[Congressional Record Volume 142, Number 53 (Tuesday, April 23, 1996)]
[Senate]
[Pages S3959-S3997]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




SENATE RESOLUTION 242--TO PROVIDE FOR THE APPROVAL OF FINAL REGULATIONS

  Mr. WARNER submitted the following resolution; which was considered 
and agreed to on April 15, 1996:

                              S. Res. 242

       Resolved, That the following regulations issued by the 
     Office of Compliance on January 22, 1996 are hereby approved 
     as follows:

                   PART 825--FAMILY AND MEDICAL LEAVE

825.1  Purpose and scope.
825.2  [Reserved].

 Subpart A--What is the Family and Medical Leave Act, and to Whom Does 
          it Apply under the Congressional Accountability Act?

825.100  What is the Family and Medical Leave Act?
825.101  What is the purpose of the FMLA?
825.102  When are the FMLA and the CAA effective for covered employees 
              and employing offices?
825.103  How does the FMLA, as made applicable by the CAA, affect leave 
              in progress on, or taken before, the effective date of 
              the CAA?
825.104  What employing offices are covered by the FMLA, as made 
              applicable by the CAA?
825.105  [Reserved].
825.106  How is ``joint employment'' treated under the FMLA as made 
              applicable by the CAA?
825.107--825.109  [Reserved].
825.110  Which employees are ``eligible'' to take FMLA leave under 
              these regulations?
825.111  [Reserved].
825.112  Under what kinds of circumstances are employing offices 
              required to grant family or medical leave?
825.113  What do ``spouse'', ``parent'', and ``son or daughter'' mean 
              for purposes of an employee qualifying to take FMLA 
              leave?
825.114  What is a ``serious health condition'' entitling an employee 
              to FMLA leave?
825.115  What does it mean that ``the employee is unable to perform the 
              (functions of the position of the employee''?
825.116  What does it mean that an employee is ``needed to care for'' a 
              family member?
825.117  For an employee seeking intermittent FMLA leave or leave on a 
              reduced leave schedule, what is meant by ``the medical 
              necessity for'' such leave?
825.118  What is a ``health care provider''?

Subpart B--What Leave Is an Employee Entitled To Take Under The Family 
    and Medical Leave Act, as Made Applicable by the Congressional 
                          Accountability Act?

825.200  How much leave may an employee take?
825.201  If leave is taken for the birth of a child, or for placement 
              of a child for adoption or foster care, when must the 
              leave be concluded?
825.202  How much leave may a husband and wife take if they are 
              employed by the same employing office?
825.203  Does FMLA leave have to be taken all at once, or can it be 
              taken in parts?
825.204  May an employing office transfer an employee to an 
              ``alternative position'' in order to accommodate 
              intermittent leave or a reduced leave schedule?
825.205  How does one determine the amount of leave used where an 
              employee takes leave intermittently or on a reduced leave 
              schedule?
825.206  May an employing office deduct hourly amounts from an 
              employee's salary, when providing unpaid leave under 
              FMLA, as made applicable by the CAA, without affecting 
              the employee's qualification for exemption as an 
              executive, administrative, or professional employee, or 
              when utilizing the fluctuating workweek method for 
              payment of overtime, under the Fair Labor Standards Act?
825.207  Is FMLA leave paid or unpaid?
825.208  Under what circumstances may an employing office designate 
              leave, paid or unpaid, as FMLA leave and, as a result, 
              enable leave to be counted against the employee's total 
              FMLA leave entitlement?
825.209  Is an employee entitled to benefits while using FMLA leave?
825.210  How may employees on FMLA leave pay their share of group 
              health benefit premiums?
825.211  What special health benefits maintenance rules apply to multi-
              employer health plans?
825.212  What are the consequences of an employee's failure to make 
              timely health plan premium payments?
825.213  May an employing office recover costs it incurred for 
              maintaining ``group health plan'' or other non-health 
              benefits coverage during FMLA leave?
825.214  What are an employee's rights on returning to work from FMLA 
              leave?
825.215  What is an equivalent position?
825.216  Are there any limitations on an employing office's obligation 
              to reinstate an employee?
825.217  What is a ``key employee''?
825.218  What does ``substantial and grievous economic injury'' mean?
825.219  What are the rights of a key employee?
825.220  How are employees protected who request leave or otherwise 
              assert FMLA rights?

