On December 20, 2019, President Trump signed the National Defense Authorization Act (NDAA) for Fiscal Year 2020 (FY20), which included the Federal Employee Paid Leave Act (FEPLA). FEPLA amended the Family and Medical Leave Act (FMLA) (5 U.S.C. § 6382(d)) to allow the use of up to 12 weeks of paid parental leave granted in connection with the birth of an employee’s child or the placement of a child with an employee for adoption or foster care.
To be eligible, the employee must meet FMLA eligibility requirements of having at least 12 months of federal service in a part-time or full-time work schedule (temporary appointments not to exceed 1 year and intermittent work schedules are not eligible). Additionally, CBP employees who request paid parental leave must provide documentation and a signed work obligation agreement in which they agree to work for CBP for 12 weeks once the paid parental leave concludes.
The Chief Human Capital Officers Council, in conjunction with the Office of Personnel Management, released key features of these amended regulations including employee eligibility, leave entitlement and usage, work obligation, reimbursement of agency costs for health insurance, employee transfer, and multiple birth/placement events.
Paid Parental Leave (PPL) Under the Family and Medical Leave Act (FMLA)
Employees can only use paid parental leave during the 12-month period following the birth or placement of a new child. They can’t carry over unused parental leave, and they won’t be paid out for unused or expired leave.
An employee (full-time or part-time) is eligible for PPL after completion of 12 months of service (as defined in 5 U.S.C. 205) of the Government of the United States, including service with the United States Postal Service, Post Regulatory Commission, and a non-appropriated fund instrumentality as described in Section 2105(c). Virtually all types of civilian federal service are now qualifying for purposes of applying for FMLA eligibility requirement for 12 months of qualifying service. Those currently employed on temporary or intermittent basis remain ineligible to use FMLA Leave. (Section 1103 of the FY21 NDAA, Public Law 116-283)
FMLA was amended to include PPL which allows the substitution of up to 12 weeks of PPL for FMLA unpaid leave granted in connection with the birth of an employee’s child or the placement of a child with an employee for adoption or foster care.
Yes, two parents of the same child who are employed by the same employer are entitled to a separate 12-workweek entitlement. The entitlement may not be transferred from one employee to another.
An employee may use PPl on an intermittent basis if the employee requests an intermittent arrangement and the employee's supervisor reasonably determines the requested arrangement will not adversely impact the accomplishment of the mission. If an employee requests to use PPL intermittently, the employee must articulate the need for intermittent PPL use and describe on the PPL Request Form how the employee plans to use the PPl, (e.g., provide a schedule of absence using PPL, absence supported by another leave category, or time a duty status).
If the leave-approving supervisor cannot approve the intermittent PPL request based on the information provided, the leave-approving supervisor and the employee will meet within 15 calendar days of submitting the PPL Request Form to discuss the matter. the supervisor or approving official and the employee should attempt to develop alternatives to the employee's request, if possible. This process will be handled on a case-by-case basis and is determined by the information and documentation provided by the employee. Intermittent use is defined as when an employee stops and starts work in periodic intervals or happens irregularly.
Yes, an employee must use PPL within 12 months of the birth or placement of the child. PPL may not be used after the end of the 12-month period beginning on the date of the birth or placement involved. At the end of that 12-month period, any unused balance of PPL granted in connection with the given birth or placement permanently expires and is not available for future use. Unused or expired PPL cannot be reserved for future use or paid out as a lump sum payout.
Yes, there is a service commitment of 12 weeks after the employee returns to work. Under the law, an employee may not use any PPL unless the employee agrees in writing, before commencement of the leave, to subsequently work for DHS for at least 12 weeks. This 12-week work obligation is triggered once the employee’s PPL ends. The work obligation is statutorily fixed at 12 weeks regardless of the amount of PPL used by an employee.
CBP must waive the work obligation if an employee is unable to return to work because of the continuation, recurrence, or onset of a serious health condition (including mental health) of the employee or the newly born or placed child - but only if the condition is related to the applicable birth or placement.
If an employee fails to return to work for the required 12 weeks, the employee may incur a debt based on the total amount of Government contributions paid by CBP on behalf of the employee to maintain the employee’s health insurance coverage during the period of PPL and must reimburse the Government for that amount. This reimbursement provision may be waived if the employee is unable to return to work based upon the continuation, recurrence, or onset of a serious health condition related to the applicable birth or placement. If the employee transfers to an agency outside of DHS components (Department of Defense, Department of Energy, etc.), the 12-week work obligation will be owed to the agency employing the employee at the time PPL concludes.
