A direct final rule changes how federal service counts toward 12-month FMLA eligibility

On 15 October 2026 the Office of Personnel Management (OPM) published a direct final rule in the Federal Register that updates its Family and Medical Leave Act regulations for federal employees. The changes are technical. They alter how federal service counts toward the 12-month eligibility requirement, which kinds of leave can stand in for unpaid FMLA leave, and which Veterans Health Administration employees remain under the title 5 system.

The rule also sits beside paid parental leave, which OPM set up in 2020. The rule does not add a new subpart Q on paid parental leave. OPM created that subpart in 2020, and the 2026 rule amends the FMLA subpart that sits alongside it.

What the October 15 rule changes

The rule is published as document 2026-21104 at 91 FR 65437. It carries docket OPM-2026-0463 and RIN 3206-AP18. OPM says it revises 5 CFR part 630, subpart L, to match statutory changes enacted in January 2021 and December 2023. Those were Public Law 116-283 and Public Law 118-31.

OPM had already applied both sets of changes through policy memoranda, CPM 2021-07 and CPM 2024-05. The rule puts them into the regulations and states that it creates no new procedures.

The rule applies only to federal agencies and their employees. Private-sector workers remain under Title I of the FMLA, which the Department of Labor administers under 29 CFR part 825.

The regulatory text revises section 630.1201 and adds definitions for active duty, active service and full-time National Guard duty in section 630.1202. Each definition cross-references 10 U.S.C. 101(d).

Key dates in the rule
Comments are due 16 November 2026, and the rule takes effect 14 December 2026 unless significant adverse comments arrive. Submissions are filed under docket OPM-2026-0463.

How federal service counts toward the 12-month requirement

The largest change concerns eligibility. Nearly all federal civilian service now counts toward the 12-month service requirement. That includes temporary and intermittent service, service with the Postal Service and Postal Regulatory Commission, and certain nonappropriated fund service. Honorable active military service also counts, a change added by the December 2023 law.

Service with the Coast Guard and the commissioned corps of the Public Health Service is excluded from that count. Temporary and intermittent employees still cannot use title 5 FMLA leave, even though their service now counts toward the 12 months.

Under OPM’s rules, a covered employee receives 12 workweeks of unpaid leave in any 12-month period. For a full-time employee on an 80-hour biweekly schedule, that equals 480 hours. The 12 months need not be consecutive or recent, and civilian and military service can be combined. The period starts on the first day FMLA leave is used, not on the day it is requested.

Two other changes apply. Annual or sick leave earned under authorities outside title 5 can now be substituted for unpaid FMLA leave. Certain Veterans Health Administration employees covered by 38 U.S.C. 7421 are excluded from title 5 FMLA coverage; the regulation cross-refers to 38 U.S.C. 7425(c).

How paid parental leave works under the 2020 subpart Q

The Federal Employee Paid Leave Act, part of the National Defense Authorization Act for Fiscal Year 2020, was enacted on 20 December 2019. OPM’s interim final rule, published 10 August 2020 at 85 FR 48075, added subpart Q, Paid Parental Leave, to 5 CFR part 630. The subpart covers sections 630.1701 through 630.1708, and the rule took effect on 1 October 2020.

Under the subpart, an eligible employee may substitute up to 12 weeks of paid leave for unpaid FMLA leave tied to the birth or placement of a son or daughter. Only births or placements on or after 1 October 2020 qualify. The paid leave may be used only on or after the birth or placement date and within 12 months of it, and unused leave expires.

Employees need at least 12 months of covered service, and temporary and intermittent employees are excluded. Before leave begins, an employee must agree in writing to work for the agency for 12 weeks after the leave ends. An agency head must waive that requirement if the employee cannot return because of a related serious health condition. If the employee does not return, the agency may, but is not required to, recover health insurance contributions it paid during the leave.

The 2020 rule excluded employees of the Postal Service, the Postal Regulatory Commission, the Federal Reserve Board, the Federal Aviation Administration and the Transportation Security Administration, except TSA screener personnel. OPM estimated about 2 million covered employees.

Foreseeable leave requires at least 30 calendar days’ notice. Intermittent or reduced-schedule leave for a birth or placement requires agreement from both the agency and the employee.

The rule does not add a new subpart Q on paid parental leave.

Where the private-sector FMLA rules differ

For private-sector workers, FMLA leave is unpaid. The Department of Labor’s Fact Sheet #28, revised in March 2025, describes it as job-protected, unpaid leave of up to 12 workweeks in a 12-month period. Employers with 50 or more employees in 20 or more workweeks are covered.

Private-sector employees need 12 months with the employer, at least 1,250 hours of service in the prior 12 months, and a worksite with 50 employees within 75 miles. Employers may require workers to use their own paid leave at the same time as FMLA leave. The qualifying reasons include the birth of a child, placement for adoption or foster care, and care for a child, spouse or parent with a serious health condition.

The federal rules differ in several respects. OPM’s rules have no hours requirement, while the 1,250-hour test applies to private employers. Each parent who is a federal employee has a separate 12-week entitlement for the same child, and OPM contrasts this with the Department of Labor’s combined limit for spouses.

Some federal employees fall under the Department of Labor’s Title I, according to OPM. Those include Postal Service staff. The paid parental leave described above is available to federal employees under subpart Q, and it is not part of the private-sector FMLA framework.

Effective date, comments and open questions

Comments are due 16 November 2026 and may be submitted through regulations.gov under docket OPM-2026-0463. The DATES section gives an effective date of 14 December 2026, unless significant adverse comments arrive. In that case OPM would withdraw the affected provisions and issue a notice of proposed rulemaking.

A passage in the preamble says the rule becomes effective immediately if no significant adverse comments are received.

OPM does not project costs or savings from the rule and says it imposes no new reporting or record-keeping requirements under the Paperwork Reduction Act. The rule is designated significant under Executive Order 12866. Questions may be sent to Julie Ohr of OPM’s Workforce Policy and Innovation office at leavepolicy@opm.gov or (202) 606-2858.

Photo: Joe Flood · CC BY 2.0 · via Wikimedia Commons