Subpart C--How Do Employees Learn of Their Rights and Obligations under 
  the FMLA, as Made Applicable by the CAA, and What Can an Employing 
                     Office Require of an Employee?

825.300  [Reserved].
825.301  What notices to employees are required of employing offices 
              under the FMLA as made applicable by the CAA?
825.302  What notice does an employee have to give an employing office 
              when the need for FMLA leave is foreseeable?
825.303  What are the requirements for an employee to furnish notice to 
              an employing office where the need for FMLA leave is not 
              foreseeable?
825.304  What recourse do employing offices have if employees fail to 
              provide the required notice?

[[Page S3960]]

825.305  When must an employee provide medical certification to support 
              FMLA leave?
825.306  How much information may be required in medical certifications 
              of a serious health condition?
825.307  What may an employing office do if it questions the adequacy 
              of a medical certification?
825.308  Under what circumstances may an employing office request 
              subsequent recertifications of medical conditions?
825.309  What notice may an employing office require regarding an 
              employee's intent to return to work?
825.310  Under what circumstances may an employing office require that 
              an employee submit a medical certification that the 
              employee is able (or unable) to return to work (i.e., a 
              ``fitness-for-duty'' report)?
825.311  What happens if an employee fails to satisfy the medical 
              certification and/or recertification requirements?
825.312  Under what circumstances may an employing office refuse to 
              provide FMLA leave or reinstatement to eligible 
              employees?

      Subpart D--What Enforcement Mechanisms Does the CAA Provide?

825.400  What can employees do who believe that their rights under the 
              FMLA as made applicable by the CAA have been violated?
825.401--825.404  [Reserved].

                         Subpart E--[Reserved]

      Subpart F--What Special Rules Apply to Employees of Schools?

825.600  To whom do the special rules apply?
825.601  What limitations apply to the taking of intermittent leave or 
              leave on a reduced leave schedule?
825.602  What limitations apply to the taking of leave near the end of 
              an academic term?
825.603  Is all leave taken during ``periods of a particular duration'' 
              counted against the FMLA leave entitlement?
825.604  What special rules apply to restoration to ``an equivalent 
              position''?

     Subpart G--How Do Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements Affect Employee Rights Under the FMLA 
                     as Made Applicable by the CAA?

825.700  What if an employing office provides more generous benefits 
              than required by FMLA as Made Applicable by the CAA?
825.701  [Reserved].
825.702  How does FMLA affect anti-discrimination laws as applied by 
              section 201 of the CAA?

                         Subpart H--Definitions

825.800  Definitions.
Appendix A to Part 825--[Reserved].
Appendix B to Part 825--Certification of Physician or Practitioner.
Appendix C to Part 825--[Reserved].
Appendix D to Part 825--Prototype Notice: Employing Office Response to 
              Employee Request for Family and Medical Leave.
Appendix E to Part 825--[Reserved].

