[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. Con. Res. 51 Agreed to Senate (ATS)]
104th CONGRESS
2d Session
S. CON. RES. 51
To provide for the approval of final regulations that are applicable to
employing offices that are not employing offices of the House of
Representatives or the Senate, and to covered employees who are not
employees of the House of Representatives or the Senate, and that were
issued by the Office of Compliance on January 22, 1996, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 15, 1996
Mr. Warner submitted the following concurrent resolution; which was
considered and agreed to
_______________________________________________________________________
CONCURRENT RESOLUTION
To provide for the approval of final regulations that are applicable to
employing offices that are not employing offices of the House of
Representatives or the Senate, and to covered employees who are not
employees of the House of Representatives or the Senate, and that were
issued by the Office of Compliance on January 22, 1996, and for other
purposes.
Resolved by the Senate (the House of Representatives concurring),
That the following regulations issued by the Office of Compliance on
January 22, 1996, and applicable to employing offices that are not
employing offices of the House of Representatives or the Senate, and to
covered employees who are not employees of the House of Representatives
or the Senate, are hereby approved as follows:
PART 825--FAMILY AND MEDICAL LEAVE
825.1 Purpose and scope.
825.2 [Reserved].
Subpart A--What is the Family and Medical Leave Act, and to Whom Does
it Apply under the Congressional Accountability Act?
825.100 What is the Family and Medical Leave Act?
825.101 What is the purpose of the FMLA?
825.102 When are the FMLA and the CAA effective for covered employees
and employing offices?
825.103 How does the FMLA, as made applicable by the CAA, affect leave
in progress on, or taken before, the
effective date of the CAA?
825.104 What employing offices are covered by the FMLA, as made
applicable by the CAA?
825.105 [Reserved].
825.106 How is ``joint employment'' treated under the FMLA as made
applicable by the CAA?
825.107--825.109 [Reserved].
825.110 Which employees are ``eligible'' to take FMLA leave under
these regulations?
825.111 [Reserved].
825.112 Under what kinds of circumstances are employing offices
required to grant family or medical leave?
825.113 What do ``spouse'', ``parent'', and ``son or daughter'' mean
for purposes of an employee qualifying to
take FMLA leave?
825.114 What is a ``serious health condition'' entitling an employee
to FMLA leave?
825.115 What does it mean that ``the employee is unable to perform the
(functions of the position of the
employee''?
825.116 What does it mean that an employee is ``needed to care for'' a
family member?
825.117 For an employee seeking intermittent FMLA leave or leave on a
reduced leave schedule, what is meant by
``the medical necessity for'' such leave?
825.118 What is a ``health care provider''?
Subpart B--What Leave Is an Employee Entitled To Take Under The Family
and Medical Leave Act, as Made Applicable by the Congressional
Accountability Act?
825.200 How much leave may an employee take?
825.201 If leave is taken for the birth of a child, or for placement
of a child for adoption or foster care,
when must the leave be concluded?
825.202 How much leave may a husband and wife take if they are
employed by the same employing office?
825.203 Does FMLA leave have to be taken all at once, or can it be
taken in parts?
825.204 May an employing office transfer an employee to an
``alternative position'' in order to
accommodate intermittent leave or a reduced
leave schedule?
825.205 How does one determine the amount of leave used where an
employee takes leave intermittently or on a
reduced leave schedule?
825.206 May an employing office deduct hourly amounts from an
employee's salary, when providing unpaid
leave under FMLA, as made applicable by the
CAA, without affecting the employee's
qualification for exemption as an
executive, administrative, or professional
employee, or when utilizing the fluctuating
workweek method for payment of overtime,
under the Fair Labor Standards Act?
825.207 Is FMLA leave paid or unpaid?
825.208 Under what circumstances may an employing office designate
leave, paid or unpaid, as FMLA leave and,
as a result, enable leave to be counted
against the employee's total FMLA leave
entitlement?
825.209 Is an employee entitled to benefits while using FMLA leave?
825.210 How may employees on FMLA leave pay their share of group
health benefit premiums?
825.211 What special health benefits maintenance rules apply to multi-
employer health plans?
825.212 What are the consequences of an employee's failure to make
timely health plan premium payments?
825.213 May an employing office recover costs it incurred for
maintaining ``group health plan'' or other
non-health benefits coverage during FMLA
leave?
825.214 What are an employee's rights on returning to work from FMLA
leave?
825.215 What is an equivalent position?
825.216 Are there any limitations on an employing office's obligation
to reinstate an employee?
825.217 What is a ``key employee''?
825.218 What does ``substantial and grievous economic injury'' mean?
825.219 What are the rights of a key employee?
825.220 How are employees protected who request leave or otherwise
assert FMLA rights?
Subpart C--How Do Employees Learn of Their Rights and Obligations under
the FMLA, as Made Applicable by the CAA, and What Can an Employing
Office Require of an Employee?
825.300 [Reserved].
825.301 What notices to employees are required of employing offices
under the FMLA as made applicable by the
CAA?
825.302 What notice does an employee have to give an employing office
when the need for FMLA leave is
foreseeable?
825.303 What are the requirements for an employee to furnish notice to
an employing office where the need for FMLA
leave is not foreseeable?
825.304 What recourse do employing offices have if employees fail to
provide the required notice?
825.305 When must an employee provide medical certification to support
FMLA leave?
825.306 How much information may be required in medical certifications
of a serious health condition?
825.307 What may an employing office do if it questions the adequacy
of a medical certification?
825.308 Under what circumstances may an employing office request
subsequent recertifications of medical
conditions?
825.309 What notice may an employing office require regarding an
employee's intent to return to work?
825.310 Under what circumstances may an employing office require that
an employee submit a medical certification
that the employee is able (or unable) to
return to work (i.e., a ``fitness-for-
duty'' report)?
825.311 What happens if an employee fails to satisfy the medical
certification and/or recertification
requirements?
825.312 Under what circumstances may an employing office refuse to
provide FMLA leave or reinstatement to
eligible employees?
Subpart D--What Enforcement Mechanisms Does the CAA Provide?
825.400 What can employees do who believe that their rights under the
FMLA as made applicable by the CAA have
been violated?
825.401--825.404 [Reserved].
Subpart E--[Reserved]
Subpart F--What Special Rules Apply to Employees of Schools?
825.600 To whom do the special rules apply?
825.601 What limitations apply to the taking of intermittent leave or
leave on a reduced leave schedule?
825.602 What limitations apply to the taking of leave near the end of
an academic term?
825.603 Is all leave taken during ``periods of a particular duration''
counted against the FMLA leave entitlement?
825.604 What special rules apply to restoration to ``an equivalent
position''?
Subpart G--How Do Other Laws, Employing Office Practices, and
Collective Bargaining Agreements Affect Employee Rights Under the FMLA
as Made Applicable by the CAA?
825.700 What if an employing office provides more generous benefits
than required by FMLA as Made Applicable by
the CAA?
825.701 [Reserved].
825.702 How does FMLA affect anti-discrimination laws as applied by
section 201 of the CAA?
Subpart H--Definitions
825.800 Definitions.
Appendix A to Part 825--[Reserved].
Appendix B to Part 825--Certification of Physician or Practitioner.
Appendix C to Part 825--[Reserved].
Appendix D to Part 825--Prototype Notice: Employing Office Response to
Employee Request for Family and Medical
Leave.
Appendix E to Part 825--[Reserved].
PART 825--FAMILY AND MEDICAL LEAVE
Sec. 825.1 Purpose and scope
(a) Section 202 of the Congressional Accountability Act (CAA) (2
U.S.C. 1312) applies the rights and protections of sections 101 through
105 of the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. 2611-
2615) to covered employees. (The term ``covered employee'' is defined
in section 101(3) of the CAA (2 U.S.C. 1301(3)). See Sec. 825.800 of
these regulations for that definition.) The purpose of this part is to
set forth the regulations to carry out the provisions of section 202 of
the CAA.
(b) These regulations are issued by the Board of Directors, Office
of Compliance, pursuant to sections 202(d) and 304 of the CAA, which
direct the Board to promulgate regulations implementing section 202
that are ``the same as substantive regulations promulgated by the
Secretary of Labor to implement the statutory provisions referred to in
subsection (a) [of section 202 of the CAA] except insofar as the Board
may determine, for good cause shown . . . that a modification of such
regulations would be more effective for the implementation of the
rights and protections under this section''. The regulations issued by
the Board herein are on all matters for which section 202 of the CAA
requires regulations to be issued. Specifically, it is the Board's
considered judgment, based on the information available to it at the
time of the promulgation of these regulations, that, with the exception
of regulations adopted and set forth herein, there are no other
``substantive regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in subsection (a) [of
section 202 of the CAA]''.
(c) In promulgating these regulations, the Board has made certain
technical and nomenclature changes to the regulations as promulgated by
the Secretary. Such changes are intended to make the provisions adopted
accord more naturally to situations in the legislative branch. However,
by making these changes, the Board does not intend a substantive
difference between these regulations and those of the Secretary from
which they are derived. Moreover, such changes, in and of themselves,
are not intended to constitute an interpretation of the regulation or
of the statutory provisions of the CAA upon which they are based.
Sec. 825.2 [Reserved]
Subpart A--What is the Family and Medical Leave Act, and to Whom Does
it Apply under the Congressional Accountability Act?
Sec. 825.100 What is the Family and Medical Leave Act?
(a) The Family and Medical Leave Act of 1993 (FMLA), as made
applicable by the Congressional Accountability Act (CAA), allows
``eligible'' employees of an employing office to take job-protected,
unpaid leave, or to substitute appropriate paid leave if the employee
has earned or accrued it, for up to a total of 12 workweeks in any 12
months because of the birth of a child and to care for the newborn
child, because of the placement of a child with the employee for
adoption or foster care, because the employee is needed to care for a
family member (child, spouse, or parent) with a serious health
condition, or because the employee's own serious health condition makes
the employee unable to perform the functions of his or her job (see
Sec. 825.306(b)(4)). In certain cases, this leave may be taken on an
intermittent basis rather than all at once, or the employee may work a
part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employing office, or
a disbursing or other financial office of the House of Representatives
or the Senate may recover its share only if the employee does not
return to work for a reason other than the serious health condition of
the employee or the employee's immediate family member, or another
reason beyond the employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employing office has a right to 30 days advance notice from
the employee where practicable. In addition, the employing office may
require an employee to submit certification from a health care provider
to substantiate that the leave is due to the serious health condition
of the employee or the employee's immediate family member. Failure to
comply with these requirements may result in a delay in the start of
FMLA leave. Pursuant to a uniformly applied policy, the employing
office may also require that an employee present a certification of
fitness to return to work when the absence was caused by the employee's
serious health condition (see Sec. 825.311(c)). The employing office
may delay restoring the employee to employment without such certificate
relating to the health condition which caused the employee's absence.
Sec. 825.101 What is the purpose of the FMLA?
(a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, and for the care of a child, spouse,
or parent who has a serious health condition. The FMLA is intended to
balance the demands of the workplace with the needs of families, to
promote the stability and economic security of families, and to promote
national interests in preserving family integrity. It was intended that
the FMLA accomplish these purposes in a manner that accommodates the
legitimate interests of employers, and in a manner consistent with the
Equal Protection Clause of the Fourteenth Amendment in minimizing the
potential for employment discrimination on the basis of sex, while
promoting equal employment opportunity for men and women.
(b) The enactment of FMLA was predicated on two fundamental
concerns ``the needs of the American workforce, and the development of
high-performance organizations''. Increasingly, America's children and
elderly are dependent upon family members who must spend long hours at
work. When a family emergency arises, requiring workers to attend to
seriously-ill children or parents, or to newly-born or adopted infants,
or even to their own serious illness, workers need reassurance that
they will not be asked to choose between continuing their employment,
and meeting their personal and family obligations or tending to vital
needs at home.
(c) The FMLA is both intended and expected to benefit employers as
well as their employees. A direct correlation exists between stability
in the family and productivity in the workplace. FMLA will encourage
the development of high-performance organizations. When workers can
count on durable links to their workplace they are able to make their
own full commitments to their jobs. The record of hearings on family
and medical leave indicate the powerful productive advantages of stable
workplace relationships, and the comparatively small costs of
guaranteeing that those relationships will not be dissolved while
workers attend to pressing family health obligations or their own
serious illness.
Sec. 825.102 When are the FMLA and the CAA effective for covered
employees and employing offices?
(a) The rights and protection of sections 101 through 105 of the
FMLA have applied to certain Senate employees and certain employing
offices of the Senate since August 5, 1993 (see section 501 of FMLA).
(b) The rights and protection of sections 101 through 105 of the
FMLA have applied to any employee in an employment position and any
employment authority of the House of Representatives since August 5,
1993 (see section 502 of FMLA).
(c) The rights and protections of sections 101 through 105 of the
FMLA have applied to certain employing offices and covered employees
other than those referred to in paragraphs (a) and (b) of this section
for certain periods since August 5, 1993 (see, e.g., title V of the
FMLA, sections 501 and 502).
(d) The provisions of section 202 of the CAA that apply rights and
protections of the FMLA to covered employees are effective on January
23, 1996.
(e) The period prior to the effective date of the application of
FMLA rights and protections under the CAA must be considered in
determining employee eligibility.
Sec. 825.103 How does the FMLA, as made applicable by the CAA, affect
leave in progress on, or taken before, the effective date
of the CAA?
(a) An eligible employee's right to take FMLA leave began on the
date that the rights and protections of the FMLA first went into effect
for the employing office and employee (see Sec. 825.102(a)). Any leave
taken prior to the date on which the rights and protections of the FMLA
first became effective for the employing office from which the leave
was taken may not be counted for purposes of the FMLA as made
applicable by the CAA. If leave qualifying as FMLA leave was underway
prior to the effective date of the FMLA for the employing office from
which the leave was taken and continued after the FMLA's effective date
for that office, only that portion of leave taken on or after the
FMLA's effective date may be counted against the employee's leave
entitlement under the FMLA, as made applicable by the CAA.
(b) If an employing office-approved leave is underway when the
application of the FMLA by the CAA takes effect, no further notice
would be required of the employee unless the employee requests an
extension of the leave. For leave which commenced on the effective date
or shortly thereafter, such notice must have been given which was
practicable, considering the foreseeability of the need for leave and
the effective date.
(c) Starting on January 23, 1996, an employee is entitled to FMLA
leave under these regulations if the reason for the leave is qualifying
under the FMLA, as made applicable by the CAA, even if the event
occasioning the need for leave (e.g., the birth of a child) occurred
before such date (so long as any other requirements are satisfied).
Sec. 825.104 What employing offices are covered by the FMLA, as made
applicable by the CAA?
(a) The FMLA, as made applicable by the CAA, covers all employing
offices. As used in the CAA, the term ``employing office'' means--
(1) the personal office of a Member of the House of
Representatives or of a Senator;
(2) a committee of the House of Representatives or the
Senate or a joint committee;
(3) any other office headed by a person with the final
authority to appoint, hire, discharge, and set the terms,
conditions, or privileges of the employment of an employee of
the House of Representatives or the Senate; or
(4) the Capitol Guide Board, the Capitol Police Board, the
Congressional Budget Office, the Office of the Architect of the
Capitol, the Office of the Attending Physician, the Office of
Compliance, and the Office of Technology Assessment.
(b) [Reserved].
(c) Separate entities will be deemed to be parts of a single
employer for purposes of the FMLA, as made applicable by the CAA, if
they meet the ``integrated employer'' test. A determination of whether
or not separate entities are an integrated employer is not determined
by the application of any single criterion, but rather the entire
relationship is to be reviewed in its totality. Factors considered in
determining whether two or more entities are an integrated employer
include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common financial control.
Sec. 825.105 [Reserved]
Sec. 825.106 How is ``joint employment'' treated under the FMLA as
made applicable by the CAA?
(a) Where two or more employing offices exercise some control over
the work or working conditions of the employee, the employing offices
may be joint employers under FMLA, as made applicable by the CAA. Where
the employee performs work which simultaneously benefits two or more
employing offices, or works for two or more employing offices at
different times during the workweek, a joint employment relationship
generally will be considered to exist in situations such as:
(1) Where there is an arrangement between employing offices
to share an employee's services or to interchange employees;
(2) Where one employing office acts directly or indirectly
in the interest of the other employing office in relation to
the employee; or
(3) Where the employing offices are not completely
disassociated with respect to the employee's employment and may
be deemed to share control of the employee, directly or
indirectly, because one employing office controls, is
controlled by, or is under common control with the other
employing office.
(b) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when--
(1) an employee, who is employed by an employing office
other than the personal office of a Member of the House of
Representatives or of a Senator, is under the actual direction
and control of the Member of the House of Representatives or
Senator; or
(2) two or more employing offices employ an individual to
work on common issues or other matters for both or all of them.
(c) When employing offices employ a covered employee jointly, they
may designate one of themselves to be the primary employing office, and
the other or others to be the secondary employing office(s). Such a
designation shall be made by written notice to the covered employee.
(d) If an employing office is designated a primary employing office
pursuant to paragraph (c) of this section, only that employing office
is responsible for giving required notices to the covered employee,
providing FMLA leave, and maintenance of health benefits. Job
restoration is the primary responsibility of the primary employing
office, and the secondary employing office(s) may, subject to the
limitations in Sec. 825.216, be responsible for accepting the employee
returning from FMLA leave.
(e) If employing offices employ an employee jointly, but fail to
designate a primary employing office pursuant to paragraph (c) of this
section, then all of these employing offices shall be jointly and
severally liable for giving required notices to the employee, for
providing FMLA leave, for assuring that health benefits are maintained,
and for job restoration. The employee may give notice of need for FMLA
leave, as described in Sec. Sec. 825.302 and 825.303, to whichever of
these employing offices the employee chooses. If the employee makes a
written request for restoration to one of these employing offices, that
employing office shall be primarily responsible for job restoration,
and the other employing office(s) may, subject to the limitations in
Sec. 825.216, be responsible for accepting the employee returning from
FMLA leave.
Sec. 825.107 [Reserved]
Sec. 825.108 [Reserved]
Sec. 825.109 [Reserved]
Sec. 825.110 Which employees are ``eligible'' to take FMLA leave under
these regulations?
(a) An ``eligible employee'' under these regulations means a
covered employee who has been employed in any employing office for 12
months and for at least 1,250 hours of employment during the previous
12 months.
(b) The 12 months an employee must have been employed by any
employing office need not be consecutive months. If an employee worked
for two or more employing offices sequentially, the time worked will be
aggregated to determine whether it equals 12 months. If an employee is
maintained on the payroll for any part of a week, including any periods
of paid or unpaid leave (sick, vacation) during which other benefits or
compensation are provided by the employer (e.g., workers' compensation,
group health plan benefits, etc.), the week counts as a week of
employment. For purposes of determining whether intermittent/
occasional/casual employment qualifies as ``at least 12 months'', 52
weeks is deemed to be equal to 12 months.
(c) If an employee was employed by two or more employing offices,
either sequentially or concurrently, the hours of service will be
aggregated to determine whether the minimum of 1,250 hours has been
reached. Whether an employee has worked the minimum 1,250 hours of
service is determined according to the principles established under the
Fair Labor Standards Act (FLSA), as applied by section 203 of the CAA
(2 U.S.C. 1313), for determining compensable hours of work. The
determining factor is the number of hours an employee has worked for
one or more employing offices. The determination is not limited by
methods of record-keeping, or by compensation agreements that do not
accurately reflect all of the hours an employee has worked for or been
in service to the employing office. Any accurate accounting of actual
hours worked may be used. For this purpose, full-time teachers (see
Sec. 825.800 for definition) of an elementary or secondary school
system, or institution of higher education, or other educational
establishment or institution are deemed to meet the 1,250 hour test. An
employing office must be able to clearly demonstrate that such an
employee did not work 1,250 hours during the previous 12 months in
order to claim that the employee is not ``eligible'' for FMLA leave.
(d) The determinations of whether an employee has worked for any
employing office for at least 1,250 hours in the previous 12 months and
has been employed by any employing office for a total of at least 12
months must be made as of the date leave commences. The ``previous 12
months'' means the 12 months immediately preceding the commencement of
the leave. If an employee notifies the employing office of need for
FMLA leave before the employee meets these eligibility criteria, the
employing office must either confirm the employee's eligibility based
upon a projection that the employee will be eligible on the date leave
would commence or must advise the employee when the eligibility
requirement is met. If the employing office confirms eligibility at the
time the notice for leave is received, the employing office may not
subsequently challenge the employee's eligibility. In the latter case,
if the employing office does not advise the employee whether the
employee is eligible as soon as practicable (i.e., two business days
absent extenuating circumstances) after the date employee eligibility
is determined, the employee will have satisfied the notice requirements
and the notice of leave is considered current and outstanding until the
employing office does advise. If the employing office fails to advise
the employee whether the employee is eligible prior to the date the
requested leave is to commence, the employee will be deemed eligible.
The employing office may not, then, deny the leave. Where the employee
does not give notice of the need for leave more than two business days
prior to commencing leave, the employee will be deemed to be eligible
if the employing office fails to advise the employee that the employee
is not eligible within two business days of receiving the employee's
notice.
(e) The period prior to the effective date of the application of
FMLA rights and protections under the CAA must be considered in
determining employee's eligibility.
(f) [Reserved].
Sec. 825.111 [Reserved]
Sec. 825.112 Under what kinds of circumstances are employing offices
required to grant family or medical leave?
(a) Employing offices are required to grant leave to eligible
employees:
(1) For birth of a son or daughter, and to care for the
newborn child;
(2) For placement with the employee of a son or daughter
for adoption or foster care;
(3) To care for the employee's spouse, son, daughter, or
parent with a serious health condition; and
(4) Because of a serious health condition that makes the
employee unable to perform the functions of the employee's job.
(b) The right to take leave under FMLA as made applicable by the
CAA applies equally to male and female employees. A father, as well as
a mother, can take family leave for the birth, placement for adoption
or foster care of a child.
(c) Circumstances may require that FMLA leave begin before the
actual date of birth of a child. An expectant mother may take FMLA
leave pursuant to paragraph (a)(4) of this section before the birth of
the child for prenatal care or if her condition makes her unable to
work.
(d) Employing offices are required to grant FMLA leave pursuant to
paragraph (a)(2) of this section before the actual placement or
adoption of a child if an absence from work is required for the
placement for adoption or foster care to proceed. For example, the
employee may be required to attend counseling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, or submit to a physical examination. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for leave for
this purpose.
(e) Foster care is 24-hour care for children in substitution for,
and away from, their parents or guardian. Such placement is made by or
with the agreement of the State as a result of a voluntary agreement
between the parent or guardian that the child be removed from the home,
or pursuant to a judicial determination of the necessity for foster
care, and involves agreement between the State and foster family that
the foster family will take care of the child. Although foster care may
be with relatives of the child, State action is involved in the removal
of the child from parental custody.
(f) In situations where the employer/employee relationship has been
interrupted, such as an employee who has been on layoff, the employee
must be recalled or otherwise be re-employed before being eligible for
FMLA leave. Under such circumstances, an eligible employee is
immediately entitled to further FMLA leave for a qualifying reason.
(g) FMLA leave is available for treatment for substance abuse
provided the conditions of Sec. 825.114 are met. However, treatment for
substance abuse does not prevent an employing office from taking
employment action against an employee. The employing office may not
take action against the employee because the employee has exercised his
or her right to take FMLA leave for treatment. However, if the
employing office has an established policy, applied in a non-
discriminatory manner that has been communicated to all employees, that
provides under certain circumstances an employee may be terminated for
substance abuse, pursuant to that policy the employee may be terminated
whether or not the employee is presently taking FMLA leave. An employee
may also take FMLA leave to care for an immediate family member who is
receiving treatment for substance abuse. The employing office may not
take action against an employee who is providing care for an immediate
family member receiving treatment for substance abuse.
Sec. 825.113 What do ``spouse'', ``parent'', and ``son or daughter''
mean for purposes of an employee qualifying to take FMLA
leave?
(a) Spouse means a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee
resides, including common law marriage in States where it is
recognized.
(b) Parent means a biological parent or an individual who stands or
stood in loco parentis to an employee when the employee was a son or
daughter as defined in (c) below. This term does not include parents
``in law''.
(c) Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''.
(1) ``Incapable of self-care'' means that the individual
requires active assistance or supervision to provide daily
self-care in three or more of the ``activities of daily
living'' (ADLs) or ``instrumental activities of daily living''
(IADLs). Activities of daily living include adaptive activities
such as caring appropriately for one's grooming and hygiene,
bathing, dressing and eating. Instrumental activities of daily
living include cooking, cleaning, shopping, taking public
transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
(2) ``Physical or mental disability'' means a physical or
mental impairment that substantially limits one or more of the
major life activities of an individual. See the Americans with
Disabilities Act (ADA), as made applicable by section 201(a)(3)
of the CAA (2 U.S.C. 1311(a)(3)).
(3) Persons who are ``in loco parentis'' include those with
day-to-day responsibilities to care for and financially support
a child or, in the case of an employee, who had such
responsibility for the employee when the employee was a child.
A biological or legal relationship is not necessary.
(d) For purposes of confirmation of family relationship, the
employing office may require the employee giving notice of the need for
leave to provide reasonable documentation or statement of family
relationship. This documentation may take the form of a simple
statement from the employee, or a child's birth certificate, a court
document, etc. The employing office is entitled to examine
documentation such as a birth certificate, etc., but the employee is
entitled to the return of the official document submitted for this
purpose.
Sec. 825.114 What is a ``serious health condition'' entitling an
employee to FMLA leave?
(a) For purposes of FMLA, ``serious health condition'' entitling an
employee to FMLA leave means an illness, injury, impairment, or
physical or mental condition that involves:
(1) Inpatient care (i.e., an overnight stay) in a hospital,
hospice, or residential medical care facility, including any
period of incapacity (for purposes of this section, defined to
mean inability to work, attend school or perform other regular
daily activities due to the serious health condition, treatment
therefor, or recovery therefrom), or any subsequent treatment
in connection with such inpatient care; or
(2) Continuing treatment by a health care provider. A
serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(i) A period of incapacity (i.e., inability to
work, attend school or perform other regular daily
activities due to the serious health condition,
treatment therefor, or recovery therefrom) of more than
three consecutive calendar days, and any subsequent
treatment or period of incapacity relating to the same
condition, that also involves:
(A) Treatment two or more times by a health
care provider, by a nurse or physician's
assistant under direct supervision of a health
care provider, or by a provider of health care
services (e.g., physical therapist) under
orders of, or on referral by, a health care
provider; or
(B) Treatment by a health care provider on
at least one occasion which results in a
regimen of continuing treatment under the
supervision of the health care provider.
(ii) Any period of incapacity due to pregnancy, or
for prenatal care.
(iii) Any period of incapacity or treatment for
such incapacity due to a chronic serious health
condition. A chronic serious health condition is one
which:
(A) Requires periodic visits for treatment
by a health care provider, or by a nurse or
physician's assistant under direct supervision
of a health care provider;
(B) Continues over an extended period of
time (including recurring episodes of a single
underlying condition); and
(C) May cause episodic rather than a
continuing period of incapacity (e.g., asthma,
diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or
long-term due to a condition for which treatment may
not be effective. The employee or family member must be
under the continuing supervision of, but need not be
receiving active treatment by, a health care provider.
Examples include Alzheimer's, a severe stroke, or the
terminal stages of a disease.
(v) Any period of absence to receive multiple
treatments (including any period of recovery therefrom)
by a health care provider or by a provider of health
care services under orders of, or on referral by, a
health care provider, either for restorative surgery
after an accident or other injury, or for a condition
that would likely result in a period of incapacity of
more than three consecutive calendar days in the
absence of medical intervention or treatment, such as
cancer (chemotherapy, radiation, etc.), severe
arthritis (physical therapy), kidney disease
(dialysis).
(b) Treatment for purposes of paragraph (a) of this section
includes (but is not limited to) examinations to determine if a serious
health condition exists and evaluations of the condition. Treatment
does not include routine physical examinations, eye examinations, or
dental examinations. Under paragraph (a)(2)(i)(B), a regimen of
continuing treatment includes, for example, a course of prescription
medication (e.g., an antibiotic) or therapy requiring special equipment
to resolve or alleviate the health condition (e.g., oxygen). A regimen
of continuing treatment that includes the taking of over-the-counter
medications such as aspirin, antihistamines, or salves; or bed-rest,
drinking fluids, exercise, and other similar activities that can be
initiated without a visit to a health care provider, is not, by itself,
sufficient to constitute a regimen of continuing treatment for purposes
of FMLA leave.
(c) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic surgery) are not ``serious
health conditions'' unless inpatient hospital care is required or
unless complications develop. Ordinarily, unless complications arise,
the common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet
the definition of a serious health condition and do not qualify for
FMLA leave. Restorative dental or plastic surgery after an injury or
removal of cancerous growths are serious health conditions provided all
the other conditions of this regulation are met. Mental illness
resulting from stress or allergies may be serious health conditions,
but only if all the conditions of this section are met.
(d) Substance abuse may be a serious health condition if the
conditions of this section are met. However, FMLA leave may only be
taken for treatment for substance abuse by a health care provider or by
a provider of health care services on referral by a health care
provider. On the other hand, absence because of the employee's use of
the substance, rather than for treatment, does not qualify for FMLA
leave.
(e) Absences attributable to incapacity under paragraphs (a)(2)
(ii) or (iii) qualify for FMLA leave even though the employee or the
immediate family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three days. For example, an employee with asthma may be unable to
report for work due to the onset of an asthma attack or because the
employee's health care provider has advised the employee to stay home
when the pollen count exceeds a certain level. An employee who is
pregnant may be unable to report to work because of severe morning
sickness.
Sec. 825.115 What does it mean that ``the employee is unable to perform
the functions of the position of the employee''?
An employee is ``unable to perform the functions of the position''
where the health care provider finds that the employee is unable to
work at all or is unable to perform any one of the essential functions
of the employee's position within the meaning of the Americans with
Disabilities Act (ADA), as made applicable by section 201(a)(3) of the
CAA (2 U.S.C. 1311(a)(3)). An employee who must be absent from work to
receive medical treatment for a serious health condition is considered
to be unable to perform the essential functions of the position during
the absence for treatment. An employing office has the option, in
requiring certification from a health care provider, to provide a
statement of the essential functions of the employee's position for the
health care provider to review. For purposes of FMLA, the essential
functions of the employee's position are to be determined with
reference to the position the employee held at the time notice is given
or leave commenced, whichever is earlier.
Sec. 825.116 What does it mean that an employee is ``needed to care
for'' a family member?
(a) The medical certification provision that an employee is
``needed to care for'' a family member encompasses both physical and
psychological care. It includes situations where, for example, because
of a serious health condition, the family member is unable to care for
his or her own basic medical, hygienic, or nutritional needs or safety,
or is unable to transport himself or herself to the doctor, etc. The
term also includes providing psychological comfort and reassurance
which would be beneficial to a child, spouse or parent with a serious
health condition who is receiving inpatient or home care.
(b) The term also includes situations where the employee may be
needed to fill in for others who are caring for the family member, or
to make arrangements for changes in care, such as transfer to a nursing
home.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member includes not only a situation
where the family member's condition itself is intermittent, but also
where the employee is only needed intermittently ``such as where other
care is normally available, or care responsibilities are shared with
another member of the family or a third party.
Sec. 825.117 For an employee seeking intermittent FMLA leave or leave
on a reduced leave schedule, what is meant by ``the
medical necessity for'' such leave?
For intermittent leave or leave on a reduced leave schedule, there
must be a medical need for leave (as distinguished from voluntary
treatments and procedures) and it must be that such medical need can be
best accommodated through an intermittent or reduced leave schedule.
The treatment regimen and other information described in the
certification of a serious health condition (see Sec. 825.306) meets
the requirement for certification of the medical necessity of
intermittent leave or leave on a reduced leave schedule. Employees
needing intermittent FMLA leave or leave on a reduced leave schedule
must attempt to schedule their leave so as not to disrupt the employing
office's operations. In addition, an employing office may assign an
employee to an alternative position with equivalent pay and benefits
that better accommodates the employee's intermittent or reduced leave
schedule.
Sec. 825.118 What is a ``health care provider''?
(a)(1) The term ``health care provider'' means:
(i) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in
which the doctor practices; or
(ii) Any other person determined by the Office of
Compliance to be capable of providing health care services.
(2) In making a determination referred to in subparagraph (1)(ii),
and absent good cause shown to do otherwise, the Office of Compliance
will follow any determination made by the Secretary of Labor (under
section 101(6)(B) of the FMLA, 29 U.S.C. 2611(6)(B)) that a person is
capable of providing health care services, provided the Secretary's
determination was not made at the request of a person who was then a
covered employee.
(b) Others ``capable of providing health care services'' include
only:
(1) Podiatrists, dentists, clinical psychologists,
optometrists, and chiropractors (limited to treatment
consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by X-ray to exist) authorized to
practice in the State and performing within the scope of their
practice as defined under State law;
(2) Nurse practitioners, nurse-midwives and clinical social
workers who are authorized to practice under State law and who
are performing within the scope of their practice as defined
under State law;
(3) Christian Science practitioners listed with the First
Church of Christ, Scientist in Boston, Massachusetts. Where an
employee or family member is receiving treatment from a
Christian Science practitioner, an employee may not object to
any requirement from an employing office that the employee or
family member submit to examination (though not treatment) to
obtain a second or third certification from a health care
provider other than a Christian Science practitioner except as
otherwise provided under applicable State or local law or
collective bargaining agreement.
(4) Any health care provider from whom an employing office
or the employing office's group health plan's benefits manager
will accept certification of the existence of a serious health
condition to substantiate a claim for benefits; and
(5) A health care provider listed above who practices in a
country other than the United States, who is authorized to
practice in accordance with the law of that country, and who is
performing within the scope of his or her practice as defined
under such law.
(c) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions without supervision by a
doctor or other health care provider.
Subpart B--What Leave Is an Employee Entitled To Take Under the Family
and Medical Leave Act, as Made Applicable by the Congressional
Accountability Act?
Sec. 825.200 How much leave may an employee take?
(a) An eligible employee's FMLA leave entitlement is limited to a
total of 12 workweeks of leave during any 12-month period for any one,
or more, of the following reasons:
(1) The birth of the employee's son or daughter, and to
care for the newborn child;
(2) The placement with the employee of a son or daughter
for adoption or foster care, and to care for the newly placed
child;
(3) To care for the employee's spouse, son, daughter, or
parent with a serious health condition; and
(4) Because of a serious health condition that makes the
employee unable to perform one or more of the essential
functions of his or her job.
(b) An employing office is permitted to choose any one of the
following methods for determining the ``12-month period'' in which the
12 weeks of leave entitlement occurs:
(1) The calendar year;
(2) Any fixed 12-month ``leave year'', such as a fiscal
year or a year starting on an employee's ``anniversary'' date;
(3) The 12-month period measured forward from the date any
employee's first FMLA leave begins; or
(4) A ``rolling'' 12-month period measured backward from
the date an employee uses any FMLA leave (except that such
measure may not extend back before the date on which the
application of FMLA rights and protections first becomes
effective for the employing office; see Sec. 825.102).
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section
an employee would be entitled to up to 12 weeks of FMLA leave at any
time in the fixed 12-month period selected. An employee could,
therefore, take 12 weeks of leave at the end of the year and 12 weeks
at the beginning of the following year. Under the method in paragraph
(b)(3) of this section, an employee would be entitled to 12 weeks of
leave during the year beginning on the first date FMLA leave is taken;
the next 12-month period would begin the first time FMLA leave is taken
after completion of any previous 12-month period. Under the method in
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each
time an employee takes FMLA leave the remaining leave entitlement would
be any balance of the 12 weeks which has not been used during the
immediately preceding 12 months. For example, if an employee has taken
eight weeks of leave during the past 12 months, an additional four
weeks of leave could be taken. If an employee used four weeks beginning
February 1, 1997, four weeks beginning June 1, 1997, and four weeks
beginning December 1, 1997, the employee would not be entitled to any
additional leave until February 1, 1998. However, beginning on February
1, 1998, the employee would be entitled to four weeks of leave, on June
1 the employee would be entitled to an additional four weeks, etc.
(d)(1) Employing offices will be allowed to choose any one of the
alternatives in paragraph (b) of this section provided the alternative
chosen is applied consistently and uniformly to all employees. An
employing office wishing to change to another alternative is required
to give at least 60 days notice to all employees, and the transition
must take place in such a way that the employees retain the full
benefit of 12 weeks of leave under whichever method affords the
greatest benefit to the employee. Under no circumstances may a new
method be implemented in order to avoid the CAA's FMLA leave
requirements.
(2) [Reserved].
(e) If an employing office fails to select one of the options in
paragraph (b) of this section for measuring the 12-month period, the
option that provides the most beneficial outcome for the employee will
be used. The employing office may subsequently select an option only by
providing the 60-day notice to all employees of the option the
employing office intends to implement. During the running of the 60-day
period any other employee who needs FMLA leave may use the option
providing the most beneficial outcome to that employee. At the
conclusion of the 60-day period the employing office may implement the
selected option.
(f) For purposes of determining the amount of leave used by an
employee, the fact that a holiday may occur within the week taken as
FMLA leave has no effect; the week is counted as a week of FMLA leave.
However, if for some reason the employing office's activity has
temporarily ceased and employees generally are not expected to report
for work for one or more weeks (e.g., a school closing two weeks for
the Christmas/New Year holiday or the summer vacation or an employing
office closing the office for repairs), the days the employing office's
activities have ceased do not count against the employee's FMLA leave
entitlement. Methods for determining an employee's 12-week leave
entitlement are also described in Sec. 825.205.
(g)(1) If employing offices jointly employ an employee, and if they
designate a primary employer pursuant to Sec. 825.106(c), the primary
employer may choose any one of the alternatives in paragraph (b) of
this section for measuring the 12-month period, provided that the
alternative chosen is applied consistently and uniformly to all
employees of the primary employer including the jointly employed
employee.
(2) If employing offices fail to designated a primary employer
pursuant to Sec. 825.106(c), an employee jointly employed by the
employing offices may, by so notifying one of the employing offices,
select that employing office to be the primary employer of the employee
for purposes of the application of paragraphs (d) and (e) of this
section.
Sec. 825.201 If leave is taken for the birth of a child, or for
placement of a child for adoption or foster care, when
must the leave be concluded?
An employee's entitlement to leave for a birth or placement for
adoption or foster care expires at the end of the 12-month period
beginning on the date of the birth or placement, unless the employing
office permits leave to be taken for a longer period. Any such FMLA
leave must be concluded within this one-year period.
Sec. 825.202 How much leave may a husband and wife take if they are
employed by the same employing office?
(a) A husband and wife who are eligible for FMLA leave and are
employed by the same employing office may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken--
(1) for birth of the employee's son or daughter or to care
for the child after birth;
(2) for placement of a son or daughter with the employee
for adoption or foster care, or to care for the child after
placement; or
(3) to care for the employee's parent with a serious health
condition.
(b) This limitation on the total weeks of leave applies to leave
taken for the reasons specified in paragraph (a) of this section as
long as a husband and wife are employed by the ``same employing
office''. It would apply, for example, even though the spouses are
employed at two different work sites of an employing office. On the
other hand, if one spouse is ineligible for FMLA leave, the other
spouse would be entitled to a full 12 weeks of FMLA leave.
(c) Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for one of the purposes in paragraph (a) of
this section, the husband and wife would each be entitled to the
difference between the amount he or she has taken individually and 12
weeks for FMLA leave for a purpose other than those contained in
paragraph (a) of this section. For example, if each spouse took 6 weeks
of leave to care for a healthy, newborn child, each could use an
additional 6 weeks due to his or her own serious health condition or to
care for a child with a serious health condition.
