§ 630.1203 Leave entitlement. ( a ) An employee shall be entitled to a total of 12 administrative workweeks of unpaid leave during any 12-month period for one or more of the following reasons: ( 1 ) The birth of a son or daughter of the employee and the care of such son or daughter;
( 2 ) The placement of a son or daughter with the employee for adoption or foster care and the care of such son or daughter.
( 3 ) The care of a spouse, son, daughter, or parent of the employee, if such spouse, son, daughter, or parent has a serious health condition; or
( 4 ) A serious health condition of the employee that makes the employee unable to perform any one or more of the essential functions of his or her position.
( 5 ) Any qualifying exigency arising out of the fact that the employee's spouse, son, daughter, or parent is a covered military member on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
( b ) An employee must invoke his or her entitlement to family and medical leave under paragraph (a) of this section, subject to the notification and medical certification requirements in §§ 630.1207 and 630.1208. An employee may not retroactively invoke his or her entitlement to family and medical leave. However, if an employee and his or her personal representative are physically or mentally incapable of invoking the employee's entitlement to FMLA leave *during the entire period* in which the employee is absent from work for an FMLA-qualifying purpose under paragraph (a) of this section, the employee may retroactively invoke his or her entitlement to FMLA leave within 5 workdays after returning to work. In such cases, the incapacity of the employee must be documented by a written medical certification from a health care provider. In addition, the employee must provide documentation acceptable to the agency explaining the inability of his or her personal representative to contact the agency and invoke the employee's entitlement to FMLA leave during the entire period in which the employee was absent from work for an FMLA-qualifying purpose. An employee may take only the amount of family and medical leave that is necessary to manage the circumstances that prompted the need for leave under paragraph (a) of this section.
( c ) The 12-month period referred to in paragraph (a) of this section begins on the date an employee first takes leave for a family or medical need specified in paragraph (a) of this section and continues for 12 months. An employee is not entitled to 12 additional workweeks of leave until the previous 12-month period ends and an event or situation occurs that entitles the employee to another period of family or medical leave. (This may include a continuation of a previous situation or circumstance.)
( d ) ( 1 ) The entitlement to leave under paragraphs (a)(1) and (2) of this section shall expire at the end of the 12-month period beginning on the date of birth or placement. Leave for a birth or placement must be concluded within this 12-month period.
( 2 ) ( i ) Leave taken under paragraphs (a)(1) and (2) of this section, may begin prior to the actual date of birth or placement for adoption or foster care.
( ii ) Use of leave under paragraph (a)(1) of this section before the date of birth is limited to situations in which an employee is using the leave— ( A ) Because of the employee's serious health condition related to the anticipated event of the employee giving birth to a son or daughter; or
( B ) In order to care for the birth mother of the employee's expected son or daughter in connection with the birth mother's serious health condition related to pregnancy.
( iii ) Use of leave under paragraph (a)(2) before the date of placement is limited to situations in which the employee must be absent to engage in activities necessary to allow an anticipated adoption or a foster care arrangement to proceed.
( e ) ( 1 ) Family and medical leave under this subpart is available to full-time and part-time employees. The entitlement to a total of 12 administrative workweeks of leave in connection with leave granted under paragraph (a) of this section must be converted to hours or days, as provided in paragraphs (e)(2) and (e)(3) of this section. Leave under paragraph (a) allows an employee to be absent during the employee's scheduled tour of duty established for leave charging purposes. Such leave is not applied to days designated as holidays and other nonworkdays when the employee would be excused from duty.
( 2 ) For employees who are charged leave on an hourly basis (including fractions of an hour), the 12 administrative workweeks referenced in paragraph (a) of this section must be converted to hours based on the number of hours in the employee's scheduled tour of duty (at the time the 12-month period of leave eligibility commences) subject to the following rules: ( i ) For a regular full-time employee with 80 hours in the scheduled tour of duty over a biweekly pay period, the hours equivalent of 12 administrative workweeks is 480 hours.
( ii ) For a full-time employee with an uncommon tour of duty (as defined in § 630.201 and described in § 630.210), the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's biweekly scheduled tour of duty (or 6 times the average hours if the biweekly tour hours vary over an established cycle). For example, if an employee has an uncommon tour consisting of six 24-hour shifts (144 hours) per biweekly pay period, the amount would be 864 hours.
( iii ) For a part-time employee, the hours equivalent of 12 administrative workweeks is derived by multiplying 6 times the number of hours in the employee's scheduled tour of duty over a biweekly pay period. For example, if an employee has a part-time scheduled tour of duty that consists of 40 hours in a biweekly pay period, the amount would be 240 hours.
( 3 ) For employees who are charged leave on a daily basis, the days equivalent of 12 administrative workweeks must be derived based on the average number of workdays in the employee's established tour of duty over a biweekly pay period. For example, if an employee had 8 workdays each biweekly pay period, the days equivalent of 12 administrative workweeks would be 48 days.
