[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 1516 Engrossed in House (EH)]

<DOC>
H. Res. 1516

                In the House of Representatives, U. S.,

                                                     December 14, 2022.
    Resolved,

SECTION 1. APPROVAL OF REGULATIONS RELATING TO FAMILY AND MEDICAL LEAVE ACT.

    (a) In General.--The regulations described in subsection (b) are hereby 
approved, insofar as such regulations apply to covered employees of the House of 
Representatives under the Congressional Accountability Act of 1995 and to the 
extent such regulations are consistent with the provisions of such Act.
    (b) Regulations Approved.--The regulations described in this subsection are 
the regulations issued by the Office of Congressional Workplace Rights on 
December 7, 2021, under section 202(e) of the Congressional Accountability Act 
of 1995 to implement section 202 of such Act (relating to the application of 
sections 101 through 105 of the Family and Medical Leave Act of 1993), as 
published in the Congressional Record on December 7, 2021 (Volume 167, daily 
edition) on pages H7230 through H7258, and stated as follows:
``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 825.102 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 (Board) of the 
Office of Congressional Workplace Rights, 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) On December 20, 2019, Congress enacted the Federal Employee Paid Leave 
Act (subtitle A of title LXXVI of division F of the National Defense 
Authorization Act for Fiscal Year 2020, Public Law 116-92, December 20, 2019) 
(FEPLA). FEPLA amended the FMLA to allow most Federal employees, including 
eligible employees in the legislative branch, to substitute up to 12 weeks of 
paid parental leave (PPL) for unpaid FMLA leave granted in connection with the 
birth of an employee's son or daughter or for the placement of a son or daughter 
with an employee for adoption or foster care.
In order to implement FEPLA in the legislative branch, the Board is amending its 
substantive FMLA regulations pursuant to the CAA rulemaking procedures set forth 
at sections 202(d) and 304 of the CAA. The Secretary of Labor has not 
promulgated FEPLA regulations, however, because FEPLA does not extend PPL to 
private sector employees or other employees directly covered by FMLA title I. 
The Board has determined that these circumstances constitute good cause for 
modification of its substantive FMLA regulations in order to effectively 
implement FEPLA's rights and protections to covered employees in the legislative 
branch.
    ``(d) 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.
    ``(e) Pursuant to section 304(b)(4) of the CAA, (2 U.S.C. 1384(b)(4)), the 
Board of Directors is required to recommend to Congress a method of approval for 
these regulations. As the Board has adopted the same regulations for the Senate, 
the House of Representatives, and the other covered entities and facilities, it 
therefore recommends that the adopted regulations be approved by concurrent 
resolution of the Congress.

``Subpart A--Coverage Under The Family And Medical Leave Act, As Made Applicable 
                     By The Congressional Accountability Act

