The Office of Personnel Management will issue an interim final rule in the Federal Register Aug. 10 that clarifies when and how federal employees can use paid parental leave authorized under the Federal Employee Paid Leave Act as part of the National Defense Authorization Act for fiscal year 2020.

The act enables federal employees to substitute 12 weeks of paid leave for the same amount of time of unpaid leave authorized under the Family and Medical Leave Act of 1993.

But not all of the circumstances covered by unpaid leave apply to the new paid leave provisions.

Federal employees covered by the act may only take paid parental leave after the birth or placement of a child and may only do so within a 12-month window of that birth or placement.

Unpaid family leave is authorized for the above reasons and for employees to take care of themselves or a sick relative, and employees may take that leave in advance of a child being born or placed in their household in order to attend necessary adoption or foster meetings or due to health complications resulting from an employee or their partner’s pregnancy.

Paid parental leave, on the other hand, may only be taken after a child is born or placed in the household.

This would not prevent an employee from taking some unpaid leave prior to that event, then using paid leave once the child is born or placed. But since the paid leave is used as a substitute for unpaid, the amount of paid leave available would be reduced by the amount of unpaid leave taken in advance.

Employees are also allowed to use sick leave or paid time off for time needed prior to a birth or placement.

That paid parental leave also does not roll over from one 12-month period to another, so employees must use it all or lose it.

Because paid parental leave and unpaid family leave have slightly different uses, the interim rule notes that it is possible to have a situation where an employee uses some unpaid leave — kicking off the 12-month limitation period — has a child later in that 12-month period and starts another 12-month unpaid allowance period while on paid leave for the newborn child.

“For example, after not using FMLA leave for at least 12 months, an employee uses a type of FMLA leave (i.e., for birth, placement, serious health condition of employee or certain family members, or exigency related to certain family members being called to active duty) on June 1, 2021, triggering the commencement of a 12-month FMLA period. The employee uses 5 weeks of FMLA unpaid leave in June and July of 2021. Then the employee has a child born on October 15, 2021,” the rule states.

“Because of the 12-week limit, the employee would be able to use no more than 7 additional weeks of FMLA unpaid leave before the end of the 12-month FMLA period expiring on May 31, 2022. However, when the 12-month FMLA period ends on May 31, 2022, the employee may start a new 12-month entitlement to FMLA unpaid leave to care for the child. If the employee invokes FMLA leave in order to care for the child starting on June 1, 2022, a new 12-month FMLA period would begin at that time. However, the entitlement to FMLA unpaid leave based on the birth of a child ends 12 months after the date of birth; therefore, the employee would have the period from June 1, 2022, through October 14, 2022, to use up to 12 weeks of additional FMLA leave. Since the 12-month period after birth or placement includes parts of two 12-month FMLA periods, the employee could have more than 12 weeks of FMLA unpaid leave; however, only 12 weeks of paid parental leave could be substituted in connection with this particular birth or placement during the 12-month period that begins on the date of the child’s birth or placement.”

The paid parental leave applies to full-time, non-seasonal employees and part time or seasonal employees that meet certain eligibility covered under Title 5 of U.S. Code, but not to intermittent or temporary employees. The focus on predominantly Title 5 employees, with some exceptions like Title 2 legislative employees, means that many workers at some agencies, “such as the U.S. Postal Service, the Postal Regulatory Commission, the Federal Reserve Board, the Federal Aviation Administration, and the Transportation Security Administration are excluded,” a point that has been behind many of the calls for a follow-up bill to ensure that all feds are covered.

Some agencies like FAA and TSA do have independent authorities that would enable them to provide a paid parental leave option, and TSA screener personnel are covered under Title 5.

Under the current applications, OPM estimated that approximately 2 million feds are entitled to the new paid leave.

“If each birth event resulted in 12 weeks of paid parental leave for an affected employee, OPM estimated that the total value of the salary paid during parental leave in a year would be approximately $900 million. This equals about 0.54 percent of total basic payroll for the 1.9 million Federal employees in OPM’s study population,” the rule states.

The availability of paid parental leave goes into effect for any birth or placement occurring on or after Oct. 1, and comments on the interim rule are due by Sept. 9.

This article has been updated with more precise information on the employees covered.

Jessie Bur covers federal IT and management.

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