                   PART 825--FAMILY AND MEDICAL LEAVE

     Sec. 825.1  Purpose and scope

       (a) Section 202 of the Congressional Accountability Act 
     (CAA) (2 U.S.C. 1312) applies the rights and protections of 
     sections 101 through 105 of the Family and Medical Leave Act 
     of 1993 (FMLA) (29 U.S.C. 2611-2615) to covered employees. 
     (The term ``covered employee'' is defined in section 101(3) 
     of the CAA (2 U.S.C. 1301(3)). See Sec. 825.800 of these 
     regulations for that definition.) The purpose of this part is 
     to set forth the regulations to carry out the provisions of 
     section 202 of the CAA.
       (b) These regulations are issued by the Board of Directors, 
     Office of Compliance, pursuant to sections 202(d) and 304 of 
     the CAA, which direct the Board to promulgate regulations 
     implementing section 202 that are ``the same as substantive 
     regulations promulgated by the Secretary of Labor to 
     implement the statutory provisions referred to in subsection 
     (a) [of section 202 of the CAA] except insofar as the Board 
     may determine, for good cause shown . . . that a modification 
     of such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section''. The regulations issued by the Board herein are on 
     all matters for which section 202 of the CAA requires 
     regulations to be issued. Specifically, it is the Board's 
     considered judgment, based on the information available to it 
     at the time of the promulgation of these regulations, that, 
     with the exception of regulations adopted and set forth 
     herein, there are no other ``substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     section 202 of the CAA]''.
       (c) In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Secretary. Such changes are intended to 
     make the provisions adopted accord more naturally to 
     situations in the legislative branch. However, by making 
     these changes, the Board does not intend a substantive 
     difference between these regulations and those of the 
     Secretary from which they are derived. Moreover, such 
     changes, in and of themselves, are not intended to constitute 
     an interpretation of the regulation or of the statutory 
     provisions of the CAA upon which they are based.

     Sec. 825.2  [Reserved]

 Subpart A--What is the Family and Medical Leave Act, and to Whom Does 
          it Apply under the Congressional Accountability Act?

     Sec. 825.100  What is the Family and Medical Leave Act?

       (a) The Family and Medical Leave Act of 1993 (FMLA), as 
     made applicable by the Congressional Accountability Act 
     (CAA), allows ``eligible'' employees of an employing office 
     to take job-protected, unpaid leave, or to substitute 
     appropriate paid leave if the employee has earned or accrued 
     it, for up to a total of 12 workweeks in any 12 months 
     because of the birth of a child and to care for the newborn 
     child, because of the placement of a child with the employee 
     for adoption or foster care, because the employee is needed 
     to care for a family member (child, spouse, or parent) with a 
     serious health condition, or because the employee's own 
     serious health condition makes the employee unable to perform 
     the functions of his or her job (see Sec. 825.306(b)(4)). In 
     certain cases, this leave may be taken on an intermittent 
     basis rather than all at once, or the employee may work a 
     part-time schedule.
       (b) An employee on FMLA leave is also entitled to have 
     health benefits maintained while on leave as if the employee 
     had continued to work instead of taking the leave. If an 
     employee was paying all or part of the premium payments prior 
     to leave, the employee would continue to pay his or her share 
     during the leave period. The employing office or a disbursing 
     or other financial office of the Senate may recover its share 
     only if the employee does not return to work for a reason 
     other than the serious health condition of the employee or 
     the employee's immediate family member, or another reason 
     beyond the employee's control.
       (c) An employee generally has a right to return to the same 
     position or an equivalent position with equivalent pay, 
     benefits and working conditions at the conclusion of the 
     leave. The taking of FMLA leave cannot result in the loss of 
     any benefit that accrued prior to the start of the leave.
       (d) The employing office has a right to 30 days advance 
     notice from the employee where practicable. In addition, the 
     employing office may require an employee to submit 
     certification from a health care provider to substantiate 
     that the leave is due to the serious health condition of the 
     employee or the employee's immediate family member. Failure 
     to comply with these requirements may result in a delay in 
     the start of FMLA leave. Pursuant to a uniformly applied 
     policy, the employing office may also require that an 
     employee present a certification of fitness to return to work 
     when the absence was caused by the employee's serious health 
     condition (see Sec. 825.311(c)). The employing office may 
     delay restoring the employee to employment without such 
     certificate relating to the health condition which caused the 
     employee's absence.

     Sec. 825.101  What is the purpose of the FMLA?