``Sec. 825.100 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 (See 825.200(b)) 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, because the employee's own serious health condition makes the 
employee unable to perform the functions of his or her job, or because of any 
qualifying exigency arising out of the fact that the employee's spouse, son, 
daughter, or parent is a military member on active duty or call to covered 
active duty status (or has been notified of an impending call or order to 
covered active duty). In addition, eligible employees of a covered employing 
office may take job-protected, unpaid leave, or substitute appropriate paid 
leave if the employee has earned or accrued it, for up to a total of 26 
workweeks in a single 12-month period to care for a covered servicemember with a 
serious injury or illness. In certain cases, FMLA 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. Subject to 825.208(k), the employing office or a disbursing or 
other financial office 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 covered family member, the serious injury or illness 
of a covered servicemember, 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 generally has a right to advance notice from the 
employee. In addition, the employing office may require an employee to submit 
certification to substantiate that the leave is due to the serious health 
condition of the employee or the employee's covered family member, due to the 
serious injury or illness of a covered servicemember, or because of a qualifying 
exigency. 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 825.312 and 825.313)). 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 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, for the care of a child, spouse, or parent who has a 
serious health condition, for the care of a covered servicemember with a serious 
injury or illness, or because of a qualifying exigency arising out of the fact 
that the employee's spouse, son, daughter, or parent is a military member on 
covered active duty or call to covered active duty status. 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 employing offices, 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 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 employing offices 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 Definitions
    ``For purposes of this part:
            ``(1) ADA means the Americans with Disabilities Act (42 U.S.C. 12101 
        et seq., as amended), as made applicable by the Congressional 
        Accountability Act.
            ``(2) Birth means the delivery of a child. When the term `birth' 
        under this subpart is used in connection with the use of leave before 
        birth, it refers to an anticipated birth.
            ``(3) CAA means the Congressional Accountability Act of 1995 (Pub. 
        Law 104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq., as amended).
            ``(4) 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; 29 U.S.C. 1161-1168).
            ``(5) Contingency operation means a military operation that:
                    ``(A) Is designated by the Secretary of Defense as an 
                operation in which members of the Armed Forces are or may become 
                involved in military actions, operations, or hostilities against 
                an enemy of the United States or against an opposing military 
                force; or
                    ``(B) Results in the call or order to, or retention on, 
                active duty of members of the uniformed services under section 
                688, 12301(a), 12302, 12304, 12305, or 12406 of Title 10 of the 
                United States Code, chapter 15 of Title 10 of the United States 
                Code, or any other provision of law during a war or during a 
                national emergency declared by the President or Congress. See 
                also 825.126(a)(2).
            ``(6) Continuing treatment by a health care provider means any one 
        of the following:
                    ``(A) Incapacity and treatment. A period of incapacity of 
                more than three consecutive, full calendar days, and any 
                subsequent treatment or period of incapacity relating to the 
                same condition, that also involves:
                            ``(i) Treatment two or more times, within 30 days of 
                        the first day of incapacity, unless extenuating 
                        circumstances exist, by a health care provider, by a 
                        nurse 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.
                            ``(iii) The requirement in paragraphs (i) and (ii) 
                        of this definition for treatment by a health care 
                        provider means an in-person visit to a health care 
                        provider. The first in-person treatment visit must take 
                        place within seven days of the first day of incapacity.
                            ``(iv) Whether additional treatment visits or a 
                        regimen of continuing treatment is necessary within the 
                        30-day period shall be determined by the health care 
                        provider.
                            ``(v) The term `extenuating circumstances' in 
                        paragraph (i) means circumstances beyond the employee's 
                        control that prevent the follow-up visit from occurring 
                        as planned by the health care provider. Whether a given 
                        set of circumstances are extenuating depends on the 
                        facts. See also 825.115(a)(5).
                    ``(B) Pregnancy or prenatal care. Any period of incapacity 
                due to pregnancy, or for prenatal care. See also 825.120.
                    ``(C) Chronic conditions. 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 (defined as at least 
                        twice a year) for treatment by a health care provider, 
                        or by a nurse 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.).
                    ``(D) Permanent or long-term conditions. 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) Conditions requiring multiple treatments. 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, for:
                            ``(i) Restorative surgery after an accident or other 
                        injury; or
                            ``(ii) A condition that would likely result in a 
                        period of incapacity of more than three consecutive full 
                        calendar days in the absence of medical intervention or 
                        treatment, such as cancer (chemotherapy, radiation, 
                        etc.), severe arthritis (physical therapy), kidney 
                        disease (dialysis).
                    ``(F) Absences attributable to incapacity under paragraphs 
                (A) or (B) of this definition qualify for FMLA leave even though 
                the employee or the covered 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 consecutive, 
                full calendar 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.
            ``(7) Covered active duty or call to covered active duty status 
        means:
                    ``(A) In the case of a member of the Regular Armed Forces, 
                duty during the deployment of the member with the Armed Forces 
                to a foreign country; and,
                    ``(B) In the case of a member of the Reserve components of 
                the Armed Forces, duty during the deployment of the member with 
                the Armed Forces to a foreign country under a Federal call or 
                order to active duty in support of a contingency operation 
                pursuant to: Section 688 of Title 10 of the United States Code, 
                which authorizes ordering to active duty retired members of the 
                Regular Armed Forces and members of the retired Reserve who 
                retired after completing at least 20 years of active service; 
                Section 12301(a) of Title 10 of the United States Code, which 
                authorizes ordering all reserve component members to active duty 
                in the case of war or national emergency; Section 12302 of Title 
                10 of the United States Code, which authorizes ordering any unit 
                or unassigned member of the Ready Reserve to active duty; 
                Section 12304 of Title 10 of the United States Code, which 
                authorizes ordering any unit or unassigned member of the 
                Selected Reserve and certain members of the Individual Ready 
                Reserve to active duty; Section 12305 of Title 10 of the United 
                States Code, which authorizes the suspension of promotion, 
                retirement or separation rules for certain Reserve components; 
                Section 12406 of Title 10 of the United States Code, which 
                authorizes calling the National Guard into Federal service in 
                certain circumstances; chapter 15 of Title 10 of the United 
                States Code, which authorizes calling the National Guard and 
                State military into Federal service in the case of insurrections 
                and national emergencies; or any other provision of law during a 
                war or during a national emergency declared by the President or 
                Congress so long as it is in support of a contingency operation. 
                See 10 U.S.C. 101(a)(13)(B). See also 825.126(a).
            ``(8) Covered employee as defined in the CAA, means any employee 
        of--(1) the House of Representatives; (2) the Senate; (3) the Office of 
        Congressional Accessibility Services; (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 
        Congressional Workplace Rights; (9) the Library of Congress; (10) the 
        Stennis Center for Public Service; (11) the Office of Technology 
        Assessment; (12) the China Review Commission; (13) the Congressional 
        Executive China Commission; (14) the Helsinki Commission; or (15) the 
        United States Commission on International Religious Freedom.
            ``(9) Covered servicemember means:
                    ``(A) A current member of the Armed Forces, including a 
                member of the National Guard or Reserves, who is undergoing 
                medical treatment, recuperation, or therapy, is otherwise in 
                outpatient status, or is otherwise on the temporary disability 
                retired list, for a serious injury or illness, or
                    ``(B) A covered veteran who is undergoing medical treatment, 
                recuperation, or therapy for a serious injury or illness.
            ``(10) Covered veteran means an individual who was a member of the 
        Armed Forces (including a member of the National Guard or Reserves), and 
        was discharged or released under conditions other than dishonorable at 
        any time during the five-year period prior to the first date the 
        eligible employee takes FMLA leave to care for the covered veteran. See 
        825.127(b)(2).
            ``(11) Eligible employee as defined in the CAA, means:
                    ``(A) For purposes of leave under subparagraphs (a)(1) or 
                (a)(2) of section 825.112 [or subsections (A) or (B) of section 
                102(a)(1) of the FMLA], a covered employee as defined in the 
                CAA.
                    ``(B) For purposes of leave under subparagraphs (a)(3)-(6) 
                of section 825.112 [or subsections (C)-(F) of section 102(a)(1) 
                of the FMLA], a covered employee who has been employed for a 
                total of at least 12 months in any employing office on the date 
                on which any FMLA leave is to commence, except that an employing 
                office need not consider any period of previous employment that 
                occurred more than seven years before the date of the most 
                recent hiring of the employee, unless:
                            ``(i) The break in service is occasioned by the 
                        fulfillment of the employee's Uniformed Services 
                        Employment and Reemployment Rights Act (USERRA), 38 
                        U.S.C. 4301, et seq., covered service obligation (the 
                        period of absence from work due to or necessitated by 
                        USERRA-covered service must be also counted in 
                        determining whether the employee has been employed for 
                        at least 12 months by any employing office, but this 
                        section does not provide any greater entitlement to the 
                        employee than would be available under the USERRA, as 
                        made applicable by the CAA); or
                            ``(ii) A written agreement, including a collective 
                        bargaining agreement, exists concerning the employing 
                        office's intention to rehire the employee after the 
                        break in service (e.g., for purposes of the employee 
                        furthering his or her education or for childrearing 
                        purposes); and
                    ``(C) Who, on the date on which any FMLA leave is to 
                commence, has met the hours of service requirement by having 
                been employed for at least 1,250 hours of service with an 
                employing office during the previous 12-month period, except 
                that:
                            ``(i) An employee returning from fulfilling his or 
                        her USERRA-covered service obligation shall be credited 
                        with the hours of service that would have been performed 
                        but for the period of absence from work due to or 
                        necessitated by USERRA-covered service in determining 
                        whether the employee met the hours of service 
                        requirement (accordingly, a person reemployed following 
                        absence from work due to or necessitated by USERRA-
                        covered service has the hours that would have been 
                        worked for the employing office added to any hours 
                        actually worked during the previous 12-month period to 
                        meet the hours of service requirement);
                            ``(ii) To determine the hours that would have been 
                        worked during the period of absence from work due to or 
                        necessitated by USERRA-covered service, the employee's 
                        pre-service work schedule can generally be used for 
                        calculations; and
                            ``(iii) Any service on active duty (as defined in 29 
                        U.S.C. 2611(14)) by a covered employee who is a member 
                        of the National Guard or Reserves shall be counted as 
                        time during which such employee has been employed in an 
                        employing office for purposes of subparagraph (C) of 
                        this section.
            ``(12) Employ means to suffer or permit to work.
            ``(13) Employee means an employee as defined by the CAA and includes 
        an applicant for employment and a former employee.
            ``(14) Employee employed in an instructional capacity. See the 
        definition of Teacher in this section.
            ``(15) Employee of the Capitol Police means any member or officer of 
        the Capitol Police.
            ``(16) Employee of the House of Representatives means an individual 
        occupying a position the pay for which is disbursed by the Chief 
        Administrative Officer 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 Members' 
        Representational Allowance of the House of Representatives but not any 
        such individual employed by any entity listed in subparagraphs (3) 
        through (9) under the definition of covered employee above.
            ``(17) Employee of the Office of the Architect of the Capitol means 
        any employee of the Office of the Architect of the Capitol or the 
        Botanic Garden.
            ``(18) Employee of the Senate means 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 the 
        definition of covered employee above.
            ``(19) Employing Office, as defined by the CAA, means:
                    ``(A) The personal office of a Member of the House of 
                Representatives or of a Senator;
                    ``(B) A committee of the House of Representatives or the 
                Senate or a joint committee;
                    ``(C) 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
                    ``(D) The Office of Congressional Accessibility Services, 
                the United States Capitol Police, the Congressional Budget 
                Office, the Office of the Architect of the Capitol, the Office 
                of the Attending Physician, the Office of Congressional 
                Workplace Rights, the Library of Congress, the Stennis Center 
                for Public Service, the Office of Technology Assessment, the 
                United States Commission on International Religious Freedom, the 
                China Review Commission, the Congressional Executive China 
                Commission, and the Helsinki Commission.
            ``(20) 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 also 825.209(a).
            ``(21) Family and medical leave means an employee's entitlement of 
        up to 12 workweeks (or 26 workweeks in the case of leave under 825.127) 
        of unpaid leave for certain family and medical needs, as prescribed 
        under the FMLA, as made applicable by the CAA.
            ``(22) FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et 
        seq.), as made applicable by the CAA.
            ``(23) 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., as 
        amended), as made applicable by the CAA.
            ``(24) 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:
                    ``(A) No contributions are made by the employing office;
                    ``(B) Participation in the program is completely voluntary 
                for employees;
                    ``(C) 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;
                    ``(D) 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
                    ``(E) The premium charged with respect to such coverage does 
                not increase in the event the employment relationship 
                terminates.
            ``(25) Health care provider means:
                    ``(A) The FMLA, as made applicable by the CAA, defines 
                health care provider as:
                            ``(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 Department 
                        of Labor to be capable of providing health care 
                        services.
                    ``(B) Others `capable of providing health care services' 
                include only:
                            ``(i) 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;
                            ``(ii) Nurse practitioners, nurse-midwives and 
                        clinical social workers and physician assistants who are 
                        authorized to practice under State law and who are 
                        performing within the scope of their practice as defined 
                        under State law;
                            ``(iii) 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;
                            ``(iv) 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; and
                            ``(v) 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.
            ``(26) 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.
            ``(27) Instructional employee: See the definition of Teacher in this 
        section.
            ``(28) Intermittent leave means leave taken in separate periods of 
        time due to a single illness or injury, birth, or placement, 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.
            ``(29) Invitational travel authorization (ITA) or Invitational 
        travel order (ITO) mean orders issued by the Armed Forces to a family 
        member to join an injured or ill servicemember at his or her bedside. 
        See also 825.310(e).
            ``(30) Key employee means 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. See also 
        825.217.
            ``(31) Mental disability: See the definition of Physical or mental 
        disability in this section.
            ``(32) Military caregiver leave means leave taken to care for a 
        covered servicemember with a serious injury or illness under the Family 
        and Medical Leave Act of 1993. See also 825.127.
            ``(33) Next of kin of a covered servicemember means the nearest 
        blood relative other than the covered servicemember's spouse, parent, 
        son, or daughter, in the following order of priority: blood relatives 
        who have been granted legal custody of the covered servicemember by 
        court decree or statutory provisions, brothers and sisters, 
        grandparents, aunts and uncles, and first cousins, unless the covered 
        servicemember has specifically designated in writing another blood 
        relative as his or her nearest blood relative for purposes of military 
        caregiver leave under the FMLA. When no such designation is made, and 
        there are multiple family members with the same level of relationship to 
        the covered servicemember, all such family members shall be considered 
        the covered servicemember's next of kin and may take FMLA leave to 
        provide care to the covered servicemember, either consecutively or 
        simultaneously. When such designation has been made, the designated 
        individual shall be deemed to be the covered servicemember's only next 
        of kin. See also 825.127(d)(3).
            ``(34) Office of Congressional Workplace Rights means the 
        independent office established in the legislative branch under section 
        301 of the CAA (2 U.S.C. 1381).
            ``(35) Outpatient status means, with respect to a covered 
        servicemember who is a current member of the Armed Forces, the status of 
        a member of the Armed Forces assigned to either a military medical 
        treatment facility as an outpatient; or a unit established for the 
        purpose of providing command and control of members of the Armed Forces 
        receiving medical care as outpatients. See also 825.127(b)(1).
            ``(36) Parent means a biological, adoptive, step or foster father or 
        mother or any other individual who stood in loco parentis to the 
        employee when the employee was a son or daughter as defined below. This 
        term does not include parents `in law'.
            ``(37) Parent of a covered servicemember means a covered 
        servicemember's biological, adoptive, step or foster father or mother, 
        or any other individual who stood in loco parentis to the covered 
        servicemember. This term does not include parents `in law'. See also 
        825.127(d)(2).
            ``(38) Physical or mental disability means a physical or mental 
        impairment that substantially limits one or more of the major life 
        activities of an individual. Regulations at 29 C.F.R. part 1630, issued 
        by the Equal Employment Opportunity Commission under the Americans with 
        Disabilities Act (ADA), 42 U.S.C. 12101 et seq., as amended, provide 
        guidance for these terms.
            ``(39) Reduced leave schedule means a leave schedule that reduces 
        the usual number of hours per workweek, or hours per workday, of an 
        employee.
            ``(40) Reserve components of the Armed Forces, for purposes of 
        qualifying exigency leave, include the Army National Guard of the United 
        States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air National 
        Guard of the United States, Air Force Reserve, and Coast Guard Reserve, 
        and retired members of the Regular Armed Forces or Reserves who are 
        called up in support of a contingency operation. See also 
        825.126(a)(2)(i).
            ``(41) Secretary means the Secretary of Labor or authorized 
        representative.
            ``(42) Serious health condition means an illness, injury, 
        impairment, or physical or mental condition that involves inpatient care 
        as defined in 825.114 or continuing treatment by a health care provider 
        as defined in 825.115. 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. 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 or allergies may be serious health conditions, but only 
        if all the conditions of 825.113 are met.
            ``(43) Serious injury or illness means:
                    ``(A) In the case of a current member of the Armed Forces, 
                including a member of the National Guard or Reserves, an injury 
                or illness that was incurred by the covered servicemember in the 
                line of duty on active duty in the Armed Forces or that existed 
                before the beginning of the member's active duty and was 
                aggravated by service in the line of duty on active duty in the 
                Armed Forces and that may render the servicemember medically 
                unfit to perform the duties of the member's office, grade, rank, 
                or rating; and
                    ``(B) In the case of a covered veteran, an injury or illness 
                that was incurred by the member in the line of duty on active 
                duty in the Armed Forces (or existed before the beginning of the 
                member's active duty and was aggravated by service in the line 
                of duty on active duty in the Armed Forces) and manifested 
                itself before or after the member became a veteran, and is:
                            ``(i) A continuation of a serious injury or illness 
                        that was incurred or aggravated when the covered veteran 
                        was a member of the Armed Forces and rendered the 
                        servicemember unable to perform the duties of the 
                        servicemember's office, grade, rank, or rating; or
                            ``(ii) A physical or mental condition for which the 
                        covered veteran has received a U.S. Department of 
                        Veterans Affairs Service-Related Disability Rating 
                        (VASRD) of 50 percent or greater, and such VASRD rating 
                        is based, in whole or in part, on the condition 
                        precipitating the need for military caregiver leave; or
                            ``(iii) A physical or mental condition that 
                        substantially impairs the covered veteran's ability to 
                        secure or follow a substantially gainful occupation by 
                        reason of a disability or disabilities related to 
                        military service, or would do so absent treatment; or
                            ``(iv) An injury, including a psychological injury, 
                        on the basis of which the covered veteran has been 
                        enrolled in the Department of Veterans Affairs Program 
                        of Comprehensive Assistance for Family Caregivers. See 
                        also 825.127(c).
            ``(44) 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' at the time 
        that FMLA leave is to commence.
            ``(45) Son or daughter of a covered servicemember means a covered 
        servicemember's biological, adopted, or foster child, stepchild, legal 
        ward, or a child for whom the covered servicemember stood in loco 
        parentis, and who is of any age. See also 825.127(d)(1).
            ``(46) Son or daughter on covered active duty or call to covered 
        active duty status means the employee's biological, adopted, or foster 
        child, stepchild, legal ward, or a child for whom the employee stood in 
        loco parentis, who is on covered active duty or call to covered active 
        duty status, and who is of any age. See also 825.126(a)(5).
            ``(47) Spouse means a husband or wife. For purposes of this 
        definition, husband or wife refers to the other person with whom an 
        individual entered into marriage as defined or recognized under State 
        law for purposes of marriage in the State in which the marriage was 
        entered into or, in the case of a marriage entered into outside of any 
        State, if the marriage is valid in the place where entered into and 
        could have been entered into in at least one State. This definition 
        includes an individual in a same-sex or common law marriage that either:
                    ``(A) Was entered into in a State that recognizes such 
                marriages; or
                    ``(B) If entered into outside of any State, is valid in the 
                place where entered into and could have been entered into in at 
                least one State.
            ``(48) 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.
            ``(49) TRICARE is the health care program serving active duty 
        servicemembers, National Guard and Reserve members, retirees, their 
        families, survivors, and certain former spouses worldwide.
``Sec. 825.103 [Reserved]
``Sec. 825.104 Covered employing offices
    ``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 Office of Congressional Accessibility Services, the United 
        States Capitol Police, the Congressional Budget Office, the Office of 
        the Architect of the Capitol, the Office of the Attending Physician, the 
        Office of Congressional Workplace Rights, the Library of Congress, the 
        Stennis Center for Public Service, the China Review Commission, the 
        Congressional Executive China Commission, the Helsinki Commission, the 
        United States Commission on International Religious Freedom, and the 
        Office of Technology Assessment.
``Sec. 825.105 [Reserved]
``Sec. 825.106 Joint employer coverage
    ``(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 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 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 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 Eligible employee, general rule
    ``(a) Subject to the exceptions provided in 825.111, an eligible employee is 
a covered employee of an employing office who:
            ``(1) Has been employed by any employing office for at least 12 
        months, and
            ``(2) Has been employed for at least 1,250 hours of service during 
        the 12-month period immediately preceding the commencement of the leave.
    ``(b) Any service on active duty (as defined in 29 U.S.C. 2611(14)) by a 
covered employee who is a member of the National Guard or Reserves shall be 
counted as time during which such employee has been employed in an employing 
office for purposes of paragraph (a)(1) and (2) of this section.
    ``(c) The 12 months an employee must have been employed by any employing 
office need not be consecutive months, provided:
            ``(1) Subject to the exceptions provided in paragraph (c)(2) of this 
        section, employment periods prior to a break in service of seven years 
        or more need not be counted in determining whether the employee has been 
        employed by any employing office for at least 12 months.
            ``(2) Employment periods preceding a break in service of more than 
        seven years must be counted in determining whether the employee has been 
        employed by any employing office for at least 12 months where:
                    ``(A) The employee's break in service is occasioned by the 
                fulfillment of his or her Uniformed Services Employment and 
                Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., 
                covered service obligation. The period of absence from work due 
                to or necessitated by USERRA-covered service must be also 
                counted in determining whether the employee has been employed 
                for at least 12 months by any employing office. However, this 
                section does not provide any greater entitlement to the employee 
                than would be available under the USERRA; or
                    ``(B) A written agreement, including a collective bargaining 
                agreement, exists concerning the employing office's intention to 
                rehire the employee after the break in service (e.g., for 
                purposes of the employee furthering his or her education or for 
                childrearing purposes).
            ``(3) If an employee worked for two or more employing offices 
        sequentially, the time worked will be aggregated to determine whether it 
        equals 12 months.
            ``(4) 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 
        employing office (e.g., Federal Employees' 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.
            ``(5) Nothing in this section prevents employing offices from 
        considering employment prior to a continuous break in service of more 
        than seven years when determining whether an employee has met the 12-
        month employment requirement. However, if an employing office chooses to 
        recognize such prior employment, the employing office must do so 
        uniformly, with respect to all employees with similar breaks in service.
    ``(d)(1) 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.
    ``(2) Except as provided in paragraph (c)(3) of this section, 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 as defined by the CAA. The 
determination is not limited by methods of recordkeeping, 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 under the FLSA's principles, as made applicable by the 
CAA (2 U.S.C. 1313), may be used.
    ``(3) An employee returning from USERRA-covered service shall be credited 
with the hours of service that would have been performed but for the period of 
absence from work due to or necessitated by USERRA-covered service in 
determining the employee's eligibility for FMLA-qualifying leave. Accordingly, a 
person reemployed following USERRA-covered service has the hours that would have 
been worked for the employing office added to any hours actually worked during 
the previous 12-month period to meet the hours of service requirement. In order 
to determine the hours that would have been worked during the period of absence 
from work due to or necessitated by USERRA-covered service, the employee's pre-
service work schedule can generally be used for calculations.
    ``(4) In the event an employing office does not maintain an accurate record 
of hours worked by an employee, including for employees who are exempt from the 
overtime requirements of the FLSA, as made applicable by the CAA and its 
regulations, the employing office has the burden of showing that the employee 
has not worked the requisite hours. An employing office must be able to clearly 
demonstrate, for example, that full time teachers (See 825.102 for definition) 
of an elementary or secondary school system, or institution of higher education, 
or other educational establishment or institution (who often work outside the 
classroom or at their homes) did not work 1,250 hours during the previous 12 
months in order to claim that the teachers are not covered or eligible for FMLA 
leave.
    ``(e) The determination of whether an employee meets the hours of service 
requirement for any employing office and has been employed by any employing 
office for a total of at least 12 months, must be made as of the date the FMLA 
leave is to start. An employee may be on non-FMLA leave at the time he or she 
meets the 12-month eligibility requirement, and in that event, any portion of 
the leave taken for an FMLA-qualifying reason after the employee meets the 
eligibility requirement would be FMLA leave. See 825.300(b) for rules governing 
the content of the eligibility notice given to employees.
``Sec. 825.111 Eligible employee, birth or placement
    ``For purposes of leave under subparagraphs (A) or (B) of section 102(a)(1) 
of the FMLA, 29 U.S.C. 2612(a)(1)(A) or (B):
            ``(1) an eligible employee is a covered employee of an employing 
        office; and
            ``(2) the eligibility requirements of section 825.110 shall not 
        apply. See also 825.120-21.
``Sec. 825.112 Qualifying reasons for leave, general rule
    ``(a) Circumstances qualifying for leave. Employing offices covered by FMLA 
as made applicable by the CAA are required to grant leave to eligible employees:
            ``(1) For birth of a son or daughter, and to care for the newborn 
        child (See 825.120);
            ``(2) For the placement of a son or daughter with the employee for 
        adoption or foster care and the care of such son or daughter (See 
        825.121);
            ``(3) To care for the employee's spouse, son, daughter, or parent 
        with a serious health condition (See 825.113 and 825.122);
            ``(4) Because of a serious health condition that makes the employee 
        unable to perform the functions of the employee's job (See 825.113 and 
        825.123);
            ``(5) Because of any qualifying exigency arising out of the fact 
        that the employee's spouse, son, daughter, or parent is a military 
        member on covered active duty (or has been notified of an impending call 
        or order to covered active duty status) (See 825.122 and 825.126); and
            ``(6) To care for a covered servicemember with a serious injury or 
        illness if the employee is the spouse, son, daughter, parent, or next of 
        kin of the covered servicemember (See 825.122 and 825.127).
    ``(b) Equal Application. 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) Active employee. In situations where the employing office/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.
``Sec. 825.113 Serious health condition
    ``(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 inpatient care as defined in 825.114 or continuing 
treatment by a health care provider as defined in 825.115.
    ``(b) The term incapacity means inability to work, attend school, or perform 
other regular daily activities due to the serious health condition, treatment 
therefore, or recovery therefrom.
    ``(c) The term treatment 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. 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.
    ``(d) 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 or allergies may be 
serious health conditions, but only if all the conditions of this section are 
met.
``Sec. 825.114 Inpatient care
    ``Inpatient care means an overnight stay in a hospital, hospice, or 
residential medical care facility, including any period of incapacity as defined 
in 825.113(b), or any subsequent treatment in connection with such inpatient 
care.
``Sec. 825.115 Continuing treatment
    ``A serious health condition involving continuing treatment by a health care 
provider includes any one or more of the following:
    ``(a) Incapacity and treatment. A period of incapacity of more than three 
consecutive, full calendar days, and any subsequent treatment or period of 
incapacity relating to the same condition, that also involves:
            ``(1) Treatment two or more times, within 30 days of the first day 
        of incapacity, unless extenuating circumstances exist, by a health care 
        provider, by a nurse 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.
            ``(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.
            ``(3) The requirement in paragraphs (a)(1) and (2) of this section 
        for treatment by a health care provider means an in-person visit to a 
        health care provider. The first (or only) in-person treatment visit must 
        take place within seven days of the first day of incapacity.
            ``(4) Whether additional treatment visits or a regimen of continuing 
        treatment is necessary within the 30-day period shall be determined by 
        the health care provider.
            ``(5) The term extenuating circumstances in paragraph (a)(1) of this 
        section means circumstances beyond the employee's control that prevent 
        the follow-up visit from occurring as planned by the health care 
        provider. Whether a given set of circumstances are extenuating depends 
        on the facts. For example, extenuating circumstances exist if a health 
        care provider determines that a second in-person visit is needed within 
        the 30-day period, but the health care provider does not have any 
        available appointments during that time period.
    ``(b) Pregnancy or prenatal care. Any period of incapacity due to pregnancy, 
or for prenatal care. See also 825.120.
    ``(c) Chronic conditions. 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 (defined as at least twice a year) 
        for treatment by a health care provider, or by a nurse 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) Permanent or long-term conditions. 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) Conditions requiring multiple treatments. 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, for:
            ``(1) Restorative surgery after an accident or other injury; or
            ``(2) A condition that would likely result in a period of incapacity 
        of more than three consecutive, full calendar days in the absence of 
        medical intervention or treatment, such as cancer (chemotherapy, 
        radiation, etc.), severe arthritis (physical therapy), or kidney disease 
        (dialysis).
    ``(f) Absences attributable to incapacity under paragraphs (b) or (c) of 
this section qualify for FMLA leave even though the employee or the covered 
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 consecutive, full 
calendar 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. 825.116 [Reserved]
``Sec. 825.117 [Reserved]
``Sec. 825.118 [Reserved]
``Sec. 825.119 Leave for treatment of substance abuse
    ``(a) Substance abuse may be a serious health condition if the conditions of 
825.113 through 825.115 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.
    ``(b) 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 a covered family member 
who is receiving treatment for substance abuse. The employing office may not 
take action against an employee who is providing care for a covered family 
member receiving treatment for substance abuse.
``Sec. 825.120 Leave for pregnancy or birth
    ``(a) General rules. Eligible employees are entitled to FMLA leave for 
pregnancy or birth of a son or daughter and to care for the newborn child as 
follows:
            ``(1) Both parents are entitled to FMLA leave for the birth of their 
        child.
            ``(2) Both parents are entitled to FMLA leave to be with the healthy 
        newborn child (i.e., bonding time) during the 12-month period beginning 
        on the date of birth. An employee's entitlement to FMLA leave for a 
        birth expires at the end of the 12-month period beginning on the date of 
        the birth. If the employing office permits bonding leave to be taken 
        beyond this period, such leave will not qualify as FMLA leave. Under 
        this section, both parents are entitled to FMLA leave even if the 
        newborn does not have a serious health condition.
            ``(3) Spouses 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 for birth of 
        the employee's son or daughter or to care for the child after birth, for 
        placement of a son or daughter with the employee for adoption or foster 
        care or to care for the child after placement, or to care for the 
        employee's parent with a serious health condition. This limitation on 
        the total weeks of leave applies to leave taken for the reasons 
        specified as long as the spouses are employed by the same employing 
        office. It would apply, for example, even though the spouses are 
        employed at two different worksites 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. Where spouses both use a 
        portion of the total 12-week FMLA leave entitlement for either the birth 
        of a child, for placement for adoption or foster care, or to care for a 
        parent, the spouses would each be entitled to the difference between the 
        amount he or she has taken individually and 12 weeks for FMLA leave for 
        other purposes. For example, if each spouse took six weeks of leave to 
        care for a healthy, newborn child, each could use an additional six 
        weeks due to his or her own serious health condition or to care for a 
        child with a serious health condition.
            ``(4) The expectant mother is entitled to FMLA leave for incapacity 
        due to pregnancy, for prenatal care, or for her own serious health 
        condition following the birth of the child. An expectant mother may take 
        FMLA leave before the birth of the child for prenatal care or if her 
        condition makes her unable to work. The expectant mother is entitled to 
        leave for incapacity due to pregnancy even though she does not receive 
        treatment from a health care provider during the absence, and even if 
        the absence does not last for more than three consecutive calendar days.
            ``(5) A spouse is entitled to FMLA leave if needed to care for a 
        pregnant spouse who is incapacitated or if needed to care for her during 
        her prenatal care, or if needed to care for her following the birth of a 
        child if she has a serious health condition. See 825.124.
            ``(6) Both parents are entitled to FMLA leave if needed to care for 
        a child with a serious health condition if the requirements of 825.113 
        through 825.115 and 825.122(d) are met. Thus, spouses may each take 12 
        weeks of FMLA leave if needed to care for their newborn child with a 
        serious health condition, even if both are employed by the same 
        employing office, provided they have not exhausted their entitlements 
        during the applicable 12-month FMLA leave period.
    ``(b) Intermittent and reduced schedule leave. An eligible employee may use 
intermittent or reduced schedule leave after the birth to be with a healthy 
newborn child only if the employing office agrees. For example, an employing 
office and employee may agree to a part-time work schedule after the birth. If 
the employing office agrees to permit intermittent or reduced schedule leave for 
the birth of a child, 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. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agreement and Federal 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. The 
employing office's agreement is not required for intermittent leave required by 
the serious health condition of the expectant mother or newborn child. See 
825.202-825.205 for general rules governing the use of intermittent and reduced 
schedule leave. See 825.121 for rules governing leave for adoption or foster 
care. See 825.601 for special rules applicable to instructional employees of 
schools.
``Sec. 825.121 Leave for adoption or foster care
    ``(a) General rules. Eligible employees are entitled to FMLA leave for 
placement with the employee of a son or daughter for adoption or foster care and 
to care for the newly placed child as follows:
            ``(1) Employees may take FMLA leave 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, submit to a physical examination, or travel to another country 
        to complete an adoption. 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.
            ``(2) An employee's entitlement to leave for adoption or foster care 
        expires at the end of the 12-month period beginning on the date of the 
        placement. If the employing office permits leave for adoption or foster 
        care to be taken beyond this period, such leave will not qualify as FMLA 
        leave. Under this section, the employee is entitled to FMLA leave even 
        if the adopted or foster child does not have a serious health condition.
            ``(3) Spouses who are eligible for FMLA leave and are employed by 
        the same covered employing office may be limited to a combined total of 
        12 weeks of leave during any 12-month period if the leave is taken for 
        the placement of the employee's son or daughter or to care for the child 
        after placement, for the birth of the employee's son or daughter or to 
        care for the child after birth, or to care for the employee's parent 
        with a serious health condition. This limitation on the total weeks of 
        leave applies to leave taken for the reasons specified as long as the 
        spouses are employed by the same employing office. It would apply, for 
        example, even though the spouses are employed at two different worksites 
        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. Where spouses both use a portion of the total 12-week FMLA 
        leave entitlement for either the birth of a child, for placement for 
        adoption or foster care, or to care for a parent, the spouses would each 
        be entitled to the difference between the amount he or she has taken 
        individually and 12 weeks for FMLA leave for other purposes. For 
        example, if each spouse took six weeks of leave to care for a healthy, 
        newly placed child, each could use an additional six weeks due to his or 
        her own serious health condition or to care for a child with a serious 
        health condition.
            ``(4) An eligible employee is entitled to FMLA leave in order to 
        care for an adopted or foster child with a serious health condition if 
        the requirements of 825.113 through 825.115 and 825.122(d) are met. 
        Thus, spouses may each take 12 weeks of FMLA leave if needed to care for 
        an adopted or foster child with a serious health condition, even if both 
        are employed by the same employing office, provided they have not 
        exhausted their entitlements during the applicable 12-month FMLA leave 
        period.
    ``(b) Use of intermittent and reduced schedule leave. An eligible employee 
may use intermittent or reduced schedule leave after the placement of a healthy 
child for adoption or foster care only if the employing office agrees. Thus, for 
example, the employing office and employee may agree to a part-time work 
schedule after the placement for bonding purposes. If the employing office 
agrees to permit intermittent or reduced schedule leave for the placement 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. Transfer to an alternative position 
may require compliance with any applicable collective bargaining agreement and 
Federal 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. 
The employing office's agreement is not required for intermittent leave required 
by the serious health condition of the adopted or foster child. See 825.202-
825.205 for general rules governing the use of intermittent and reduced schedule 
leave. See 825.120 for general rules governing leave for pregnancy and birth of 
a child. See 825.601 for special rules applicable to instructional employees of 
schools.
``Sec. 825.122 Definitions of covered servicemember, spouse, parent, son or 
              daughter, next of kin of a covered servicemember, adoption, foster 
              care, son or daughter on covered active duty or call to covered 
              active duty status, son or daughter of a covered servicemember, 
              and parent of a covered servicemember
    ``(a) Covered servicemember means:
            ``(1) A current member of the Armed Forces, including a member of 
        the National Guard or Reserves, who is undergoing medical treatment, 
        recuperation or therapy, is otherwise in outpatient status, or is 
        otherwise on the temporary disability retired list, for a serious injury 
        or illness; or
            ``(2) A covered veteran who is undergoing medical treatment, 
        recuperation, or therapy for a serious injury or illness. Covered 
        veteran means an individual who was a member of the Armed Forces 
        (including a member of the National Guard or Reserves), and was 
        discharged or released under conditions other than dishonorable at any 
        time during the five-year period prior to the first date the eligible 
        employee takes FMLA leave to care for the covered veteran. See 
        825.127(b)(2).
    ``(b) Spouse means a husband or wife. For purposes of this definition, 
husband or wife refers to the other person with whom an individual entered into 
marriage as defined or recognized under State law for purposes of marriage in 
the State in which the marriage was entered into or, in the case of a marriage 
entered into outside of any State, if the marriage is valid in the place where 
entered into and could have been entered into in at least one State. This 
definition includes an individual in a same-sex or common law marriage that 
either:
            ``(1) Was entered into in a State that recognizes such marriages; or
            ``(2) If entered into outside of any State, is valid in the place 
        where entered into and could have been entered into in at least one 
        State.
    ``(c) Parent. Parent means a biological, adoptive, step, or foster father or 
mother, or any other individual who stood in loco parentis to the employee when 
the employee was a son or daughter as defined in paragraph (d) of this section. 
This term does not include parents `in law'.
    ``(d) Son or daughter. For purposes of FMLA leave taken for birth or 
adoption, or to care for a family member with a serious health condition, 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' at the time that FMLA leave is to commence.
            ``(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. Regulations at 29 C.F.R. 1630.2(h), (i), 
        and (j), issued by the Equal Employment Opportunity Commission under the 
        Americans with Disabilities Act (ADA), (42 U.S.C. 12101 et seq.), 
        provide guidance for these terms.
            ``(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.
    ``(e) Next of kin of a covered servicemember means the nearest blood 
relative other than the covered servicemember's spouse, parent, son, or 
daughter, in the following order of priority: blood relatives who have been 
granted legal custody of the covered servicemember by court decree or statutory 
provisions, brothers and sisters, grandparents, aunts and uncles, and first 
cousins, unless the covered servicemember has specifically designated in writing 
another blood relative as his or her nearest blood relative for purposes of 
military caregiver leave under the FMLA. When no such designation is made, and 
there are multiple family members with the same level of relationship to the 
covered servicemember, all such family members shall be considered the covered 
servicemember's next of kin and may take FMLA leave to provide care to the 
covered servicemember, either consecutively or simultaneously. When such 
designation has been made, the designated individual shall be deemed to be the 
covered servicemember's only next of kin. See 825.127(d)(3).
    ``(f) Adoption means legally and permanently assuming the responsibility of 
raising a child as one's own. The source of an adopted child (e.g., whether from 
a licensed placement agency or otherwise) is not a factor in determining 
eligibility for FMLA leave. See 825.121 for rules governing leave for adoption.
    ``(g) Foster care means 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. See 825.121 for 
rules governing leave for foster care.
    ``(h) Son or daughter on covered active duty or call to covered active duty 
status means the employee's biological, adopted, or foster child, stepchild, 
legal ward, or a child for whom the employee stood in loco parentis, who is on 
covered active duty or call to covered active duty status, and who is of any 
age. See 825.126(a)(5).
    ``(i) Son or daughter of a covered servicemember means the covered 
servicemember's biological, adopted, or foster child, stepchild, legal ward, or 
a child for whom the covered servicemember stood in loco parentis, and who is of 
any age. See 825.127(d)(1).
    ``(j) Parent of a covered servicemember means a covered servicemember's 
biological, adoptive, step, or foster father or mother, or any other individual 
who stood in loco parentis to the covered servicemember. This term does not 
include parents `in law.' See 825.127(d)(2).
    ``(k) Documenting relationships. 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. 825.123 Unable to perform the functions of the position
    ``(a) Definition. 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 amended and made applicable by section 201(a) 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.
    ``(b) Statement of functions. 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. A sufficient medical certification must specify what functions of the 
employee's position the employee is unable to perform so that the employing 
office can then determine whether the employee is unable to perform one or more 
essential functions of the employee's position. For purposes of the 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. See 825.306.
``Sec. 825.124 Needed to care for a family member or covered servicemember
    ``(a) The medical certification provision that an employee is needed to care 
for a family member or covered servicemember 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. 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 
substitute for others who normally care for the family member or covered 
servicemember, or to make arrangements for changes in care, such as transfer to 
a nursing home. The employee need not be the only individual or family member 
available to care for the family member or covered servicemember.
    ``(c) An employee's intermittent leave or a reduced leave schedule necessary 
to care for a family member or covered servicemember includes not only a 
situation where the condition of the family member or covered servicemember 
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. 
See 825.202-825.205 for rules governing the use of intermittent or reduced 
schedule leave.
``Sec. 825.125 Definition of health care provider
    ``(a) The FMLA, as made applicable by the CAA, defines health care provider 
as:
            ``(1) 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
            ``(2) Any other person determined by the Office of Congressional 
        Workplace Rights to be capable of providing health care services.
            ``(3) In making a determination referred to in subparagraph (a)(2), 
        and absent good cause shown to do otherwise, the Office of Congressional 
        Workplace Rights will follow any determination made by the Department of 
        Labor (under section 101(6)(B) of FMLA (29 U.S.C. 2611(6)(B))) that a 
        person is capable of providing health care services, provided the 
        determination by the Department of Labor 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, clinical social workers, 
        and physician assistants 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.
``Sec. 825.126 Leave because of a qualifying exigency
    ``(a) Eligible employees may take FMLA leave for a qualifying exigency while 
the employee's spouse, son, daughter, or parent (the military member or member) 
is on covered active duty or call to covered active duty status (or has been 
notified of an impending call or order to covered active duty).
            ``(1) Covered active duty or call to covered active duty status in 
        the case of a member of the Regular Armed Forces means duty during the 
        deployment of the member with the Armed Forces to a foreign country. The 
        active duty orders of a member of the Regular components of the Armed 
        Forces will generally specify if the member is deployed to a foreign 
        country.
            ``(2) Covered active duty or call to covered active duty status in 
        the case of a member of the Reserve components of the Armed Forces means 
        duty during the deployment of the member with the Armed Forces to a 
        foreign country under a Federal call or order to active duty in support 
        of a contingency operation pursuant to: section 688 of title 10 of the 
        United States Code, which authorizes ordering to active duty retired 
        members of the Regular Armed Forces and members of the retired Reserve 
        who retired after completing at least 20 years of active service; 
        section 12301(a) of title 10 of the United States Code, which authorizes 
        ordering all reserve component members to active duty in the case of war 
        or national emergency; section 12302 of title 10 of the United States 
        Code, which authorizes ordering any unit or unassigned member of the 
        Ready Reserve to active duty; section 12304 of title 10 of the United 
        States Code, which authorizes ordering any unit or unassigned member of 
        the Selected Reserve and certain members of the Individual Ready Reserve 
        to active duty; section 12305 of title 10 of the United States Code, 
        which authorizes the suspension of promotion, retirement or separation 
        rules for certain Reserve components; section 12406 of title 10 of the 
        United States Code, which authorizes calling the National Guard into 
        Federal service in certain circumstances; chapter 15 of title 10 of the 
        United States Code, which authorizes calling the National Guard and 
        State military into Federal service in the case of insurrections and 
        national emergencies; or any other provision of law during a war or 
        during a national emergency declared by the President or Congress so 
        long as it is in support of a contingency operation. See 10 U.S.C. 
        101(a)(13)(B).
                    ``(A) For purposes of covered active duty or call to covered 
                active duty status, the Reserve components of the Armed Forces 
                include the Army National Guard of the United States, Army 
                Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard 
                of the United States, Air Force Reserve, and Coast Guard 
                Reserve, and retired members of the Regular Armed Forces or 
                Reserves who are called up in support of a contingency operation 
                pursuant to one of the provisions of law identified in paragraph 
                (a)(2).
                    ``(B) The active duty orders of a member of the Reserve 
                components will generally specify if the military member is 
                serving in support of a contingency operation by citation to the 
                relevant section of title 10 of the United States Code and/or by 
                reference to the specific name of the contingency operation and 
                will specify that the deployment is to a foreign country.
            ``(3) Deployment of the member with the Armed Forces to a foreign 
        country means deployment to areas outside of the United States, the 
        District of Columbia, or any Territory or possession of the United 
        States, including international waters.
            ``(4) A call to covered active duty for purposes of leave taken 
        because of a qualifying exigency refers to a Federal call to active 
        duty. State calls to active duty are not covered unless under order of 
        the President of the United States pursuant to one of the provisions of 
        law identified in paragraph (a)(2) of this section.
            ``(5) Son or daughter on covered active duty or call to covered 
        active duty status means the employee's biological, adopted, or foster 
        child, stepchild, legal ward, or a child for whom the employee stood in 
        loco parentis, who is on covered active duty or call to covered active 
        duty status, and who is of any age.
    ``(b) An eligible employee may take FMLA leave for one or more of the 
following qualifying exigencies:
            ``(1) Short-notice deployment.  (A) To address any issue that arises 
        from the fact that the military member is notified of an impending call 
        or order to covered active duty seven or less calendar days prior to the 
        date of deployment;
                    ``(B) Leave taken for this purpose can be used for a period 
                of seven calendar days beginning on the date the military member 
                is notified of an impending call or order to covered active 
                duty;
            ``(2) Military events and related activities.
                    ``(A) To attend any official ceremony, program, or event 
                sponsored by the military that is related to the covered active 
                duty or call to covered active duty status of the military 
                member; and
                    ``(B) To attend family support or assistance programs and 
                informational briefings sponsored or promoted by the military, 
                military service organizations, or the American Red Cross that 
                are related to the covered active duty or call to covered active 
                duty status of the military member;
            ``(3) Childcare and school activities. For the purposes of leave for 
        childcare and school activities listed in (A) through (D) of this 
        paragraph, a child of the military member must be the military member's 
        biological, adopted, or foster child, stepchild, legal ward, or child 
        for whom the military member stands in loco parentis, who is either 
        under 18 years of age or 18 years of age or older and incapable of self-
        care because of a mental or physical disability at the time that FMLA 
        leave is to commence. As with all instances of qualifying exigency 
        leave, the military member must be the spouse, son, daughter, or parent 
        of the employee requesting qualifying exigency leave.
                    ``(A) To arrange for alternative childcare for a child of 
                the military member when the covered active duty or call to 
                covered active duty status of the military member necessitates a 
                change in the existing childcare arrangement;
                    ``(B) To provide childcare for a child of the military 
                member on an urgent, immediate need basis (but not on a routine, 
                regular, or everyday basis) when the need to provide such care 
                arises from the covered active duty or call to covered active 
                duty status of the military member;
                    ``(C) To enroll in or transfer to a new school or day care 
                facility a child of the military member when enrollment or 
                transfer is necessitated by the covered active duty or call to 
                covered active duty status of the military member; and
                    ``(D) To attend meetings with staff at a school or a daycare 
                facility, such as meetings with school officials regarding 
                disciplinary measures, parent-teacher conferences, or meetings 
                with school counselors, for a child of the military member, when 
                such meetings are necessary due to circumstances arising from 
                the covered active duty or call to covered active duty status of 
                the military member;
            ``(4) Financial and legal arrangements.  (A) To make or update 
        financial or legal arrangements to address the military member's absence 
        while on covered active duty or call to covered active duty status, such 
        as preparing and executing financial and healthcare powers of attorney, 
        transferring bank account signature authority, enrolling in the Defense 
        Enrollment Eligibility Reporting System (DEERS), obtaining military 
        identification cards, or preparing or updating a will or living trust; 
        and
                    ``(B) To act as the military member's representative before 
                a Federal, State, or local agency for purposes of obtaining, 
                arranging, or appealing military service benefits while the 
                military member is on covered active duty or call to covered 
                active duty status, and for a period of 90 days following the 
                termination of the military member's covered active duty status;
            ``(5) Counseling. To attend counseling provided by someone other 
        than a health care provider, for oneself, for the military member, or 
        for the biological, adopted, or foster child, a stepchild, or a legal 
        ward of the military member, or a child for whom the military member 
        stands 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 at 
        the time that FMLA leave is to commence, provided that the need for 
        counseling arises from the covered active duty or call to covered active 
        duty status of the military member;
            ``(6) Rest and Recuperation.  (A) To spend time with the military 
        member who is on short-term, temporary, Rest and Recuperation leave 
        during the period of deployment;
                    ``(B) Leave taken for this purpose can be used for a period 
                of 15 calendar days beginning on the date the military member 
                commences each instance of Rest and Recuperation leave;
            ``(7) Post-deployment activities. (A) To attend arrival ceremonies, 
        reintegration briefings and events, and any other official ceremony or 
        program sponsored by the military for a period of 90 days following the 
        termination of the military member's covered active duty status; and
                    ``(B) To address issues that arise from the death of the 
                military member while on covered active duty status, such as 
                meeting and recovering the body of the military member, making 
                funeral arrangements, and attending funeral services;
            ``(8) Parental care. For purposes of leave for parental care listed 
        in (A) through (D) of this paragraph, the parent of the military member 
        must be incapable of self-care and must be the military member's 
        biological, adoptive, step, or foster father or mother, or any other 
        individual who stood in loco parentis to the military member when the 
        member was under 18 years of age. A parent who is incapable of self-care 
        means that the parent requires active assistance or supervision to 
        provide daily self-care in three or more of the activities of daily 
        living or instrumental activities of daily living. 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. As with all 
        instances of qualifying exigency leave, the military member must be the 
        spouse, son, daughter, or parent of the employee requesting qualifying 
        exigency leave.
                    ``(A) To arrange for alternative care for a parent of the 
                military member when the parent is incapable of self-care and 
                the covered active duty or call to covered active duty status of 
                the military member necessitates a change in the existing care 
                arrangement for the parent;
                    ``(B) To provide care for a parent of the military member on 
                an urgent, immediate need basis (but not on a routine, regular, 
                or everyday basis) when the parent is incapable of self-care and 
                the need to provide such care arises from the covered active 
                duty or call to covered active duty status of the military 
                member;
                    ``(C) To admit to or transfer to a care facility a parent of 
                the military member when admittance or transfer is necessitated 
                by the covered active duty or call to covered active duty status 
                of the military member; and
                    ``(D) To attend meetings with staff at a care facility, such 
                as meetings with hospice or social service providers for a 
                parent of the military member, when such meetings are necessary 
                due to circumstances arising from the covered active duty or 
                call to covered active duty status of the military member but 
                not for routine or regular meetings;
            ``(9) Additional activities. To address other events which arise out 
        of the military member's covered active duty or call to covered active 
        duty status provided that the employing office and employee agree that 
        such leave shall qualify as an exigency, and agree to both the timing 
        and duration of such leave.
``Sec. 825.127 Leave to care for a covered servicemember with a serious injury 
              or illness (military caregiver leave)
    ``(a) Eligible employees are entitled to FMLA leave to care for a covered 
servicemember with a serious illness or injury.
    ``(b) Covered servicemember means:
            ``(1) A current member of the Armed Forces, including a member of 
        the National Guard or Reserves, who is undergoing medical treatment, 
        recuperation, or therapy, is otherwise in outpatient status; or is 
        otherwise on the temporary disability retired list, for a serious injury 
        or illness. Outpatient status means the status of a member of the Armed 
        Forces assigned to either a military medical treatment facility as an 
        outpatient or a unit established for the purpose of providing command 
        and control of members of the Armed Forces receiving medical care as 
        outpatients.
            ``(2) A covered veteran who is undergoing medical treatment, 
        recuperation or therapy for a serious injury or illness. Covered veteran 
        means an individual who was a member of the Armed Forces (including a 
        member of the National Guard or Reserves), and was discharged or 
        released under conditions other than dishonorable at any time during the 
        five-year period prior to the first date the eligible employee takes 
        FMLA leave to care for the covered veteran. An eligible employee must 
        commence leave to care for a covered veteran within five years of the 
        veteran's active duty service, but the single 12-month period described 
        in paragraph (e)(1) of this section may extend beyond the five-year 
        period.
            ``(3) For an individual who was a member of the Armed Forces 
        (including a member of the National Guard or Reserves) and who was 
        discharged or released under conditions other than dishonorable prior to 
        the effective date of this Final Rule, the period between October 28, 
        2009, and the effective date of this Final Rule shall not count towards 
        the determination of the five-year period for covered veteran status.
    ``(c) A serious injury or illness means:
            ``(1) In the case of a current member of the Armed Forces, including 
        a member of the National Guard or Reserves, means an injury or illness 
        that was incurred by the covered servicemember in the line of duty on 
        active duty in the Armed Forces or that existed before the beginning of 
        the member's active duty and was aggravated by service in the line of 
        duty on active duty in the Armed Forces, and that may render the member 
        medically unfit to perform the duties of the member's office, grade, 
        rank, or rating; and
            ``(2) In the case of a covered veteran, means an injury or illness 
        that was incurred by the member in the line of duty on active duty in 
        the Armed Forces (or existed before the beginning of the member's active 
        duty and was aggravated by service in the line of duty on active duty in 
        the Armed Forces), and manifested itself before or after the member 
        became a veteran, and is:
                    ``(A) A continuation of a serious injury or illness that was 
                incurred or aggravated when the covered veteran was a member of 
                the Armed Forces and rendered the servicemember unable to 
                perform the duties of the servicemember's office, grade, rank, 
                or rating; or
                    ``(B) A physical or mental condition for which the covered 
                veteran has received a Department of Veterans Affairs Service-
                Related Disability Rating (VASRD) of 50 percent or greater, and 
                such VASRD rating is based, in whole or in part, on the 
                condition precipitating the need for military caregiver leave; 
                or
                    ``(C) A physical or mental condition that substantially 
                impairs the covered veteran's ability to secure or follow a 
                substantially gainful occupation by reason of a disability or 
                disabilities related to military service, or would do so absent 
                treatment; or
                    ``(D) An injury, including a psychological injury, on the 
                basis of which the covered veteran has been enrolled in the 
                Department of Veterans Affairs Program of Comprehensive 
                Assistance for Family Caregivers.
    ``(d) In order to care for a covered servicemember, an eligible employee 
must be the spouse, son, daughter, or parent, or next of kin of a covered 
servicemember.
            ``(1) Son or daughter of a covered servicemember means the covered 
        servicemember's biological, adopted, or foster child, stepchild, legal 
        ward, or a child for whom the covered servicemember stood in loco 
        parentis, and who is of any age.
            ``(2) Parent of a covered servicemember means a covered 
        servicemember's biological, adoptive, step, or foster father or mother, 
        or any other individual who stood in loco parentis to the covered 
        servicemember. This term does not include parents `in law'.
            ``(3) Next of kin of a covered servicemember means the nearest blood 
        relative, other than the covered servicemember's spouse, parent, son, or 
        daughter, in the following order of priority: blood relatives who have 
        been granted legal custody of the servicemember by court decree or 
        statutory provisions, brothers and sisters, grandparents, aunts and 
        uncles, and first cousins, unless the covered servicemember has 
        specifically designated in writing another blood relative as his or her 
        nearest blood relative for purposes of military caregiver leave under 
        the FMLA. When no such designation is made, and there are multiple 
        family members with the same level of relationship to the covered 
        servicemember, all such family members shall be considered the covered 
        servicemember's next of kin and may take FMLA leave to provide care to 
        the covered servicemember, either consecutively or simultaneously. When 
        such designation has been made, the designated individual shall be 
        deemed to be the covered servicemember's only next of kin. For example, 
        if a covered servicemember has three siblings and has not designated a 
        blood relative to provide care, all three siblings would be considered 
        the covered servicemember's next of kin. Alternatively, where a covered 
        servicemember has a sibling(s) and designates a cousin as his or her 
        next of kin for FMLA purposes, then only the designated cousin is 
        eligible as the covered servicemember's next of kin. An employing office 
        is permitted to require an employee to provide confirmation of covered 
        family relationship to the covered servicemember pursuant to 825.122(k).
    ``(e) An eligible employee is entitled to 26 workweeks of leave to care for 
a covered servicemember with a serious injury or illness during a single 12-
month period.
            ``(1) The single 12-month period described in paragraph (e) of this 
        section begins on the first day the eligible employee takes FMLA leave 
        to care for a covered servicemember and ends 12 months after that date, 
        regardless of the method used by the employing office to determine the 
        employee's 12 workweeks of leave entitlement for other FMLA-qualifying 
        reasons. If an eligible employee does not take all of his or her 26 
        workweeks of leave entitlement to care for a covered servicemember 
        during this single 12-month period, the remaining part of his or her 26 
        workweeks of leave entitlement to care for the covered servicemember is 
        forfeited.
            ``(2) The leave entitlement described in paragraph (e) of this 
        section is to be applied on a per-covered-servicemember, per-injury 
        basis such that an eligible employee may be entitled to take more than 
        one period of 26 workweeks of leave if the leave is to care for 
        different covered servicemembers or to care for the same servicemember 
        with a subsequent serious injury or illness, except that no more than 26 
        workweeks of leave may be taken within any single 12-month period. An 
        eligible employee may take more than one period of 26 workweeks of leave 
        to care for a covered servicemember with more than one serious injury or 
        illness only when the serious injury or illness is a subsequent serious 
        injury or illness. When an eligible employee takes leave to care for 
        more than one covered servicemember or for a subsequent serious injury 
        or illness of the same covered servicemember, and the single 12-month 
        periods corresponding to the different military caregiver leave 
        entitlements overlap, the employee is limited to taking no more than 26 
        workweeks of leave in each single 12-month period.
            ``(3) An eligible employee is entitled to a combined total of 26 
        workweeks of leave for any FMLA-qualifying reason during the single 12-
        month period described in paragraph (e) of this section, provided that 
        the employee is entitled to no more than 12 workweeks of leave for one 
        or more of the following: in connection with the birth of a son or 
        daughter of the employee and in order to care for such son or daughter; 
        in connection with the placement of a son or daughter with the employee 
        for adoption or foster care; in order to care for the spouse, son, 
        daughter, or parent with a serious health condition; because of the 
        employee's own serious health condition; or because of a qualifying 
        exigency. Thus, for example, an eligible employee may, during the single 
        12-month period, take 16 workweeks of FMLA leave to care for a covered 
        servicemember and 10 workweeks of FMLA leave to care for a newborn 
        child. However, the employee may not take more than 12 weeks of FMLA 
        leave to care for the newborn child during the single 12-month period, 
        even if the employee takes fewer than 14 workweeks of FMLA leave to care 
        for a covered servicemember.
            ``(4) In all circumstances, including for leave taken to care for a 
        covered servicemember, the employing office is responsible for 
        designating leave, paid or unpaid, as FMLA-qualifying, and for giving 
        notice of the designation to the employee as provided in 825.300. In the 
        case of leave that qualifies as both leave to care for a covered 
        servicemember and leave to care for a family member with a serious 
        health condition during the single 12-month period described in 
        paragraph (e) of this section, the employing office must designate such 
        leave as leave to care for a covered servicemember in the first 
        instance. Leave that qualifies as both leave to care for a covered 
        servicemember and leave taken to care for a family member with a serious 
        health condition during the single 12-month period described in 
        paragraph (e) of this section must not be designated and counted as both 
        leave to care for a covered servicemember and leave to care for a family 
        member with a serious health condition. As is the case with leave taken 
        for other qualifying reasons, employing offices may retroactively 
        designate leave as leave to care for a covered servicemember pursuant to 
        825.301(d).
    ``(f) Spouses who are eligible for FMLA leave and are employed by the same 
covered employing office may be limited to a combined total of 26 workweeks of 
leave during the single 12-month period described in paragraph (e) of this 
section if the leave is taken for birth of the employee's son or daughter or to 
care for the child after birth, for placement of a son or daughter with the 
employee for adoption or foster care, or to care for the child after placement, 
to care for the employee's parent with a serious health condition, or to care 
for a covered servicemember with a serious injury or illness. This limitation on 
the total weeks of leave applies to leave taken for the reasons specified as 
long as the spouses are employed by the same employing office. It would apply, 
for example, even though the spouses are employed at two different worksites. On 
the other hand, if one spouse is ineligible for FMLA leave, the other spouse 
would be entitled to a full 26 workweeks of FMLA leave.

