Several commenters requested additional clarification on the substitution of paid leave for leave without pay under the FMLA.  Specifically, the commenters questioned whether the substitution of paid leave can be done retroactively and whether an agency may deny an employee's request to substitute annual leave for leave without pay.

The substitution of paid leave must be consistent with current law and regulations for granting and using annual and sick leave.  Once an employee has invoked his or her entitlement to FMLA leave and has provided all the necessary notifications and certifications for agency approval, an agency may not deny an employee's request to substitute annual leave.  However, an employee cannot substitute any more annual leave than he or she has available.  Likewise, an agency may not deny the employee's request to substitute sick leave if the use of sick leave is consistent with current law and regulations.

The right to substitute paid leave for leave without pay under the FMLA applies only to leave that is to be taken in the future.  The legislative history provides an intent to authorize the use of leave "to be taken" under the FMLA.  Therefore, the substitution of paid leave for unpaid FMLA leave can be accomplished only on a prospective basis.  Section 630.1205(e) has been clarified to state that an employee who has invoked his or her entitlement to FMLA leave may not retroactively substitute paid leave for any leave without pay previously taken under the FMLA.

    Several commenters requested an explanation of the relationship between the FMLA and the voluntary leave transfer and leave bank programs.  We provide the following example:
Example:  An employee invokes his entitlement to FMLA leave as a result of a medical emergency.  The employee does not have any paid leave available and therefore applies for donated leave under his agency's leave transfer program.  Approximately 2-3 weeks later, the employee is approved as a leave recipient and receives donated annual leave.  Under the voluntary leave transfer and leave bank programs, the employee may retroactively substitute paid leave for leave without pay beginning on the date the emergency began, consistent with §§ 630.906(e) and 630.1009(d)The 12-month period and the 12-week entitlement to leave under the FMLA begins on the date the employee first invoked FMLA leave.  The employee receives the benefits and protections of both the FMLA and the voluntary leave transfer program simultaneously. 

A commenter stated that an agency should be allowed to apply the same requirements for requesting annual and sick leave to requests for leave under the FMLA; e.g., agency policy may require medical certification for sick leave of more than 6 weeks to be used in connection with a pregnancy.  Section 630.1207 already permits an agency to request a medical certification for the