A commenter suggested revising § 630.1203(a)(4) to extend the determination of whether an employee is able to perform the essential functions of his or her position to include whether an employee is able to perform in an available alternative position or to be detailed to a temporary light duty assignment. The statute does not provide for placing an employee in an alternative or light-duty position in lieu of his or her entitlement under the FMLA. Therefore, the regulations were not revised.
An agency should not confuse an employee's entitlement to leave under the FMLA with its ongoing obligation to provide reasonable accommodation under the Rehabilitation Act of 1973. While an agency cannot require an employee to accept an alternative position offer, an employee continues to maintain the right to request light duty assignment in lieu of unpaid leave under the FMLA.
Section 630.1203(a) has been clarified to state that an employee is eligible to take FMLA leave because of a serious health condition if he or she is unable to perform any one or more of the essential functions of his or her position. This revision is consistent with DOL's final regulations.
Three organizations objected to requiring an employee to conclude FMLA leave taken for the birth or placement of a child within 12 months after the birth or placement. The organizations recommended revising the regulations to provide that an employee must commence FMLA leave, but not complete it, within 1 year of the birth or placement. Section 6382(a) states that the entitlement to leave for a birth or placement for adoption or foster care expires at the end of the 12-month period beginning on the date of such birth or placement. In addition, the legislative history states that in cases of birth or placement of a child, family leave must be taken within 12 months following the event. DOL, in its final regulations, also upholds that FMLA leave "must conclude within one year of the birth or placement."
In the interim regulations, § 630.1203(c) provides that the 12-month period of entitlement to FMLA leave begins on the date an employee first takes FMLA leave and continues for 12 months. In addition, § 630.1203(d)(1) and (d)(2) provides that an employee may begin FMLA leave prior to the date of birth or placement for adoption or foster care and that FMLA leave must be concluded within 12 months after the date of birth or placement.
An agency commented that these two provisions read together may imply that a new 12-month period with a new 12-week entitlement cannot begin until 12 months after the date of the birth or placement, even if the employee begins FMLA leave prior to the date of birth or placement. The agency believed this provision could be discriminatory and potentially in violation of the Pregnancy Discrimination Act (Pub. L. 95-555, October 31, 1978). Another agency believed that the provisions covering the entitlement to FMLA leave for a birth or placement implied that the employee may be entitled to more than 12 weeks of unpaid leave.