appointment. However, under 5 U.S.C. 6381(1)(B), temporary and intermittent service is specifically excluded as creditable service for determining the 12-month service requirement. Therefore, the recommendation cannot be adopted.
The following definitions were revised, deleted, or added in the final regulations:
Continuing treatment by a health care provider. The term was deleted as a separate definition because it was incorporated in the expanded definition of "serious health condition" in the final regulations. This is consistent with DOL's final regulations.
Essential functions. The Equal Employment Opportunity Commission recommended that the citation used in defining essential functions be revised to reference only the applicable provision--i.e., 29 CFR 1630(n), rather than the whole section--i.e., 29 CFR 1630. We agree. In addition, the revised definition states that if an employee must be absent from work to receive medical treatment for a serious health condition, the employee is considered to be unable to perform the essential functions of the position during the absence for treatment. This is consistent with DOL's regulations.
Foster care. This term was clarified by adding a statement that removal of a child from parental custody must be the result of State action even if the placement for foster care is with relatives. This is consistent with DOL's regulations.
Health Care Provider. Several commenters recommended revising the definition to include health care providers who are recognized by the Federal Employees Health Benefits Program or health care providers who are licensed by a State. OPM agrees and has revised the regulations to include health care providers who are recognized by the Federal Employees Health Benefits Program or who are licensed or certified under Federal or State law to provide the service in question.
Two agencies recommended that the definition of "health care provider" be broadened to include traditional healing practitioners--i.e., healer, shaman, or medicine man--who are recognized by Native American traditional religious leaders to perform traditional healing methods. The agencies were concerned that denial of leave under the FMLA for purposes of traditional healing could give rise to complaints of discrimination based on race or religion or litigation based on a perceived violation of the Native American Religious Freedom Act. The Act states that it "shall be the policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise the[ir] traditional religions . . . , including but