The Office of Personnel Management (OPM) is writing a rule into federal regulations that says certain honorable active military service counts toward the 12 months of service a federal employee needs to take Family and Medical Leave Act (FMLA) leave. The direct final rule, titled “Family and Medical Leave Act” (RIN 3206-AP18), is set for publication in the Federal Register on October 15. Congress already made the change in law in December 2023, so the rule brings OPM’s regulations in line with it.
What the rule adds to the 12-month test
Title 5 FMLA gives eligible federal employees unpaid leave for family and medical reasons, and the statute at 5 U.S.C. 6381 defines an eligible employee as someone who has completed at least 12 months of service. The service can be as an employee of the U.S. government, including the Postal Service, the Postal Regulatory Commission and nonappropriated fund instrumentalities, or “honorable active service in the Army, Navy, Air Force, Space Force, or Marine Corps.”
OPM’s summary says “virtually all Federal civilian service and certain honorable active military service qualify for determining FMLA eligibility.” The regulation text adds honorable active military service, including full-time National Guard duty and active duty by Reserve members, as qualifying service. It leaves out Coast Guard and Public Health Service commissioned corps service. It also excludes Veterans Health Administration employees who are covered by a leave system under 38 U.S.C. 7421.
For a federal employee who spent time in the military before taking a civilian job, the practical question is whether that service already shortens the wait for leave. Under the statute it does. A worker six months into a federal job who has earlier honorable active service in the Army can count that service toward the 12 months, instead of waiting out a full civilian year. The rule does not change the amount of leave, only who has reached the starting line.
The number to watch is 60: the rule takes effect 60 days after publication, which falls on December 14, unless significant adverse comments arrive within 30 days.
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Why a rule now, if the law changed in 2023
Public Law 118-31 took effect on December 22, 2023, and OPM has applied it since then through guidance, including a memorandum dated February 13, 2024, the rule says. FEDweek reported at the time that the change was prospective and “does not provide for retroactive eligibility,” and that agencies were told to notify employees with prior military service who had not yet met the 12-month requirement. OPM says it is “simply incorporating these statutory revisions in regulation to avoid conflicting and confusing program administration,” and that it does not project costs or savings from the rule.
The tie to paid parental leave
FMLA eligibility is also the gateway to paid parental leave. OPM’s paid parental leave fact sheet says an employee must be eligible for title 5 FMLA leave first, and that employees with fewer than 12 months of qualifying service are not. The benefit is up to 12 administrative workweeks of paid leave per qualifying birth or placement, and it must be used within the 12 months that follow. The new rule says the law allows up to 12 weeks of paid parental leave to be substituted for unpaid FMLA leave.
Two groups stay outside. Temporary and intermittent employees remain ineligible to use title 5 FMLA leave, although their earlier federal service can count toward the 12 months, the rule says. And the birth or placement must have occurred on or after October 1, 2020 for paid parental leave.
Why December 14 is not guaranteed
A direct final rule takes effect on a set date unless people object. This one is effective 60 days after publication, and OPM will withdraw the affected provisions and issue a proposed rule if significant adverse comments are received within 30 days of publication. OPM calls the rule non-controversial and the changes technical. Counting 60 days from October 15 gives December 14, 2026. The agency’s contact for questions is Julie Ohr in Workforce Policy and Innovation, at [email protected] or (202) 606-2858.
Checking FMLA eligibility with prior military service
The starting point is the employee’s own record. Gather the discharge papers showing honorable service, the dates of any National Guard or Reserve active duty, and the date of the first day on a federal payroll. Add the months together and compare the total with 12.
Ask the agency’s human resources office to confirm eligibility; OPM’s paid parental leave fact sheet is the plain-language reference for the parental leave side. Timing matters there: paid parental leave can be used only during the 12 months after a birth or placement, so an employee who expects a child should ask HR about service credit well before the due date, not after.
The Federal Register entry will carry the official effective date and the comment instructions, and any change to this schedule would appear there first.
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This article was produced with AI assistance and edited for accuracy against the sources linked above.
