HRDG 4630 - Absence and Leave - Section N

In response to Presidential Memorandum, Supporting Access to Leave for Federal Employees, the Office of Personnel Management (OPM) issued CPM 2024-11, Maximizing Access to Leave to Seek Safety and Recover from Domestic Violence, Dating Violence, Sexual Assault, Stalking, and Relates Forms of Abuse or Harassment (Safe Leave) dated May 15, 2024. 

The OPM memo directs agencies to the maximum extent possible to approve leave requests if an employee is requesting time off for qualifying safe leave purposes. 

Note: This is not a new paid leave category. Rather the guidance below explains the existing leave or other time off options and available workplace flexibilities for employees seeking time off for qualifying safe leave purposes. 

Qualifying safe leave purposes are requests for time off by an employee (including requests for the employee to assist a family member):

• To seek safety or recovery from:
  • Domestic or dating violence,
  • Sexual assault,
  • Stalking, or
  • Related forms of abuse or harassment including economic or technological.
• Seeking medical treatment, including seeking mental health services such as counseling or therapy,
• Securing housing or relocating,
• Obtaining services from organizations or groups providing services for survivors of domestic violence, sexual assault, image-based abuse, human trafficking, or stalking,
• Participating in safety planning or taking other actions to increase safety,
• Attending court to obtain a protective order, participate in child custody proceedings, or obtain legal or other victim services, or

Otherwise dealing with the consequences of the abusive behavior, e.g. arranging for childcare, enrolling a family member in a new school due to relocation.

Employees may request time off for safe leave purposes to support their family member. The broad definition of family member is used for this purpose. (See 5 CFR 630.201 and MRP HRDG 4630, Absence and Leave, Definitions). A family member is a:

1. Spouse, and parent(s) thereof;
2. Son(s) and daughter(s), and spouses thereof;
3. Parent(s), and spouse(s) thereof;
4. Brother(s) and sister(s), and spouse(s) thereof;
5. Grandparent(s) and grandchildren, and spouse(s) thereof;
6. Domestic partner and parent(s) thereof, including domestic partners of any individual in 2 through 5 of this definition; and
7. Any individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.

Employees may submit leave requests to their supervisor through WebTA following each Program’s leave requesting procedures. Programs should be accommodating, to the maximum extent practicable as permitted by law, and understand employees may not be able to make advance time-off requests for safe leave purposes. If an employee is unable, for reasons beyond their control, to obtain advance approval for an absence for a valid safe leave purpose, Programs should retroactively approve an appropriate form of approved paid or unpaid leave upon the employee’s return to work.

Note: OPM indicates that an employee should be permitted the opportunity to request leave or other time off through a third party, such as an Employee Assistance Program (EAP) coordinator or other point of contact identified by the agency if the employee does not feel comfortable speaking with a supervisor. Although the supervisor is the only person who can approve the leave, the leave request may be made through the third party.

Employees are not required to provide personal details in their requests for safe leave purposes. However, employees are required to provide enough information in their leave requests, so their supervisors know which type of leave is appropriate (sick leave, annual leave, LWOP under the Family and Medical Leave Act [FMLA], etc.). Supervisors should consider whether an employee is entitled to a certain type of leave (for example, FMLA or sick leave) or whether an employee’s request for leave other than under the FMLA should be granted. 

An employee’s credible statement that they are dealing with domestic or dating violence, sexual assault, stalking, or related forms of abuse or harassment should generally be a sufficient basis for a supervisor to grant leave for qualifying safe leave purposes. If the supervisor deems it necessary to request additional information for purposes of verification, supporting information may include, but need not be limited to, a service provider’s statement, medical records, or a doctor’s statement, as well as a protection order or police or court reports. Under no circumstances is the Program or supervisor to require the employee to contact law enforcement or otherwise report the violence as a condition for approving leave. To do so could place survivors in greater danger.

Available leave options may be different depending on the specific activities and whether employees are engaging in the activities for themselves or are assisting a family member who is engaging in those activities. Each leave option is briefly detailed below.

Annual Leave: Annual leave is granted for all safe leave purposes, including time off for non-medical reasons, for employees to:

• Attend court proceedings to obtain a protective order;
• Obtain legal or other victim services;
• Obtain services from organizations or groups that provide services for survivors of domestic or dating violence, sexual assault, image-based abuse, stalking, or related forms of abuse or harassment;
• Otherwise deal with the consequences of the abusive behavior;
• Participate in child custody proceedings;
• Participate in safety planning or take other actions to increase safety; or
• Secure housing or relocate.

Annual leave can also be used in lieu of sick leave to obtain treatment for illnesses or injuries because of domestic or dating violence, sexual assault, stalking, or related forms of abuse or harassment. An employee has a right to take annual leave, the timing of which is subject to supervisory approval.

