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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