Sec. 825.203 Does FMLA leave have to be taken all at once, or can it
be taken in parts?
(a) FMLA leave may be taken ``intermittently or on a reduced leave
schedule'' under certain circumstances. Intermittent leave is FMLA
leave taken in separate blocks of time due to a single qualifying
reason. A reduced leave schedule is a leave schedule that reduces an
employee's usual number of working hours per workweek, or hours per
workday. A reduced leave schedule is a change in the employee's
schedule for a period of time, normally from full-time to part-time.
(b) When leave is taken after the birth or placement of a child for
adoption or foster care, an employee may take leave intermittently or
on a reduced leave schedule only if the employing office agrees. Such a
schedule reduction might occur, for example, where an employee, with
the employing office's agreement, works part-time after the birth of a
child, or takes leave in several segments. The employing office's
agreement is not required, however, for leave during which the mother
has a serious health condition in connection with the birth of her
child or if the newborn child has a serious health condition.
(c) Leave may be taken intermittently or on a reduced leave
schedule when medically necessary for planned and/or unanticipated
medical treatment of a related serious health condition by or under the
supervision of a health care provider, or for recovery from treatment
or recovery from a serious health condition. It may also be taken to
provide care or psychological comfort to an immediate family member
with a serious health condition.
(1) Intermittent leave may be taken for a serious health
condition which requires treatment by a health care provider
periodically, rather than for one continuous period of time,
and may include leave of periods from an hour or more to
several weeks. Examples of intermittent leave would include
leave taken on an occasional basis for medical appointments, or
leave taken several days at a time spread over a period of six
months, such as for chemotherapy. A pregnant employee may take
leave intermittently for prenatal examinations or for her own
condition, such as for periods of severe morning sickness. An
example of an employee taking leave on a reduced leave schedule
is an employee who is recovering from a serious health
condition and is not strong enough to work a full-time
schedule.
(2) Intermittent or reduced schedule leave may be taken for
absences where the employee or family member is incapacitated
or unable to perform the essential functions of the position
because of a chronic serious health condition even if he or she
does not receive treatment by a health care provider.
(d) There is no limit on the size of an increment of leave when an
employee takes intermittent leave or leave on a reduced leave schedule.
However, an employing office may limit leave increments to the shortest
period of time that the employing office's payroll system uses to
account for absences or use of leave, provided it is one hour or less.
For example, an employee might take two hours off for a medical
appointment, or might work a reduced day of four hours over a period of
several weeks while recuperating from an illness. An employee may not
be required to take more FMLA leave than necessary to address the
circumstance that precipitated the need for the leave, except as
provided in Sec. Sec. 825.601 and 825.602.
Sec. 825.204 May an employing office transfer an employee to an
``alternative position'' in order to accommodate
intermittent leave or a reduced leave schedule?
(a) If an employee needs intermittent leave or leave on a reduced
leave schedule that is foreseeable based on planned medical treatment
for the employee or a family member, including during a period of
recovery from a serious health condition, or if the employing office
agrees to permit intermittent or reduced schedule leave for the birth
of a child or for placement of a child for adoption or foster care, the
employing office may require the employee to transfer temporarily,
during the period the intermittent or reduced leave schedule is
required, to an available alternative position for which the employee
is qualified and which better accommodates recurring periods of leave
than does the employee's regular position. See Sec. 825.601 for special
rules applicable to instructional employees of schools.
(b) Transfer to an alternative position may require compliance with
any applicable collective bargaining agreement and any applicable law
(such as the Americans with Disabilities Act, as made applicable by the
CAA). Transfer to an alternative position may include altering an
existing job to better accommodate the employee's need for intermittent
or reduced leave.
(c) The alternative position must have equivalent pay and benefits.
An alternative position for these purposes does not have to have
equivalent duties. The employing office may increase the pay and
benefits of an existing alternative position, so as to make them
equivalent to the pay and benefits of the employee's regular job. The
employing office may also transfer the employee to a part-time job with
the same hourly rate of pay and benefits, provided the employee is not
required to take more leave than is medically necessary. For example,
an employee desiring to take leave in increments of four hours per day
could be transferred to a half-time job, or could remain in the
employee's same job on a part-time schedule, paying the same hourly
rate as the employee's previous job and enjoying the same benefits. The
employing office may not eliminate benefits which otherwise would not
be provided to part-time employees; however, an employing office may
proportionately reduce benefits such as vacation leave where an
employing office's normal practice is to base such benefits on the
number of hours worked.
(d) An employing office may not transfer the employee to an
alternative position in order to discourage the employee from taking
leave or otherwise work a hardship on the employee. For example, a
white collar employee may not be assigned to perform laborer's work; an
employee working the day shift may not be reassigned to the graveyard
shift; an employee working in the headquarters facility may not be
reassigned to a branch a significant distance away from the employee's
normal job location. Any such attempt on the part of the employing
office to make such a transfer will be held to be contrary to the
prohibited-acts provisions of the FMLA, as made applicable by the CAA.
(e) When an employee who is taking leave intermittently or on a
reduced leave schedule and has been transferred to an alternative
position no longer needs to continue on leave and is able to return to
full-time work, the employee must be placed in the same or equivalent
job as the job he/she left when the leave commenced. An employee may
not be required to take more leave than necessary to address the
circumstance that precipitated the need for leave.
Sec. 825.205 How does one determine the amount of leave used where an
employee takes leave intermittently or on a reduced leave
schedule?
(a) If an employee takes leave on an intermittent or reduced leave
schedule, only the amount of leave actually taken may be counted toward
the 12 weeks of leave to which an employee is entitled. For example, if
an employee who normally works five days a week takes off one day, the
employee would use \1/5\ of a week of FMLA leave. Similarly, if a full-
time employee who normally works 8-hour days works 4-hour days under a
reduced leave schedule, the employee would use \1/2\ week of FMLA leave
each week.
(b) Where an employee normally works a part-time schedule or
variable hours, the amount of leave to which an employee is entitled is
determined on a pro rata or proportional basis by comparing the new
schedule with the employee's normal schedule. For example, if an
employee who normally works 30 hours per week works only 20 hours a
week under a reduced leave schedule, the employee's ten hours of leave
would constitute one-third of a week of FMLA leave for each week the
employee works the reduced leave schedule.
(c) If an employing office has made a permanent or long-term change
in the employee's schedule (for reasons other than FMLA, and prior to
the notice of need for FMLA leave), the hours worked under the new
schedule are to be used for making this calculation.
(d) If an employee's schedule varies from week to week, a weekly
average of the hours worked over the 12 weeks prior to the beginning of
the leave period would be used for calculating the employee's normal
workweek.
Sec. 825.206 May an employing office deduct hourly amounts from an
employee's salary, when providing unpaid leave under
FMLA, as made applicable by the CAA, without affecting
the employee's qualification for exemption as an
executive, administrative, or professional employee, or
when utilizing the fluctuating workweek method for
payment of overtime, under the Fair Labor Standards 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
applicable by the CAA, as a salaried executive, administrative, or
professional employee (under regulations issued by the Board, at part
541), providing unpaid FMLA-qualifying leave to such an employee will
not cause the employee 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 intermittent or reduced FMLA leave within a workweek, without
affecting the exempt status of the employee. The fact that an employing
office provides FMLA leave, whether paid or unpaid, or maintains any
records regarding FMLA leave, will not be relevant to the determination
whether an employee is exempt within the meaning of the Board's
regulations at part 541.
(b) For an employee paid in accordance with a fluctuating 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
intermittent 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
taking 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 workweek
method of payment, the employing office must do so uniformly, with
respect to all employees paid on a fluctuating 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'' requirements of
the FLSA exemption or fluctuating workweek payment requirements applies
only to employees of employing offices who are eligible for FMLA leave,
and to leave which qualifies as (one of the four types of) FMLA leave.
Hourly or other deductions which are not in accordance with the Board's
regulations at part 541 or with a permissible fluctuating workweek
method of payment for overtime 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 regulations
at part 541 or by a permissible 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, 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 for leave which is more
generous than provided by FMLA as made applicable by the CAA, such as
leave in excess of 12 weeks in a year. The employing office may comply
with the employing office's own policy/practice under these
circumstances and maintain the employee's eligibility for exemption or
for the fluctuating workweek method of pay by not taking hourly
deductions from the employee's pay, in accordance with FLSA
requirements, 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.
Sec. 825.207 Is FMLA leave paid or unpaid?
(a) Generally, FMLA leave is unpaid. However, under the
circumstances described in this section, FMLA, as made applicable by
the CAA, permits an eligible employee to choose to substitute paid
leave for FMLA leave. If an employee does not choose to substitute
accrued paid leave, the employing office may require the employee to
substitute accrued paid leave for FMLA leave.
(b) Where an employee has earned or accrued paid vacation, personal
or family leave, that paid leave may be substituted for all or part of
any (otherwise) unpaid FMLA leave relating to birth, placement of a
child for adoption or foster care, or care for a spouse, child or
parent who has a serious health condition. The term ``family leave'' as
used in FMLA refers to paid leave provided by the employing office
covering the particular circumstances for which the employee seeks
leave for either the birth of a child and to care for such child,
placement of a child for adoption or foster care, or care for a spouse,
child or parent with a serious health condition. For example, if the
employing office's leave plan allows use of family leave to care for a
child but not for a parent, the employing office is not required to
allow accrued family leave to be substituted for FMLA leave used to
care for a parent.
(c) Substitution of paid accrued vacation, personal, or medical/
sick leave may be made for any (otherwise) unpaid FMLA leave needed to
care for a family member or the employee's own serious health
condition. Substitution of paid sick/medical leave may be elected to
the extent the circumstances meet the employing office's usual
requirements for the use of sick/medical leave. An employing office is
not required to allow substitution of paid sick or medical leave for
unpaid FMLA leave ``in any situation'' where the employing office's
uniform policy would not normally allow such paid leave. An employee,
therefore, has a right to substitute paid medical/sick leave to care
for a seriously ill family member only if the employing office's leave
plan allows paid leave to be used for that purpose. Similarly, an
employee does not have a right to substitute paid medical/sick leave
for a serious health condition which is not covered by the employing
office's leave plan.
(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 plan 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 Sec. 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 payments, 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 Sec. Sec.
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 employing
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 paid
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 permitted
by these regulations, and the employing office's procedural
requirements for taking that kind of leave are less stringent than the
requirements of FMLA as made applicable by the CAA (e.g., notice or
certification requirements), only the less stringent requirements may
be imposed. An employee who complies with an employing office's less
stringent leave plan requirements in such cases may not have leave for
an FMLA purpose delayed or denied on the grounds that the employee has
not complied with stricter requirements of FMLA as made applicable by
the CAA. However, where accrued paid vacation or personal leave is
substituted for unpaid FMLA leave for a serious health condition, an
employee may be required to comply with any less stringent medical
certification requirements of the employing office's sick leave
program. See Sec. Sec. 825.302(g), 825.305(e) and 825.306(c).
(i) Compensatory time off, if any is authorized under applicable
law, is not a form of accrued paid leave that an employing office may
require the employee to substitute for unpaid FMLA leave. The employee
may request to use his/her balance of compensatory time for an FMLA
reason. If the employing office permits the accrual of compensatory
time to be used in compliance with applicable Board regulations, the
absence which is paid from the employee's accrued compensatory time
``account'' may not be counted against the employee's FMLA leave
entitlement.
Sec. 825.208 Under what circumstances may an employing office designate
leave, paid or unpaid, as FMLA leave and, as a result,
enable leave to be counted against the employee's total
FMLA leave entitlement?
(a) In all circumstances, it is the employing office's
responsibility to designate leave, paid or unpaid, as FMLA-qualifying,
and to give notice of the designation to the employee as provided in
this section. In the case of intermittent leave or leave on a reduced
schedule, only one such notice is required unless the circumstances
regarding the leave have changed. The employing office's designation
decision must be based only on information received from the employee
or the employee's spokesperson (e.g., if the employee is incapacitated,
the employee's spouse, adult child, parent, doctor, etc., may provide
notice to the employing office of the need to take FMLA leave). In any
circumstance where the employing office does not have sufficient
information about the reason for an employee's use of paid leave, the
employing office should inquire further of the employee or the
spokesperson to ascertain whether the paid leave is potentially FMLA-
qualifying.
(1) An employee giving notice of the need for unpaid FMLA
leave must explain the reasons for the needed leave so as to
allow the employing office to determine that the leave
qualifies under the FMLA, as made applicable by the CAA. If the
employee fails to explain the reasons, leave may be denied. In
many cases, in explaining the reasons for a request to use paid
leave, especially when the need for the leave was unexpected or
unforeseen, an employee will provide sufficient information for
the employing office to designate the paid leave as FMLA leave.
An employee using accrued paid leave, especially vacation or
personal leave, may in some cases not spontaneously explain the
reasons or their plans for using their accrued leave.
(2) As noted in Sec. 825.302(c), an employee giving notice
of the need for unpaid FMLA leave does not need to expressly
assert rights under the FMLA as made applicable by the CAA or
even mention the FMLA to meet his or her obligation to provide
notice, though the employee would need to state a qualifying
reason for the needed leave. An employee requesting or
notifying the employing office of an intent to use accrued paid
leave, even if for a purpose covered by FMLA, would not need to
assert such right either. However, if an employee requesting to
use paid leave for an FMLA-qualifying purpose does not explain
the reason for the leave--consistent with the employing
office's established policy or practice--and the employing
office denies the employee's request, the employee will need to
provide sufficient information to establish an FMLA-qualifying
reason for the needed leave so that the employing office is
aware of the employee's entitlement (i.e., that the leave may
not be denied) and, then, may designate that the paid leave be
appropriately counted against (substituted for) the employee's
12-week entitlement. Similarly, an employee using accrued paid
vacation leave who seeks an extension of unpaid leave for an
FMLA-qualifying purpose will need to state the reason. If this
is due to an event which occurred during the period of paid
leave, the employing office may count the leave used after the
FMLA-qualifying event against the employee's 12-week
entitlement.
(b)(1) Once the employing office has acquired knowledge that the
leave is being taken for an FMLA required reason, the employing office
must promptly (within two business days absent extenuating
circumstances) notify the employee that the paid leave is designated
and will be counted as FMLA leave. If there is a dispute between an
employing office and an employee as to whether paid leave qualifies as
FMLA leave, it should be resolved through discussions between the
employee and the employing office. Such discussions and the decision
must be documented.
(2) The employing office's notice to the employee that the leave
has been designated as FMLA leave may be orally or in writing. If the
notice is oral, it shall be confirmed in writing, no later than the
following payday (unless the payday is less than one week after the
oral notice, in which case the notice must be no later than the
subsequent payday). The written notice may be in any form, including a
notation on the employee's pay stub.
(c) If the employing office requires paid leave to be substituted
for unpaid leave, or that paid leave taken under an existing leave plan
be counted as FMLA leave, this decision must be made by the employing
office within two business days of the time the employee gives notice
of the need for leave, or, where the employing office does not
initially have sufficient information to make a determination, when the
employing office determines that the leave qualifies as FMLA leave if
this happens later. The employing office's designation must be made
before the leave starts, unless the employing office does not have
sufficient information as to the employee's reason for taking the leave
until after the leave commenced. If the employing office has the
requisite knowledge to make a determination that the paid leave is for
an FMLA reason at the time the employee either gives notice of the need
for leave or commences leave and fails to designate the leave as FMLA
leave (and so notify the employee in accordance with paragraph (b)),
the employing office may not designate leave as FMLA leave
retroactively, and may designate only prospectively as of the date of
notification to the employee of the designation. In such circumstances,
the employee is subject to the full protections of the FMLA, as made
applicable by the CAA, but none of the absence preceding the notice to
the employee of the designation may be counted against the employee's
12-week FMLA leave entitlement.
(d) If the employing office learns that leave is for an FMLA
purpose after leave has begun, such as when an employee gives notice of
the need for an extension of the paid leave with unpaid FMLA leave, the
entire or some portion of the paid leave period may be retroactively
counted as FMLA leave, to the extent that the leave period qualified as
FMLA leave. For example, an employee is granted two weeks paid vacation
leave for a skiing trip. In mid-week of the second week, the employee
contacts the employing office for an extension of leave as unpaid leave
and advises that at the beginning of the second week of paid vacation
leave the employee suffered a severe accident requiring
hospitalization. The employing office may notify the employee that both
the extension and the second week of paid vacation leave (from the date
of the injury) is designated as FMLA leave. On the other hand, when the
employee takes sick leave that turns into a serious health condition
(e.g., bronchitis that turns into bronchial pneumonia) and the employee
gives notice of the need for an extension of leave, the entire period
of the serious health condition may be counted as FMLA leave.
(e) Employing offices may not designate leave as FMLA leave after
the employee has returned to work with two exceptions:
(1) If the employee was absent for an FMLA reason and the
employing office did not learn the reason for the absence until
the employee's return (e.g., where the employee was absent for
only a brief period), the employing office may, upon the
employee's return to work, promptly (within two business days
of the employee's return to work) designate the leave
retroactively with appropriate notice to the employee. If leave
is taken for an FMLA reason but the employing office was not
aware of the reason, and the employee desires that the leave be
counted as FMLA leave, the employee must notify the employing
office within two business days of returning to work of the
reason for the leave. In the absence of such timely
notification by the employee, the employee may not subsequently
assert FMLA protections for the absence.
(2) If the employing office knows the reason for the leave
but has not been able to confirm that the leave qualifies under
FMLA, or where the employing office has requested medical
certification which has not yet been received or the parties
are in the process of obtaining a second or third medical
opinion, the employing office should make a preliminary
designation, and so notify the employee, at the time leave
begins, or as soon as the reason for the leave becomes known.
Upon receipt of the requisite information from the employee or
of the medical certification which confirms the leave is for an
FMLA reason, the preliminary designation becomes final. If the
medical certifications fail to confirm that the reason for the
absence was an FMLA reason, the employing office must withdraw
the designation (with written notice to the employee).
(f) If, before beginning employment with an employing office, an
employee had been employed by another employing office, the subsequent
employing office may count against the employee's FMLA leave
entitlement FMLA leave taken from the prior employing office, except
that, if the FMLA leave began after the effective date of these
regulations (or if the FMLA leave was subject to other applicable
requirement under which the employing office was to have designated the
leave as FMLA leave), the prior employing office must have properly
designated the leave as FMLA under these regulations or other
applicable requirement.
Sec. 825.209 Is an employee entitled to benefits while using FMLA
leave?
(a) During any FMLA leave, the employing office must maintain the
employee's coverage under the Federal Employees Health Benefits Program
or any group health plan (as defined in the Internal Revenue Code of
1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would
have been provided if the employee had been continuously employed
during the entire leave period. All employing offices are subject to
the requirements of the FMLA, as made applicable by the CAA, to
maintain health coverage. The definition of ``group health plan'' is
set forth in Sec. 825.800. For purposes of FMLA, the term ``group
health plan'' shall not include an insurance program providing health
coverage under which employees purchase individual policies from
insurers provided that--
(1) no contributions are made by the employing office;
(2) participation in the program is completely voluntary
for employees;
(3) the sole functions of the employing office with respect
to the program are, without endorsing the program, to permit
the insurer to publicize the program to employees, to collect
premiums through payroll deductions and to remit them to the
insurer;
(4) the employing office receives no consideration in the
form of cash or otherwise in connection with the program, other
than reasonable compensation, excluding any profit, for
administrative services actually rendered in connection with
payroll deduction; and
(5) the premium charged with respect to such coverage does
not increase in the event the employment relationship
terminates.
(b) The same group health plan benefits provided to an employee
prior to taking FMLA leave must be maintained during the FMLA leave.
For example, if family member coverage is provided to an employee,
family member coverage must be maintained during the FMLA leave.
Similarly, benefit coverage during FMLA leave for medical care,
surgical care, hospital care, dental care, eye care, mental health
counseling, substance abuse treatment, etc., must be maintained during
leave if provided in an employing office's group health plan, including
a supplement to a group health plan, whether or not provided through a
flexible spending account or other component of a cafeteria plan.
(c) If an employing office provides a new health plan or benefits
or changes health benefits or plans while an employee is on FMLA leave,
the employee is entitled to the new or changed plan/benefits to the
same extent as if the employee were not on leave. For example, if an
employing office changes a group health plan so that dental care
becomes covered under the plan, an employee on FMLA leave must be given
the same opportunity as other employees to receive (or obtain) the
dental care coverage. Any other plan changes (e.g., in coverage,
premiums, deductibles, etc.) which apply to all employees of the
workforce would also apply to an employee on FMLA leave.
(d) Notice of any opportunity to change plans or benefits must also
be given to an employee on FMLA leave. If the group health plan permits
an employee to change from single to family coverage upon the birth of
a child or otherwise add new family members, such a change in benefits
must be made available while an employee is on FMLA leave. If the
employee requests the changed coverage it must be provided by the
employing office.
(e) An employee may choose not to retain group health plan coverage
during FMLA leave. However, when an employee returns from leave, the
employee is entitled to be reinstated on the same terms as prior to
taking the leave, including family or dependent coverages, without any
qualifying period, physical examination, exclusion of pre-existing
conditions, etc. See Sec. 825.212(c).
(f) Except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, whichever is
applicable, and for ``key'' employees (as discussed below), an
employing office's obligation to maintain health benefits during leave
(and to restore the employee to the same or equivalent employment)
under FMLA ceases if and when the employment relationship would have
terminated if the employee had not taken FMLA leave (e.g., if the
employee's position is eliminated as part of a nondiscriminatory
reduction in force and the employee would not have been transferred to
another position); an employee informs the employing office of his or
her intent not to return from leave (including before starting the
leave if the employing office is so informed before the leave starts);
or the employee fails to return from leave or continues on leave after
exhausting his or her FMLA leave entitlement in the 12-month period.
(g) If a ``key employee'' (see Sec. 825.218) does not return from
leave when notified by the employing office that substantial or
grievous economic injury will result from his or her reinstatement, the
employee's entitlement to group health plan benefits continues unless
and until the employee advises the employing office that the employee
does not desire restoration to employment at the end of the leave
period, or FMLA leave entitlement is exhausted, or reinstatement is
actually denied.
(h) An employee's entitlement to benefits other than group health
benefits during a period of FMLA leave (e.g., holiday pay) is to be
determined by the employing office's established policy for providing
such benefits when the employee is on other forms of leave (paid or
unpaid, as appropriate).
Sec. 825.210 How may employees on FMLA leave pay their share of group
health benefit premiums?
(a) Group health plan benefits must be maintained on the same basis
as coverage would have been provided if the employee had been
continuously employed during the FMLA leave period. Therefore, any
share of group health plan premiums which had been paid by the employee
prior to FMLA leave must continue to be paid by the employee during the
FMLA leave period. If premiums are raised or lowered, the employee
would be required to pay the new premium rates. Maintenance of health
insurance policies which are not a part of the employing office's group
health plan, as described in Sec. 825.209(a), are the sole
responsibility of the employee. The employee and the insurer should
make necessary arrangements for payment of premiums during periods of
unpaid FMLA leave.
(b) If the FMLA leave is substituted paid leave, the employee's
share of premiums must be paid by the method normally used during any
paid leave, presumably as a payroll deduction.
(c) If FMLA leave is unpaid, the employing office has a number of
options for obtaining payment from the employee. The employing office
may require that payment be made to the employing office or to the
insurance carrier, but no additional charge may be added to the
employee's premium payment for administrative expenses. The employing
office may require employees to pay their share of premium payments in
any of the following ways:
(1) Payment would be due at the same time as it would be
made if by payroll deduction;
(2) Payment would be due on the same schedule as payments
are made under COBRA or 5 U.S.C. 8905a, whichever is
applicable;
(3) Payment would be prepaid pursuant to a cafeteria plan
at the employee's option;
(4) The employing office's existing rules for payment by
employees on ``leave without pay'' would be followed, provided
that such rules do not require prepayment (i.e., prior to the
commencement of the leave) of the premiums that will become due
during a period of unpaid FMLA leave or payment of higher
premiums than if the employee had continued to work instead of
taking leave; or
(5) Another system voluntarily agreed to between the
employing office and the employee, which may include prepayment
of premiums (e.g., through increased payroll deductions when
the need for the FMLA leave is foreseeable).
(d) The employing office must provide the employee with advance
written notice of the terms and conditions under which these payments
must be made. (See Sec. 825.301.)
(e) An employing office may not require more of an employee using
FMLA leave than the employing office requires of other employees on
``leave without pay''.
(f) An employee who is receiving payments as a result of a workers'
compensation injury must make arrangements with the employing office
for payment of group health plan benefits when simultaneously taking
unpaid FMLA leave. See paragraph (c) of this section and
Sec. 825.207(d)(2).
Sec. 825.211 What special health benefits maintenance rules apply to
multi-employer health plans?
(a) A multi-employer health plan is a plan to which more than one
employer is required to contribute, and which is maintained pursuant to
one or more collective bargaining agreements between employee
organization(s) and the employers.
(b) An employing office under a multi-employer plan must continue
to make contributions on behalf of an employee using FMLA leave as
though the employee had been continuously employed, unless the plan
contains an explicit FMLA provision for maintaining coverage such as
through pooled contributions by all employers party to the plan.
(c) During the duration of an employee's FMLA leave, coverage by
the group health plan, and benefits provided pursuant to the plan, must
be maintained at the level of coverage and benefits which were
applicable to the employee at the time FMLA leave commenced.
(d) An employee using FMLA leave cannot be required to use
``banked'' hours or pay a greater premium than the employee would have
been required to pay if the employee had been continuously employed.
(e) As provided in Sec. 825.209(f), group health plan coverage must
be maintained for an employee on FMLA leave until:
(1) the employee's FMLA leave entitlement is exhausted;
(2) the employing office can show that the employee would
have been laid off and the employment relationship terminated;
or
(3) the employee provides unequivocal notice of intent not
to return to work.
Sec. 825.212 What are the consequences of an employee's failure to make
timely health plan premium payments?
(a)(1) In the absence of an established employing office policy
providing a longer grace period, an employing office's obligations to
maintain health insurance coverage cease under FMLA if an employee's
premium payment is more than 30 days late. In order to drop the
coverage for an employee whose premium payment is late, the employing
office must provide written notice to the employee that the payment has
not been received. Such notice must be mailed to the employee at least
15 days before coverage is to cease, advising that coverage will be
dropped on a specified date at least 15 days after the date of the
letter unless the payment has been received by that date. If the
employing office has established policies regarding other forms of
unpaid leave that provide for the employing office to cease coverage
retroactively to the date the unpaid premium payment was due, the
employing office may drop the employee from coverage retroactively in
accordance with that policy, provided the 15-day notice was given. In
the absence of such a policy, coverage for the employee may be
terminated at the end of the 30-day grace period, where the required
15-day notice has been provided.
(2) An employing office has no obligation regarding the maintenance
of a health insurance policy which is not a ``group health plan''. See
Sec. 825.209(a).
(3) All other obligations of an employing office under FMLA would
continue; for example, the employing office continues to have an
obligation to reinstate an employee upon return from leave.
(b) The employing office may recover the employee's share of any
premium payments missed by the employee for any FMLA leave period
during which the employing office maintains health coverage by paying
the employee's share after the premium payment is missed.
(c) If coverage lapses because an employee has not made required
premium payments, upon the employee's return from FMLA leave the
employing office must still restore the employee to coverage/benefits
equivalent to those the employee would have had if leave had not been
taken and the premium payment(s) had not been missed, including family
or dependent coverage. See Sec. 825.215(d) (1)-(5). In such case, an
employee may not be required to meet any qualification requirements
imposed by the plan, including any new preexisting condition waiting
period, to wait for an open season, or to pass a medical examination to
obtain reinstatement of coverage.
Sec. 825.213 May an employing office recover costs it incurred for
maintaining ``group health plan'' or other non-health
benefits coverage during FMLA leave?
(a) In addition to the circumstances discussed in Sec. 825.212(b),
the share of health plan premiums paid by or on behalf of the employing
office during a period of unpaid FMLA leave may be recovered from an
employee if the employee fails to return to work after the employee's
FMLA leave entitlement has been exhausted or expires, unless the reason
the employee does not return is due to:
(1) The continuation, recurrence, or onset of a serious
health condition of the employee or the employee's family
member which would otherwise entitle the employee to leave
under FMLA;
(2) Other circumstances beyond the employee's control.
Examples of ``other circumstances beyond the employee's
control'' are necessarily broad. They include such situations
as where a parent chooses to stay home with a newborn child who
has a serious health condition; an employee's spouse is
unexpectedly transferred to a job location more than 75 miles
from the employee's worksite; a relative or individual other
than an immediate family member has a serious health condition
and the employee is needed to provide care; the employee is
laid off while on leave; or, the employee is a ``key employee''
who decides not to return to work upon being notified of the
employing office's intention to deny restoration because of
substantial and grievous economic injury to the employing
office's operations and is not reinstated by the employing
office. Other circumstances beyond the employee's control would
not include a situation where an employee desires to remain
with a parent in a distant city even though the parent no
longer requires the employee's care, or a parent chooses not to
return to work to stay home with a well, newborn child; or
(3) When an employee fails to return to work because of the
continuation, recurrence, or onset of a serious health
condition, thereby precluding the employing office from
recovering its (share of) health benefit premium payments made
on the employee's behalf during a period of unpaid FMLA leave,
the employing office may require medical certification of the
employee's or the family member's serious health condition.
Such certification is not required unless requested by the
employing office. The employee is required to provide medical
certification in a timely manner which, for purposes of this
section, is within 30 days from the date of the employing
office's request. For purposes of medical certification, the
employee may use the optional form developed for this purpose
(see Sec. 825.306(a) and Appendix B of this part). If the
employing office requests medical certification and the
employee does not provide such certification in a timely manner
(within 30 days), or the reason for not returning to work does
not meet the test of other circumstances beyond the employee's
control, the employing office may recover 100 percent of the
health benefit premiums it paid during the period of unpaid
FMLA leave.
(b) Under some circumstances an employing office may elect to
maintain other benefits, e.g., life insurance, disability insurance,
etc., by paying the employee's (share of) premiums during periods of
unpaid FMLA leave. For example, to ensure the employing office can meet
its responsibilities to provide equivalent benefits to the employee
upon return from unpaid FMLA leave, it may be necessary that premiums
be paid continuously to avoid a lapse of coverage. If the employing
office elects to maintain such benefits during the leave, at the
conclusion of leave, the employing office is entitled to recover only
the costs incurred for paying the employee's share of any premiums
whether or not the employee returns to work.
(c) An employee who returns to work for at least 30 calendar days
is considered to have ``returned'' to work. An employee who transfers
directly from taking FMLA leave to retirement, or who retires during
the first 30 days after the employee returns to work, is deemed to have
returned to work.
(d) When an employee elects or an employing office requires paid
leave to be substituted for FMLA leave, the employing office may not
recover its (share of) health insurance or other non-health benefit
premiums for any period of FMLA leave covered by paid leave. Because
paid leave provided under a plan covering temporary disabilities
(including workers' compensation) is not unpaid, recovery of health
insurance premiums does not apply to such paid leave.
(e) The amount that self-insured employing offices may recover is
limited to only the employing office's share of allowable ``premiums''
as would be calculated under COBRA, excluding the 2 percent fee for
administrative costs.
(f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits
an employing office to recover are a debt owed by the non-returning
employee to the employing office. The existence of this debt caused by
the employee's failure to return to work does not alter the employing
office's responsibilities for health benefit coverage and, under a
self-insurance plan, payment of claims incurred during the period of
FMLA leave. To the extent recovery is allowed, the employing office may
recover the costs through deduction from any sums due to the employee
(e.g., unpaid wages, vacation pay, etc.), provided such deductions do
not otherwise violate applicable wage payment or other laws.
Alternatively, the employing office may initiate legal action against
the employee to recover such costs.
Sec. 825.214 What are an employee's rights on returning to work from
FMLA leave?
(a) On return from FMLA leave, an employee is entitled to be
returned to the same position the employee held when leave commenced,
or to an equivalent position with equivalent benefits, pay, and other
terms and conditions of employment. An employee is entitled to such
reinstatement even if the employee has been replaced or his or her
position has been restructured to accommodate the employee's absence.
See also Sec. 825.106(e) for the obligations of employing offices that
are joint employing offices.
(b) If the employee is unable to perform an essential function of
the position because of a physical or mental condition, including the
continuation of a serious health condition, the employee has no right
to restoration to another position under the FMLA. However, the
employing office's obligations may be governed by the Americans with
Disabilities Act (ADA), as made applicable by the CAA. See
Sec. 825.702.
Sec. 825.215 What is an equivalent position?
(a) An equivalent position is one that is virtually identical to
the employee's former position in terms of pay, benefits and working
conditions, including privileges, perquisites and status. It must
involve the same or substantially similar duties and responsibilities,
which must entail substantially equivalent skill, effort,
responsibility, and authority.
(b) If an employee is no longer qualified for the position because
of the employee's inability to attend a necessary course, renew a
license, fly a minimum number of hours, etc., as a result of the leave,
the employee shall be given a reasonable opportunity to fulfill those
conditions upon return to work.
(c) Equivalent Pay:
(1) An employee is entitled to any unconditional pay
increases which may have occurred during the FMLA leave period,
such as cost of living increases. Pay increases conditioned
upon seniority, length of service, or work performed would not
have to be granted unless it is the employing office's policy
or practice to do so with respect to other employees on ``leave
without pay''. In such case, any pay increase would be granted
based on the employee's seniority, length of service, work
performed, etc., excluding the period of unpaid FMLA leave. An
employee is entitled to be restored to a position with the same
or equivalent pay premiums, such as a shift differential. If an
employee departed from a position averaging ten hours of
overtime (and corresponding overtime pay) each week, an
employee is ordinarily entitled to such a position on return
from FMLA leave.
(2) Many employing offices pay bonuses in different forms
to employees for job-related performance such as for perfect
attendance, safety (absence of injuries or accidents on the
job) and exceeding production goals. Bonuses for perfect
attendance and safety do not require performance by the
employee but rather contemplate the absence of occurrences. To
the extent an employee who takes FMLA leave had met all the
requirements for either or both of these bonuses before FMLA
leave began, the employee is entitled to continue this
entitlement upon return from FMLA leave, that is, the employee
may not be disqualified for the bonus(es) for the taking of
FMLA leave. See Sec. 825.220 (b) and (c). A monthly production
bonus, on the other hand, does require performance by the
employee. If the employee is on FMLA leave during any part of
the period for which the bonus is computed, the employee is
entitled to the same consideration for the bonus as other
employees on paid or unpaid leave (as appropriate). See
paragraph (d)(2) of this section.
(d) Equivalent Benefits. ``Benefits'' include all benefits provided
or made available to employees by an employing office, including group
life insurance, health insurance, disability insurance, sick leave,
annual leave, educational benefits, and pensions, regardless of whether
such benefits are provided by a practice or written policy of an
employing office through an employee benefit plan.
(1) At the end of an employee's FMLA leave, benefits must
be resumed in the same manner and at the same levels as
provided when the leave began, and subject to any changes in
benefit levels that may have taken place during the period of
FMLA leave affecting the entire workforce, unless otherwise
elected by the employee. Upon return from FMLA leave, an
employee cannot be required to requalify for any benefits the
employee enjoyed before FMLA leave began (including family or
dependent coverages). For example, if an employee was covered
by a life insurance policy before taking leave but is not
covered or coverage lapses during the period of unpaid FMLA
leave, the employee cannot be required to meet any
qualifications, such as taking a physical examination, in order
to requalify for life insurance upon return from leave.
Accordingly, some employing offices may find it necessary to
modify life insurance and other benefits programs in order to
restore employees to equivalent benefits upon return from FMLA
leave, make arrangements for continued payment of costs to
maintain such benefits during unpaid FMLA leave, or pay these
costs subject to recovery from the employee on return from
leave. See Sec. 825.213(b).
(2) An employee may, but is not entitled to, accrue any
additional benefits or seniority during unpaid FMLA leave.
Benefits accrued at the time leave began, however, (e.g., paid
vacation, sick or personal leave to the extent not substituted
for FMLA leave) must be available to an employee upon return
from leave.
(3) If, while on unpaid FMLA leave, an employee desires to
continue life insurance, disability insurance, or other types
of benefits for which he or she typically pays, the employing
office is required to follow established policies or practices
for continuing such benefits for other instances of leave
without pay. If the employing office has no established policy,
the employee and the employing office are encouraged to agree
upon arrangements before FMLA leave begins.
(4) With respect to pension and other retirement plans, any
period of unpaid FMLA leave shall not be treated as or counted
toward a break in service for purposes of vesting and
eligibility to participate. Also, if the plan requires an
employee to be employed on a specific date in order to be
credited with a year of service for vesting, contributions or
participation purposes, an employee on unpaid FMLA leave on
that date shall be deemed to have been employed on that date.
However, unpaid FMLA leave periods need not be treated as
credited service for purposes of benefit accrual, vesting and
eligibility to participate.
(5) Employees on unpaid FMLA leave are to be treated as if
they continued to work for purposes of changes to benefit
plans. They are entitled to changes in benefits plans, except
those which may be dependent upon seniority or accrual during
the leave period, immediately upon return from leave or to the
same extent they would have qualified if no leave had been
taken. For example if the benefit plan is predicated on a pre-
established number of hours worked each year and the employee
does not have sufficient hours as a result of taking unpaid
FMLA leave, the benefit is lost. (In this regard, Sec. 825.209
addresses health benefits.)
(e) Equivalent Terms and Conditions of Employment. An equivalent
position must have substantially similar duties, conditions,
responsibilities, privileges and status as the employee's original
position.
(1) The employee must be reinstated to the same or a
geographically proximate worksite (i.e., one that does not
involve a significant increase in commuting time or distance)
from where the employee had previously been employed. If the
employee's original worksite has been closed, the employee is
entitled to the same rights as if the employee had not been on
leave when the worksite closed. For example, if an employing
office transfers all employees from a closed worksite to a new
worksite in a different city, the employee on leave is also
entitled to transfer under the same conditions as if he or she
had continued to be employed.
(2) The employee is ordinarily entitled to return to the
same shift or the same or an equivalent work schedule.
(3) The employee must have the same or an equivalent
opportunity for bonuses and other similar discretionary and
non-discretionary payments.
(4) FMLA does not prohibit an employing office from
accommodating an employee's request to be restored to a
different shift, schedule, or position which better suits the
employee's personal needs on return from leave, or to offer a
promotion to a better position. However, an employee cannot be
induced by the employing office to accept a different position
against the employee's wishes.
(f) The requirement that an employee be restored to the same or
equivalent job with the same or equivalent pay, benefits, and terms and
conditions of employment does not extend to de minimis or intangible,
unmeasurable aspects of the job. However, restoration to a job slated
for lay-off, when the employee's original position is not, would not
meet the requirements of an equivalent position.
Sec. 825.216 Are there any limitations on an employing office's
obligation to reinstate an employee?
(a) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. An employing office
must be able to show that an employee would not otherwise have been
employed at the time reinstatement is requested in order to deny
restoration to employment. For example:
(1) If an employee is laid off during the course of taking
FMLA leave and employment is terminated, the employing office's
responsibility to continue FMLA leave, maintain group health
plan benefits and restore the employee ceases at the time the
employee is laid off, provided the employing office has no
continuing obligations under a collective bargaining agreement
or otherwise. An employing office would have the burden of
proving that an employee would have been laid off during the
FMLA leave period and, therefore, would not be entitled to
restoration.
(2) If a shift has been eliminated, or overtime has been
decreased, an employee would not be entitled to return to work
that shift or the original overtime hours upon restoration.
However, if a position on, for example, a night shift has been
filled by another employee, the employee is entitled to return
to the same shift on which employed before taking FMLA leave.
(b) If an employee was hired for a specific term or only to perform
work on a discrete project, the employing office has no obligation to
restore the employee if the employment term or project is over and the
employing office would not otherwise have continued to employ the
employee.