Advanced Annual Leave: If an employee has exhausted accrued annual leave, then supervisors should approve an employee’s request to use advanced annual leave in an amount not to exceed the amount the employee would accrue in the remainder of the leave year.
Sick Leave: An employee is entitled to use sick leave, consistent with current law and regulations for granting and using sick leave. Sick leave may be used without limitation when, because of domestic violence, dating violence, sexual assault, stalking, or related forms of abuse or harassment, the employee:

• Receives medical, dental, or optical examination or treatment for injuries (including mental health services such as counseling or therapy provided by a health care provider); or
• Is incapacitated for the performance of duties by physical or mental illness or injury.

For example, an employee who is seeking medical treatment associated with an abuse committed years prior by the employee’s partner, or who is suffering from emotional distress such that the employee is incapacitated for the performance of duties, should be granted sick leave. The date of abuse should not be a factor in approving sick leave. If the employee has exhausted available sick leave, advanced sick leave should be granted to the extent permitted by law.

Sick leave may not be used for safe leave purposes that are not allowable under the sick leave regulations, e.g., participating in child custody proceedings.

Sick Leave for Family Care: An employee is entitled to use up to 13 days (104 hours for FT employees) of sick leave each leave year when, because of abuse or harassment, the employee needs to:

• Provide care for a family member who is incapacitated because of physical or mental illness or injury; or
• Attend to a family member receiving medical, dental, or optical examination or treatment (including mental health services such as counseling or therapy provided by a health care provider).

For example, an employee taking a daughter to receive therapy for trauma associated with online harassment and abuse by a former partner who stalked her using technology and threatened her through online platforms should be granted sick leave for family care. If the employee has exhausted available sick leave, advanced sick leave should be granted.

Sick Leave for a Serious Health Condition of a Family Member: An employee is entitled to use up to 12 weeks (480 hours for FT employees) of sick leave each leave year when, as a result of abuse or harassment, the employee needs to provide care for a family member with a serious health condition, which includes 13 days of sick leave for general family care or bereavement purposes. If the employee previously has used any portion of the 13 days of sick leave for general family care or bereavement purposes in a leave year, that amount must be subtracted from the 12-week entitlement. If an employee has already used 12 weeks of sick leave to care for a family member with a serious health condition, the employee cannot use an additional 13 days in the same leave year for general family care purposes. An employee is entitled to no more than a combined total of 12 weeks of sick leave each leave year for all family care purposes.

In the “Sick Leave for Family Care” example above, if the employee’s child has been diagnosed with chronic depression and anxiety disorder, serious medical conditions requiring ongoing mental health treatment, the employee would be granted sick leave to care for a family member with a serious health condition (that is, up to 12 weeks). If the employee has exhausted available sick leave, the employee would be granted advanced sick leave to care for a family member with a serious health condition. Employees may be advanced up to 240 hours of sick leave. 

Family and Medical Leave Act (FMLA): An employee is entitled to up to 12 weeks of unpaid leave under FMLA if the abuse or harassment results in a serious health condition for the employee that makes the employee unable to perform the essential functions of their position. Under the FMLA, leave can only be used to care for specifically defined group of family members—that is, spouse, son or daughter (under 18 or over 18 but incapable of self-care because of a mental or physical disability), or parent of the employee (see 5 U.S.C. 6381 and 5 CFR 630.1202 for the definition of a family member)—with a serious health condition. Annual leave, sick leave, and donated annual leave under the Voluntary Leave Transfer Program (VLTP) may be substituted for FMLA unpaid leave, as appropriate (see below).

For example, an employee whose 16-year-old daughter needs surgery for an injury caused by the employee’s live-in partner assaulting her is entitled to FMLA leave to care for the daughter with a serious health condition.

LWOP: Programs should grant LWOP to an employee to be absent from work for safe leave purposes, even if the employee has available paid leave. See section 3 of the  Presidential Memorandum, Supporting Access to Leave for Federal Employees, issued by President Biden on February 2, 2023. As with annual leave and advanced leave, Programs should approve requests by employees for LWOP for safe leave purposes. In addition, the Family and Medical Leave Act entitles employees to up to 12 weeks of leave without pay as described further below.

For example, an employee seeking alternative housing because the employee’s partner used all the employee’s finances and restricted access to the employee’s own bank account and credit cards should be granted LWOP if the employee has exhausted available annual and sick leave and has already been granted advanced leave to the maximum extent permitted.

VLTP: An employee is eligible to apply for donated annual leave if the abuse or harassment results in a medical emergency for either the employee or the employee’s family member that is likely to require the employee to be absent from duty for a prolonged period and to result in a substantial loss of income because of the employee’s lack of available paid leave.

In the FMLA example above, the employee whose 16-year-old daughter needs surgery may apply for donated annual leave under the VLTP. If the employee has exhausted available paid leave the employee may qualify for donated annual leave.

WSL: Supervisors may consider granting WSL to an employee who is unable to safely work at an approved location (either an agency worksite or an approved telework/remote work location) because of safety risks associated with domestic or dating violence, dating violence, sexual assault, or stalking, and other related forms of abuse or harassment—for example, an active threat of physical violence at the work location (including such threats communicated online). The granting of WSL depends on the safety risks associated with the given work location.

