5 U.S.C. § 6382 — Leave requirement

Page 837 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6382 2009—Par. (7). Pub. L. 111–84, § 565(b)(1)(A), amended par. (7) generally. Prior to amendment, par. (7) read as follows: ‘‘the term ‘active duty’ means duty under a call or order to active duty under a provision of law re- ferred to in section 101(a)(13)(B) of title 10;’’. Par. (8). Pub. L. 111–84, § 565(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows: ‘‘the term ‘covered servicemember’ means a member of the Armed Forces, including a member of the National Guard or Reserves, who is undergoing medical treat- ment, recuperation, or therapy, is otherwise in an out- patient status, or is otherwise on the temporary dis- ability retired list, for a serious injury or illness;’’. Pars. (11), (12). Pub. L. 111–84, § 565(b)(3), added pars. (11) and (12) and struck out former par. (11) which read as follows: ‘‘the term ‘serious injury or illness’, in the case of a member of the Armed Forces, means an injury or illness incurred by the member in line of duty on ac- tive duty in the Armed Forces that may render the member medically unfit to perform the duties of the member’s office, grade, rank, or rating.’’ 2008—Pars. (7) to (11). Pub. L. 110–181 added pars. (7) to (11). 2004—Par. (1)(A). Pub. L. 108–271 substituted ‘‘Govern- ment Accountability Office’’ for ‘‘General Accounting Office’’. 1995—Par. (1)(A). Pub. L. 104–1 struck out ‘‘and’’ after ‘‘District of Columbia’’ and inserted ‘‘, and any em- ployee of the General Accounting Office or the Library of Congress’’ before semicolon. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1995 AMENDMENT Amendment by Pub. L. 104–1 effective 1 year after transmission to Congress of the study under section 1371 of Title 2, The Congress, see section 1312(f)(2) of Title 2. The study required under section 1371 of Title 2, dated Dec. 31, 1996, was transmitted to Congress by the Board of Directors of the Office of Compliance on Dec. 30, 1996. EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, see sec- tion 405(b)(1) of Pub. L. 103–3, set out as a note under section 2601 of Title 29, Labor. REGULATIONS Pub. L. 111–84, div. A, title V, § 565(b)(5), Oct. 28, 2009, 123 Stat. 2312, provided that: ‘‘In prescribing regula- tions to carry out the amendments made by this sub- section [amending this section and sections 6382 and 6383 of this title], the Office of Personnel Management shall consult with the Secretary of Defense and the Secretary of Veterans Affairs, as applicable.’’ § 6382. Leave requirement (a)(1) Subject to section 6383 and subsection (d)(2) of this section, an employee shall be enti- tled 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 aris- ing out of the fact that the spouse, or a son, daughter, or parent of the employee is on cov- ered active duty (or has been notified of an im- pending call or order to covered active duty) in the Armed Forces. (2) The entitlement to leave under subpara- graph (A) or (B) of paragraph (1) based on the birth or placement of a son or daughter shall ex- pire 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 para- graph shall only be available during a single 12- month period. (4) Subject to subsection (d)(2), during the sin- gle 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 avail- ability 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 em- ployee 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 sub- section (b)(5) or (f) (as appropriate) of section 6383, leave under subparagraph (C) or (D) of sub- section (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 para- graph, any hours of leave so taken by such em- ployee shall be subtracted from the total amount of leave remaining available to such em- ployee 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 sub- paragraph (C) or (D) of subsection (a)(1) or under subsection (a)(3), that is foreseeable based on planned medical treatment, the employing agen- cy may require such employee to transfer tem- porarily to an available alternative position of- fered by the employing agency for which the em- ployee 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 with- out pay. (d)(1) An employee may elect to substitute for leave under subparagraph (C), (D), or (E) of sub- section (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 sub- section, except