(c) In addition to the circumstances explained above, an employing
office may deny job restoration to salaried eligible employees (``key
employees'', as defined in paragraph (c) of Sec. 825.217) if such
denial is necessary to prevent substantial and grievous economic injury
to the operations of the employing office; or may delay restoration to
an employee who fails to provide a fitness for duty certificate to
return to work under the conditions described in Sec. 825.310.
(d) If the employee has been on a workers' compensation absence
during which FMLA leave has been taken concurrently, and after 12 weeks
of FMLA leave the employee is unable to return to work, the employee no
longer has the protections of FMLA and must look to the workers'
compensation statute or ADA, as made applicable by the CAA, for any
relief or protections.
Sec. 825.217 What is a ``key employee''?
(a) A ``key employee'' is a salaried FMLA-eligible employee who is
among the highest paid 10 percent of all the employees employed by the
employing office within 75 miles of the employee's worksite.
(b) The term ``salaried'' means paid on a salary basis, within the
meaning of the Board's regulations at part 541, implementing section
203 of the CAA (2 U.S.C. 1313) (regarding employees who may qualify as
exempt from the minimum wage and overtime requirements of the FLSA, as
made applicable by the CAA, as executive, administrative, and
professional employees).
(c) A ``key employee'' must be ``among the highest paid 10
percent'' of all the employees ``both salaried and non-salaried,
eligible and ineligible ``who are employed by the employing office
within 75 miles of the worksite'':
(1) In determining which employees are among the highest
paid 10 percent, year-to-date earnings are divided by weeks
worked by the employee (including weeks in which paid leave was
taken). Earnings include wages, premium pay, incentive pay, and
non-discretionary and discretionary bonuses. Earnings do not
include incentives whose value is determined at some future
date, e.g., benefits or perquisites.
(2) The determination of whether a salaried employee is
among the highest paid 10 percent shall be made at the time the
employee gives notice of the need for leave. No more than 10
percent of the employing office's employees within 75 miles of
the worksite may be ``key employees''.
Sec. 825.218 What does ``substantial and grievous economic injury''
mean?
(a) In order to deny restoration to a key employee, an employing
office must determine that the restoration of the employee to
employment will cause ``substantial and grievous economic injury'' to
the operations of the employing office, not whether the absence of the
employee will cause such substantial and grievous injury.
(b) An employing office may take into account its ability to
replace on a temporary basis (or temporarily do without) the employee
on FMLA leave. If permanent replacement is unavoidable, the cost of
then reinstating the employee can be considered in evaluating whether
substantial and grievous economic injury will occur from restoration;
in other words, the effect on the operations of the employing office of
reinstating the employee in an equivalent position.
(c) A precise test cannot be set for the level of hardship or
injury to the employing office which must be sustained. If the
reinstatement of a ``key employee'' threatens the economic viability of
the employing office, that would constitute ``substantial and grievous
economic injury''. A lesser injury which causes substantial, long-term
economic injury would also be sufficient. Minor inconveniences and
costs that the employing office would experience in the normal course
would certainly not constitute ``substantial and grievous economic
injury''.
(d) FMLA's ``substantial and grievous economic injury'' standard is
different from and more stringent than the ``undue hardship'' test
under the ADA (see, also Sec. 825.702).
Sec. 825.219 What are the rights of a key employee?
(a) An employing office which believes that reinstatement may be
denied to a key employee, must give written notice to the employee at
the time the employee gives notice of the need for FMLA leave (or when
FMLA leave commences, if earlier) that he or she qualifies as a key
employee. At the same time, the employing office must also fully inform
the employee of the potential consequences with respect to
reinstatement and maintenance of health benefits if the employing
office should determine that substantial and grievous economic injury
to the employing office's operations will result if the employee is
reinstated from FMLA leave. If such notice cannot be given immediately
because of the need to determine whether the employee is a key
employee, it shall be given as soon as practicable after being notified
of a need for leave (or the commencement of leave, if earlier). It is
expected that in most circumstances there will be no desire that an
employee be denied restoration after FMLA leave and, therefore, there
would be no need to provide such notice. However, an employing office
who fails to provide such timely notice will lose its right to deny
restoration even if substantial and grievous economic injury will
result from reinstatement.
(b) As soon as an employing office makes a good faith
determination, based on the facts available, that substantial and
grievous economic injury to its operations will result if a key
employee who has given notice of the need for FMLA leave or is using
FMLA leave is reinstated, the employing office shall notify the
employee in writing of its determination, that it cannot deny FMLA
leave, and that it intends to deny restoration to employment on
completion of the FMLA leave. It is anticipated that an employing
office will ordinarily be able to give such notice prior to the
employee starting leave. The employing office must serve this notice
either in person or by certified mail. This notice must explain the
basis for the employing office's finding that substantial and grievous
economic injury will result, and, if leave has commenced, must provide
the employee a reasonable time in which to return to work, taking into
account the circumstances, such as the length of the leave and the
urgency of the need for the employee to return.
(c) If an employee on leave does not return to work in response to
the employing office's notification of intent to deny restoration, the
employee continues to be entitled to maintenance of health benefits and
the employing office may not recover its cost of health benefit
premiums. A key employee's rights under FMLA continue unless and until
either the employee gives notice that he or she no longer wishes to
return to work, or the employing office actually denies reinstatement
at the conclusion of the leave period.
(d) After notice to an employee has been given that substantial and
grievous economic injury will result if the employee is reinstated to
employment, an employee is still entitled to request reinstatement at
the end of the leave period even if the employee did not return to work
in response to the employing office's notice. The employing office must
then again determine whether there will be substantial and grievous
economic injury from reinstatement, based on the facts at that time. If
it is determined that substantial and grievous economic injury will
result, the employing office shall notify the employee in writing (in
person or by certified mail) of the denial of restoration.
Sec. 825.220 How are employees protected who request leave or otherwise
assert FMLA rights?
(a) The FMLA, as made applicable by the CAA, prohibits interference
with an employee's rights under the law, and with legal proceedings or
inquiries relating to an employee's rights. More specifically, the law
contains the following employee protections:
(1) An employing office is prohibited from interfering
with, restraining, or denying the exercise of (or attempts to
exercise) any rights provided by the FMLA as made applicable by
the CAA.
(2) An employing office is prohibited from discharging or
in any other way discriminating against any covered employee
(whether or not an eligible employee) for opposing or
complaining about any unlawful practice under the FMLA as made
applicable by the CAA.
(3) All employing offices are prohibited from discharging
or in any other way discriminating against any covered employee
(whether or not an eligible employee) because that covered
employee has--
(i) Filed any charge, or has instituted (or caused
to be instituted) any proceeding under or related to
the FMLA, as made applicable by the CAA;
(ii) Given, or is about to give, any information in
connection with an inquiry or proceeding relating to a
right under the FMLA, as made applicable by the CAA;
(iii) Testified, or is about to testify, in any
inquiry or proceeding relating to a right under the
FMLA, as made applicable by the CAA.
(b) Any violations of the FMLA, as made applicable by the CAA, or
of these regulations constitute interfering with, restraining, or
denying the exercise of rights provided by the FMLA as made applicable
by the CAA. ``Interfering with'' the exercise of an employee's rights
would include, for example, not only refusing to authorize FMLA leave,
but discouraging an employee from using such leave. It would also
include manipulation by an employing office to avoid responsibilities
under FMLA, for example--
(1) [Reserved];
(2) changing the essential functions of the job in order to
preclude the taking of leave;
(3) reducing hours available to work in order to avoid
employee eligibility.
(c) An employing office is prohibited from discriminating against
employees or prospective employees who have used FMLA leave. For
example, if an employee on leave without pay would otherwise be
entitled to full benefits (other than health benefits), the same
benefits would be required to be provided to an employee on unpaid FMLA
leave. By the same token, employing offices cannot use the taking of
FMLA leave as a negative factor in employment actions, such as hiring,
promotions or disciplinary actions; nor can FMLA leave be counted under
``no fault'' attendance policies.
(d) Employees cannot waive, nor may employing offices induce
employees to waive, their rights under FMLA. For example, employees (or
their collective bargaining representatives) cannot ``trade off'' the
right to take FMLA leave against some other benefit offered by the
employing office. This does not prevent an employee's voluntary and
uncoerced acceptance (not as a condition of employment) of a ``light
duty'' assignment while recovering from a serious health condition (see
Sec. 825.702(d)). In such a circumstance the employee's right to
restoration to the same or an equivalent position is available until 12
weeks have passed within the 12-month period, including all FMLA leave
taken and the period of ``light duty''.
(e) Covered employees, and not merely eligible employees, are
protected from retaliation for opposing (e.g., file a complaint about)
any practice which is unlawful under the FMLA, as made applicable by
the CAA. They are similarly protected if they oppose any practice which
they reasonably believe to be a violation of the FMLA, as made
applicable by the CAA or regulations.
Subpart C--How do Employees Learn of Their Rights and Obligations under
the FMLA, as Made Applicable by the CAA, and What Can an Employing
Office Require of an Employee?
Sec. 825.300 [Reserved]
Sec. 825.301 What notices to employees are required of employing
offices under the FMLA as made applicable by the CAA?
(a)(1) If an employing office has any eligible employees and has
any written guidance to employees concerning employee benefits or leave
rights, such as in an employee handbook, information concerning both
entitlements and employee obligations under the FMLA, as made
applicable by the CAA, must be included in the handbook or other
document. For example, if an employing office provides an employee
handbook to all employees that describes the employing office's
policies regarding leave, wages, attendance, and similar matters, the
handbook must incorporate information on FMLA rights and
responsibilities and the employing office's policies regarding the
FMLA, as made applicable by the CAA. Informational publications
describing the provisions of the FMLA as made applicable by the CAA are
available from the Office of Compliance and may be incorporated in such
employing office handbooks or written policies.
(2) If such an employing office does not have written policies,
manuals, or handbooks describing employee benefits and leave
provisions, the employing office shall provide written guidance to an
employee concerning all the employee's rights and obligations under the
FMLA as made applicable by the CAA. This notice shall be provided to
employees each time notice is given pursuant to paragraph (b), and in
accordance with the provisions of that paragraph. Employing offices may
duplicate and provide the employee a copy of the FMLA Fact Sheet
available from the Office of Compliance to provide such guidance.
(b)(1) The employing office shall also provide the employee with
written notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure to meet these
obligations. The written notice must be provided to the employee in a
language in which the employee is literate. Such specific notice must
include, as appropriate--
(i) that the leave will be counted against the employee's
annual FMLA leave entitlement (see Sec. 825.208);
(ii) any requirements for the employee to furnish medical
certification of a serious health condition and the
consequences of failing to do so (see Sec. 825.305);
(iii) the employee's right to substitute paid leave and
whether the employing office will require the substitution of
paid leave, and the conditions related to any substitution;
(iv) any requirement for the employee to make any premium
payments to maintain health benefits and the arrangements for
making such payments (see Sec. 825.210), and the possible
consequences of failure to make such payments on a timely basis
(i.e., the circumstances under which coverage may lapse);
(v) any requirement for the employee to present a fitness-
for-duty certificate to be restored to employment (see
Sec. 825.310);
(vi) the employee's status as a ``key employee'' and the
potential consequence that restoration may be denied following
FMLA leave, explaining the conditions required for such denial
(see Sec. 825.218);
(vii) the employee's right to restoration to the same or an
equivalent job upon return from leave (see Sec. Sec. 825.214
and 825.604); and
(viii) the employee's potential liability for payment of
health insurance premiums paid by the employing office during
the employee's unpaid FMLA leave if the employee fails to
return to work after taking FMLA leave (see Sec. 825.213).
(2) The specific notice may include other information--e.g.,
whether the employing office will require periodic reports of the
employee's status and intent to return to work, but is not required to
do so. A prototype notice is contained in Appendix D of this part, or
may be obtained from the Office of Compliance, which employing offices
may adapt for their use to meet these specific notice requirements.
(c) Except as provided in this subparagraph, the written notice
required by paragraph (b) (and by subparagraph (a)(2) where applicable)
must be provided to the employee no less often than the first time in
each six-month period that an employee gives notice of the need for
FMLA leave (if FMLA leave is taken during the six-month period). The
notice shall be given within a reasonable time after notice of the need
for leave is given by the employee--within one or two business days if
feasible. If leave has already begun, the notice should be mailed to
the employee's address of record.
(1) If the specific information provided by the notice
changes with respect to a subsequent period of FMLA leave
during the six-month period, the employing office shall, within
one or two business days of receipt of the employee's notice of
need for leave, provide written notice referencing the prior
notice and setting forth any of the information in subparagraph
(b) which has changed. For example, if the initial leave period
were paid leave and the subsequent leave period would be unpaid
leave, the employing office may need to give notice of the
arrangements for making premium payments.
(2)(i) Except as provided in subparagraph (ii), if the
employing office is requiring medical certification or a
``fitness-for-duty'' report, written notice of the requirement
shall be given with respect to each employee notice of a need
for leave.
(ii) Subsequent written notification shall not be required
if the initial notice in the six-month period and the employing
office handbook or other written documents (if any) describing
the employing office's leave policies, clearly provided that
certification or a ``fitness-for-duty'' report would be
required (e.g., by stating that certification would be required
in all cases, by stating that certification would be required
in all cases in which leave of more than a specified number of
days is taken, or by stating that a ``fitness-for-duty'' report
would be required in all cases for back injuries for employees
in a certain occupation). Where subsequent written notice is
not required, at least oral notice shall be provided. (See
Sec. 825.305(a).)
(d) Employing offices are also expected to responsively answer
questions from employees concerning their rights and responsibilities
under the FMLA as made applicable under the CAA.
(e) Employing offices furnishing FMLA-required notices to sensory
impaired individuals must also comply with all applicable requirements
under law.
(f) If an employing office fails to provide notice in accordance
with the provisions of this section, the employing office may not take
action against an employee for failure to comply with any provision
required to be set forth in the notice.
Sec. 825.302 What notice does an employee have to give an employing
office when the need for FMLA leave is foreseeable?
(a) An employee must provide the employing office at least 30 days
advance notice before FMLA leave is to begin if the need for the leave
is foreseeable based on an expected birth, placement for adoption or
foster care, or planned medical treatment for a serious health
condition of the employee or of a family member. If 30 days notice is
not practicable, such as because of a lack of knowledge of
approximately when leave will be required to begin, a change in
circumstances, or a medical emergency, notice must be given as soon as
practicable. For example, an employee's health condition may require
leave to commence earlier than anticipated before the birth of a child.
Similarly, little opportunity for notice may be given before placement
for adoption. Whether the leave is to be continuous or is to be taken
intermittently or on a reduced schedule basis, notice need only be
given one time, but the employee shall advise the employing office as
soon as practicable if dates of scheduled leave change or are extended,
or were initially unknown.
(b) ``As soon as practicable'' means as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case. For foreseeable leave where it is not possible to
give as much as 30 days notice, ``as soon as practicable'' ordinarily
would mean at least verbal notification to the employing office within
one or two business days of when the need for leave becomes known to
the employee.
(c) An employee shall provide at least verbal notice sufficient to
make the employing office aware that the employee needs FMLA-qualifying
leave, and the anticipated timing and duration of the leave. The
employee need not expressly assert rights under the FMLA as made
applicable by the CAA, or even mention the FMLA, but may only state
that leave is needed for an expected birth or adoption, for example.
The employing office should inquire further of the employee if it is
necessary to have more information about whether FMLA leave is being
sought by the employee, and obtain the necessary details of the leave
to be taken. In the case of medical conditions, the employing office
may find it necessary to inquire further to determine if the leave is
because of a serious health condition and may request medical
certification to support the need for such leave (see Sec. 825.305).
(d) An employing office may also require an employee to comply with
the employing office's usual and customary notice and procedural
requirements for requesting leave. For example, an employing office may
require that written notice set forth the reasons for the requested
leave, the anticipated duration of the leave, and the anticipated start
of the leave. However, failure to follow such internal employing office
procedures will not permit an employing office to disallow or delay an
employee's taking FMLA leave if the employee gives timely verbal or
other notice.
(e) When planning medical treatment, the employee must consult with
the employing office and make a reasonable effort to schedule the leave
so as not to disrupt unduly the employing office's operations, subject
to the approval of the health care provider. Employees are ordinarily
expected to consult with their employing offices prior to the
scheduling of treatment in order to work out a treatment schedule which
best suits the needs of both the employing office and the employee. If
an employee who provides notice of the need to take FMLA leave on an
intermittent basis for planned medical treatment neglects to consult
with the employing office to make a reasonable attempt to arrange the
schedule of treatments so as not to unduly disrupt the employing
office's operations, the employing office may initiate discussions with
the employee and require the employee to attempt to make such
arrangements, subject to the approval of the health care provider.
(f) In the case of intermittent leave or leave on a reduced leave
schedule which is medically necessary, an employee shall advise the
employing office, upon request, of the reasons why the intermittent/
reduced leave schedule is necessary and of the schedule for treatment,
if applicable. The employee and employing office shall attempt to work
out a schedule which meets the employee's needs without unduly
disrupting the employing office's operations, subject to the approval
of the health care provider.
(g) An employing office may waive employees' FMLA notice
requirements. In addition, an employing office may not require
compliance with stricter FMLA notice requirements where the provisions
of a collective bargaining agreement or applicable leave plan allow
less advance notice to the employing office. For example, if an
employee (or employing office) elects to substitute paid vacation leave
for unpaid FMLA leave (see Sec. 825.207), and the employing office's
paid vacation leave plan imposes no prior notification requirements for
taking such vacation leave, no advance notice may be required for the
FMLA leave taken in these circumstances. On the other hand, FMLA notice
requirements would apply to a period of unpaid FMLA leave, unless the
employing office imposes lesser notice requirements on employees taking
leave without pay.
Sec. 825.303 What are the requirements for an employee to furnish
notice to an employing office where the need for FMLA
leave is not foreseeable?
(a) When the approximate timing of the need for leave is not
foreseeable, an employee should give notice to the employing office of
the need for FMLA leave as soon as practicable under the facts and
circumstances of the particular case. It is expected that an employee
will give notice to the employing office within no more than one or two
working days of learning of the need for leave, except in extraordinary
circumstances where such notice is not feasible. In the case of a
medical emergency requiring leave because of an employee's own serious
health condition or to care for a family member with a serious health
condition, written advance notice pursuant to an employing office's
internal rules and procedures may not be required when FMLA leave is
involved.
(b) The employee should provide notice to the employing office
either in person or by telephone, telegraph, facsimile (``fax'')
machine or other electronic means. Notice may be given by the
employee's spokesperson (e.g., spouse, adult family member or other
responsible party) if the employee is unable to do so personally. The
employee need not expressly assert rights under the FMLA, as made
applicable by the CAA, or even mention the FMLA, but may only state
that leave is needed. The employing office will be expected to obtain
any additional required information through informal means. The
employee or spokesperson will be expected to provide more information
when it can readily be accomplished as a practical matter, taking into
consideration the exigencies of the situation.
Sec. 825.304 What recourse do employing offices have if employees fail
to provide the required notice?
(a) An employing office may waive employees' FMLA notice
obligations or the employing office's own internal rules on leave
notice requirements.
(b) If an employee fails to give 30 days notice for foreseeable
leave with no reasonable excuse for the delay, the employing office may
delay the taking of FMLA leave until at least 30 days after the date
the employee provides notice to the employing office of the need for
FMLA leave.
(c) In all cases, in order for the onset of an employee's FMLA
leave to be delayed due to lack of required notice, it must be clear
that the employee had actual notice of the FMLA notice requirements.
This condition would be satisfied by the employing office's proper
posting, at the worksite where the employee is employed, of the
information regarding the FMLA provided (pursuant to section 301(h)(2)
of the CAA, 2 U.S.C. 1381(h)(2)) by the Office of Compliance to the
employing office in a manner suitable for posting. Furthermore, the
need for leave and the approximate date leave would be taken must have
been clearly foreseeable to the employee 30 days in advance of the
leave. For example, knowledge that an employee would receive a
telephone call about the availability of a child for adoption at some
unknown point in the future would not be sufficient.
Sec. 825.305 When must an employee provide medical certification to
support FMLA leave?
(a) An employing office may require that an employee's leave to
care for the employee's seriously ill spouse, son, daughter, or parent,
or due to the employee's own serious health condition that makes the
employee unable to perform one or more of the essential functions of
the employee's position, be supported by a certification issued by the
health care provider of the employee or the employee's ill family
member. An employing office must give notice of a requirement for
medical certification each time a certification is required; such
notice must be written notice whenever required by Sec. 825.301. An
employing office's oral request to an employee to furnish any
subsequent medical certification is sufficient.
(b) When the leave is foreseeable and at least 30 days notice has
been provided, the employee should provide the medical certification
before the leave begins. When this is not possible, the employee must
provide the requested certification to the employing office within the
time frame requested by the employing office (which must allow at least
15 calendar days after the employing office's request), unless it is
not practicable under the particular circumstances to do so despite the
employee's diligent, good faith efforts.
(c) In most cases, the employing office should request that an
employee furnish certification from a health care provider at the time
the employee gives notice of the need for leave or within two business
days thereafter, or, in the case of unforeseen leave, within two
business days after the leave commences. The employing office may
request certification at some later date if the employing office later
has reason to question the appropriateness of the leave or its
duration.
(d) At the time the employing office requests certification, the
employing office must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. The employing office shall advise an employee whenever
the employing office finds a certification incomplete, and provide the
employee a reasonable opportunity to cure any such deficiency.
(e) If the employing office's sick or medical leave plan imposes
medical certification requirements that are less stringent than the
certification requirements of these regulations, and the employee or
employing office elects to substitute paid sick, vacation, personal or
family leave for unpaid FMLA leave where authorized (see Sec. 825.207),
only the employing office's less stringent sick leave certification
requirements may be imposed.
Sec. 825.306 How much information may be required in medical
certifications of a serious health condition?
(a) The Office of Compliance has made available an optional form
(``Certification of Physician or Practitioner'') for employees' (or
their family members') use in obtaining medical certification,
including second and third opinions, from health care providers that
meets FMLA's certification requirements. (See Appendix B to these
regulations.) This optional form reflects certification requirements so
as to permit the health care provider to furnish appropriate medical
information within his or her knowledge.
(b) The Certification of Physician or Practitioner form is modeled
closely on Form WH-380, as revised, which was developed by the
Department of Labor (see 29 C.F.R. Part 825, Appendix B). The employing
office may use the Office of Compliance's form, or Form WH-380, as
revised, or another form containing the same basic information;
however, no additional information may be required. In all instances
the information on the form must relate only to the serious health
condition for which the current need for leave exists. The form
identifies the health care provider and type of medical practice
(including pertinent specialization, if any), makes maximum use of
checklist entries for ease in completing the form, and contains
required entries for:
(1) A certification as to which part of the definition of
``serious health condition'' (see Sec. 825.114), if any,
applies to the patient's condition, and the medical facts which
support the certification, including a brief statement as to
how the medical facts meet the criteria of the definition.
(2)(i) The approximate date the serious health condition
commenced, and its probable duration, including the probable
duration of the patient's present incapacity (defined to mean
inability to work, attend school or perform other regular daily
activities due to the serious health condition, treatment
therefor, or recovery therefrom) if different.
(ii) Whether it will be necessary for the employee to take
leave intermittently or to work on a reduced leave schedule
basis (i.e., part-time) as a result of the serious health
condition (see Sec. 825.117 and Sec. 825.203), and if so, the
probable duration of such schedule.
(iii) If the condition is pregnancy or a chronic condition
within the meaning of Sec. 825.114(a)(2)(iii), whether the
patient is presently incapacitated and the likely duration and
frequency of episodes of incapacity.
(3)(i)(A) If additional treatments will be required for the
condition, an estimate of the probable number of such
treatments.
(B) If the patient's incapacity will be intermittent, or
will require a reduced leave schedule, an estimate of the
probable number and interval between such treatments, actual or
estimated dates of treatment if known, and period required for
recovery if any.
(ii) If any of the treatments referred to in subparagraph
(i) will be provided by another provider of health services
(e.g., physical therapist), the nature of the treatments.
(iii) If a regimen of continuing treatment by the patient
is required under the supervision of the health care provider,
a general description of the regimen (see Sec. 825.114(b)).
(4) If medical leave is required for the employee's absence
from work because of the employee's own condition (including
absences due to pregnancy or a chronic condition), whether the
employee--
(i) is unable to perform work of any kind;
(ii) is unable to perform any one or more of the
essential functions of the employee's position,
including a statement of the essential functions the
employee is unable to perform (see Sec. 825.115), based
on either information provided on a statement from the
employing office of the essential functions of the
position or, if not provided, discussion with the
employee about the employee's job functions; or
(iii) must be absent from work for treatment.
(5)(i) If leave is required to care for a family member of
the employee with a serious health condition, whether the
patient requires assistance for basic medical or personal needs
or safety, or for transportation; or if not, whether the
employee's presence to provide psychological comfort would be
beneficial to the patient or assist in the patient's recovery.
The employee is required to indicate on the form the care he or
she will provide and an estimate of the time period.
(ii) If the employee's family member will need care only
intermittently or on a reduced leave schedule basis (i.e.,
part-time), the probable duration of the need.
(c) If the employing office's sick or medical leave plan requires
less information to be furnished in medical certifications than the
certification requirements of these regulations, and the employee or
employing office elects to substitute paid sick, vacation, personal or
family leave for unpaid FMLA leave where authorized (see Sec. 825.207),
only the employing office's lesser sick leave certification
requirements may be imposed.
Sec. 825.307 What may an employing office do if it questions the
adequacy of a medical certification?
(a) If an employee submits a complete certification signed by the
health care provider, the employing office may not request additional
information from the employee's health care provider. However, a health
care provider representing the employing office may contact the
employee's health care provider, with the employee's permission, for
purposes of clarification and authenticity of the medical
certification.
(1) If an employee is on FMLA leave running concurrently
with a workers' compensation absence, and the provisions of the
workers' compensation statute permit the employing office or
the employing office's representative to have direct contact
with the employee's workers' compensation health care provider,
the employing office may follow the workers' compensation
provisions.
(2) An employing office that has reason to doubt the
validity of a medical certification may require the employee to
obtain a second opinion at the employing office's expense.
Pending receipt of the second (or third) medical opinion, the
employee is provisionally entitled to the benefits of the FMLA
as made applicable by the CAA, including maintenance of group
health benefits. If the certifications do not ultimately
establish the employee's entitlement to FMLA leave, the leave
shall not be designated as FMLA leave and may be treated as
paid or unpaid leave under the employing office's established
leave policies. The employing office is permitted to designate
the health care provider to furnish the second opinion, but the
selected health care provider may not be employed on a regular
basis by the employing office. See also paragraphs (e) and (f)
of this section.
(b) The employing office may not regularly contract with or
otherwise regularly utilize the services of the health care provider
furnishing the second opinion unless the employing office is located in
an area where access to health care is extremely limited (e.g., a rural
area where no more than one or two doctors practice in the relevant
specialty in the vicinity).
(c) If the opinions of the employee's and the employing office's
designated health care providers differ, the employing office may
require the employee to obtain certification from a third health care
provider, again at the employing office's expense. This third opinion
shall be final and binding. The third health care provider must be
designated or approved jointly by the employing office and the
employee. The employing office and the employee must each act in good
faith to attempt to reach agreement on whom to select for the third
opinion provider. If the employing office does not attempt in good
faith to reach agreement, the employing office will be bound by the
first certification. If the employee does not attempt in good faith to
reach agreement, the employee will be bound by the second
certification. For example, an employee who refuses to agree to see a
doctor in the specialty in question may be failing to act in good
faith. On the other hand, an employing office that refuses to agree to
any doctor on a list of specialists in the appropriate field provided
by the employee and whom the employee has not previously consulted may
be failing to act in good faith.
(d) The employing office is required to provide the employee with a
copy of the second and third medical opinions, where applicable, upon
request by the employee. Requested copies are to be provided within two
business days unless extenuating circumstances prevent such action.
(e) If the employing office requires the employee to obtain either
a second or third opinion the employing office must reimburse an
employee or family member for any reasonable ``out of pocket'' travel
expenses incurred to obtain the second and third medical opinions. The
employing office may not require the employee or family member to
travel outside normal commuting distance for purposes of obtaining the
second or third medical opinions except in very unusual circumstances.
(f) In circumstances when the employee or a family member is
visiting in another country, or a family member resides in a another
country, and a serious health condition develops, the employing office
shall accept a medical certification as well as second and third
opinions from a health care provider who practices in that country.
Sec. 825.308 Under what circumstances may an employing office request
subsequent recertifications of medical conditions?
(a) For pregnancy, chronic, or permanent/long-term conditions under
continuing supervision of a health care provider (as defined in
Sec. 825.114(a)(2) (ii), (iii) or (iv)), an employing office may
request recertification no more often than every 30 days and only in
connection with an absence by the employee, unless:
(1) Circumstances described by the previous certification
have changed significantly (e.g., the duration or frequency of
absences, the severity of the condition, complications); or
(2) The employing office receives information that casts
doubt upon the employee's stated reason for the absence.
(b)(1) If the minimum duration of the period of incapacity
specified on a certification furnished by the health care provider is
more than 30 days, the employing office may not request recertification
until that minimum duration has passed unless one of the conditions set
forth in paragraph (c) (1), (2) or (3) of this section is met.
(2) For FMLA leave taken intermittently or on a reduced leave
schedule basis, the employing office may not request recertification in
less than the minimum period specified on the certification as
necessary for such leave (including treatment) unless one of the
conditions set forth in paragraph (c) (1), (2) or (3) of this section
is met.
(c) For circumstances not covered by paragraphs (a) or (b) of this
section, an employing office may request recertification at any
reasonable interval, but not more often than every 30 days, unless:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification
have changed significantly (e.g., the duration of the illness,
the nature of the illness, complications); or
(3) The employing office receives information that casts
doubt upon the continuing validity of the certification.
(d) The employee must provide the requested recertification to the
employing office within the time frame requested by the employing
office (which must allow at least 15 calendar days after the employing
office's request), unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts.
(e) Any recertification requested by the employing office shall be
at the employee's expense unless the employing office provides
otherwise. No second or third opinion on recertification may be
required.
Sec. 825.309 What notice may an employing office require regarding an
employee's intent to return to work?
(a) An employing office may require an employee on FMLA leave to
report periodically on the employee's status and intent to return to
work. The employing office's policy regarding such reports may not be
discriminatory and must take into account all of the relevant facts and
circumstances related to the individual employee's leave situation.
(b) If an employee gives unequivocal notice of intent not to return
to work, the employing office's obligations under FMLA, as made
applicable by the CAA, to maintain health benefits (subject to
requirements of COBRA or 5 U.S.C. 8905a, whichever is applicable) and
to restore the employee cease. However, these obligations continue if
an employee indicates he or she may be unable to return to work but
expresses a continuing desire to do so.
(c) It may be necessary for an employee to take more leave than
originally anticipated. Conversely, an employee may discover after
beginning leave that the circumstances have changed and the amount of
leave originally anticipated is no longer necessary. An employee may
not be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave. In both of these
situations, the employing office may require that the employee provide
the employing office reasonable notice (i.e., within two business days)
of the changed circumstances where foreseeable. The employing office
may also obtain information on such changed circumstances through
requested status reports.
Sec. 825.310 Under what circumstances may an employing office require
that an employee submit a medical certification that the
employee is able (or unable) to return to work (i.e., a
``fitness-for-duty'' report)?
(a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employing office may
have a uniformly-applied policy or practice that requires all
similarly-situated employees (i.e., same occupation, same serious
health condition) who take leave for such conditions to obtain and
present certification from the employee's health care provider that the
employee is able to resume work.
(b) If the terms of a collective bargaining agreement govern an
employee's return to work, those provisions shall be applied.
Similarly, requirements under the Americans with Disabilities Act
(ADA), as made applicable by the CAA, that any return-to-work physical
be job-related and consistent with business necessity apply. For
example, an attorney could not be required to submit to a medical
examination or inquiry just because her leg had been amputated. The
essential functions of an attorney's job do not require use of both
legs; therefore such an inquiry would not be job related. An employing
office may require a warehouse laborer, whose back impairment affects
the ability to lift, to be examined by an orthopedist, but may not
require this employee to submit to an HIV test where the test is not
related to either the essential functions of his/her job or to his/her
impairment.
(c) An employing office may seek fitness-for-duty certification
only with regard to the particular health condition that caused the
employee's need for FMLA leave. The certification itself need only be a
simple statement of an employee's ability to return to work. A health
care provider employed by the employing office may contact the
employee's health care provider with the employee's permission, for
purposes of clarification of the employee's fitness to return to work.
No additional information may be acquired, and clarification may be
requested only for the serious health condition for which FMLA leave
was taken. The employing office may not delay the employee's return to
work while contact with the health care provider is being made.
(d) The cost of the certification shall be borne by the employee
and the employee is not entitled to be paid for the time or travel
costs spent in acquiring the certification.
(e) The notice that employing offices are required to give to each
employee giving notice of the need for FMLA leave regarding their FMLA
rights and obligations as made applicable by the CAA (see Sec. 825.301)
shall advise the employee if the employing office will require fitness-
for-duty certification to return to work. If the employing office has a
handbook explaining employment policies and benefits, the handbook
should explain the employing office's general policy regarding any
requirement for fitness-for-duty certification to return to work.
Specific notice shall also be given to any employee from whom fitness-
for-duty certification will be required either at the time notice of
the need for leave is given or immediately after leave commences and
the employing office is advised of the medical circumstances requiring
the leave, unless the employee's condition changes from one that did
not previously require certification pursuant to the employing office's
practice or policy. No second or third fitness-for-duty certification
may be required.
(f) An employing office may delay restoration to employment until
an employee submits a required fitness-for-duty certification unless
the employing office has failed to provide the notices required in
paragraph (e) of this section.
(g) An employing office is not entitled to certification of fitness
to return to duty when the employee takes intermittent leave as
described in Sec. 825.203.
(h) When an employee is unable to return to work after FMLA leave
because of the continuation, recurrence, or onset of the employee's or
family member's serious health condition, thereby preventing the
employing office from recovering its share of health benefit premium
payments made on the employee's behalf during a period of unpaid FMLA
leave, the employing office may require medical certification of the
employee's or the family member's serious health condition. (See
Sec. 825.213(a)(3).) The cost of the certification shall be borne by
the employee and the employee is not entitled to be paid for the time
or travel costs spent in acquiring the certification.
Sec. 825.311 What happens if an employee fails to satisfy the medical
certification and/or recertification requirements?
(a) In the case of foreseeable leave, an employing office may delay
the taking of FMLA leave to an employee who fails to provide timely
certification after being requested by the employing office to furnish
such certification (i.e., within 15 calendar days, if practicable),
until the required certification is provided.
(b) When the need for leave is not foreseeable, or in the case of
recertification, an employee must provide certification (or
recertification) within the time frame requested by the employing
office (which must allow at least 15 days after the employing office's
request) or as soon as reasonably possible under the particular facts
and circumstances. In the case of a medical emergency, it may not be
practicable for an employee to provide the required certification
within 15 calendar days. If an employee fails to provide a medical
certification within a reasonable time under the pertinent
circumstances, the employing office may delay the employee's
continuation of FMLA leave. If the employee never produces the
certification, the leave is not FMLA leave.
(c) When requested by the employing office pursuant to a uniformly
applied policy for similarly-situated employees, the employee must
provide medical certification at the time the employee seeks
reinstatement at the end of FMLA leave taken for the employee's serious
health condition, that the employee is fit for duty and able to return
to work (see Sec. 825.310(a)) if the employing office has provided the
required notice (see Sec. 825.301(c)); the employing office may delay
restoration until the certification is provided. In this situation,
unless the employee provides either a fitness-for-duty certification or
a new medical certification for a serious health condition at the time
FMLA leave is concluded, the employee may be terminated. See also
Sec. 825.213(a)(3).
Sec. 825.312 Under what circumstances may an employing office refuse to
provide FMLA leave or reinstatement to eligible
employees?
(a) If an employee fails to give timely advance notice when the
need for FMLA leave is foreseeable, the employing office may delay the
taking of FMLA leave until 30 days after the date the employee provides
notice to the employing office of the need for FMLA leave. (See
Sec. 825.302.)
(b) If an employee fails to provide in a timely manner a requested
medical certification to substantiate the need for FMLA leave due to a
serious health condition, an employing office may delay continuation of
FMLA leave until an employee submits the certificate. (See Sec. Sec.
825.305 and 825.311.) If the employee never produces the certification,
the leave is not FMLA leave.
(c) If an employee fails to provide a requested fitness-for-duty
certification to return to work, an employing office may delay
restoration until the employee submits the certificate. (See Sec. Sec.
825.310 and 825.311.)
(d) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. Thus, an employee's
rights to continued leave, maintenance of health benefits, and
restoration cease under FMLA, as made applicable by the CAA, if and
when the employment relationship terminates (e.g., layoff), unless that
relationship continues, for example, by the employee remaining on paid
FMLA leave. If the employee is recalled or otherwise re-employed, an
eligible employee is immediately entitled to further FMLA leave for an
FMLA-qualifying reason. An employing office must be able to show, when
an employee requests restoration, that the employee would not otherwise
have been employed if leave had not been taken in order to deny
restoration to employment. (See Sec. 825.216.)
(e) An employing office may require an employee on FMLA leave to
report periodically on the employee's status and intention to return to
work. (See Sec. 825.309.) If an employee unequivocally advises the
employing office either before or during the taking of leave that the
employee does not intend to return to work, and the employment
relationship is terminated, the employee's entitlement to continued
leave, maintenance of health benefits, and restoration ceases unless
the employment relationship continues, for example, by the employee
remaining on paid leave. An employee may not be required to take more
leave than necessary to address the circumstances for which leave was
taken. If the employee is able to return to work earlier than
anticipated, the employee shall provide the employing office two
business days notice where feasible; the employing office is required
to restore the employee once such notice is given, or where such prior
notice was not feasible.
(f) An employing office may deny restoration to employment, but not
the taking of FMLA leave and the maintenance of health benefits, to an
eligible employee only under the terms of the ``key employee''
exemption. Denial of reinstatement must be necessary to prevent
``substantial and grievous economic injury'' to the employing office's
operations. The employing office must notify the employee of the
employee's status as a ``key employee'' and of the employing office's
intent to deny reinstatement on that basis when the employing office
makes these determinations. If leave has started, the employee must be
given a reasonable opportunity to return to work after being so
notified. (See Sec. 825.219.)
(g) An employee who fraudulently obtains FMLA leave from an
employing office is not protected by job restoration or maintenance of
health benefits provisions of the FMLA as made applicable by the CAA.
(h) If the employing office has a uniformly-applied policy
governing outside or supplemental employment, such a policy may
continue to apply to an employee while on FMLA leave. An employing
office which does not have such a policy may not deny benefits to which
an employee is entitled under FMLA as made applicable by the CAA on
this basis unless the FMLA leave was fraudulently obtained as in
paragraph (g) of this section.
Subpart D--What Enforcement Mechanisms Does the CAA Provide?
Sec. 825.400 What can employees do who believe that their rights under
the FMLA as made applicable by the CAA have been
violated?
(a) To commence a proceeding, a covered employee alleging a
violation of the rights and protections of the FMLA made applicable by
the CAA must request counseling by the Office of Compliance not later
than 180 days after the date of the alleged violation. If a covered
employee misses this deadline, the covered employee will be unable to
obtain a remedy under the CAA.
(b) The following procedures are available under title IV of the
CAA for covered employees who believe that their rights under FMLA as
made applicable by the CAA have been violated--
(1) counseling;
(2) mediation; and
(3) election of either--
(A) a formal complaint, filed with the Office of
Compliance, and a hearing before a hearing officer,
subject to review by the Board of Directors of the
Office of Compliance, and judicial review in the United
States Court of Appeals for the Federal Circuit; or
(B) a civil action in a district court of the
United States.