( f ) If there is a change in an employee's scheduled tour of duty during any 12-month period that commenced due to use of family and medical leave, and the employee has not used the full allotment of family and medical leave during such 12-month period, the remaining balance of family and medical leave must be recalculated based on the change in the number of average hours in the employee's scheduled tour of duty. For example, if a regular full-time employee has a balance of 120 hours of unused family and medical leave for a 12-month period that is in progress and then converts to a part-time schedule of 20 hours per week, the balance would be recalculated to be 60 hours. (Since the old schedule was 80 hours biweekly or an average of 40 hours weekly, the new part-time tour is half of the former full-time tour. 40/80 times 120 equals 60.)
( g ) Leave taken because of the birth of a son or daughter of the employee, as described in paragraph (a)(1) of this section, includes leave necessary for an employee who is the birth mother to recover from giving birth, or for an employee who is the other parent to care for the birth mother during her recovery period, even if the employee is not involved in caring for the son or daughter during portions of that recovery period.
( h ) An agency may not put an employee on family and medical leave and may not subtract leave from an employee's entitlement to leave under paragraph (a) of this section unless the agency has obtained confirmation from the employee of his or her intent to invoke entitlement to leave under paragraph (b) of this section. An employee's notice of his or her intent to take leave under § 630.1207 may suffice as the employee's confirmation.
( i ) Leave taken in order to care for a newly born or placed son or daughter, as described in paragraphs (a)(1) and (a)(2) of this section, generally refers to leave covering periods when the parent-employee is in the home with the child or is otherwise involved in spending time with the child (bonding). It may include short periods away from the child's physical presence to purchase supplies needed to care for the child (e.g., buying baby food, diapers, or other supplies). Leave based on the “care” language in paragraph (a)(1) of this section would not be appropriate if an employee is not engaged in activities directly connected to care of the child—for example, if the employee is physically located outside the local geographic area where the child is located.
( j ) ( 1 ) For family and medical leave granted in connection with care of a covered servicemember under 5 U.S.C. 6382(a)(3) and (4), the leave entitlement is 26 administrative workweeks in a single 12-month period. This leave applies to an employee who is the spouse, son, daughter, parent, or next of kin of a covered servicemember and who provides care for the covered servicemember. In applying this leave, the definitions in 5 U.S.C. 6381(8) through (12) must be applied.
( 2 ) The entitlement of 26 administrative workweeks of leave described in paragraph (j)(1) of this section must be converted to hours or days, consistent with the methodologies set forth in paragraph (e) of this section. Any recalculation of the unused leave entitlement due to a change in the employee's scheduled tour of duty must be made in a manner consistent with the methodology described in paragraph (f) of this section.
( 3 ) If an employee receives leave under this paragraph (j) and leave under paragraph (a) of this section during the single 12-month period, the combined amount of leave in that period may not exceed 26 administrative workweeks. With respect to the single 12-month period, an employee who uses more than 14 weeks of leave under this paragraph (j) will not be able to use the full allotment of 12 administrative workweeks in connection with leave granted under paragraph (a) of this section. The leave granted under this paragraph (j) will not count against the employee's 12-week FMLA entitlement in any other 12-month period, as established under paragraph (a) of this section. For example, consider an employee who invokes family and medical leave to care for a covered servicemember and uses 16 weeks of such leave starting on August 15, 2022. If the same employee gave birth to a child on October 7, 2022, the employee would be able to use only 10 weeks of family and medical leave under § 630.1203(a)(1) during the single 12-month period from August 15, 2022, to August 14, 2023, since there is a 26-week limit for that single 12-month period. That would also limit the employee to no more than 10 weeks of paid parental leave during that single 12-month period. However, the employee would be able to use family and medical leave under § 630.1203(a)(1) after August 14, 2023, and before the expiration of the 12-month period following the birth on October 6, 2023, and could substitute (to the extent possible) any remaining amount of the employee's 12 weeks of paid parental leave, or substitute annual leave or sick leave, if applicable.
( 4 ) In addressing requests to use intermittent leave, or leave on a reduced leave schedule, in connection with leave under this paragraph (j), an agency is subject to the same rules that govern such requests for leave under paragraphs (a)(3) and (a)(4) of this section. (See 5 U.S.C. 6382(b) and § 630.1205.)
( 5 ) Employees who seek to use leave under this paragraph (j) are subject to the same notification and scheduling requirements that apply to employees receiving leave under paragraph (a)(1) through (4) of this section in parallel circumstances. (See 5 U.S.C. 6382(e)(1) and (2) and § 630.1207.)
( 6 ) An agency may require that a request for leave under this paragraph (j) be supported by a medical certification, as provided by 5 U.S.C. 6383(f).
[58 FR 39602, July 23, 1993, as amended at 61 FR 64452, Dec. 5, 1996; 65 FR 26486, May 8, 2000; 76 FR 60704, Sept. 30, 2011; 85 FR 48090, Aug. 10, 2020]