FY2022 NDAA: Parental Leave Benefits

FY2022 NDAA: Parental Leave Benefits

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INSIGHTi

FY2022 NDAA: Parental Leave Benefits
Updated December 15, 2021
Background
The House passed a Fiscal Year 2022 National Defense Authorization Act (FY2022 NDAA, H.R. 4350)
on September 23, 2021. The Senate Armed Services Committee (SASC) reported a version of the bill (S.
2792) on July 21, 2021. On December 7, 2021, the House and Senate Armed Services Committees
released the text of a negotiated agreement (“bicameral agreement”, S. 1605) based on the two versions of
the bill. The House passed the bicameral agreement on the same day. This report discusses provisions in
the FY2022 NDAA related to parental leave provisions for uniformed servicemembers and federal
civilians (see Table 1).
Uniformed Servicemembers
Leave authorities for uniformed servicemembers are specified under Chapter 40 of Title 10, and Chapter 9
of Title 37 United States Code. Servicemembers accrue 2.5 days of leave per month of active service.
Individuals may accrue up to 60 days of leave, or up to 120 days under certain circumstances. Sick leave
or convalescent leave is based on medical circumstances and physician’s approval. Military commanders
also have discretion to grant a one-time, non-chargeable emergency leave of absence for up to 14 days
due to a medical condition of the servicemember or immediate family, or other hardship. In addition to
other leave, a uniformed servicemember designated as the primary caregiver (typically the parent giving
birth) is authorized up to 12 weeks of paid parental leave (including up to six weeks’ convalescent leave)
in connection with the birth of a child, or up to six weeks for adoption. Individuals designated as
secondary caregivers are authorized up to 21 days of leave in connection with a birth or adoption. Parental
leave may be taken in more than one increment and must be taken within one year of birth or adoption.
DOD policies further define primary and secondary caregivers.
Federal Civilians
The FY2020 NDAA (P.L. 116-92, as amended by the FY2021 William M. (Mac) Thornberry NDAA, P.L.
116-283) amended the Family and Medical Leave Act (FMLA, P.L. 103-3) to provide a new paid parental
leave benefit to most federal civil service employees. Covered federal employees may use up to 12 weeks
of paid parental leave for the arrival of a new child by birth, adoption, or foster care placement and for
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bonding with that child. The leave is available for children born to or placed with the employee on or after
October 1, 2020, and must be used within 12 months of the child's arrival. Such leave may be used by an
employee intermittently or on a reduced leave schedule only with the employing agency’s agreement. The
paid parental leave benefit must be used together with the employee's FMLA leave entitlement. (This
leave is in addition to federal employees' annual and sick leave benefits.)
Table 1. FY2022 NDAA Legislative Proposals
Senate Armed Services
House-passed (H.R. 4350)
Committee (S. 2792)
Bicameral Agreement (S. 1605)
Uniformed Servicemembers
Section 621 would
Section 520 would
Section 621 includes the Senate

provision with amendments that would

Allow up to 12 weeks of primary

Remove the primary and
and secondary caregiver leave in
secondary caregiver distinction,
allow an active duty member who gives
connection with foster child
birth to defer physical fitness testing

Allow up to 12 weeks of non-
placement,
and meeting body fat standards for 12
chargeable parental leave in
months following birth, and would
 Extend primary caregiver leave in
connection with a birth, adoption,
require annual DOD reporting on the
connection with a birth (up to 18
or long-term foster child
use of parental leave benefits.
weeks) or adoption (up to 12
placement,
weeks),

Clarify that six weeks of
 Extend secondary caregiver leave
convalescent leave in conjunction
up to 12 weeks for a birth or
with the birth of a child shall be
adoption,
taken concurrently with 12 weeks

of authorized parental leave, and

Allow a secondary caregiver to
take up to 12 weeks of leave in

Allow the Secretary concerned to
the case of a miscarriage, stillbirth,
extend eligibility for parental leave
or infant death,
beyond a year for those who

would otherwise lose leave due to

Allow an active duty member who
gives birth to defer physical fitness
military obligations.
testing and meeting body fat

standards for 12 months following

birth, and

 Require annual DOD reporting on
the use of parental leave benefits.