(c) Regulations of the Office of Compliance describing and
governing these procedures are found at [proposed rules can be found at
141 Cong. Rec. S17012 (November 14, 1995)].
Sec. 825.401 [Reserved]
Sec. 825.402 [Reserved]
Sec. 825.403 [Reserved]
Sec. 825.404 [Reserved]
Subpart E--[Reserved]
Subpart F--What Special Rules Apply to Employees of Schools?
Sec. 825.600 To whom do the special rules apply?
(a) Certain special rules apply to employees of ``local educational
agencies'', including public school boards and elementary schools under
their jurisdiction, and private elementary and secondary schools. The
special rules do not apply to other kinds of educational institutions,
such as colleges and universities, trade schools, and preschools.
(b) Educational institutions are covered by FMLA as made applicable
by the CAA (and these special rules). The usual requirements for
employees to be ``eligible'' apply.
(c) The special rules affect the taking of intermittent leave or
leave on a reduced leave schedule, or leave near the end of an academic
term (semester), by instructional employees. ``Instructional
employees'' are those whose principal function is to teach and instruct
students in a class, a small group, or an individual setting. This term
includes not only teachers, but also athletic coaches, driving
instructors, and special education assistants such as signers for the
hearing impaired. It does not include, and the special rules do not
apply to, teacher assistants or aides who do not have as their
principal job actual teaching or instructing, nor does it include
auxiliary personnel such as counselors, psychologists, or curriculum
specialists. It also does not include cafeteria workers, maintenance
workers, or bus drivers.
(d) Special rules which apply to restoration to an equivalent
position apply to all employees of local educational agencies.
Sec. 825.601 What limitations apply to the taking of intermittent leave
or leave on a reduced leave schedule?
(a) Leave taken for a period that ends with the school year and
begins the next semester is leave taken consecutively rather than
intermittently. The period during the summer vacation when the employee
would not have been required to report for duty is not counted against
the employee's FMLA leave entitlement. An instructional employee who is
on FMLA leave at the end of the school year must be provided with any
benefits over the summer vacation that employees would normally receive
if they had been working at the end of the school year.
(1) If an eligible instructional employee needs
intermittent leave or leave on a reduced leave schedule to care
for a family member, or for the employee's own serious health
condition, which is foreseeable based on planned medical
treatment, and the employee would be on leave for more than 20
percent of the total number of working days over the period the
leave would extend, the employing office may require the
employee to choose either to:
(i) Take leave for a period or periods of a
particular duration, not greater than the duration of
the planned treatment; or
(ii) Transfer temporarily to an available
alternative position for which the employee is
qualified, which has equivalent pay and benefits and
which better accommodates recurring periods of leave
than does the employee's regular position.
(2) These rules apply only to a leave involving more than
20 percent of the working days during the period over which the
leave extends. For example, if an instructional employee who
normally works five days each week needs to take two days of
FMLA leave per week over a period of several weeks, the special
rules would apply. Employees taking leave which constitutes 20
percent or less of the working days during the leave period
would not be subject to transfer to an alternative position.
``Periods of a particular duration'' means a block, or blocks,
of time beginning no earlier than the first day for which leave
is needed and ending no later than the last day on which leave
is needed, and may include one uninterrupted period of leave.
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently or
on a reduced leave schedule, the employing office may require the
employee to take leave of a particular duration, or to transfer
temporarily to an alternative position. Alternatively, the employing
office may require the employee to delay the taking of leave until the
notice provision is met. See Sec. 825.207(h).
Sec. 825.602 What limitations apply to the taking of leave near the end
of an academic term?
(a) There are also different rules for instructional employees who
begin leave more than five weeks before the end of a term, less than
five weeks before the end of a term, and less than three weeks before
the end of a term. Regular rules apply except in circumstances when:
(1) An instructional employee begins leave more than five
weeks before the end of a term. The employing office may
require the employee to continue taking leave until the end of
the term if--
(i) the leave will last at least three weeks, and
(ii) the employee would return to work during the
three-week period before the end of the term.
(2) The employee begins leave for a purpose other than the
employee's own serious health condition during the five-week
period before the end of a term. The employing office may
require the employee to continue taking leave until the end of
the term if--
(i) the leave will last more than two weeks, and
(ii) the employee would return to work during the
two-week period before the end of the term.
(3) The employee begins leave for a purpose other than the
employee's own serious health condition during the three-week
period before the end of a term, and the leave will last more
than five working days. The employing office may require the
employee to continue taking leave until the end of the term.
(b) For purposes of these provisions, ``academic term'' means the
school semester, which typically ends near the end of the calendar year
and the end of spring each school year. In no case may a school have
more than two academic terms or semesters each year for purposes of
FMLA as made applicable by the CAA. An example of leave falling within
these provisions would be where an employee plans two weeks of leave to
care for a family member which will begin three weeks before the end of
the term. In that situation, the employing office could require the
employee to stay out on leave until the end of the term.
Sec. 825.603 Is all leave taken during ``periods of a particular
duration'' counted against the FMLA leave entitlement?
(a) If an employee chooses to take leave for ``periods of a
particular duration'' in the case of intermittent or reduced schedule
leave, the entire period of leave taken will count as FMLA leave.
(b) In the case of an employee who is required to take leave until
the end of an academic term, only the period of leave until the
employee is ready and able to return to work shall be charged against
the employee's FMLA leave entitlement. The employing office has the
option not to require the employee to stay on leave until the end of
the school term. Therefore, any additional leave required by the
employing office to the end of the school term is not counted as FMLA
leave; however, the employing office shall be required to maintain the
employee's group health insurance and restore the employee to the same
or equivalent job including other benefits at the conclusion of the
leave.
Sec. 825.604 What special rules apply to restoration to ``an equivalent
position''?
The determination of how an employee is to be restored to ``an
equivalent position'' upon return from FMLA leave will be made on the
basis of ``established school board policies and practices, private
school policies and practices, and collective bargaining agreements''.
The ``established policies'' and collective bargaining agreements used
as a basis for restoration must be in writing, must be made known to
the employee prior to the taking of FMLA leave, and must clearly
explain the employee's restoration rights upon return from leave. Any
established policy which is used as the basis for restoration of an
employee to ``an equivalent position'' must provide substantially the
same protections as provided in the FMLA, as made applicable by the
CAA, for reinstated employees. See Sec. 825.215. In other words, the
policy or collective bargaining agreement must provide for restoration
to an ``equivalent position'' with equivalent employment benefits, pay,
and other terms and conditions of employment. For example, an employee
may not be restored to a position requiring additional licensure or
certification.
Subpart G--How Do Other Laws, Employing Office Practices, and
Collective Bargaining Agreements Affect Employee Rights Under the FMLA
as Made Applicable by the CAA?
Sec. 825.700 What if an employing office provides more generous
benefits than required by FMLA as made applicable by the
CAA?
(a) An employing office must observe any employment benefit program
or plan that provides greater family or medical leave rights to
employees than the rights established by the FMLA. Conversely, the
rights established by the FMLA, as made applicable by the CAA, may not
be diminished by any employment benefit program or plan. For example, a
provision of a collective bargaining agreement (CBA) which provides for
reinstatement to a position that is not equivalent because of seniority
(e.g., provides lesser pay) is superseded by FMLA. If an employing
office provides greater unpaid family leave rights than are afforded by
FMLA, the employing office is not required to extend additional rights
afforded by FMLA, such as maintenance of health benefits (other than
through COBRA or 5 U.S.C. 8905a, whichever is applicable), to the
additional leave period not covered by FMLA. If an employee takes paid
or unpaid leave and the employing office does not designate the leave
as FMLA leave, the leave taken does not count against an employee's
FMLA entitlement.
(b) Nothing in the FMLA, as made applicable by the CAA, prevents an
employing office from amending existing leave and employee benefit
programs, provided they comply with FMLA as made applicable by the CAA.
However, nothing in the FMLA, as made applicable by the CAA, is
intended to discourage employing offices from adopting or retaining
more generous leave policies.
(c) [Reserved].
Sec. 825.701 [Reserved]
Sec. 825.702 How does FMLA affect anti-discrimination laws as applied
by section 201 of the CAA?
(a) Nothing in FMLA modifies or affects any applicable law
prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability (e.g., title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act), as
made applicable by the CAA. FMLA's legislative history explains that
FMLA is ``not intended to modify or affect the Rehabilitation Act of
1973, as amended, the regulations concerning employment which have been
promulgated pursuant to that statute, or the Americans with
Disabilities Act of 1990, or the regulations issued under that Act.
Thus, the leave provisions of the [FMLA] are wholly distinct from the
reasonable accommodation obligations of employers covered under the
[ADA] * * * or the Federal government itself. The purpose of the FMLA
is to make leave available to eligible employees and employing offices
within its coverage, and not to limit already existing rights and
protection''. S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). An
employing office must therefore provide leave under whichever statutory
provision provides the greater rights to employees.
(b) If an employee is a qualified individual with a disability
within the meaning of the Americans with Disabilities Act (ADA), the
employing office must make reasonable accommodations, etc., barring
undue hardship, in accordance with the ADA. At the same time, the
employing office must afford an employee his or her FMLA rights. ADA's
``disability'' and FMLA's ``serious health condition'' are different
concepts, and must be analyzed separately. FMLA entitles eligible
employees to 12 weeks of leave in any 12-month period, whereas the ADA
allows an indeterminate amount of leave, barring undue hardship, as a
reasonable accommodation. FMLA requires employing offices to maintain
employees' group health plan coverage during FMLA leave on the same
conditions as coverage would have been provided if the employee had
been continuously employed during the leave period, whereas ADA does
not require maintenance of health insurance unless other employees
receive health insurance during leave under the same circumstances.
(c)(1) A reasonable accommodation under the ADA might be
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employing office did not
ordinarily provide health insurance for part-time employees. However,
FMLA would permit an employee to work a reduced leave schedule until
the equivalent of 12 workweeks of leave were used, with group health
benefits maintained during this period. FMLA permits an employing
office to temporarily transfer an employee who is taking leave
intermittently or on a reduced leave schedule to an alternative
position, whereas the ADA allows an accommodation of reassignment to an
equivalent, vacant position only if the employee cannot perform the
essential functions of the employee's present position and an
accommodation is not possible in the employee's present position, or an
accommodation in the employee's present position would cause an undue
hardship. The examples in the following paragraphs of this section
demonstrate how the two laws would interact with respect to a qualified
individual with a disability.
(2) A qualified individual with a disability who is also an
``eligible employee'' entitled to FMLA leave requests 10 weeks of
medical leave as a reasonable accommodation, which the employing office
grants because it is not an undue hardship. The employing office
advises the employee that the 10 weeks of leave is also being
designated as FMLA leave and will count towards the employee's FMLA
leave entitlement. This designation does not prevent the parties from
also treating the leave as a reasonable accommodation and reinstating
the employee into the same job, as required by the ADA, rather than an
equivalent position under FMLA, if that is the greater right available
to the employee. At the same time, the employee would be entitled under
FMLA to have the employing office maintain group health plan coverage
during the leave, as that requirement provides the greater right to the
employee.
(3) If the same employee needed to work part-time (a reduced leave
schedule) after returning to his or her same job, the employee would
still be entitled under FMLA to have group health plan coverage
maintained for the remainder of the two-week equivalent of FMLA leave
entitlement, notwithstanding an employing office policy that part-time
employees do not receive health insurance. This employee would be
entitled under the ADA to reasonable accommodations to enable the
employee to perform the essential functions of the part-time position.
In addition, because the employee is working a part-time schedule as a
reasonable accommodation, the employee would be shielded from FMLA's
provision for temporary assignment to a different alternative position.
Once the employee has exhausted his or her remaining FMLA leave
entitlement while working the reduced (part-time) schedule, if the
employee is a qualified individual with a disability, and if the
employee is unable to return to the same full-time position at that
time, the employee might continue to work part-time as a reasonable
accommodation, barring undue hardship; the employee would then be
entitled to only those employment benefits ordinarily provided by the
employing office to part-time employees.
(4) At the end of the FMLA leave entitlement, an employing office
is required under FMLA to reinstate the employee in the same or an
equivalent position, with equivalent pay and benefits, to that which
the employee held when leave commenced. The employing office's FMLA
obligations would be satisfied if the employing office offered the
employee an equivalent full-time position. If the employee were unable
to perform the essential functions of that equivalent position even
with reasonable accommodation, because of a disability, the ADA may
require the employing office to make a reasonable accommodation at that
time by allowing the employee to work part-time or by reassigning the
employee to a vacant position, barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employing office
may not, in lieu of FMLA leave entitlement, require an employee to take
a job with a reasonable accommodation. However, ADA may require that an
employing office offer an employee the opportunity to take such a
position. An employing office may not change the essential functions of
the job in order to deny FMLA leave. See Sec. 825.220(b).
(2) An employee may be on a workers' compensation absence due to an
on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers' compensation absence and FMLA leave
may run concurrently (subject to proper notice and designation by the
employing office). At some point the health care provider providing
medical care pursuant to the workers' compensation injury may certify
the employee is able to return to work in a ``light duty'' position. If
the employing office offers such a position, the employee is permitted
but not required to accept the position (see Sec. 825.220(d)). As a
result, the employee may no longer qualify for payments from the
workers' compensation benefit plan, but the employee is entitled to
continue on unpaid FMLA leave either until the employee is able to
return to the same or equivalent job the employee left or until the 12-
week FMLA leave entitlement is exhausted. See Sec. 825.207(d)(2). If
the employee returning from the workers' compensation injury is a
qualified individual with a disability, he or she will have rights
under the ADA.
(e) If an employing office requires certifications of an employee's
fitness for duty to return to work, as permitted by FMLA under a
uniform policy, it must comply with the ADA requirement that a fitness
for duty physical be job-related and consistent with business
necessity.
(f) Under title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act, and as made applicable by the CAA, an
employing office should provide the same benefits for women who are
pregnant as the employing office provides to other employees with
short-term disabilities. Because title VII does not require employees
to be employed for a certain period of time to be protected, an
employee employed for less than 12 months by any employing office (and,
therefore, not an ``eligible'' employee under FMLA, as made applicable
by the CAA) may not be denied maternity leave if the employing office
normally provides short-term disability benefits to employees with the
same tenure who are experiencing other short-term disabilities.
(g) For further information on Federal anti-discrimination laws
applied by section 201 of the CAA (2 U.S.C. 1311), including title VII,
the Rehabilitation Act, and the ADA, individuals are encouraged to
contact the Office of Compliance.
Subpart H--Definitions
Sec. 825.800 Definitions.
For purposes of this part:
ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et
seq.).
CAA means the Congressional Accountability Act of 1995 (Pub. Law
104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq.).
COBRA means the continuation coverage requirements of title X of
the Consolidated Omnibus Budget Reconciliation Act of 1986 (Pub. Law
99-272, title X, section 10002; 100 Stat. 227; as amended; 29 U.S.C.
1161-1168).
Continuing treatment means: A serious health condition involving
continuing treatment by a health care provider includes any one or more
of the following:
(1) A period of incapacity (i.e., inability to work, attend
school or perform other regular daily activities due to the
serious health condition, treatment therefor, or recovery
therefrom) of more than three consecutive calendar days, and
any subsequent treatment or period of incapacity relating to
the same condition, that also involves:
(i) Treatment two or more times by a health care
provider, by a nurse or physician's assistant under
direct supervision of a health care provider, or by a
provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health
care provider; or
(ii) Treatment by a health care provider on at
least one occasion which results in a regimen of
continuing treatment under the supervision of the
health care provider.
(2) Any period of incapacity due to pregnancy, or for
prenatal care.
(3) Any period of incapacity or treatment for such
incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(i) Requires periodic visits for treatment by a
health care provider, or by a nurse or physician's
assistant under direct supervision of a health care
provider;
(ii) Continues over an extended period of time
(including recurring episodes of a single underlying
condition); and
(iii) May cause episodic rather than a continuing
period of incapacity (e.g., asthma, diabetes, epilepsy,
etc.).
(4) A period of incapacity which is permanent or long-term
due to a condition for which treatment may not be effective.
The employee or family member must be under the continuing
supervision of, but need not be receiving active treatment by,
a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(5) Any period of absence to receive multiple treatments
(including any period of recovery therefrom) by a health care
provider or by a provider of health care services under orders
of, or on referral by, a health care provider, either for
restorative surgery after an accident or other injury, or for a
condition that would likely result in a period of incapacity of
more than three consecutive calendar days in the absence of
medical intervention or treatment, such as cancer
(chemotherapy, radiation, etc.), severe arthritis (physical
therapy), kidney disease (dialysis).
Covered employee--The term ``covered employee'', as defined in the
CAA, means any employee of--(1) the House of Representatives; (2) the
Senate; (3) the Capitol Guide Service; (4) the Capitol Police; (5) the
Congressional Budget Office; (6) the Office of the Architect of the
Capitol; (7) the Office of the Attending Physician; (8) the Office of
Compliance; or (9) the Office of Technology Assessment.
Eligible employee--The term ``eligible employee'', as defined in
the CAA, means a covered employee who has been employed in any
employing office for 12 months and for at least 1,250 hours of
employment during the previous 12 months.
Employ means to suffer or permit to work.
Employee means an employee as defined in the CAA and includes an
applicant for employment and a former employee.
Employee employed in an instructional capacity: See Teacher.
Employee of the Capitol Police--The term ``employee of the Capitol
Police'' includes any member or officer of the Capitol Police.
Employee of the House of Representatives--The term ``employee of
the House of Representatives'' includes an individual occupying a
position the pay for which is disbursed by the Clerk of the House of
Representatives, or another official designated by the House of
Representatives, or any employment position in an entity that is paid
with funds derived from the clerk-hire allowance of the House of
Representatives but not any such individual employed by any entity
listed in subparagraphs (3) through (9) under ``covered employee''
above.
Employee of the Office of the Architect of the Capitol--The term
``employee of the Office of the Architect of the Capitol'' includes any
employee of the Office of the Architect of the Capitol, the Botanic
Garden, or the Senate Restaurants.
Employee of the Senate--The term ``employee of the Senate''
includes any employee whose pay is disbursed by the Secretary of the
Senate, but not any such individual employed by any entity listed in
subparagraphs (3) through (9) under ``covered employee'' above.
Employing Office--The term ``employing office'', as defined in the
CAA, means--
(1) the personal office of a Member of the House of
Representatives or of a Senator;
(2) a committee of the House of Representatives or the
Senate or a joint committee;
(3) any other office headed by a person with the final
authority to appoint, hire, discharge, and set the terms,
conditions, or privileges of the employment of an employee of
the House of Representatives or the Senate; or
(4) the Capitol Guide Board, the Capitol Police Board, the
Congessional Budget Office, the Office of the Architect of the
Capitol, the Office of the Attending Physician, the Office of
Compliance, and the Office of Technology Assessment.
Employment benefits means all benefits provided or made available
to employees by an employing office, including group life insurance,
health insurance, disability insurance, sick leave, annual leave,
educational benefits, and pensions, regardless of whether such benefits
are provided by a practice or written policy of an employing office or
through an employee benefit plan. The term does not include non-
employment related obligations paid by employees through voluntary
deductions such as supplemental insurance coverage. (See
Sec. 825.209(a)).
FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
FMLA means the Family and Medical Leave Act of 1993, Public Law
103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq.).
Group health plan means the Federal Employees Health Benefits
Program and any other plan of, or contributed to by, an employing
office (including a self-insured plan) to provide health care (directly
or otherwise) to the employing office's employees, former employees, or
the families of such employees or former employees. For purposes of
FMLA, as made applicable by the CAA, the term ``group health plan''
shall not include an insurance program providing health coverage under
which employees purchase individual policies from insurers provided
that--
(1) no contributions are made by the employing office;
(2) participation in the program is completely voluntary
for employees;
(3) the sole functions of the employing office with respect
to the program are, without endorsing the program, to permit
the insurer to publicize the program to employees, to collect
premiums through payroll deductions and to remit them to the
insurer;
(4) the employing office receives no consideration in the
form of cash or otherwise in connection with the program, other
than reasonable compensation, excluding any profit, for
administrative services actually rendered in connection with
payroll deduction; and
(5) the premium charged with respect to such coverage does
not increase in the event the employment relationship
terminates.
Health care provider means:
(1) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery by the State in which the doctor
practices; or
(2) Podiatrists, dentists, clinical psychologists,
optometrists, and chiropractors (limited to treatment
consisting of manual manipulation of the spine to correct a
subluxation as demonstrated by X-ray to exist) authorized to
practice in the State and performing within the scope of their
practice as defined under State law; and
(3) Nurse practitioners, nurse-midwives and clinical social
workers who are authorized to practice under State law and who
are performing within the scope of their practice as defined
under State law; and
(4) Christian Science practitioners listed with the First
Church of Christ, Scientist in Boston, Massachusetts.
(5) Any health care provider from whom an employing office
or a group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits.
(6) A health care provider as defined above who practices
in a country other than the United States, who is licensed to
practice in accordance with the laws and regulations of that
country.
``Incapable of self-care'' means that the individual requires
active assistance or supervision to provide daily self-care in several
of the ``activities of daily living'' (ADLs) or ``instrumental
activities of daily living'' (IADLs). Activities of daily living
include adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
Instructional employee: See Teacher.
Intermittent leave means leave taken in separate periods of time
due to a single illness or injury, rather than for one continuous
period of time, and may include leave of periods from an hour or more
to several weeks. Examples of intermittent leave would include leave
taken on an occasional basis for medical appointments, or leave taken
several days at a time spread over a period of six months, such as for
chemotherapy.
Mental disability: See Physical or mental disability.
Office of Compliance means the independent office established in
the legislative branch under section 301 of the CAA (2 U.S.C. 1381).
Parent means the biological parent of an employee or an individual
who stands or stood in loco parentis to an employee when the employee
was a child.
Physical or mental disability means a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual. See the Americans with Disabilities Act (ADA), as made
applicable by section 201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)).
Reduced leave schedule means a leave schedule that reduces the
usual number of hours per workweek, or hours per workday, of an
employee.
Secretary means the Secretary of Labor or authorized
representative.
Serious health condition entitling an employee to FMLA leave means:
(1) An illness, injury, impairment, or physical or mental
condition that involves:
(i) Inpatient care (i.e., an overnight stay) in a
hospital, hospice, or residential medical care
facility, including any period of incapacity (for
purposes of this section, defined to mean inability to
work, attend school or perform other regular daily
activities due to the serious health condition,
treatment therefor, or recovery therefrom), or any
subsequent treatment in connection with such inpatient
care; or
(ii) Continuing treatment by a health care
provider. A serious health condition involving
continuing treatment by a health care provider
includes:
(A) A period of incapacity (i.e., inability
to work, attend school or perform other regular
daily activities due to the serious health
condition, treatment therefor, or recovery
therefrom) of more than three consecutive
calendar days, including any subsequent
treatment or period of incapacity relating to
the same condition, that also involves:
(1) Treatment two or more times by
a health care provider, by a nurse or
physician's assistant under direct
supervision of a health care provider,
or by a provider of health care
services (e.g., physical therapist)
under orders of, or on referral by, a
health care provider; or
(2) Treatment by a health care
provider on at least one occasion which
results in a regimen of continuing
treatment under the supervision of the
health care provider.
(B) Any period of incapacity due to
pregnancy, or for prenatal care.
(C) Any period of incapacity or treatment
for such incapacity due to a chronic serious
health condition. A chronic serious health
condition is one which:
(1) Requires periodic visits for
treatment by a health care provider, or
by a nurse or physician's assistant
under direct supervision of a health
care provider;
(2) Continues over an extended
period of time (including recurring
episodes of a single underlying
condition); and
(3) May cause episodic rather than
a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy,
etc.).
(D) A period of incapacity which is
permanent or long-term due to a condition for
which treatment may not be effective. The
employee or family member must be under the
continuing supervision of, but need not be
receiving active treatment by, a health care
provider. Examples include Alzheimer's, a
severe stroke, or the terminal stages of a
disease.
(E) Any period of absence to receive
multiple treatments (including any period of
recovery therefrom) by a health care provider
or by a provider of health care services under
orders of, or on referral by, a health care
provider, either for restorative surgery after
an accident or other injury, or for a condition
that would likely result in a period of
incapacity of more than three consecutive
calendar days in the absence of medical
intervention or treatment, such as cancer
(chemotherapy, radiation, etc.), severe
arthritis (physical therapy), kidney disease
(dialysis).
(2) Treatment for purposes of paragraph (1) of this
definition includes (but is not limited to) examinations to
determine if a serious health condition exists and evaluations
of the condition. Treatment does not include routine physical
examinations, eye examinations, or dental examinations. Under
paragraph (1)(ii)(A)(2) of this definition, a regimen of
continuing treatment includes, for example, a course of
prescription medication (e.g., an antibiotic) or therapy
requiring special equipment to resolve or alleviate the health
condition (e.g., oxygen). A regimen of continuing treatment
that includes the taking of over-the-counter medications such
as aspirin, antihistamines, or salves; or bed-rest, drinking
fluids, exercise, and other similar activities that can be
initiated without a visit to a health care provider, is not, by
itself, sufficient to constitute a regimen of continuing
treatment for purposes of FMLA leave.
(3) Conditions for which cosmetic treatments are
administered (such as most treatments for acne or plastic
surgery) are not ``serious health conditions'' unless inpatient
hospital care is required or unless complications develop.
Ordinarily, unless complications arise, the common cold, the
flu, ear aches, upset stomach, minor ulcers, headaches other
than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do
not meet the definition of a serious health condition and do
not qualify for FMLA leave. Restorative dental or plastic
surgery after an injury or removal of cancerous growths are
serious health conditions provided all the other conditions of
this regulation are met. Mental illness resulting from stress
or allergies may be serious health conditions, but only if all
the conditions of this section are met.
(4) Substance abuse may be a serious health condition if
the conditions of this section are met. However, FMLA leave may
only be taken for treatment for substance abuse by a health
care provider or by a provider of health care services on
referral by a health care provider. On the other hand, absence
because of the employee's use of the substance, rather than for
treatment, does not qualify for FMLA leave.
(5) Absences attributable to incapacity under paragraphs
(1)(ii) (B) or (C) of this definition qualify for FMLA leave
even though the employee or the immediate family member does
not receive treatment from a health care provider during the
absence, and even if the absence does not last more than three
days. For example, an employee with asthma may be unable to
report for work due to the onset of an asthma attack or because
the employee's health care provider has advised the employee to
stay home when the pollen count exceeds a certain level. An
employee who is pregnant may be unable to report to work
because of severe morning sickness.
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is under 18 years of age or 18 years of age or older and
incapable of self-care because of a mental or physical disability.
Spouse means a husband or wife as defined or recognized under State
law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.
State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
Teacher (or employee employed in an instructional capacity, or
instructional employee) means an employee employed principally in an
instructional capacity by an educational agency or school whose
principal function is to teach and instruct students in a class, a
small group, or an individual setting, and includes athletic coaches,
driving instructors, and special education assistants such as signers
for the hearing impaired. The term does not include teacher assistants
or aides who do not have as their principal function actual teaching or
instructing, nor auxiliary personnel such as counselors, psychologists,
curriculum specialists, cafeteria workers, maintenance workers, bus
drivers, or other primarily noninstructional employees.
Appendix A to Part 825--[Reserved]
Appendix B to Part 825--Certification of Physician or Practitioner
Certification of Health Care Provider
(family and medical leave act of 1993 as made applicable by the
congressional accountability act of 1995)
1. Employee's Name:
2. Patient's Name (if different from employee):
3. The attached sheet describes what is meant by a ``serious health
condition'' under the Family and Medical Leave Act as made applicable
by the Congressional Accountability Act. Does the patient's
condition\1\ qualify under any of the categories described? If so,
please check the applicable category.
(1) ________
(2) ________
(3) ________
(4) ________
(5) ________
(6) ________, or
None of the above ________
4. Describe the medical facts which support your certification,
including a brief statement as to how the medical facts meet the
criteria of one of these categories:
5.a. State the approximate date the condition commenced, and the
probable duration of the condition (and also the probable duration of
the patient's present incapacity<SUP>2 if different):
b. Will it be necessary for the employee to take work only
intermittently or to work on a less than full schedule as a result of
the condition (including for treatment described in Item 6 below)?
________
If yes, give probable duration:
c. If the condition is a chronic condition (condition #4) or pregnancy,
state whether the patient is presently incapacitated\2\ and the likely
duration and frequency of episodes of incapacity\2\:
6.a. If additional treatments will be required for the condition,
provide an estimate of the probable number of such treatments:
If the patient will be absent from work or other daily
activities because of treatment on an intermittent or part-time
basis, also provide an estimate of the probable number and
interval between such treatments, actual or estimated dates of
treatment if known, and period required for recovery if any:
b. If any of these treatments will be provided by another provider of
health services (e.g., physical therapist), please state the nature of
the treatments:
c. If a regimen of continuing treatment by the patient is required
under your supervision, provide a general description of such regimen
(e.g., prescription drugs, physical therapy requiring special
equipment):
7.a. If medical leave is required for the employee's absence from work
because of the employee's own condition (including absences due to
pregnancy or a chronic condition), is the employee unable to perform
work of any kind? ________
b. If able to perform some work, is the employee unable to perform any
one or more of the essential functions of the employee's job (the
employee or the employer should supply you with information about the
essential job functions)? ________ If yes, please list the essential
functions the employee is unable to perform: ________
c. If neither a. nor b. applies, is it necessary for the employee to be
absent from work for treatment? ________
8.a. If leave is required to care for a family member of the employee
with a serious health condition, does the patient require assistance
for basic medical or personal needs or safety, or for transportation?
________
b. If no, would the employee's presence to provide psychological
comfort be beneficial to the patient or assist in the patient's
recovery? ________
c. If the patient will need care only intermittently or on a part-time
basis, please indicate the probable duration of this need:
(Signature of Health Care Provider)
(Type of Practice)
(Address)
(Telephone number)
To be completed by the employee needing family leave to care for a
family member:
State the care you will provide and an estimate of the period
during which care will be provided, including a schedule if
leave is to be taken intermittently or if it will be necessary
for you to work less than a full schedule:
(Employee signature)
(Date)
A ``Serious Health Condition'' means an illness, injury, impairment, or
physical or mental condition that involves one of the following:
1. Hospital Care.--Inpatient care (i.e., an overnight stay) in a
hospital, hospice, or residential medical care facility, including any
period of incapacity\1\ or subsequent treatment in connection with or
consequent to such inpatient care.
2. Absence Plus Treatment.--A period of incapacity\2\ of more than
three consecutive calendar days (including any subsequent treatment or
period of incapacity\2\ relating to the same condition), that also
involves:
(1) Treatment\3\ two or more times by a health care provider,
by a nurse or physician's assistant under direct supervision of
a health care provider, or by a provider of health care
services (e.g., physical therapist) under orders of, or on
referral by, a health care provider; or
(2) Treatment by a health care provider on at least one
occasion which results in a regimen of continuing
treatment<SUP>4 under the supervision of the health care
provider.
3. Pregnancy.--Any period of incapacity due to pregnancy, or for
prenatal care.
4. Chronic Conditions Requiring Treatments.--A chronic condition which:
(1) Requires periodic visits for treatment by a health care
provider, or by a nurse or physician's assistant under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including
recurring episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity\2\ (e.g., asthma, diabetes, epilepsy, etc.).
5. Permanent/Long-term Conditions Requiring Supervision.--A period of
incapacity\2\ which is permanent or long-term due to a condition for
which treatment may not be effective. The employee or family member
must be under the continuing supervision of, but need not be receiving
active treatment by, a health care provider. Examples include
Alzheimer's, a severe stroke, or the terminal stages of a disease.
6. Multiple Treatments (Non-Chronic Conditions).--Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
either for restorative surgery after an accident or other injury, or
for a condition that would likely result in a period of incapacity\2\
of more than three consecutive calendar days in the absence of medical
intervention or treatment, such as cancer (chemotherapy, radiation,
etc.), severe arthritis (physical therapy), kidney disease (dialysis).
FOOTNOTES
\1\Here and elsewhere on this form, the information sought relates only
to the condition for which the employee is taking FMLA leave.
\2\``Incapacity'', for purposes of FMLA as make applicable by the CAA,
is defined to mean inability to work, attend school or perform other
regular daily activities due to the serious health condition, treatment
therefore, or recovery therefrom.
<SUP>3 Treatment includes examinations to determine if a serious health
condition exists and evaluations of the condition. Treatment does not
include routine physical examinations, eye examinations, or dental
examinations.
<SUP>4 A regimen of continuing treatment includes, for example, a
course of prescription medication (e.g., an antibiotic) or therapy
requiring special equipment to resolve or alleviate the health
condition. A regimen of treatment does not include the taking of over-
the-counter medications such as aspirin, antihistamines, or salves; or
bed-rest, drinking fluids, exercise, and other similar activities that
can be initiated without a visit to a health care provider.
Appendix C to Part 825--[Reserved]
Appendix D to Part 825--Prototype Notice: Employing Office Response to
Employee Request for Family and Medical Leave
Employing Office Response to Employee Request for Family or Medical
Leave
(optional use form--see Sec. 825.301(b)(1) of the regulations of the
(family and medical leave act of 1993, as made applicable by the
congressional accountability act of 1995)
(Date)
To:____________________
(Employee's name)
From:____________________
(Name of appropriate employing office representative)
Subject: Request for Family/Medical Leave
On________, (date) you notified us of your need to take family/
medical leave due to:
(Date)
The birth of your child, or the placement of a child with you
for adoption or foster care; or
A serious health condition that makes you unable to perform the
essential functions of your job; or
A serious health condition affecting your spouse, child,
parent, for which you are needed to provide care.
You notified us that you need this leave beginning on ________(date)
and that you expect leave to continue until on or about________ (date).
Except as explained below, you have a right under the FMLA, as made
applicable by the CAA, for up to 12 weeks of unpaid leave in a 12-month
period for the reasons listed above. Also, your health benefits must be
maintained during any period of unpaid leave under the same conditions
as if you continued to work, and you must be reinstated to the same or
an equivalent job with the same pay, benefits, and terms and conditions
of employment on your return from leave. If you do not return to work
following FMLA leave for a reason other than: (1) the continuation,
recurrence, or onset of a serious health condition which would entitle
you to FMLA leave; or (2) other circumstances beyond your control, you
may be required to reimburse us for our share of health insurance
premiums paid on your behalf during your FMLA leave.
This is to inform you that: (check appropriate boxes; explain where
indicated)
1. You are eligible not eligible for leave under the FMLA as made
applicable by the CAA.
2. The requested leave will will not be counted against your
annual FMLA leave entitlement.
3. You will will not be required to furnish medical certification
of a serious health condition. If required, you must furnish
certification by________ (insert date) (must be at least 15 days after
you are notified of this requirement) or we may delay the commencement
of your leave until the certification is submitted.
4. You may elect to substitute accrued paid leave for unpaid FMLA
leave. We will will not require that you substitute accrued paid
leave for unpaid FMLA leave. If paid leave will be used the following
conditions will apply: (Explain)
5(a). If you normally pay a portion of the premiums for your health
insurance, these payments will continue during the period of FMLA
leave. Arrangements for payment have been discussed with you and it is
agreed that you will make premium payments as follows: (Set forth
dates, e.g., the 10th of each month, or pay periods, etc. that
specifically cover the agreement with the employee.).
(b). You have a minimum 30-day (or, indicate longer period, if
applicable) grace period in which to make premium payments. If payment
is not made timely, your group health insurance may be cancelled:
Provided, That we notify you in writing at least 15 days before the
date that your health coverage will lapse, or, at our option, we may
pay your share of the premiums during FMLA leave, and recover these
payments from you upon your return to work. We will will not pay
your share of health insurance premiums while you are on leave.
(c). We will will not do the same with other benefits (e.g., life
insurance, disability insurance, etc.) while you are on FMLA leave. If
we do pay your premiums for other benefits, when you return from leave
you will will not be expected to reimburse us for the payments
made on your behalf.
6. You will will not be required to present a fitness-for-duty
certificate prior to being restored to employment. If such
certification is required but not received, your return to work may be
delayed until the certification is provided.
7(a). You are are not a ``key employee'' as described in
Sec. 825.218 of the Office of Compliance's FMLA regulations. If you are
a ``key employee'', restoration to employment may be denied following
FMLA leave on the grounds that such restoration will cause substantial
and grievous economic injury to us.
(b). We have have not determined that restoring you to employment
at the conclusion of FMLA leave will cause substantial and grievous
economic harm to us. (Explain (a) and/or (b) below. See Sec. 825.219 of
the Office of Compliance's FMLA regulations.)
8. While on leave, you will will not be required to furnish us
with periodic reports every ________ (indicate interval of periodic
reports, as appropriate for the particular leave situation) of your
status and intent to return to work (see Sec. 825.309 of the Office of
Compliance's FMLA regulations). If the circumstances of your leave
change and you are able to return to work earlier than the date
indicated on the reverse side of this form, you will will not be
required to notify us at least two work days prior to the date you
intend to report for work.
9. You will will not be required to furnish recertification
relating to a serious health condition. (Explain below, if necessary,
including the interval between certifications as prescribed in
Sec. 825.308 of the Office of Compliance's FMLA regulations.)
Subtitle C--Regulations Relating to the Employing Offices Other Than
Those of the Senate and the House of Representatives--C Series
CHAPTER III--REGULATIONS RELATING TO THE RIGHTS AND PROTECTIONS UNDER
THE FAIR LABOR STANDARDS ACT OF 1938
PART C501--GENERAL PROVISIONS
Sec.
C501.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C501.101 Purpose and scope.
C501.102 Definitions.
C501.103 Coverage.
C501.104 Administrative authority.
C501.105 Effect of Interpretations of the Labor Department.
C501.106 Application of the Portal-to-Portal Act of 1947.
C501.107 [Reserved].
Sec. C501.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the parts of the Secretary of Labor
Regulations at Title 29 of the Code of Federal Regulations under the
FLSA with the corresponding parts of the Office of Compliance (OC)
Regulations under section 203 of the CAA:
Secretary of Labor regulations OC regulations
Part 531 Wage payments under the Fair Labor Standards Part C531
Act of 1938.
Part 541 Defining and delimiting the terms ``bona Part C541
fide executive'', ``administrative'', and
``professional'' employees.
Part 547 Requirements of a ``Bona fide thrift or Part C547
savings plan''.
Part 553 Application of the FLSA to employees of Part C553
public agencies.
Part 570 Child labor................................. Part C570
Subpart A--Matters of General Applicability
Sec. C501.101 Purpose and scope
(a) Section 203 of the Congressional Accountability Act (CAA)
provides that the rights and protections of subsections (a)(1) and (d)
of section 6, section 7, and section 12(c) of the Fair Labor Standards
Act of 1938 (FLSA) (29 U.S.C. Sec. Sec. 206(a)(1) and (d), 207, 212(c))
shall apply to covered employees of the legislative branch of the
Federal Government. Section 301 of the CAA creates the Office of
Compliance as an independent office in the legislative branch for
enforcing the rights and protections of the FLSA, as applied by the
CAA.
(b) The FLSA as applied by the CAA provides for minimum standards
for both wages and overtime entitlements, and delineates administrative
procedures by which covered worktime must be compensated. Included also
in the FLSA are provisions related to child labor, equal pay, and
portal-to-portal activities. In addition, the FLSA exempts specified
employees or groups of employees from the application of certain of its
provisions.