       (a) FMLA is intended to allow employees to balance their 
     work and family life by taking reasonable unpaid leave for 
     medical reasons, for the birth or adoption of a child, and 
     for the care of a child, spouse, or parent who has a serious 
     health condition. The FMLA is intended to balance the demands 
     of the workplace with the needs of families, to promote the 
     stability and economic security of families, and to promote 
     national interests in preserving family integrity. It was 
     intended that the FMLA accomplish these purposes in a manner 
     that accommodates the legitimate interests of employers, and 
     in a manner consistent with the Equal Protection Clause of 
     the Fourteenth Amendment in minimizing the potential for 
     employment discrimination on the basis of sex, while 
     promoting equal employment opportunity for men and women.
       (b) The enactment of FMLA was predicated on two fundamental 
     concerns ``the needs of the American workforce, and the 
     development of high-performance organizations''. 
     Increasingly, America's children and elderly are dependent 
     upon family members who must spend long hours at work. When a 
     family emergency arises, requiring workers to attend to 
     seriously-ill children or parents, or to newly-born or 
     adopted infants, or even to their own serious illness, 
     workers need reassurance that they will not be asked to 
     choose between continuing their employment, and meeting their 
     personal and family obligations or tending to vital needs at 
     home.
       (c) The FMLA is both intended and expected to benefit 
     employers as well as their employees. A direct correlation 
     exists between stability in the family and productivity in 
     the workplace. FMLA will encourage the development of high-
     performance organizations. When workers can count on durable 
     links to their workplace they are able to make their own full 
     commitments to their jobs. The record of hearings on family 
     and medical leave indicate the powerful productive advantages 
     of stable workplace relationships, and the comparatively 
     small costs of guaranteeing that those relationships will not 
     be dissolved while workers attend to

[[Page S3961]]

     pressing family health obligations or their own serious 
     illness.

     Sec. 825.102  When are the FMLA and the CAA effective for 
       covered employees and employing offices?

       (a) The rights and protection of sections 101 through 105 
     of the FMLA have applied to certain Senate employees and 
     certain employing offices of the Senate since August 5, 1993 
     (see section 501 of FMLA).
       (b) The rights and protection of sections 101 through 105 
     of the FMLA have applied to any employee in an employment 
     position and any employment authority of the House of 
     Representatives since August 5, 1993 (see section 502 of 
     FMLA).
       (c) The rights and protections of sections 101 through 105 
     of the FMLA have applied to certain employing offices and 
     covered employees other than those referred to in paragraphs 
     (a) and (b) of this section for certain periods since August 
     5, 1993 (see, e.g., title V of the FMLA, sections 501 and 
     502).
       (d) The provisions of section 202 of the CAA that apply 
     rights and protections of the FMLA to covered employees are 
     effective on January 23, 1996.
       (e) The period prior to the effective date of the 
     application of FMLA rights and protections under the CAA must 
     be considered in determining employee eligibility.

     Sec. 825.103  How does the FMLA, as made applicable by the 
       CAA, affect leave in progress on, or taken before, the 
       effective date of the CAA?

       (a) An eligible employee's right to take FMLA leave began 
     on the date that the rights and protections of the FMLA first 
     went into effect for the employing office and employee (see 
     Sec. 825.102(a)). Any leave taken prior to the date on which 
     the rights and protections of the FMLA first became effective 
     for the employing office from which the leave was taken may 
     not be counted for purposes of the FMLA as made applicable by 
     the CAA. If leave qualifying as FMLA leave was underway prior 
     to the effective date of the FMLA for the employing office 
     from which the leave was taken and continued after the FMLA's 
     effective date for that office, only that portion of leave 
     taken on or after the FMLA's effective date may be counted 
     against the employee's leave entitlement under the FMLA, as 
     made applicable by the CAA.
       (b) If an employing office-approved leave is underway when 
     the application of the FMLA by the CAA takes effect, no 
     further notice would be required of the employee unless the 
     employee requests an extension of the leave. For leave which 
     commenced on the effective date or shortly thereafter, such 
     notice must have been given which was practicable, 
     considering the foreseeability of the need for leave and the 
     effective date.
       (c) Starting on January 23, 1996, an employee is entitled 
     to FMLA leave under these regulations if the reason for the 
     leave is qualifying under the FMLA, as made applicable by the 
     CAA, even if the event occasioning the need for leave (e.g., 
     the birth of a child) occurred before such date (so long as 
     any other requirements are satisfied).

