The Family Medical Leave Act of 1993 (FMLA) provide federal government employees the right to use up to 480 hours of leave without pay (LWOP) for a serious health condition or that of a family member.  An employee may elect to substitute annual and sick leave.  Any sick leave credited to the employee may be substituted without regard to any of the normally applicable limitations on the use of sick leave.

Employee entitlement to substitute:

(1) An employee is entitled to elect whether or not to substitute paid leave for leave without pay

(2) An agency may not deny an employee’s election to make a substitution permitted under this section.

(3) An agency may not require an employee to substitute paid leave for leave without pay.

(4) An employee may request to use annual leave or sick leave without invoking family and medical leave, and, in that case, the agency exercises its normal authority with respect to approving or disapproving the timing of when the leave may be used.

Notification by employee and retroactive substitution:

(1) An employee must notify the agency of the employee’s election to substitute paid leave for leave without pay under this section prior to the date such paid leave commences ( i.e., no retroactive substitution), except as provided in paragraphs (f)(2) through (f)(4) of this section.

(2) An employee may retroactively substitute annual leave or sick leave for leave without pay granted under this subpart covering a past period of time, if the substitution is made in conjunction with the retroactive granting of leave without pay.

(3) An employee may retroactively substitute transferred (donated) annual leave for leave without pay that has been granted.

(4) An employee may retroactively substitute paid parental leave for applicable leave without pay under certain circumstances.

Employees should notify management, as soon as possible, if they will substitute paid leave for leave without pay.  When you request, FMLA you are not required to allow Federal Occupational Health (FOH) Services to contact your medical practitioner.  If FOH needs something clarified, they should ask you first.  They should be specific regarding what needs clarification.  If your doctor was clear on your form WH380, management should not need clarification. Generally, management will want to negotiate the number of hours you will be allowed to use, as opposed to what you and your doctor decided you need. 

Accounts Management, specifically, tells employees they are provisionally approved for FMLA.  They then say that because the approval is provisional you may not substitute paid leave.  This is false and is “interference” with your right to substitute paid leave.  Management does not have the right to deny the substitution of paid leave but they are not required to provisionally approve your FMLA, if you have not provided the medical documentation within 15 days of the day you invoke FMLA or if they have reason to doubt the validity.  In the second situation, they should send it to FOH.  If they do not doubt the validity, and they shouldn’t without cause, they should accept what your physician said.  At that point, there is no need for a provisional grant of FMLA.  It is dishonest for management to tell you they have to wait for FOH.  FOH should only be used in limited situations.  Certainly, not if this is the second or third, etc., time you have provided a WH380 for the same serious health condition.  It’s highly unlikely you were suddenly cured of a chronic condition.  If management truly doubts the validity of your medical documentation, they send it to FOH and FOH can’t make a determination regarding your serious health condition, management may pay for a second opinion.  You are still not required to give FOH access to your medical practitioner. 

This is when they should grant provisional FMLA.  In this situation, while you are getting the second opinion, you would be allowed to substitute paid leave. But if you are denied FMLA after the process is finished, you would be offered the opportunity to change the leave to annual or sick as appropriate.  If neither were appropriate, management could grant LWOP or assess AWOL.  FMLA can be considered an accommodation for a disability.  Interfering with your right to use leave under FMLA can be considered a violation of the Americans with Disabilities Act or the Rehabilitation Act.   

Debbie Mullikin