The legislative history clearly states that the 12 workweeks of unpaid leave under the FMLA is a new entitlement in addition to any annual leave, sick leave, or other leave or compensatory time off available to an employee. An employee may choose to take FMLA leave in combination with any other available leave. However, an employee must obtain approval and/or meet statutory and regulatory requirements to take additional leave or other periods of paid time off. Under 5 U.S.C. 6382(a)(1)(b), an employee is entitled to FMLA leave for the placement of a son or daughter with the employee for adoption or foster care. This entitlement does not limit the number of times an employee may invoke FMLA leave for foster care.
Another commenter requested that the regulations requiring the employee to take only the amount of family leave and medical leave that is necessary to manage the circumstances that prompted the need for FMLA leave should not apply to a birth or adoption, since these purposes should not be limited to a subjective definition of what is necessary. We believe an employee must be responsible for taking only the amount of family and medical leave that is necessary for any of the purposes for which FMLA leave may be taken.
We have not adopted any of these recommendations. We believe a leave program built on open communication between managers and employees should alleviate many of the concerns that have been expressed. The regulations acknowledge that the manager and the employee have responsibilities and obligations in preparing and planning for FMLA leave, as well as in following procedures for invoking and taking FMLA leave.
Three of the organizations and two individual commenters were concerned that many agencies have not fully informed their employees of their entitlements and responsibilities under the FMLA. In addition, it is apparent from the numerous telephone inquiries and letters received by OPM that many employees are not aware of the provisions of the FMLA. In response, we have clarified § 630.1203(g) to require agencies to inform employees of their entitlements and responsibilities under the FMLA. To meet this requirement, agencies may wish to provide employees access to the FMLA and OPM's implementing regulations or agency policies or guidance on implementing the FMLA. Also, agencies may provide employees access to OPM's fact sheet and brochure, "Federal Employee Entitlements Under the Family and Medical Leave Act of 1993" or "Family-Friendly Leave Policies for Federal Employees." These publications are available on OPM's Mainstreet and PayPerNet electronic bulletin boards. In addition, these final regulations will be posted on OPM's World Wide Web site at www.opm.gov in the near future.
Consistent with all other Federal leave programs and policies, an employee who chooses to take leave under the FMLA must initiate the action to take such leave. Therefore, to eliminate misunderstandings between supervisors and employees, § 630.1203(b) has been clarified to state that an employee must invoke his or her entitlement to family and medical leave, subject to the notification and medical certification requirements in §§ 630.1206 and