     Sec. 825.104  What employing offices are covered by the FMLA, 
       as made applicable by the CAA?

       (a) The FMLA, as made applicable by the CAA, covers all 
     employing offices. As used in the CAA, the term ``employing 
     office'' means--
       (1) the personal office of a Member of the House of 
     Representatives or of a Senator;
       (2) a committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       (4) the Capitol Guide Board, the Capitol Police Board, the 
     Congressional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment.
       (b) [Reserved]
       (c) Separate entities will be deemed to be parts of a 
     single employer for purposes of the FMLA, as made applicable 
     by the CAA, if they meet the ``integrated employer'' test. A 
     determination of whether or not separate entities are an 
     integrated employer is not determined by the application of 
     any single criterion, but rather the entire relationship is 
     to be reviewed in its totality. Factors considered in 
     determining whether two or more entities are an integrated 
     employer include:
       (i) Common management;
       (ii) Interrelation between operations;
       (iii) Centralized control of labor relations; and
       (iv) Degree of common financial control.

     Sec. 825.105  [Reserved]

     Sec. 825.106  How is ``joint employment'' treated under the 
       FMLA as made applicable by the CAA?

       (a) Where two or more employing offices exercise some 
     control over the work or working conditions of the employee, 
     the employing offices may be joint employers under FMLA, as 
     made applicable by the CAA. Where the employee performs work 
     which simultaneously benefits two or more employing offices, 
     or works for two or more employing offices at different times 
     during the workweek, a joint employment relationship 
     generally will be considered to exist in situations such as:
       (1) Where there is an arrangement between employing offices 
     to share an employee's services or to interchange employees;
       (2) Where one employing office acts directly or indirectly 
     in the interest of the other employing office in relation to 
     the employee; or
       (3) Where the employing offices are not completely 
     disassociated with respect to the employee's employment and 
     may be deemed to share control of the employee, directly or 
     indirectly, because one employing office controls, is 
     controlled by, or is under common control with the other 
     employing office.
       (b) A determination of whether or not a joint employment 
     relationship exists is not determined by the application of 
     any single criterion, but rather the entire relationship is 
     to be viewed in its totality. For example, joint employment 
     will ordinarily be found to exist when--
       (1) an employee, who is employed by an employing office 
     other than the personal office of a Member of the House of 
     Representatives or of a Senator, is under the actual 
     direction and control of the Member of the House of 
     Representatives or Senator; or
       (2) two or more employing offices employ an individual to 
     work on common issues or other matters for both or all of 
     them.
       (c) When employing offices employ a covered employee 
     jointly, they may designate one of themselves to be the 
     primary employing office, and the other or others to be the 
     secondary employing office(s). Such a designation shall be 
     made by written notice to the covered employee.
       (d) If an employing office is designated a primary 
     employing office pursuant to paragraph (c) of this section, 
     only that employing office is responsible for giving required 
     notices to the covered employee, providing FMLA leave, and 
     maintenance of health benefits. Job restoration is the 
     primary responsibility of the primary employing office, and 
     the secondary employing office(s) may, subject to the 
     limitations in Sec. 825.216, be responsible for accepting the 
     employee returning from FMLA leave.
       (e) If employing offices employ an employee jointly, but 
     fail to designate a primary employing office pursuant to 
     paragraph (c) of this section, then all of these employing 
     offices shall be jointly and severally liable for giving 
     required notices to the employee, for providing FMLA leave, 
     for assuring that health benefits are maintained, and for job 
     restoration. The employee may give notice of need for FMLA 
     leave, as described in Sec. Sec.  825.302 and 825.303, to 
     whichever of these employing offices the employee chooses. If 
     the employee makes a written request for restoration to one 
     of these employing offices, that employing office shall be 
     primarily responsible for job restoration, and the other 
     employing office(s) may, subject to the limitations in 
     Sec. 825.216, be responsible for accepting the employee 
     returning from FMLA leave.

