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work prior to a period of FMLA leave or return the 
employee to the same or equivalent position due to 
the physical impossibility after a period of FMLA 
leave. See 825.214. 
‘‘(b) Calculation of leave. (1) When an employee takes 
leave on an intermittent or reduced leave schedule, only 
the amount of leave actually taken may be counted toward 
the employee’s leave entitlement. The actual workweek is 
the basis of leave entitlement. Therefore, if an employee 
who would otherwise work 40 hours a week takes off eight 
hours, the employee would use one-fifth (1/5) of a week 
of FMLA leave. Similarly, if a full-time employee who 
would otherwise work eight-hour days works four-hour 
days under a reduced leave schedule, the employee would 
use one half (1/2) week of FMLA leave each week. Where 
an employee works a part-time schedule or variable hours, 
the amount of FMLA leave that an employee uses is deter-
mined on a pro rata or proportional basis. If an employee 
who would otherwise work 30 hours per week, but works 
only 20 hours a week under a reduced leave schedule, the 
employee’s 10 hours of leave would constitute one-third 
(1/3) of a week of FMLA leave for each week the employee 
works the reduced leave schedule. An employing office may 
convert these fractions to their hourly equivalent so long 
as the conversion equitably reflects the employee’s total 
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•HRES 1516 IH 
normally scheduled hours. An employee does not accrue 
FMLA-protected leave at any particular hourly rate. An 
eligible employee is entitled to up to a total of 12 work-
weeks of leave, or 26 workweeks in the case of military 
caregiver leave, and the total number of hours contained 
in those workweeks is necessarily dependent on the specific 
hours the employee would have worked but for the use 
of leave. See also 825.601 and 825.602 on special rules 
for schools. 
‘‘(2) If an employing office has made a perma-
nent or long-term change in the employee’s schedule 
(for reasons other than FMLA, and prior to the no-
tice of need for FMLA leave), the hours worked 
under the new schedule are to be used for making 
this calculation. 
‘‘(3) If an employee’s schedule varies from week 
to week to such an extent that an employing office 
is unable to determine with any certainty how many 
hours the employee would otherwise have worked 
(but for the taking of FMLA leave), a weekly aver-
age of the hours worked over the 12 months prior 
to the beginning of the leave period (including any 
hours for which the employee took leave of any type) 
would be used for calculating the employee’s leave 
entitlement. 
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•HRES 1516 IH 
‘‘(c) Overtime. If an employee would normally be re-
quired to work overtime, but is unable to do so because 
of a FMLA-qualifying reason that limits the employee’s 
ability to work overtime, the hours which the employee 
would have been required to work may be counted against 
the employee’s FMLA entitlement. In such a case, the em-
ployee is using intermittent or reduced schedule leave. For 
example, if an employee would normally be required to 
work for 48 hours in a particular week, but due to a seri-
ous health condition the employee is unable to work more 
than 40 hours that week, the employee would utilize eight 
hours of FMLA-protected leave out of the 48-hour work-
week, or one-sixth (1/6) of a week of FMLA leave. Vol-
untary overtime hours that an employee does not work due 
to an FMLA-qualifying reason may not be counted against 
the employee’s FMLA leave entitlement. 
‘‘§ 825.206 Interaction with the FLSA, as made appli-
cable by the congressional accountability 
act 
‘‘(a) Leave taken under FMLA, as made applicable 
by the CAA, may be unpaid. If an employee is otherwise 
exempt from minimum wage and overtime requirements 
of the Fair Labor Standards Act (FLSA), as made appli-
cable by the CAA, and as exempt under regulations issued 
by the Board, at part 541, providing unpaid FMLA-quali-
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•HRES 1516 IH 
fying leave to such an employee will not cause the em-
ployee to lose the FLSA exemption. This means that 
under regulations currently in effect, where an employee 
meets the specified duties test, is paid on a salary basis, 
and is paid a salary of at least the amount specified in 
the regulations, the employing office may make deductions 
from the employee’s salary for any hours taken as inter-
mittent or reduced FMLA leave within a workweek, with-
out affecting the exempt status of the employee. 
‘‘(b) For an employee paid in accordance with a fluc-
tuating workweek method of payment for overtime, where 
permitted by section 203 of the CAA (2 U.S.C. 1313), 
the employing office, during the period in which intermit-
tent or reduced schedule FMLA leave is scheduled to be 
taken, may compensate an employee on an hourly basis 
and pay only for the hours the employee works, including 
time and one-half the employee’s regular rate for overtime 
hours. The change to payment on an hourly basis would 
include the entire period during which the employee is tak-
ing intermittent leave, including weeks in which no leave 
is taken. The hourly rate shall be determined by dividing 
the employee’s weekly salary by the employee’s normal or 
average schedule of hours worked during weeks in which 
FMLA leave is not being taken. If an employing office 
chooses to follow this exception from the fluctuating work-
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•HRES 1516 IH 
week method of payment, the employing office must do 
so uniformly, with respect to all employees paid on a fluc-
tuating workweek basis for whom FMLA leave is taken 
on an intermittent or reduced leave schedule basis. If an 
employing office does not elect to convert the employee’s 
compensation to hourly pay, no deduction may be taken 
for FMLA leave absences. Once the need for intermittent 
or reduced scheduled leave is over, the employee may be 
restored to payment on a fluctuating workweek basis. 