``Subpart B--Employee Leave Entitlements Under The Family And Medical Leave Act, 
           As Made Applicable By The Congressional Accountability Act

``Sec. 825.200 Amount of leave
    ``(a) Except in the case of leave to care for a covered servicemember with a 
serious injury or illness, 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;
            ``(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; and
            ``(5) Because of any qualifying exigency arising out of the fact 
        that the employee's spouse, son, daughter, or parent is a military 
        member on covered active duty status (or has been notified of an 
        impending call or order to covered active duty).
    ``(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 described in paragraph (a) of this section 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 under paragraph (a) begins; or
            ``(4) A `rolling' 12-month period measured backward from the date an 
        employee uses any FMLA leave as described in paragraph (a).
    ``(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, 2008, four weeks beginning June 1, 2008, 
and four weeks beginning December 1, 2008, the employee would not be entitled to 
any additional leave until February 1, 2009. However, beginning on February 1, 
2009, the employee would again be eligible to take FMLA leave, recouping the 
right to take the leave in the same manner and amounts in which it was used in 
the previous year. Thus, the employee would recoup (and be entitled to use) one 
additional day of FMLA leave each day for four weeks, commencing February 1, 
2009. The employee would also begin to recoup additional days beginning on June 
1, 2009, and additional days beginning on December 1, 2009. Accordingly, 
employing offices using the rolling 12-month period may need to calculate 
whether the employee is entitled to take FMLA leave each time that leave is 
requested, and employees taking FMLA leave on such a basis may fall in and out 
of FMLA protection based on their FMLA usage in the prior 12 months. For 
example, in the example above, if the employee needs six weeks of leave for a 
serious health condition commencing February 1, 2009, only the first four weeks 
of the leave would be FMLA-protected.
    ``(d)(1) Employing offices will be allowed to choose any one of the 
alternatives in paragraph (b) of this section for the leave entitlements 
described in paragraph (a) 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 for the leave entitlements 
described in paragraph (a), 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) An eligible employee's FMLA leave entitlement is limited to a total of 
26 workweeks of leave during a single 12-month period to care for a covered 
servicemember with a serious injury or illness. An employing office shall 
determine the single 12- month period in which the 26 weeks of leave entitlement 
described in this paragraph occurs using the 12-month period measured forward 
from the date an employee's first FMLA leave to care for the covered 
servicemember begins. See 825.127(e)(1).
    ``(g) During the single 12-month period described in paragraph (f), an 
eligible employee's FMLA leave entitlement is limited to a combined total of 26 
workweeks of FMLA leave for any qualifying reason. See 825.127(e)(3).
    ``(h) 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 an employee is 
using FMLA leave in increments of less than one week, the holiday will not count 
against the employee's FMLA entitlement unless the employee was otherwise 
scheduled and expected to work during the holiday. Similarly, if for some reason 
the employing office's business 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 825.205.
    ``(i)(1) If employing offices jointly employ an employee, and if they 
designate a primary employing office pursuant to 825.106(c), the primary 
employing office 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 employing 
office including the jointly employed employee.
            ``(2) If employing offices fail to designate a primary employing 
        office pursuant to 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 employing office of the 
        employee for purposes of the application of paragraphs (d) and (e) of 
        this section.
    ``(j) 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, so long as the prior employing office properly 
designated the leave as FMLA under these regulations or other applicable 
requirements.
``Sec. 825.201 Leave to care for a parent
    ``(a) General rule. An eligible employee is entitled to FMLA leave if needed 
to care for the employee's parent with a serious health condition. Care for 
parents-in-law is not covered by the FMLA. See 825.122(c) for definition of 
parent.
    ``(b) Same employing office limitation. Spouses who are eligible for FMLA 
leave and are employed by the same covered employing office may be limited to a 
combined total of 12 weeks of leave during any 12-month period if the leave is 
taken to care for the employee's parent with a serious health condition, for the 
birth of the employee's son or daughter or to care for the child after the 
birth, or for placement of a son or daughter with the employee for adoption or 
foster care or to care for the child after placement. This limitation on the 
total weeks of leave applies to leave taken for the reasons specified as long as 
the spouses are employed by the same employing office. It would apply, for 
example, even though the spouses are employed at two different worksites 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. Where the 
spouses both use a portion of the total 12-week FMLA leave entitlement for 
either the birth of a child, for placement for adoption or foster care, or to 
care for a parent, the spouses would each be entitled to the difference between 
the amount he or she has taken individually and 12 weeks for FMLA leave for 
other purposes. For example, if each spouse took six weeks of leave to care for 
a parent, each could use an additional six weeks due to his or her own serious 
health condition or to care for a child with a serious health condition. See 
also 825.127(d).
``Sec. 825.202 Intermittent leave or reduced leave schedule
    ``(a) Definition. 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) Medical necessity. For intermittent leave or leave on a reduced leave 
schedule taken because of one's own serious health condition, to care for a 
spouse, parent, son, or daughter with a serious health condition, or to care for 
a covered servicemember with a serious injury or illness, there must be a 
medical need for leave 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 and in the certification of a serious injury or illness, if required 
by the employing office, addresses the medical necessity of intermittent leave 
or leave on a reduced leave schedule. See 825.306, 825.310. Leave may be taken 
intermittently or on a reduced leave schedule when medically necessary for 
planned and/or unanticipated medical treatment of a serious health condition or 
of a covered servicemember's serious injury or illness, or for recovery from 
treatment or recovery from a serious health condition or a covered 
servicemember's serious injury or illness. It may also be taken to provide care 
or psychological comfort to a covered family member with a serious health 
condition or a covered servicemember with a serious injury or illness.
            ``(1) Intermittent leave may be taken for a serious health condition 
        of a spouse, parent, son, or daughter, for the employee's own serious 
        health condition, or a serious injury or illness of a covered 
        servicemember 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 or a serious injury or illness of a covered 
        servicemember, even if he or she does not receive treatment by a health 
        care provider. See 825.113 and 825.127.
    ``(c) Birth or placement. When leave is taken after the birth of a healthy 
child or placement of a healthy 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 expectant mother 
has a serious health condition in connection with the birth of her child or if 
the newborn child has a serious health condition. See 825.204 for rules 
governing transfer to an alternative position that better accommodates 
intermittent leave. See also 825.120 (pregnancy) and 825.121 (adoption and 
foster care).
    ``(d) Qualifying exigency. Leave due to a qualifying exigency may be taken 
on an intermittent or reduced leave schedule basis.
``Sec. 825.203 Scheduling of intermittent or reduced schedule leave
    ``Eligible employees may take FMLA leave on an intermittent or reduced 
schedule basis when medically necessary due to the serious health condition of a 
covered family member or the employee or the serious injury or illness of a 
covered servicemember. See 825.202. Eligible employees may also take FMLA leave 
on an intermittent or reduced schedule basis when necessary because of a 
qualifying exigency. If an employee needs leave intermittently or on a reduced 
leave schedule for planned medical treatment, then the employee must make a 
reasonable effort to schedule the treatment so as not to disrupt unduly the 
employing office's operations.
``Sec. 825.204 Transfer of an employee to an alternative position during 
              intermittent leave or reduced schedule leave
    ``(a) Transfer or reassignment. If an employee needs intermittent leave or 
leave on a reduced leave schedule that is foreseeable based on planned medical 
treatment for the employee, a family member, or a covered servicemember, 
including during a period of recovery from one's own serious health condition, a 
serious health condition of a spouse, parent, son, or daughter, or a serious 
injury or illness of a covered servicemember, 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 825.601 for special 
rules applicable to instructional employees of schools.
    ``(b) Compliance. Transfer to an alternative position may require compliance 
with any applicable collective bargaining agreement and Federal 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 scheduled leave.
    ``(c) Equivalent pay and benefits. 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) Employing office limitations. 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) Reinstatement of employee. 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 or 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 Increments of fmla leave for intermittent or reduced schedule 
              leave
    ``(a) Minimum increment. (1) When an employee takes FMLA leave on an 
intermittent or reduced leave schedule basis, the employing office must account 
for the leave using an increment no greater than the shortest period of time 
that the employing office uses to account for use of other forms of leave 
provided that it is not greater than one hour and provided further that an 
employee's FMLA leave entitlement may not be reduced by more than the amount of 
leave actually taken. An employing office may not require an employee to take 
more leave than is necessary to address the circumstances that precipitated the 
need for the leave, provided that the leave is counted using the shortest 
increment of leave used to account for any other type of leave. See also 
825.205(a)(2) for the physical impossibility exception, and 825.600 and 825.601 
for special rules applicable to employees of schools. If an employing office 
uses different increments to account for different types of leave, the employing 
office must account for FMLA leave in the smallest increment used to account for 
any other type of leave. For example, if an employing office accounts for the 
use of annual leave in increments of one hour and the use of sick leave in 
increments of one-half hour, then FMLA leave use must be accounted for using 
increments no larger than one-half hour. If an employing office accounts for use 
of leave in varying increments at different times of the day or shift, the 
employing office may also account for FMLA leave in varying increments, provided 
that the increment used for FMLA leave is no greater than the smallest increment 
used for any other type of leave during the period in which the FMLA leave is 
taken. If an employing office accounts for other forms of leave use in 
increments greater than one hour, the employing office must account for FMLA 
leave use in increments no greater than one hour. An employing office may 
account for FMLA leave in shorter increments than used for other forms of leave. 
For example, an employing office that accounts for other forms of leave in one 
hour increments may account for FMLA leave in a shorter increment when the 
employee arrives at work several minutes late, and the employing office wants 
the employee to begin work immediately. Such accounting for FMLA leave will not 
alter the increment considered to be the shortest period used to account for 
other forms of leave or the use of FMLA leave in other circumstances. In all 
cases, employees may not be charged FMLA leave for periods during which they are 
working.
            ``(2) Where it is physically impossible for an employee using 
        intermittent leave or working a reduced leave schedule to commence or 
        end work mid-way through a shift, such as where a flight attendant or a 
        railroad conductor is scheduled to work aboard an airplane or train, or 
        a laboratory employee is unable to enter or leave a sealed `clean room' 
        during a certain period of time and no equivalent position is available, 
        the entire period that the employee is forced to be absent is designated 
        as FMLA leave and counts against the employee's FMLA entitlement. The 
        period of the physical impossibility is limited to the period during 
        which the employing office is unable to permit the employee to work 
        prior to a period of FMLA leave or return the employee to the same or 
        equivalent position due to the physical impossibility after a period of 
        FMLA leave. See 825.214.
    ``(b) Calculation of leave. (1) When an employee takes leave on an 
intermittent or reduced leave schedule, only the amount of leave actually taken 
may be counted toward the employee's leave entitlement. The actual workweek is 
the basis of leave entitlement. Therefore, if an employee who would otherwise 
work 40 hours a week takes off eight hours, the employee would use one-fifth (1/
5) of a week of FMLA leave. Similarly, if a full-time employee who would 
otherwise work eight-hour days works four-hour days under a reduced leave 
schedule, the employee would use one half (1/2) week of FMLA leave each week. 
Where an employee works a part-time schedule or variable hours, the amount of 
FMLA leave that an employee uses is determined on a pro rata or proportional 
basis. If an employee who would otherwise work 30 hours per week, but works only 
20 hours a week under a reduced leave schedule, the employee's 10 hours of leave 
would constitute one-third (1/3) of a week of FMLA leave for each week the 
employee works the reduced leave schedule. An employing office may convert these 
fractions to their hourly equivalent so long as the conversion equitably 
reflects the employee's total normally scheduled hours. An employee does not 
accrue FMLA-protected leave at any particular hourly rate. An eligible employee 
is entitled to up to a total of 12 workweeks of leave, or 26 workweeks in the 
case of military caregiver leave, and the total number of hours contained in 
those workweeks is necessarily dependent on the specific hours the employee 
would have worked but for the use of leave. See also 825.601 and 825.602 on 
special rules for schools.
            ``(2) If an employing office has made a 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.
            ``(3) If an employee's schedule varies from week to week to such an 
        extent that an employing office is unable to determine with any 
        certainty how many hours the employee would otherwise have worked (but 
        for the taking of FMLA leave), a weekly average of the hours worked over 
        the 12 months prior to the beginning of the leave period (including any 
        hours for which the employee took leave of any type) would be used for 
        calculating the employee's leave entitlement.
    ``(c) Overtime. If an employee would normally be required to work overtime, 
but is unable to do so because of a FMLA-qualifying reason that limits the 
employee's ability to work overtime, the hours which the employee would have 
been required to work may be counted against the employee's FMLA entitlement. In 
such a case, the employee is using intermittent or reduced schedule leave. For 
example, if an employee would normally be required to work for 48 hours in a 
particular week, but due to a serious health condition the employee is unable to 
work more than 40 hours that week, the employee would utilize eight hours of 
FMLA-protected leave out of the 48-hour workweek, or one-sixth (1/6) of a week 
of FMLA leave. Voluntary overtime hours that an employee does not work due to an 
FMLA-qualifying reason may not be counted against the employee's FMLA leave 
entitlement.
``Sec. 825.206 Interaction with the FLSA, as made applicable by the 
              congressional accountability act
    ``(a) Leave taken under FMLA, as made applicable by the CAA, may be unpaid. 
If an employee is otherwise exempt from minimum wage and overtime requirements 
of the Fair Labor Standards Act (FLSA), as made applicable by the CAA, and as 
exempt 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.
    ``(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 covered employing offices who are eligible for FMLA leave, and to leave which 
qualifies as FMLA leave. Hourly or other deductions which are not in accordance 
with the Board's FLSA regulations at part 541 or with a 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 FLSA 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 serious injury or 
illness; or for leave which is more generous than provided by the FMLA, as made 
applicable by the CAA. Employing offices may comply with the employing office's 
own policy/practice under these circumstances and maintain the employee's 
eligibility for exemption or for the fluctuating workweek method of pay by not 
taking hourly deductions from the employee's pay, in accordance with FLSA 
requirements, as made applicable by the CAA, or may take such deductions, 
treating the employee as an hourly employee and pay overtime premium pay for 
hours worked over 40 in a workweek.
``Sec. 825.207 Substitution of paid leave, generally
    ``(a) Generally, FMLA leave is unpaid leave. However, under the 
circumstances described in this section, the FMLA, as made applicable by the 
CAA, permits an eligible employee to choose to substitute accrued paid leave for 
unpaid FMLA leave. Subject to 825.208, if an employee does not choose to 
substitute accrued paid leave, the employing office may require the employee to 
substitute accrued paid leave for unpaid FMLA leave. The term substitute means 
that the paid leave provided by the employing office, and accrued pursuant to 
established policies of the employing office, will run concurrently with the 
unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the 
employing office's applicable paid leave policy during the period of otherwise 
unpaid FMLA leave. An employee's ability to substitute accrued paid leave is 
determined by the terms and conditions of the employing office's normal leave 
policy. When an employee chooses, or an employing office requires, substitution 
of accrued paid leave, the employing office must inform the employee that the 
employee must satisfy any procedural requirements of the paid leave policy only 
in connection with the receipt of such payment. See 825.300(c). If an employee 
does not comply with the additional requirements in an employing office's paid 
leave policy, the employee is not entitled to substitute accrued paid leave, but 
the employee remains entitled to take unpaid FMLA leave. Employing offices may 
not discriminate against employees on FMLA leave in the administration of their 
paid leave policies.
    ``(b) If neither the employee nor the employing office elects to substitute 
paid leave for unpaid FMLA leave under the above conditions and circumstances, 
the employee will remain entitled to all the paid leave which is earned or 
accrued under the terms of the employing office's plan.
    ``(c) If an employee uses paid leave under circumstances which do not 
qualify as FMLA leave, the leave will not count against the employee's FMLA 
leave entitlement. For example, paid sick leave used for a medical condition 
which is not a serious health condition or serious injury or illness does not 
count against the employee's FMLA leave entitlement.
    ``(d) Leave taken pursuant to a disability leave plan would be considered 
FMLA leave for a serious health condition and counted in the leave entitlement 
permitted under FMLA if it meets the criteria set forth above in 825.112 through 
825.115. In such cases, the employing office may designate the leave as FMLA 
leave and count the leave against the employee's FMLA leave entitlement. Because 
leave pursuant to a disability benefit plan is not unpaid, the provision for 
substitution of the employee's accrued paid leave is inapplicable, and neither 
the employee nor the employing office may require the substitution of paid 
leave. However, employing offices and employees may agree to have paid leave 
supplement the disability plan benefits, such as in the case where a plan only 
provides replacement income for two-thirds of an employee's salary.
    ``(e) The FMLA, as made applicable by the CAA, provides that a serious 
health condition may result from injury to the employee on or off the job. If 
the employing office designates the leave as FMLA leave in accordance with 
825.300(d), the leave counts against the employee's FMLA leave entitlement. 
Because the workers' compensation absence is not unpaid, the provision for 
substitution of the employee's accrued paid leave is not applicable, and neither 
the employee nor the employing office may require the substitution of paid 
leave. However, employing offices and employees may agree, to have paid leave 
supplement workers' compensation benefits, such as in the case where workers' 
compensation only provides replacement income for two-thirds of an employee's 
salary. If the health care provider treating the employee for the workers' 
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 employee's FMLA leave entitlement is exhausted. As of the date 
workers' compensation benefits cease, the substitution provision becomes 
applicable and either the employee may elect or the employing office may require 
the use of accrued paid leave. See also 825.210(f), 825.216(d), 825.220(d), 
825.307(a) and 825.702 (d)(1) and (2) regarding the relationship between 
workers' compensation absences and FMLA leave.
    ``(f) Under the FLSA, as made applicable by the CAA, an employing office 
always has the right to cash out an employee's compensatory time or to require 
the employee to use the time. Therefore, if an employee requests and is 
permitted to use accrued compensatory time to receive pay for time taken off for 
an FMLA reason, or if the employing office requires such use pursuant to the 
FLSA, the time taken may be counted against the employee's FMLA leave 
entitlement.
``Sec. 825.208 Substitution of paid leave--special rule for paid parental leave
    ``(a) This section applies to births or placements occurring on or after 
October 1, 2020.
    ``(b) This section provides the basis for determining the periods of unpaid 
leave for which paid parental leave or accrued paid leave may be substituted in 
connection with:
            ``(1) The birth of a son or daughter, and to care for the newborn 
        child (See 825.120); or
            ``(2) The placement of a son or daughter with the employee for 
        adoption or foster care and the care of such son or daughter (See 
        825.121);
    ``(c) Leave connected to birth or placement. For unpaid leave described in 
paragraph (b) of this section, an employee may elect to substitute--
            ``(1) Up to 12 workweeks of paid parental leave in connection with 
        the occurrence of a birth or placement, and
            ``(2) Any additional paid annual, vacation, personal, family, 
        medical, or sick leave provided by the employing office to such 
        employee.
    ``(d) Leave entitlement. Since an employee may use only 12 weeks of unpaid 
FMLA leave in any 12-month period under 825.200(a), any use of unpaid FMLA leave 
not associated with paid parental leave may affect an employee's ability to use 
the full 12 weeks of paid parental leave within a single 12-month period. The 
specific amount of paid parental leave available will depend on when the 
employee uses various types of unpaid FMLA leave relative to any 12-month period 
established under 825.200(b).
    ``(e) Employee entitlement to substitute. (1) An employee is entitled to 
substitute paid leave for leave without pay as provided in paragraph (c) of this 
section.
            ``(2) An employing office may not require that an employee first use 
        all or any portion of the leave described in subparagraph (c)(2) of this 
        section before being allowed to use the leave described in subparagraph 
        (c)(1) of this section.
            ``(3) An employing office may not require an employee to substitute 
        paid leave for leave without pay as described in subparagraph (c)(2) of 
        this section.
            ``(4) An employee may request to use annual, vacation, personal, 
        family, medical, or sick leave for the reasons described in paragraph 
        (b) of this section without invoking family and medical leave, and, in 
        that case, the employing office exercises its normal authority with 
        respect to approving or disapproving the timing of when the leave may be 
        used. If the employing office grants the leave request, it must 
        designate whether any leave granted is FMLA leave, in accordance with 
        sections 825.300 and 825.301.
    ``(f) Notification by employee and retroactive substitution. (1) An employee 
must notify the employing office of the employee's election to substitute paid 
leave for leave without pay under this section prior to the date such paid leave 
commences (i.e., no retroactive substitution), except as provided in paragraphs 
(f)(2) and (f)(3) of this section, and provided such retroactive substitution 
does not violate any applicable law or regulation.
            ``(2) An employee may retroactively substitute paid leave for leave 
        without pay as permitted in paragraph (c) of this section, if the 
        substitution is made in conjunction with the retroactive granting of 
        leave without pay.
            ``(3) An employee may retroactively substitute transferred (donated) 
        annual leave for leave without pay granted under this subpart.
    ``(g) Pay during leave. The pay an employee receives when using paid 
parental leave shall be the same pay the employee would receive if the employee 
were using annual leave.
    ``(h) Treatment of unused leave. If an employee has any unused balance of 
paid parental leave that remains at the end of the 12-month period following the 
birth or placement involved, the entitlement to the unused leave elapses at that 
time. No payment may be made for unused paid parental leave that has expired. 
Paid parental leave may not be considered annual leave for purposes of making a 
lump-sum payment for annual leave or for any other purpose. The forfeiture of 
any unused balance of paid parental leave does not impact an employee's ability 
to use unpaid FMLA leave for other qualifying reasons, if eligible pursuant to 
825.110, 825.112 and 825.200.
    ``(i) Employing office responsibilities. An employing office that has 
employees covered by this subpart is responsible for the proper administration 
of 825.208, including the responsibility of informing employees of their 
entitlements and obligations.
    ``(j) Library of Congress. The OCWR will defer to supplemental regulations 
on paid parental leave issued by the Library of Congress pursuant to the 
authority in section 107 of the Family and Medical Leave Act of 1993, provided 
those supplemental regulations are consistent with the regulations in this 
subpart.
    ``(k) Work obligation. Paid parental leave under this subpart shall apply 
without regard to:
            ``(1) the limitations in subparagraphs (E), (F), or (G) of section 
        6382(d)(2) of title 5, United States Code (requiring employees of 
        executive branch agencies to agree in writing to work for the executive 
        branch agency for at least 12 months after returning from leave); or
            ``(2) the limitations in 825.213 (permitting employing offices to 
        recover an amount equal to the total amount of government contributions 
        for maintaining such employee's health coverage if the employee fails to 
        return from leave).
    ``(l) Cases of employee incapacitation. (1) If an employing office 
determines that an otherwise eligible employee who could have made an election 
for a past leave period to substitute paid parental leave (as provided in 
paragraph (c) of this section) was physically or mentally incapable of doing so 
during that past period, the employee may, within 5 workdays of the employee's 
return to duty status, make an election to substitute paid parental leave for 
applicable unpaid FMLA leave under paragraph (c) of this section on a 
retroactive basis, provided such retroactive substitution does not violate any 
applicable law or regulation. Such a retroactive election shall be effective on 
the date that such an election would have been effective if the employee had not 
been incapacitated at the time.
            ``(2) If an employing office learns that an otherwise eligible 
        employee is physically or mentally incapable of making an election to 
        substitute paid parental leave (as provided in 825.207), the employing 
        office must, upon the request of a personal representative of the 
        employee, provide conditional approval of substitution of paid parental 
        leave for applicable unpaid FMLA leave on a prospective basis. The 
        conditional approval is based on the presumption that the employee would 
        have elected to substitute paid parental leave for the applicable unpaid 
        FMLA leave. An employee may, within 5 workdays of the employee's return 
        to duty status, request to substitute other leave for the paid parental 
        leave.
    ``(m) Cases of multiple children born or placed in the same time period.  
(1) If an employee has multiple children born or placed on the same day, the 
multiple-child birth/placement event is considered to be a single event that 
triggers a single entitlement of up to 12 weeks of paid parental leave under 
paragraph (d) of this section.
            ``(2) If an employee has one or more children born or placed during 
        the 12-month period following the date of an earlier birth or placement 
        of a child of the employee, the provisions of this subpart shall be 
        independently administered for each birth or placement event.
``Sec. 825.209 Maintenance of employee benefits
    ``(a) During any FMLA leave, an 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 825.102. 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 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 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 the 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 Employee payment 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 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 
825.300(c).
    ``(e) An employing office may not require more of an employee using unpaid 
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 FMLA leave. See 
825.207(e).
``Sec. 825.211 Maintenance of benefits under multi-employer health plans
    ``(a) A multi-employer health plan is a plan to which more than one 
employing office is required to contribute, and which is maintained pursuant to 
one or more collective bargaining agreements between employee organization(s) 
and the employing offices.
    ``(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 
employing offices 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 825.209(f) of this part, 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 Employee failure to pay 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 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 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. If an employing office terminates an 
employee's insurance in accordance with this section and fails to restore the 
employee's health insurance as required by this section upon the employee's 
return, the employing office may be liable for benefits lost by reason of the 
violation, for other actual monetary losses sustained as a direct result of the 
violation, and for appropriate equitable relief tailored to the harm suffered.
``Sec. 825.213 Employing office recovery of benefit costs
    ``(a) In addition to the circumstances discussed in 825.212(b), and subject 
to the exceptions provided in 825.208(k), an employing office may recover its 
share of health plan premiums during a period of unpaid FMLA leave 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 either a serious 
        health condition of the employee or the employee's family member, or a 
        serious injury or illness of a covered servicemember, which would 
        otherwise entitle the employee to leave under FMLA; or
            ``(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 a covered 
        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.
            ``(3) When an employee fails to return to work because of the 
        continuation, recurrence, or onset of either a serious health condition 
        of the employee or employee's family member, or a serious injury or 
        illness of a covered servicemember, 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 or the covered 
        servicemember's serious injury or illness. Such certification is not 
        required unless requested by the employing office. 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. 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 forms developed 
        for this purpose. See 825.306(b), 825.310(c)-(d) and Forms A, B, and F. 
        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 two 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 Employee right to reinstatement
    ``General Rule. 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 825.106(e) for the obligations of 
employing offices that are joint employers.
``Sec. 825.215 Equivalent position
    ``(a) Equivalent position. 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, prerequisites, and status. It must 
involve the same or substantially similar duties and responsibilities, which 
must entail substantially equivalent skill, effort, responsibility, and 
authority.
    ``(b) Conditions to qualify. If an employee is no longer qualified for the 
position because of the employee's inability to attend a necessary course, renew 
a license, 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 must be granted in accordance with the employing office's 
policy or practice with respect to other employees on an equivalent leave status 
for a reason that does not qualify as 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) Equivalent pay includes any bonus or payment, whether it is 
        discretionary or non-discretionary, made to employees consistent with 
        the provisions of paragraph (c)(1) of this section. However, if a bonus 
        or other payment is based on the achievement of a specified goal such as 
        hours worked, products sold or perfect attendance, and the employee has 
        not met the goal due to FMLA leave, then the payment may be denied, 
        unless otherwise paid to employees on an equivalent leave status for a 
        reason that does not qualify as FMLA leave. For example, if an employee 
        who used paid vacation leave for a non-FMLA purpose would receive the 
        payment, then the employee who used paid vacation leave for an FMLA-
        protected purpose also must receive the payment.
    ``(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 work 
        force, 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 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, 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) De minimis exception. 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, intangible, or 
unmeasurable aspects of the job.
``Sec. 825.216 Limitations on an employee's right to reinstatement
    ``(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. 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.
            ``(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.
            ``(3) 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. On the other hand, if an employee was hired to 
        perform work for one employing office for a specific time period, and 
        after that time period has ended, the work was assigned to another 
        employing office, the successor employing office may be required to 
        restore the employee if it is a successor employing office.
    ``(b) In addition to the circumstances explained above, an employing office 
may deny job restoration to salaried eligible employees (key employees, as 
defined in 825.217(c)), 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 825.312.
    ``(c) 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 or an injury or illness also covered by workers' 
compensation, the employee has no right to restoration to another position under 
the FMLA. The employing office's obligations may, however, be governed by the 
Americans with Disabilities Act (ADA), as amended and as made applicable by the 
CAA. See 825.702.
    ``(d) An employee who fraudulently obtains FMLA leave from an employing 
office is not protected by the job restoration or maintenance of health benefits 
provisions of the FMLA, as made applicable by the CAA.
    ``(e) 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 (d) of this section.
``Sec. 825.217 Key employee, general rule
    ``(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 FLSA 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.
    ``(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 prerequisites.
            ``(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 Substantial and grievous economic injury
    ``(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, as made 
applicable by the CAA. See also 825.702.
``Sec. 825.219 Rights of a key employee
    ``(a) An employing office that 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 the employee either 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 Protection for employees 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--
                    ``(A) Filed any claim, or has instituted (or caused to be 
                instituted) any proceeding under or related to the FMLA, as made 
                applicable by the CAA;
                    ``(B) 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;
                    ``(C) 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. An employing office 
may be liable for compensation and benefits lost by reason of the violation, for 
other actual monetary losses sustained as a direct result of the violation, and 
for appropriate equitable or other relief, including employment, reinstatement, 
promotion, or any other relief tailored to the harm suffered. See 825.400(b). 
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 a covered 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; or
            ``(3) Reducing hours available to work in order to avoid employee 
        eligibility.
    ``(c) The FMLA's prohibition against interference prohibits an employing 
office from discriminating or retaliating against an employee or prospective 
employee for having exercised or attempted to exercise FMLA rights. 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. See 825.215.
    ``(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. Except for 
settlement agreements covered by 1414 and/or 1415 of the Congressional 
Accountability Act, this does not prevent the settlement or release of FMLA 
claims by employees based on past employing office conduct without the approval 
of the Office of Congressional Workplace Rights or a court. Nor does it 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 825.702(d). An employee's acceptance of such light duty 
assignment does not constitute a waiver of the employee's prospective rights, 
including the right to be restored to the same position the employee held at the 
time the employee's FMLA leave commenced or to an equivalent position. The 
employee's right to restoration, however, ceases at the end of the applicable 
12-month FMLA leave year.
    ``(e) Covered employees, and not merely eligible employees, are protected 
from retaliation for opposing (e.g., filing 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--Employee and Employing Office Rights and Obligations Under The 
                       FMLA, As Made Applicable by the CAA