     Sec. 825.107  [Reserved]

     Sec. 825.108  [Reserved]

     Sec. 825.109  [Reserved]

     Sec. 825.110  Which employees are ``eligible'' to take FMLA 
       leave under these regulations?

       (a) An ``eligible employee'' under these regulations means 
     a covered employee who has been employed in any employing 
     office for 12 months and for at least 1,250 hours of 
     employment during the previous 12 months.
       (b) The 12 months an employee must have been employed by 
     any employing office need not be consecutive months. If an 
     employee worked for two or more employing offices 
     sequentially, the time worked will be aggregated to determine 
     whether it equals 12 months. If an employee is maintained on 
     the payroll for any part of a week, including any periods of 
     paid or unpaid leave (sick, vacation) during which other 
     benefits or compensation are provided by the employer (e.g., 
     workers' compensation, group health plan benefits, etc.), the 
     week counts as a week of employment. For purposes of 
     determining whether intermittent/occasional/casual employment 
     qualifies as ``at least 12 months'', 52 weeks is deemed to be 
     equal to 12 months.
       (c) If an employee was employed by two or more employing 
     offices, either sequentially or concurrently, the hours of 
     service will be aggregated to determine whether the minimum 
     of 1,250 hours has been reached. Whether an employee has 
     worked the minimum 1,250 hours of service is determined 
     according to the principles established under the Fair Labor 
     Standards Act (FLSA), as applied by section 203 of the CAA (2 
     U.S.C. 1313), for determining compensable hours of work. The 
     determining factor is the number of hours an employee has 
     worked for one or more employing offices. The determination 
     is not limited by methods of record-keeping, or by 
     compensation agreements that do not accurately reflect all of 
     the hours an employee has worked for or been in service to 
     the employing office. Any accurate accounting of actual hours 
     worked may be used. For this purpose, full-time teachers (see 
     Sec. 825.800 for definition) of an elementary or secondary 
     school system, or institution of higher education, or other 
     educational establishment or institution are deemed to meet 
     the 1,250 hour test. An employing office must be able to 
     clearly demonstrate that such an employee did not work 1,250 
     hours during the previous 12 months in order to claim that 
     the employee is not ``eligible'' for FMLA leave.
       (d) The determinations of whether an employee has worked 
     for any employing office for at least 1,250 hours in the 
     previous 12 months and has been employed by any employing 
     office for a total of at least 12

[[Page S3962]]

     months must be made as of the date leave commences. The 
     ``previous 12 months'' means the 12 months immediately 
     preceding the commencement of the leave. If an employee 
     notifies the employing office of need for FMLA leave before 
     the employee meets these eligibility criteria, the employing 
     office must either confirm the employee's eligibility based 
     upon a projection that the employee will be eligible on the 
     date leave would commence or must advise the employee when 
     the eligibility requirement is met. If the employing office 
     confirms eligibility at the time the notice for leave is 
     received, the employing office may not subsequently challenge 
     the employee's eligibility. In the latter case, if the 
     employing office does not advise the employee whether the 
     employee is eligible as soon as practicable (i.e., two 
     business days absent extenuating circumstances) after the 
     date employee eligibility is determined, the employee will 
     have satisfied the notice requirements and the notice of 
     leave is considered current and outstanding until the 
     employing office does advise. If the employing office fails 
     to advise the employee whether the employee is eligible prior 
     to the date the requested leave is to commence, the employee 
     will be deemed eligible. The employing office may not, then, 
     deny the leave. Where the employee does not give notice of 
     the need for leave more than two business days prior to 
     commencing leave, the employee will be deemed to be eligible 
     if the employing office fails to advise the employee that the 
     employee is not eligible within two business days of 
     receiving the employee's notice.
       (e) The period prior to the effective date of the 
     application of FMLA rights and protections under the CAA must 
     be considered in determining employee's eligibility.
       (f) [Reserved]

     Sec. 825.111  [Reserved]

     Sec. 825.112  Under what kinds of circumstances are employing 
       offices required to grant family or medical leave?

