Q & A Session – Using FMLA Leave


Ask the Lawyer received the following question (paraphrased for easier reading and clarity) from a reader on a legal matter that might be of interest to the entire audience.


I am a leave manager and would like some additional guidance on when to notify employees of their FMLA rights and when they should invoke their rights. What if a pregnant woman has accrued two months of leave but hopes to take three months off to care for her newborn, when should I encourage her to invoke her FMLA rights?


The Office of Personnel Management’s rules governing FMLA guidelines are found at 5 CFR §630.1201 et. seq. Those rules explain that it is up to the employee to decide whether or not to take FMLA leave. 5 CFR §630.1205 in particular emphasizes that an employee is free to decide what type of earned leave he or she will request

However, according to 5 CFR §630.1203(a)(1), an employee in the situation you describe may take up to twelve weeks of earned FMLA leave for childbirth and newborn care, assuming she has not already used a portion of her FMLA leave. Such leave must be taken within twelve months of the birth, per 5 CFR §630.1203(d). An employee taking leave for childbirth should provide at least thirty days prior notice. 5 CFR §630.1206(a). She may request to use other types of leave to supplement her FMLA leave. 5 CFR §630.1205.


Bill Bransford is managing partner of Shaw, Bransford & Roth, PC.

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  1. I filed the US Dept of Labor form WH-380-E in advance of requesting leave under the FMLA regulations for chronic health conditions. I used FMLA annual, sick and LWOP this last pay period and my supervisor put me on leave restriction. The memo she sent me clearly indicates that I was using FMLA leave.

    I had been on a schedule that permitted me to work 5 hours Tuesdays and Thursdays and then come in on Saturday. I used the time for physical therapy sessions and doctors’ appointments. She changed my schedule to allowing me only Tuesday mornings; she didn’t want me to work Saturdays. That means that I can no longer participate in the recommended 2 sessions of weekly physical therapy. I am using more leave because of the changed schedule and she notes the increased use of leave in the memo.

    Do I have any recourse? I’m over 60 and partially handicapped. I have always provided medical documentation when asked, in addition to the FMLA form.

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