``Sec. 825.300 Employing office notice requirements
    ``(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 Congressional Workplace 
Rights 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 (c), 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 Congressional Workplace Rights to provide such guidance.
    ``(b) Eligibility notice. (1) When an employee requests FMLA leave, or when 
the employing office acquires knowledge that an employee's leave may be for an 
FMLA-qualifying reason, the employing office must notify the employee of the 
employee's eligibility to take FMLA leave within five business days, absent 
extenuating circumstances. See 825.110 for definition of an eligible employee. 
Employee eligibility is determined (and notice must be provided) at the 
commencement of the first instance of leave for each FMLA-qualifying reason in 
the applicable 12-month period. See 825.127(c) and 825.200(b). All FMLA absences 
for the same qualifying reason are considered a single leave and employee 
eligibility as to that reason for leave does not change during the applicable 
12-month period.
            ``(2) The eligibility notice must state whether the employee is 
        eligible for FMLA leave as defined in 825.110. If the employee is not 
        eligible for FMLA leave, the notice must state at least one reason why 
        the employee is not eligible, including as applicable the number of 
        months the employee has been employed by the employing office and the 
        hours of service with the employing office during the 12-month period. 
        Notification of eligibility may be oral or in writing; employing offices 
        may use Form C to provide such notification to employees.
            ``(3) If, at the time an employee provides notice of a subsequent 
        need for FMLA leave during the applicable 12-month period due to a 
        different FMLA-qualifying reason, and the employee's eligibility status 
        has not changed, no additional eligibility notice is required. If, 
        however, the employee's eligibility status has changed (e.g., if the 
        employee has not met the hours of service requirement in the 12 months 
        preceding the commencement of leave for the subsequent qualifying 
        reason), the employing office must notify the employee of the change in 
        eligibility status within five business days, absent extenuating 
        circumstances.
    ``(c) Rights and responsibilities notice. (1) Employing offices shall 
provide written notice detailing the specific expectations and obligations of 
the employee and explaining any consequences of a failure to meet these 
obligations. This notice shall be provided to the employee each time the 
eligibility notice is provided pursuant to paragraph (b) of this section. If 
leave has already begun, the notice should be mailed to the employee's address 
of record. Such specific notice must include, as appropriate:
                    ``(A) That the leave may be designated and counted against 
                the employee's annual FMLA leave entitlement if qualifying (See 
                825.300(c) and 825.301) and the applicable 12-month period for 
                FMLA entitlement (See 825.127(c), 825.200(b), (f), and (g));
                    ``(B) Any requirements for the employee to furnish 
                certification of a serious health condition, serious injury or 
                illness, or qualifying exigency arising out of covered active 
                duty or call to covered active duty status, and the consequences 
                of failing to do so (See 825.305, 825.309, 825.310, 825.313);
                    ``(C) If applicable, the employee's right to substitute paid 
                parental leave for unpaid FMLA leave for a birth or placement 
                (See 825.208) and the employee's right to substitute paid leave 
                generally, whether the employing office will require the 
                substitution of paid leave, the conditions related to any 
                substitution, and the employee's entitlement to take unpaid FMLA 
                leave if the employee does not meet the conditions for paid 
                leave (See 825.207);
                    ``(D) Any requirement for the employee to make any premium 
                payments to maintain health benefits and the arrangements for 
                making such payments (See 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);
                    ``(E) 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 825.218);
                    ``(F) The employee's right to maintenance of benefits during 
                the FMLA leave and restoration to the same or an equivalent job 
                upon return from FMLA leave (See 825.214 and 825.604); and
                    ``(G) 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 825.213, 825.208(k)).
            ``(2) The notice of rights and responsibilities 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.
            ``(3) The notice of rights and responsibilities may be accompanied 
        by any required certification form.
            ``(4) If the specific information provided by the notice of rights 
        and responsibilities changes, the employing office shall, within five 
        business days of receipt of the employee's first notice of need for 
        leave subsequent to any change, provide written notice referencing the 
        prior notice and setting forth any of the information in the notice of 
        rights and responsibilities that has changed. For example, if the 
        initial leave period was 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.
            ``(5) 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.
            ``(6) A prototype notice of rights and responsibilities may be 
        obtained in Form C, or from the Office of Congressional Workplace 
        Rights. Employing offices may adapt the prototype notice as appropriate 
        to meet these notice requirements. The notice of rights and 
        responsibilities may be distributed electronically so long as it 
        otherwise meets the requirements of this section.
    ``(d) Designation notice. (1) The employing office is responsible in all 
circumstances for designating leave as FMLA-qualifying, and for giving notice of 
the designation to the employee as provided in this section. When the employing 
office has enough information to determine whether the leave is being taken for 
a FMLA-qualifying reason (e.g., after receiving a certification), the employing 
office must notify the employee whether the leave will be designated and will be 
counted as FMLA leave within five business days absent extenuating 
circumstances. Only one notice of designation is required for each FMLA-
qualifying reason per applicable 12-month period, regardless of whether the 
leave taken due to the qualifying reason will be a continuous block of leave or 
intermittent or reduced schedule leave. If the employing office determines that 
the leave will not be designated as FMLA-qualifying (e.g., if the leave is not 
for a reason covered by FMLA or the FMLA leave entitlement has been exhausted), 
the employing office must notify the employee of that determination. Subject to 
825.208, if the employing office requires paid leave to be substituted for 
unpaid FMLA leave, or that paid leave taken under an existing leave plan be 
counted as FMLA leave, the employing office must inform the employee of this 
designation at the time of designating the FMLA leave.
            ``(2) If the employing office has sufficient information to 
        designate the leave as FMLA leave immediately after receiving notice of 
        the employee's need for leave, the employing office may provide the 
        employee with the designation notice at that time.
            ``(3) If the employing office will require the employee to present a 
        fitness-for-duty certification to be restored to employment, the 
        employing office must provide notice of such requirement with the 
        designation notice. If the employing office will require that the 
        fitness-for-duty certification address the employee's ability to perform 
        the essential functions of the employee's position, the employing office 
        must so indicate in the designation notice, and must include a list of 
        the essential functions of the employee's position. See 825.312. If the 
        employing office's handbook or other written documents (if any) 
        describing the employing office's leave policies clearly provide that a 
        fitness-for- duty certification will be required in specific 
        circumstances (e.g., by stating that fitness- for-duty certification 
        will be required in all cases of back injuries for employees in a 
        certain occupation), the employing office is not required to provide 
        written notice of the requirement with the designation notice, but must 
        provide oral notice no later than with the designation notice.
            ``(4) The designation notice must be in writing. A prototype 
        designation notice is contained in Form D which may be obtained from the 
        Office of Congressional Workplace Rights. If the leave is not designated 
        as FMLA leave because it does not meet the requirements of the FMLA, as 
        made applicable by the CAA, the notice to the employee that the leave is 
        not designated as FMLA leave may be in the form of a simple written 
        statement. The designation notice may be distributed electronically so 
        long as it otherwise meets the requirements of this section and the 
        employing office can demonstrate that the employee (who may already be 
        on leave and who may not have access to employing office-provided 
        computers) has access to the information electronically.
            ``(5) If the information provided by the employing office to the 
        employee in the designation notice changes (e.g., the employee exhausts 
        the FMLA leave entitlement), the employing office shall provide, within 
        five business days of receipt of the employee's first notice of need for 
        leave subsequent to any change, written notice of the change.
            ``(6) The employing office must notify the employee of the amount of 
        leave counted against the employee's FMLA leave entitlement and, if 
        applicable, the employee's paid parental leave entitlement. If the 
        amount of leave needed is known at the time the employing office 
        designates the leave as FMLA-qualifying, the employing office must 
        notify the employee of the number of hours, days, or weeks that will be 
        counted against the employee's FMLA leave entitlement in the designation 
        notice. If it is not possible to provide the hours, days, or weeks that 
        will be counted against the employee's FMLA leave entitlement (such as 
        in the case of unforeseeable intermittent leave), then the employing 
        office must provide notice of the amount of leave counted against the 
        employee's FMLA leave entitlement and, if applicable, paid parental 
        leave entitlement, upon the request by the employee, but no more often 
        than once in a 30-day period and only if leave was taken in that period. 
        The notice of the amount of leave counted against the employee's FMLA 
        entitlement and, if applicable, paid parental leave entitlement may be 
        oral or in writing. If such 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). Such written notice may be in any 
        form, including a notation on the employee's pay stub.
    ``(e) Consequences of failing to provide notice. Failure to follow the 
notice requirements set forth in this section may constitute an interference 
with, restraint, or denial of the exercise of an employee's FMLA rights. An 
employing office may be liable for compensation and benefits lost by reason of 
the violation, for other actual monetary losses sustained as a direct result of 
the violation, and for appropriate equitable or other relief, including 
employment, reinstatement, promotion, or any other relief tailored to the harm 
suffered. See 825.400(b).
``Sec. 825.301 Designation of FMLA leave
    ``(a) Employing office responsibilities. The employing office's decision to 
designate leave as FMLA-qualifying 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 leave, the employing office should 
inquire further of the employee or the spokesperson to ascertain whether leave 
is potentially FMLA-qualifying. Once the employing office has acquired knowledge 
that the leave is being taken for a FMLA-qualifying reason, the employing office 
must notify the employee as provided in 825.300(d).
    ``(b) Employee responsibilities. An employee giving notice of the need for 
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 and otherwise satisfy the notice requirements set forth in 
825.302 or 825.303 depending on whether the need for leave is foreseeable or 
unforeseeable. An employee giving notice of the need for FMLA leave must explain 
the reasons for the needed leave so as to allow the employing office to 
determine whether 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 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 leave as FMLA 
leave. An employee using accrued paid leave may in some cases not spontaneously 
explain the reasons or their plans for using their accrued leave. However, if an 
employee requesting to use paid leave for a FMLA-qualifying reason does not 
explain the reason for the leave and the employing office denies the employee's 
request, the employee will need to provide sufficient information to establish a 
FMLA-qualifying reason for the needed leave so that the employing office is 
aware that the leave may not be denied and may designate that the paid leave be 
appropriately counted against (substituted for) the employee's FMLA leave 
entitlement. Similarly, an employee using accrued paid vacation leave who seeks 
an extension of unpaid leave for a FMLA-qualifying reason 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 
reason against the employee's FMLA leave entitlement.
    ``(c) Disputes. If there is a dispute between an employing office and an 
employee as to whether 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.
    ``(d) Retroactive designation. Subject to 825.208, if an employing office 
does not designate leave as required by 825.300, the employing office may 
retroactively designate leave as FMLA leave with appropriate notice to the 
employee as required by 825.300 provided that the employing office's failure to 
timely designate leave does not cause harm or injury to the employee. In all 
cases where leave would qualify for FMLA protections, an employing office and an 
employee can mutually agree that leave be retroactively designated as FMLA 
leave.
    ``(e) Remedies. If an employing office's failure to timely designate leave 
in accordance with 825.300 causes the employee to suffer harm, it may constitute 
an interference with, restraint of, or denial of the exercise of an employee's 
FMLA rights. An employing office may be liable for compensation and benefits 
lost by reason of the violation, for other actual monetary losses sustained as a 
direct result of the violation, and for appropriate equitable or other relief, 
including employment, reinstatement, promotion, or any other relief tailored to 
the harm suffered. See 825.400(b). For example, if an employing office that was 
put on notice that an employee needed FMLA leave failed to designate the leave 
properly, but the employee's own serious health condition prevented him or her 
from returning to work during that time period regardless of the designation, an 
employee may not be able to show that the employee suffered harm as a result of 
the employing office's actions. However, if an employee took leave to provide 
care for a son or daughter with a serious health condition believing it would 
not count toward his or her FMLA entitlement, and the employee planned to later 
use that FMLA leave to provide care for a spouse who would need assistance when 
recovering from surgery planned for a later date, the employee may be able to 
show that harm has occurred as a result of the employing office's failure to 
designate properly. The employee might establish this by showing that he or she 
would have arranged for an alternative caregiver for the seriously-ill son or 
daughter if the leave had been designated timely.
``Sec. 825.302 Employee notice requirements for foreseeable FMLA leave
    ``(a) Timing of notice. 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, planned medical treatment for a serious health condition of the 
employee or of a family member, or the planned medical treatment for a serious 
injury or illness of a covered servicemember. 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. For foreseeable leave due to a qualifying exigency, 
notice must be provided as soon as practicable, regardless of how far in advance 
such leave is foreseeable. Whether FMLA 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. In those cases where the employee is required to provide at 
least 30 days' notice of foreseeable leave and does not do so, the employee 
shall explain the reasons why such notice was not practicable upon a request 
from the employing office for such information.
    ``(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. 
When an employee becomes aware of a need for FMLA leave less than 30 days in 
advance, it should be practicable for the employee to provide notice of the need 
for leave either the same day or the next business day. In all cases, however, 
the determination of when an employee could practicably provide notice must take 
into account the individual facts and circumstances.
    ``(c) Content of notice. 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. 
Depending on the situation, such information may include that a condition 
renders the employee unable to perform the functions of the job; that the 
employee is pregnant or has been hospitalized overnight; whether the employee or 
the employee's family member is under the continuing care of a health care 
provider; if the leave is due to a qualifying exigency, that a military member 
is on covered active duty or call to covered active duty status (or has been 
notified of an impending call or order to covered active duty), and that the 
requested leave is for one of the reasons listed in 825.126(b); if the leave is 
for a family member, that the condition renders the family member unable to 
perform daily activities, or that the family member is a covered servicemember 
with a serious injury or illness; and the anticipated duration of the absence, 
if known. When an employee seeks leave for the first time for a FMLA-qualifying 
reason, the employee need not expressly assert rights under the FMLA, as made 
applicable by the CAA, or even mention the FMLA. When an employee seeks leave 
due to a FMLA-qualifying reason, for which the employing office has previously 
provided FMLA-protected leave, the employee must specifically reference the 
qualifying reason for leave or the need for FMLA leave. In all cases, 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 
825.305. An employing office may also request certification to support the need 
for leave for a qualifying exigency or for military caregiver leave. See 
825.309, 825.310. When an employee has been previously certified for leave due 
to more than one FMLA-qualifying reason, the employing office may need to 
inquire further to determine for which qualifying reason the leave is needed. An 
employee has an obligation to respond to an employing office's questions 
designed to determine whether an absence is potentially FMLA-qualifying. Failure 
to respond to reasonable employing office inquiries regarding the leave request 
may result in denial of FMLA protection if the employing office is unable to 
determine whether the leave is FMLA-qualifying.
    ``(d) Complying with the employing office policy. An employing office may 
require an employee to comply with the employing office's usual and customary 
notice and procedural requirements for requesting leave, absent unusual 
circumstances. 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. An employee also may be required 
by an employing office's policy to contact a specific individual. Unusual 
circumstances would include situations such as when an employee is unable to 
comply with the employing office's policy that requests for leave should be made 
by contacting a specific number because on the day the employee needs to provide 
notice of his or her need for FMLA leave there is no one to answer the call-in 
number and the voice mail box is full. Where an employee does not comply with 
the employing office's usual notice and procedural requirements, and no unusual 
circumstances justify the failure to comply, FMLA-protected leave may be delayed 
or denied. However, FMLA-protected leave may not be delayed or denied where the 
employing office's policy requires notice to be given sooner than set forth in 
paragraph (a) of this section and the employee provides timely notice as set 
forth in paragraph (a) of this section.
    ``(e) Scheduling planned medical treatment. When planning medical treatment, 
the employee must consult with the employing office and make a reasonable effort 
to schedule the treatment 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. For example, 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 effort 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. See 825.203 and 825.205.
    ``(f) Intermittent leave or leave on a reduced leave schedule must be 
medically necessary due to a serious health condition or a serious injury or 
illness. 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 for such leave that 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. See 
825.304(e).
``Sec. 825.303 Employee notice requirements for unforeseeable FMLA leave
    ``(a) Timing of notice. When the approximate timing of the need for leave is 
not foreseeable, an employee must provide notice to the employing office as soon 
as practicable under the facts and circumstances of the particular case. It 
generally should be practicable for the employee to provide notice of leave that 
is unforeseeable within the time prescribed by the employing office's usual and 
customary notice requirements applicable to such leave. See 825.303(c). 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. For 
example, if an employee's child has a severe asthma attack and the employee 
takes the child to the emergency room, the employee would not be required to 
leave his or her child in order to report the absence while the child is 
receiving emergency treatment. However, if the child's asthma attack required 
only the use of an inhaler at home followed by a period of rest, the employee 
would be expected to call the employing office promptly after ensuring the child 
has used the inhaler.
    ``(b) Content of notice. An employee shall provide sufficient information 
for an employing office to reasonably determine whether the FMLA may apply to 
the leave request. Depending on the situation, such information may include that 
a condition renders the employee unable to perform the functions of the job; 
that the employee is pregnant or has been hospitalized overnight; whether the 
employee or the employee's family member is under the continuing care of a 
health care provider; if the leave is due to a qualifying exigency, that a 
military member is on covered active duty or call to covered active duty status 
(or has been notified of an impending call or order to covered active duty), 
that the requested leave is for one of the reasons listed in 825.126(b), and the 
anticipated duration of the absence; or if the leave is for a family member that 
the condition renders the family member unable to perform daily activities or 
that the family member is a covered servicemember with a serious injury or 
illness; and the anticipated duration of the absence, if known. When an employee 
seeks leave for the first time for a FMLA-qualifying reason, the employee need 
not expressly assert rights under the FMLA, as made applicable by the CAA, or 
even mention the FMLA. When an employee seeks leave due to a qualifying reason, 
for which the employing office has previously provided the employee FMLA-
protected leave, the employee must specifically reference either the qualifying 
reason for leave or the need for FMLA leave. Calling in `sick' without providing 
more information will not be considered sufficient notice to trigger an 
employing office's obligations under the FMLA, as made applicable by the CAA. 
The employing office will be expected to obtain any additional required 
information through informal means. An employee has an obligation to respond to 
an employing office's questions designed to determine whether an absence is 
potentially FMLA-qualifying. Failure to respond to reasonable employing office 
inquiries office regarding the leave request may result in denial of FMLA 
protection if the employing office is unable to determine whether the leave is 
FMLA-qualifying.
    ``(c) Complying with employing office policy. When the need for leave is not 
foreseeable, an employee must comply with the employing office's usual and 
customary notice and procedural requirements for requesting leave, absent 
unusual circumstances. For example, an employing office may require employees to 
call a designated number or a specific individual to request leave. However, if 
an employee requires emergency medical treatment, he or she would not be 
required to follow the call-in procedure until his or her condition is 
stabilized and he or she has access to, and is able to use, a phone. Similarly, 
in the case of an emergency requiring leave because of a FMLA-qualifying reason, 
written advance notice pursuant to an employing office's internal rules and 
procedures may not be required when FMLA leave is involved. If an employee does 
not comply with the employing office's usual notice and procedural requirements, 
and no unusual circumstances justify the failure to comply, FMLA-protected leave 
may be delayed or denied.
``Sec. 825.304 Employee failure to provide notice
    ``(a) Proper notice required. 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 Congressional Workplace Rights to the employing office in a manner 
suitable for posting.
    ``(b) Foreseeable leave--30 days. When the need for FMLA leave is 
foreseeable at least 30 days in advance and an employee fails to give timely 
advance notice with no reasonable excuse, the employing office may delay FMLA 
coverage until 30 days after the date the employee provides notice. 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 to establish the leave was clearly foreseeable 30 days in advance.
    ``(c) Foreseeable leave--less than 30 days. When the need for FMLA leave is 
foreseeable fewer than 30 days in advance and an employee fails to give notice 
as soon as practicable under the particular facts and circumstances, the extent 
to which an employing office may delay FMLA coverage for leave depends on the 
facts of the particular case. For example, if an employee reasonably should have 
given the employing office two weeks' notice but instead only provided one 
week's notice, then the employing office may delay FMLA-protected leave for one 
week (thus, if the employing office elects to delay FMLA coverage and the 
employee nonetheless takes leave one week after providing the notice (i.e., a 
week before the two week notice period has been met) the leave will not be FMLA-
protected).
    ``(d) Unforeseeable leave. When the need for FMLA leave is unforeseeable and 
an employee fails to give notice in accordance with 825.303, the extent to which 
an employing office may delay FMLA coverage for leave depends on the facts of 
the particular case. For example, if it would have been practicable for an 
employee to have given the employing office notice of the need for leave very 
soon after the need arises consistent with the employing office's policy, but 
instead the employee provided notice two days after the leave began, then the 
employing office may delay FMLA coverage of the leave by two days.
    ``(e) Waiver of notice. An employing office may waive employees' FMLA notice 
obligations or the employing office's own internal rules on leave notice 
requirements. If an employing office does not waive the employee's obligations 
under its internal leave rules, the employing office may take appropriate action 
under its internal rules and procedures for failure to follow its usual and 
customary notification rules, absent unusual circumstances, as long as the 
actions are taken in a manner that does not discriminate against employees 
taking FMLA leave and the rules are not inconsistent with 825.303(a).
``Sec. 825.305 Certification, general rule
    ``(a) General. An employing office may require that an employee's leave to 
care for the employee's covered family member with a serious health condition, 
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 family member. An employing office may also 
require that an employee's leave because of a qualifying exigency or to care for 
a covered servicemember with a serious injury or illness be supported by a 
certification, as described in 825.309 and 825.310, respectively. An employing 
office must give notice of a requirement for certification each time a 
certification is required; such notice must be written notice whenever required 
by 825.300(c). An employing office's oral request to an employee to furnish any 
subsequent certification is sufficient.
    ``(b) Timing. In most cases, the employing office should request that an 
employee furnish certification at the time the employee gives notice of the need 
for leave or within five business days thereafter, or, in the case of unforeseen 
leave, within five 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. The 
employee must provide the requested certification to the employing office within 
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 or the employing office provides more than 15 
calendar days to return the requested certification.
    ``(c) Complete and sufficient certification. The employee must provide a 
complete and sufficient certification to the employing office if required by the 
employing office in accordance with 825.306, 825.309, and 825.310. The employing 
office shall advise an employee whenever the employing office finds a 
certification incomplete or insufficient, and shall state in writing what 
additional information is necessary to make the certification complete and 
sufficient. A certification is considered incomplete if the employing office 
receives a certification, but one or more of the applicable entries have not 
been completed. A certification is considered insufficient if the employing 
office receives a complete certification, but the information provided is vague, 
ambiguous, or non-responsive. The employing office must provide the employee 
with seven calendar days (unless not practicable under the particular 
circumstances despite the employee's diligent good faith efforts) to cure any 
such deficiency. If the deficiencies specified by the employing office are not 
cured in the resubmitted certification, the employing office may deny the taking 
of FMLA leave, in accordance with 825.313. A certification that is not returned 
to the employing office is not considered incomplete or insufficient, but 
constitutes a failure to provide certification.
    ``(d) Consequences. 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. If the 
employee fails to provide the employing office with a complete and sufficient 
certification, despite the opportunity to cure the certification as provided in 
paragraph (c) of this section, or fails to provide any certification, the 
employing office may deny the taking of FMLA leave, in accordance with 825.313. 
It is the employee's responsibility either to furnish a complete and sufficient 
certification or to furnish the health care provider providing the certification 
with any necessary authorization from the employee or the employee's family 
member in order for the health care provider to release a complete and 
sufficient certification to the employing office to support the employee's FMLA 
request. This provision will apply in any case where an employing office 
requests a certification permitted by these regulations, whether it is the 
initial certification, a recertification, a second or third opinion, or a 
fitness-for-duty certificate, including any clarifications necessary to 
determine if such certifications are authentic and sufficient. See 825.306, 
825.307, 825.308, and 825.312. (e) Annual medical certification. Where the 
employee's need for leave due to the employee's own serious health condition, or 
the serious health condition of the employee's covered family member, lasts 
beyond a single leave year (as defined in 825.200), the employing office may 
require the employee to provide a new medical certification in each subsequent 
leave year. Such new medical certifications are subject to the provisions for 
authentication and clarification set forth in 825.307, including second and 
third opinions.
``Sec. 825.306 Content of medical certification for leave taken because of an 
              employee's own serious health condition or the serious health 
              condition of a family member
    ``(a) Required information. When leave is taken because of an employee's own 
serious health condition, or the serious health condition of a family member, an 
employing office may require an employee to obtain a medical certification from 
a health care provider that sets forth the following information:
            ``(1) The name, address, telephone number, and fax number of the 
        health care provider and type of medical practice/specialization;
            ``(2) The approximate date on which the serious health condition 
        commenced, and its probable duration;
            ``(4) If the employee is the patient, information sufficient to 
        establish that the employee cannot perform the essential functions of 
        the employee's job as well as the nature of any other work restrictions, 
        and the likely duration of such inability (See 825.123(b));
            ``(5) If the patient is a covered family member with a serious 
        health condition, information sufficient to establish that the family 
        member is in need of care, as described in 825.124, and an estimate of 
        the frequency and duration of the leave required to care for the family 
        member;
            ``(6) If an employee requests leave on an intermittent or reduced 
        schedule basis for planned medical treatment of the employee's or a 
        covered family member's serious health condition, information sufficient 
        to establish the medical necessity for such intermittent or reduced 
        schedule leave and an estimate of the dates and duration of such 
        treatments and any periods of recovery;
            ``(7) If an employee requests leave on an intermittent or reduced 
        schedule basis for the employee's serious health condition, including 
        pregnancy, that may result in unforeseeable episodes of incapacity, 
        information sufficient to establish the medical necessity for such 
        intermittent or reduced schedule leave and an estimate of the frequency 
        and duration of the episodes of incapacity; and
            ``(8) If an employee requests leave on an intermittent or reduced 
        schedule basis to care for a covered family member with a serious health 
        condition, a statement that such leave is medically necessary to care 
        for the family member, as described in 825.124 and 825.203(b), which can 
        include assisting in the family member's recovery, and an estimate of 
        the frequency and duration of the required leave.
    ``(b) The Office of Congressional Workplace Rights has developed two 
optional forms (Form A and Form B) for use in obtaining medical certification, 
including second and third opinions, from health care providers that meets 
FMLA's certification requirements, as made applicable by the CAA. (See Forms A 
and B.) Optional Form A is for use when the employee's need for leave is due to 
the employee's own serious health condition. Optional Form B is for use when the 
employee needs leave to care for a family member with a serious health 
condition. These optional forms reflect certification requirements so as to 
permit the health care provider to furnish appropriate medical information. 
Forms A and B are modeled closely on Form WH-380E and Form WH-380F, as revised, 
which were developed by the Department of Labor (See 29 C.F.R. Part 825). The 
employing office may use the Office of Congressional Workplace Rights's forms, 
or Form WH-380E and Form WH-380F, as revised, or another form containing the 
same basic information; however, no information may be required beyond that 
specified in 825.306, 825.307, and 825.308. In all instances the information on 
the form must relate only to the serious health condition for which the current 
need for leave exists.
    ``(c) 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 request 
additional information from the employee's workers' compensation health care 
provider, the FMLA does not prevent the employing office from following the 
applicable workers' compensation provisions and information received under those 
provisions may be considered in determining the employee's entitlement to FMLA-
protected leave. Similarly, an employing office may request additional 
information in accordance with a paid leave policy or disability plan that 
requires greater information to qualify for payments or benefits, provided that 
the employing office informs the employee that the additional information only 
needs to be provided in connection with receipt of such payments or benefits. 
Any information received pursuant to such policy or plan may be considered in 
determining the employee's entitlement to FMLA-protected leave. If the employee 
fails to provide the information required for receipt of such payments or 
benefits, such failure will not affect the employee's entitlement to take unpaid 
FMLA leave. See 825.207(a).
    ``(d) If an employee's serious health condition may also be a disability 
within the meaning of the Americans with Disabilities Act (ADA), as amended and 
as made applicable by the CAA, the FMLA does not prevent the employing office 
from following the procedures for requesting medical information under the ADA. 
Any information received pursuant to these procedures may be considered in 
determining the employee's entitlement to FMLA-protected leave.
    ``(e) While an employee may choose to comply with the certification 
requirement by providing the employing office with an authorization, release, or 
waiver allowing the employing office to communicate directly with the health 
care provider of the employee or his or her covered family member, the employee 
may not be required to provide such an authorization, release, or waiver. In all 
instances in which certification is requested, it is the employee's 
responsibility to provide the employing office with complete and sufficient 
certification and failure to do so may result in the denial of FMLA leave. See 
825.305(d).
``Sec. 825.307 Authentication and clarification of medical certification for 
              leave taken because of an employee's own serious health condition 
              or the serious health condition of a family member; second and 
              third opinions
    ``(a) Clarification and authentication. (1) If an employee submits a 
complete and sufficient certification signed by the health care provider, the 
employing office may not request additional information from the health care 
provider. However, the employing office may contact the health care provider for 
purposes of clarification and authentication of the medical certification 
(whether initial certification or recertification) after the employing office 
has given the employee an opportunity to cure any deficiencies as set forth in 
825.305(c). To make such contact, the employing office must use a health care 
provider, a human resources professional, a leave administrator, or a management 
official. An employee's direct supervisor may not contact the employee's health 
care provider, unless the direct supervisor is also the only individual in the 
employing office designated to process FMLA requests and the direct supervisor 
receives specific authorization from the employee to contact the employee's 
health care provider. For purposes of these regulations, authentication means 
providing the health care provider with a copy of the certification and 
requesting verification that the information contained on the certification form 
was completed and/ or authorized by the health care provider who signed the 
document; no additional medical information may be requested.
            ``(2) Clarification means contacting the health care provider to 
        understand the handwriting on the medical certification or to understand 
        the meaning of a response. Employing offices may not ask health care 
        providers for additional information beyond that required by the 
        certification form. The requirements of the Health Insurance Portability 
        and Accountability Act (HIPAA) Privacy Rule, (See 45 C.F.R. parts 160 
        and 164), which governs the privacy of individually-identifiable health 
        information created or held by HIPAA-covered entities, must be satisfied 
        when individually-identifiable health information of an employee is 
        shared with an employing office by a HIPAA-covered health care provider. 
        If an employee chooses not to provide the employing office with 
        authorization allowing the employing office to clarify the certification 
        with the health care provider, and does not otherwise clarify the 
        certification, the employing office may deny the taking of FMLA leave if 
        the certification is unclear. See 825.305(d). It is the employee's 
        responsibility to provide the employing office with a complete and 
        sufficient certification and to clarify the certification if necessary.
    ``(b) Second Opinion. (1) 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. In addition, the consequences set forth in 
825.305(d) will apply if the employee or the employee's family member fails to 
authorize his or her health care provider to release all relevant medical 
information pertaining to the serious health condition at issue if requested by 
the health care provider designated to provide a second opinion in order to 
render a sufficient and complete second opinion.
            ``(2) 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. 
        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) Third opinion. 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. In addition, the consequences set forth in 
825.305(d) will apply if the employee or the employee's family member fails to 
authorize his or her health care provider to release all relevant medical 
information pertaining to the serious health condition at issue if requested by 
the health care provider designated to provide a third opinion in order to 
render a sufficient and complete third opinion.
    ``(d) Copies of opinions. 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 five 
business days unless extenuating circumstances prevent such action.
    ``(e) Travel expenses. 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) Medical certification abroad. In circumstances in which the employee 
or a family member is visiting in another country, or a family member resides in 
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. Where a certification by a 
foreign health care provider is in a language other than English, the employee 
must provide the employing office with a written translation of the 
certification upon request.
``Sec. 825.308 Recertifications for leave taken because of an employee's own 
              serious health condition or the serious health condition of a 
              family member
    ``(a) 30-day rule. An employing office may request recertification no more 
often than every 30 days and only in connection with an absence by the employee, 
unless paragraphs (b) or (c) of this section apply.
    ``(b) More than 30 days. If the medical certification indicates that the 
minimum duration of the condition is more than 30 days, an employing office must 
wait until that minimum duration expires before requesting a recertification, 
unless paragraph (c) of this section applies. For example, if the medical 
certification states that an employee will be unable to work, whether 
continuously or on an intermittent basis, for 40 days, the employing office must 
wait 40 days before requesting a recertification. In all cases, an employing 
office may request a recertification of a medical condition every six months in 
connection with an absence by the employee. Accordingly, even if the medical 
certification indicates that the employee will need intermittent or reduced 
schedule leave for a period in excess of six months (e.g., for a lifetime 
condition), the employing office would be permitted to request recertification 
every six months in connection with an absence.
    ``(c) Less than 30 days. An employing office may request recertification in 
less than 30 days if:
            ``(1) The employee requests an extension of leave;
            ``(2) Circumstances described by the previous certification have 
        changed significantly (e.g., the duration or frequency of the absence, 
        the nature or severity of the illness, complications). For example, if a 
        medical certification stated that an employee would need leave for one 
        to two days when the employee suffered a migraine headache and the 
        employee's absences for his or her last two migraines lasted four days 
        each, then the increased duration of absence might constitute a 
        significant change in circumstances allowing the employing office to 
        request a recertification in less than 30 days. Likewise, if an employee 
        had a pattern of using unscheduled FMLA leave for migraines in 
        conjunction with his or her scheduled days off, then the timing of the 
        absences also might constitute a significant change in circumstances 
        sufficient for an employing office to request a recertification more 
        frequently than every 30 days; or
            ``(3) The employing office receives information that casts doubt 
        upon the employee's stated reason for the absence or the continuing 
        validity of the certification. For example, if an employee is on FMLA 
        leave for four weeks due to the employee's knee surgery, including 
        recuperation, and the employee plays in company softball league games 
        during the employee's third week of FMLA leave, such information might 
        be sufficient to cast doubt upon the continuing validity of the 
        certification allowing the employing office to request a recertification 
        in less than 30 days.
    ``(d) Timing. 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) Content. The employing office may ask for the same information when 
obtaining recertification as that permitted for the original certification as 
set forth in 825.306. The employee has the same obligations to participate and 
cooperate (including providing a complete and sufficient certification or 
adequate authorization to the health care provider) in the recertification 
process as in the initial certification process. See 825.305(d). As part of the 
information allowed to be obtained on recertification for leave taken because of 
a serious health condition, the employing office may provide the health care 
provider with a record of the employee's absence pattern and ask the health care 
provider if the serious health condition and need for leave is consistent with 
such a pattern.
    ``(f) 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 Certification for leave taken because of a qualifying exigency
    ``(a) Active Duty Orders. The first time an employee requests leave because 
of a qualifying exigency arising out of the covered active duty or call to 
covered active duty status (or notification of an impending call or order to 
covered active duty) of a military member (See 825.126(a)), an employing office 
may require the employee to provide a copy of the military member's active duty 
orders or other documentation issued by the military which indicates that the 
military member is on covered active duty or call to covered active duty status, 
and the dates of the military member's covered active duty service. This 
information need only be provided to the employing office once. A copy of new 
active duty orders or other documentation issued by the military may be required 
by the employing office if the need for leave because of a qualifying exigency 
arises out of a different covered active duty or call to covered active duty 
status (or notification of an impending call or order to covered active duty) of 
the same or a different military member;
    ``(b) Required information. An employing office may require that leave for 
any qualifying exigency specified in 825.126 be supported by a certification 
from the employee that sets forth the following information:
            ``(1) A statement or description, signed by the employee, of 
        appropriate facts regarding the qualifying exigency for which FMLA leave 
        is requested. The facts must be sufficient to support the need for 
        leave. Such facts should include information on the type of qualifying 
        exigency for which leave is requested and any available written 
        documentation which supports the request for leave; such documentation, 
        for example, may include a copy of a meeting announcement for 
        informational briefings sponsored by the military, a document confirming 
        an appointment with a counselor or school official, or a copy of a bill 
        for services for the handling of legal or financial affairs;
            ``(2) The approximate date on which the qualifying exigency 
        commenced or will commence;
            ``(3) If an employee requests leave because of a qualifying exigency 
        for a single, continuous period of time, the beginning and end dates for 
        such absence;
            ``(4) If an employee requests leave because of a qualifying exigency 
        on an intermittent or reduced schedule basis, an estimate of the 
        frequency and duration of the qualifying exigency;
            ``(5) If the qualifying exigency involves meeting with a third 
        party, appropriate contact information for the individual or entity with 
        whom the employee is meeting (such as the name, title, organization, 
        address, telephone number, fax number, and email address) and a brief 
        description of the purpose of the meeting; and
            ``(6) If the qualifying exigency involves Rest and Recuperation 
        leave, a copy of the military member's Rest and Recuperation orders, or 
        other documentation issued by the military which indicates that the 
        military member has been granted Rest and Recuperation leave, and the 
        dates of the military member's Rest and Recuperation leave.
    ``(c) The Office of Congressional Workplace Rights has developed an optional 
form (Form E) for employees' use in obtaining a certification that meets FMLA's 
certification requirements. This optional form reflects certification 
requirements so as to permit the employee to furnish appropriate information to 
support his or her request for leave because of a qualifying exigency. Form E, 
or Form WH-384 (developed by the Department of Labor), or another form 
containing the same basic information, may be used by the employing office; 
however, no information may be required beyond that specified in this section.
    ``(d) Verification. If an employee submits a complete and sufficient 
certification to support his or her request for leave because of a qualifying 
exigency, the employing office may not request additional information from the 
employee. However, if the qualifying exigency involves meeting with a third 
party, the employing office may contact the individual or entity with whom the 
employee is meeting for purposes of verifying a meeting or appointment schedule 
and the nature of the meeting between the employee and the specified individual 
or entity. The employee's permission is not required in order to verify meetings 
or appointments with third parties, but no additional information may be 
requested by the employing office. An employing office also may contact an 
appropriate unit of the Department of Defense to request verification that a 
military member is on covered active duty or call to covered active duty status 
(or has been notified of an impending call or order to covered active duty); no 
additional information may be requested and the employee's permission is not 
required.
``Sec. 825.310 Certification for leave taken to care for a covered servicemember 
              (military caregiver leave)
    ``(a) Required information from health care provider. When leave is taken to 
care for a covered servicemember with a serious injury or illness, an employing 
office may require an employee to obtain a certification completed by an 
authorized health care provider of the covered servicemember. For purposes of 
leave taken to care for a covered servicemember, any one of the following health 
care providers may complete such a certification:
            ``(1) A United States Department of Defense (`DOD') health care 
        provider;
            ``(2) A United States Department of Veterans Affairs (`VA') health 
        care provider;
            ``(3) A DOD TRICARE network authorized private health care provider;
            ``(4) A DOD non-network TRICARE authorized private health care 
        provider; or
            ``(5) Any health care provider as defined in 825.125.
    ``(b) If the authorized health care provider is unable to make certain 
military-related determinations outlined below, the authorized health care 
provider may rely on determinations from an authorized DOD representative (such 
as a DOD recovery care coordinator) or an authorized VA representative. An 
employing office may request that the health care provider provide the following 
information:
            ``(1) The name, address, and appropriate contact information 
        (telephone number, fax number, and/or email address) of the health care 
        provider, the type of medical practice, the medical specialty, and 
        whether the health care provider is one of the following:
                    ``(A) A DOD health care provider;
                    ``(B) A VA health care provider;
                    ``(C) A DOD TRICARE network authorized private health care 
                provider;
                    ``(D) A DOD non-network TRICARE authorized private health 
                care provider; or
                    ``(E) A health care provider as defined in 825.125.
            ``(2) Whether the covered servicemember's injury or illness was 
        incurred in the line of duty on active duty or, if not, whether the 
        covered servicemember's injury or illness existed before the beginning 
        of the servicemember's active duty and was aggravated by service in the 
        line of duty on active duty;
            ``(3) The approximate date on which the serious injury or illness 
        commenced, or was aggravated, and its probable duration;
            ``(4) A statement or description of appropriate medical facts 
        regarding the covered servicemember's health condition for which FMLA 
        leave is requested. The medical facts must be sufficient to support the 
        need for leave.
                    ``(A) In the case of a current member of the Armed Forces, 
                such medical facts must include information on whether the 
                injury or illness may render the covered servicemember medically 
                unfit to perform the duties of the servicemember's office, 
                grade, rank, or rating and whether the member is receiving 
                medical treatment, recuperation, or therapy;
                    ``(B) In the case of a covered veteran, such medical facts 
                must include:
                            ``(i) Information on whether the veteran is 
                        receiving medical treatment, recuperation, or therapy 
                        for an injury or illness that is the continuation of an 
                        injury or illness that was incurred or aggravated when 
                        the covered veteran was a member of the Armed Forces and 
                        rendered the servicemember medically unfit to perform 
                        the duties of the servicemember's office, grade, rank, 
                        or rating; or
                            ``(ii) Information on whether the veteran is 
                        receiving medical treatment, recuperation, or therapy 
                        for an injury or illness that is a physical or mental 
                        condition for which the covered veteran has received a 
                        U.S. Department of Veterans Affairs Service-Related 
                        Disability Rating (VASRD) of 50 percent or greater, and 
                        that such VASRD rating is based, in whole or in part, on 
                        the condition precipitating the need for military 
                        caregiver leave; or
                            ``(iii) Information on whether the veteran is 
                        receiving medical treatment, recuperation, or therapy 
                        for an injury or illness that is a physical or mental 
                        condition that substantially impairs the covered 
                        veteran's ability to secure or follow a substantially 
                        gainful occupation by reason of a disability or 
                        disabilities related to military service, or would do so 
                        absent treatment; or
                            ``(iv) Documentation of enrollment in the Department 
                        of Veterans Affairs Program of Comprehensive Assistance 
                        for Family Caregivers.
            ``(5) Information sufficient to establish that the covered 
        servicemember is in need of care, as described in 825.124, and whether 
        the covered servicemember will need care for a single continuous period 
        of time, including any time for treatment and recovery, and an estimate 
        as to the beginning and ending dates for this period of time;
            ``(6) If an employee requests leave on an intermittent or reduced 
        schedule basis for planned medical treatment appointments for the 
        covered servicemember, whether there is a medical necessity for the 
        covered servicemember to have such periodic care and an estimate of the 
        treatment schedule of such appointments;
            ``(7) If an employee requests leave on an intermittent or reduced 
        schedule basis to care for a covered servicemember other than for 
        planned medical treatment (e.g., episodic flare-ups of a medical 
        condition), whether there is a medical necessity for the covered 
        servicemember to have such periodic care, which can include assisting in 
        the covered servicemember's recovery, and an estimate of the frequency 
        and duration of the periodic care.
    ``(c) Required information from employee and/ or covered servicemember. In 
addition to the information that may be requested under 825.310(b), an employing 
office may also request that such certification set forth the following 
information provided by an employee and/or covered servicemember:
            ``(1) The name and address of the employing office of the employee 
        requesting leave to care for a covered servicemember, the name of the 
        employee requesting such leave, and the name of the covered 
        servicemember for whom the employee is requesting leave to care;
            ``(2) The relationship of the employee to the covered servicemember 
        for whom the employee is requesting leave to care;
            ``(3) Whether the covered servicemember is a current member of the 
        Armed Forces, the National Guard or Reserves, and the covered 
        servicemember's military branch, rank, and current unit assignment;
            ``(4) Whether the covered servicemember is assigned to a military 
        medical facility as an outpatient or to a unit established for the 
        purpose of providing command and control of members of the Armed Forces 
        receiving medical care as outpatients (such as a medical hold or warrior 
        transition unit), and the name of the medical treatment facility or 
        unit;
            ``(5) Whether the covered servicemember is on the temporary 
        disability retired list;
            ``(6) Whether the covered servicemember is a veteran, the date of 
        separation from military service, and whether the separation was other 
        than dishonorable. The employing office may require the employee to 
        provide documentation issued by the military which indicates that the 
        covered servicemember is a veteran, the date of separation, and that the 
        separation is other than dishonorable. Where an employing office 
        requires such documentation, an employee may provide a copy of the 
        veteran's Certificate of Release or Discharge from Active Duty issued by 
        the U.S. Department of Defense (DD Form 214) or other proof of veteran 
        status. See 825.127(c)(2).
            ``(7) A description of the care to be provided to the covered 
        servicemember and an estimate of the leave needed to provide the care.
    ``(d) The Office of Congressional Workplace Rights has developed an optional 
form (Form F) for employees' use in obtaining certification that meets FMLA's 
certification requirements. This optional form reflects certification 
requirements so as to permit the employee to furnish appropriate information to 
support his or her request for leave to care for a covered servicemember with a 
serious injury or illness. Form F, or Form WH-385 (developed by the Department 
of Labor), or another form containing the same basic information, may be used by 
the employing office; however, no information may be required beyond that 
specified in this section. In all instances the information on the certification 
must relate only to the serious injury or illness for which the current need for 
leave exists. An employing office may seek authentication and/or clarification 
of the certification under 825.307. Second and third opinions under 825.307 are 
not permitted for leave to care for a covered servicemember when the 
certification has been completed by one of the types of healthcare providers 
identified in section 825.310(a)(1-4). However, second and third opinions under 
825.307 are permitted when the certification has been completed by a health care 
provider as defined in 825.125 that is not one of the types identified in 
825.310(a)(1)-(4). Additionally, recertifications under 825.308 are not 
permitted for leave to care for a covered servicemember. An employing office may 
require an employee to provide confirmation of covered family relationship to 
the seriously injured or ill servicemember pursuant to 825.122(k) of the FMLA.
    ``(e) An employing office requiring an employee to submit a certification 
for leave to care for a covered servicemember must accept as sufficient 
certification, in lieu of the Office of Congressional Workplace Rights's 
optional certification form (Form F) or an employing office's own certification 
form, invitational travel orders (ITOs) or invitational travel authorizations 
(ITAs) issued to any family member to join an injured or ill servicemember at 
his or her bedside. An ITO or ITA is sufficient certification for the duration 
of time specified in the ITO or ITA. During that time period, an eligible 
employee may take leave to care for the covered servicemember in a continuous 
block of time or on an intermittent basis. An eligible employee who provides an 
ITO or ITA to support his or her request for leave may not be required to 
provide any additional or separate certification that leave taken on an 
intermittent basis during the period of time specified in the ITO or ITA is 
medically necessary. An ITO or ITA is sufficient certification for an employee 
entitled to take FMLA leave to care for a covered servicemember regardless of 
whether the employee is named in the order or authorization.
            ``(1) If an employee will need leave to care for a covered 
        servicemember beyond the expiration date specified in an ITO or ITA, an 
        employing office may request that the employee have one of the 
        authorized health care providers listed under 825.310(a) complete the 
        Office of Congressional Workplace Rights optional certification form 
        (Form F) or an employing office's own form, as requisite certification 
        for the remainder of the employee's necessary leave period.
            ``(2) An employing office may seek authentication and clarification 
        of the ITO or ITA under 825.307. An employing office may not utilize the 
        second or third opinion process outlined in 825.307 or the 
        recertification process under 825.308 during the period of time in which 
        leave is supported by an ITO or ITA.
            ``(3) An employing office may require an employee to provide 
        confirmation of covered family relationship to the seriously injured or 
        ill servicemember pursuant to 825.122(k) when an employee supports his 
        or her request for FMLA leave with a copy of an ITO or ITA.
    ``(f) An employing office requiring an employee to submit a certification 
for leave to care for a covered servicemember must accept as sufficient 
certification of the servicemember's serious injury or illness documentation 
indicating the servicemember's enrollment in the Department of Veterans Affairs 
Program of Comprehensive Assistance for Family Caregivers. Such documentation is 
sufficient certification of the servicemember's serious injury or illness to 
support the employee's request for military caregiver leave regardless of 
whether the employee is the named caregiver in the enrollment documentation.
            ``(1) An employing office may seek authentication and clarification 
        of the documentation indicating the servicemember's enrollment in the 
        Department of Veterans Affairs Program of Comprehensive Assistance for 
        Family Caregivers under 825.307. An employing office may not utilize the 
        second or third opinion process outlined in 825.307 or the 
        recertification process under 825.308 when the servicemember's serious 
        injury or illness is shown by documentation of enrollment in this 
        program.
            ``(2) An employing office may require an employee to provide 
        confirmation of covered family relationship to the seriously injured or 
        ill servicemember pursuant to 825.122(k) when an employee supports his 
        or her request for FMLA leave with a copy of such enrollment 
        documentation. An employing office may also require an employee to 
        provide documentation, such as a veteran's Form DD-214, showing that the 
        discharge was other than dishonorable and the date of the veteran's 
        discharge.
    ``(g) Where medical certification is requested by an employing office, an 
employee may not be held liable for administrative delays in the issuance of 
military documents, despite the employee's diligent, good-faith efforts to 
obtain such documents. See 825.305(b). In all instances in which certification 
is requested, it is the employee's responsibility to provide the employing 
office with complete and sufficient certification and failure to do so may 
result in the denial of FMLA leave. See 825.305(d).
``Sec. 825.311 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 COBRA requirements) 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. 825.312 Fitness-for-duty certification
    ``(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. The employee has the same 
obligations to participate and cooperate (including providing a complete and 
sufficient certification or providing sufficient authorization to the health 
care provider to provide the information directly to the employing office) in 
the fitness-for-duty certification process as in the initial certification 
process. See 825.305(d).
    ``(b) An employing office may seek a fitness-for-duty certification only 
with regard to the particular health condition that caused the employee's need 
for FMLA leave. The certification from the employee's health care provider must 
certify that the employee is able to resume work. Additionally, an employing 
office may require that the certification specifically address the employee's 
ability to perform the essential functions of the employee's job. In order to 
require such a certification, an employing office must provide an employee with 
a list of the essential functions of the employee's job no later than with the 
designation notice required by 825.300(d), and must indicate in the designation 
notice that the certification must address the employee's ability to perform 
those essential functions. If the employing office satisfies these requirements, 
the employee's health care provider must certify that the employee can perform 
the identified essential functions of his or her job. Following the procedures 
set forth in 825.307(a), the employing office may contact the employee's health 
care provider for purposes of clarifying and authenticating the fitness-for-duty 
certification. 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. No second or third opinions on a fitness-for-duty certification may be 
required.
    ``(c) 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.
    ``(d) The designation notice required in 825.300(d) shall advise the 
employee if the employing office will require a fitness-for-duty certification 
to return to work and whether that fitness-for-duty certification must address 
the employee's ability to perform the essential functions of the employee's job.
    ``(e) 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 notice required in paragraph (d) of this 
section. If an employing office provides the notice required, an employee who 
does not provide a fitness-for-duty certification or request additional FMLA 
leave is no longer entitled to reinstatement under the FMLA. See 825.313(d).
    ``(f) An employing office is not entitled to a certification of fitness to 
return to duty for each absence taken on an intermittent or reduced leave 
schedule. However, an employing office is entitled to a certification of fitness 
to return to duty for such absences up to once every 30 days if reasonable 
safety concerns exist regarding the employee's ability to perform his or her 
duties, based on the serious health condition for which the employee took such 
leave. If an employing office chooses to require a fitness-for-duty 
certification under such circumstances, the employing office shall inform the 
employee at the same time it issues the designation notice that for each 
subsequent instance of intermittent or reduced schedule leave, the employee will 
be required to submit a fitness-for-duty certification unless one has already 
been submitted within the past 30 days. Alternatively, an employing office can 
set a different interval for requiring a fitness-for-duty certification as long 
as it does not exceed once every 30 days and as long as the employing office 
advises the employee of the requirement in advance of the employee taking the 
intermittent or reduced schedule leave. The employing office may not terminate 
the employment of the employee while awaiting such a certification of fitness to 
return to duty for an intermittent or reduced schedule leave absence. Reasonable 
safety concerns means a reasonable belief of significant risk of harm to the 
individual employee or others. In determining whether reasonable safety concerns 
exist, an employing office should consider the nature and severity of the 
potential harm and the likelihood that potential harm will occur.
    ``(g) If the terms of a collective bargaining agreement govern an employee's 
return to work, those provisions shall be applied.
    ``(h) Requirements under the Americans with Disabilities Act (ADA), as 
amended and as made applicable by the CAA, apply. After an employee returns from 
FMLA leave, the ADA requires any medical examination at an employing office's 
expense by the employing office's health care provider be job-related and 
consistent with business necessity. 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 or her job or to his/her impairment. If an employee's 
serious health condition may also be a disability within the meaning of the ADA, 
as made applicable by the CAA, the FMLA does not prevent the employing office 
from following the procedures for requesting medical information under the ADA.
``Sec. 825.313 Failure to provide certification
    ``(a) Foreseeable leave. In the case of foreseeable leave, if an employee 
fails to provide certification in a timely manner as required by 825.305, then 
an employing office may deny FMLA coverage until the required certification is 
provided. For example, if an employee has 15 days to provide a certification and 
does not provide the certification for 45 days without sufficient reason for the 
delay, the employing office can deny FMLA protections for the 30-day period 
following the expiration of the 15-day time period, if the employee takes leave 
during such period.
    ``(b) Unforeseeable leave. In the case of unforeseeable leave, an employing 
office may deny FMLA coverage for the requested leave if the employee fails to 
provide a certification within 15 calendar days from receipt of the request for 
certification unless not practicable due to extenuating circumstances. For 
example, in the case of a medical emergency, it may not be practicable for an 
employee to provide the required certification within 15 calendar days. Absent 
such extenuating circumstances, if the employee fails to timely return the 
certification, the employing office can deny FMLA protections for the leave 
following the expiration of the 15-day time period until a sufficient 
certification is provided. If the employee never produces the certification, the 
leave is not FMLA leave.
    ``(c) Recertification. An employee must provide recertification within the 
time requested by the employing office (which must allow at least 15 calendar 
days after the request) or as soon as practicable under the particular facts and 
circumstances. If an employee fails to provide a recertification within a 
reasonable time under the particular facts and circumstances, then the employing 
office may deny continuation of the FMLA leave protections until the employee 
produces a sufficient recertification. If the employee never produces the 
recertification, the leave is not FMLA leave. Recertification does not apply to 
leave taken for a qualifying exigency or to care for a covered servicemember.
    ``(d) Fitness-for-duty certification. 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 
825.312(a)) if the employing office has provided the required notice (see 
825.300(e)); the employing office may delay restoration until the certification 
is provided. 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 
825.213(a)(3).

