By Erich Wagner
The National Treasury Employees Union this week urged the Office of Personnel Management to loosen some of the rules governing the federal government’s paid parental leave policy, which is set to go into effect Oct. 1.
Beginning next month, federal employees will be able to take up to 12 weeks of paid leave in connection with the birth, adoption or foster placement of a child. The measure was included in the 2020 National Defense Authorization Act, and OPM issued interim regulations to implement the program last month.
In comments on the rule submitted on September 8, NTEU National President Tony Reardon said that some elements of OPM’s regulations “are in tension with Congress’ intent” in providing the benefit to federal workers. Under OPM’s rule, for example, employees would have to enter into an agreement electing paid leave prior to the birth or placement of a child—the only way to retroactively claim leave after the birth would be to demonstrate they were “physically or mentally incapable of doing so.” That’s too high a bar for feds to clear in many instances, Reardon wrote.
“Employees who qualify for paid parental leave and who enter into a work obligation agreement should be able to retroactively elect paid leave without having to demonstrate they were physically or mentally incapable of doing so before the birth or placement of a child,” Reardon wrote. “OPM’s standard, moreover, fails to account for the non-birthing parent of a child who is born earlier than expected. The employee may need to leave work immediately, to care for his or her family. This departure might occur before the employee elects paid parental leave and executes a work obligation agreement.”
NTEU also argued that the regulations give too much discretion to agencies to be able to invalidate paid parental leave if an employee fails to provide documentation of a birth or child placement in a “timely” manner, particularly given that OPM acknowledged that “the risk for fraud is low—especially in birth cases.”
“An agency’s discretion to invalidate paid parental leave should be extremely narrow,” Reardon wrote. “Whereas Congress intended to provide a financial benefit to employees, an agency’s invalidation of those benefits could cause financial harm from which the employee and his or her family might never recover . . . Invalidation should be permitted only where an agency has a reasonable basis to suspect fraud and an employee completely and continuously fails to respond to the agency’s request for certification or documentation for the entire duration of the paid parental leave.”
The union also took issue with language in the rule that allows agencies to require follow-up medical exams and certifications, or a second opinion from another provider, after an employee has proven they are unable to return to work after 12 weeks due to a serious medical or mental health condition related to the birth or placement of a child. Reardon said that the law passed by Congress does not authorize an agency to question the conclusions of an employee’s doctor.
“Congress did not condition paid parental leave on an employee giving up medical autonomy,” Reardon wrote. “It did not empower an agency to require that an employee undergo additional physical or mental examinations to avoid financial harm. Neither could the government, in any event, condition the use of paid parental leave on an employee ceding her constitutionally protected interests in this area.”
Reardon also encouraged OPM to add language confirming that federal employees can supplement paid parental leave with annual leave, particularly in cases where they do not feel physically or mentally well enough to return to work at the conclusion of the leave period.