CONCURRENT RESOLUTIONS—APR. 16, 1996 110 STAT. 4317 (d)(1) Disability leave for the birth of a child would be considered FMLA leave for a serious health condition and counted in the 12 weeks of leave permitted under FMLA as made applicable by the CAA. Because the leave pursuant to a temporary disability benefit plan is not unpaid, the provision for substitution of paid leave is inapplicable. However, the employing office may designate the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave entitlement. If the requirements to qualify for payments pursuant to the employing office's temporary disability plan are more stringent than those of FMLA as made applicable by the CAA, the employee must meet the more stringent requirements of the plan, or may choose not to meet the requirements of the plem and instead receive no payments from the plan and use unpaid FMLA leave or substitute available accrued paid leave. (2) 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 §825.208, the employee's FMLA 12-week leave entitlement may run concurrently with a workers' compensation absence when the injury is one that meets the criteria for a serious health condition. As the workers' compensation absence is not unpaid leave, the provision for substitution of the employee's accrued paid leave is not applicable. However, if the health care provider treating the employee for the workers' compensation injury certifies the employee is able to return to a "light duty job" but is unable to return to the same or equivalent job, the employee may decline the employing office's offer of a "light duty job". As a result the employee may lose workers' compensation pa3mtients, but is entitled to remain on unpaid FMLA leave until the 12- week 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 accrued paid leave. See also §§ 825.210(f), 825.216(d), 825.220(d), 825.307(a)(1) and 825.702(d)(1) and (2) regarding the relationship between workers' compensation absences and FMLA leave. (e) Paid vacation or personal leave, including leave earned or accrued under plans allowing "paid time off', may be substituted, at either the employee's or the employing office's option, for any qualified FMLA leave. No limitations may be placed by the employ- ing office on substitution of paid vacation or personal leave for these purposes. (f) If neither the employee nor the employing office elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the p£dd leave which is earned or accrued under the terms of the employing office's plan. (g) If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the 12 weeks of FMLA leave to which the employee is entitled. For example, paid sick leave used for a medical condition which is not a serious health condition does not count against the 12 weeks of FMLA leave entitlement. (h) When an employee or employing office elects to substitute paid leave (of any type) for unpaid FMLA leave under circumstances
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