Information accompanying its interim regulations, OPM suggested that agencies use DOL's medical certification form or develop their own form for obtaining medical certification from a health care provider.  DOL has extensively revised its medical certification form.  The new form design is easier to use.  Agencies have had experience using DOL's medical certification form or their own medical certification form for more than 3 years.  We do not believe it would be cost-effective to develop a duplicate medical certification form for use by Federal agencies.  We will, however, make the DOL medical certification form available to agencies on OPM electronic bulletin boards.  OPM Mainstreet may be reached on (202) 606-4800, and PayPerNet may be reached on (202) 606-2675.  The medical certification form will also be posted on OPM's World Wide Web site at www.opm.gov.     

Protection of employment and benefits

One commenter recommended that the regulations include a statement that restoration to an "equivalent position" does not extend to intangible, unmeasurable aspects of the job, such as perceived loss of potential for future promotional opportunities."  We agree that an "equivalent position" does not extend to intangible, unmeasurable aspects of the job and have revised              § 630.1208(b)(5) to include this statement.  However, additional clarification may be needed.  There may be significant aspects of a previous position that an "equivalent position" must retain--e.g., if the previous position was a supervisory or team leader position or had an established career ladder.  Although an "equivalent position" must have the same career-ladder promotion potential, an employee returning from FMLA leave enjoys no greater privileges or protections than other employees and must still meet the agency's requirements for receiving a promotion.

Several commenters asked for clarification and guidance in dealing with probationary employees, adverse actions, and performance-based actions and questioned whether agencies can proceed with such actions if an employee invokes FMLA leave. 

If an employee is in an LWOP status during the probationary period, the probationary period will be extended by the amount of LWOP in excess of 22 days.  Therefore, depending upon the duration of the LWOP, the length of an employee's probationary period could be extended by the FMLA leave.  If so, the employee would still be in a probationary status upon his or her return to work.  However, an employee who invokes his or her entitlement to leave under the FMLA is not protected from termination during probation if the agency decides to terminate the individual's employment during probation.  For example, if an agency notified a probationary employee with 10 months of service that he or she was to be removed due to misconduct, and the employee invoked his or her FMLA entitlement, the agency would not need to wait until the FMLA leave was exhausted (and the employee completed probation) before taking action.