                       ``Subpart D--Administrative Process

``Sec. 825.400 Administrative process, general rules
    ``(a) The Procedural Rules of the Office of Congressional Workplace Rights 
set forth the procedures that apply to the administrative process for 
considering and resolving alleged violations of the laws made applicable by the 
CAA, including the FMLA. The Rules include procedures for filing claims and 
participating in administrative dispute resolution proceedings at the Office of 
Congressional Workplace Rights, including procedures for the conduct of hearings 
and for appeals to the Board of Directors. The Procedural Rules also address 
other matters of general applicability to the dispute resolution process and to 
the operations of the Office.
    ``(b) If an employing office has violated one or more provisions of FMLA, as 
incorporated by the CAA, and if justified by the facts of a particular case, an 
employee may receive one or more of the following: wages, employment benefits, 
or other compensation denied or lost to such employee by reason of the 
violation; or, where no such tangible loss has occurred, such as when FMLA leave 
was unlawfully denied, any actual monetary loss sustained by the employee as a 
direct result of the violation, such as the cost of providing care, up to a sum 
equal to 26 weeks of wages for the employee in a case involving leave to care 
for a covered servicemember or 12 weeks of wages for the employee in a case 
involving leave for any other FMLA qualifying reason. In addition, the employee 
may be entitled to interest on such sum, calculated at the prevailing rate. An 
amount equaling the preceding sums may also be awarded as liquidated damages 
unless such amount is reduced by the hearing officer or the Board because the 
violation was in good faith and the employing office had reasonable grounds for 
believing the employer had not violated the CAA. When appropriate, the employee 
may also obtain appropriate equitable relief, such as employment, reinstatement 
and promotion. When the employing office is found in violation, the employee may 
recover a reasonable attorney's fee, reasonable expert witness fees, and other 
costs as would be appropriate if awarded under section 2000e-5(k) of title 42.
    ``(c) The Procedural Rules of the Office of Congressional Workplace Rights 
are found at 165 Cong. Rec. H4896 (daily ed. June 19, 2019) and 165 Cong. Rec. 
S4105 (daily ed. June 19, 2019), and may also be found on the Office's website 
at www.ocwr.gov.
``Sec. 825.401 [Reserved]
``Sec. 825.402 [Reserved]
``Sec. 825.403 [Reserved]
``Sec. 825.404 [Reserved]