(c) This chapter contains the substantive regulations with respect
to the FLSA that the Board of Directors of the Office of Compliance has
adopted pursuant to sections 203(c) and 304 of the CAA, which requires
that the Board promulgate regulations that are ``the same as
substantive regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in subsection (a) [of
Sec. 203 of the CAA] except insofar as the Board may determine, for
good cause shown . . . that a modification of such regulations would be
more effective for the implementation of the rights and protections
under this section''.
(d) These regulations are issued by the Board of Directors, Office
of Compliance, pursuant to sections 203(c) and 304 of the CAA, which
directs the Board to promulgate regulations implementing section 203
that are ``the same as substantive regulations promulgated by the
Secretary of Labor to implement the statutory provisions referred to in
subsection (a) [of section 203 of the CAA] except insofar as the Board
may determine, for good cause shown . . . that a modification of such
regulations would be more effective for the implementation of the
rights and protections under this section''. The regulations issued by
the Board herein are on all matters for which section 203 of the CAA
requires regulations to be issued. Specifically, it is the Board's
considered judgment, based on the information available to it at the
time of the promulgation of these regulations, that, with the exception
of regulations adopted and set forth herein, there are no other
``substantive regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in subsection (a) [of
section 203 of the CAA]''.
(e) In promulgating these regulations, the Board has made certain
technical and nomenclature changes to the regulations as promulgated by
the Secretary. Such changes are intended to make the provisions adopted
accord more naturally to situations in the legislative branch. However,
by making these changes, the Board does not intend a substantive
difference between these regulations and those of the Secretary from
which they are derived. Moreover, such changes, in and of themselves,
are not intended to constitute an interpretation of the regulation or
of the statutory provisions of the CAA upon which they are based.
Sec. C501.102 Definitions
For purposes of this chapter:
(a) ``CAA'' means the Congressional Accountability Act of 1995
(P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
(b) ``FLSA'' or ``Act'' means the Fair Labor Standards Act of 1938,
as amended (29 U.S.C. Sec. 201 et seq.), as applied by section 203 of
the CAA to covered employees and employing offices.
(c) ``Covered employee'' means any employee, including an applicant
for employment and a former employee, of the (1) the Capitol Guide
Service; (2) the Capitol Police; (3) the Congressional Budget Office;
(4) the Office of the Architect of the Capitol; (5) the Office of the
Attending Physician; (6) the Office of Compliance; or (7) the Office of
Technology Assessment, but shall not include an intern.
(d)(1) ``Employee of the Office of the Architect of the Capitol''
includes any employee of the Architect of the Capitol, the Botanic
Garden, or the Senate Restaurants;
(2) ``Employee of the Capitol Police'' includes any member or
officer of the Capitol Police.
(e) ``Employing office'' and ``employer'' mean (1) the Capitol
Guide Service; (2) the Capitol Police; (3) the Congressional Budget
Office; (4) the Office of the Architect of the Capitol; (5) the Office
of the Attending Physician; (6) the Office of Compliance; or (7) the
Office of Technology Assessment.
(f) ``Board'' means the Board of Directors of the Office of
Compliance.
(g) ``Office'' means the Office of Compliance.
(h) ``Intern'' is an individual who (a) is performing services in
an employing office as part of a demonstrated educational plan, and (b)
is appointed on a temporary basis for a period not to exceed 12 months:
Provided, That if an intern is appointed for a period shorter than 12
months, the intern may be reappointed for additional periods as long as
the total length of the internship does not exceed 12 months: Provided
further, That the defintion of ``intern'' does not include volunteers,
fellows or pages.
Sec. C501.103 Coverage
The coverage of section 203 of the CAA extends to any covered
employee of an employing office without regard to whether the covered
employee is engaged in commerce or the production of goods for
interstate commerce and without regard to size, number of employees,
amount of business transacted, or other measure.
Sec. C501.104 Administrative authority
(a) The Office of Compliance is authorized to administer the
provisions of section 203 of the Act with respect to any covered
employee or covered employer.
(b) The Board is authorized to promulgate substantive regulations
in accordance with the provisions of sections 203(c) and 304 of the
CAA.
Sec. C501.105 Effect of interpretations of the Department of Labor
(a) In administering the FLSA, the Wage and Hour Division of the
Department of Labor has issued not only substantive regulations but
also interpretative bulletins. Substantive regulations represent an
exercise of statutorily-delegated lawmaking authority from the
legislative branch to an administrative agency. Generally, they are
proposed in accordance with the notice-and-comment procedures of the
Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once
promulgated, such regulations are considered to have the force and
effect of law, unless set aside upon judicial review as arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law. See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). See also
29 C.F.R. Sec. 790.17(b) (1994). Unlike substantive regulations,
interpretative statements, including bulletins and other releases of
the Wage and Hour Division, are not issued pursuant to the provisions
of the APA and may not have the force and effect of law. Rather, they
may only constitute official interpretations of the Department of Labor
with respect to the meaning and application of the minimum wage,
maximum hour, and overtime pay requirements of the FLSA. See 29 C.F.R.
Sec. 790.17(c) (citing Final Report of the Attorney General's Committee
on Administrative Procedure, Senate Document No. 8, 77th Cong., 1st
Sess., at p. 27 (1941)). The purpose of such statements is to make
available in one place the interpretations of the FLSA which will guide
the Secretary of Labor and the Wage and Hour Administrator in the
performance of their duties unless and until they are otherwise
directed by authoritative decisions of the courts or conclude, upon
reexamination of an interpretation, that it is incorrect. The Supreme
Court has observed: ``[T]he rulings, interpretations and opinions of
the Administrator under this Act, while not controlling upon the courts
by reason of their authority, do constitute a body of experience and
informed judgment to which courts and litigants may properly resort for
guidance. The weight of such a judgment in a particular case will
depend upon the thoroughness evident in the consideration, the validity
of its reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to persuade,
if lacking power to control.''. Skidmore v. Swift, 323 U.S. 134, 140
(1944).
(b) Section 203(c) of the CAA provides that the substantive
regulations implementing section 203 of the CAA shall be ``the same as
substantive regulations promulgated by the Secretary of Labor'' except
where the Board finds, for good cause shown, that a modification would
more effectively implement the rights and protections established by
the FLSA. Thus, the CAA by its terms does not mandate that the Board
adopt the interpretative statements of the Department of Labor or its
Wage and Hour Division. The Board is thus not adopting such statements
as part of its substantive regulations.
Sec. C501.106 Application of the Portal-to-Portal Act of 1947
(a) Consistent with section 225 of the CAA, the Portal-to-Portal
Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., is applicable in
defining and delimiting the rights and protections of the FLSA that are
prescribed by the CAA. Section 10 of the PPA, 29 U.S.C. Sec. 259,
provides in pertinent part: ``[N]o employer shall be subject to any
liability or punishment for or on account of the failure of the
employer to pay minimum wages or overtime compensation under the Fair
Labor Standards Act of 1938, as amended, . . . if he pleads and proves
that the act or omission complained of was in good faith in conformity
with and reliance on any written administrative regulation, order,
ruling, approval or interpretation of [the Administrator of the Wage
and Hour Division of the Department of Labor] . . . or any
administrative practice or enforcement policy of such agency with
respect to the class of employers to which he belonged. Such a defense,
if established shall be a bar to the action or proceeding,
notwithstanding that after such act or omission, such administrative
regulation, order, ruling, approval, interpretation, practice or
enforcement policy is modified or rescinded or is determined by
judicial authority to be invalid or of no legal effect.''.
(b) In defending any action or proceeding based on any act or
omission arising out of section 203 of the CAA, an employing office may
satisfy the standards set forth in subsection (a) by pleading and
proving good faith reliance upon any written administrative regulation,
order, ruling, approval or interpretation, of the Administrator of the
Wage and Hour Division of the Department of Labor: Provided, That such
regulation, order, ruling, approval or interpretation had not been
superseded at the time of reliance by any regulation, order, decision,
or ruling of the Board or the courts.
Sec. C501.107 [Reserved]
PART C531--WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT OF 1938
Subpart A--Preliminary Matters
Sec.
C531.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C531.1 Definitions.
C531.2 Purpose and scope.
Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value'';
Effects of Collective Bargaining Agreements
C531.3 General determinations of ``reasonable cost''.
C531.6 Effects of collective bargaining agreements.
Subpart A--Preliminary Matters
Sec. C531.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the sections of the Secretary of Labor
Regulations at Title 29 of the Code of Federal Regulations under the
FLSA with the corresponding sections of the Office of Compliance (OC)
Regulations under section 203 of the CAA:
Secretary of Labor regulations OC regulations
531.1 Definitions.................................... C531.1
531.2 Purpose and scope.............................. C531.2
531.3 General determinations of ``reasonable cost''.. C531.3
531.6 Effects of collective bargaining agreements.... C531.6
Sec. C531.1 Definitions
(a) ``Administrator'' means the Administrator of the Wage and Hour
Division or his authorized representative. The Secretary of Labor has
delegated to the Administrator the functions vested in him under
section 3(m) of the Act.
(b) ``Act'' means the Fair Labor Standards Act of 1938, as amended.
Sec. C531.2 Purpose and scope
(a) Section 3(m) of the Act defines the term ``wage'' to include
the ``reasonable cost'', as determined by the Secretary of Labor, to an
employer of furnishing any employee with board, lodging, or other
facilities, if such board, lodging, or other facilities are customarily
furnished by the employer to his employees. In addition, section 3(m)
gives the Secretary authority to determine the ``fair value'' of such
facilities on the basis of average cost to the employer or to groups of
employers similarly situated, on average value to groups of employees,
or other appropriate measures of ``fair value''. Whenever so determined
and when applicable and pertinent, the ``fair value'' of the facilities
involved shall be includable as part of ``wages'' instead of the actual
measure of the costs of those facilities. The section provides,
however, that the cost of board, lodging, or other facilities shall not
be included as part of ``wages'' if excluded therefrom by a bona fide
collective bargaining agreement. Section 3(m) also provides a method
for determining the wage of a tipped employee.
(b) This part 531 contains any determinations made as to the
``reasonable cost'' and ``fair value'' of board, lodging, or other
facilities having general application.
Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value'';
Effects of Collective Bargaining Agreements
Sec. C531.3 General determinations of ``reasonable cost''
(a) The term ``reasonable cost'' as used in section 3(m) of the Act
is hereby determined to be not more than the actual cost to the
employer of the board, lodging, or other facilities customarily
furnished by him to his employees.
(b) Reasonable cost does not include a profit to the employer or to
any affiliated person.
(c) The reasonable cost to the employer of furnishing the employee
with board, lodging, or other facilities (including housing) is the
cost of operation and maintenance including adequate depreciation plus
a reasonable allowance (not more than 5\1/2\ percent) for interest on
the depreciated amount of capital invested by the employer: Provided,
That if the total so computed is more than the fair rental value (or
the fair price of the commodities or facilities offered for sale), the
fair rental value (or the fair price of the commodities or facilities
offered for sale) shall be the reasonable cost. The cost of operation
and maintenance, the rate of depreciation, and the depreciated amount
of capital invested by the employer shall be those arrived at under
good accounting practices. As used in this paragraph, the term ``good
accounting practices'' does not include accounting practices which have
been rejected by the Internal Revenue Service for tax purposes, and the
term ``depreciation'' includes obsolescence.
(d)(1) The cost of furnishing ``facilities'' found by the
Administrator to be primarily for the benefit or convenience of the
employer will not be recognized as reasonable and may not therefore be
included in computing wages.
(2) The following is a list of facilities found by the
Administrator to be primarily for the benefit of convenience of the
employer. The list is intended to be illustrative rather than
exclusive: (i) Tools of the trade and other materials and services
incidental to carrying on the employer's business; (ii) the cost of any
construction by and for the employer; (iii) the cost of uniforms and of
their laundering, where the nature of the business requires the
employee to wear a uniform.
Sec. C531.6 Effects of collective bargaining agreements
(a) The cost of board, lodging, or other facilities shall not be
included as part of the wage paid to any employee to the extent it is
excluded therefrom under the terms of a bona fide collective bargaining
agreement applicable to the particular employee.
(b) A collective bargaining agreement shall be deemed to be ``bona
fide'' when pursuant to the provisions of section 7(b)(1) or 7(b)(2) of
the FLSA it is made with the certified representative of the employees
under the provisions of the CAA.
PART C541--DEFINING AND DELIMITING THE TERMS ``BONA FIDE EXECUTIVE'',
``ADMINISTRATIVE'', OR ``PROFESSIONAL'' CAPACITY (INCLUDING ANY
EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL
OR TEACHER IN SECONDARY SCHOOL)
Subpart A--General Regulations
Sec.
C541.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C541.01 Application of the exemptions of section 13(a)(1) of the FLSA.
C541.1 Executive.
C541.2 Administrative.
C541.3 Professional.
C541.5b Equal pay provisions of section 6(d) of the FLSA as applied by
the CAA extend to executive,
administrative, and professional employees.
C541.5d Special provisions applicable to employees of public agencies.
Subpart A--General Regulations
Sec. C541.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the sections of the Secretary of Labor
Regulations at Title 29 of the Code of Federal Regulations under the
FLSA with the corresponding sections of the Office of Compliance (OC)
Regulations under section 203 of the CAA:
Secretary of Labor Regulations OC Regulations
541.1 Executive...................................... C541.1
541.2 Administrative................................. C541.2
541.3 Professional................................... C541.3
541.5b Equal pay provisions of section 6(d) of the C541.5b
FLSA apply to executive, administrative, and
professional employees..
541.5d Special provisions applicable to employees of C541.5d
public agencies.
Sec. C541.01 Application of the exemptions of section 13(a)(1) of the
FLSA
(a) Section 13(a)(1) of the FLSA, which provides certain exemptions
for employees employed in a bona fide executive, administrative, or
professional capacity (including any employee employed in the capacity
of academic administrative personnel or teacher in a secondary school),
applies to covered employees by virtue of section 225(f)(1) of the CAA.
(b) The substantive regulations set forth in this part are
promulgated under the authority of sections 203(c)and 304 of the CAA,
which require that such regulations be the same as the substantive
regulations promulgated by the Secretary of Labor except where the
Board determines for good cause shown that modifications would be more
effective for the implementation of the rights and protections under
Sec. 203.
Sec. C541.1 Executive
The term ``employee employed in a bona fide executive * * *
capacity'' in section 13(a)(1) of the FLSA as applied by the CAA shall
mean any employee:
(a) Whose primary duty consists of the management of an employing
office in which he is employed or of a customarily recognized
department or subdivision thereof; and
(b) Who customarily and regularly directs the work of two or more
other employees therein; and
(c) Who has the authority to hire or fire other employees or whose
suggestions and recommendations as to the hiring or firing and as to
the advancement and promotion or any other change of status of other
employees will be given particular weight; and
(d) Who customarily and regularly exercises discretionary powers;
and
(e) Who does not devote more than 20 percent, or, in the case of an
employee of a retail or service establishment who does not devote as
much as 40 percent, of his hours of work in the workweek to activities
which are not directly and closely related to the performance of the
work described in paragraphs (a) through (d) of this section: Provided,
That this paragraph shall not apply in the case of an employee who is
in sole charge of an independent establishment or a physically
separated branch establishment; and
(f) Who is compensated for his services on a salary basis at a rate
of not less than $155 per week, exclusive of board, lodging or other
facilities: Provided, That an employee who is compensated on a salary
basis at a rate of not less than $250 per week, exclusive of board,
lodging or other facilities, and whose primary duty consists of the
management of the employing office in which the employee is employed or
of a customarily recognized department or subdivision thereof, and
includes the customary and regular direction of the work of two or more
other employees therein, shall be deemed to meet all the requirements
of this section.
Sec. C541.2 Administrative
The term ``employee employed in a bona fide * * * administrative *
* * capacity'' in section 13(a)(1) of the FLSA as applied by the CAA
shall mean any employee:
(a) Whose primary duty consists of either:
(1) The performance of office or nonmanual work directly
related to management policies or general operations of his
employer or his employer's customers, or
(2) The performance of functions in the administration of a
school system, or educational establishment or institution, or
of a department or subdivision thereof, in work directly
related to the academic instruction or training carried on
therein; and
(b) Who customarily and regularly exercises discretion and
independent judgment; and
(c)(1) Who regularly and directly assists the head of an employing
office, or an employee employed in a bona fide executive or
administrative capacity (as such terms are defined in the regulations
of this subpart), or
(2) Who performs under only general supervision work along
specialized or technical lines requiring special training, experience,
or knowledge, or
(3) Who executes under only general supervision special assignments
and tasks; and
(d) Who does not devote more than 20 percent, or, in the case of an
employee of a retail or service establishment who does not devote as
much as 40 percent, of his hours worked in the workweek to activities
which are not directly and closely related to the performance of the
work described in paragraphs (a) through (c) of this section; and
(e)(1) Who is compensated for his services on a salary or fee basis
at a rate of not less than $155 per week, exclusive of board, lodging
or other facilities, or
(2) Who, in the case of academic administrative personnel, is
compensated for services as required by paragraph (e)(1) of this
section, or on a salary basis which is at least equal to the entrance
salary for teachers in the school system, educational establishment or
institution by which employed: Provided, That an employee who is
compensated on a salary or fee basis at a rate of not less than $250
per week, exclusive of board, lodging or other facilities, and whose
primary duty consists of the performance of work described in paragraph
(a) of this section, which includes work requiring the exercise of
discretion and independent judgment, shall be deemed to meet all the
requirements of this section.
Sec. C541.3 Professional
The term ``employee employed in a bona fide * * * professional
capacity'' in section 13(a)(1) of the FLSA as applied by the CAA shall
mean any employee:
(a) Whose primary duty consists of the performance of:
(1) Work requiring knowledge of an advance type in a field
of science or learning customarily acquired by a prolonged
course of specialized intellectual instruction and study, as
distinguished from a general academic education and from an
apprenticeship, and from training in the performance of routine
mental, manual, or physical processes, or
(2) Work that is original and creative in character in a
recognized field of artistic endeavor (as opposed to work which
can be produced by a person endowed with general manual or
intellectual ability and training), and the result of which
depends primarily on the invention, imagination, or talent of
the employee, or
(3) Teaching, tutoring, instructing, or lecturing in the
activity of imparting knowledge and who is employed and engaged
in this activity as a teacher in a school system, educational
establishment or institution by which employed, or
(4) Work that requires theoretical and practical
application of highly-specialized knowledge in computer systems
analysis, programming, and software engineering, and who is
employed and engaged in these activities as a computer systems
analyst, computer programmer, software engineer, or other
similarly skilled worker in the computer software field; and
(b) Whose work requires the consistent exercise of discretion and
judgment in its performance; and
(c) Whose work is predominantly intellectual and varied in
character (as opposed to routine mental, manual, mechanical, or
physical work) and is of such character that the output produced or the
result accomplished cannot be standardized in relation to a given
period of time; and
(d) Who does not devote more than 20 percent of his hours worked in
the workweek to activities which are not an essential part of and
necessarily incident to the work described in paragraphs (a) through
(c) of this section; and
(e) Who is compensated for services on a salary or fee basis at a
rate of not less than $170 per week, exclusive of board, lodging or
other facilities: Provided, That this paragraph shall not apply in the
case of an employee who is the holder of a valid license or certificate
permitting the practice of law or medicine or any of their branches and
who is actually engaged in the practice thereof, nor in the case of an
employee who is the holder of the requisite academic degree for the
general practice of medicine and is engaged in an internship or
resident program pursuant to the practice of medicine or any of its
branches, nor in the case of an employee employed and engaged as a
teacher as provided in paragraph (a)(3) of this section: Provided
further, That an employee who is compensated on a salary or fee basis
at a rate of not less than $250 per week, exclusive of board, lodging
or other facilities, and whose primary duty consists of the performance
either of work described in paragraph (a) (1), (3), or (4) of this
section, which includes work requiring the consistent exercise of
discretion and judgment, or of work requiring invention, imagination,
or talent in a recognized field of artistic endeavor, shall be deemed
to meet all of the requirements of this section: Provided further, That
the salary or fee requirements of this paragraph shall not apply to an
employee engaged in computer-related work within the scope of paragraph
(a)(4) of this section and who is compensated on an hourly basis at a
rate in excess of 6\1/2\ times the minimum wage provided by section 6
of the FLSA as applied by the CAA.
Sec. C541.5b Equal pay provisions of section 6(d) of the FLSA as
applied by the CAA extend to executive, administrative,
and professional employees
The FLSA, as amended and as applied by the CAA, includes within the
protection of the equal pay provisions those employees exempt from the
minimum wage and overtime pay provisions as bona fide executive,
administrative, and professional employees (including any employee
employed in the capacity of academic administrative personnel or
teacher in elementary or secondary schools) under section 13(a)(1) of
the FLSA. Thus, for example, where an exempt administrative employee
and another employee of the employing office are performing
substantially ``equal work'', the sex discrimination prohibitions of
section 6(d) are applicable with respect to any wage differential
between those two employees.
Sec. C541.5d Special provisions applicable to employees of public
agencies
(a) An employee of a public agency who otherwise meets the
requirement of being paid on a salary basis shall not be disqualified
from exemption under section C541.1, C541.2, or C541.3 on the basis
that such employee is paid according to a pay system established by
statute, ordinance, or regulation, or by a policy or practice
established pursuant to principles of public accountability, under
which the employee accrues personal leave and sick leave and which
requires the public agency employee's pay to be reduced or such
employee to be placed on leave without pay for absences for personal
reasons or because of illness or injury of less than one workday when
accrued leave is not used by an employee because--(1) permission for
its use has not been sought or has been sought and denied; (2) accrued
leave has been exhausted; or (3) the employee chooses to use leave
without pay.
(b) Deductions from the pay of an employee of a public agency for
absences due to a budget-required furlough shall not disqualify the
employee from being paid ``on a salary basis'' except in the workweek
in which the furlough occurs and for which the employee's pay is
accordingly reduced.
PART C547--REQUIREMENTS OF A ``BONA FIDE THRIFT OR SAVINGS PLAN''
Sec.
C547.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C547.0 Scope and effect of part.
C547.1 Essential requirements of qualifications.
C547.2 Disqualifying provisions.
Sec. C547.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the sections of the Secretary of Labor
Regulations under the FLSA with the corresponding sections of the
Office of Compliance (OC) Regulations under section 203 of the CAA:
Secretary of Labor regulations OC regulations
547.0 Scope and effect of part....................... C547.0
547.1 Essential requirements of qualifications....... C547.1
547.2 Disqualifying provisions....................... C547.2
Sec. C547.0 Scope and effect of part
(a) The regulations in this part set forth the requirements of a
``bona fide thrift or savings plan'' under section 7(e)(3)(b) of the
Fair Labor Standards Act of 1938, as amended (FLSA), as applied by the
CAA. In determining the total remuneration for employment which section
7(e) of the FLSA requires to be included in the regular rate at which
an employee is employed, it is not necessary to include any sums paid
to or on behalf of such employee, in recognition of services performed
by him during a given period, which are paid pursuant to a bona fide
thrift or savings plan meeting the requirements set forth herein. In
the formulation of these regulations due regard has been given to the
factors and standards set forth in section 7(e)(3)(b) of the Act.
(b) Where a thrift or savings plan is combined in a single program
(whether in one or more documents) with a plan or trust for providing
old age, retirement, life, accident or health insurance or similar
benefits for employees, contributions made by the employer pursuant to
such thrift or savings plan may be excluded from the regular rate if
the plan meets the requirements of the regulation in this part and the
contributions made for the other purposes may be excluded from the
regular rate if they meet the tests set forth in regulations.
Sec. C547.1 Essential requirements for qualifications
(a) A ``bona fide thrift or savings plan'' for the purpose of
section 7(e)(3)(b) of the FLSA as applied by the CAA is required to
meet all the standards set forth in paragraphs (b) through (f) of this
section and must not contain the disqualifying provisions set forth in
Sec. 547.2.
(b) The thrift or savings plan constitutes a definite program or
arrangement in writing, adopted by the employer or by contract as a
result of collective bargaining and communicated or made available to
the employees, which is established and maintained, in good faith, for
the purpose of encouraging voluntary thrift or savings by employees by
providing an incentive to employees to accumulate regularly and retain
cash savings for a reasonable period of time or to save through the
regular purchase of public or private securities.
(c) The plan specifically shall set forth the category or
categories of employees participating and the basis of their
eligibility. Eligibility may not be based on such factors as hours of
work, production, or efficiency of the employees: Provided, however,
That hours of work may be used to determine eligibility of part-time or
casual employees.
(d) The amount any employee may save under the plan shall be
specified in the plan or determined in accordance with a definite
formula specified in the plan, which formula may be based on one or
more factors such as the straight-time earnings or total earnings, base
rate of pay, or length of service of the employee.
(e) The employer's total contribution in any year may not exceed 15
percent of the participating employees' total earnings during that
year. In addition, the employer's total contribution in any year may
not exceed the total amount saved or invested by the participating
employees during that year.
(f) The employer's contributions shall be apportioned among the
individual employees in accordance with a definite formula or method of
calculation specified in the plan, which formula or method of
calculation is based on the amount saved or the length of time the
individual employee retains his savings or investment in the plan:
Provided, That no employee's share determined in accordance with the
plan may be diminished because of any other remuneration received by
him.
Sec. C547.2 Disqualifying provisions
(a) No employee's participation in the plan shall be on other than
a voluntary basis.
(b) No employee's wages or salary shall be dependent upon or
influenced by the existence of such thrift or savings plan or the
employer's contributions thereto.
(c) The amounts any employee may save under the plan, or the
amounts paid by the employer under the plan may not be based upon the
employee's hours of work, production or efficiency.
PART C553--OVERTIME COMPENSATION: PARTIAL EXEMPTION FOR EMPLOYEES
ENGAGED IN LAW ENFORCEMENT AND FIRE PROTECTION; OVERTIME AND
COMPENSATORY TIME-OFF FOR EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY
DEPENDS UPON THE SCHEDULE OF THE HOUSE
introduction
Sec.
C553.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C553.1 Definitions.
C553.2 Purpose and scope.
Subpart C--Partial Exemption for Employees Engaged in Law Enforcement
and Fire Protection
C553.201 Statutory provisions: section 7(k).
C553.202 Limitations.
C553.211 Law enforcement activities.
C553.212 Twenty percent limitation on nonexempt work.
C553.213 Public agency employees engaged in both fire protection and
law enforcement activities.
C553.214 Trainees.
C553.215 Ambulance and rescue service employees.
C553.216 Other exemptions.
C553.220 ``Tour of duty'' defined.
C553.221 Compensable hours of work.
C553.222 Sleep time.
C553.223 Meal time.
C553.224 ``Work period'' defined.
C553.225 Early relief.
C553.226 Training time.
C553.227 Outside employment.
C553.230 Maximum hours standards for work periods of 7 to 28 days--
section 7(k).
C553.231 Compensatory time off.
C553.232 Overtime pay requirements.
C553.233 ``Regular rate'' defined.
Subpart D--Compensatory Time-off for Overtime Earned by Employees Whose
Work Schedule Directly Depends Upon the Schedule of the House
C553.301 Definition of ``directly depends''.
C553.302 Overtime compensation and compensatory time off for an
employee whose work schedule directly
depends upon the schedule of the House.
C553.303 Using compensatory time off.
C553.304 Payment of overtime compensation for accrued compensatory time
off as of termination of service.
introduction
Sec. C553.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the sections of the Secretary of Labor
Regulations under the FLSA with the corresponding sections of the
Office of Compliance (OC) Regulations under section 203 of the CAA:
Secretary of Labor regulations OC regulations
553.1 Definitions.................................... C553.1
553.2 Purpose and scope.............................. C553.2
553.201 Statutory provisions: section 7(k)........... C553.201
553.202 Limitations.................................. C553.202
553.211 Law enforcement activities................... C553.211
553.212 Twenty percent limitation on nonexempt work.. C553.212
553.213 Public agency employees engaged in both fire C553.213
protection and law enforcement activities.
553.214 Trainees..................................... C553.214
553.215 Ambulance and rescue service employees....... C553.215
553.216 Other exemptions............................. C553.216
553.220 ``Tour of duty'' defined..................... C553.220
553.221 Compensable hours of work.................... C553.221
553.222 Sleep time................................... C553.222
553.223 Meal time.................................... C553.223
553.224 ``Work period'' defined...................... C553.224
553.225 Early relief................................. C553.225
553.226 Training time................................ C553.226
553.227 Outside employment........................... C553.227
553.230 Maximum hours standards for work periods of 7 C553.230
to 28 days--section 7(k).
553.231 Compensatory time off........................ C553.231
553.232 Overtime pay requirements.................... C553.232
553.233 ``Regular rate'' defined..................... C553.233
introduction
Sec. C553.1 Definitions
(a) ``Act'' or ``FLSA'' means the Fair Labor Standards Act of 1938,
as amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219), as applied
by the CAA.
(b) ``1985 Amendments'' means the Fair Labor Standards Amendments
of 1985 (Pub. L. 99-150).
(c) ``Public agency'' means an employing office as the term is
defined in Sec. 501.102 of this chapter, including the Capitol Police.
(d) Section 7(k) means the provisions of Sec. 7(k) of the FLSA as
applied to covered employees and employing offices by Sec. 203 of the
CAA.
Sec. C553.2 Purpose and scope
The purpose of part C553 is to adopt with appropriate modifications
the regulations of the Secretary of Labor to carry out those provisions
of the FLSA relating to public agency employees as they are applied to
covered employees and employing offices of the CAA. In particular,
these regulations apply section 7(k) as it relates to fire protection
and law enforcement employees of public agencies.
Subpart C--Partial Exemption for Employees Engaged in Law Enforcement
and Fire Protection
Sec. C553.201 Statutory provisions: section 7(k).
Section 7(k) of the Act provides a partial overtime pay exemption
for fire protection and law enforcement personnel (including security
personnel in correctional institutions) who are employed by public
agencies on a work period basis. This section of the Act formerly
permitted public agencies to pay overtime compensation to such
employees in work periods of 28 consecutive days only after 216 hours
of work. As further set forth in Sec. C553.230 of this part, the 216-
hour standard has been replaced, pursuant to the study mandated by the
statute, by 212 hours for fire protection employees and 171 hours for
law enforcement employees. In the case of such employees who have a
work period of at least 7 but less than 28 consecutive days, overtime
compensation is required when the ratio of the number of hours worked
to the number of days in the work period exceeds the ratio of 212 (or
171) hours to 28 days.
Sec. C553.202 Limitations
The application of Sec. 7(k), by its terms, is limited to public
agencies, and does not apply to any private organization engaged in
furnishing fire protection or law enforcement services. This is so even
if the services are provided under contract with a public agency.
exemption requirements
Sec. C553.211 Law enforcement activities
(a) As used in Sec. 7(k) of the Act, the term ``any employee . . .
in law enforcement activities'' refers to any employee (1) who is a
uniformed or plainclothed member of a body of officers and subordinates
who are empowered by law to enforce laws designed to maintain public
peace and order and to protect both life and property from accidental
or willful injury, and to prevent and detect crimes, (2) who has the
power to arrest, and (3) who is presently undergoing or has undergone
or will undergo on-the-job training and/or a course of instruction and
study which typically includes physical training, self-defense, firearm
proficiency, criminal and civil law principles, investigative and law
enforcement techniques, community relations, medical aid and ethics.
(b) Employees who meet these tests are considered to be engaged in
law enforcement activities regardless of their rank, or of their status
as ``trainee'', ``probationary'', or ``permanent'', and regardless of
their assignment to duties incidental to the performance of their law
enforcement activities such as equipment maintenance, and lecturing, or
to support activities of the type described in paragraph (g) of this
section, whether or not such assignment is for training or
familiarization purposes, or for reasons of illness, injury or
infirmity. The term would also include rescue and ambulance service
personnel if such personnel form an integral part of the public
agency's law enforcement activities. See section C553.215.
(c) Typically, employees engaged in law enforcement activities
include police who are regularly employed and paid as such. Other
agency employees with duties not specifically mentioned may, depending
upon the particular facts and pertinent statutory provisions in that
jurisdiction, meet the three tests described above. If so, they will
also qualify as law enforcement officers. Such employees might include,
for example, any law enforcement employee within the legislative branch
concerned with keeping public peace and order and protecting life and
property.
(d) Employees who do not meet each of the three tests described
above are not engaged in (law enforcement activities' as that term is
used in section 7(k). Employees who normally would not meet each of
these tests include:
(1) Building inspectors (other than those defined in
section C553.213(a)),
(2) Health inspectors,
(3) Sanitarians,
(4) Civilian traffic employees who direct vehicular and
pedestrian traffic at specified intersections or other control
points,
(5) Civilian parking checkers who patrol assigned areas for
the purpose of discovering parking violations and issuing
appropriate warnings or appearance notices,
(6) Wage and hour compliance officers,
(7) Equal employment opportunity compliance officers, and
(8) Building guards whose primary duty is to protect the
lives and property of persons within the limited area of the
building.
(e) The term ``any employee in law enforcement activities'' also
includes, by express reference, ``security personnel in correctional
institutions''. Typically, such facilities may include precinct house
lockups. Employees of correctional institutions who qualify as security
personnel for purposes of the section 7(k) exemption are those who have
responsibility for controlling and maintaining custody of inmates and
of safeguarding them from other inmates or for supervising such
functions, regardless of whether their duties are performed inside the
correctional institution or outside the institution. These employees
are considered to be engaged in law enforcement activities regardless
of their rank or of their status as ``trainee'', ``probationary'', or
``permanent'', and regardless of their assignment to duties incidental
to the performance of their law enforcement activities, or to support
activities of the type described in paragraph (f) of this section,
whether or not such assignment is for training or familiarization
purposes or for reasons of illness, injury or infirmity.
(f) Not included in the term ``employee in law enforcement
activities'' are the so-called ``civilian'' employees of law
enforcement agencies or correctional institutions who engage in such
support activities as those performed by dispatcher, radio operators,
apparatus and equipment maintenance and repair workers, janitors,
clerks and stenographers. Nor does the term include employees in
correctional institutions who engage in building repair and
maintenance, culinary services, teaching, or in psychological, medical
and paramedical services. This is so even though such employees may,
when assigned to correctional institutions, come into regular contact
with the inmates in the performance of their duties.
Sec. C553.212 Twenty percent limitation on nonexempt work
(a) Employees engaged in fire protection or law enforcement
activities as described in sections C553.210 and C553.211, may also
engage in some nonexempt work which is not performed as an incident to
or in conjunction with their fire protection or law enforcement
activities. For example, firefighters who work for forest conservation
agencies may, during slack times, plant trees and perform other
conservation activities unrelated to their firefighting duties. The
performance of such nonexempt work will not defeat the Sec. 7(k)
exemption unless it exceeds 20 percent of the total hours worked by
that employee during the workweek or applicable work period. A person
who spends more than 20 percent of his/her working time in nonexempt
activities is not considered to be an employee engaged in fire
protection or law enforcement activities for purposes of this part.
(b) Public agency fire protection and law enforcement personnel
may, at their own option, undertake employment for the same employer on
an occasional or sporadic and part-time basis in a different capacity
from their regular employment. The performance of such work does not
affect the application of the Sec. 7(k) exemption with respect to the
regular employment. In addition, the hours of work in the different
capacity need not be counted as hours worked for overtime purposes on
the regular job, nor are such hours counted in determining the 20
percent tolerance for nonexempt work discussed in paragraph (a) of this
section.
Sec. C553.213 Public agency employees engaged in both fire protection
and law enforcement activities
(a) Some public agencies have employees (often called ``public
safety officers'') who engage in both fire protection and law
enforcement activities, depending on the agency needs at the time. This
dual assignment would not defeat the section 7(k) exemption, provided
that each of the activities performed meets the appropriate tests set
forth in sections C553.210 and C553.211. This is so regardless of how
the employee's time is divided between the two activities. However, all
time spent in nonexempt activities by public safety officers within the
work period, whether performed in connection with fire protection or
law enforcement functions, or with neither, must be combined for
purposes of the 20 percent limitation on nonexempt work discussed in
section C553.212.
(b) As specified in section C553.230, the maximum hours standards
under section 7(k) are different for employees engaged in fire
protection and for employees engaged in law enforcement. For those
employees who perform both fire protection and law enforcement
activities, the applicable standard is the one which applies to the
activity in which the employee spends the majority of work time during
the work period.
Sec. C553.214 Trainees
The attendance at a bona fide fire or police academy or other
training facility, when required by the employing agency, constitutes
engagement in activities under section 7(k) only when the employee
meets all the applicable tests described in section C553.210 or section
C553.211 (except for the power of arrest for law enforcement
personnel), as the case may be. If the applicable tests are met, then
basic training or advanced training is considered incidental to, and
part of, the employee's fire protection or law enforcement activities.
Sec. C553.215 Ambulance and rescue service employees
Ambulance and rescue service employees of a public agency other
than a fire protection or law enforcement agency may be treated as
employees engaged in fire protection or law enforcement activities of
the type contemplated by Sec. 7(k) if their services are substantially
related to firefighting or law enforcement activities in that (1) the
ambulance and rescue service employees have received training in the
rescue of fire, crime, and accident victims or firefighters or law
enforcement personnel injured in the performance of their respective
duties, and (2) the ambulance and rescue service employees are
regularly dispatched to fires, crime scenes, riots, natural disasters
and accidents. As provided in section C553.213(b), where employees
perform both fire protection and law enforcement activities, the
applicable standard is the one which applies to the activity in which
the employee spends the majority of work time during the work period.
Sec. C553.216 Other exemptions
Although the 1974 Amendments to the FLSA as applied by the CAA
provide special exemptions for employees of public agencies engaged in
fire protection and law enforcement activities, such workers may also
be subject to other exemptions in the Act, and public agencies may
claim such other applicable exemptions in lieu of Sec. 7(k). For
example, section 13(a)(1) as applied by the CAA provides a complete
minimum wage and overtime pay exemption for any employee employed in a
bona fide executive, administrative, or professional capacity, as those
terms are defined and delimited in part C541. The section 13(a)(1)
exemption can be claimed for any fire protection or law enforcement
employee who meets all of the tests specified in part C541 relating to
duties, responsibilities, and salary. Thus, high ranking police
officials who are engaged in law enforcement activities, may also,
depending on the facts, qualify for the section 13(a)(1) exemption as
``executive'' employees. Similarly, certain criminal investigative
agents may qualify as ``administrative'' employees under section
13(a)(1).
tour of duty and compensable hours of work rules
Sec. C553.220 ``Tour of duty'' defined
(a) The term ``tour of duty'' is a unique concept applicable only
to employees for whom the section 7(k) exemption is claimed. This term,
as used in section 7(k), means the period of time during which an
employee is considered to be on duty for purposes of determining
compensable hours. It may be a scheduled or unscheduled period. Such
periods include ``shifts'' assigned to employees often days in advance
of the performance of the work. Scheduled periods also include time
spent in work outside the ``shift'' which the public agency employer
assigns. For example, a police officer may be assigned to crowd control
during a parade or other special event outside of his or her shift.
(b) Unscheduled periods include time spent in court by police
officers, time spent handling emergency situations, and time spent
working after a shift to complete an assignment. Such time must be
included in the compensable tour of duty even though the specific work
performed may not have been assigned in advance.
(c) The tour of duty does not include time spent working for a
separate and independent employer in certain types of special details
as provided in section C553.227.
Sec. C553.221 Compensable hours of work
(a) The rules under the FLSA as applied by the CAA on compensable
hours of work are applicable to employees for whom the section 7(k)
exemption is claimed. Special rules for sleep time (section C553.222)
apply to both law enforcement and firefighting employees for whom the
section 7(k) exemption is claimed. Also, special rules for meal time
apply in the case of firefighters (section C553.223).
(b) Compensable hours of work generally include all of the time
during which an employee is on duty on the employer's premises or at a
prescribed workplace, as well as all other time during which the
employee is suffered or permitted to work for the employer. Such time
includes all pre-shift and post-shift activities which are an integral
part of the employee's principal activity or which are closely related
to the performance of the principal activity, such as attending roll
call, writing up and completing tickets or reports, and washing and re-
racking fire hoses.