WSL cannot be based on a safety issue for a family member. For telework and remote work employees, WSL based on a safety risk at the telework/remote worksite can apply only on a workday when the employee is scheduled to work via telework or remote work at the approved telework/remote worksite.

The WSL statute applies only when an employee is prevented from traveling to or performing work at an approved location due to the circumstances set forth in 5 U.S.C. 6329c and 5 CFR part 630, subpart P, and would apply differently depending on the location subject to safety concerns—an agency worksite or a telework/remote work approved alternate location. As it relates to domestic violence and related situations, WSL should be considered in emergency situations to cover an employee who is unable to safely work at an approved location (either an agency worksite or an approved telework/remote work location) because of safety risks associated with domestic or dating violence, sexual assault, stalking, and other related forms of abuse or harassment. For example, if the perpetrator arrives at the employee’s worksite and the employee is unable to safely work because of an active threat of physical violences, the supervisor should grant WSL on that day while the employee is dealing with the safety situation that prevents the employee from safely working at the worksite. Supervisors should consider the following additional guidance:

• Agency worksites that have security measures to limit public access to employees, WSL would not usually be necessary because a perpetrator would not be able to get past building security. However, if the perpetrator is allowed access to the employee (for example, authorized entry into the agency worksite for a meeting or lunch appointment), any escalation and active threat of physical violence to the employee would be an emergency situation that prevents the employee from safely performing work at the normal worksite. Thus, the supervisor may determine that it is appropriate to provide WSL on the affected workday as long as there is a threat to the employee’s safety. If the threat persists beyond that day, the supervisor should immediately consider the need to approve an alternate work location for a temporary period (for example, home, agency telework site, or other safe location).
• Agency worksites without security measures such as those in public service settings or locations without building security, the perpetrator would have access to the employee at the agency worksite. When a perpetrator poses a threat to the employee’s safety at the agency worksite, it would be reasonable for the supervisor to grant WSL for the remainder of the workday—unless the threat is resolved before the end of the workday, or the employee is telework-eligible and is able to work at a safe alternative location approved by the supervisor. If the threat persists beyond that day, the supervisor should immediately consider the need to approve an alternate work location for a temporary period (for example, home, agency telework site, or other safe location).
• At a telework or remote worksite, the perpetrator could have access to the employee. Any escalation and threat to the employee on a workday would prevent the employee from safely performing work at the approved alternate worksite. Thus, it would be reasonable for a supervisor to grant WSL for the remainder of the workday. If the threat persists beyond that day, the supervisor should immediately consider the need to approve an alternate work location for a temporary period.
• If the threat is resolved, the employee would not be eligible for continued use of WSL but should be allowed to take other appropriate leave to recover from the threat incident (for example, annual leave or, if applicable, sick leave).
• If the threat at the agency worksite or the employee’s approved alternate telework/remote work location occurs frequently or over an extended period for the same employee, supervisors should work with Employee Assistance Program (EAP) staff and the Human Resources Division’s Labor Management and Employee Relations staff to establish a safety plan that would allow the employee to perform work at different alternate locations. Once such a safety plan is in place, use of WSL is discontinued.

Credit Hours: Employees under maxiflex may request and be approved to use earned credit hours for these purposes. This includes allowing employees under maxiflex to fully utilize available scheduling flexibilities as outlined in each Program’s maxiflex parameters and scheduling norms. 

Compensatory Time Off in Lieu of Overtime Pay (Comp Time) & Compensatory Time Off for  Travel (CTOT or Travel Comp): Employees with either form of earned compensatory time may request and be approved to use it for these purposes.

Employees under the maxiflex work schedule may be able to use tour flexibilities in lieu of paid leave. Available tour flexibilities include, gliding/flexing, core time deviations and credit hours. 

In addition Telework / Temporary Remote Work may be an option. 

Supervisors should, to the maximum extent practicable, permit a telework-ready employee to work from an alternative agency-approved worksite or to work remotely if the employee (or a family member for whom the employee is caring) is experiencing problems associated with abuse or harassment.* Telework or remote work allows an employee to continue to perform work in an alternate location while keeping safe the employee, the employee’s family members, or the employee’s coworkers. An employee must follow the telework policy for requesting leave and work scheduling changes when performing telework or remote work. If an employee reports that a perpetrator who is posing a threat to the employee knows the location of a possible telework or remote work location, the Program should, if possible, approve an alternative safe work location identified by the employee.

* Note: A telework-ready employee is someone who has been deemed eligible to telework and who has entered into an official telework agreement (2021 Guide to Telework and Remote Work in the Federal Government, page 7).

Supervisors should support employees who choose to make use of these services for safe leave purposes, in addition to any augmenting resources, classes, services, and activities offered. Employees may be granted up to one (1) hour (or more as necessitated by travel) of administrative leave (TC 66) for each EAP counseling session for up to six (6) sessions. 

Note: While EAP may provide referrals for specialized services to employees who need additional support (including victims/survivors of domestic violence, dating violence, sexual assault, stalking, or related forms of abuse or harassment), they should not be utilized as a substitute for victim advocacy programs or for critical incident response.