                             ``Subpart E--[Reserved]

          ``Subpart F--Special Rules Applicable to Employees of Schools

``Sec. 825.600 Special rules for school employees, definitions
    ``(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 do 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 Special rules for school employees, limitations on intermittent 
              leave
    ``(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 with a 
        serious health condition, to care for a covered servicemember, 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:
                    ``(A) Take leave for a period or periods of a particular 
                duration, not greater than the duration of the planned 
                treatment; or
                    ``(B) 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 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.
``Sec. 825.602 Special rules for school employees, limitations on 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--
                    ``(A) The leave will last at least three weeks, and
                    ``(B) The employee would return to work during the three-
                week period before the end of the term.
            ``(2) The employee begins leave during the five-week period before 
        the end of a term because of the birth of a son or daughter; the 
        placement of a son or daughter for adoption or foster care; to care for 
        a spouse, son, daughter, or parent with a serious health condition; or 
        to care for a covered servicemember. The employing office may require 
        the employee to continue taking leave until the end of the term if--
                    ``(A) The leave will last more than two weeks, and
                    ``(B) The employee would return to work during the two-week 
                period before the end of the term.
            ``(3) The employee begins leave during the three-week period before 
        the end of a term because of the birth of a son or daughter; the 
        placement of a son or daughter for adoption or foster care; to care for 
        a spouse, son, daughter, or parent with a serious health condition; or 
        to care for a covered servicemember. The employing office may require 
        the employee to continue taking leave until the end of the term if the 
        leave will last more than five working days.
    ``(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 Special rules for school employees, duration of FMLA leave
    ``(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 Special rules for school employees, 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 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--Effect of Other Laws, Employing Office Practices, and Collective 
 Bargaining Agreements on Employee Rights Under the FMLA, As Made Applicable By 
                                     the CAA

``Sec. 825.700 Interaction with employing office's policies
    ``(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.
    ``(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.
``Sec. 825.701 [Reserved]
``Sec. 825.702 Interaction with anti-discrimination laws, as applied by section 
              201 of the CAA
    ``(a) Nothing in the 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 and 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 [as amended] 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, as applied by the CAA, 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. When an employer violates both FMLA and a discrimination law, an 
employee may be able to recover under either or both statutes (double relief may 
not be awarded for the same loss; when remedies coincide a claimant may be 
allowed to utilize whichever avenue of relief is desired. Laffey v. Northwest 
Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 
(1978).
    ``(b) If an employee is a qualified individual with a disability within the 
meaning of the Americans with Disabilities Act (ADA), as made applicable by the 
CAA, 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, as made applicable by the 
CAA. 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 due to their own serious health 
condition, 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 FMLA's provision for temporary assignment 
        to a different alternative position would not apply. 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 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 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 825.207(e). 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, as made applicable 
        by the CAA.
    ``(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 the 
employing office 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) Under the Uniformed Services Employment and Reemployment Rights Act of 
1994 (USERRA), 38 U.S.C. 4301, et seq., veterans are entitled to receive all 
rights and benefits of employment that they would have obtained if they had been 
continuously employed. Therefore, under USERRA, a returning servicemember would 
be eligible for FMLA leave if the months and hours that he or she would have 
worked for the civilian employing office during the period of absence due to or 
necessitated by USERRA-covered service, combined with the months employed and 
the hours actually worked, meet the FMLA eligibility threshold of 12 months of 
employment and the hours of service requirement. See 825.110(b)(2)(i) and (c)(2) 
and 825.802(c).
    ``(h) For further information on Federal antidiscrimination 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 
Congressional Workplace Rights.

                           ``Subpart H--[Reserved]''.

SEC. 2. APPROVAL OF REGULATIONS RELATING TO FAIR LABOR STANDARDS ACT.

    (a) In General.--The regulations described in subsection (b) are hereby 
approved, insofar as such regulations apply to covered employees of the House of 
Representatives under the Congressional Accountability Act of 1995 and to the 
extent such regulations are consistent with the provisions of such Act.
    (b) Regulations Approved.--The regulations described in this subsection are 
the regulations issued by the Office of Congressional Workplace Rights on 
September 28, 2022, under section 203(c)(2) of the Congressional Accountability 
Act of 1995 to implement section 203 of such Act (relating to the application of 
overtime requirements under the Fair Labor Standards Act of 1938), as published 
in the Congressional Record on September 28, 2022 (Volume 168, daily edition) on 
pages H8203 through H8217, and stated as follows:

       ``PART 541--DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE, 
    ADMINISTRATIVE, PROFESSIONAL, AND COMPUTER [AND OUTSIDE SALES] EMPLOYEES

            ``Subpart A--General Regulations (Sec. Sec. 541.0-541.4)

``Sec. 541.0 Introductory statement
    ``(a) Section 13(a)(1) of the Fair Labor Standards Act, as amended, provides 
an exemption from the Act's minimum wage and overtime requirements for any 
employee employed in a bona fide executive, administrative, or professional 
capacity (including any employee employed in the capacity of academic 
administrative personnel or teacher in elementary or secondary schools)[, or in 
the capacity of an outside sales employee, as such terms are defined and 
delimited from time to time by regulations of the Secretary, subject to the 
provisions of the Administrative Procedure Act.]<< and applies to covered 
employees by virtue of section 225(e)(1) of the CAA, as amended, 2 U.S.C. 
1361(e)(1).>> Section 13(a)(17) of the Act provides an exemption from the 
minimum wage and overtime requirements for computer systems analysts, computer 
programmers, software engineers, and other similarly skilled computer employees 
<< and applies to covered employees by virtue of section 225(e)(1) of the CAA, 
as amended, 2 U.S.C. 1361(e)(1)>>.
    ``(b) The requirements for these exemptions are contained in this part as 
follows: executive employees, subpart B; administrative employees, subpart C; 
professional employees, subpart D; computer employees, subpart E[; outside sales 
employees, subpart F]. Subpart G contains regulations regarding salary 
requirements applicable to most of the exemptions, including salary levels and 
the salary basis test. Subpart G also contains a provision for exempting certain 
highly compensated employees. Subpart H contains definitions and other 
miscellaneous provisions applicable to all or several of the exemptions.
    ``(c) Effective July 1, 1972, the Fair Labor Standards Act was amended to 
include 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)[, or in the capacity of an outside sales employee under 
section 13(a)(1) of the Act]. The equal pay provisions in section 6(d) of the 
Fair Labor Standards Act are administered and enforced by the [United States 
Equal Employment Opportunity Commission]<<Office of Congressional Workplace 
Rights>>.
``Sec. 541.1 Terms used in regulations
    ``Act means the Fair Labor Standards Act of 1938, as amended. [Administrator 
means the Administrator of the Wage and Hour Division, United States Department 
of Labor. The Secretary of Labor has delegated to the Administrator the 
functions vested in the Secretary under sections 13(a)(1) and 13(a)(17) of the 
Fair Labor Standards Act.] <<CAA means Congressional Accountability Act of 1995, 
as amended. Office means the Office of Congressional Workplace Rights. Employee 
means a `covered employee' as defined in section 101(a)(3) through (a)(8) of the 
CAA, 2 U.S.C. 1301(a)(3) through (a)(8), but not an `intern' as defined in 
section 203(a)(2) of the CAA, 2 U.S.C. 1313(a)(2). Employer, company, business, 
or enterprise each mean an `employing office' as defined in section 101(a)(9) of 
the CAA, 2 U.S.C. 1301(a)(9).>>
``Sec. 541.2 Job titles insufficient
    ``A job title alone is insufficient to establish the exempt status of an 
employee. The exempt or nonexempt status of any particular employee must be 
determined on the basis of whether the employee's salary and duties meet the 
requirements of the regulations in this part.
``Sec. 541.3 Scope of the section 13(a)(1) exemptions
    ``(a) The section 13(a)(1) exemptions and the regulations in this part do 
not apply to manual laborers or other `blue collar' workers who perform work 
involving repetitive operations with their hands, physical skill and energy. 
Such nonexempt `blue collar' employees gain the skills and knowledge required 
for performance of their routine manual and physical work through 
apprenticeships and on-the-job training, not through the prolonged course of 
specialized intellectual instruction required for exempt learned professional 
employees such as medical doctors, architects and archeologists. Thus, for 
example, non-management production-line employees and non-management employees 
in maintenance, construction and similar occupations such as carpenters, 
electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, 
longshoremen, construction workers and laborers are entitled to minimum wage and 
overtime premium pay under the Fair Labor Standards Act, and are not exempt 
under the regulations in this part no matter how highly paid they might be.
    ``(b)(1) The section 13(a)(1) exemptions and the regulations in this part 
also do not apply to police officers, detectives, [deputy sheriffs, state 
troopers, highway patrol officers,] investigators, inspectors, [correctional 
officers, parole or probation officers,] park rangers, fire fighters, 
paramedics, emergency medical technicians, ambulance personnel, rescue workers, 
hazardous materials workers and similar employees, regardless of rank or pay 
level, who perform work such as preventing, controlling or extinguishing fires 
of any type; rescuing fire, crime or accident victims; preventing or detecting 
crimes; conducting investigations or inspections for violations of law; 
performing surveillance; pursuing, restraining and apprehending suspects; 
detaining or supervising suspected and convicted criminals, including those on 
probation or parole; interviewing witnesses; interrogating and fingerprinting 
suspects; preparing investigative reports; or other similar work.
    ``(2) Such employees do not qualify as exempt executive employees because 
their primary duty is not management of the [enterprise] <<employing office>> in 
which the employee is employed or a customarily recognized department or 
subdivision thereof as required under Sec. 541.100. Thus, for example, a police 
officer or fire fighter whose primary duty is to investigate crimes or fight 
fires is not exempt under section 13(a)(1) of the Act merely because the police 
officer or fire fighter also directs the work of other employees in the conduct 
of an investigation or fighting a fire.
    ``(3) Such employees do not qualify as exempt administrative employees 
because their primary duty is not the performance of work directly related to 
the management or general business operations of the employer or the employer's 
customers<<, constituents or stakeholders>> as required under Sec. 541.200.
    ``(4) Such employees do not qualify as exempt professionals because their 
primary duty is not the performance of work requiring knowledge of an advanced 
type in a field of science or learning customarily acquired by a prolonged 
course of specialized intellectual instruction or the performance of work 
requiring invention, imagination, originality or talent in a recognized field of 
artistic or creative endeavor as required under Sec. 541.300. Although some 
police officers, fire fighters, paramedics, emergency medical technicians and 
similar employees have college degrees, a specialized academic degree is not a 
standard prerequisite for employment in such occupations.
``Sec. 541.4 Other laws and collective bargaining agreements
    ``The Fair Labor Standards Act provides minimum standards that may be 
exceeded, but cannot be waived or reduced. Employers must comply, for example, 
with any Federal[, State or municipal] laws, regulations or ordinances 
establishing a higher minimum wage or lower maximum workweek than those 
established under the Act. Similarly, employers, on their own initiative or 
under a collective bargaining agreement with a labor union, are not precluded by 
the Act from providing a wage higher than the statutory minimum, a shorter 
workweek than the statutory maximum, or a higher overtime premium (double time, 
for example) than provided by the Act. While collective bargaining agreements 
cannot waive or reduce the Act's protections, nothing in the Act or the 
regulations in this part relieves employers from their contractual obligations 
under collective bargaining agreements.

          ``Subpart B--Executive Employees (Sec. Sec. 541.100-541.106)

``Sec. 541.100 General rule for executive employees
    ``(a) The term `employee employed in a bona fide executive capacity' in 
section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary basis pursuant to Sec. 541.600 at a 
        rate of not less than $684 per week [(or $455 per week if employed in 
        the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, or 
        the U.S. Virgin Islands by employers other than the Federal government, 
        or $380 per week if employed in American Samoa by employers other than 
        the Federal government)], exclusive of board, lodging or other 
        facilities;
            ``(2) Whose primary duty is management of the [enterprise] 
        <<employing office>> in which the employee is employed or of a 
        customarily recognized department or subdivision thereof;
            ``(3) Who customarily and regularly directs the work of two or more 
        other employees; and
            ``(4) Who has the authority to hire or fire other employees or whose 
        suggestions and recommendations as to the hiring, firing, advancement, 
        promotion or any other change of status of other employees are given 
        particular weight.
    ``(b) The phrase `salary basis' is defined at Sec. 541.602; `board, lodging 
or other facilities' is defined at Sec. 541.606; `primary duty' is defined at 
Sec. 541.700; and `customarily and regularly' is defined at Sec. 541.701.
[``Sec. 541.101 Business owner
    ``The term `employee employed in a bona fide executive capacity' in section 
13(a)(1) of the Act also includes any employee who owns at least a bona fide 20-
percent equity interest in the enterprise in which the employee is employed, 
regardless of whether the business is a corporate or other type of organization, 
and who is actively engaged in its management. The term `management' is defined 
in Sec. 541.102. The requirements of Subpart G (salary requirements) of this 
part do not apply to the business owners described in this section.]
``Sec. 541.102 Management
    ``Generally, `management' includes, but is not limited to, activities such 
as interviewing, selecting, and training of employees; setting and adjusting 
their rates of pay and hours of work; directing the work of employees; 
maintaining production or sales records for use in supervision or control; 
appraising employees' productivity and efficiency for the purpose of 
recommending promotions or other changes in status; handling employee complaints 
and grievances; disciplining employees; planning the work; determining the 
techniques to be used; apportioning the work among the employees; determining 
the type of materials, supplies, machinery, equipment or tools to be used or 
merchandise to be bought, stocked and sold; controlling the flow and 
distribution of materials or merchandise and supplies; providing for the safety 
and security of the employees or the property; planning and controlling the 
budget; and monitoring or implementing legal compliance measures.
``Sec. 541.103 Department or subdivision
    ``(a) The phrase `a customarily recognized department or subdivision' is 
intended to distinguish between a mere collection of employees assigned from 
time to time to a specific job or series of jobs and a unit with permanent 
status and function. A customarily recognized department or subdivision must 
have a permanent status and a continuing function. For example, a large 
employer's human resources department might have subdivisions for labor 
relations, pensions and other benefits, equal employment opportunity, and 
personnel management, each of which has a permanent status and function.
    ``(b) When an [enterprise] <<employing office>> has more than one 
[establishment] <<location>>, the employee in charge of each [establishment] 
<<location>> may be considered in charge of a recognized subdivision of the 
[enterprise] <<employing office>>.
    ``(c) A recognized department or subdivision need not be physically within 
the employer's establishment and may move from place to place. The mere fact 
that the employee works in more than one location does not invalidate the 
exemption if other factors show that the employee is actually in charge of a 
recognized unit with a continuing function in the organization.
    ``(d) Continuity of the same subordinate personnel is not essential to the 
existence of a recognized unit with a continuing function. An otherwise exempt 
employee will not lose the exemption merely because the employee draws and 
supervises workers from a pool or supervises a team of workers drawn from other 
recognized units, if other factors are present that indicate that the employee 
is in charge of a recognized unit with a continuing function.
``Sec. 541.104 Two or more other employees
    ``(a) To qualify as an exempt executive under Sec. 541.100, the employee 
must customarily and regularly direct the work of two or more other employees. 
The phrase `two or more other employees' means two full-time employees or their 
equivalent. One full-time and two half-time employees, for example, are 
equivalent to two full-time employees. Four half-time employees are also 
equivalent.
    ``(b) The supervision can be distributed among two, three or more employees, 
but each such employee must customarily and regularly direct the work of two or 
more other full-time employees or the equivalent. Thus, for example, a 
department with five full-time nonexempt workers may have up to two exempt 
supervisors if each such supervisor customarily and regularly directs the work 
of two of those workers.
    ``(c) An employee who merely assists the manager of a particular department 
and supervises two or more employees only in the actual manager's absence does 
not meet this requirement.
    ``(d) Hours worked by an employee cannot be credited more than once for 
different executives. Thus, a shared responsibility for the supervision of the 
same two employees in the same department does not satisfy this requirement. 
However, a full-time employee who works four hours for one supervisor and four 
hours for a different supervisor, for example, can be credited as a half-time 
employee for both supervisors.
``Sec. 541.105 Particular weight
    ``To determine whether an employee's suggestions and recommendations are 
given `particular weight,' factors to be considered include, but are not limited 
to, whether it is part of the employee's job duties to make such suggestions and 
recommendations; the frequency with which such suggestions and recommendations 
are made or requested; and the frequency with which the employee's suggestions 
and recommendations are relied upon. Generally, an executive's suggestions and 
recommendations must pertain to employees whom the executive customarily and 
regularly directs. It does not include an occasional suggestion with regard to 
the change in status of a co-worker. An employee's suggestions and 
recommendations may still be deemed to have `particular weight' even if a higher 
level manager's recommendation has more importance and even if the employee does 
not have authority to make the ultimate decision as to the employee's change in 
status.
``Sec. 541.106 Concurrent duties
    ``(a) Concurrent performance of exempt and nonexempt work does not 
disqualify an employee from the executive exemption if the requirements of 
Sec. 541.100 are otherwise met. Whether an employee meets the requirements of 
Sec. 541.100 when the employee performs concurrent duties is determined on a 
case-by-case basis and based on the factors set forth in Sec. 541.700. 
Generally, exempt executives make the decision regarding when to perform 
nonexempt duties and remain responsible for the success or failure of business 
operations under their management while performing the nonexempt work. In 
contrast, the nonexempt employee generally is directed by a supervisor to 
perform the exempt work or performs the exempt work for defined time periods. An 
employee whose primary duty is ordinary production work or routine, recurrent or 
repetitive tasks cannot qualify for exemption as an executive.
    ``(b) For example, an assistant manager in a retail establishment may 
perform work such as serving customers, cooking food, stocking shelves and 
cleaning the establishment, but performance of such nonexempt work does not 
preclude the exemption if the assistant manager's primary duty is management. An 
assistant manager can supervise employees and serve customers at the same time 
without losing the exemption. An exempt employee can also simultaneously direct 
the work of other employees and stock shelves.
    ``(c) In contrast, a relief supervisor or working supervisor whose primary 
duty is performing nonexempt work on the production line in a manufacturing 
plant does not become exempt merely because the nonexempt production line 
employee occasionally has some responsibility for directing the work of other 
nonexempt production line employees when, for example, the exempt supervisor is 
unavailable. Similarly, an employee whose primary duty is to work as an 
electrician is not an exempt executive even if the employee also directs the 
work of other employees on the job site, orders parts and materials for the job, 
and handles requests from the prime contractor.

        ``Subpart C--Administrative Employees (Sec. Sec. 541.200-541.204)

``Sec. 541.200 General rule for administrative employees
    ``(a) The term `employee employed in a bona fide administrative capacity' in 
section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary or fee basis pursuant to Sec. 541.600 
        at a rate of not less than $684 per week [(or $455 per week if employed 
        in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, 
        or the U.S. Virgin Islands by employers other than the Federal 
        government, or $380 per week if employed in American Samoa by employers 
        other than the Federal government)], exclusive of board, lodging or 
        other facilities;
            ``(2) Whose primary duty is the performance of office or non-manual 
        work directly related to the management or general business operations 
        of the employer or the employer's customers<<, constituents or 
        stakeholders>>; and
            ``(3) Whose primary duty includes the exercise of discretion and 
        independent judgment with respect to matters of significance.
    ``(b) The term `salary basis' is defined at Sec. 541.602; `fee basis' is 
defined at Sec. 541.605; `board, lodging or other facilities' is defined at 
Sec. 541.606; and `primary duty' is defined at Sec. 541.700.
``Sec. 541.201 Directly related to management or general business operations
    ``(a) To qualify for the administrative exemption, an employee's primary 
duty must be the performance of work directly related to the management or 
general business operations of the employer or the employer's customers<<, 
constituents or stakeholders>>. The phrase `directly related to the management 
or general business operations' refers to the type of work performed by the 
employee. To meet this requirement, an employee must perform work directly 
related to assisting with the running or servicing of the [business] <<employing 
office>>, as distinguished, for example, from working on a manufacturing 
production line or selling a product in a retail or service establishment.
    ``(b) Work directly related to management or general business operations 
includes, but is not limited to, work in functional areas such as tax; finance; 
accounting; budgeting; auditing; insurance; quality control; purchasing; 
procurement; advertising; marketing; research; safety and health; personnel 
management; human resources; employee benefits; labor relations; public 
relations, government relations; computer network, internet and database 
administration; legal and regulatory compliance; and similar activities. Some of 
these activities may be performed by employees who also would qualify for 
another exemption.
    ``(c) An employee may qualify for the administrative exemption if the 
employee's primary duty is the performance of work directly related to the 
management or general business operations of the employer's customers<<, 
constituents and/or stakeholders>>. Thus, for example, employees acting as 
advisers or consultants to their employer's [clients or] customer<<, 
constituents or stakeholders>> (as tax experts or financial consultants, for 
example) may be exempt.
``Sec. 541.202 Discretion and independent judgment
    ``(a) To qualify for the administrative exemption, an employee's primary 
duty must include the exercise of discretion and independent judgment with 
respect to matters of significance. In general, the exercise of discretion and 
independent judgment involves the comparison and the evaluation of possible 
courses of conduct, and acting or making a decision after the various 
possibilities have been considered. The term `matters of significance' refers to 
the level of importance or consequence of the work performed.
    ``(b) The phrase `discretion and independent judgment' must be applied in 
the light of all the facts involved in the particular employment situation in 
which the question arises. Factors to consider when determining whether an 
employee exercises discretion and independent judgment with respect to matters 
of significance include, but are not limited to: whether the employee has 
authority to formulate, affect, interpret, or implement management policies or 
operating practices; whether the employee carries out major assignments in 
conducting the operations of the [business] <<employing office>>; whether the 
employee performs work that affects business operations <<of the employing 
office>>to a substantial degree, even if the employee's assignments are related 
to operation of a particular segment of the [business] <<employing office>>; 
whether the employee has authority to commit the employer in matters that have 
significant financial impact; whether the employee has authority to waive or 
deviate from established policies and procedures without prior approval; whether 
the employee has authority to negotiate and bind the [company]<<employing 
office>> on significant matters; whether the employee provides consultation or 
expert advice to management; whether the employee is involved in planning longer 
short-term [business] <<employing office>> objectives; whether the employee 
investigates and resolves matters of significance on behalf of management; and 
whether the employee represents the [company]<<employing office>> in handling 
complaints, arbitrating disputes or resolving grievances.
    ``(c) The exercise of discretion and independent judgment implies that the 
employee has authority to make an independent choice, free from immediate 
direction or supervision. However, employees can exercise discretion and 
independent judgment even if their decisions or recommendations are reviewed at 
a higher level. Thus, the term `discretion and independent judgment' does not 
require that the decisions made by an employee have a finality that goes with 
unlimited authority and a complete absence of review. The decisions made as a 
result of the exercise of discretion and independent judgment may consist of 
recommendations for action rather than the actual taking of action. The fact 
that an employee's decision may be subject to review and that upon occasion the 
decisions are revised or reversed after review does not mean that the employee 
is not exercising discretion and independent judgment. For example, the policies 
formulated by the [credit] manager of a<<n>> [large corporation]<<employing 
office>> may be subject to review by higher [company]<<employing office>> 
officials who may approve or disapprove these policies. The [management 
consultant] <<department director>> who has made a study of the operations of a 
[business] <<department>> and who has drawn a proposed change in organization 
may have the plan reviewed or revised by superiors before it is [submitted to 
the client]<<approved>>.
    ``(d) An employer's volume of [business] <<work>> may make it necessary to 
employ a number of employees to perform the same or similar work. The fact that 
many employees perform identical work or work of the same relative importance 
does not mean that the work of each such employee does not involve the exercise 
of discretion and independent judgment with respect to matters of significance.
    ``(e) The exercise of discretion and independent judgment must be more than 
the use of skill in applying well-established techniques, procedures or specific 
standards described in manuals or other sources. See also Sec. 541.704 regarding 
use of manuals. The exercise of discretion and independent judgment also does 
not include clerical or secretarial work, recording or tabulating data, or 
performing other mechanical, repetitive, recurrent or routine work. An employee 
who simply tabulates data is not exempt, even if labeled as a `statistician.'
    ``(f) An employee does not exercise discretion and independent judgment with 
respect to matters of significance merely because the employer will experience 
financial losses if the employee fails to perform the job properly. For example, 
a messenger who is entrusted with carrying large sums of money does not exercise 
discretion and independent judgment with respect to matters of significance even 
though serious consequences may flow from the employee's neglect. Similarly, an 
employee who operates very expensive equipment does not exercise discretion and 
independent judgment with respect to matters of significance merely because 
improper performance of the employee's duties may cause serious financial loss 
to the employer.
``Sec. 541.203 Administrative exemption examples
    ``(a) [Insurance claims adjusters]<<Employees who investigate claims>> 
generally meet the duties requirements for the administrative exemption[, 
whether they work for an insurance company or other type of company,] if their 
duties include activities such as interviewing [insureds,] witnesses [and 
physicians]; inspecting property damage; reviewing factual information to 
prepare damage estimates; evaluating and making recommendations regarding 
coverage of claims; determining liability and total value of a claim; 
negotiating settlements; and making recommendations regarding litigation.
    ``(b) Employees in [the] financial services [industry] generally meet the 
duties requirements for the administrative exemption if their duties include 
work such as collecting and analyzing information regarding the customer's 
income, assets, investments or debts; determining which financial products best 
meet the customer's needs and financial circumstances; advising the customer 
regarding the advantages and disadvantages of different financial products; and 
marketing, servicing or promoting the employer's financial products. However, an 
employee whose primary duty is selling financial products does not qualify for 
the administrative exemption.
    ``(c) An employee who leads a team of other employees assigned to complete 
major projects for the employer (such as [purchasing, selling or closing all or 
part of the business,] negotiating a real estate transaction or a collective 
bargaining agreement, or designing and implementing productivity improvements) 
generally meets the duties requirements for the administrative exemption, even 
if the employee does not have direct supervisory responsibility over the other 
employees on the team.
    ``(d) An executive assistant or administrative assistant to a [business 
owner or senior executive of a large business]<<senior management official of an 
employing office>> generally meets the duties requirements for the 
administrative exemption if such employee, without specific instructions or 
prescribed procedures, has been delegated authority regarding matters of 
significance.
    ``(e) Human resources managers who formulate, interpret or implement 
employment policies and management consultants who study the operations of a 
[business] <<employing office>> and propose changes in organization generally 
meet the duties requirements for the administrative exemption. However, 
personnel clerks who `screen' applicants to obtain data regarding their minimum 
qualifications and fitness for employment generally do not meet the duties 
requirements for the administrative exemption. Such personnel clerks typically 
will reject all applicants who do not meet minimum standards for the particular 
job or for employment by the [company] <<employing office>>. The minimum 
standards are usually set by the exempt human resources manager or other 
[company] <<employing office>> officials, and the decision to hire from the 
group of qualified applicants who do meet the minimum standards is similarly 
made by the exempt human resources manager or other [company] <<employing 
office>> officials. Thus, when the interviewing and screening functions are 
performed by the human resources manager or personnel manager who makes the 
hiring decision or makes recommendations for hiring from the pool of qualified 
applicants, such duties constitute exempt work, even though routine, because 
this work is directly and closely related to the employee's exempt functions.
    ``(f) Purchasing agents with authority to bind the [company] <<employing 
office>> on significant purchases generally meet the duties requirements for the 
administrative exemption even if they must consult with top management officials 
when making a purchase commitment for [raw] materials in excess of the 
contemplated [plant] needs.
    ``(g) Ordinary inspection work generally does not meet the duties 
requirements for the administrative exemption. Inspectors normally perform 
specialized work along standardized lines involving well-established techniques 
and procedures which may have been catalogued and described in manuals or other 
sources. Such inspectors rely on techniques and skills acquired by special 
training or experience. They have some leeway in the performance of their work 
but only within closely prescribed limits.
    ``(h) Employees usually called examiners or graders, such as employees that 
grade lumber, generally do not meet the duties requirements for the 
administrative exemption. Such employees usually perform work involving the 
comparison of products with established standards which are frequently 
catalogued. Often, after continued reference to the written standards, or 
through experience, the employee acquires sufficient knowledge so that reference 
to written standards is unnecessary. The substitution of the employee's memory 
for a manual of standards does not convert the character of the work performed 
to exempt work requiring the exercise of discretion and independent judgment.
    ``(i) [Comparison shopping performed by an employee of a retail store who 
merely reports to the buyer the prices at a competitor's store does not qualify 
for the administrative exemption. However, the buyer who evaluates such reports 
on competitor prices to set the employer's prices generally meets the duties 
requirements for the administrative exemption.]<<Reserved.>>
    ``(j) [Public sector i]<<I>>nspectors or investigators of various types, 
such as fire prevention or safety, building or construction, health or 
sanitation, environmental or soils specialists and similar employees, generally 
do not meet the duties requirements for the administrative exemption because 
their work typically does not involve work directly related to the management or 
general business operations of the employer. Such employees also do not qualify 
for the administrative exemption because their work involves the use of skills 
and technical abilities in gathering factual information, applying known 
standards or prescribed procedures, determining which procedure to follow, or 
determining whether prescribed standards or criteria are met.
``Sec. 541.204 Educational establishments
    ``(a) The term `employee employed in a bona fide administrative capacity' in 
section 13(a)(1) of the Act also includes employees:
            ``(1) Compensated on a salary or fee basis at a rate of not less 
        than $684 per week [(or $455 per week if employed in the Commonwealth of 
        the Northern Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin 
        Islands by employers other than the Federal government, or $380 per week 
        if employed in American Samoa by employers other than the Federal 
        government)], exclusive of board, lodging, or other facilities; or on a 
        salary basis which is at least equal to the entrance salary for teachers 
        in the educational establishment by which employed; and
            ``(2) Whose primary duty is performing administrative functions 
        directly related to academic instruction or training in an educational 
        establishment or department or subdivision thereof.
    ``(b) The term `educational establishment' means an elementary or secondary 
school system, an institution of higher education or other educational 
institution. Sections 3(v) and 3(w) of the Act define elementary and secondary 
schools as those day or residential schools that provide elementary or secondary 
education, as determined under State law. Under the laws of most States, such 
education includes the curriculums in grades 1 through 12; under many it 
includes also the introductory programs in kindergarten. Such education in some 
States may also include nursery school programs in elementary education and 
junior college curriculums in secondary education. The term `other educational 
establishment' includes special schools for mentally or physically disabled or 
gifted children, regardless of any classification of such schools as elementary, 
secondary or higher. Factors relevant in determining whether post-secondary 
career programs are educational institutions include whether the school is 
licensed by a state agency responsible for the state's educational system or 
accredited by a nationally recognized accrediting organization for career 
schools. Also, for purposes of the exemption, no distinction is drawn between 
public and private schools, or between those operated for profit and those that 
are not for profit.
    ``(c) The phrase `performing administrative functions directly related to 
academic instruction or training' means work related to the academic operations 
and functions in a school rather than to administration along the lines of 
general business operations. Such academic administrative functions include 
operations directly in the field of education. Jobs relating to areas outside 
the educational field are not within the definition of academic administration.
            ``(1) Employees engaged in academic administrative functions 
        include: the superintendent or other head of an elementary or secondary 
        school system, and any assistants, responsible for administration of 
        such matters as curriculum, quality and methods of instructing, 
        measuring and testing the learning potential and achievement of 
        students, establishing and maintaining academic and grading standards, 
        and other aspects of the teaching program; the principal and any vice-
        principals responsible for the operation of an elementary or secondary 
        school; department heads in institutions of higher education responsible 
        for the administration of the mathematics department, the English 
        department, the foreign language department, etc.; academic counselors 
        who perform work such as administering school testing programs, 
        assisting students with academic problems and advising students 
        concerning degree requirements; and other employees with similar 
        responsibilities.
            ``(2) Jobs relating to building management and maintenance, jobs 
        relating to the health of the students, and academic staff such as 
        social workers, psychologists, lunch room managers or dietitians do not 
        perform academic administrative functions. Although such work is not 
        considered academic administration, such employees may qualify for 
        exemption under Sec. 541.200 or under other sections of this part, 
        provided the requirements for such exemptions are met.