‘‘(c) This special exception to the salary basis require-
ments of the FLSA exemption or fluctuating workweek 
payment requirements applies only to employees of cov-
ered employing offices who are eligible for FMLA leave, 
and to leave which qualifies as FMLA leave. Hourly or 
other deductions which are not in accordance with the 
Board’s FLSA regulations at part 541 or with a permis-
sible fluctuating workweek method of payment for over-
time may not be taken, for example, where the employee 
has not worked long enough to be eligible for FMLA leave 
without potentially affecting the employee’s eligibility for 
exemption. Nor may deductions which are not permitted 
by the Board’s FLSA regulations at part 541 or by a per-
missible fluctuating workweek method of payment for 
overtime be taken from such an employee’s salary for any 
leave which does not qualify as FMLA leave, for example, 
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•HRES 1516 IH 
deductions from an employee’s pay for leave required 
under an employing office’s policy or practice for a reason 
which does not qualify as FMLA leave, e.g., leave to care 
for a grandparent or for a medical condition which does 
not qualify as a serious health condition or serious injury 
or illness; or for leave which is more generous than pro-
vided by the FMLA, as made applicable by the CAA. Em-
ploying offices may comply with the employing office’s own 
policy/practice under these circumstances and maintain 
the employee’s eligibility for exemption or for the fluc-
tuating workweek method of pay by not taking hourly de-
ductions from the employee’s pay, in accordance with 
FLSA requirements, as made applicable by the CAA, or 
may take such deductions, treating the employee as an 
hourly employee and pay overtime premium pay for hours 
worked over 40 in a workweek. 
‘‘§ 825.207 Substitution of paid leave, generally 
‘‘(a) Generally, FMLA leave is unpaid leave. How-
ever, under the circumstances described in this section, the 
FMLA, as made applicable by the CAA, permits an eligi-
ble employee to choose to substitute accrued paid leave 
for unpaid FMLA leave. Subject to 825.208, if an em-
ployee does not choose to substitute accrued paid leave, 
the employing office may require the employee to sub-
stitute accrued paid leave for unpaid FMLA leave. The 
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•HRES 1516 IH 
term substitute means that the paid leave provided by the 
employing office, and accrued pursuant to established poli-
cies of the employing office, will run concurrently with the 
unpaid FMLA leave. Accordingly, the employee receives 
pay pursuant to the employing office’s applicable paid 
leave policy during the period of otherwise unpaid FMLA 
leave. An employee’s ability to substitute accrued paid 
leave is determined by the terms and conditions of the em-
ploying office’s normal leave policy. When an employee 
chooses, or an employing office requires, substitution of 
accrued paid leave, the employing office must inform the 
employee that the employee must satisfy any procedural 
requirements of the paid leave policy only in connection 
with the receipt of such payment. See 825.300(c). If an 
employee does not comply with the additional require-
ments in an employing office’s paid leave policy, the em-
ployee is not entitled to substitute accrued paid leave, but 
the employee remains entitled to take unpaid FMLA leave. 
Employing offices may not discriminate against employees 
on FMLA leave in the administration of their paid leave 
policies. 
‘‘(b) If neither the employee nor the employing office 
elects to substitute paid leave for unpaid FMLA leave 
under the above conditions and circumstances, the em-
ployee will remain entitled to all the paid leave which is 
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•HRES 1516 IH 
earned or accrued under the terms of the employing of-
fice’s plan. 
‘‘(c) If an employee uses paid leave under cir-
cumstances which do not qualify as FMLA leave, the leave 
will not count against the employee’s FMLA leave entitle-
ment. For example, paid sick leave used for a medical con-
dition which is not a serious health condition or serious 
injury or illness does not count against the employee’s 
FMLA leave entitlement. 
‘‘(d) Leave taken pursuant to a disability leave plan 
would be considered FMLA leave for a serious health con-
dition and counted in the leave entitlement permitted 
under FMLA if it meets the criteria set forth above in 
825.112 through 825.115. In such cases, the employing 
office may designate the leave as FMLA leave and count 
the leave against the employee’s FMLA leave entitlement. 