       (a) Employing offices are required to grant leave to 
     eligible employees:
       (1) For birth of a son or daughter, and to care for the 
     newborn child;
       (2) For placement with the employee of a son or daughter 
     for adoption or foster care;
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition; and
       (4) Because of a serious health condition that makes the 
     employee unable to perform the functions of the employee's 
     job.
       (b) The right to take leave under FMLA as made applicable 
     by the CAA applies equally to male and female employees. A 
     father, as well as a mother, can take family leave for the 
     birth, placement for adoption or foster care of a child.
       (c) Circumstances may require that FMLA leave begin before 
     the actual date of birth of a child. An expectant mother may 
     take FMLA leave pursuant to paragraph (a)(4) of this section 
     before the birth of the child for prenatal care or if her 
     condition makes her unable to work.
       (d) Employing offices are required to grant FMLA leave 
     pursuant to paragraph (a)(2) of this section before the 
     actual placement or adoption of a child if an absence from 
     work is required for the placement for adoption or foster 
     care to proceed. For example, the employee may be required to 
     attend counseling sessions, appear in court, consult with his 
     or her attorney or the doctor(s) representing the birth 
     parent, or submit to a physical examination. The source of an 
     adopted child (e.g., whether from a licensed placement agency 
     or otherwise) is not a factor in determining eligibility for 
     leave for this purpose.
       (e) Foster care is 24-hour care for children in 
     substitution for, and away from, their parents or guardian. 
     Such placement is made by or with the agreement of the State 
     as a result of a voluntary agreement between the parent or 
     guardian that the child be removed from the home, or pursuant 
     to a judicial determination of the necessity for foster care, 
     and involves agreement between the State and foster family 
     that the foster family will take care of the child. Although 
     foster care may be with relatives of the child, State action 
     is involved in the removal of the child from parental 
     custody.
       (f) In situations where the employer/employee relationship 
     has been interrupted, such as an employee who has been on 
     layoff, the employee must be recalled or otherwise be re-
     employed before being eligible for FMLA leave. Under such 
     circumstances, an eligible employee is immediately entitled 
     to further FMLA leave for a qualifying reason.
       (g) FMLA leave is available for treatment for substance 
     abuse provided the conditions of Sec. 825.114 are met. 
     However, treatment for substance abuse does not prevent an 
     employing office from taking employment action against an 
     employee. The employing office may not take action against 
     the employee because the employee has exercised his or her 
     right to take FMLA leave for treatment. However, if the 
     employing office has an established policy, applied in a non-
     discriminatory manner that has been communicated to all 
     employees, that provides under certain circumstances an 
     employee may be terminated for substance abuse, pursuant to 
     that policy the employee may be terminated whether or not the 
     employee is presently taking FMLA leave. An employee may also 
     take FMLA leave to care for an immediate family member who is 
     receiving treatment for substance abuse. The employing office 
     may not take action against an employee who is providing care 
     for an immediate family member receiving treatment for 
     substance abuse.

     Sec. 825.113  What do ``spouse'', ``parent'', and ``son or 
       daughter'' mean for purposes of an employee qualifying to 
       take FMLA leave?

