630.1207. An employee may not retroactively invoke his or her entitlement to leave under the FMLA for a previous absence from work. The legislative history establishes an intent to authorize the use of leave "to be taken" under the FMLA on a prospective basis. In addition, both the law and OPM's regulations require that if the need for leave is foreseeable, the employee must provide the employing agency with not less than 30 days notice, before the date the leave is to begin, of the employee's intention to take family and medical leave. If the need for leave is not foreseeable, the employee must provide such notice as is practicable. We believe the employee remains responsible for providing his or her agency as much notice as is practicable to allow the agency ample opportunity to plan the work during the employee's absence.
Intermittent Leave or Reduced Leave Schedule
Section 630.1204(b) states that if an employee takes leave intermittently or on a reduced leave schedule for planned medical treatment or recovery, the agency may place the employee in an available alternative position. A commenter recommended that OPM add that an alternative position is not required to have duties that are equivalent to those of the employee's original position. We agree and have added this statement, consistent with DOL's final regulations.
Section 630.1204(f) has been clarified to state that only the amount of leave taken intermittently or on a reduced leave schedule, as these terms are defined in § 630.1202, can be subtracted from the total of 12 weeks of FMLA leave available to the employee. This will ensure that FMLA leave is subtracted from the total 12-week entitlement in the same increments that it is taken, consistent with the revised definition of "intermittent leave or reduced leave schedule" in § 630.1202.
Another commenter requested that the term "reduced leave schedule" be changed to "reduced work schedule," because the hours of work are reduced and supplemented by FMLA leave. "Reduced leave schedule" is the term used in the statute, and we do not believe it is necessary to make this change. "Reduced leave schedule" means a work schedule under which the usual work per workday or workweek of an employee is reduced. The number of hours by which the daily or weekly tour of duty is reduced are counted as FMLA leave.
In response to numerous calls, we restate that an employee must obtain approval from his or her employing agency to take FMLA leave on an intermittent basis or reduced leave schedule for the birth of a child or for placement for adoption or foster care.
Substitution of Paid Leave