If CBP determines the employee is unable to return to work for the required 12 weeks because of circumstances beyond his/her control, it may not impose the reimbursement requirement. For example, an employee needing to move because his or her spouse is unexpectedly transferred to a job location more than 75 miles from the employee’s worksite would be considered circumstances beyond the employee’s control.
Yes, employees will still be able to use FMLA unpaid leave for certain purposes related to a serious health condition for themselves or a family member (as defined by FMLA regulations), may be able to substitute annual or sick leave (as appropriate) for such unpaid FMLA leave, and may use FMLA for purposes arising from an anticipated future birth or placement. The total amount of FMLA that can be used in a 12-month period is 12 weeks (or 480 hours) including PPL. In other words, in any 12-month period, an employee can only use 12 weeks of FMLA; an employee cannot use 12 weeks of FMLA plus an additional 12 weeks of FMLA/PPL.
No. Only permanent employees (full-time and part-time) are eligible for FMLA benefits, including PPL.
No. The new definition of placement refers to a new placement. Thus, the term excludes the adoption of a stepchild or a foster child who has already been a member of the employee’s household and has an existing parent-child relationship with an adopting parent. If a foster child is later adopted, the placement has already occurred; there is no new placement with a family that would warrant the use of PPL leave for the same child.
It depends on certain circumstances, such as when the prior leave was used, the date of birth of the child, among other things. Mission Support Specialist or the local Labor and Employee Relations Field Specialist can assist with each individual situation. In this example, since the employee used five weeks of FMLA for a serious health condition prior to the birth, they can use seven weeks of PPL during the 12-month timeframe from when they first started to use FMLA for the serious health condition. Once that 12-month period concludes, they can use their additional five weeks of PPL for the birth or placement of a child, as long as the PPL is taken within 12 months of the birth or placement date.
The law anticipates that PPL would be provided on a prospective basis after an employee requests to use the leave and enters into a work obligation agreement. All information can be updated when the qualifying event occurs. PPL can be granted conditionally until the employee provides the necessary documentation. Once the birth or placement occurs, the employee must provide the approving official with appropriate documentation to support PPL within 15 calendar days from the qualifying event (i.e. the birth or placement of the child).
No. PPL can only be used after the birth or placement. This restriction applies even if an employee used FMLA unpaid leave for birth or placement purposes prior to the birth or placement event.
Yes. An employee must provide CBP with appropriate documentation necessary to establish the employee’s use of PPL is directly connected to a birth or placement. Appropriate documentation could include, but is not limited to, a birth certificate or a document from an adoption or foster care agency regarding the placement. Also, CBP may require that an employee sign a certification attesting that the PPL is being taken in connection with a birth or placement. The employee may also be required to attest that the PPL is being used for appropriate purposes, such as the birth mother’s recovery from giving birth or to care for the child. This employee certification may contain a statement in which the employee acknowledges an understanding of the consequences of engaging in fraud by providing a false certification.
The effective date of an employee’s election of PPL may not be delayed because an employee has not provided requested certifications. However, the granting of PPL will be considered conditional, subject to the employee providing documentation or certification within required time frames. The required time frame is usually 15 calendar days from the date the supervisor requests documentation. If it is not practicable for an employee to respond within the 15-day time frame, despite the employee’s diligent, good faith efforts, the employee must provide the documentation or certification within a reasonable period of time, but no later than 30 calendar days after the date of the supervisor’s original request.
If the requested documentation or certification is not submitted in a timely manner, the agency may cancel the PPL and convert the employee to an appropriate non-pay status, which would result in a salary overpayment debt owed to CBP. An employee may request that the debt be eliminated by applying annual leave or other appropriate types of paid time off to the employee’s credit to the affected periods of time.
The pay an employee receives when using PPL shall be the same pay the employee would receive if the employee were using annual leave. In other words, payroll systems will apply the same rules they apply in determining what pay continues during annual leave. PPL is a type of leave that is counted in applying the 8-hour rule in 5 U.S.C. § 5545(a) and 5 C.F.R. § 550.122(b) that determines whether night pay is payable during periods of leave. This is consistent with the treatment of annual leave.
No. Pay received during PPL may not include Sunday premium pay, consistent with the statutory bar in Section 624 of the Treasury and General Government Appropriations Act, 1999.