(c) Time spent away from the employer's premises under conditions
that are so circumscribed that they restrict the employee from
effectively using the time for personal pursuits also constitutes
compensable hours of work. For example, where a police station must be
evacuated because of an electrical failure and the employees are
expected to remain in the vicinity and return to work after the
emergency has passed, the entire time spent away from the premises is
compensable. The employees in this example cannot use the time for
their personal pursuits.
(d) An employee who is not required to remain on the employer's
premises but is merely required to leave word at home or with company
officials where he or she may be reached is not working while on call.
Time spent at home on call may or may not be compensable depending on
whether the restrictions placed on the employee preclude using the time
for personal pursuits. Where, for example, a firefighter has returned
home after the shift, with the understanding that he or she is expected
to return to work in the event of an emergency in the night, such time
spent at home is normally not compensable. On the other hand, where the
conditions placed on the employee's activities are so restrictive that
the employee cannot use the time effectively for personal pursuits,
such time spent on call is compensable.
(e) Normal home to work travel is not compensable, even where the
employee is expected to report to work at a location away from the
location of the employer's premises.
(f) A police officer, who has completed his or her tour of duty and
who is given a patrol car to drive home and use on personal business,
is not working during the travel time even where the radio must be left
on so that the officer can respond to emergency calls. Of course, the
time spent in responding to such calls is compensable.
Sec. C553.222 Sleep time
(a) Where a public agency elects to pay overtime compensation to
firefighters and/or law enforcement personnel in accordance with
section 7(a)(1) of the Act, the public agency may exclude sleep time
from hours worked if all the conditions for the exclusion of such time
are met.
(b) Where the employer has elected to use the section 7(k)
exemption, sleep time cannot be excluded from the compensable hours of
work where--
(1) the employee is on a tour of duty of less than 24
hours, and
(2) the employee is on a tour of duty of exactly 24 hours.
(c) Sleep time can be excluded from compensable hours of work,
however, in the case of police officers or firefighters who are on a
tour of duty of more than 24 hours, but only if there is an expressed
or implied agreement between the employer and the employees to exclude
such time. In the absence of such an agreement, the sleep time is
compensable. In no event shall the time excluded as sleep time exceed 8
hours in a 24-hour period. If the sleep time is interrupted by a call
to duty, the interruption must be counted as hours worked. If the sleep
period is interrupted to such an extent that the employee cannot get a
reasonable night's sleep (which, for enforcement purposes means at
least 5 hours), the entire time must be counted as hours of work.
Sec. C553.223 Meal time
(a) If a public agency elects to pay overtime compensation to
firefighters and law enforcement personnel in accordance with section
7(a)(1) of the Act, the public agency may exclude meal time from hours
worked if all the statutory tests for the exclusion of such time are
met.
(b) If a public agency elects to use the section 7(k) exemption,
the public agency may, in the case of law enforcement personnel,
exclude meal time from hours worked on tours of duty of 24 hours or
less: Provided, That the employee is completely relieved from duty
during the meal period, and all the other statutory tests for the
exclusion of such time are met. On the other hand, where law
enforcement personnel are required to remain on call in barracks or
similar quarters, or are engaged in extended surveillance activities
(e.g., stakeouts), they are not considered to be completely relieved
from duty, and any such meal periods would be compensable.
(c) With respect to firefighters employed under section 7(k), who
are confined to a duty station, the legislative history of the Act
indicates congressional intent to mandate a departure from the usual
FLSA ``hours of work'' rules and adoption of an overtime standard keyed
to the unique concept of ``tour of duty'' under which firefighters are
employed. Where the public agency elects to use the section 7(k)
exemption for firefighters, meal time cannot be excluded from the
compensable hours of work where (1) the firefighter is on a tour of
duty of less than 24 hours, and (2) where the firefighter is on a tour
of duty of exactly 24 hours.
(d) In the case of police officers or firefighters who are on a
tour of duty of more than 24 hours, meal time may be excluded from
compensable hours of work provided that the statutory tests for
exclusion of such hours are met.
Sec. C553.224 ``Work period'' defined
(a) As used in section 7(k), the term ``work period'' refers to any
established and regularly recurring period of work which, under the
terms of the Act and legislative history, cannot be less than 7
consecutive days nor more than 28 consecutive days. Except for this
limitation, the work period can be of any length, and it need not
coincide with the duty cycle or pay period or with a particular day of
the week or hour of the day. Once the beginning and ending time of an
employee's work period is established, however, it remains fixed
regardless of how many hours are worked within the period. The
beginning and ending of the work period may be changed: Provided, That
the change is intended to be permanent and is not designed to evade the
overtime compensation requirements of the Act.
(b) An employer may have one work period applicable to all
employees, or different work periods for different employees or groups
of employees.
Sec. C553.225 Early relief
It is a common practice among employees engaged in fire protection
activities to relieve employees on the previous shift prior to the
scheduled starting time. Such early relief time may occur pursuant to
employee agreement, either expressed or implied. This practice will not
have the effect of increasing the number of compensable hours of work
for employees employed under section 7(k) where it is voluntary on the
part of the employees and does not result, over a period of time, in
their failure to receive proper compensation for all hours actually
worked. On the other hand, if the practice is required by the employer,
the time involved must be added to the employee's tour of duty and
treated as compensable hours of work.
Sec. C553.226 Training time
(a) The general rules for determining the compensability of
training time under the FLSA apply to employees engaged in law
enforcement or fire protection activities.
(b) While time spent in attending training required by an employer
is normally considered compensable hours of work, following are
situations where time spent by employees in required training is
considered to be noncompensable:
(1) Attendance outside of regular working hours at
specialized or follow-up training, which is required by law for
certification of public and private sector employees within a
particular governmental jurisdiction (e.g., certification of
public and private emergency rescue workers), does not
constitute compensable hours of work for public employees
within that jurisdiction and subordinate jurisdictions.
(2) Attendance outside of regular working hours at
specialized or follow-up training, which is required for
certification of employees of a governmental jurisdiction by
law of a higher level of government, does not constitute
compensable hours of work.
(3) Time spent in the training described in paragraphs (b)
(1) or (2) of this section is not compensable, even if all or
part of the costs of the training is borne by the employer.
(c) Police officers or firefighters, who are in attendance at a
police or fire academy or other training facility, are not considered
to be on duty during those times when they are not in class or at a
training session, if they are free to use such time for personal
pursuits. Such free time is not compensable.
Sec. C553.227 Outside employment
(a) Section 7(p)(1) makes special provision for fire protection and
law enforcement employees of public agencies who, at their own option,
perform special duty work in fire protection, law enforcement or
related activities for a separate and independent employer (public or
private) during their off-duty hours. The hours of work for the
separate and independent employer are not combined with the hours
worked for the primary public agency employer for purposes of overtime
compensation.
(b) Section 7(p)(1) applies to such outside employment provided (1)
the special detail work is performed solely at the employee's option,
and (2) the two employers are in fact separate and independent.
(c) Whether two employers are, in fact, separate and independent
can only be determined on a case-by-case basis.
(d) The primary employer may facilitate the employment or affect
the conditions of employment of such employees. For example, a police
department may maintain a roster of officers who wish to perform such
work. The department may also select the officers for special details
from a list of those wishing to participate, negotiate their pay, and
retain a fee for administrative expenses. The department may require
that the separate and independent employer pay the fee for such
services directly to the department, and establish procedures for the
officers to receive their pay for the special details through the
agency's payroll system. Finally, the department may require that the
officers observe their normal standards of conduct during such details
and take disciplinary action against those who fail to do so.
(e) Section 7(p)(1) applies to special details even where a State
law or local ordinance requires that such work be performed and that
only law enforcement or fire protection employees of a public agency in
the same jurisdiction perform the work. For example, a city ordinance
may require the presence of city police officers at a convention center
during concerts or sports events. If the officers perform such work at
their own option, the hours of work need not be combined with the hours
of work for their primary employer in computing overtime compensation.
(f) The principles in paragraphs (d) and (e) of this section with
respect to special details of public agency fire protection and law
enforcement employees under section 7(p)(1) are exceptions to the usual
rules on joint employment set forth in part 791 of this title.
(g) Where an employee is directed by the public agency to perform
work for a second employer, section 7(p)(1) does not apply. Thus,
assignments of police officers outside of their normal work hours to
perform crowd control at a parade, where the assignments are not solely
at the option of the officers, would not qualify as special details
subject to this exception. This would be true even if the parade
organizers reimburse the public agency for providing such services.
(h) Section 7(p)(1) does not prevent a public agency from
prohibiting or restricting outside employment by its employees.
overtime compensation rules
Sec. C553.230 Maximum hours standards for work periods of 7 to 28
days--section 7(k)
(a) For those employees engaged in fire protection activities who
have a work period of at least 7 but less than 28 consecutive days, no
overtime compensation is required under section 7(k) until the number
of hours worked exceeds the number of hours which bears the same
relationship to 212 as the number of days in the work period bears to
28.
(b) For those employees engaged in law enforcement activities
(including security personnel in correctional institutions) who have a
work period of at least 7 but less than 28 consecutive days, no
overtime compensation is required under section 7(k) until the number
of hours worked exceeds the number of hours which bears the same
relationship to 171 as the number of days in the work period bears to
28.
(c) The ratio of 212 hours to 28 days for employees engaged in fire
protection activities is 7.57 hours per day (rounded) and the ratio of
171 hours to 28 days for employees engaged in law enforcement
activities is 6.11 hours per day (rounded). Accordingly, overtime
compensation (in premium pay or compensatory time) is required for all
hours worked in excess of the following maximum hours standards
(rounded to the nearest whole hour):
MAXIMUM HOURS STANDARDS
------------------------------------------------------------------------
Fire Law
Work period (days) protection enforcement
------------------------------------------------------------------------
28............................................ 212 171
27............................................ 204 165
26............................................ 197 159
25............................................ 189 153
24............................................ 182 147
23............................................ 174 141
22............................................ 167 134
21............................................ 159 128
20............................................ 151 122
19............................................ 144 116
18............................................ 136 110
17............................................ 129 104
16............................................ 121 98
15............................................ 114 92
14............................................ 106 86
13............................................ 98 79
12............................................ 91 73
11............................................ 83 67
10............................................ 76 61
9............................................. 68 55
8............................................. 61 49
7............................................. 53 43
------------------------------------------------------------------------
Sec. C553.231 Compensatory time off
(a) Law enforcement and fire protection employees who are subject
to the section 7(k) exemption may receive compensatory time off in lieu
of overtime pay for hours worked in excess of the maximum for their
work period as set forth in section C553.230.
(b) Section 7(k) permits public agencies to balance the hours of
work over an entire work period for law enforcement and fire protection
employees. For example, if a firefighter's work period is 28
consecutive days, and he or she works 80 hours in each of the first two
weeks, but only 52 hours in the third week, and does not work in the
fourth week, no overtime compensation (in cash wages or compensatory
time) would be required since the total hours worked do not exceed 212
for the work period. If the same firefighter had a work period of only
14 days, overtime compensation or compensatory time off would be due
for 54 hours (160 minus 106 hours) in the first 14 day work period.
Sec. C553.232 Overtime pay requirements
If a public agency pays employees subject to section 7(k) for
overtime hours worked in cash wages rather than compensatory time off,
such wages must be paid at one and one-half times the employees'
regular rates of pay.
Sec. C553.233 ``Regular rate'' defined
The statutory rules for computing an employee's ``regular rate'',
for purposes of the Act's overtime pay requirements are applicable to
employees or whom the section 7(k) exemption is claimed when overtime
compensation is provided in cash wages.
Subpart D--Compensatory Time-off for Overtime Earned by Employees Whose
Work Schedule Directly Depends Upon the Schedule of the House and the
Senate
Sec. C553.301 Definition of ``directly depends''
For the purposes of this Part, a covered employee's work schedule
``directly depends'' on the schedule of the House of Representatives
and the Senate only if the eligible employee performs work that
directly supports the conduct of legislative or other business in the
chamber and works hours that regularly change in response to the
schedule of the House and the Senate.
Sec. C553.302 Overtime compensation and compensatory time off for an
employee whose work schedule directly depends upon the
schedule of the House and Senate
No employing office shall be deemed to have violated section
203(a)(1) of the CAA, which applies the protections of section 7(a) of
the Fair Labor Standards Act (``FLSA'') to covered employees and
employing office, by employing any employee for a workweek in excess of
the maximum workweek applicable to such employee under section 7(a) of
the FLSA where the employee's work schedule directly depends on the
schedule of the House of Representatives or the Senate within the
meaning of Sec. C553.301, and: (a) the employee is compensated at the
rate of time-and-a-half in pay for all hours in excess of 40 and up to
60 hours in a workweek, and (b) the employee is compensated at the rate
of time-and-a-half in either pay or in time off for all hours in excess
of 60 hours in a workweek.
Sec. C553.303 Using compensatory time off
An employee who has accrued compensatory time off under
Sec. C553.302 upon his or her request, shall be permitted by the
employing office to use such time within a reasonable period after
making the request, unless the employing office makes a bona fide
determination that the needs of the operations of the office do not
allow the taking of compensatory time off at the time of the request.
An employee may renew the request at a subsequent time. An employing
office may also, upon reasonable notice, require an employee to use
accrued compensatory time-off.
Sec. C553.304 Payment of overtime compensation for accrued compensatory
time off as of termination of service
An employee who has accrued compensatory time authorized by this
regulation shall, upon termination of employment, be paid for the
unused compensatory time at the rate earned by the employee at the time
the employee receives such payment.
PART C570--CHILD LABOR REGULATIONS
Subpart A--General
Sec.
C570.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of
the Office of Compliance.
C570.1 Definitions.
C570.2 Minimum age standards.
Subpart B [Reserved]
Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child
Labor Reg. 3)
C570.31 Determination.
C570.32 Effect of this subpart.
C570.33 Occupations.
C570.35 Periods and conditions of employment.
Subpart D [Reserved]
Subpart E--Occupations Particularly Hazardous for the Employment of
Minors Between 16 and 18 Years of Age or Detrimental to Their Health or
Well-being
C570.50 General.
C570.51 Occupations in or about plants or establishments manufacturing
or storing explosives or articles
containing explosive components (Order 1).
C570.52 Occupations of motor-vehicle driver and outside helper (Order
2).
C570.55 Occupations involved in the operation of power-driven
woodworking machines (Order 5).
C570.58 Occupations involved in the operation of power-driven hoisting
apparatus (Order 7).
C570.59 Occupations involved in the operations of power-driven metal
forming, punching, and shearing machines
(Order 8).
C570.62 Occupations involved in the operation of bakery machines (Order
11).
C570.63 Occupations involved in the operation of paper-products
machines (Order 12).
C570.65 Occupations involved in the operations of circular saws, band
saws, and guillotine shears (Order 14).
C570.66 Occupations involved in wrecking and demolition operations
(Order 15).
C570.67 Occupations in roofing operations (Order 16).
C570.68 Occupations in excavation operations (Order 17).
Subpart A--General
Sec. C570.00 Corresponding section table of the FLSA regulations of the
Labor Department and the CAA regulations of the Office of
Compliance
The following table lists the sections of the Secretary of Labor
Regulations under the FLSA with the corresponding sections of the
Office of Compliance Regulations under section 202 of the CAA:
Secretary of Labor regulations OC regulations
570.1 Definitions.................................... C570.1
570.2 Minimum age standards.......................... C570.2
570.31 Determinations................................ C570.31
570.32 Effect of this subpart........................ C570.32
570.33 Occupations................................... C570.33
570.35 Periods and conditions of employment.......... C570.35
570.50 General....................................... C570.50
570.51 Occupations in or about plants or C570.51
establishments manufacturing or storing explosives or
articles containing explosive components (Order 1).
570.52 Occupations of motor-vehicle driver and C570.52
outside helper (Order 2).
570.55 Occupations involved in the operation of C570.55
power-driven woodworking machines (Order 5).
570.58 Occupations involved in the operation of C570.58
power-driven hoisting apparatus (Order 7).
570.59 Occupations involved in the operations of C570.59
power-driven metal forming, punching, and shearing
machines (Order 8).
570.62 Occupations involved in the operation of C570.62
bakery machines (Order 11).
570.63 Occupations involved in the operation of C570.63
paper-products machines (Order 12).
570.65 Occupations involved in the operations of C570.65
circular saws, band saws, and guillotine shears
(Order 14).
570.66 Occupations involved in wrecking and C570.66
demolition operations (Order 15).
570.67 Occupations in roofing operations (Order 16).. C570.67
570.68 Occupations in excavation operations (Order C570.68
17).
Sec. C570.1 Definitions
As used in this part:
(a) ``Act'' means the Fair Labor Standards Act of 1938, as amended
(52 Stat. 1060, as amended; 29 U.S.C. 201-219).
(b) ``Oppressive child labor'' means employment of a minor in an
occupation for which he does not meet the minimum age standards of the
Act, as set forth in section 570.2 of this subpart.
(c) ``Oppressive child labor age'' means an age below the minimum
age established under the Act for the occupation in which a minor is
employed or in which his employment is contemplated.
(d) [Reserved].
(e) [Reserved].
(f) ``Secretary'' or ``Secretary of Labor'' means the Secretary of
Labor, United States Department of Labor, or his authorized
representative.
(g) ``Wage and Hour Division'' means the Wage and Hour Division,
Employment Standards Administration, United States Department of Labor.
(h) ``Administrator'' means the Administrator of the Wage and Hour
Division or his authorized representative.
Sec. C570.2 Minimum age standards
(a) All Occupations Except in Agriculture.--(1) The Act, in section
3(1), sets a general 16-year minimum age which applies to all
employment subject to its child labor provisions in any occupation
other than in agriculture, with the following exceptions:
(i) The Act authorizes the Secretary of Labor to provide by
regulation or by order that the employment of employees between
the ages of 14 and 16 years in occupations other than
manufacturing and mining shall not be deemed to constitute
oppressive child labor, if and to the extent that the Secretary
of Labor determines that such employment is confined to periods
which will not interfere with their schooling and to conditions
which will not interfere with their health and well-being (see
subpart C of this part); and
(ii) The Act sets an 18-year minimum age with respect to
employment in any occupation found and declared by the
Secretary of Labor to be particularly hazardous for the
employment of minors of such age or detrimental to their health
or well-being.
(2) The Act exempts from its minimum age requirements the
employment by a parent of his own child, or by a person standing in
place of a parent of a child in his custody, except in occupations to
which the 18-year age minimum applies and in manufacturing and mining
occupations.
Subpart B [Reserved]
Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child
Labor Reg. 3)
Sec. C570.31 Determination
The employment of minors between 14 and 16 years of age in the
occupations, for the periods, and under the conditions hereafter
specified does not interfere with their schooling or with their health
and well-being and shall not be deemed to be oppressive child labor.
Sec. C570.32 Effect of this subpart
In all occupations covered by this subpart the employment
(including suffering or permitting to work) by an employer of minor
employees between 14 and 16 years of age for the periods and under the
conditions specified in Sec. 570.35 shall not be deemed to be
oppressive child labor within the meaning of the Fair Labor Standards
Act of 1938.
Sec. C570.33 Occupations
This subpart shall apply to all occupations other than the
following:
(a) Manufacturing, mining, or processing occupations, including
occupations requiring the performance of any duties in work rooms or
work places where goods are manufactured, mined, or otherwise
processed;
(b) Occupations which involve the operation or tending of hoisting
apparatus or of any power-driven machinery other than office machines;
(c) The operation of motor vehicles or service as helpers on such
vehicles;
(d) Public messenger service;
(e) Occupations which the Secretary of Labor may, pursuant to
section 3(1) of the Fair Labor Standards Act and Reorganization Plan
No. 2, issued pursuant to the Reorganization Act of 1945, find and
declare to be hazardous for the employment of minors between 16 and 18
years of age or detrimental to their health or well-being;
(f) Occupations in connection with:
(1) Transportation of persons or property by rail, highway,
air, water, pipeline, or other means;
(2) Warehousing and storage;
(3) Communications and public utilities;
(4) Construction (including demolition and repair); except
such office (including ticket office) work, or sales work, in
connection with paragraphs (f) (1), (2), (3), and (4) of this
section, as does not involve the performance of any duties on
trains, motor vehicles, aircraft, vessels, or other media of
transportation or at the actual site of construction
operations.
Sec. C570.35 Periods and conditions of employment
(a) Except as provided in paragraph (b) of this section, employment
in any of the occupations to which this subpart is applicable shall be
confined to the following periods:
(1) Outside school hours;
(2) Not more than 40 hours in any 1 week when school is not
in session;
(3) Not more than 18 hours in any 1 week when school is in
session;
(4) Not more than 8 hours in any 1 day when school is not
in session;
(5) Not more than 3 hours in any 1 day when school is in
session;
6) Between 7 a.m. and 7 p.m. in any 1 day, except during
the summer (June 1 through Labor Day) when the evening hour
will be 9 p.m.
Subpart D [Reserved]
Subpart E--Occupations Particularly Hazardous for the Employment of
Minors Between 16 and 18 Years of Age or Detrimental to Their Health or
Well-being
Sec. C570.50 General
(a) Higher Standards.--Nothing in this subpart shall authorize non-
compliance with any Federal law or regulation establishing a higher
standard. If more than one standard within this subpart applies to a
single activity the higher standard shall be applicable.
(b) Apprentices.--Some sections in this subpart contain an
exemption for the employment of apprentices. Such an exemption shall
apply only when: (1) The apprentice is employed in a craft recognized
as an apprenticeable trade; (2) the work of the apprentice in the
occupations declared particularly hazardous is incidental to his
training; (3) such work is intermittent and for short periods of time
and is under the direct and close supervision of a journeyman as a
necessary part of such apprentice training; and (4) the apprentice is
registered by the Executive Director of the Office of Compliance as
employed in accordance with the standards established by the Bureau of
Apprenticeship and Training of the United States Department of Labor.
(c) Student-learners.--Some sections in this subpart contain an
exemption for the employment of student-learners. Such an exemption
shall apply when:
(1) The student-learner is enrolled in a course of study
and training in a cooperative vocational training program under
a recognized State or local educational authority or in a
course of study in a substantially similar program conducted by
a private school; and
(2) Such student-learner is employed under a written
agreement which provides:
(i) That the work of the student-learner in the
occupations declared particularly hazardous shall be
incidental to his training;
(ii) That such work shall be intermittent and for
short periods of time, and under the direct and close
supervision of a qualified and experienced person;
(iii) That safety instructions shall be given by
the school and correlated by the employer with on-the-
job training; and
(iv) That a schedule of organized and progressive
work processes to be performed on the job shall have
been prepared. Each such written agreement shall
contain the name of student-learner, and shall be
signed by the employer and the school coordinator or
principal. Copies of each agreement shall be kept on
file by both the school and the employer. This
exemption for the employment of student-learners may be
revoked in any individual situation where it is found
that reasonable precautions have not been observed for
the safety of minors employed thereunder. A high school
graduate may be employed in an occupation in which he
has completed training as provided in this paragraph as
a student-learner, even though he is not yet 18 years
of age.
Sec. C570.51 Occupations in or about plants or establishments
manufacturing or storing explosives or articles
containing explosive components (Order 1)
(a) Finding and Declaration of Fact.--The following occupations in
or about plants or establishments manufacturing or storing explosives
or articles containing explosive components are particularly hazardous
for minors between 16 and 18 years of age or detrimental to their
health or well-being:
(1) All occupations in or about any plant or establishment
(other than retail establishments or plants or establishments
of the type described in paragraph (a)(2) of this section)
manufacturing or storing explosives or articles containing
explosive components except where the occupation is performed
in a ``nonexplosives area'' as defined in paragraph (b)(3) of
this section.
(2) The following occupations in or about any plant or
establishment manufacturing or storing small-arms ammunition
not exceeding .60 caliber in size, shotgun shells, or blasting
caps when manufactured or stored in conjunction with the
manufacture of small-arms ammunition:
(i) All occupations involved in the manufacturing,
mixing, transporting, or handling of explosive
compounds in the manufacture of small-arms ammunition
and all other occupations requiring the performance of
any duties in the explosives area in which explosive
compounds are manufactured or mixed.
(ii) All occupations involved in the manufacturing,
transporting, or handling of primers and all other
occupations requiring the performance of any duties in
the same building in which primers are manufactured.
(iii) All occupations involved in the priming of
cartridges and all other occupations requiring the
performance of any duties in the same workroom in which
rim-fire cartridges are primed.
(iv) All occupations involved in the plate loading
of cartridges and in the operation of automatic loading
machines.
(v) All occupations involved in the loading,
inspecting, packing, shipping and storage of blasting
caps.
(b) Definitions.--For the purpose of this section:
(1) The term ``plant or establishment manufacturing or
storing explosives or articles containing explosive component''
means the land with all the buildings and other structures
thereon used in connection with the manufacturing or processing
or storing of explosives or articles containing explosive
components.
(2) The terms ``explosives'' and ``articles containing
explosive components'' mean and include ammunition, black
powder, blasting caps, fireworks, high explosives, primers,
smokeless powder, and all goods classified and defined as
explosives by the Interstate Commerce Commission in regulations
for the transportation of explosives and other dangerous
substances by common carriers (49 CFR parts 71 to 78) issued
pursuant to the Act of June 25, 1948 (62 Stat. 739; 18 U.S.C.
835).
(3) An area meeting all of the criteria in paragraphs
(b)(3) (i) through (iv) of this section shall be deemed a
``nonexplosives area'':
(i) None of the work performed in the area involves
the handling or use of explosives;
(ii) The area is separated from the explosives area
by a distance not less than that prescribed in the
American Table of Distances for the protection of
inhabited buildings;
(iii) The area is separated from the explosives
area by a fence or is otherwise located so that it
constitutes a definite designated area; and
(iv) Satisfactory controls have been established to
prevent employees under 18 years of age within the area
from entering any area in or about the plant which does
not meet criteria of paragraphs (b)(3) (i) through
(iii) of this section.
Sec. C570.52 Occupations of motor-vehicle driver and outside helper
(Order 2)
(a) Findings and Declaration of Fact.--Except as provided in
paragraph (b) of this section, the occupations of motor-vehicle driver
and outside helper on any public road, highway, in or about any mine
(including open pit mine or quarry), place where logging or sawmill
operations are in progress, or in any excavation of the type identified
in Sec. C570.68(a) are particularly hazardous for the employment of
minors between 16 and 18 years of age.
(b) Exemption.--The findings and declaration in paragraph (a) of
this section shall not apply to the operation of automobiles or trucks
not exceeding 6,000 pounds gross vehicle weight if such driving is
restricted to daylight hours: Provided, That such operation is only
occasional and incidental to the minor's employment; that the minor
holds a State license valid for the type of driving involved in the job
performed and has completed a State approved driver education course:
Provided further, That the vehicle is equipped with a seat belt or
similar restraining device for the driver and for each helper, and the
employer has instructed each minor that such belts or other devices
must be used. This paragraph shall not be applicable to any occupation
of motor-vehicle driver which involves the towing of vehicles.
(c) Definitions.--For the purpose of this section:
(1) The term ``motor vehicle'' shall mean any automobile,
truck, truck-tractor, trailer, semitrailer, motorcycle, or
similar vehicle propelled or drawn by mechanical power and
designed for use as a means of transportation but shall not
include any vehicle operated exclusively on rails.
(2) The term ``driver'' shall mean any individual who, in
the course of employment, drives a motor vehicle at any time.
(3) The term ``outside helper'' shall mean any individual,
other than a driver, whose work includes riding on a motor
vehicle outside the cab for the purpose of assisting in
transporting or delivering goods.
(4) The term ``gross vehicle weight'' includes the truck
chassis with lubricants, water and a full tank or tanks of
fuel, plus the weight of the cab or driver's compartment, body
and special chassis and body equipment, and payload.
Sec. C570.55 Occupations involved in the operation of power-driven
woodworking machines (Order 5)
(a) Finding and Declaration of Fact.--The following occupations
involved in the operation of power-driven wood-working machines are
particularly hazardous for minors between 16 and 18 years of age:
(1) The occupation of operating power-driven woodworking
machines, including supervising or controlling the operation of
such machines, feeding material into such machines, and helping
the operator to feed material into such machines but not
including the placing of material on a moving chain or in a
hopper or slide for automatic feeding.
(2) The occupations of setting up, adjusting, repairing,
oiling, or cleaning power-driven woodworking machines.
(3) The occupations of off-bearing from circular saws and
from guillotine-action veneer clippers.
(b) Definitions.--As used in this section:
(1) The term ``power-driven woodworking machines'' shall
mean all fixed or portable machines or tools driven by power
and used or designed for cutting, shaping, forming, surfacing,
nailing, stapling, wire stitching, fastening, or otherwise
assembling, pressing, or printing wood or veneer.
(2) The term ``off-bearing'' shall mean the removal of
material or refuse directly from a saw table or from the point
of operation. Operations not considered as off-bearing within
the intent of this section include: (i) The removal of material
or refuse from a circular saw or guillotine-action veneer
clipper where the material or refuse has been conveyed away
from the saw table or point of operation by a gravity chute or
by some mechanical means such as a moving belt or expulsion
roller, and (ii) the following operations when they do not
involve the removal of material or refuse directly from a saw
table or from the point of operation: The carrying, moving, or
transporting of materials from one machine to another or from
one part of a plant to another; the piling, stacking, or
arranging of materials for feeding into a machine by another
person; and the sorting, tying, bundling, or loading of
materials.
(c) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section 570.50 (b) and (c).
Sec. C570.58 Occupations involved in the operation of power-driven
hoisting apparatus (Order 7)
(a) Finding and Declaration of Fact.--The following occupations
involved in the operation of power-driven hoisting apparatus are
particularly hazardous for minors between 16 and 18 years of age:
(1) Work of operating an elevator, crane, derrick, hoist,
or high-lift truck, except operating an unattended automatic
operation passenger elevator or an electric or air-operated
hoist not exceeding one ton capacity.
(2) Work which involves riding on a manlift or on a freight
elevator, except a freight elevator operated by an assigned
operator.
(3) Work of assisting in the operation of a crane, derrick,
or hoist performed by crane hookers, crane chasers, hookers-on,
riggers, rigger helpers, and like occupations.
(b) Definitions.--As used in this section:
(1) The term ``elevator'' shall mean any power-driven
hoisting or lowering mechanism equipped with a car or platform
which moves in guides in a substantially vertical direction.
The term shall include both passenger and freight elevators
(including portable elevators or tiering machines), but shall
not include dumbwaiters.
(2) The term ``crane'' shall mean a power-driven machine
for lifting and lowering a load and moving it horizontally, in
which the hoisting mechanism is an integral part of the
machine. The term shall include all types of cranes, such as
cantilever gantry, crawler, gantry, hammerhead, ingot-pouring,
jib, locomotive, motor-truck, overhead traveling, pillar jib,
pintle, portal, semi-gantry, semi-portal, storage bridge,
tower, walking jib, and wall cranes.
(3) The term ``derrick'' shall mean a power-driven
apparatus consisting of a mast or equivalent members held at
the top by guys or braces, with or without a boom, for use with
a hoisting mechanism or operating ropes. The term shall include
all types of derricks, such as A-frame, breast, Chicago boom,
gin-pole, guy and stiff-leg derrick.
(4) The term ``hoist'' shall mean a power-driven apparatus
for raising or lowering a load by the application of a pulling
force that does not include a car or platform running in
guides. The term shall include all types of hoists, such as
base mounted electric, clevis suspension, hook suspension,
monorail, overhead electric, simple drum and trolley suspension
hoists.
(5) The term ``high-lift'' truck shall mean a power-driven
industrial type of truck used for lateral transportation that
is equipped with a power-operated lifting device usually in the
form of a fork or platform capable of tiering loaded pallets or
skids one above the other. Instead of a fork or platform, the
lifting device may consist of a ram, scoop, shovel, crane,
revolving fork, or other attachments for handling specific
loads. The term shall mean and include highlift trucks known
under such names as fork lifts, fork trucks, fork-lift trucks,
tiering trucks, or stacking trucks, but shall not mean low-lift
trucks or low-lift platform trucks that are designed for the
transportation of but not the tiering of material.
(6) The term ``manlift'' shall mean a device intended for
the conveyance of persons which consists of platforms or
brackets mounted on, or attached to, an endless belt, cable,
chain or similar method of suspension; such belt, cable or
chain operating in a substantially vertical direction and being
supported by and driven through pulleys, sheaves or sprockets
at the top and bottom.
(c) Exception.--(1) This section shall not prohibit the operation
of an automatic elevator and an automatic signal operation elevator:
Provided, That the exposed portion of the car interior (exclusive of
vents and other necessary small openings), the car door, and the
hoistway doors are constructed of solid surfaces without any opening
through which a part of the body may extend; all hoistway openings at
floor level have doors which are interlocked with the car door so as to
prevent the car from starting until all such doors are closed and
locked; the elevator (other than hydraulic elevators) is equipped with
a device which will stop and hold the car in case of overspeed or if
the cable slackens or breaks; and the elevator is equipped with upper
and lower travel limit devices which will normally bring the car to
rest at either terminal and a final limit switch which will prevent the
movement in either direction and will open in case of excessive over
travel by the car.
(2) For the purpose of this exception the term ``automatic
elevator'' shall mean a passenger elevator, a freight elevator, or a
combination passenger-freight elevator, the operation of which is
controlled by pushbuttons in such a manner that the starting, going to
the landing selected, leveling and holding, and the opening and closing
of the car and hoistway doors are entirely automatic.
(3) For the purpose of this exception, the term ``automatic signal
operation elevator'' shall mean an elevator which is started in
response to the operation of a switch (such as a lever or pushbutton)
in the car which when operated by the operator actuates a starting
device that automatically closes the car and hoistway doors from this
point on, the movement of the car to the landing selected, leveling and
holding when it gets there, and the opening of the car and hoistway
doors are entirely automatic.
Sec. C570.59 Occupations involved in the operations of power-driven
metal forming, punching, and shearing machines (Order 8)
(a) Finding and Declaration of Fact.--The following occupations are
particularly hazardous for the employment of minors between 16 and 18
years of age:
(1) The occupations of operator of or helper on the
following power-driven metal forming, punching, and shearing
machines:
(i) All rolling machines, such as beading,
straightening, corrugating, flanging, or bending rolls;
and hot or cold rolling mills.
(ii) All pressing or punching machines, such as
punch presses except those provided with full automatic
feed and ejection and with a fixed barrier guard to
prevent the hands or fingers of the operator from
entering the area between the dies; power presses; and
plate punches.
(iii) All bending machines, such as apron brakes
and press brakes.
(iv) All hammering machines, such as drop hammers
and power hammers.
(v) All shearing machines, such as guillotine or
squaring shears; alligator shears; and rotary shears.
(2) The occupations of setting up, adjusting, repairing,
oiling, or cleaning these machines including those with
automatic feed and ejection.
(b) Definitions.--(1) The term ``operator'' shall mean a person who
operates a machine covered by this section by performing such functions
as starting or stopping the machine, placing materials into or removing
them from the machine, or any other functions directly involved in
operation of the machine.
(2) The term ``helper'' shall mean a person who assists in the
operation of a machine covered by this section by helping place
materials into or remove them from the machine.
(3) The term ``forming, punching, and shearing machines'' shall
mean power-driven metal-working machines, other than machine tools,
which change the shape of or cut metal by means of tools, such as dies,
rolls, or knives which are mounted on rams, plungers, or other moving
parts. Types of forming, punching, and shearing machines enumerated in
this section are the machines to which the designation is by custom
applied.
(c) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section 570.50 (b) and (c).
Sec. C570.62 Occupations involved in the operation of bakery machines
(Order 11)
The following occupations involved in the operation of power-driven
bakery machines are particularly hazardous for the employment of minors
between 16 and 18 years of age:
(1) The occupations of operating, assisting to operate, or
setting up, adjusting, repairing, oiling, or cleaning any
horizontal or vertical dough mixer; batter mixer; bread
dividing, rounding, or molding machine; dough brake; dough
sheeter; combination bread slicing and wrapping machine; or
cake cutting band saw.
(2) The occupation of setting up or adjusting a cookie or
cracker machine.
Sec. C570.63 Occupations involved in the operation of paper-products
machines (Order 12)
(a) Findings and Declaration of Fact.--The following occupations
are particularly hazardous for the employment of minors between 16 and
18 years of age:
(1) The occupations of operation or assisting to operate
any of the following power-driven paper products machines:
(i) Arm-type wire stitcher or stapler, circular or
band saw, corner cutter or mitering machine,
corrugating and single-or-double-facing machine,
envelope die-cutting press, guillotine paper cutter or
shear, horizontal bar scorer, laminating or combining
machine, sheeting machine, scrap-paper baler, or
vertical slotter.
(ii) Platen die-cutting press, platen printing
press, or punch press which involves hand feeding of
the machine.
(2) The occupations of setting-up, adjusting, repairing,
oiling, or cleaning these machines including those which do not
involve hand feeding.
(b) Definitions.--(1) The term ``operating or assisting to
operate'' shall mean all work which involves starting or stopping a
machine covered by this section, placing or removing materials into or
from the machine, or any other work directly involved in operating the
machine. The term does not include the stacking of materials by an
employee in an area nearby or adjacent to the machine where such
employee does not place the materials into the machine.
(2) The term ``paper products'' machine shall mean all power-driven
machines used in:
(i) The remanufacture or conversion of paper or pulp into a
finished product, including the preparation of such materials
for re-cycling; or
(ii) The preparation of such materials for disposal. The
term applies to such machines whether they are used in
establishments that manufacture converted paper or pulp
products, or in any other type of manufacturing or
nonmanufacturing establishment.
(c) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section 570.50 (b) and (c).
Sec. C570.65 Occupations involved in the operations of circular saws,
band saws, and guillotine shears (Order 14)
(a) Findings and Declaration of Fact.--The following occupations
are particularly hazardous for the employment of minors between 16 and
18 years of age:
(1) The occupations of operator of or helper on the
following power-driven fixed or portable machines except
machines equipped with full automatic feed and ejection:
(i) Circular saws.
(ii) Band saws.
(iii) Guillotine shears.
(2) The occupations of setting-up, adjusting, repairing,
oiling, or cleaning circular saws, band saws, and guillotine
shears.
(b) Definitions.--(1) The term ``operator'' shall mean a person who
operates a machine covered by this section by performing such functions
as starting or stopping the machine, placing materials into or removing
them from the machine, or any other functions directly involved in
operation of the machine.
(2) The term ``helper'' shall mean a person who assists in the
operation of a machine covered by this section by helping place
materials into or remove them from the machine.
(3) The term ``machines equipped with full automatic feed and
ejection'' shall mean machines covered by this Order which are equipped
with devices for full automatic feeding and ejection and with a fixed
barrier guard to prevent completely the operator or helper from placing
any part of his body in the point-of-operation area.
(4) The term ``circular saw'' shall mean a machine equipped with a
thin steel disc having a continuous series of notches or teeth on the
periphery, mounted on shafting, and used for sawing materials.
(5) The term ``band saw'' shall mean a machine equipped with an
endless steel band having a continuous series of notches or teeth,
running over wheels or pulleys, and used for sawing materials.
(6) The term ``guillotine shear'' shall mean a machine equipped
with a movable blade operated vertically and used to shear materials.
The term shall not include other types of shearing machines, using a
different form of shearing action, such as alligator shears or circular
shears.
(c) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section 570.50 (b) and (c).
Sec. C570.66 Occupations involved in wrecking and demolition operations
(Order 15)
(a) Finding and Declaration of Fact.--All occupations in wrecking
and demolition operations are particularly hazardous for the employment
of minors between 16 and 18 years of age and detrimental to their
health and well-being.