Section 627 would allow continuation
Section 520A would allow military
Section 622 includes the Senate
of pre-approved paid parental leave for
servicemembers with accrued leave of
provision.
primary and secondary caregivers upon less than 30 days to take up to two
the death of a child.
weeks of non-chargeable bereavement
leave in connection with the death of a
spouse or child. Those with more than
30 days’ leave accrued and who take
up to two weeks of leave shall be
charged for bereavement leave until
their leave balance reaches 30 days.
Federal Employees

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Senate Armed Services
House-passed (H.R. 4350)
Committee (S. 2792)
Bicameral Agreement (S. 1605)
Uniformed Servicemembers
Section 1122 would, for certain federal
No similar provision.
Section 1111 would, for certain federal
employees, include the death of a child
employees, create a new entitlement
as an FMLA-qualifying use of leave and
to 2 administrative workweeks of paid
allow eligible federal employees to use
leave during any 12-month period
their paid parental leave benefit in such
because of the death of the employee’s
instances.
child. Such leave would be in addition

to other paid leave available to the
employee and would not be deducted
from the employee’s FMLA entitlement
to unpaid job-protected leave.
Section 1110 would allow prior service No similar provision.
Not adopted.
in the armed forces to be counted
toward the FMLA time-in-service
requirement for federal employee
eligibility if certain conditions are met.
Source: Congressional Research Service review of legislation.
Note: The bicameral agreement (S. 1605) is the FY2022 NDAA amendment negotiated by leaders of the House Armed
Services Committee (HASC) and the Senate Armed Services Committee (SASC).
Discussion
Proposed Amendments to Servicemember Leave Benefits
Both the House-passed (Section 621) and Senate committee-reported (Section 520) bills included
proposals to expand servicemember parental leave allowances and eligibility (See Table 2). The
bicameral agreement adopts the Senate proposal which would remove the statutory designation of
primary and secondary caregivers and allow servicemembers on active duty to take up to 12 weeks of
non-chargeable parental leave in connection with a birth, adoption, or long-term foster placement of a
child. The bicameral agreement also adopts the Senate clarification to 10 U.S.C. §702(i) that convalescent
leave shall be taken concurrently with the 12 weeks of authorized leave and provides some flexibility to
use parental leave beyond one year if operational commitments prevent the member from using all
authorized leave.
Section 621 of the bicameral agreement adopts some provisions of the House bill, including authorization
for an active duty member who gives birth to defer mandatory physical fitness testing and adherence to
body fat standards for 12 months following birth. It would also require annual DOD reporting on the use
of parental leave.
Table 2. Comparison of Maximum Leave Allowances Under Current Law and NDAA
Proposals
FY2022 NDAA
Caregiver Type
Current
H.R. 4350
S. 2792
S. 1605
Primary – Birth
12 weeks including
18 weeks including
12 weeks, all
12 weeks, all
convalescent leave
convalescent leave
convalescent leave
convalescent leave
concurrent
concurrent

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Caregiver Type
Current
H.R. 4350
S. 2792
S. 1605
Primary –Adoption
6 weeks
12 weeks
12 weeks
12 weeks

Primary – Foster Placement
None
12 weeks
12 weeks
12 weeks
Secondary – Birth
21 days
12 weeks
12 weeks
12 weeks
Secondary – Adoption
21 days
12 weeks
12 weeks
12 weeks
Secondary – Foster Placement
None
12 weeks
12 weeks
12 weeks
Source: Congressional Research Service review of statute and legislation.
Section 621 of the House-passed bill would allow a servicemember “who would have been a secondary
caregiver but for a miscarriage, stillbirth, or infant death” with up to 12 weeks of leave. Another provision
in the House bill (Section 627) would allow continuation of pre-approved paid parental leave for
caregivers upon the death of a child. Section 622 of the bicameral agreement adopts the Senate proposal
(Section 520A) that would allow two weeks of bereavement leave in connection with the death of a
spouse or child. Those with greater than 30 days of accrued leave would be charged leave until the
balance falls below 30 days.
Proposed Amendments to FMLA-protected Leave for Federal Employees
The House-passed version of the bill (Section 1122) proposes to amend FMLA provisions at Title 5 of the
U.S. Code to include needs related to the death of a child (bereavement leave) as an FMLA-qualifying use
of leave, and to allow eligible federal employees covered by Title 5 FMLA provisions to use their paid
parental leave benefit for such needs. Section 1111 of the bicameral agreement would create an
entitlement to 2-weeks of paid parental bereavement leave in any 12-month period, but such leave would
be separate from employees’ FMLA entitlement. The House-passed bill and the bicameral agreement do
not propose similar amendments to FMLA provisions at Title 29 (certain legislative and executive branch
employees) and Title 3 (certain White House employees).
The House bill further proposes (Section 1110) to amend the time-in-service eligibility requirement for
federal workers covered by FMLA provisions at U.S. Code Title 5 and Title 29 to account for prior
service in the armed forces. Such service would be counted toward the requirement if the employee
served on active duty as a member of the armed forces for at least one year; and separation from the
armed forces is characterized as honorable. This provision was not adopted in the bicameral agreement;
however, the agreement called for a congressional briefing by DOD on the impact of such a change.

Author Information

Kristy N. Kamarck
Sarah A. Donovan
Specialist in Military Manpower
Specialist in Labor Policy

Congressional Research Service
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