Cite as: 535 U. S. 81 (2002)
O'Connor, J., dissenting
leave, § 2612(b)(1), or the option of asking the employer to substitute accrued paid vacation or sick leave for unpaid FMLA leave, § 2612(b)(2). An employer may only be liable under § 2615 for denying these options if the employee knows enough to request them. A rule that would restrict FMLA remedies to violations of § 2615 based on denials of other statutorily protected rights would thus be equivalent to denying the Secretary the power to enforce an individualized notice requirement at all. Because I believe the individualized notice requirement is justified, and because the Secretary's power to create such a requirement must also include a power to enforce it in some way, this extreme view of the Act's remedial scheme should be rejected.
At other times, however, the Court suggests a less extreme view—that the Secretary may be allowed to require individualized notice, but that the remedy for failing to give such notice must also lie under § 2615, requiring the employee to prove harm from the employer's failure to notify. See ante, at 91 (suggesting that the appropriate rule is one "involving a fact-specific inquiry into what steps the employee would have taken had the employer given the required notice"). This was the approach adopted by the Court of Appeals, allowing recovery when an "employer's failure to give notice . . . interfere[s] with or [denies] an employee's substantive FMLA rights." 218 F. 3d 933, 939 (CA8 2000).
But there is no reason to restrict the Secretary's remedy to § 2615 actions. The Secretary is charged with adopting regulations that are "necessary to carry out" the Act. § 2654. This includes the power to craft appropriate remedies for regulatory violations. In Mourning v. Family Publications Service, Inc., 411 U. S. 356 (1973), where the Federal Reserve Board was empowered to "prescribe regulations to carry out the purposes of" the Truth in Lending Act, 15 U. S. C. § 1604, this Court deferred to its choice of remedies, asserting that "[w]e have consistently held
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