(b) Definition.--The term ``wrecking and demolition operations''
shall mean all work, including clean-up and salvage work, performed at
the site of the total or partial razing, demolishing, or dismantling of
a building, bridge, steeple, tower, chimney, other structure.
Sec. C570.67 Occupations in roofing operations (Order 16)
(a) Finding and Declaration of Fact.--All occupations in roofing
operations are particularly hazardous for the employment of minors
between 16 and 18 years of age or detrimental to their health.
(b) Definition of Roofing Operations.--The term ``roofing
operations'' shall mean all work performed in connection with the
application of weatherproofing materials and substances (such as tar or
pitch, asphalt prepared paper, tile, slate, metal, translucent
materials, and shingles of asbestos, asphalt or wood) to roofs of
buildings or other structures. The term shall also include all work
performed in connection with: (1) The installation of roofs, including
related metal work such as flashing and (2) alterations, additions,
maintenance, and repair, including painting and coating, of existing
roofs. The term shall not include gutter and downspout work; the
construction of the sheathing or base of roofs; or the installation of
television antennas, air conditioners, exhaust and ventilating
equipment, or similar appliances attached to roofs.
(c) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section 570.50 (b) and (c).
Sec. C570.68 Occupations in excavation operations (Order 17)
(a) Finding and Declaration of Fact.--The following occupations in
excavation operations are particularly hazardous for the employment of
persons between 16 and 18 years of age: (1) Excavating, working in, or
backfilling (refilling) trenches, except (i) manually excavating or
manually backfilling trenches that do not exceed four feet in depth at
any point, or (ii) working in trenches that do not exceed four feet in
depth at any point. (2) Excavating for buildings or other structures or
working in such excavations, except: (i) Manually excavating to a depth
not exceeding four feet below any ground surface adjoining the
excavation, or (ii) working in an excavation not exceeding such depth,
or (iii) working in an excavation where the side walls are shored or
sloped to the angle of repose. (3) Working within tunnels prior to the
completion of all driving and shoring operations. (4) Working within
shafts prior to the completion of all sinking and shoring operations.
(b) Exemptions.--This section shall not apply to the employment of
apprentices or student-learners under the conditions prescribed in
section C570.50 (b) and (c).
exclusion for employees of the capitol police
None of the limitations on the use of lie detector tests by
employing offices set forth in section 204 of the CAA apply to the
Capitol Police. This exclusion from the limitations of section 204 of
the CAA applies only with respect to Capitol Police employees. Except
as otherwise provided by law or these regulations, this exclusion does
not extend to contractors or nongovernmental agents of the Capitol
Police; nor does it extend to the Capitol Police with respect to
employees of a private employer or an otherwise covered employing
office with which the Capitol Police has a contractual or other
business relationship.
APPLICATION OF RIGHTS AND PROTECTIONS OF THE EMPLOYEE POLYGRAPH
PROTECTION ACT OF 1988
Subpart A--General
Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Coverage.
1.4 Prohibitions on lie detector use.
1.5 Effect on other laws or agreements.
1.6 Notice of protection.
1.7 Authority of the Board.
1.8 Employment relationship.
Subpart B--Exemptions
1.10 Exclusion for employees of the Capitol Police. [Reserved].
1.11 Exemption for national defense and security.
1.12 Exemption for employing offices conducting investigations of
economic loss or injury.
1.13 Exemption for employing offices authorized to manufacture,
distribute, or dispense controlled
substances.
Subpart C--Restrictions on Polygraph Usage Under Exemptions
1.20 Adverse employment action under ongoing investigation exemption.
1.21 Adverse employment action under controlled substance exemption.
1.22 Rights of examinee--general.
1.23 Rights of examinee--pretest phase.
1.24 Rights of examinee--actual testing phase.
1.25 Rights of examinee--post-test phase.
1.26 Qualifications of and requirements for examiners.
Subpart D--Recordkeeping and Disclosure Requirements
1.30 Records to be preserved for 3 years.
1.35 Disclosure of test information.
Subpart E--[Reserved]
1.40 [Reserved].
Appendix A--Notice to Examinee.
Authority: Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1314(c).
Subpart A--General
SEC. 1.1 PURPOSE AND SCOPE.
Enacted into law on January 23, 1995, the Congressional
Accountability Act (``CAA'') directly applies the rights and
protections of eleven Federal labor and employment law statutes to
covered employees and employing offices within the legislative branch.
Section 204(a) of the CAA, 2 U.S.C. Sec. 1314(a) provides that no
employing office may require any covered employee (including a covered
employee who does not work in that employing office) to take a lie
detector test where such test would be prohibited if required by an
employer under paragraphs (1), (2) or (3) of section 3 of the Employee
Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. Sec. 2002 (1), (2)
or (3). The purpose of this Part is to set forth the regulations to
carry out the provisions of section 204 of the CAA.
Subpart A contains the provisions generally applicable to covered
employers, including the requirements relating to the prohibitions on
lie detector use. Subpart B sets forth rules regarding the statutory
exemptions from application of section 204 of the CAA. Subpart C sets
forth the restrictions on polygraph usage under such exemptions.
Subpart D sets forth the rules on recordkeeping and the disclosure of
polygraph test information.
SEC. 1.2 DEFINITIONS.
For purposes of this part:
(a) Act or CAA means the Congressional Accountability Act of 1995
(P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
(b) EPPA means the Employee Polygraph Protection Act of 1988 (Pub.
L. 100-347, 102 Stat. 646, 29 U.S.C. Sec. Sec. 2001-2009) as applied to
covered employees and employing offices by section 204 of the CAA.
(c) The term covered employee means any employee of (1) the House
of Representatives; (2) the Senate; (3) the Capitol Guide Service; (4)
the Congressional Budget Office; (5) the Office of the Architect of the
Capitol; (6) the Office of the Attending Physician; (7) the Office of
Compliance; or (8) the Office of Technology Assessment.
(d) The term employee includes an applicant for employment and a
former employee.
(e) The term employee of the Office of the Architect of the Capitol
includes any employee of the Office of the Architect of the Capitol,
the Botanic Gardens, or the Senate Restaurants.
(f) The term employee of the Capitol Police includes any member or
officer of the Capitol Police.
(g) The term employee of the House of Representatives includes an
individual occupying a position the pay for which is disbursed by the
Clerk of the House of Representatives, or another official designated
by the House of Representatives, or any employment position in an
entity that is paid with funds derived from the clerk-hire allowance of
the House of Representatives but not any such individual employed by
any entity listed in subparagraphs (3) through (8) of paragraph (c)
above.
(h) The term employee of the Senate includes any employee whose pay
is disbursed by the Secretary of the Senate, but not any such
individual employed by any entity listed in subparagraphs (3) through
(8) of paragraph (c) above.
(i) The term employing office means (1) the personal office of a
Member of the House of Representatives or of a Senator; (2) a committee
of the House of Representatives or the Senate or a joint committee; (3)
any other office headed by a person with the final authority to
appoint, hire, discharge, and set the terms, conditions, or privileges
of the employment of an employee of the House of Representatives or the
Senate; or (4) the Capitol Guide Board, the Congressional Budget
Office, the Office of the Architect of the Capitol, the Office of the
Attending Physician, the Office of Compliance, and the Office of
Technology Assessment. The term employing office includes any person
acting directly or indirectly in the interest of an employing office in
relation to an employee or prospective employee. A polygraph examiner
either employed for or whose services are retained for the sole purpose
of administering polygraph tests ordinarily would not be deemed an
employing office with respect to the examinees. Any reference to
``employer'' in these regulations includes employing offices.
(j)(1) The term lie detector means a polygraph, deceptograph, voice
stress analyzer, psychological stress evaluator, or any other similar
device (whether mechanical or electrical) that is used, or the results
of which are used, for the purpose of rendering a diagnostic opinion
regarding the honesty or dishonesty of an individual. Voice stress
analyzers, or psychological stress evaluators, include any systems that
utilize voice stress analysis, whether or not an opinion on honesty or
dishonesty is specifically rendered.
(2) The term lie detector does not include medical tests used to
determine the presence or absence of controlled substances or alcohol
in bodily fluids. Also not included in the definition of lie detector
are written or oral tests commonly referred to as ``honesty'' or
``paper and pencil'' tests, machine-scored or otherwise; and graphology
tests commonly referred to as handwriting tests.
(k) The term polygraph means an instrument that--
(1) records continuously, visually, permanently, and
simultaneously changes in cardiovascular, respiratory, and
electrodermal patterns as minimum instrumentation standards;
and
(2) is used, or the results of which are used, for the
purpose of rendering a diagnostic opinion regarding the honesty
or dishonesty of an individual.
(l) Board means the Board of Directors of the Office of Compliance.
(m) Office means the Office of Compliance.
SEC. 1.3 COVERAGE.
The coverage of section 204 of the Act extends to any ``covered
employee'' or ``covered employing office'' without regard to the number
of employees or the employing office's effect on interstate commerce.
SEC. 1.4 PROHIBITIONS ON LIE DETECTOR USE.
(a) Section 204 of the CAA provides that, subject to the exemptions
of the EPPA incorporated into the CAA under section 225(f) of the CAA,
as set forth in section 1.10 through 1.12 of this Part, employing
offices are prohibited from:
(1) Requiring, requesting, suggesting or causing, directly
or indirectly, any covered employee or prospective employee to
take or submit to a lie detector test;
(2) Using, accepting, or inquiring about the results of a
lie detector test of any covered employee or prospective
employee; and
(3) Discharging, disciplining, discriminating against,
denying employment or promotion, or threatening any covered
employee or prospective employee to take such action for
refusal or failure to take or submit to such test, or on the
basis of the results of a test.
The above prohibitions apply irrespective of whether the covered
employee referred to in paragraphs (1), (2) or (3), above, works in
that employing office.
(b) An employing office that reports a theft or other incident
involving economic loss to police or other law enforcement authorities
is not engaged in conduct subject to the prohibitions under paragraph
(a) of this section if, during the normal course of a subsequent
investigation, such authorities deem it necessary to administer a
polygraph test to a covered employee(s) suspected of involvement in the
reported incident. Employing offices that cooperate with police
authorities during the course of their investigations into criminal
misconduct are likewise not deemed engaged in prohibitive conduct:
Provided, That such cooperation is passive in nature. For example, it
is not uncommon for police authorities to request employees suspected
of theft or criminal activity to submit to a polygraph test during the
employee's tour of duty since, as a general rule, suspect employees are
often difficult to locate away from their place of employment. Allowing
a test on the employing office's premises, releasing a covered employee
during working hours to take a test at police headquarters, and other
similar types of cooperation at the request of the police authorities
would not be construed as ``requiring, requesting, suggesting, or
causing, directly or indirectly, any covered employee * * * to take or
submit to a lie detector test''. Cooperation of this type must be
distinguished from actual participation in the testing of employees
suspected of wrongdoing, either through the administration of a test by
the employing office at the request or direction of police authorities,
or through reimbursement by the employing office of tests administered
by police authorities to employees. In some communities, it may be a
practice of police authorities to request testing by employing offices
of employees before a police investigation is initiated on a reported
incident. In other communities, police examiners are available to
covered employing offices, on a cost reimbursement basis, to conduct
tests on employees suspected by an employing office of wrongdoing. All
such conduct on the part of employing offices is deemed within the
prohibitions of section 204 of the CAA.
(c) The receipt by an employing office of information from a
polygraph test administered by police authorities pursuant to an
investigation is prohibited by section 3(2) of the EPPA. (See paragraph
(a)(2) of this section.)
(d) The simulated use of a polygraph instrument so as to lead an
individual to believe that an actual test is being or may be performed
(e.g., to elicit confessions or admissions of guilt) constitutes
conduct prohibited by paragraph (a) of this section. Such use includes
the connection of a covered employee or prospective employee to the
instrument without any intention of a diagnostic purpose, the placement
of the instrument in a room used for interrogation unconnected to the
covered employee or prospective employee, or the mere suggestion that
the instrument may be used during the course of the interview.
(e) The Capitol Police may not require a covered employee not
employed by the Capitol Police to take a lie detector test (on its own
initiative or at the request of another employing office) except where
the Capitol Police administers such lie detector test as part of an
``ongoing investigation'' by the Capitol Police. For the purpose of
this subsection, the definition of ``ongoing investigation'' contained
in section 1.12(b) shall apply.
SEC. 1.5 EFFECT ON OTHER LAWS OR AGREEMENTS.
(a) Section 204 of the CAA does not preempt any otherwise
applicable provision of Federal law or any rule or regulation of the
House or Senate or any negotiated collective bargaining agreement that
prohibits lie detector tests or is more restrictive with respect to the
use of lie detector tests.
(b)(1) This provision applies to all aspects of the use of lie
detector tests, including procedural safeguards, the use of test
results, the rights and remedies provided examinees, and the rights,
remedies, and responsibilities of examiners and employing offices.
(2) For example, a collective bargaining agreement that provides
greater protection to an examinee would apply in addition to the
protection provided in section 204 of the CAA.
SEC. 1.6 NOTICE OF PROTECTION.
Pursuant to section 301(h) of the CAA, the Office shall prepare, in
a manner suitable for posting, a notice explaining the provisions of
section 204 of the CAA. Copies of such notice may be obtained from the
Office of Compliance.
SEC. 1.7 AUTHORITY OF THE BOARD.
Pursuant to sections 204 and 304 of the CAA, the Board is
authorized to issue regulations to implement the rights and protections
of the EPPA. Section 204(c) directs the Board to promulgate regulations
implementing section 204 that are ``the same as substantive regulations
promulgated by the Secretary of Labor to implement the statutory
provisions referred to in subsections (a) and (b) [of section 204 of
the CAA] except insofar as the Board may determine, for good cause
shown . . . that a modification of such regulations would be more
effective for the implementation of the rights and protections under
this section''. The regulations issued by the Board herein are on all
matters for which section 204 of the CAA requires a regulation to be
issued. Specifically, it is the Board's considered judgment, based on
the information available to it at the time of promulgation of these
regulations, that, with the exception of the regulations adopted and
set forth herein, there are no other ``substantive regulations
promulgated by the Secretary of Labor to implement the statutory
provisions referred to in subsections (a) and (b) [of section 204 of
the CAA]''.
In promulgating these regulations, the Board has made certain
technical and nomenclature changes to the regulations as promulgated by
the Secretary. Such changes are intended to make the provisions adopted
accord more naturally to situations in the legislative branch. However,
by making these changes, the Board does not intend a substantive
difference between these regulations and those of the Secretary from
which they are derived. Moreover such changes, in and of themselves,
are not intended to constitute an interpretation of the regulation or
of the statutory provisions of the CAA upon which they are based.
SEC. 1.8 EMPLOYMENT RELATIONSHIP.
Subject to the exemptions incorporated into the CAA by section
225(f), section 204 applies the prohibitions on the use of lie
detectors by employing offices with respect to covered employees
irrespective of whether a covered employee works in that employing
office. Sections 101 (3), (4) and 204 of the CAA also apply EPPA
prohibitions against discrimination to applicants for employment and
former employees of a covered employing office. For example, an
employee may quit rather than take a lie detector test. The employing
office cannot discriminate or threaten to discriminate in any manner
against that person (such as by providing bad references in the future)
because of that person's refusal to be tested. Similarly, an employing
office cannot discriminate or threaten to discriminate in any manner
against that person because that person files a complaint, institutes a
proceeding, testifies in a proceeding, or exercises any right under
section 204 of the CAA. (See section 207 of the CAA.)
Subpart B--Exemptions
SEC. 1.10 EXCLUSION FOR EMPLOYEES OF THE CAPITOL POLICE [RESERVED].
SEC. 1.11 EXEMPTION FOR NATIONAL DEFENSE AND SECURITY.
(a) The exemptions allowing for the administration of lie detector
tests in the following paragraphs (b) through (e) of this section apply
only to the Federal Government; they do not allow covered employing
offices to administer such tests. For the purposes of this section, the
term ``Federal Government'' means any agency or entity within the
Federal Government authorized to administer polygraph examinations
which is otherwise exempt from coverage under section 7(a) of the EPPA,
29 U.S.C. Sec. 2006(a).
(b) Section 7(b)(1) of the EPPA, incorporated into the CAA under
section 225(f) of the CAA, provides that nothing in the EPPA shall be
construed to prohibit the administration of any lie detector test by
the Federal Government, in the performance of any counterintelligence
function, to any expert, consultant or employee of any contractor under
contract with the Department of Defense; or with the Department of
Energy, in connection with the atomic energy defense activities of such
Department.
(c) Section 7(b)(2)(A) of the EPPA, incorporated into the CAA under
section 225(f) of the CAA, provides that nothing in the EPPA shall be
construed to prohibit the administration of any lie detector test by
the Federal Government, in the performance of any intelligence or
counterintelligence function of the National Security Agency, the
Defense Intelligence Agency, or the Central Intelligence Agency, to any
individual employed by, assigned to, or detailed to any such agency; or
any expert or consultant under contract to any such agency; or any
employee of a contractor to such agency; or any individual applying for
a position in any such agency; or any individual assigned to a space
where sensitive cryptologic information is produced, processed, or
stored for any such agency.
(d) Section 7(b)(2)(B) of the EPPA, incorporated into the CAA under
section 225(f) of the CAA, provides that nothing in the EPPA shall be
construed to prohibit the administration of any lie detector test by
the Federal Government, in the performance of any intelligence or
counterintelligence function, to any covered employee whose duties
involve access to information that has been classified at the level of
top secret or designated as being within a special access program under
section 4.2 (a) of Executive Order 12356 (or a successor Executive
order).
(c) Counterintelligence for purposes of the above paragraphs means
information gathered and activities conducted to protect against
espionage and other clandestine intelligence activities, sabotage,
terrorist activities, or assassinations conducted for or on behalf of
foreign governments, or foreign or domestic organizations or persons.
(d) Lie detector tests of persons described in the above paragraphs
will be administered in accordance with applicable Department of
Defense directives and regulations, or other regulations and directives
governing the use of such tests by the United States Government, as
applicable.
SEC. 1.12 EXEMPTION FOR EMPLOYING OFFICES CONDUCTING INVESTIGATIONS OF
ECONOMIC LOSS OR INJURY.
(a) Section 7(d) of the EPPA, incorporated into the CAA under
section 225(f) of the CAA, provides a limited exemption from the
general prohibition on lie detector use for employers conducting
ongoing investigations of economic loss or injury to the employer's
business. An employing office may request an employee, subject to the
conditions set forth in sections 8 and 10 of the EPPA and sections
1.20, 1.22, 1.23, 1.24, 1.25, 1.26 and 1.35 of this part, to submit to
a polygraph test, but no other type of lie detector test, only if--
(1) The test is administered in connection with an ongoing
investigation involving economic loss or injury to the
employing office's operations, such as theft, embezzlement,
misappropriation or an act of unlawful industrial espionage or
sabotage;
(2) The employee had access to the property that is the
subject of the investigation;
(3) The employing office has a reasonable suspicion that
the employee was involved in the incident or activity under
investigation;
(4) The employing office provides the examinee with a
statement, in a language understood by the examinee, prior to
the test which fully explains with particularity the specific
incident or activity being investigated and the basis for
testing particular employees and which contains, at a minimum:
(i) An identification with particularity of the
specific economic loss or injury to the operations of
the employing office;
(ii) A description of the employee's access to the
property that is the subject of the investigation;
(iii) A description in detail of the basis of the
employing office's reasonable suspicion that the
employee was involved in the incident or activity under
investigation; and
(iv) Signature of a person (other than a polygraph
examiner) authorized to legally bind the employing
office; and
(5) The employing office retains a copy of the statement
and proof of service described in paragraph (a)(4) of this
section for at least 3 years.
(b) For the exemption to apply, the condition of an ``ongoing
investigation'' must be met. As used in section 7(d) of the EPPA, the
ongoing investigation must be of a specific incident or activity. Thus,
for example, an employing office may not request that an employee or
employees submit to a polygraph test in an effort to determine whether
or not any thefts have occurred. Such random testing by an employing
office is precluded by the EPPA. Further, because the exemption is
limited to a specific incident or activity, an employing office is
precluded from using the exemption in situations where the so-called
``ongoing investigation'' is continuous. For example, the fact that
items are frequently missing would not be a sufficient basis, standing
alone, for administering a polygraph test. Even if the employing office
can establish that unusually high amounts of property are missing in a
given month, this, in and of itself, would not be a sufficient basis to
meet the specific incident requirement. On the other hand, polygraph
testing in response to missing property would be permitted where
additional evidence is obtained through subsequent investigation of
specific items missing through intentional wrongdoing, and a reasonable
suspicion that the employee to be polygraphed was involved in the
incident under investigation. Administering a polygraph test in
circumstances where the missing property is merely unspecified,
statistical shortages, without identification of a specific incident or
activity that produced the missing property and a ``reasonable
suspicion that the employee was involved'', would amount to little more
than a fishing expedition and is prohibited by the EPPA as applied to
covered employees and employing offices by the CAA.
(c)(1)(i) The terms economic loss or injury to the employing
office's operations include both direct and indirect economic loss or
injury.
(ii) Direct loss or injury includes losses or injuries resulting
from theft, embezzlement, misappropriation, espionage or sabotage.
These examples, cited in the EPPA, are intended to be illustrative and
not exhaustive. Another specific incident which would constitute direct
economic loss or injury is the misappropriation of confidential or
trade secret information.
(iii) Indirect loss or injury includes the use of an employing
office's operations to commit a crime, such as check-kiting or money
laundering. In such cases, the ongoing investigation must be limited to
criminal activity that has already occurred, and to use of the
employing office's operations (and not simply the use of the premises)
for such activity. For example, the use of an employing office's
vehicles, warehouses, computers or equipment to smuggle or facilitate
the importing of illegal substances constitutes an indirect loss or
injury to the employing office's business operations. Conversely, the
mere fact that an illegal act occurs on the employing office's premises
(such as a drug transaction that takes place in the employing office's
parking lot or rest room) does not constitute an indirect economic loss
or injury to the employing office.
(iv) Indirect loss or injury also includes theft or injury to
property of another for which the employing office exercises fiduciary,
managerial or security responsibility, or where the office has custody
of the property (but not property of other offices to which the
employees have access by virtue of the employment relationship). For
example, if a maintenance employee of the manager of an apartment
building steals jewelry from a tenant's apartment, the theft results in
an indirect economic loss or injury to the employer because of the
manager's management responsibility with respect to the tenant's
apartment. A messenger on a delivery of confidential business reports
for a client firm who steals the reports causes an indirect economic
loss or injury to the messenger service because the messenger service
is custodian of the client firm's reports, and therefore is responsible
for their security. Similarly, the theft of property protected by a
security service employer is considered an economic loss or injury to
that employer.
(v) A theft or injury to a client firm does not constitute an
indirect loss or injury to an employing office unless that employing
office has custody of, or management, or security responsibility for,
the property of the client that was lost or stolen or injured. For
example, a cleaning contractor has no responsibility for the money at a
client bank. If money is stolen from the bank by one of the cleaning
contractor's employees, the cleaning contractor does not suffer an
indirect loss or injury.
(vi) Indirect loss or injury does not include loss or injury which
is merely threatened or potential, e.g., a threatened or potential loss
of an advantageous business relationship.
(2) Economic losses or injuries which are the result of
unintentional or lawful conduct would not serve as a basis for the
administration of a polygraph test. Thus, apparently unintentional
losses or injuries stemming from truck, car, workplace, or other
similar type accidents or routine inventory or cash register shortages
would not meet the economic loss or injury requirement. Any economic
loss incident to lawful union or employee activity also would not
satisfy this requirement.
(3) It is the operations of the employing office which must suffer
the economic loss or injury. Thus, a theft committed by one employee
against another employee of the same employing office would not satisfy
the requirement.
(d) While nothing in the EPPA as applied by the CAA prohibits the
use of medical tests to determine the presence of controlled substances
or alcohol in bodily fluids, the section 7(d) exemption of the EPPA
does not permit the use of a polygraph test to learn whether an
employee has used drugs or alcohol, even where such possible use may
have contributed to an economic loss to the employing office (e.g., an
accident involving an employing office's vehicle).
(e) Section 7(d)(2) of the EPPA provides that, as a condition for
the use of the exemption, the employee must have had access to the
property that is the subject of the investigation.
(1) The word access, as used in section 7(d)(2), refers to
the opportunity which an employee had to cause, or to aid or
abet in causing, the specific economic loss or injury under
investigation. The term ``access'', thus, includes more than
direct or physical contact during the course of employment. For
example, as a general matter, all employees working in or with
authority to enter a property storage area have ``access'' to
unsecured property in the area. All employees with the
combination to a safe have ``access'' to the property in a
locked safe. Employees also have ``access'' who have the
ability to divert possession or otherwise affect the
disposition of the property that is the subject of
investigation. For example, a bookkeeper in a jewelry store
with access to inventory records may aid or abet a clerk who
steals an expensive watch by removing the watch from the
employing office's inventory records. In such a situation, it
is clear that the bookkeeper effectively has ``access'' to the
property that is the subject of the investigation.
(2) As used in section 7(d)(2), property refers to
specifically identifiable property, but also includes such
things of value as security codes and computer data, and
proprietary, financial or technical information, such as trade
secrets, which by its availability to competitors or others
would cause economic harm to the employing office.
(f)(1) As used in section 7(d)(3), the term reasonable suspicion
refers to an observable, articulable basis in fact which indicates that
a particular employee was involved in, or responsible for, an economic
loss. Access in the sense of possible or potential opportunity,
standing alone, does not constitute a basis for ``reasonable
suspicion''. Information from a co-worker, or an employee's behavior,
demeanor, or conduct may be factors in the basis for reasonable
suspicion. Likewise, inconsistencies between facts, claims, or
statements that surface during an investigation can serve as a
sufficient basis for reasonable suspicion. While access or opportunity,
standing alone, does not constitute a basis for reasonable suspicion,
the totality of circumstances surrounding the access or opportunity
(such as its unauthorized or unusual nature or the fact that access was
limited to a single individual) may constitute a factor in determining
whether there is a reasonable suspicion.
(2) For example, in an investigation of a theft of an expensive
piece of jewelry, an employee authorized to open the establishment's
safe no earlier than 9 a.m., in order to place the jewelry in a window
display case, is observed opening the safe at 7:30 a.m. In such a
situation, the opening of the safe by the employee one and one-half
hours prior to the specified time may serve as the basis for reasonable
suspicion. On the other hand, in the example given, if the employee is
asked to bring the piece of jewelry to his or her office at 7:30 a.m.,
and the employee then opened the safe and reported the jewelry missing,
such access, standing alone, would not constitute a basis for
reasonable suspicion that the employee was involved in the incident
unless access to the safe was limited solely to the employee. If no one
other than the employee possessed the combination to the safe, and all
other possible explanations for the loss are ruled out, such as a
break-in, a basis for reasonable suspicion may be formulated based on
sole access by one employee.
(3) The employing office has the burden of establishing that the
specific individual or individuals to be tested are ``reasonably
suspected'' of involvement in the specific economic loss or injury for
the requirement in section 7(d)(3) of the EPPA to be met.
(g)(1) As discussed in paragraph (a)(4) of this section, section
7(d)(4) of the EPPA sets forth what information, at a minimum, must be
provided to an employee if the employing office wishes to claim the
exemption.
(2) The statement required under paragraph (a)(4) of this section
must be received by the employee at least 48 hours, excluding weekend
days and holidays, prior to the time of the examination. The statement
must set forth the time and date of receipt by the employee and be
verified by the employee's signature. This will provide the employee
with adequate pre-test notice of the specific incident or activity
being investigated and afford the employee sufficient time prior to the
test to obtain and consult with legal counsel or an employee
representative.
(3) The statement to be provided to the employee must set forth
with particularity the specific incident or activity being investigated
and the basis for testing particular employees. Section 7(d)(4)(A) of
the EPPA requires specificity beyond the mere assertion of general
statements regarding economic loss, employee access, and reasonable
suspicion. For example, an employing office's assertion that an
expensive watch was stolen, and that the employee had access to the
watch and is therefore a suspect, would not meet the ``with
particularity'' criterion. If the basis for an employing office's
requesting an employee (or employees) to take a polygraph test is not
articulated with particularity, and reduced to writing, then the
standard is not met. The identity of a co-worker or other individual
providing information used to establish reasonable suspicion need not
be revealed in the statement.
(4) It is further required that the statement provided to the
examinee be signed by the employing office, or an employee or other
representative of the employing office with authority to legally bind
the employing office. The person signing the statement must not be a
polygraph examiner unless the examiner is acting solely in the capacity
of an employing office with respect to his or her own employees and
does not conduct the examination. The standard would not be met, and
the exemption would not apply if the person signing the statement is
not authorized to legally bind the employing office.
(h) Polygraph tests administered pursuant to this exemption are
subject to the limitations set forth in sections 8 and 10 of the EPPA,
as discussed in sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35
of this part. As provided in these sections, the exemption will apply
only if certain requirements are met. Failure to satisfy any of the
specified requirements nullifies the statutory authority for polygraph
test administration and may subject the employing office to remedial
actions, as provided for in section 6(c) of the EPPA.
SEC. 1.13 EXEMPTION OF EMPLOYING OFFICES AUTHORIZED TO MANUFACTURE,
DISTRIBUTE, OR DISPENSE CONTROLLED SUBSTANCES.
(a) Section 7(f) of the EPPA, incorporated into the CAA by section
225(f) of the CAA, provides an exemption from the EPPA's general
prohibition regarding the use of polygraph tests for employers
authorized to manufacture, distribute, or dispense a controlled
substance listed in schedule I, II, III, or IV of section 202 of the
Controlled Substances Act (21 U.S.C. Sec. 812). This exemption permits
the administration of polygraph tests, subject to the conditions set
forth in sections 8 and 10 of the EPPA and sections 1.21, 1.22, 1.23,
1.24, 1.25, 1.26, and 1.35 of this part, to:
(1) A prospective employee who would have direct access to
the manufacture, storage, distribution, or sale of any such
controlled substance; or
(2) A current employee if the following conditions are met:
(i) The test is administered in connection with an
ongoing investigation of criminal or other misconduct
involving, or potentially involving, loss or injury to
the manufacture, distribution, or dispensing of any
such controlled substance by such employing office; and
(ii) The employee had access to the person or
property that is the subject of the investigation.
(b)(1) The terms manufacture, distribute, distribution, dispense,
storage, and sale, for the purposes of this exemption, are construed
within the meaning of the Controlled Substances Act (21 U.S.C. Sec. 812
et seq.), as administered by the Drug Enforcement Administration (DEA),
United States Department of Justice.
(2) The exemption in section 7(f) of the EPPA applies only to
employing offices that are authorized by DEA to manufacture,
distribute, or dispense a controlled substance. Section 202 of the
Controlled Substances Act (21 U.S.C. Sec. 812) requires every person
who manufactures, distributes, or dispenses any controlled substance to
register with the Attorney General (i.e., with DEA). Common or contract
carriers and warehouses whose possession of the controlled substance is
in the usual course of their business or employment are not required to
register. Truck drivers and warehouse employees of the persons or
entities registered with DEA and authorized to manufacture, distribute,
or dispense controlled substances, are within the scope of the
exemption where they have direct access or access to the controlled
substances, as discussed below.
(c) In order for a polygraph examination to be performed, section
7(f) of the Act requires that a prospective employee have ``direct
access'' to the controlled substance(s) manufactured, dispensed, or
distributed by the employing office. Where a current employee is to be
tested as a part of an ongoing investigation, section 7(f) requires
that the employee have ``access'' to the person or property that is the
subject of the investigation.
(1) A prospective employee would have ``direct access'' if
the position being applied for has responsibilities which
include contact with or which affect the disposition of a
controlled substance, including participation in the process of
obtaining, dispensing, or otherwise distributing a controlled
substance. This includes contact or direct involvement in the
manufacture, storage, testing, distribution, sale or dispensing
of a controlled substance and may include, for example,
packaging, repackaging, ordering, licensing, shipping,
receiving, taking inventory, providing security, prescribing,
and handling of a controlled substance. A prospective employee
would have ``direct access'' if the described job duties would
give such person access to the products in question, whether
such employee would be in physical proximity to controlled
substances or engaged in activity which would permit the
employee to divert such substances to his or her possession.
(2) A current employee would have ``access'' within the
meaning of section 7(f) if the employee had access to the
specific person or property which is the subject of the on-
going investigation, as discussed in section 1.12(e) of this
part. Thus, to test a current employee, the employee need not
have had ``direct'' access to the controlled substance, but may
have had only infrequent, random, or opportunistic access. Such
access would be sufficient to test the employee if the employee
could have caused, or could have aided or abetted in causing,
the loss of the specific property which is the subject of the
investigation. For example, a maintenance worker in a drug
warehouse, whose job duties include the cleaning of areas where
the controlled substances which are the subject of the
investigation were present, but whose job duties do not include
the handling of controlled substances, would be deemed to have
``access'', but normally not ``direct access'', to the
controlled substances. On the other hand, a drug warehouse
truck loader, whose job duties include the handling of outgoing
shipment orders which contain controlled substances, would have
``direct access'' to such controlled substances. A pharmacy
department in a supermarket is another common situation which
is useful in illustrating the distinction between ``direct
access'' and ``access''. Store personnel receiving
pharmaceutical orders, i.e., the pharmacist, pharmacy intern,
and other such employees working in the pharmacy department,
would ordinarily have ``direct access'' to controlled
substances. Other store personnel whose job duties and
responsibilities do not include the handling of controlled
substances but who had occasion to enter the pharmacy
department where the controlled substances which are the
subject of the investigation were stored, such as maintenance
personnel or pharmacy cashiers, would have ``access''. Certain
other store personnel whose job duties do not permit or require
entrance into the pharmacy department for any reason, such as
produce or meat clerks, checkout cashiers, or baggers, would
not ordinarily have ``access''. However, any current employee,
regardless of described job duties, may be polygraphed if the
employing office's investigation of criminal or other
misconduct discloses that such employee in fact took action to
obtain ``access'' to the person or property that is the subject
of the investigation--e.g., by actually entering the drug
storage area in violation of company rules. In the case of
``direct access'', the prospective employee's access to
controlled substances would be as a part of the manufacturing,
dispensing or distribution process, while a current employee's
``access'' to the controlled substances which are the subject
of the investigation need only be opportunistic.
(d) The term prospective employee, for the purposes of this
section, includes a current employee who presently holds a position
which does not entail direct access to controlled substances, and
therefore is outside the scope of the exemption's provisions for
preemployment polygraph testing, provided the employee has applied for
and is being considered for transfer or promotion to another position
which entails such direct access. For example, an office secretary may
apply for promotion to a position in the vault or cage areas of a drug
warehouse, where controlled substances are kept. In such a situation,
the current employee would be deemed a ``prospective employee'' for the
purposes of this exemption, and thus could be subject to preemployment
polygraph screening, prior to such a change in position. However, any
adverse action which is based in part on a polygraph test against a
current employee who is considered a ``prospective employee'' for
purposes of this section may be taken only with respect to the
prospective position and may not affect the employee's employment in
the current position.
(e) Section 7(f) of the EPPA, as applied by the CAA, makes no
specific reference to a requirement that employing offices provide
current employees with a written statement prior to polygraph testing.
Thus, employing offices to whom this exemption is available are not
required to furnish a written statement such as that specified in
section 7(d) of the EPPA and section 1.12(a)(4) of this part.
(f) For the section 7(f) exemption to apply, the polygraph testing
of current employees must be administered in connection with an ongoing
investigation of criminal or other misconduct involving, or potentially
involving, loss or injury to the manufacture, distribution, or
dispensing of any such controlled substance by such employing office.
(1) Current employees may only be administered polygraph
tests in connection with an ongoing investigation of criminal
or other misconduct, relating to a specific incident or
activity, or potential incident or activity. Thus, an employing
office is precluded from using the exemption in connection with
continuing investigations or on a random basis to determine if
thefts are occurring. However, unlike the exemption in section
7(d) of the EPPA for employing offices conducting ongoing
investigations of economic loss or injury, the section 7(f)
exemption includes ongoing investigations of misconduct
involving potential drug losses. Nor does the latter exemption
include the requirement for ``reasonable suspicion'' contained
in the section 7(d) exemption. Thus, a drug store operator is
permitted to polygraph all current employees who have access to
a controlled substance stolen from the inventory, or where
there is evidence that such a theft is planned. Polygraph
testing based on an inventory shortage of the drug during a
particular accounting period would not be permitted unless
there is extrinsic evidence of misconduct.
(2) In addition, the test must be administered in
connection with loss or injury, or potential loss or injury, to
the manufacture, distribution, or dispensing of a controlled
substance.
(i) Retail drugstores and wholesale drug warehouses
typically carry inventory of so-called health and
beauty aids, cosmetics, over-the-counter drugs, and a
variety of other similar products, in addition to their
product lines of controlled drugs. The noncontrolled
products usually constitute the majority of such firms'
sales volumes. An economic loss or injury related to
such noncontrolled substances would not constitute a
basis of applicability of the section 7(f) exemption.
For example, an investigation into the theft of a gross
of cosmetic products could not be a basis for polygraph
testing under section 7(f), but the theft of a
container of valium could be.
(ii) Polygraph testing, with respect to an ongoing
investigation concerning products other than controlled
substances might be initiated under section 7(d) of the
EPPA and section 1.12 of this part. However, the
exemption in section 7(f) of the EPPA and this section
is limited solely to losses or injury associated with
controlled substances.
(g) Polygraph tests administered pursuant to this exemption are
subject to the limitations set forth in sections 8 and 10 of the EPPA,
as discussed in sections 1.21, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35
of this part. As provided in these sections, the exemption will apply
only if certain requirements are met. Failure to satisfy any of the
specified requirements nullifies the statutory authority for polygraph
test administration and may subject the employing office to the
remedies authorized in section 204 of the CAA. The administration of
such tests is also subject to collective bargaining agreements, which
may either prohibit lie detector tests, or contain more restrictive
provisions with respect to polygraph testing.
Subpart C--Restrictions on Polygraph Usage Under Exemptions
SEC. 1.20 ADVERSE EMPLOYMENT ACTION UNDER ONGOING INVESTIGATION
EXEMPTION.
(a) Section 8(a)(1) of the EPPA provides that the limited exemption
in section 7(d) of the EPPA and section 1.12 of this part for ongoing
investigations shall not apply if an employing office discharges,
disciplines, denies employment or promotion or otherwise discriminates
in any manner against a current employee based upon the analysis of a
polygraph test chart or the refusal to take a polygraph test, without
additional supporting evidence.
(b) ``Additional supporting evidence'', for purposes of section
8(a) of the EPPA, includes, but is not limited to, the following:
(1)(i) Evidence indicating that the employee had access to
the missing or damaged property that is the subject of an
ongoing investigation; and
(ii) Evidence leading to the employing office's reasonable
suspicion that the employee was involved in the incident or
activity under investigation; or
(2) Admissions or statements made by an employee before,
during or following a polygraph examination.
(c) Analysis of a polygraph test chart or refusal to take a
polygraph test may not serve as a basis for adverse employment action,
even with additional supporting evidence, unless the employing office
observes all the requirements of sections 7(d) and 8(b) of the EPPA, as
applied by the CAA and described in sections 1.12, 1.22, 1.23, 1.24 and
1.25 of this part.
SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED SUBSTANCE
EXEMPTION.
(a) Section 8(a)(2) of the EPPA provides that the controlled
substance exemption in section 7(f) of the EPPA and section 1.13 of
this part shall not apply if an employing office discharges,
disciplines, denies employment or promotion, or otherwise discriminates
in any manner against a current employee or prospective employee based
solely on the analysis of a polygraph test chart or the refusal to take
a polygraph test.