that nothing in this subchapter shall require an employing agency to provide Page 838 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6382 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 an- nual or sick leave for any part of the 26-week pe- riod 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 em- ployee for purposes of subparagraph (A) is— (i) 12 administrative workweeks of paid pa- rental leave under this subparagraph in con- nection 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 ad- ministrative workweeks under clause (i), any annual or sick leave accrued or accumulated by such employee. (C) Nothing in this subsection shall be consid- ered to require that an employee first use all or any portion of the leave described in subpara- graph (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 con- strued to modify the requirement to complete at least 12 months of service as an employee (with- in the meaning of section 6381(1)(A)) before the date of the applicable birth or placement in- volved 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 be- ginning on the date such leave concludes. (ii) The head of the agency shall waive the re- quirement in clause (i) in any instance where the employee is unable to return to work be- cause of the continuation, recurrence, or onset of a serious health condition (including mental health), related to the applicable birth or place- ment of a child, of the employee or the child. (iii) The head of the employing agency may re- quire 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 pro- vider of the employee or the child (as the case may be). The employee shall provide such cer- tification 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 con- tributions 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, sub- paragraph (F); or (II) any other circumstance beyond the con- trol of the employee. (e)(1) In any case in which the necessity for leave under subparagraph (A) or (B) of sub- section (a)(1) or under subsection (a)(3) is fore- seeable based on an expected birth or placement, the employee shall provide the employing agen- cy with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s in- tention 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 prac- ticable. (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 em- ployee— (A) shall make a reasonable effort to sched- ule the treatment so as not to disrupt unduly the operations of the employing agency, sub- ject to the approval of the health care pro- vider of the employee or the health care pro- vider of the son, daughter, spouse, parent, or covered servicemember of the employee, as ap- propriate; 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 inten- tion to take leave under such subparagraph, except that if the date of the treatment re- quires leave to begin in less than 30 days, the employee shall provide such notice as is prac- ticable. (3) In any case in which the necessity for leave under subsection (a)(1)(E) is foreseeable, wheth- er because the spouse, or a son, daughter, or par- ent, 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.) Editorial Notes AMENDMENTS 2021—Subsec. (d)(1). Pub. L. 116–283, § 1103(f)(3)(A), struck out ‘‘under subchapter I’’ before ‘‘for any part’’ in two places. Page 839 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 6383 Subsec. (d)(2)(B)(ii). Pub. L. 116–283, § 1103(f)(3)(B), struck out before period at end ‘‘under subchapter I’’. 2019—Subsec. (a)(1). Pub. L. 116–92, § 7602(b)(1), which directed amendment of section 6382(a)(1), without speci- fying the title to be amended, by inserting ‘‘and sub- section (d)(2) of this section’’ after ‘‘section 6383’’ in in- troductory provisions, was executed to this section, to reflect the probable intent of Congress. Subsec. (a)(4). Pub. L. 116–92, § 7602(b)(2), which di- rected amendment of section 6382(a)(4), without speci- fying the title to be amended, by substituting ‘‘Subject to subsection (d)(2), during’’ for ‘‘During’’, was exe- cuted to this section, to reflect the probable intent of Congress. Subsec. (d). Pub. L. 116–92, § 7602(a), designated exist- ing provisions as par. (1), substituted ‘‘subparagraph (C),’’ for ‘‘subparagraph (A), (B), (C),’’, and added par. (2). Amendment made by section 7602(a)(1) directing substitution of ‘‘(1) An employee’’ for ‘‘An employee’’ was executed to ‘‘An employee’’ appearing at the begin- ning of the subsection, to reflect the probable intent of Congress. 