In December 2019, President Trump signed into law a major improvement in the compensation and benefits package for federal employees as part of the National Defense Authorization Act (NDAA) for fiscal year 2020. This portion of the NDAA provides up to 12 weeks of paid parental leave in connection with the birth, adoption, or foster care placement of a child for employees covered by the Family and Medical Leave Act (FMLA) provisions applicable to federal civilian employees.
This column discusses the specific provisions of this portion of the NDAA.
This portion of the NDAA applies to leave taken in connection with a birth, adoption, or foster care placement of a child occurring after September 30, 2020.
To be eligible for paid parental leave under the authority of Title 5, United States Code, a federal employee must be eligible for FMLA leave under that Title. To meet FMLA eligibility requirements, the employee must meet the following requirements:
(1) Has completed at least 12 months of Federal service of a type that is covered under the Title 5 FMLA provisions;
(2) Works a part-time (less than 80 hours per pay period) or full-time work schedule. In other words, employees with an intermittent work schedule are ineligible; and
(3) Has a federal work appointment of more than one year in duration. Employees with a temporary appointment not to exceed one year are ineligible.
The federal employee must have a qualifying birth or placement (for adoption or foster care) event of a child occurring after Sept. 30, 2020. An employee who is ineligible for FMLA leave at the time of a qualifying birth or placement may establish FMLA leave eligibility during the 12-month period following the qualifying birth or placement and use paid parental leave during that period.
Leave Entitlement and Usage
The following are the rules regarding an employee requesting leave for the birth of a child or placement of a child for adoption or foster care:
· An employee must invoke FMLA unpaid leave for the birth or a child or placement of a child in order to receive paid parental leave.
· Paid parental leave is limited to 12 weeks in connection with a birth or placement of an employee’s child.
· Paid parental leave is provided via substitution for FMLA unpaid leave. FMLA unpaid leave is provided under the normal rules in the Title 5 law and regulations. For example:
- FMLA unpaid leave is limited to 12 weeks in any 12-month FMLA period, except that an employee may have up to 26 weeks of FMLA unpaid leave during a single 12-month period in order to care for a covered uniformed services member.
In the case of FMLA unpaid leave based on the birth or placement of a child, an employee may not use FMLA leave intermittently unless the employee’s agency agrees.
Each federal employee has a separate entitlement to FMLA unpaid leave. If two covered federal employees are parents of the same newly born or place 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 his or her FMLA unpaid leave).
· Paid parental leave may be used only during the 12-month period following the birth or placement. There are no carryover provisions for any unused paid parental leave. An employee may not be paid for unused or expired paid parental leave.
· For employee who use leave on an hourly basis (including fractions of an hour), the 12-week paid parental leave entitlement will be 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 times 40 hours per week); for a half-time employee, the entitlement will be 240 hours (12 weeks times 20 hours per week).
· Paid parental leave is available as long as an employee has a continuing parental rate in connection with the child whose birth or placement was the basis for the leave entitlement.
· Use of paid parental leave is reserved for periods when an employee is acting in a parental role and engaged in activities related to the care of the child whose birth or placement triggered the leave entitlement. Using paid parental leave for these purposes supports the objective of increased parent-child bonding.
· An agency may not require employees to use annual leave or sick leave before requesting paid parental leave.
· At the request of the employee’s agency, an employee must provide the agency with appropriate documentation showing that the employee’s use of parental leave is directly connected to a birth or placement that has occurred.
Prior to using paid parental leave, an employee is required to enter into a written service agreement to work for the applicable employing agency for 12 weeks after the day on which paid parental leave concludes, which day is: (1) the workday on which an employee finished using the 12 work weeks of paid parental leave; or (2) if the employee uses less than 12 workweeks of paid parental leave during the 12-month period following the birth or placement, the last workday on which the employee used paid parental leave in connection with the given child.
Any periods of work between intermittent uses of paid parental leave do not count toward completion of the 12-work week obligation. The work obligation is met by performing work after use of paid use of paid parental leave concludes. After use of paid parental leave concludes. The 12-work week obligation is statutorily fixed and applies regardless of the actual amount of leave used. That means an employee who uses less than 12 weeks of paid parental leave would still be obligated to work 12 weeks. The work obligation refers to a period during which the employee is in a duty status. Any periods of paid or unpaid leave or time off or other periods of nonduty status, such as furlough or AWOL, will not count toward the 12-week work obligation.
Reimbursement of Agency Costs for Health Insurance
Failure to complete the 12-week work obligation may result in an employee being required to make a reimbursement to the agency (or agencies) that employed the employee during use of paid parental leave. The determination to impose the reimbursement is at the agency’s sole and exclusive discretion unless a waiver is required by statute and regulation.
The reimbursement is equal to the total amount of the Government contribution the agency paid to maintain the employee’s health insurance coverage under the Federal Employees Health Benefits Program during the period that paid parental leave was used. If the agency determines that reimbursement must be made, it must seek collection of the full amount. There is no authority for a partial waiver of the amount owed.
If an employee transfers between agencies while using paid parental leave in connection with a birth or placement, the work obligation will be owed to the agency employing the employee at the time use of paid parental leave concludes. That agency will be responsible for documenting whether the employee fulfills the work obligation. Each agency that incurred costs for the employee’s health insurance during use of paid parental leave will make its own determination about whether to apply the reimbursement requirement.
Multiple Birth/Placement Events
If an employee has multiple children born or placed on the same day, the multiple childbirth/placement event is considered to be a single event that initiates a single entitlement of up to 12 weeks of paid parental leave.
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, each event will generate a 12-week entitlement to be used during the 12-month period following birth/placement.
Each agency has its own form for requesting paid parental leave (PPL) as well as an agreement form to complete the 12-week work obligation. Employees should contact their agency Human Resources office for further information on paid parental leave.