         ``Subpart D--Professional Employees (Sec. Sec. 541.300-541.304)

``Sec. 541.300 General rule for professional employees
    ``(a) The term `employee employed in a bona fide professional capacity' in 
section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary or fee basis pursuant to Sec. 541.600 
        at a rate of not less than $684 per week [(or $455 per week if employed 
        in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, 
        or the U.S. Virgin Islands by employers other than the Federal 
        government, or $380 per week if employed in American Samoa by employers 
        other than the Federal government)], exclusive of board, lodging or 
        other facilities; and
            ``(2) Whose primary duty is the performance of work:
                    ``(i) Requiring knowledge of an advanced type in a field of 
                science or learning customarily acquired by a prolonged course 
                of specialized intellectual instruction; or
                    ``(ii) Requiring invention, imagination, originality or 
                talent in a recognized field of artistic or creative endeavor.
    ``(b) The term `salary basis' is defined at Sec. 541.602; `fee basis' is 
defined at Sec. 541.605; `board, lodging or other facilities' is defined at 
Sec. 541.606; and `primary duty' is defined at Sec. 541.700.
``Sec. 541.301 Learned professionals
    ``(a) To qualify for the learned professional exemption, an employee's 
primary duty must be the performance of work requiring advanced knowledge in a 
field of science or learning customarily acquired by a prolonged course of 
specialized intellectual instruction. This primary duty test includes three 
elements:
            ``(1) The employee must perform work requiring advanced knowledge;
            ``(2) The advanced knowledge must be in a field of science or 
        learning; and
            ``(3) The advanced knowledge must be customarily acquired by a 
        prolonged course of specialized intellectual instruction.
    ``(b) The phrase `work requiring advanced knowledge' means work which is 
predominantly intellectual in character, and which includes work requiring the 
consistent exercise of discretion and judgment, as distinguished from 
performance of routine mental, manual, mechanical or physical work. An employee 
who performs work requiring advanced knowledge generally uses the advanced 
knowledge to analyze, interpret or make deductions from varying facts or 
circumstances. Advanced knowledge cannot be attained at the high school level.
    ``(c) The phrase `field of science or learning' includes the traditional 
professions of law, medicine, theology, accounting, actuarial computation, 
engineering, architecture, teaching, various types of physical, chemical and 
biological sciences, pharmacy and other similar occupations that have a 
recognized professional status as distinguished from the mechanical arts or 
skilled trades where in some instances the knowledge is of a fairly advanced 
type, but is not in a field of science or learning.
    ``(d) The phrase `customarily acquired by a prolonged course of specialized 
intellectual instruction' restricts the exemption to professions where 
specialized academic training is a standard prerequisite for entrance into the 
profession. The best prima facie evidence that an employee meets this 
requirement is possession of the appropriate academic degree. However, the word 
`customarily' means that the exemption is also available to employees in such 
professions who have substantially the same knowledge level and perform 
substantially the same work as the degreed employees, but who attained the 
advanced knowledge through a combination of work experience and intellectual 
instruction. Thus, for example, the learned professional exemption is available 
to the occasional lawyer who has not gone to law school, or the occasional 
chemist who is not the possessor of a degree in chemistry. However, the learned 
professional exemption is not available for occupations that customarily may be 
performed with only the general knowledge acquired by an academic degree in any 
field, with knowledge acquired through an apprenticeship, or with training in 
the performance of routine mental, manual, mechanical or physical processes. The 
learned professional exemption also does not apply to occupations in which most 
employees have acquired their skill by experience rather than by advanced 
specialized intellectual instruction.
    ``(e)(1) Registered or certified medical technologists. Registered or 
certified medical technologists who have successfully completed three academic 
years of pre-professional study in an accredited college or university plus a 
fourth year of professional course work in a school of medical technology 
approved by the Council of Medical Education of the American Medical Association 
generally meet the duties requirements for the learned professional exemption.
    ``(2) Nurses. Registered nurses who are registered by the appropriate State 
examining board generally meet the duties requirements for the learned 
professional exemption. Licensed practical nurses and other similar health care 
employees, however, generally do not qualify as exempt learned professionals 
because possession of a specialized advanced academic degree is not a standard 
prerequisite for entry into such occupations.
    ``(3) Dental hygienists. Dental hygienists who have successfully completed 
four academic years of pre-professional and professional study in an accredited 
college or university approved by the Commission on Accreditation of Dental and 
Dental Auxiliary Educational Programs of the American Dental Association 
generally meet the duties requirements for the learned professional exemption.
    ``(4) Physician assistants. Physician assistants who have successfully 
completed four academic years of pre-professional and professional study, 
including graduation from a physician assistant program accredited by the 
Accreditation Review Commission on Education for the Physician Assistant, and 
who are certified by the National Commission on Certification of Physician 
Assistants generally meet the duties requirements for the learned professional 
exemption.
    ``(5) Accountants. Certified public accountants generally meet the duties 
requirements for the learned professional exemption. In addition, many other 
accountants who are not certified public accountants but perform similar job 
duties may qualify as exempt learned professionals. However, accounting clerks, 
bookkeepers and other employees who normally perform a great deal of routine 
work generally will not qualify as exempt professionals.
    ``(6) Chefs. Chefs, such as executive chefs and sous chefs, who have 
attained a four-year specialized academic degree in a culinary arts program, 
generally meet the duties requirements for the learned professional exemption. 
The learned professional exemption is not available to cooks who perform 
predominantly routine mental, manual, mechanical or physical work.
    ``(7) Paralegals. Paralegals and legal assistants generally do not qualify 
as exempt learned professionals because an advanced specialized academic degree 
is not a standard prerequisite for entry into the field. Although many 
paralegals possess general four-year advanced degrees, most specialized 
paralegal programs are two-year associate degree programs from a community 
college or equivalent institution. However, the learned professional exemption 
is available for paralegals who possess advanced specialized degrees in other 
professional fields and apply advanced knowledge in that field in the 
performance of their duties. For example, if a law firm hires an engineer as a 
paralegal to provide expert advice on product liability cases or to assist on 
patent matters, that engineer would qualify for exemption.
    ``(8) Athletic trainers. Athletic trainers who have successfully completed 
four academic years of pre-professional and professional study in a specialized 
curriculum accredited by the Commission on Accreditation of Allied Health 
Education Programs and who are certified by the Board of Certification of the 
National Athletic Trainers Association Board of Certification generally meet the 
duties requirements for the learned professional exemption.
    [``(9) Funeral directors or embalmers. Licensed funeral directors and 
embalmers who are licensed by and working in a state that requires successful 
completion of four academic years of pre-professional and professional study, 
including graduation from a college of mortuary science accredited by the 
American Board of Funeral Service Education, generally meet the duties 
requirements for the learned professional exemption.]
    ``(f) The areas in which the professional exemption may be available are 
expanding. As knowledge is developed, academic training is broadened and 
specialized degrees are offered in new and diverse fields, thus creating new 
specialists in particular fields of science or learning. When an advanced 
specialized degree has become a standard requirement for a particular 
occupation, that occupation may have acquired the characteristics of a learned 
profession. Accrediting and certifying organizations similar to those listed in 
paragraphs (e)(1), (e)(3), (e)(4) and (e)(8) of this section also may be created 
in the future. Such organizations may develop similar specialized curriculums 
and certification programs which, if a standard requirement for a particular 
occupation, may indicate that the occupation has acquired the characteristics of 
a learned profession.
``Sec. 541.302 Creative professionals
    ``(a) To qualify for the creative professional exemption, an employee's 
primary duty must be the performance of work requiring invention, imagination, 
originality or talent in a recognized field of artistic or creative endeavor as 
opposed to routine mental, manual, mechanical or physical work. The exemption 
does not apply to work which can be produced by a person with general manual or 
intellectual ability and training.
    ``(b) To qualify for exemption as a creative professional, the work 
performed must be `in a recognized field of artistic or creative endeavor.' This 
includes such fields as music, writing, acting and the graphic arts.
    ``(c) The requirement of `invention, imagination, originality or talent' 
distinguishes the creative professions from work that primarily depends on 
intelligence, diligence and accuracy. The duties of employees vary widely, and 
exemption as a creative professional depends on the extent of the invention, 
imagination, originality or talent exercised by the employee. Determination of 
exempt creative professional status, therefore, must be made on a case-by-case 
basis. This requirement generally is met by actors, musicians, composers, 
conductors, and soloists; painters who at most are given the subject matter of 
their painting; cartoonists who are merely told the title or underlying concept 
of a cartoon and must rely on their own creative ability to express the concept; 
essayists, novelists, short-story writers and screen-play writers who choose 
their own subjects and hand in a finished piece of work to their employers (the 
majority of such persons are, of course, not employees but self-employed); and 
persons holding the more responsible writing positions in advertising agencies. 
This requirement generally is not met by a person who is employed as a copyist, 
as an `animator' of motion-picture cartoons, or as a retoucher of photographs, 
since such work is not properly described as creative in character.
    ``(d) Journalists may satisfy the duties requirements for the creative 
professional exemption if their primary duty is work requiring invention, 
imagination, originality or talent, as opposed to work which depends primarily 
on intelligence, diligence and accuracy. Employees of newspapers, magazines, 
television and other media are not exempt creative professionals if they only 
collect, organize and record information that is routine or already public, or 
if they do not contribute a unique interpretation or analysis to a news product. 
Thus, for example, newspaper reporters who merely rewrite press releases or who 
write standard recounts of public information by gathering facts on routine 
community events are not exempt creative professionals. Reporters also do not 
qualify as exempt creative professionals if their work product is subject to 
substantial control by the employer. However, journalists may qualify as exempt 
creative professionals if their primary duty is performing on the air in radio, 
television or other electronic media; conducting investigative interviews; 
analyzing or interpreting public events; writing editorials, opinion columns or 
other commentary; or acting as a narrator or commentator.
``Sec. 541.303 Teachers
    ``(a) The term `employee employed in a bona fide professional capacity' in 
section 13(a)(1) of the Act also means any employee with a primary duty of 
teaching, tutoring, instructing or lecturing in the activity of imparting 
knowledge and who is employed and engaged in this activity as a teacher in an 
educational establishment by which the employee is employed. The term 
`educational establishment' is defined in Sec. 541.204(b).
    ``(b) Exempt teachers include, but are not limited to: Regular academic 
teachers; teachers of kindergarten or nursery school pupils; teachers of gifted 
or disabled children; teachers of skilled and semi-skilled trades and 
occupations; teachers engaged in automobile driving instruction; aircraft flight 
instructors; home economics teachers; and vocal or instrumental music 
instructors. Those faculty members who are engaged as teachers but also spend a 
considerable amount of their time in extracurricular activities such as coaching 
athletic teams or acting as moderators or advisors in such areas as drama, 
speech, debate or journalism are engaged in teaching. Such activities are a 
recognized part of the schools' responsibility in contributing to the 
educational development of the student.
    ``(c) The possession of an elementary or secondary teacher's certificate 
provides a clear means of identifying the individuals contemplated as being 
within the scope of the exemption for teaching professionals. Teachers who 
possess a teaching certificate qualify for the exemption regardless of the 
terminology (e.g., permanent, conditional, standard, provisional, temporary, 
emergency, or unlimited) used by the State to refer to different kinds of 
certificates. However, private schools and public schools are not uniform in 
requiring a certificate for employment as an elementary or secondary school 
teacher, and a teacher's certificate is not generally necessary for employment 
in institutions of higher education or other educational establishments. 
Therefore, a teacher who is not certified may be considered for exemption, 
provided that such individual is employed as a teacher by the employing school 
or school system.
    ``(d) The requirements of Sec. 541.300 and Subpart G (salary requirements) 
of this part do not apply to the teaching professionals described in this 
section.
``Sec. 541.304 Practice of law or medicine
    ``(a) The term `employee employed in a bona fide professional capacity' in 
section 13(a)(1) of the Act also shall mean:
            ``(1) Any employee who is the holder of a valid license or 
        certificate permitting the practice of law or medicine or any of their 
        branches and is actually engaged in the practice thereof; and
            ``(2) Any 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 the 
        profession.
    ``(b) In the case of medicine, the exemption applies to physicians and other 
practitioners licensed and practicing in the field of medical science and 
healing or any of the medical specialties practiced by physicians or 
practitioners. The term `physicians' includes medical doctors including general 
practitioners and specialists, osteopathic physicians (doctors of osteopathy), 
podiatrists, dentists (doctors of dental medicine), and optometrists (doctors of 
optometry or bachelors of science in optometry).
    ``(c) Employees engaged in internship or resident programs, whether or not 
licensed to practice prior to commencement of the program, qualify as exempt 
professionals if they enter such internship or resident programs after the 
earning of the appropriate degree required for the general practice of their 
profession.
    ``(d) The requirements of Sec. 541.300 and subpart G (salary requirements) 
of this part do not apply to the employees described in this section.

           ``Subpart E--Computer Employees (Sec. Sec. 541.400-541.402)

``Sec. 541.400 General rule for computer employees
    ``(a) Computer systems analysts, computer programmers, software engineers or 
other similarly skilled workers in the computer field are eligible for exemption 
as professionals under section 13(a)(1) of the Act and under section 13(a)(17) 
of the Act. Because job titles vary widely and change quickly in the computer 
industry, job titles are not determinative of the applicability of this 
exemption.
    ``(b) The section 13(a)(1)exemption applies to any computer employee who is 
compensated on a salary or fee basis at a rate of not less than $684 per week 
[(or $455 per week if employed in the Commonwealth of the Northern Mariana 
Islands, Guam, Puerto Rico, or the U.S. Virgin Islands by employers other than 
the Federal government, or $380 per week if employed in American Samoa by 
employers other than the Federal government)], exclusive of board, lodging, or 
other facilities.
    ``The section 13(a)(17) exemption applies to any computer employee 
compensated on an hourly basis at a rate of not less than $27.63 an hour. In 
addition, under either section 13(a)(1) or section 13(a)(17) of the Act, the 
exemptions apply only to computer employees whose primary duty consists of:
            ``(1) The application of systems analysis techniques and procedures, 
        including consulting with users, to determine hardware, software or 
        system functional specifications;
            ``(2) The design, development, documentation, analysis, creation, 
        testing or modification of computer systems or programs, including 
        prototypes, based on and related to user or system design 
        specifications;
            ``(3) The design, documentation, testing, creation or modification 
        of computer programs related to machine operating systems; or
            ``(4) A combination of the aforementioned duties, the performance of 
        which requires the same level of skills.
    ``(c) The term `salary basis' is defined at Sec. 541.602; `fee basis' is 
defined at Sec. 541.605; `board, lodging or other facilities' is defined at 
Sec. 541.606; and `primary duty' is defined at Sec. 541.700.
``Sec. 541.401 Computer manufacture and repair
    ``The exemption for employees in computer occupations does not include 
employees engaged in the manufacture or repair of computer hardware and related 
equipment. Employees whose work is highly dependent upon, or facilitated by, the 
use of computers and computer software programs (e.g., engineers, drafters and 
others skilled in computer-aided design software), but who are not primarily 
engaged in computer systems analysis and programming or other similarly skilled 
computer-related occupations identified in Sec. 541.400(b), are also not exempt 
computer professionals.
``Sec. 541.402 Executive and administrative computer employees
    ``Computer employees within the scope of this exemption, as well as those 
employees not within its scope, may also have executive and administrative 
duties which qualify the employees for exemption under subpart B or subpart C of 
this part. For example, systems analysts and computer programmers generally meet 
the duties requirements for the administrative exemption if their primary duty 
includes work such as planning, scheduling, and coordinating activities required 
to develop systems to solve complex business, scientific or engineering problems 
of the employer or the employer's customers<<, constituents or stakeholders>>. 
Similarly, a senior or lead computer programmer who manages the work of two or 
more other programmers in a customarily recognized department or subdivision of 
the employer, and whose recommendations as to the hiring, firing, advancement, 
promotion or other change of status of the other programmers are given 
particular weight, generally meets the duties requirements for the executive 
exemption.

                            ``Subpart F--<<Reserved>>

       [``Subpart F--Outside Sales Employees (Sec. Sec. 541.500-541.504)]

[``Sec. 541.500 General rule for outside sales employees
    [``(a) The term `employee employed in the capacity of outside salesman' in 
section 13(a)(1) of the Act shall mean any employee:]
            [``(1) Whose primary duty is:]
                    [``(i) making sales within the meaning of section 3(k) of 
                the Act, or]
                    [``(ii) obtaining orders or contracts for services or for 
                the use of facilities for which a consideration will be paid by 
                the client or customer; and]
            [``(2) Who is customarily and regularly engaged away from the 
        employer's place or places of business in performing such primary duty.]
    [``(b) The term `primary duty' is defined at Sec. 541.700. In determining 
the primary duty of an outside sales employee, work performed incidental to and 
in conjunction with the employee's own outside sales or solicitations, including 
incidental deliveries and collections, shall be regarded as exempt outside sales 
work. Other work that furthers the employee's sales efforts also shall be 
regarded as exempt work including, for example, writing sales reports, updating 
or revising the employee's sales or display catalogue, planning itineraries and 
attending sales conferences.]
    [``(c) The requirements of subpart G (salary requirements) of this part do 
not apply to the outside sales employees described in this section.]
[``Sec. 541.501 Making sales or obtaining orders
    [``(a) Section 541.500 requires that the employee be engaged in:]
            [``(1) Making sales within the meaning of section 3(k) of the Act, 
        or]
            [``(2) Obtaining orders or contracts for services or for the use of 
        facilities.]
    [``(b) Sales within the meaning of section 3(k) of the Act include the 
transfer of title to tangible property, and in certain cases, of tangible and 
valuable evidences of intangible property. Section 3(k) of the Act states that 
`sale' or `sell' includes any sale, exchange, contract to sell, consignment for 
sale, shipment for sale, or other disposition.]
    [``(c) Exempt outside sales work includes not only the sales of commodities, 
but also `obtaining orders or contracts for services or for the use of 
facilities for which a consideration will be paid by the client or customer.' 
Obtaining orders for `the use of facilities' includes the selling of time on 
radio or television, the solicitation of advertising for newspapers and other 
periodicals, and the solicitation of freight for railroads and other 
transportation agencies.]
    [``(d) The word `services' extends the outside sales exemption to employees 
who sell or take orders for a service, which may be performed for the customer 
by someone other than the person taking the order.]
[``Sec. 541.502 Away from employer's place of business
    ``An outside sales employee must be customarily and regularly engaged `away 
from the employer's place or places of business.' The outside sales employee is 
an employee who makes sales at the customer's place of business or, if selling 
door-to-door, at the customer's home. Outside sales does not include sales made 
by mail, telephone or the Internet unless such contact is used merely as an 
adjunct to personal calls. Thus, any fixed site, whether home or office, used by 
a salesperson as a headquarters or for telephonic solicitation of sales is 
considered one of the employer's places of business, even though the employer is 
not in any formal sense the owner or tenant of the property. However, an outside 
sales employee does not lose the exemption by displaying samples in hotel sample 
rooms during trips from city to city; these sample rooms should not be 
considered as the employer's places of business. Similarly, an outside sales 
employee does not lose the exemption by displaying the employer's products at a 
trade show. If selling actually occurs, rather than just sales promotion, trade 
shows of short duration (i.e., one or two weeks) should not be considered as the 
employer's place of business.]
[``Sec. 541.503 Promotion work
    [``(a) Promotion work is one type of activity often performed by persons who 
make sales, which may or may not be exempt outside sales work, depending upon 
the circumstances under which it is performed. Promotional work that is actually 
performed incidental to and in conjunction with an employee's own outside sales 
or solicitations is exempt work. On the other hand, promotional work that is 
incidental to sales made, or to be made, by someone else is not exempt outside 
sales work. An employee who does not satisfy the requirements of this subpart 
may still qualify as an exempt employee under other subparts of this rule.]
    [``(b) A manufacturer's representative, for example, may perform various 
types of promotional activities such as putting up displays and posters, 
removing damaged or spoiled stock from the merchant's shelves or rearranging the 
merchandise. Such an employee can be considered an exempt outside sales employee 
if the employee's primary duty is making sales or contracts. Promotion 
activities directed toward consummation of the employee's own sales are exempt. 
Promotional activities designed to stimulate sales that will be made by someone 
else are not exempt outside sales work.]
    [``(c) Another example is a company representative who visits chain stores, 
arranges the merchandise on shelves, replenishes stock by replacing old with new 
merchandise, sets up displays and consults with the store manager when inventory 
runs low, but does not obtain a commitment for additional purchases. The 
arrangement of merchandise on the shelves or the replenishing of stock is not 
exempt work unless it is incidental to and in conjunction with the employee's 
own outside sales. Because the employee in this instance does not consummate the 
sale nor direct efforts toward the consummation of a sale, the work is not 
exempt outside sales work.]
[``Sec. 541.504 Drivers who sell
    [``(a) Drivers who deliver products and also sell such products may qualify 
as exempt outside sales employees only if the employee has a primary duty of 
making sales. In determining the primary duty of drivers who sell, work 
performed incidental to and in conjunction with the employee's own outside sales 
or solicitations, including loading, driving or delivering products, shall be 
regarded as exempt outside sales work.]
    [``(b) Several factors should be considered in determining if a driver has a 
primary duty of making sales, including, but not limited to: a comparison of the 
driver's duties with those of other employees engaged as truck drivers and as 
salespersons; possession of a selling or solicitor's license when such license 
is required by law or ordinances; presence or absence of customary or 
contractual arrangements concerning amounts of products to be delivered; 
description of the employee's occupation in collective bargaining agreements; 
the employer's specifications as to qualifications for hiring; sales training; 
attendance at sales conferences; method of payment; and proportion of earnings 
directly attributable to sales.]
    [``(c) Drivers who may qualify as exempt outside sales employees include:]
            [``(1) A driver who provides the only sales contact between the 
        employer and the customers visited, who calls on customers and takes 
        orders for products, who delivers products from stock in the employee's 
        vehicle or procures and delivers the product to the customer on a later 
        trip, and who receives compensation commensurate with the volume of 
        products sold.]
            [``(2) A driver who obtains or solicits orders for the employer's 
        products from persons who have authority to commit the customer for 
        purchases.]
            [``(3) A driver who calls on new prospects for customers along the 
        employee's route and attempts to convince them of the desirability of 
        accepting regular delivery of goods.]
            [``(4) A driver who calls on established customers along the route 
        and persuades regular customers to accept delivery of increased amounts 
        of goods or of new products, even though the initial sale or agreement 
        for delivery was made by someone else.]
    [``(d) Drivers who generally would not qualify as exempt outside sales 
employees include:]
            [``(1) A route driver whose primary duty is to transport products 
        sold by the employer through vending machines and to keep such machines 
        stocked, in good operating condition, and in good locations.]
            [``(2) A driver who often calls on established customers day after 
        day or week after week, delivering a quantity of the employer's products 
        at each call when the sale was not significantly affected by 
        solicitations of the customer by the delivering driver or the amount of 
        the sale is determined by the volume of the customer's sales since the 
        previous delivery.]
            [``(3) A driver primarily engaged in making deliveries to customers 
        and performing activities intended to promote sales by customers 
        (including placing point-of-sale and other advertising materials, price 
        stamping commodities, arranging merchandise on shelves, in coolers or in 
        cabinets, rotating stock according to date, and cleaning and otherwise 
        servicing display cases), unless such work is in furtherance of the 
        driver's own sales efforts.]