2009—Subsec. (a)(1)(E). Pub. L. 111–84, § 565(b)(1)(B)(i), added subpar. (E). Subsec. (b)(1). Pub. L. 111–84, § 565(b)(1)(B)(ii), inserted after second sentence ‘‘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.’’ Subsec. (d). Pub. L. 111–84, § 565(b)(1)(B)(iii), sub- stituted ‘‘(D), or (E)’’ for ‘‘or (D)’’. Subsec. (e)(2)(A). Pub. L. 111–84, § 565(b)(4), substituted ‘‘parent, or covered servicemember’’ for ‘‘or parent’’. Subsec. (e)(3). Pub. L. 111–84, § 565(b)(1)(B)(iv), added par. (3). 2008—Subsec. (a)(3), (4). Pub. L. 110–181, § 585(b)(2), added pars. (3) and (4). Subsec. (b)(1). Pub. L. 110–181, § 585(b)(3)(A)(i), in sec- ond sentence, substituted ‘‘subsection (b)(5) or (f) (as appropriate) of section 6383’’ for ‘‘section 6383(b)(5)’’ and inserted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’. Subsec. (b)(2). Pub. L. 110–181, § 585(b)(3)(A)(ii), in- serted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’. Subsec. (d). Pub. L. 110–181, § 585(b)(3)(B), inserted at end ‘‘An employee may elect to substitute for leave under subsection (a)(3) any of the employee’s accrued or accumulated annual or sick leave under subchapter I for any part of the 26-week period of leave under such subsection.’’ Subsec. (e). Pub. L. 110–181, § 585(b)(3)(C), as amended by Pub. L. 110–417, inserted ‘‘or under subsection (a)(3)’’ after ‘‘subsection (a)(1)’’ in par. (1) and in introductory provisions of par. (2). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2019 AMENDMENT Pub. L. 116–92, div. F, title LXXVI, § 7602(c), Dec. 20, 2019, 133 Stat. 2306, provided that: ‘‘The amendments made by this section [amending this section] shall not be effective with respect to any birth or placement oc- curring before October 1, 2020.’’ EFFECTIVE DATE OF 2008 AMENDMENT Pub. L. 110–417, [div. A], title X, § 1061(b), Oct. 14, 2008, 122 Stat. 4612, provided that the amendment made by section 1061(b)(2) is effective as of Jan. 28, 2008, and as if included in Pub. L. 110–181 as enacted. EFFECTIVE DATE Section effective 6 months after Feb. 5, 1993, see sec- tion 405(b)(1) of Pub. L. 103–3, set out as a note under section 2601 of Title 29, Labor. CLARIFICATION FOR MEMBERS OF THE NATIONAL GUARD AND RESERVES: EXECUTIVE BRANCH EMPLOYEES Pub. L. 116–92, div. F, title LXXVI, § 7605(a), Dec. 20, 2019, 133 Stat. 2308, provided that: ‘‘For purposes of de- termining the eligibility of an employee who is a mem- ber of the National Guard or Reserves to take leave under section 6382(a) of title 5, United States Code, or to substitute such leave pursuant to subsection (d)(2)(A) of section 6382 of such title (as added by sec- tion 1102 [probably means section ‘‘7602’’ of Pub. L. 116–92]), any service by such employee on active duty (as defined in section 6381(7) of such title) shall be counted as service as an employee for purposes of sec- tion 6381(1)(B) of such title.’’ § 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 em- ployee 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 con- dition commenced; (2) the probable duration of the condition; (3) the appropriate medical facts within the knowledge of the health care provider regard- ing 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 posi- tion of the employee; and (5) in the case of certification for intermit- tent leave, or leave on a reduced leave sched- ule, 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 ob- tain the opinion of a second health care provider designated or approved by the employing agency concerning any information certified under sub- section (b) for such leave. (2) Any health care provider designated or ap- proved under paragraph (1) shall not be em- ployed 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 origi- nal certification provided under subsection (a), the employing agency may require, at the ex- pense of the agency, that the employee obtain the opinion of a third health care provider des- ignated or approved jointly by the employing agency and the employee concerning the infor- mation certified under subsection (b). (2) The opinion of the third health care pro- vider concerning the information certified under subsection (b) shall be considered to be final and shall be binding on the employing agency and the employee.