(b) Analysis of a polygraph test chart or refusal to take a
polygraph test may serve as one basis for adverse employment actions of
the type described in paragraph (a) of this section: Provided, That the
adverse action was also based on another bona fide reason, with
supporting evidence therefor. For example, traditional factors such as
prior employment experience, education, job performance, etc. may be
used as a basis for employment decisions. Employment decisions based on
admissions or statements made by an employee or prospective employee
before, during or following a polygraph examination may, likewise,
serve as a basis for such decisions.
(c) Analysis of a polygraph test chart or the refusal to take a
polygraph test may not serve as a basis for adverse employment action,
even with another legitimate basis for such action, unless the
employing office observes all the requirements of section 7(f) of the
EPPA, as appropriate, and section 8(b) of the EPPA, as described in
sections 1.13, 1.22, 1.23, 1.24 and 1.25 of this part.
SEC. 1.22 RIGHTS OF EXAMINEE--GENERAL.
(a) Pursuant to section 8(b) of the EPPA, the limited exemption in
section 7(d) of the EPPA for ongoing investigations (described in
sections 1.12 and 1.13 of this part) shall not apply unless all of the
requirements set forth in this section and sections 1.23 through 1.25
of this part are met.
(b) During all phases of the polygraph testing the person being
examined has the following rights:
(1) The examinee may terminate the test at any time.
(2) The examinee may not be asked any questions in a
degrading or unnecessarily intrusive manner.
(3) The examinee may not be asked any questions dealing
with:
(i) Religious beliefs or affiliations;
(ii) Beliefs or opinions regarding racial matters;
(iii) Political beliefs or affiliations;
(iv) Sexual preferences or behavior; or
(v) Beliefs, affiliations, opinions, or lawful
activities concerning unions or labor organizations.
(4) The examinee may not be subjected to a test when there
is sufficient written evidence by a physician that the examinee
is suffering from any medical or psychological condition or
undergoing any treatment that might cause abnormal responses
during the actual testing phase. ``Sufficient written
evidence'' shall constitute, at a minimum, a statement by a
physician specifically describing the examinee's medical or
psychological condition or treatment and the basis for the
physician's opinion that the condition or treatment might
result in such abnormal responses.
(5) An employee or prospective employee who exercises the
right to terminate the test, or who for medical reasons with
sufficient supporting evidence is not administered the test,
shall be subject to adverse employment action only on the same
basis as one who refuses to take a polygraph test, as described
in sections 1.20 and 1.21 of this part.
(c) Any polygraph examination shall consist of one or more pretest
phases, actual testing phases, and post-test phases, which must be
conducted in accordance with the rights of examinees described in
sections 1.23 through 1.25 of this part.
SEC. 1.23 RIGHTS OF EXAMINEE--PRETEST PHASE.
(a) The pretest phase consists of the questioning and other
preparation of the prospective examinee before the actual use of the
polygraph instrument. During the initial pretest phase, the examinee
must be:
(1) Provided with written notice, in a language understood
by the examinee, as to when and where the examination will take
place and that the examinee has the right to consult with
counsel or an employee representative before each phase of the
test. Such notice shall be received by the examinee at least
forty-eight hours, excluding weekend days and holidays, before
the time of the examination, except that a prospective employee
may, at the employee's option, give written consent to
administration of a test anytime within 48 hours but no earlier
than 24 hours after receipt of the written notice. The written
notice or proof of service must set forth the time and date of
receipt by the employee or prospective employee and be verified
by his or her signature. The purpose of this requirement is to
provide a sufficient opportunity prior to the examination for
the examinee to consult with counsel or an employee
representative. Provision shall also be made for a convenient
place on the premises where the examination will take place at
which the examinee may consult privately with an attorney or an
employee representative before each phase of the test. The
attorney or representative may be excluded from the room where
the examination is administered during the actual testing
phase.
(2) Informed orally and in writing of the nature and
characteristics of the polygraph instrument and examination,
including an explanation of the physical operation of the
polygraph instrument and the procedure used during the
examination.
(3) Provided with a written notice prior to the testing
phase, in a language understood by the examinee, which shall be
read to and signed by the examinee. Use of Appendix A to this
part, if properly completed, will constitute compliance with
the contents of the notice requirement of this paragraph. If a
format other than in Appendix A is used, it must contain at
least the following information:
(i) Whether or not the polygraph examination area
contains a two-way mirror, a camera, or other device
through which the examinee may be observed;
(ii) Whether or not any other device, such as those
used in conversation or recording will be used during
the examination;
(iii) That both the examinee and the employing
office have the right, with the other's knowledge, to
make a recording of the entire examination;
(iv) That the examinee has the right to terminate
the test at any time;
(v) That the examinee has the right, and will be
given the opportunity, to review all questions to be
asked during the test;
(vi) That the examinee may not be asked questions
in a manner which degrades, or needlessly intrudes;
(vii) That the examinee may not be asked any
questions concerning religious beliefs or opinions;
beliefs regarding racial matters; political beliefs or
affiliations; matters relating to sexual behavior;
beliefs, affiliations, opinions, or lawful activities
regarding unions or labor organizations;
(viii) That the test may not be conducted if there
is sufficient written evidence by a physician that the
examinee is suffering from a medical or psychological
condition or undergoing treatment that might cause
abnormal responses during the examination;
(ix) That the test is not and cannot be required as
a condition of employment;
(x) That the employing office may not discharge,
dismiss, discipline, deny employment or promotion, or
otherwise discriminate against the examinee based on
the analysis of a polygraph test, or based on the
examinee's refusal to take such a test, without
additional evidence which would support such action;
(xi)(A) In connection with an ongoing
investigation, that the additional evidence required
for the employing office to take adverse action against
the examinee, including termination, may be evidence
that the examinee had access to the property that is
the subject of the investigation, together with
evidence supporting the employing office's reasonable
suspicion that the examinee was involved in the
incident or activity under investigation;
(B) That any statement made by the examinee before
or during the test may serve as additional supporting
evidence for an adverse employment action, as described
in paragraph (a)(3)(x) of this section, and that any
admission of criminal conduct by the examinee may be
transmitted to an appropriate Government law
enforcement agency;
(xii) That information acquired from a polygraph
test may be disclosed by the examiner or by the
employing office only:
(A) To the examinee or any other person
specifically designated in writing by the
examinee to receive such information;
(B) To the employing office that requested
the test;
(C) To a court, governmental agency,
arbitrator, or mediator pursuant to a court
order;
(D) By the employing office, to an
appropriate governmental agency without a court
order where, and only insofar as, the
information disclosed is an admission of
criminal conduct;
(xiii) That if any of the examinee's rights or
protections under the law are violated, the examinee
has the right to take action against the employing
office under sections 401-404 of the CAA. Employing
offices that violate this law are liable to the
affected examinee, who may recover such legal or
equitable relief as may be appropriate, including, but
not limited to, employment, reinstatement, and
promotion, payment of lost wages and benefits, and
reasonable costs, including attorney's fees;
(xiv) That the examinee has the right to obtain and
consult with legal counsel or other representative
before each phase of the test, although the legal
counsel or representative may be excluded from the room
where the test is administered during the actual
testing phase.
(xv) That the employee's rights under the CAA may
not be waived, either voluntarily or involuntarily, by
contract or otherwise, except as part of a written
settlement to a pending action or complaint under the
CAA, agreed to and signed by the parties.
(b) During the initial or any subsequent pretest phases, the
examinee must be given the opportunity, prior to the actual testing
phase, to review all questions in writing that the examiner will ask
during each testing phase. Such questions may be presented at any point
in time prior to the testing phase.
SEC. 1.24 RIGHTS OF EXAMINEE--ACTUAL TESTING PHASE.
(a) The actual testing phase refers to that time during which the
examiner administers the examination by using a polygraph instrument
with respect to the examinee and then analyzes the charts derived from
the test. Throughout the actual testing phase, the examiner shall not
ask any question that was not presented in writing for review prior to
the testing phase. An examiner may, however, recess the testing phase
and return to the pre-test phase to review additional relevant
questions with the examinee. In the case of an ongoing investigation,
the examiner shall ensure that all relevant questions (as distinguished
from technical baseline questions) pertain to the investigation.
(b) No testing period subject to the provisions of the Act shall be
less than ninety minutes in length. Such ``test period'' begins at the
time that the examiner begins informing the examinee of the nature and
characteristics of the examination and the instruments involved, as
prescribed in section 8(b)(2)(B) of the EPPA and section 1.23(a)(2) of
this part, and ends when the examiner completes the review of the test
results with the examinee as provided in section 1.25 of this part. The
ninety-minute minimum duration shall not apply if the examinee
voluntarily acts to terminate the test before the completion thereof,
in which event the examiner may not render an opinion regarding the
employee's truthfulness.
SEC. 1.25 RIGHTS OF EXAMINEE--POST-TEST PHASE.
(a) The post-test phase refers to any questioning or other
communication with the examinee following the use of the polygraph
instrument, including review of the results of the test with the
examinee. Before any adverse employment action, the employing office
must:
(1) Further interview the examinee on the basis of the test
results; and
(2) Give to the examinee a written copy of any opinions or
conclusions rendered in response to the test, as well as the
questions asked during the test, with the corresponding charted
responses. The term ``corresponding charted responses'' refers
to copies of the entire examination charts recording the
employee's physiological responses, and not just the examiner's
written report which describes the examinee's responses to the
questions as ``charted'' by the instrument.
SEC. 1.26 QUALIFICATIONS OF AND REQUIREMENTS FOR EXAMINERS.
(a) Section 8 (b) and (c) of the EPPA provides that the limited
exemption in section 7(d) of the EPPA for ongoing investigations shall
not apply unless the person conducting the polygraph examination meets
specified qualifications and requirements.
(b) An examiner must meet the following qualifications:
(1) Have a valid current license, if required by the State
in which the test is to be conducted; and
(2) Carry a minimum bond of $50,000 provided by a surety
incorporated under the laws of the United States or of any
State, which may under those laws guarantee the fidelity of
persons holding positions of trust, or carry an equivalent
amount of professional liability coverage.
(c) An examiner must also, with respect to examinees identified by
the employing office pursuant to section 1.30(c) of this part:
(1) Observe all rights of examinees, as set out in sections
1.22, 1.23, 1.24, and 1.25 of this part;
(2) Administer no more than five polygraph examinations in
any one calendar day on which a test or tests subject to the
provisions of EPPA are administered, not counting those
instances where an examinee voluntarily terminates an
examination prior to the actual testing phase;
(3) Administer no polygraph examination subject to the
provisions of the EPPA which is less than ninety minutes in
duration, as described in section 1.24(b) of this part; and
(4) Render any opinion or conclusion regarding truthfulness
or deception in writing. Such opinion or conclusion must be
based solely on the polygraph test results. The written report
shall not contain any information other than admissions,
information, case facts, and interpretation of the charts
relevant to the stated purpose of the polygraph test and shall
not include any recommendation concerning the employment of the
examinee.
(5) Maintain all opinions, reports, charts, written
questions, lists, and other records relating to the test,
including, statements signed by examinees advising them of
rights under the CAA (as described in section 1.23(a)(3) of
this part) and any electronic recordings of examinations, for
at least three years from the date of the administration of the
test. (See section 1.30 of this part for recordkeeping
requirements.)
Subpart D--Recordkeeping and Disclosure Requirements
SEC. 1.30 RECORDS TO BE PRESERVED FOR 3 YEARS.
(a) The following records shall be kept for a minimum period of
three years from the date the polygraph examination is conducted (or
from the date the examination is requested if no examination is
conducted):
(1) Each employing office that requests an employee to
submit to a polygraph examination in connection with an ongoing
investigation involving economic loss or injury shall retain a
copy of the statement that sets forth the specific incident or
activity under investigation and the basis for testing that
particular covered employee, as required by section 7(d)(4) of
the EPPA and described in 1.12(a)(4) of this part.
(2) Each examiner retained to administer examinations
pursuant to any of the exemptions under section 7 (d), (e) or
(f) of the EPPA (described in sections 1.12 and 1.13 of this
part) shall maintain all opinions, reports, charts, written
questions, lists, and other records relating to polygraph tests
of such persons.
SEC. 1.35 DISCLOSURE OF TEST INFORMATION.
This section prohibits the unauthorized disclosure of any
information obtained during a polygraph test by any person, other than
the examinee, directly or indirectly, except as follows:
(a) A polygraph examiner or an employing office (other than an
employing office exempt under section 7 (a) or (b) of the EPPA
(described in sections 1.10 and 1.11 of this part)) may disclose
information acquired from a polygraph test only to:
(1) The examinee or an individual specifically designated
in writing by the examinee to receive such information;
(2) The employing office that requested the polygraph test
pursuant to the provisions of the EPPA (including management
personnel of the employing office where the disclosure is
relevant to the carrying out of their job responsibilities);
(3) Any court, governmental agency, arbitrator, or mediator
pursuant to an order from a court of competent jurisdiction
requiring the production of such information;
(b) An employing office may disclose information from the polygraph
test at any time to an appropriate governmental agency without the need
of a court order where, and only insofar as, the information disclosed
is an admission of criminal conduct.
(c) A polygraph examiner may disclose test charts, without
identifying information (but not other examination materials and
records), to another examiner(s) for examination and analysis, provided
that such disclosure is for the sole purpose of consultation and review
of the initial examiner's opinion concerning the indications of
truthfulness or deception. Such action would not constitute disclosure
under this part provided that the other examiner has no direct or
indirect interest in the matter.
Subpart E--[Reserved]
SEC. 1.40 [RESERVED].
Appendix A to Part 801--Notice to Examinee
Section 204 of the Congressional Accountability Act, which applies
the rights and protections of section 8(b) of the Employee Polygraph
Protection Act to covered employees and employing offices, and the
regulations of the Board of Directors of the Office of Compliance
(sections 1.22, 1.23, 1.24, and 1.25), require that you be given the
following information before taking a polygraph examination:
1. (a) The polygraph examination area [does] [does not] contain a
two-way mirror, a camera, or other device through which you may be
observed.
(b) Another device, such as those used in conversation or recording
[will] [will not] be used during the examination.
(c) Both you and the employing office have the right, with the other's
knowledge, to record electronically the entire examination.
2. (a) You have the right to terminate the test at any time.
(b) You have the right, and will be given the opportunity, to review
all questions to be asked during the test.
(c) You may not be asked questions in a manner which degrades, or
needlessly intrudes.
(d) You may not be asked any questions concerning: Religious beliefs or
opinions; beliefs regarding racial matters; political beliefs or
affiliations; matters relating to sexual preference or behavior;
beliefs, affiliations, opinions, or lawful activities regarding unions
or labor organizations.
(e) The test may not be conducted if there is sufficient written
evidence by a physician that you are suffering from a medical or
psychological condition or undergoing treatment that might cause
abnormal responses during the examination.
(f) You have the right to consult with legal counsel or other
representative before each phase of the test, although the legal
counsel or other representative may be excluded from the room where the
test is administered during the actual testing phase.
3. (a) The test is not and cannot be required as a condition of
employment.
(b) The employing office may not discharge, dismiss, discipline, deny
employment or promotion, or otherwise discriminate against you based on
the analysis of a polygraph test, or based on your refusal to take such
a test without additional evidence which would support such action.
(c)(1) In connection with an ongoing investigation, the additional
evidence required for an employing office to take adverse action
against you, including termination, may be (A) evidence that you had
access to the property that is the subject of the investigation,
together with (B) the evidence supporting the employing office's
reasonable suspicion that you were involved in the incident or activity
under investigation.
(2) Any statement made by you before or during the test may serve as
additional supporting evidence for an adverse employment action, as
described in 3(b) above, and any admission of criminal conduct by you
may be transmitted to an appropriate Government law enforcement agency.
4. (a) Information acquired from a polygraph test may be disclosed by
the examiner or by the employing office only:
(1) To you or any other person specifically designated in
writing by you to receive such information;
(2) To the employing office that requested the test;
(3) To a court, governmental agency, arbitrator, or mediator
that obtains a court order.
(b) Information acquired from a polygraph test may be disclosed by the
employing office to an appropriate governmental agency without a court
order where, and only insofar as, the information disclosed is an
admission of criminal conduct.
5. If any of your rights or protections under the law are violated, you
have the right to take action against the employing office by filing a
request for counseling with the Office of Compliance under section 402
of the Congressional Accountability Act. Employing offices that violate
this law are liable to the affected examinee, who may recover such
legal or equitable relief as may be appropriate, including, but not
limited to, employment, reinstatement, and promotion, payment of lost
wages and benefits, and reasonable costs, including attorney's fees.
6. Your rights under the CAA may not be waived, either voluntarily or
involuntarily, by contract or otherwise, except as part of a written
settlement to a pending action or complaint under the CAA, and agreed
to and signed by the parties.
I acknowledge that I have received a copy of the above notice, and that
it has been read to me.
________________________________________
(Date)
________________________________________
(Signature)
APPLICATION OF RIGHTS AND PROTECTIONS OF THE WORKER ADJUSTMENT
RETRAINING AND NOTIFICATION ACT OF 1988 (IMPLEMENTING SECTION 204 OF
THE CAA)
Sec.
639.1 Purpose and scope.
639.2 What does WARN require?
639.3 Definitions.
639.4 Who must give notice?
639.5 When must notice be given?
639.6 Who must receive notice?
639.7 What must the notice contain?
639.8 How is the notice served?
639.9 When may notice be given less than 60 days in advance?
639.10 When may notice be extended?
639.11 [Reserved].
Sec. 639.1 Purpose and scope
(a) Purpose of WARN as Applied by the CAA.--Section 205 of the
Congressional Accountability Act, Public Law 104-1 (``CAA''), provides
protection to covered employees and their families by requiring
employing offices to provide notification 60 calendar days in advance
of office closings and mass layoffs within the meaning of section 3 of
the Worker Adjustment and Retraining Notification Act of 1988, 29
U.S.C. Sec. 2102. Advance notice provides workers and their families
some transition time to adjust to the prospective loss of employment,
to seek and obtain alternative jobs and, if necessary, to enter skill
training or retraining that will allow these workers to successfully
compete in the job market. As used in these regulations, WARN shall
refer to the provisions of WARN applied to covered employing offices by
section 205 of the CAA.
(b) Scope of These Regulations.--These regulations are issued by
the Board of Directors, Office of Compliance, pursuant to sections
205(c) and 304 of the CAA, which directs the Board to promulgate
regulations implementing section 205 that are ``the same as substantive
regulations promulgated by the Secretary of Labor to implement the
statutory provisions referred to in subsection (a) [of section 205 of
the CAA] except insofar as the Board may determine, for good cause
shown . . . that a modification of such regulations would be more
effective for the implementation of the rights and protections under
this section''. The regulations issued by the Board herein are on all
matters for which section 205 of the CAA requires a regulation to be
issued. Specifically, it is the Board's considered judgment, based on
the information available to it at the time of promulgation of these
regulations, that, with the exception of regulations adopted and set
forth herein, there are no other ``substantive regulations promulgated
by the Secretary of Labor to implement the statutory provisions
referred to in subsection (a) [of section 205 of the CAA]''.
In promulgating these regulations, the Board has made certain
technical and nomenclature changes to the regulations as promulgated by
the Secretary. Such changes are intended to make the provisions adopted
accord more naturally to situations in the legislative branch. However,
by making these changes, the Board does not intend a substantive
difference between these sections and those of the Secretary from which
they are derived. Moreover, such changes, in and of themselves, are not
intended to constitute an interpretation of the regulation or of the
statutory provisions of the CAA upon which they are based.
These regulations establish basic definitions and rules for giving
notice, implementing the provisions of WARN. The objective of these
regulations is to establish clear principles and broad guidelines which
can be applied in specific circumstances. However, it is recognized
that rulemaking cannot address the multitude of employing office-
specific situations in which advance notice will be given.
(c) Notice in Ambiguous Situations.--It is civically desirable and
it would appear to be good business practice for an employing office to
provide advance notice, where reasonably possible, to its workers or
unions when terminating a significant number of employees. The Office
encourages employing offices to give notice in such circumstances.
(d) WARN not to Supersede Other Laws and Contracts.--The provisions
of WARN do not supersede any otherwise applicable laws or collective
bargaining agreements that provide for additional notice or additional
rights and remedies. If such law or agreement provides for a longer
notice period, WARN notice shall run concurrently with that additional
notice period. Collective bargaining agreements may be used to clarify
or amplify the terms and conditions of WARN, but may not reduce WARN
rights.
Sec. 639.2 What does WARN require?
WARN requires employing offices that are planning an office closing
or a mass layoff to give affected employees at least 60 days' notice of
such an employment action. While the 60-day period is the minimum for
advance notice, this provision is not intended to discourage employing
offices from voluntarily providing longer periods of advance notice.
Not all office closings and layoffs are subject to WARN, and certain
employment thresholds must be reached before WARN applies. WARN sets
out specific exemptions, and provides for a reduction in the
notification period in particular circumstances. Remedies authorized
under section 205 of the CAA may be assessed against employing offices
that violate WARN requirements.
Sec. 639.3 Definitions
(a) Employing Office.--(1) The term ``employing office'' means any
of the entities listed in section 101(9) of the CAA, 2 U.S.C.
Sec. 1301(9) that employs--
(i) 100 or more employees, excluding part-time employees;
or
(ii) employs 100 or more employees, including part-time
employees, who in the aggregate work at least 4,000 hours per
week, exclusive of overtime.
Workers on temporary layoff or on leave who have a reasonable
expectation of recall are counted as employees. An employee has a
``reasonable expectation of recall'' when he/she understands, through
notification or through common practice, that his/her employment with
the employing office has been temporarily interrupted and that he/she
will be recalled to the same or to a similar job.
(2) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN, are nonetheless counted as employees
for purposes of determining coverage as an employing office.
(3) An employing office may have one or more sites of employment
under common control.
(b) Office Closing.--The term ``office closing'' means the
permanent or temporary shutdown of a ``single site of employment'', or
one or more ``facilities or operating units'' within a single site of
employment, if the shutdown results in an ``employment loss'' during
any 30-day period at the single site of employment for 50 or more
employees, excluding any part-time employees. An employment action that
results in the effective cessation of the work performed by a unit,
even if a few employees remain, is a shutdown. A ``temporary shutdown''
triggers the notice requirement only if there are a sufficient number
of terminations, layoffs exceeding 6 months, or reductions in hours of
work as specified under the definition of ``employment loss''.
(c) Mass Layoff.--(1) The term ``mass layoff'' means a reduction in
force which first, is not the result of an office closing, and second,
results in an employment loss at the single site of employment during
any 30-day period for:
(i) At least 33 percent of the active employees, excluding
part-time employees, and
(ii) At least 50 employees, excluding part-time employees.
Where 500 or more employees (excluding part-time employees) are
affected, the 33 percent requirement does not apply, and notice is
required if the other criteria are met. Office closings involve
employment loss which results from the shutdown of one or more distinct
units within a single site or the entire site. A mass layoff involves
employment loss, regardless of whether one or more units are shut down
at the site.
(2) Workers, other than part-time workers, who are exempt from
notice under section 4 of WARN are nonetheless counted as employees for
purposes of determining coverage as an office closing or mass layoff.
For example, if an employing office closes a temporary project on which
10 permanent and 40 temporary workers are employed, a covered office
closing has occurred although only 10 workers are entitled to notice.
(d) Representative.--The term ``representative'' means an exclusive
representative of employees within the meaning of 5 U.S.C.
Sec. Sec. 7101 et seq., as applied to covered employees and employing
offices by section 220 of the CAA, 2 U.S.C. Sec. 1351.
(e) Affected Employees.--The term ``affected employees'' means
employees who may reasonably be expected to experience an employment
loss as a consequence of a proposed office closing or mass layoff by
their employing office. This includes individually identifiable
employees who will likely lose their jobs because of bumping rights or
other factors, to the extent that such individual workers reasonably
can be identified at the time notice is required to be given. The term
affected employees includes managerial and supervisory employees.
Consultant or contract employees who have a separate employment
relationship with another employing office or employer and are paid by
that other employing office or employer, or who are self-employed, are
not ``affected employees'' of the operations to which they are
assigned. In addition, for purposes of determining whether coverage
thresholds are met, either incumbent workers in jobs being eliminated
or, if known 60 days in advance, the actual employees who suffer an
employment loss may be counted.
(f) Employment Loss.--(1) The term employment loss means (i) an
employment termination, other than a discharge for cause, voluntary
departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a
reduction in hours of work of individual employees of more than 50
percent during each month of any 6-month period.
(2) Where a termination or a layoff (see paragraphs (f)(1) (i) and
(ii) of this section) is involved, an employment loss does not occur
when an employee is reassigned or transferred to employing office-
sponsored programs, such as retraining or job search activities, as
long as the reassignment does not constitute a constructive discharge
or other involuntary termination.
(3) An employee is not considered to have experienced an employment
loss if the closing or layoff is the result of the relocation or
consolidation of part or all of the employing office's operations and,
prior to the closing or layoff--
(i) The employing office offers to transfer the employee to
a different site of employment within a reasonable commuting
distance with no more than a 6-month break in employment, or
(ii) The employing office offers to transfer the employee
to any other site of employment regardless of distance with no
more than a 6-month break in employment, and the employee
accepts within 30 days of the offer or of the closing or
layoff, whichever is later.
(4) A ``relocation or consolidation'' of part or all of an
employing office's operations, for purposes of paragraph
Sec. 639.3(f)(3), means that some definable operations are transferred
to a different site of employment and that transfer results in an
office closing or mass layoff.
(g) Part-time Employee.--The term ``part-time'' employee means an
employee who is employed for an average of fewer than 20 hours per week
or who has been employed for fewer than 6 of the 12 months preceding
the date on which notice is required, including workers who work full-
time. This term may include workers who would traditionally be
understood as ``seasonal'' employees. The period to be used for
calculating whether a worker has worked ``an average of fewer than 20
hours per week'' is the shorter of the actual time the worker has been
employed or the most recent 90 days.
(h) Single Site of Employment.--(1) A single site of employment can
refer to either a single location or a group of contiguous locations.
Separate facilities across the street from one another may be
considered a single site of employment.
(2) There may be several single sites of employment within a single
building, such as an office building, if separate employing offices
conduct activities within such a building. For example, an office
building housing 50 different employing offices will contain 50 single
sites of employment. The offices of each employing office will be its
single site of employment.
(3) Separate buildings or areas which are not directly connected or
in immediate proximity may be considered a single site of employment if
they are in reasonable geographic proximity, used for the same purpose,
and share the same staff and equipment.
(4) Non-contiguous sites in the same geographic area which do not
share the same staff or operational purpose should not be considered a
single site.
(5) Contiguous buildings operated by the same employing office
which have separate management and have separate workforces are
considered separate single sites of employment.
(6) For workers whose primary duties require travel from point to
point, who are outstationed, or whose primary duties involve work
outside any of the employing office's regular employment sites (e.g.,
railroad workers, bus drivers, salespersons), the single site of
employment to which they are assigned as their home base, from which
their work is assigned, or to which they report will be the single site
in which they are covered for WARN purposes.
(7) Foreign sites of employment are not covered under WARN. United
States workers at such sites are counted to determine whether an
employing office is covered as an employing office under Sec. 639.3(a).
(8) The term ``single site of employment'' may also apply to truly
unusual organizational situations where the above criteria do not
reasonably apply. The application of this definition with the intent to
evade the purpose of WARN to provide notice is not acceptable.
(i) Facility or Operating Unit.--The term ``facility'' refers to a
building or buildings. The term ``operating unit'' refers to an
organizationally or operationally distinct product, operation, or
specific work function within or across facilities at the single site.
Sec. 639.4 Who must give notice?
Section 205(a)(1) of the CAA states that ``[n]o employing office
shall be closed or a mass layoff ordered within the meaning of section
3 of [WARN] until the end of a 60-day period after the employing office
serves written notice of such prospective closing or layoff . . . ''.
Therefore, an employing office that is anticipating carrying out an
office closing or mass layoff is required to give notice to affected
employees or their representative(s). (See definitions in Sec. 639.3 of
this part.)
(a) It is the responsibility of the employing office to decide the
most appropriate person within the employing office's organization to
prepare and deliver the notice to affected employees or their
representative(s). In most instances, this may be the local site office
manager, the local personnel director or a labor relations officer.
(b) An employing office that has previously announced and carried
out a short-term layoff (6 months or less) which is being extended
beyond 6 months due to circumstances not reasonably foreseeable at the
time of the initial layoff is required to give notice when it becomes
reasonably foreseeable that the extension is required. A layoff
extending beyond 6 months from the date the layoff commenced for any
other reason shall be treated as an employment loss from the date of
its commencement.
(c) In the case of the privatization or sale of part or all of an
employing office's operations, the employing office is responsible for
providing notice of any office closing or mass layoff which takes place
up to and including the effective date (time) of the privatization or
sale, and the contractor or buyer is responsible for providing any
required notice of any office closing or mass layoff that takes place
thereafter.
(1) If the employing office is made aware of any definite
plans on the part of the buyer or contractor to carry out an
office closing or mass layoff within 60 days of purchase, the
employing office may give notice to affected employees as an
agent of the buyer or contractor, if so empowered. If the
employing office does not give notice, the buyer or contractor
is, nevertheless, responsible to give notice. If the employing
office gives notice as the agent of the buyer or contractor,
the responsibility for notice still remains with the buyer or
contractor.
(2) It may be prudent for the buyer or contractor and
employing office to determine the impacts of the privatization
or sale on workers, and to arrange between them for advance
notice to be given to affected employees or their
representative(s), if a mass layoff or office closing is
planned.
Sec. 639.5 When must notice be given?
(a) General Rule.--(1) With certain exceptions discussed in
paragraphs (b) and (c) of this section and in Sec. 639.9 of this part,
notice must be given at least 60 calendar days prior to any planned
office closing or mass layoff, as defined in these regulations. When
all employees are not terminated on the same date, the date of the
first individual termination within the statutory 30-day or 90-day
period triggers the 60-day notice requirement. A worker's last day of
employment is considered the date of that worker's layoff. The first
and each subsequent group of terminees are entitled to a full 60 days'
notice. In order for an employing office to decide whether issuing
notice is required, the employing office should--
(i) look ahead 30 days and behind 30 days to determine
whether employment actions both taken and planned will, in the
aggregate for any 30-day period, reach the minimum numbers for
an office closing or a mass layoff and thus trigger the notice
requirement; and
(ii) look ahead 90 days and behind 90 days to determine
whether employment actions both taken and planned each of which
separately is not of sufficient size to trigger WARN coverage
will, in the aggregate for any 90-day period, reach the minimum
numbers for an office closing or a mass layoff and thus trigger
the notice requirement. An employing office is not, however,
required under section 3(d) to give notice if the employing
office demonstrates that the separate employment losses are the
result of separate and distinct actions and causes, and are not
an attempt to evade the requirements of WARN.
(2) The point in time at which the number of employees is to be
measured for the purpose of determining coverage is the date the first
notice is required to be given. If this ``snapshot'' of the number of
employees employed on that date is clearly unrepresentative of the
ordinary or average employment level, then a more representative number
can be used to determine coverage. Examples of unrepresentative
employment levels include cases when the level is near the peak or
trough of an employment cycle or when large upward or downward shifts
in the number of employees occur around the time notice is to be given.
A more representative number may be an average number of employees over
a recent period of time or the number of employees on an alternative
date which is more representative of normal employment levels.
Alternative methods cannot be used to evade the purpose of WARN, and
should only be used in unusual circumstances.
(b) Transfers.--(1) Notice is not required in certain cases
involving transfers, as described under the definition of ``employment
loss'' at Sec. 639.3(f) of this part.
(2) An offer of reassignment to a different site of employment
should not be deemed to be a ``transfer'' if the new job constitutes a
constructive discharge.
(3) The meaning of the term ``reasonable commuting distance'' will
vary with local conditions. In determining what is a ``reasonable
commuting distance'', consideration should be given to the following
factors: geographic accessibility of the place of work, the quality of
the roads, customarily available transportation, and the usual travel
time.
(4) In cases where the transfer is beyond reasonable commuting
distance, the employing office may become liable for failure to give
notice if an offer to transfer is not accepted within 30 days of the
offer or of the closing or layoff (whichever is later). Depending upon
when the offer of transfer was made by the employing office, the normal
60-day notice period may have expired and the office closing or mass
layoff may have occurred. An employing office is, therefore, well
advised to provide 60-day advance notice as part of the transfer offer.
(c) Temporary Employment.--(1) No notice is required if the closing
is of a temporary facility, or if the closing or layoff is the result
of the completion of a particular project or undertaking, and the
affected employees were hired with the understanding that their
employment was limited to the duration of the facility or the project
or undertaking.
(2) Employees must clearly understand at the time of hire that
their employment is temporary. When such understandings exist will be
determined by reference to employment contracts, collective bargaining
agreements, or employment practices of other employing offices or a
locality, but the burden of proof will lie with the employing office to
show that the temporary nature of the project or facility was clearly
communicated should questions arise regarding the temporary employment
understandings.
Sec. 639.6 Who must receive notice?
Section 3(a) of WARN provides for notice to each representative of
the affected employees as of the time notice is required to be given
or, if there is no such representative at that time, to each affected
employee.
(a) Representative(s) of Affected Employees.--Written notice is to
be served upon the chief elected officer of the exclusive
representative(s) or bargaining agent(s) of affected employees at the
time of the notice. If this person is not the same as the officer of
the local union(s) representing affected employees, it is recommended
that a copy also be given to the local union official(s).
(b) Affected Employees.--Notice is required to be given to
employees who may reasonably be expected to experience an employment
loss. This includes employees who will likely lose their jobs because
of bumping rights or other factors, to the extent that such workers can
be identified at the time notice is required to be given. If, at the
time notice is required to be given, the employing office cannot
identify the employee who may reasonably be expected to experience an
employment loss due to the elimination of a particular position, the
employing office must provide notice to the incumbent in that position.
While part-time employees are not counted in determining whether office
closing or mass layoff thresholds are reached, such workers are due
notice.
Sec. 639.7 What must the notice contain?
(a) Notice Must be Specific.--(1) All notice must be specific.
(2) Where voluntary notice has been given more than 60 days in
advance, but does not contain all of the required elements set out in
this section, the employing office must ensure that all of the
information required by this section is provided in writing to the
parties listed in Sec. 639.6 at least 60 days in advance of a covered
employment action.
(3) Notice may be given conditional upon the occurrence or
nonoccurrence of an event only when the event is definite and the
consequences of its occurrence or nonoccurrence will necessarily, in
the normal course of operations, lead to a covered office closing or
mass layoff less than 60 days after the event. The notice must contain
each of the elements set out in this section.
(4) The information provided in the notice shall be based on the
best information available to the employing office at the time the
notice is served. It is not the intent of the regulations that errors
in the information provided in a notice that occur because events
subsequently change or that are minor, inadvertent errors are to be the
basis for finding a violation of WARN.
(b) Definition.--As used in this section, the term ``date'' refers
to a specific date or to a 14-day period during which a separation or
separations are expected to occur. If separations are planned according
to a schedule, the schedule should indicate the specific dates on which
or the beginning date of each 14-day period during which any
separations are expected to occur. Where a 14-day period is used,
notice must be given at least 60 days in advance of the first day of
the period.
(c) Notice.--Notice to each representative of affected employees is
to contain:
(1) The name and address of the employment site where the
office closing or mass layoff will occur, and the name and
telephone number of an employing office official to contact for
further information;
(2) A statement as to whether the planned action is
expected to be permanent or temporary and, if the entire office
is to be closed, a statement to that effect;
(3) The expected date of the first separation and the
anticipated schedule for making separations;
(4) The job titles of positions to be affected and the
names of the workers currently holding affected jobs.
The notice may include additional information useful to the employees
such as information on available dislocated worker assistance, and, if
the planned action is expected to be temporary, the estimated duration,
if known.
(d) Employees not Represented.--Notice to each affected employee
who does not have a representative is to be written in language
understandable to the employees and is to contain:
(1) A statement as to whether the planned action is
expected to be permanent or temporary and, if the entire office
is to be closed, a statement to that effect;
(2) The expected date when the office closing or mass
layoff will commence and the expected date when the individual
employee will be separated;
(3) An indication whether or not bumping rights exist;
(4) The name and telephone number of an employing office
official to contact for further information.
The notice may include additional information useful to the employees
such as information on available dislocated worker assistance, and, if
the planned action is expected to be temporary, the estimated duration,
if known.
Sec. 639.8 How is the notice served?
Any reasonable method of delivery to the parties listed under
Sec. 639.6 of this part which is designed to ensure receipt of notice
of at least 60 days before separation is acceptable (e.g., first class
mail, personal delivery with optional signed receipt). In the case of
notification directly to affected employees, insertion of notice into
pay envelopes is another viable option. A ticketed notice, i.e.,
preprinted notice regularly included in each employee's pay check or
pay envelope, does not meet the requirements of WARN.
Sec. 639.9 When may notice be given less than 60 days in advance?
Section 3(b) of WARN, as applied by section 205 of the CAA, sets
forth two conditions under which the notification period may be reduced
to less than 60 days. The employing office bears the burden of proof
that conditions for the exceptions have been met. If one of the
exceptions is applicable, the employing office must give as much notice
as is practicable to the union and non-represented employees and this
may, in some circumstances, be notice after the fact. The employing
office must, at the time notice actually is given, provide a brief
statement of the reason for reducing the notice period, in addition to
the other elements set out in Sec. 639.7.
(a) The ``unforeseeable business circumstances'' exception under
section 3(b)(2)(A) of WARN, as applied under the CAA, applies to office
closings and mass layoffs caused by circumstances that were not
reasonably foreseeable at the time that 60-day notice would have been
required.
(1) An important indicator of a circumstance that is not
reasonably foreseeable is that the circumstance is caused by
some sudden, dramatic, and unexpected action or condition
outside the employing office's control.
(2) The test for determining when circumstances are not
reasonably foreseeable focuses on an employing office's
business judgment. The employing office must exercise such
reasonable business judgment as would a similarly situated
employing office in predicting the demands of its operations.
The employing office is not required, however, to accurately
predict general economic conditions that also may affect its
operations.
(b) The ``natural disaster'' exception in section 3(b)(2)(B) of
WARN applies to office closings and mass layoffs due to any form of a
natural disaster.
(1) Floods, earthquakes, droughts, storms, tidal waves or
tsunamis and similar effects of nature are natural disasters
under this provision.
(2) To qualify for this exception, an employing office must
be able to demonstrate that its office closing or mass layoff
is a direct result of a natural disaster.
(3) While a disaster may preclude full or any advance
notice, such notice as is practicable, containing as much of
the information required in Sec. 639.7 as is available in the
circumstances of the disaster still must be given, whether in
advance or after the fact of an employment loss caused by a
natural disaster.
(4) Where an office closing or mass layoff occurs as an
indirect result of a natural disaster, the exception does not
apply but the ``unforeseeable business circumstance'' exception
described in paragraph (a) of this section may be applicable.
Sec. 639.10 When may notice be extended?
Additional notice is required when the date or schedule of dates of
a planned office closing or mass layoff is extended beyond the date or
the ending date of any 14-day period announced in the original notice
as follows:
(a) If the postponement is for less than 60 days, the additional
notice should be given as soon as possible to the parties identified in
Sec. 639.6 and should include reference to the earlier notice, the date
(or 14-day period) to which the planned action is postponed, and the
reasons for the postponement. The notice should be given in a manner
which will provide the information to all affected employees.
(b) If the postponement is for 60 days or more, the additional
notice should be treated as new notice subject to the provisions of
Sec. Sec. 639.5, 639.6 and 639.7 of this part. Rolling notice, in the
sense of routine periodic notice, given whether or not an office
closing or mass layoff is impending, and with the intent to evade the
purpose of the Act rather than give specific notice as required by
WARN, is not acceptable.
Sec. 639.11 [Reserved]
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