Yes, there is a 12-week service commitment. An employee may not use PPL unless the employee agrees in writing before the start of PPL to work for CBP for 12 weeks beginning on the first scheduled workday after such leave concludes. This means that PPL may not be provided to an employee unless the employee enters into such an agreement. To satisfy the work obligation, the employee must complete 12 weeks of work regardless of how much leave he or she takes before satisfying the obligation.
If an employee has multiple children born or placed on the same day, that event will be treated as a single event triggering a single entitlement of up to 12 weeks of PPL during the 12-month period following the event. 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, each subsequent birth or placement event will result in a 12-month period commencing on the date of birth or placement with its own 12-week limit. Any use of PPL during a given 12-month period will count toward that period’s 12-week limit. Thus, when such 12-month periods overlap, any use of PPL during the overlap will count toward each affected 12-month period’s 12-week limit.
If an employee transfers between agencies while using PPL in connection with a birth or placement, the work obligation will be owed to the agency employing the employee at the time use of PPL 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 PPL will make its own determination about whether to apply the reimbursement requirement.
The supervisor of the separated/transferred employee and any servicing Mission Support (or equivalent) must provide Human Resources Management (HRM) Processing and Servicing Center (PSC) the PPL application information (PPL Request form, Work Obligation Agreement, dates, PPL were actually taken, etc.). HRM PSC will submit that information to the National Finance Center to generate a letter of indebtedness, which is sent to the former employee notifying them of the amount owed based upon Government health insurance contributions paid on the days the employee received PPL. This must be initiated by the supervisor; it is not automatic.
No, holidays are not counted since they are non-workdays. The term "work" means a period during which the employee is in a duty status (i.e., actually working), excluding any periods (paid or unpaid) of leave, time off, or another non-duty status. Periods of paid time off include paid holidays on which an employee does not work. Periods of other non-duty status include such periods as a furlough or absence without leave. Any periods of leave, time off, or other periods of non-duty status like a holiday will extend how long it will take the employee to fulfill the 12-weeks of PPL and the time it takes to fulfill their 12-week work obligation.
Time in a non-duty, or non-work, status would not count towards the 12-week work obligation fulfillment. The time would be extended by the days (hours) of leave and holidays.
Yes, with supervisor approval, an employee can take additional leave before or after PPL. There is no requirement to use or exhaust other paid leave types (e.g., annual, sick, etc.) before or after using PPL. PPL can only be used on the qualifying event takes place (birth or placement date) so if time is needed to be taken prior to or after PPL, then the employee would need to follow the proper procedures for requesting leave in accordance with the office's established leave requesting procedures which may include providing acceptable medical documentation for sick leave.
The purpose of PPL is to provide time for the parent/foster parent to bond with the child However, it depends. It will depend on the number of hours worked per day and per week, the type and length of leave, the employee's duties, the statute under which overtime for the employee is authorized, such as Federal Labor Standards Act (FLSA), Federal Employees Pay Act, Customs Overtime Pay Reform Act, or Border Patrol Agent Pay Reform Act (BPAPRA). For FLSA-covered employees on PPL, those hours on paid leave will be considered "hours of work" and as such, the employee could, in theory, volunteer and work overtime. Unpaid leave, however, will not be considered hours of work, so overtime would not be authorized as it would not be beyond 8 hours. For a BPAPRA-covered employee, Office of Personnel Management (OPM) has opined that the statuary and regulatory language requires that some actual work must occur before an agent is able to work overtime. Local human resource offices can provide additional guidance on an employee's particular situation.
The employee would first fill out OPM-71 Request for Leave (or request this in the timekeeping system used) and invoke FMLA. The employee would also fill out DHS Form 253-1 PPL Request Form, which provides leadership with the anticipated dates of PPL. Additionally, the employee would fill out and sign the PPL Work Obligation Agreement.
Once the forms have been provided to the leave-approving official (typically the first-line supervisor), the employee should receive a conditional approval of the anticipated dates of PPL from their leadership. Once the qualifying event occurs, the employee will provide appropriate documentation substantiating the event to their supervisor within 15 days. After returning from PPL, the employee is required to work for 12 weeks in accordance with this work obligation agreement.
To clarify the entitlement for PPL/FMLA for 12 weeks, the time should be converted to hours or days, depending on the nature of an employee's scheduled tour of duty and whether leave is charged on an hour or daily basis. For the majority of employees at CBP, leave is taken in hour (or portions of an hour) increments. For a regular full-time employee who has 80 hours in the biweekly scheduled tour of duty and who is charged leave on an hourly basis, 12 administrative work weeks translate into 480 hours (12 weeks = 6 biweekly pay periods; 6 x 80 hours = 480 hours).