serious health condition of the employee--e.g., pregnancy or illnesses related to pregnancies. Therefore, we do not believe additional changes are needed.
In its final regulations, DOL addressed the issue of permitting the substitution of compensatory time off under the Fair Labor Standards Act (FLSA) for unpaid leave under the FMLA. DOL stated that the use of compensatory time off is severely restricted under the FLSA in ways that are not compatible with the substitution of paid leave provisions under the FMLA. Compensatory time off is not a form of accrued paid leave mentioned in the FMLA or legislative history for purposes of substitution of leave. Rather, it is an alternative form of payment for overtime hours worked. An agency's right to deny an employee's request for compensatory time off under the FLSA, if it would be unduly disruptive to the agency's operations, is inconsistent with the provision in the FMLA authorizing the employee to elect to substitute paid leave for unpaid leave under the FMLA. An agency may not simultaneously charge the FLSA compensatory time hours taken against the employee's separate FMLA leave entitlement. DOL states tha "to do so would amount to charging (debiting) two separate entitlements for a single purpose."
We believe DOL's argument applies to any compensatory time off earned under 5 U.S.C. 5543. Similarly, we believe this restriction should also apply to any credit hours accrued under a flexible work schedule under 5 U.S.C. 6122. Therefore, § 630.1205 has been revised to state that only annual leave, sick leave, and advanced annual leave and sick leave may be substituted for leave without pay under the FMLA. An employee may continue to use earned compensatory time off and credit hours in addition to his or her entitlement to leave under the FMLA.
Notice of Leave
Section 630.1206(d) of the interim regulations provides that when leave is foreseeable, and the employee fails to give 30 days' notice with no reasonable excuse for the delay of notification, the agency may delay the taking of FMLA leave until at least 30 days after the date the employee provides notice of his or her need for FMLA leave. Three organizations believe an agency should be allowed to penalize an employee only if the agency has been adversely affected. This is to guard against employers denying leave on mere technicalities and penalizing employees for failure to give timely notice.
The legislative history states that an employee who intends to take leave for the birth or placement of a child shall provide 30 days' notice, or such notice as is practicable, of his or her intention to take such leave. If the employee intends to take leave to care for a family member with a serious health condition, the employee, subject to the approval of the health care provider, must make a reasonable effort to schedule treatment so as not to unduly disrupt the operations of the agency and must provide 30 days notice, or such notice as is practicable, of his or her intention to take such leave.