          ``Subpart G--Salary Requirements (Sec. Sec. 541.600-541.607)

``Sec. 541.600 Amount of salary required
    ``(a) To qualify as an exempt executive, administrative or professional 
employee under section 13(a)(1) of the Act, an employee must be compensated on a 
salary basis at a rate of not less than $684 per week [(or $455 per week if 
employed in the Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, 
or the U.S. Virgin Islands by employers other than the Federal Government, or 
$380 per week if employed in American Samoa by employers other than the Federal 
Government)], exclusive of board, lodging or other facilities. Administrative 
and professional employees may also be paid on a fee basis, as defined in 
Sec. 541.605.
    ``(b) The required amount of compensation per week may be translated into 
equivalent amounts for periods longer than one week. For example, the $684-per-
week requirement will be met if the employee is compensated biweekly on a salary 
basis of not less than $1,368, semimonthly on a salary basis of not less than 
$1,482, or monthly on a salary basis of not less than $2,964. However, the 
shortest period of payment that will meet this compensation requirement is one 
week.
    ``(c) In the case of academic administrative employees, the compensation 
requirement also may be met by compensation on a salary basis at a rate at least 
equal to the entrance salary for teachers in the educational establishment by 
which the employee is employed, as provided in Sec. 541.204(a)(1).
    ``(d) In the case of computer employees, the compensation requirement also 
may be met by compensation on an hourly basis at a rate not less than $27.63 an 
hour, as provided in Sec. 541.400(b).
    ``(e) In the case of professional employees, the compensation requirements 
in this section shall not apply to employees engaged as teachers (see 
Sec. 541.303); employees who hold a valid license or certificate permitting the 
practice of law or medicine or any of their branches and are actually engaged in 
the practice thereof (see Sec. 541.304); or to employees who hold the requisite 
academic degree for the general practice of medicine and are engaged in an 
internship or resident program pursuant to the practice of the profession (see 
Sec. 541.304). In the case of medical occupations, the exception from the salary 
or fee requirement does not apply to pharmacists, nurses, therapists, 
technologists, sanitarians, dietitians, social workers, psychologists, 
psychometrists, or other professions which service the medical profession.
``Sec. 541.601 Highly compensated employees
    ``(a)(1) Beginning on [January 1, 2020]<<the effective date of these 
Substantive Regulations>>, an employee with total annual compensation of at 
least $107,432 is deemed exempt under section 13(a)(1) of the Act if the 
employee customarily and regularly performs any one or more of the exempt duties 
or responsibilities of an executive, administrative or professional employee as 
identified in subparts B, C or D of this part.
    ``(2) Where the annual period covers periods both prior to and after 
[January 1, 2020]<<the effective date of these Substantive Regulations>>, the 
amount of total annual compensation due will be determined on a proportional 
basis.
    ``(b)(1) `Total annual compensation' must include at least $684 per week 
paid on a salary or fee basis as set forth in Sec. 541.602 and 541.605, except 
that Sec. 541.602(a)(3) shall not apply to highly compensated employees. Total 
annual compensation may also include commissions, nondiscretionary bonuses and 
other nondiscretionary compensation earned during a 52-week period. Total annual 
compensation does not include board, lodging and other facilities as defined in 
Sec. 541.606, and does not include payments for medical insurance, payments for 
life insurance, contributions to retirement plans and the cost of other fringe 
benefits.
    ``(2) If an employee's total annual compensation does not total at least the 
amount specified in the applicable subsection of paragraph (a) by the last pay 
period of the 52-week period, the employer may, during the last pay period or 
within one month after the end of the 52-week period, make one final payment 
sufficient to achieve the required level. For example, for a 52-week period 
[beginning January 1, 2020], an employee may earn $90,000 in base salary, and 
the employer may anticipate [based upon past sales] that the employee also will 
earn $17,432 in [commissions]<<other payments>>. However, [due to poor sales] in 
the final quarter of the year, the employee actually only earns $12,000 in 
[commissions]<<other payments>>. In this situation, the employer may within one 
month after the end of the year make a payment of at least $5,432 to the 
employee. Any such final payment made after the end of the 52-week period may 
count only toward the prior year's total annual compensation and not toward the 
total annual compensation in the year it was paid. If the employer fails to make 
such a payment, the employee does not qualify as a highly compensated employee, 
but may still qualify as exempt under subparts B, C, or D of this part.
    ``(3) An employee who does not work a full year for the employer, either 
because the employee is newly hired after the beginning of the year or ends the 
employment before the end of the year, may qualify for exemption under this 
section if the employee receives a pro rata portion of the minimum amount 
established in paragraph (a) of this section, based upon the number of weeks 
that the employee will be or has been employed. An employer may make one final 
payment as under paragraph (b)(2) of this section within one month after the end 
of employment.
    ``(4) The employer may utilize any 52-week period as the year, such as a 
calendar year, a fiscal year, or an anniversary of hire year. If the employer 
does not identify some other year period in advance, the calendar year will 
apply.
    ``(c) A high level of compensation is a strong indicator of an employee's 
exempt status, thus eliminating the need for a detailed analysis of the 
employee's job duties. Thus, a highly compensated employee will qualify for 
exemption if the employee customarily and regularly performs any one or more of 
the exempt duties or responsibilities of an executive, administrative or 
professional employee identified in subparts B, C or D of this part. An employee 
may qualify as a highly compensated executive employee, for example, if the 
employee customarily and regularly directs the work of two or more other 
employees, even though the employee does not meet all of the other requirements 
for the executive exemption under Sec. 541.100.
    ``(d) This section applies only to employees whose primary duty includes 
performing office or non-manual work. Thus, for example, non-management 
production-line workers and non-management employees in maintenance, 
construction and similar occupations such as carpenters, electricians, 
mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, 
construction workers, laborers and other employees who perform work involving 
repetitive operations with their hands, physical skill and energy are not exempt 
under this section no matter how highly paid they might be.
``Sec. 541.602 Salary basis
    ``(a) General rule. An employee will be considered to be paid on a `salary 
basis' within the meaning of this part if the employee regularly receives each 
pay period on a weekly, or less frequent basis, a predetermined amount 
constituting all or part of the employee's compensation, which amount is not 
subject to reduction because of variations in the quality or quantity of the 
work performed.
            ``(1) Subject to the exceptions provided in paragraph (b) of this 
        section, an exempt employee must receive the full salary for any week in 
        which the employee performs any work without regard to the number of 
        days or hours worked. Exempt employees need not be paid for any workweek 
        in which they perform no work.
            ``(2) An employee is not paid on a salary basis if deductions from 
        the employee's predetermined compensation are made for absences 
        occasioned by the employer or by the operating requirements of the 
        [business] <<employing office>>. If the employee is ready, willing and 
        able to work, deductions may not be made for time when work is not 
        available.
            ``(3) Up to ten percent of the salary amount required by 
        Sec. 541.600(a) may be satisfied by the payment of nondiscretionary 
        bonuses, incentives and commissions, that are paid annually or more 
        frequently. The employer may utilize any 52-week period as the year, 
        such as a calendar year, a fiscal year, or an anniversary of hire year. 
        If the employer does not identify some other year period in advance, the 
        calendar year will apply. This provision does not apply to highly 
        compensated employees under Sec. 541.601.
                    ``(i) If by the last pay period of the 52-week period the 
                sum of the employee's weekly salary plus nondiscretionary bonus, 
                incentive, and commission payments received is less than 52 
                times the weekly salary amount required by Sec. 541.600(a), the 
                employer may make one final payment sufficient to achieve the 
                required level no later than the next pay period after the end 
                of the year. Any such final payment made after the end of the 
                52-week period may count only toward the prior year's salary 
                amount and not toward the salary amount in the year it was paid.
                    ``(ii) An employee who does not work a full 52-week period 
                for the employer, either because the employee is newly hired 
                after the beginning of this period or ends the employment before 
                the end of this period, may qualify for exemption if the 
                employee receives a pro rata portion of the minimum amount 
                established in paragraph (a)(3) of this section, based upon the 
                number of weeks that the employee will be or has been employed. 
                An employer may make one final payment as under paragraph 
                (a)(3)(i) of this section within one pay period after the end of 
                employment.
    ``(b) Exceptions. The prohibition against deductions from pay in the salary 
basis requirement is subject to the following exceptions:
            ``(1) Deductions from pay may be made when an exempt employee is 
        absent from work for one or more full days for personal reasons, other 
        than sickness or disability. Thus, if an employee is absent for two full 
        days to handle personal affairs, the employee's salaried status will not 
        be affected if deductions are made from the salary for two full-day 
        absences. However, if an exempt employee is absent for one and a half 
        days for personal reasons, the employer can deduct only for the one 
        full-day absence.
            ``(2) Deductions from pay may be made for absences of one or more 
        full days occasioned by sickness or disability (including work-related 
        accidents) if the deduction is made in accordance with a bona fide plan, 
        policy or practice of providing compensation for loss of salary 
        occasioned by such sickness or disability. The employer is not required 
        to pay any portion of the employee's salary for full-day absences for 
        which the employee receives compensation under the plan, policy or 
        practice. Deductions for such full-day absences also may be made before 
        the employee has qualified under the plan, policy or practice, and after 
        the employee has exhausted the leave allowance thereunder. Thus, for 
        example, if an employer maintains a short-term disability insurance plan 
        providing salary replacement for 12 weeks starting on the fourth day of 
        absence, the employer may make deductions from pay for the three days of 
        absence before the employee qualifies for benefits under the plan; for 
        the twelve weeks in which the employee receives salary replacement 
        benefits under the plan; and for absences after the employee has 
        exhausted the 12 weeks of salary replacement benefits. [Similarly, an 
        employer may make deductions from pay for absences of one or more full 
        days if salary replacement benefits are provided under a State 
        disability insurance law or under a State workers' compensation law.]
            ``(3) While an employer cannot make deductions from pay for absences 
        of an exempt employee occasioned by jury duty, attendance as a witness 
        or temporary military leave, the employer can offset any amounts 
        received by an employee as jury fees, witness fees or military pay for a 
        particular week against the salary due for that particular week without 
        loss of the exemption.
            ``(4) Deductions from pay of exempt employees may be made for 
        penalties imposed in good faith for infractions of safety rules of major 
        significance. Safety rules of major significance include those relating 
        to the prevention of serious danger in the workplace or to other 
        employees, such as rules prohibiting smoking in explosive plants, oil 
        refineries and coal mines.
            ``(5) Deductions from pay of exempt employees may be made for unpaid 
        disciplinary suspensions of one or more full days imposed in good faith 
        for infractions of workplace conduct rules. Such suspensions must be 
        imposed pursuant to a written policy applicable to all employees. Thus, 
        for example, an employer may suspend an exempt employee without pay for 
        three days for violating a generally applicable written policy 
        prohibiting sexual harassment. Similarly, an employer may suspend an 
        exempt employee without pay for twelve days for violating a generally 
        applicable written policy prohibiting workplace violence.
            ``(6) An employer is not required to pay the full salary in the 
        initial or terminal week of employment. Rather, an employer may pay a 
        proportionate part of an employee's full salary for the time actually 
        worked in the first and last week of employment. In such weeks, the 
        payment of an hourly or daily equivalent of the employee's full salary 
        for the time actually worked will meet the requirement. However, 
        employees are not paid on a salary basis within the meaning of these 
        regulations if they are employed occasionally for a few days, and the 
        employer pays them a proportionate part of the weekly salary when so 
        employed.
            ``(7) An employer is not required to pay the full salary for weeks 
        in which an exempt employee takes unpaid leave under the Family and 
        Medical Leave Act. Rather, when an exempt employee takes unpaid leave 
        under the Family and Medical Leave Act, an employer may pay a 
        proportionate part of the full salary for time actually worked. For 
        example, if an employee who normally works 40 hours per week uses four 
        hours of unpaid leave under the Family and Medical Leave Act, the 
        employer could deduct 10 percent of the employee's normal salary that 
        week.
    ``(c) When calculating the amount of a deduction from pay allowed under 
paragraph (b) of this section, the employer may use the hourly or daily 
equivalent of the employee's full weekly salary or any other amount proportional 
to the time actually missed by the employee. A deduction from pay as a penalty 
for violations of major safety rules under paragraph (b)(4) of this section may 
be made in any amount.
``Sec. 541.603 Effect of improper deductions from salary
    ``(a) An employer who makes improper deductions from salary shall lose the 
exemption if the facts demonstrate that the employer did not intend to pay 
employees on a salary basis. An actual practice of making improper deductions 
demonstrates that the employer did not intend to pay employees on a salary 
basis. The factors to consider when determining whether an employer has an 
actual practice of making improper deductions include, but are not limited to: 
the number of improper deductions, particularly as compared to the number of 
employee infractions warranting discipline; the time period during which the 
employer made improper deductions; the number and geographic location of 
employees whose salary was improperly reduced; the number and geographic 
location of managers responsible for taking the improper deductions; and whether 
the employer has a clearly communicated policy permitting or prohibiting 
improper deductions.
    ``(b) If the facts demonstrate that the employer has an actual practice of 
making improper deductions, the exemption is lost during the time period in 
which the improper deductions were made for employees in the same job 
classification working for the same managers responsible for the actual improper 
deductions. Employees in different job classifications or who work for different 
managers do not lose their status as exempt employees. Thus, for example, if a 
manager [at a company facility] routinely docks the pay of engineers at that 
facility for partial-day personal absences, then all engineers at that facility 
whose pay could have been improperly docked by the manager would lose the 
exemption; engineers at other facilities or working for other managers, however, 
would remain exempt.
    ``(c) Improper deductions that are either isolated or inadvertent will not 
result in loss of the exemption for any employees subject to such improper 
deductions, if the employer reimburses the employees for such improper 
deductions.
    ``(d) If an employer has a clearly communicated policy that prohibits the 
improper pay deductions specified in Sec. 541.602(a) and includes a complaint 
mechanism, reimburses employees for any improper deductions and makes a good 
faith commitment to comply in the future, such employer will not lose the 
exemption for any employees unless the employer willfully violates the policy by 
continuing to make improper deductions after receiving employee complaints. If 
an employer fails to reimburse employees for any improper deductions or 
continues to make improper deductions after receiving employee complaints, the 
exemption is lost during the time period in which the improper deductions were 
made for employees in the same job classification working for the same managers 
responsible for the actual improper deductions. The best evidence of a clearly 
communicated policy is a written policy that was distributed to employees prior 
to the improper pay deductions by, for example, providing a copy of the policy 
to employees at the time of hire, publishing the policy in an employee handbook 
or publishing the policy on the employer's Intranet.
    ``(e) This section shall not be construed in an unduly technical manner so 
as to defeat the exemption.
``Sec. 541.604 Minimum guarantee plus extras
    ``(a) An employer may provide an exempt employee with additional 
compensation without losing the exemption or violating the salary basis 
requirement, if the employment arrangement also includes a guarantee of at least 
the minimum weekly-required amount paid on a salary basis. Thus, for example, an 
exempt employee guaranteed at least $684 each week paid on a salary basis may 
also receive additional compensation of a one percent commission on sales. An 
exempt employee also may receive a percentage of the sales or profits of the 
employer if the employment arrangement also includes a guarantee of at least 
$684 each week paid on a salary basis. Similarly, the exemption is not lost if 
an exempt employee who is guaranteed at least $684 each week paid on a salary 
basis also receives additional compensation based on hours worked for work 
beyond the normal workweek. Such additional compensation may be paid on any 
basis (e.g., flat sum, bonus payment, straight-time hourly amount, time and one-
half or any other basis), and may include paid time off.
    ``(b) An exempt employee's earnings may be computed on an hourly, a daily or 
a shift basis, without losing the exemption or violating the salary basis 
requirement, if the employment arrangement also includes a guarantee of at least 
the minimum weekly required amount paid on a salary basis regardless of the 
number of hours, days or shifts worked, and a reasonable relationship exists 
between the guaranteed amount and the amount actually earned. The reasonable 
relationship test will be met if the weekly guarantee is roughly equivalent to 
the employee's usual earnings at the assigned hourly, daily or shift rate for 
the employee's normal scheduled workweek. Thus, for example, an exempt employee 
guaranteed compensation of at least $725 for any week in which the employee 
performs any work, and who normally works four or five shifts each week, may be 
paid $210 per shift without violating the $684-per-week salary basis 
requirement. The reasonable relationship requirement applies only if the 
employee's pay is computed on an hourly, daily or shift basis. It does not 
apply, for example, to an exempt store manager paid a guaranteed salary per week 
that exceeds the current salary level who also receives a commission of one-half 
percent of all sales in the store or five percent of the store's profits, which 
in some weeks may total as much as, or even more than, the guaranteed salary.
``Sec. 541.605 Fee basis
    ``(a) Administrative and professional employees may be paid on a fee basis, 
rather than on a salary basis. An employee will be considered to be paid on a 
`fee basis' within the meaning of these regulations if the employee is paid an 
agreed sum for a single job regardless of the time required for its completion. 
These payments resemble piecework payments with the important distinction that 
generally a `fee' is paid for the kind of job that is unique rather than for a 
series of jobs repeated an indefinite number of times and for which payment on 
an identical basis is made over and over again. Payments based on the number of 
hours or days worked and not on the accomplishment of a given single task are 
not considered payments on a fee basis.
    ``(b) To determine whether the fee payment meets the minimum amount of 
salary required for exemption under these regulations, the amount paid to the 
employee will be tested by determining the time worked on the job and whether 
the fee payment is at a rate that would amount to at least the minimum salary 
per week, as required by Sec. 541.600(a) and 541.602(a), if the employee worked 
40 hours. Thus, an artist paid $350 for a picture that took 20 hours to complete 
meets the $684 minimum salary requirement for exemption since earnings at this 
rate would yield the artist $700 if 40 hours were worked.
``Sec. 541.606 Board, lodging or other facilities
    ``(a) To qualify for exemption under section 13(a)(1) of the Act, an 
employee must earn the minimum salary amount set forth in Sec. 541.600, 
`exclusive of board, lodging or other facilities.' The phrase `exclusive of 
board, lodging or other facilities' means `free and clear' or independent of any 
claimed credit for non-cash items of value that an employer may provide to an 
employee. Thus, the costs incurred by an employer to provide an employee with 
board, lodging or other facilities may not count towards the minimum salary 
amount required for exemption under this part 541. Such separate transactions 
are not prohibited between employers and their exempt employees, but the costs 
to employers associated with such transactions may not be considered when 
determining if an employee has received the full required minimum salary 
payment.
    ``(b) Regulations defining what constitutes `board, lodging, or other 
facilities' are contained in 29 CFR part 531. As described in 29 CFR 531.32, the 
term `other facilities' refers to items similar to board and lodging, such as 
meals furnished at company restaurants or cafeterias or by hospitals, hotels, or 
restaurants to their employees; meals, dormitory rooms, and tuition furnished by 
a college to its student employees; merchandise furnished at company stores or 
commissaries, including articles of food, clothing, and household effects; 
housing furnished for dwelling purposes; and transportation furnished to 
employees for ordinary commuting between their homes and work.
[``Sec. 541.607 Reserved by 85 FR 34970 Effective: June 8, 2020 <<541.607 - 
              Reserved.>>

    ``Subpart H--Definitions and Miscellaneous Provisions (Sec. Sec. 541.700-
                                    541.710)

``Sec. 541.700 Primary duty
    ``(a) To qualify for exemption under this part, an employee's `primary duty' 
must be the performance of exempt work. The term `primary duty' means the 
principal, main, major or most important duty that the employee performs. 
Determination of an employee's primary duty must be based on all the facts in a 
particular case, with the major emphasis on the character of the employee's job 
as a whole. Factors to consider when determining the primary duty of an employee 
include, but are not limited to, the relative importance of the exempt duties as 
compared with other types of duties; the amount of time spent performing exempt 
work; the employee's relative freedom from direct supervision; and the 
relationship between the employee's salary and the wages paid to other employees 
for the kind of nonexempt work performed by the employee.
    ``(b) The amount of time spent performing exempt work can be a useful guide 
in determining whether exempt work is the primary duty of an employee. Thus, 
employees who spend more than 50 percent of their time performing exempt work 
will generally satisfy the primary duty requirement. Time alone, however, is not 
the sole test, and nothing in this section requires that exempt employees spend 
more than 50 percent of their time performing exempt work. Employees who do not 
spend more than 50 percent of their time performing exempt duties may 
nonetheless meet the primary duty requirement if the other factors support such 
a conclusion.
    ``(c) Thus, for example, assistant managers in a retail establishment who 
perform exempt executive work such as supervising and directing the work of 
other employees, ordering merchandise, managing the budget and authorizing 
payment of bills may have management as their primary duty even if the assistant 
managers spend more than 50 percent of the time performing nonexempt work such 
as running the cash register. However, if such assistant managers are closely 
supervised and earn little more than the nonexempt employees, the assistant 
managers generally would not satisfy the primary duty requirement.
``Sec. 541.701 Customarily and regularly
    ``The phrase `customarily and regularly' means a frequency that must be 
greater than occasional but which, of course, may be less than constant. Tasks 
or work performed `customarily and regularly' includes work normally and 
recurrently performed every workweek; it does not include isolated or one-time 
tasks.
``Sec. 541.702 Exempt and nonexempt work
    ``The term `exempt work' means all work described in Sec. 541.100, 541.101, 
541.200, 541.300, 541.301, 541.302, 541.303, 541.304, <<and>> 541.400 [and 
541.500], and the activities directly and closely related to such work. All 
other work is considered `nonexempt.'
``Sec. 541.703 Directly and closely related
    ``(a) Work that is `directly and closely related' to the performance of 
exempt work is also considered exempt work. The phrase `directly and closely 
related' means tasks that are related to exempt duties and that contribute to or 
facilitate performance of exempt work. Thus, `directly and closely related' work 
may include physical tasks and menial tasks that arise out of exempt duties, and 
the routine work without which the exempt employee's exempt work cannot be 
performed properly. Work `directly and closely related' to the performance of 
exempt duties may also include recordkeeping; monitoring and adjusting 
machinery; taking notes; using the computer to create documents or 
presentations; opening the mail for the purpose of reading it and making 
decisions; and using a photocopier or fax machine. Work is not `directly and 
closely related' if the work is remotely related or completely unrelated to 
exempt duties.
    ``(b) The following examples further illustrate the type of work that is and 
is not normally considered as directly and closely related to exempt work:
            ``(1) Keeping time, production or sales records for subordinates is 
        work directly and closely related to an exempt executive's function of 
        managing a department and supervising employees.
            ``(2) The distribution of materials, merchandise or supplies to 
        maintain control of the flow of and expenditures for such items is 
        directly and closely related to the performance of exempt duties.
            ``(3) A supervisor who spot checks and examines the work of 
        subordinates to determine whether they are performing their duties 
        properly, and whether the product is satisfactory, is performing work 
        which is directly and closely related to managerial and supervisory 
        functions, so long as the checking is distinguishable from the work 
        ordinarily performed by a nonexempt inspector.
            ``(4) A supervisor who sets up a machine may be engaged in exempt 
        work, depending upon the nature of the industry and the operation. In 
        some cases the setup work, or adjustment of the machine for a particular 
        job, is typically performed by the same employees who operate the 
        machine. Such setup work is part of the production operation and is not 
        exempt. In other cases, the setting up of the work is a highly skilled 
        operation which the ordinary production worker or machine tender 
        typically does not perform. In large plants, non-supervisors may perform 
        such work. However, particularly in small plants, such work may be a 
        regular duty of the executive and is directly and closely related to the 
        executive's responsibility for the work performance of subordinates and 
        for the adequacy of the final product. Under such circumstances, it is 
        exempt work.
            ``(5) A department manager in a retail or service establishment who 
        walks about the sales floor observing the work of sales personnel under 
        the employee's supervision to determine the effectiveness of their sales 
        techniques, checks on the quality of customer service being given, or 
        observes customer preferences is performing work which is directly and 
        closely related to managerial and supervisory functions.
            ``(6) A business consultant may take extensive notes recording the 
        flow of work and materials through the office or plant of the client; 
        after returning to the office of the employer, the consultant may 
        personally use the computer to type a report and create a proposed table 
        of organization. Standing alone, or separated from the primary duty, 
        such note-taking and typing would be routine in nature. However, because 
        this work is necessary for analyzing the data and making 
        recommendations, the work is directly and closely related to exempt 
        work. While it is possible to assign note-taking and typing to nonexempt 
        employees, and in fact it is frequently the practice to do so, 
        delegating such routine tasks is not required as a condition of 
        exemption.
            ``(7) A [credit] manager who makes and administers the 
        [credit]<<budget>> policy of the [employer]<<employing office>>, 
        establishes [credit]<<spending>> limits for [customers]<<the employing 
        office>>, <<and>> authorizes [the shipment of orders on credit, and 
        makes decisions on whether to exceed credit limits]<<expenditures>> 
        would be performing work exempt under Sec. 541.200. Work that is 
        directly and closely related to these exempt duties may include checking 
        the status of accounts to determine whether the credit limit would be 
        exceeded by the shipment of a new order, removing credit reports from 
        the files for analysis, and writing letters giving credit data and 
        experience to other employers or credit agencies.
            ``(8) A traffic manager in charge of planning a company's 
        transportation, including the most economical and quickest routes for 
        shipping merchandise to and from the plant, contracting for common-
        carrier and other transportation facilities, negotiating with carriers 
        for adjustments for damages to merchandise, and making the necessary 
        rearrangements resulting from delays, damages or irregularities in 
        transit, is performing exempt work. If the employee also spends part of 
        the day taking telephone orders for local deliveries, such order-taking 
        is a routine function and is not directly and closely related to the 
        exempt work.
            ``(9) An example of work directly and closely related to exempt 
        professional duties is a chemist performing menial tasks such as 
        cleaning a test tube in the middle of an original experiment, even 
        though such menial tasks can be assigned to laboratory assistants.
            ``(10) A teacher performs work directly and closely related to 
        exempt duties when, while taking students on a field trip, the teacher 
        drives a school van or monitors the students' behavior in a restaurant.
``Sec. 541.704 Use of manuals
    ``The use of manuals, guidelines or other established procedures containing 
or relating to highly technical, scientific, legal, financial or other similarly 
complex matters that can be understood or interpreted only by those with 
advanced or specialized knowledge or skills does not preclude exemption under 
section 13(a)(1) of the Act or the regulations in this part. Such manuals and 
procedures provide guidance in addressing difficult or novel circumstances and 
thus use of such reference material would not affect an employee's exempt 
status. The section 13(a)(1) exemptions are not available, however, for 
employees who simply apply well-established techniques or procedures described 
in manuals or other sources within closely prescribed limits to determine the 
correct response to an inquiry or set of circumstances.
``Sec. 541.705 Trainees
    ``The executive, administrative, professional, [outside sales] and computer 
employee exemptions do not apply to employees training for employment in an 
executive, administrative, professional, [outside sales] or computer employee 
capacity who are not actually performing the duties of an executive, 
administrative, professional, [outside sales] or computer employee.
``Sec. 541.706 Emergencies
    ``(a) An exempt employee will not lose the exemption by performing work of a 
normally nonexempt nature because of the existence of an emergency. Thus, when 
emergencies arise that threaten the safety of employees, a cessation of 
operations or serious damage to the employer's property, any work performed in 
an effort to prevent such results is considered exempt work.
    ``(b) An `emergency' does not include occurrences that are not beyond 
control or for which the employer can reasonably provide in the normal course of 
business. Emergencies generally occur only rarely, and are events that the 
employer cannot reasonably anticipate.
    ``(c) The following examples illustrate the distinction between emergency 
work considered exempt work and routine work that is not exempt work:
            ``(1) [A mine superintendent who pitches in after an explosion and 
        digs out workers who are trapped in the mine is still a bona fide 
        executive.]<<Reserved.>>
            ``(2) Assisting nonexempt employees with their work during periods 
        of heavy workload or to handle rush orders is not exempt work.
            ``(3) Replacing a nonexempt employee during the first day or partial 
        day of an illness may be considered exempt emergency work depending on 
        factors such as the size of the [establishment]<<location>> and of the 
        executive's department, the nature of the [industry]<<work performed by 
        the employing office>>, the consequences that would flow from the 
        failure to replace the ailing employee immediately, and the feasibility 
        of filling the employee's place promptly.
            ``(4) Regular repair and cleaning of equipment is not emergency 
        work, even when necessary to prevent fire or explosion; however, 
        repairing equipment may be emergency work if the breakdown of or damage 
        to the equipment was caused by accident or carelessness that the 
        employer could not reasonably anticipate.
``Sec. 541.707 Occasional tasks
    ``Occasional, infrequently recurring tasks that cannot practicably be 
performed by nonexempt employees, but are the means for an exempt employee to 
properly carry out exempt functions and responsibilities, are considered exempt 
work. The following factors should be considered in determining whether such 
work is exempt work: Whether the same work is performed by any of the exempt 
employee's subordinates; practicability of delegating the work to a nonexempt 
employee; whether the exempt employee performs the task frequently or 
occasionally; and existence of an industry practice for the exempt employee to 
perform the task.
``Sec. 541.708 Combination exemptions
    ``Employees who perform a combination of exempt duties as set forth in the 
regulations in this part for executive, administrative, professional, [outside 
sales] and computer employees may qualify for exemption. Thus, for example, an 
employee whose primary duty involves a combination of exempt administrative and 
exempt executive work may qualify for exemption. In other words, work that is 
exempt under one section of this part will not defeat the exemption under any 
other section.
[``Sec. 541.709 Motion picture producing industry
    [``The requirement that the employee be paid `on a salary basis' does not 
apply to an employee in the motion picture producing industry who is compensated 
at a base rate of at least $1,043 per week (exclusive of board, lodging, or 
other facilities). Thus, an employee in this industry who is otherwise exempt 
under subparts B, C, or D of this part, and who is employed at a base rate of at 
least the applicable current minimum amount a week is exempt if paid a 
proportionate amount (based on a week of not more than 6 days) for any week in 
which the employee does not work a full workweek for any reason. Moreover, an 
otherwise exempt employee in this industry qualifies for exemption if the 
employee is employed at a daily rate under the following circumstances:]
    [``(a) The employee is in a job category for which a weekly base rate is not 
provided and the daily base rate would yield at least the minimum weekly amount 
if 6 days were worked; or]
    [``(b) The employee is in a job category having the minimum weekly base rate 
and the daily base rate is at least one-sixth of such weekly base rate.]
``Sec. 541.709 <<Reserved.>>
``Sec. 541.710 [Employees of public agencies]<<Effect of certain deductions on 
              exempt employee pay>>
    ``(a) An employee [of a public agency] who otherwise meets the salary basis 
requirements of Sec. 541.602 shall not be disqualified from exemption under 
Sec. 541.100, 541.200, 541.300 or 541.400 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 work-day 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.''.
            Attest:

                                                                          Clerk.