (C) or (D) of section 6382(a)(1), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a second health care provider designated or approved by the employing agency concerning any information certified under subsection (b) for such leave.
(2) Any health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employing agency.
(d)
(1) In any case in which the second opinion described in subsection (c) differs from the original certification provided under subsection (a), the employing agency may require, at the expense of the agency, that the employee obtain the opinion of a third health care provider designated or approved jointly by the employing agency and the employee concerning the information certified under subsection (b).
(2) The opinion of the third health care provider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employing agency and the employee.
(e) The employing agency may require, at the expense of the agency, that the employee obtain subsequent recertifications on a reasonable basis.
(f) An employing agency may require that a request for leave under paragraph (1)(E) or (3) of section 6382(a) be supported by a certification issued at such time and in such manner as the Office of Personnel Management may by regulation prescribe.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 21; amended Pub. L. 110–181, div. A, title V, § 585(b)(3)(D), Jan. 28, 2008, 122 Stat. 132; Pub. L. 111–84, div. A, title V, § 565(b)(1)(C), Oct. 28, 2009, 123 Stat. 2311.)
§ 6384. Employment and benefits protection
(a) Any employee who takes leave under section 6382 for the intended purpose of the leave shall be entitled, upon return from such leave—
(1) to be restored by the employing agency to the position held by the employee when the leave commenced; or
(2) to be restored to an equivalent position with equivalent benefits, pay, status, and other terms and conditions of employment.
(b) The taking of leave under section 6382 shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.
(c) Except as otherwise provided by or under law, nothing in this section shall be construed to entitle any restored employee to—
(1) the accrual of any employment benefits during any period of leave; or
(2) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(d) As a condition to restoration under subsection (a) for an employee who takes leave under section 6382(a)(1)(D), the employing agency may have a uniformly applied practice or policy that requires each such employee to receive certification from the health care provider of the employee that the employee is able to resume work.
(e) Nothing in this section shall be construed to prohibit an employing agency from requiring an employee on leave under section 6382 to report periodically to the employing agency on the status and intention of the employee to return to work.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 22.)
§ 6385. Prohibition of coercion
(a) An employee shall not directly or indirectly intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce, any other employee for the purpose of interfering with the exercise of any rights which such other employee may have under this subchapter.
(b) For the purpose of this section—
(1) the term “intimidate, threaten, or coerce” includes promising to confer or conferring any benefit (such as appointment, promotion, or compensation), or taking or threatening to take any reprisal (such as deprivation of appointment, promotion, or compensation); and
(2) the term “employee” means any “employee”, as defined by section 2105.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 22.)
§ 6386. Health insurance
An employee enrolled in a health benefits plan under chapter 89 who is placed in a leave status under section 6382 may elect to continue the health benefits enrollment of the employee while in such leave status and arrange to pay currently into the Employees Health Benefits Fund (described in section 8909), the appropriate employee contributions.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 23.)
§ 6387. Regulations
The Office of Personnel Management shall prescribe regulations necessary for the administration of this subchapter. The regulations prescribed under this subchapter shall, to the extent appropriate, be consistent with the regulations prescribed by the Secretary of Labor to carry out title I of the Family and Medical Leave Act of 1993.
(Added Pub. L. 103–3, title II, § 201(a)(1), Feb. 5, 1993, 107 Stat. 23.)