Because leave pursuant to a disability benefit plan is not 
unpaid, the provision for substitution of the employee’s ac-
crued paid leave is inapplicable, and neither the employee 
nor the employing office may require the substitution of 
paid leave. However, employing offices and employees may 
agree to have paid leave supplement the disability plan 
benefits, such as in the case where a plan only provides 
replacement income for two-thirds of an employee’s salary. 
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•HRES 1516 IH 
‘‘(e) The FMLA, as made applicable by the CAA, 
provides that a serious health condition may result from 
injury to the employee on or off the job. If the employing 
office designates the leave as FMLA leave in accordance 
with 825.300(d), the leave counts against the employee’s 
FMLA leave entitlement. Because the workers’ compensa-
tion absence is not unpaid, the provision for substitution 
of the employee’s accrued paid leave is not applicable, and 
neither the employee nor the employing office may require 
the substitution of paid leave. However, employing offices 
and employees may agree, to have paid leave supplement 
workers’ compensation benefits, such as in the case where 
workers’ compensation only provides replacement income 
for two-thirds of an employee’s salary. If the health care 
provider treating the employee for the workers’ compensa-
tion injury certifies the employee is able to return to a 
light duty job but is unable to return to the same or equiv-
alent job, the employee may decline the employing office’s 
offer of a light duty job. As a result, the employee may 
lose workers’ compensation payments, but is entitled to 
remain on unpaid FMLA leave until the employee’s 
FMLA leave entitlement is exhausted. As of the date 
workers’ compensation benefits cease, the substitution 
provision becomes applicable and either the employee may 
elect or the employing office may require the use of ac-
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•HRES 1516 IH 
crued paid leave. See also 825.210(f), 825.216(d), 
825.220(d), 825.307(a) and 825.702 (d)(1) and (2) re-
garding the relationship between workers’ compensation 
absences and FMLA leave. 
‘‘(f) Under the FLSA, as made applicable by the 
CAA, an employing office always has the right to cash out 
an employee’s compensatory time or to require the em-
ployee to use the time. Therefore, if an employee requests 
and is permitted to use accrued compensatory time to re-
ceive pay for time taken off for an FMLA reason, or if 
the employing office requires such use pursuant to the 
FLSA, the time taken may be counted against the employ-
ee’s FMLA leave entitlement. 
‘‘§ 825.208 Substitution of paid leave—special rule for 
paid parental leave 
‘‘(a) This section applies to births or placements oc-
curring on or after October 1, 2020. 
‘‘(b) This section provides the basis for determining 
the periods of unpaid leave for which paid parental leave 
or accrued paid leave may be substituted in connection 
with: 
‘‘(1) The birth of a son or daughter, and to 
care for the newborn child (See 825.120); or 
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•HRES 1516 IH 
‘‘(2) The placement of a son or daughter with 
the employee for adoption or foster care and the 
care of such son or daughter (See 825.121); 
‘‘(c) Leave connected to birth or placement. For un-
paid leave described in paragraph (b) of this section, an 
employee may elect to substitute— 
‘‘(1) Up to 12 workweeks of paid parental leave 
in connection with the occurrence of a birth or place-
ment, and 
‘‘(2) Any additional paid annual, vacation, per-
sonal, family, medical, or sick leave provided by the 
employing office to such employee. 
‘‘(d) Leave entitlement. Since an employee may use 
only 12 weeks of unpaid FMLA leave in any 12-month 
period under 825.200(a), any use of unpaid FMLA leave 
not associated with paid parental leave may affect an em-
ployee’s ability to use the full 12 weeks of paid parental 
leave within a single 12-month period. The specific 
amount of paid parental leave available will depend on 
when the employee uses various types of unpaid FMLA 
leave relative to any 12-month period established under 
825.200(b). 
‘‘(e) Employee entitlement to substitute. (1) An em-
ployee is entitled to substitute paid leave for leave without 
pay as provided in paragraph (c) of this section. 
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•HRES 1516 IH 
‘‘(2) An employing office may not require that 
an employee first use all or any portion of the leave 
described in subparagraph (c)(2) of this section be-
fore being allowed to use the leave described in sub-
paragraph (c)(1) of this section. 
‘‘(3) An employing office may not require an 
employee to substitute paid leave for leave without 
pay as described in subparagraph (c)(2) of this sec-
tion. 
‘‘(4) An employee may request to use annual, 
vacation, personal, family, medical, or sick leave for 
the reasons described in paragraph (b) of this sec-
tion without invoking family and medical leave, and, 
in that case, the employing office exercises its nor-
mal authority with respect to approving or dis-
approving the timing of when the leave may be used. 
If the employing office grants the leave request, it 
must designate whether any leave granted is FMLA 
leave, in accordance with sections 825.300 and 
825.301. 
‘‘(f) Notification by employee and retroactive substi-
tution. (1) An employee must notify the employing office 
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 
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