As we all know (or should know), every year Congress has to provide funding for our national defense. Because it’s considered political suicide to delay this funding, the annual National Defense Authorization Act (NDAA) is considered “must pass,” and precisely because it has to pass, the NDAA is a natural repository for all kinds of provisions that then become law. The 2021 NDAA, passed in December 2020, includes such a provision.
On February 16, 2021, the Office of Personnel Management (OPM) issued an informational memo to the heads of Executive Departments and Agencies regarding “Recent Pay and Leave-Related Legislative Changes.” One notable change highlighted in the memo concerns the “technical amendments” to the 2021 “Federal Employees Paid Leave Act,” which expands paid parental leave to around 100,000 federal employees.
The Federal Employees Paid Leave Act (FEPLA), originally passed in December 2019 as part of the 2020 NDAA, provides up to 12 weeks of paid parental leave to most, but not all, federal employees. As of October 1, 2020, eligible employees under FEPLA could request paid leave for births, adoptions, or placements occurring on or after October 1, 2020.
The initial legislation only applied to those federal employees hired under Title 5 and TSA screeners, thus inadvertently excluding several groups of federal employees. Those excluded included employees of the Federal Aviation Administration (FAA), Transportation Security Administration (TSA) (those not involved in screening), Title 38 employees (the majority of individuals employed by the Department of Veterans Affairs (VA)), and the DC Courts and DC Public Defender Service.
Revised Legislation Expanding FEPLA Coverage
Fortunately, however, Congress rectified this mistake in the 2021 NDAA enacted on January 1, 2021, by adopting “technical amendments” to the FEPLA. The legislation expands paid parental leave coverage to several groups, including:
- DC courts and the DC Public Defender Service employees
- FAA employees
- Non-screeners at TSA
- Title 38 employees, largely including health professionals at the VA
- Employees of the Executive Office of the President
As in the original legislation, these technical amendments apply to any birth, adoption, or foster placement occurring on or after October 1, 2020, and provide for up to 12 weeks of paid leave.
Benefits and Obligations Under FEPLA
The paid leave benefit is triggered upon the birth, adoption, or foster placement of a child of an employee who has at least 12 months of service in the federal government. Thus, FEPLA is not available for any purpose prior to the actual birth or placement of the child. However, an employee may use sick or annual leave, or unpaid FMLA leave if it is needed. Note that if both parents in the same household are federal employees, each of them is entitled to the 12 weeks of paid leave, for a total of 24 weeks for the family.
In addition to the requirement of 12 months of prior service, employees must also agree (in writing) to work for 12 weeks at the agency after the conclusion of the paid leave. If the leave is used intermittently (i.e., not 12 weeks in a row), work between leave uses does not count towards the obligation. In addition, the employee must commit to 12 weeks even if they used less than the maximum of 12 weeks. An employee fails to meet this requirement if they separate from the agency before completing the 12-week work obligation. Importantly, however, an intra-agency reassignment (without a break in service) is not a separation. If a benefitting employee fails to meet this requirement, the agency may require the employee to reimburse the agency for the amount of time used.
However, if a parent or child, in connection with the birth, adoption, or placement, is suffering from a serious health condition (including mental health), an agency head must waive the obligation.
Federal employees seeking to benefit from paid parental leave must be prepared to submit supporting documents. According to OPM, “the regulations do not provide an exhaustive list but rather provide that an agency is responsible for determining what documentation is sufficient proof of entitlement.” For childbirth, for example, OPM suggests agencies ask for documents such as birth certificates, consular reports for births abroad, hospital admission forms associated with delivery, or documentation provided by the child’s healthcare provider. If you anticipate requesting paid parental leave, ask your agency’s Human Resources department for more information on how to formally request paid leave and what documents it will require.
How FEPLA Interacts with FMLA
It is important for federal employees to understand how paid parental leave interacts with the Family Medical Leave Act (FMLA). An employee must be eligible for FMLA in order to be eligible for paid parental leave. According to OPM, following the 2021 technical amendments “virtually all types of civilian Federal service (including [prior] employment on a temporary or intermittent basis) are now qualifying for purposes of applying the FMLA eligibility requirement for 12 months of qualifying service.”
FMLA allows for up to 12 weeks of unpaid leave for purposes unrelated to the birth, adoption, or placement of a child, such as personal medical leave or leave to care for a sick family member. Notably, paid parental leave is intended as a substitution for FMLA unpaid leave rather than as a supplement. This means that if an employee uses 6 weeks of FMLA leave for personal purposes in a 12-month period, the employee will only have 6 weeks leftover for the birth or placement of a child, and thus, only 6 weeks of eligibility for paid parental leave. Additionally, paid parental leave can only be used for one year following the birth, adoption, or placement of a child; it expires at the end of the 12-month period.
Federal employees who anticipate utilizing paid parental leave should be mindful of any unpaid-FMLA leave requests within the same 12-month period.
If you have questions about your rights and obligations under FEPLA, the attorneys at Kalijarvi, Chuzi, Newman & Fitch may be able to help.
A version of this blog, co-authored by George Chuzi and Rachel Steber appeared in Law360 on March 31, 2021.