OPM Issues Direct Final Rule Updating Federal FMLA Regulations to Reflect 2021 and 2023 Statutory Changes

What the Rule Does

The Office of Personnel Management (OPM) is issuing a direct final rule amending its Family and Medical Leave Act (FMLA) regulations in subpart L of part 630 of title 5, Code of Federal Regulations (5 CFR 630). The rule makes technical revisions to reflect statutory amendments enacted in January 2021 and December 2023. Specifically, the rule reflects three changes: it makes virtually all Federal civilian service and certain honorable active military service qualify for determining FMLA eligibility; it makes clear that annual and sick leave provided under an authority outside of title 5, United States Code, may be substituted for unpaid FMLA leave; and it excludes certain Veterans Health Administration (VHA) employees from title 5 FMLA coverage.

Background and Dual FMLA Authorities

The document explains that the Family and Medical Leave Act of 1993, as amended, provides eligible employees with unpaid, job-protected leave for specified family and medical reasons under one of two separate and independent authorities — title I and title II of the FMLA. Title II, generally referred to as "title 5 FMLA," added a Family and Medical Leave subchapter in chapter 63 of title 5 of the United States Code and is administered by OPM; it applies to most Federal employees covered by the Federal leave system and some additional employee categories. Title I of FMLA, administered by the Department of Labor (DOL), applies to private sector employees, State and local government employees, and some Federal employees — including employees of the U.S. Postal Service and the Postal Regulatory Commission. DOL's FMLA regulations are found in 29 CFR part 825 and, the document states, should not be applied to employees covered by title 5 FMLA.

Effect on Paid Parental Leave

According to the rule, the 2021 and 2023 statutory amendments also affect an employee's eligibility for paid parental leave (PPL), because PPL is a type of paid leave that is substituted for unpaid FMLA leave. To be eligible for PPL, an employee must meet all eligibility requirements for use of FMLA leave as a covered employee and must have completed at least 12 months of qualifying service, as required by 5 U.S.C. 6381(1)(B). OPM notes that on August 10, 2020, it issued interim final FMLA/PPL regulations (85 FR 48075) to implement the Federal Employee Paid Leave Act (FEPLA), which authorizes the substitution of up to 12 weeks of PPL for unpaid FMLA leave granted in connection with the birth of an employee's son or daughter or the placement of a son or daughter for adoption or foster care. Because the 2021 and 2023 amendments affect FMLA eligibility, OPM states, those amendments and this rule therefore also affect PPL eligibility.

From Guidance to Regulation

The document explains that the 2021 and 2023 statutory amendments were enacted after OPM's interim final FMLA/PPL rule was published and have since been implemented through policy guidance in two OPM memoranda to heads of agencies: "Technical Amendments Related to Family and Medical Leave and Paid Parental Leave under Section 1103 of the National Defense Authorization Act for Fiscal Year 2021" (CPM 2021-07, January 14, 2021), and "Amendment Related to Inclusion of Certain Military Active Service for Family and Medical Leave and Paid Parental Leave Eligibility Purposes under Section 1114 of the National Defense Authorization Act for Fiscal Year 2024" (CPM 2024-05, February 13, 2024). The rule states that the changes it makes implement clear statutory requirements and codify the guidance found in those memoranda.

Statutory Basis

The January 2021 amendments derive from Section 1103(f) of the William M. (Mac) Thornberry National Defense Authorization Act (NDAA) for Fiscal Year 2021, Public Law 116-283, enacted January 1, 2021. The December 2023 amendments derive from Section 1114(a) of the NDAA for Fiscal Year 2024, Public Law 118-31, enacted December 22, 2023.

What to Watch

This rule is structured as a direct final rule and is effective December 14, 2026, unless significant adverse comments are received by November 16, 2026. If significant adverse comments are received, OPM has stated it will withdraw the affected provisions of the rule and issue a notice of proposed rulemaking in their place.

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