OPM Issues Regulations for Feds’ Paid Parental Leave

The Office of Personnel Management on Friday moved to implement a new benefit providing federal workers with up to 12 weeks of paid parental leave beginning in October.

Last December, Congress passed the Federal Employees Paid Leave Act as part of the 2020 National Defense Authorization Act. That bill provides Title 5 employees and Transportation Security Administration screeners with up to 12 weeks of paid leave in connection with the birth, adoption or foster placement of a child.

An interim final rule slated for publication Monday in the Federal Register lays out exactly how the new program will work. Regarding the start date for the program, federal employees will be eligible for paid parental leave if the child is born or adopted on or after Oct. 1, 2020. If a child is born or adopted on Sept. 30, the parent would not be eligible for the leave and would have to use unpaid or annual leave instead.

The regulations confirm that if both parents in a household are federal employees, each parent would be eligible for 12 weeks of paid leave. In all cases, the leave expires one year after the birth or placement of a child, regardless of whether the employee has used all 12 weeks. Since paid parental leave is not annual leave, it is not eligible for lump sum payment upon an employee leaving federal service.

In order to be eligible for the benefit, a federal employee must have at least 12 months of service in the federal government. Additionally, before taking advantage of the new program, the federal employee must agree to work for 12 weeks at the agency following the completion of their leave period. That requirement can only be waived if the parent or child is suffering from a “serious health condition” related to the birth or placement of the child.

“The work obligation is statutorily fixed at 12 weeks regardless of the amount of leave used by an employee,” OPM wrote. “An agency head must waive the work obligation if an employee is unable to return to work because fo the continuation, recurrence or onset of a serious health condition (including mental health) of the employee or newly born/placed child—but only if the condition is related to the applicable birth or placement.”

The paid parental leave is designed as a substitute for the 12 weeks of unpaid leave available each year under the Family and Medical Leave Act. As a result, a federal employee who takes, for instance, three weeks of FMLA unpaid leave, would only be eligible for nine weeks of paid parental leave within the same year. And an employee who takes 12 weeks of paid parental leave would no longer have access to FMLA unpaid leave for the rest of the year, and instead would have to tap into other leave pools.

“By law, FMLA unpaid leave is generally limited to a total of 12 weeks in any 12-month period,” OPM wrote. “The FMLA unpaid leave is permitted for various purposes, not just a birth or placement event. Thus, use of FMLA unpaid leave for other purposes . . . can—depending on the timeframe in which it is taken—limit the amount of FMLA unpaid leave available for a birth or placement event, and thus limit the amount of paid parental leave that can be substituted for it.”

Initially, these regulations are only guaranteed to apply to federal employees hired under Title 5 and Transportation Security Administration screeners, thanks to a technical error in the law. However, leadership at other agencies, particularly the Veterans Affairs Department, where many employees are hired under Title 38, have vowed to make the leave benefit available beginning in October anyway.

Meanwhile, legislation is working its way through Congress that would codify that all full time federal employees are eligible for the new benefit.