       (a) Spouse means a husband or wife as defined or recognized 
     under State law for purposes of marriage in the State where 
     the employee resides, including common law marriage in States 
     where it is recognized.
       (b) Parent means a biological parent or an individual who 
     stands or stood in loco parentis to an employee when the 
     employee was a son or daughter as defined in (c) below. This 
     term does not include parents ``in law''.
       (c) Son or daughter means a biological, adopted, or foster 
     child, a stepchild, a legal ward, or a child of a person 
     standing in loco parentis, who is either under age 18, or age 
     18 or older and ``incapable of self-care because of a mental 
     or physical disability''.
       (1) ``Incapable of self-care'' means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in three or more of the ``activities of daily 
     living'' (ADLs) or ``instrumental activities of daily 
     living'' (IADLs). Activities of daily living include adaptive 
     activities such as caring appropriately for one's grooming 
     and hygiene, bathing, dressing and eating. Instrumental 
     activities of daily living include cooking, cleaning, 
     shopping, taking public transportation, paying bills, 
     maintaining a residence, using telephones and directories, 
     using a post office, etc.
       (2) ``Physical or mental disability'' means a physical or 
     mental impairment that substantially limits one or more of 
     the major life activities of an individual. See the Americans 
     with Disabilities Act (ADA), as made applicable by section 
     201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)).
       (3) Persons who are ``in loco parentis'' include those with 
     day-to-day responsibilities to care for and financially 
     support a child or, in the case of an employee, who had such 
     responsibility for the employee when the employee was a 
     child. A biological or legal relationship is not necessary.
       (d) For purposes of confirmation of family relationship, 
     the employing office may require the employee giving notice 
     of the need for leave to provide reasonable documentation or 
     statement of family relationship. This documentation may take 
     the form of a simple statement from the employee, or a 
     child's birth certificate, a court document, etc. The 
     employing office is entitled to examine documentation such as 
     a birth certificate, etc., but the employee is entitled to 
     the return of the official document submitted for this 
     purpose.

     Sec. 825.114  What is a ``serious health condition'' 
       entitling an employee to FMLA leave?

       (a) For purposes of FMLA, ``serious health condition'' 
     entitling an employee to FMLA leave means an illness, injury, 
     impairment, or physical or mental condition that involves:
       (1) Inpatient care (i.e., an overnight stay) in a hospital, 
     hospice, or residential medical care facility, including any 
     period of incapacity (for purposes of this section, defined 
     to mean inability to work, attend school or perform other 
     regular daily activities due to the serious health condition, 
     treatment therefor, or recovery therefrom), or any subsequent 
     treatment in connection with such inpatient care; or
       (2) Continuing treatment by a health care provider. A 
     serious health condition involving continuing treatment by a 
     health care provider includes any one or more of the 
     following:
       (i) A period of incapacity (i.e., inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefor, or recovery 
     therefrom) of more than three consecutive calendar days, and 
     any subsequent treatment or period of incapacity relating to 
     the same condition, that also involves:
       (A) Treatment two or more times by a health care provider, 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider, or by a provider of health care 
     services (e.g., physical therapist) under orders of, or on 
     referral by, a health care provider; or
       (B) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       (ii) Any period of incapacity due to pregnancy, or for 
     prenatal care.
       (iii) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which:
       (A) Requires periodic visits for treatment by a health care 
     provider, or by a nurse or physician's assistant under direct 
     supervision of a health care provider;
       (B) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (C) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       (iv) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       (v) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider

[[Page S3963]]

     or by a provider of health care services under orders of, or 
     on referral by, a health care provider, either for 
     restorative surgery after an accident or other injury, or for 
     a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       (b) Treatment for purposes of paragraph (a) of this section 
     includes (but is not limited to) examinations to determine if 
     a serious health condition exists and evaluations of the 
     condition. Treatment does not include routine physical 
     examinations, eye examinations, or dental examinations. Under 
     paragraph (a)(2)(i)(B), a regimen of continuing treatment 
     includes, for example, a course of prescription medication 
     (e.g., an antibiotic) or therapy requiring special equipment 
     to resolve or alleviate the health condition (e.g., oxygen). 
     A regimen of continuing treatment that includes the taking of 
     over-the-counter medications such as aspirin, antihistamines, 
     or salves; or bed-rest, drinking fluids, exercise, and other 
     similar activities that can be initiated without a visit to a 
     health care provider, is not, by itself, sufficient to 
     constitute a regimen of continuing treatment for purposes of 
     FMLA leave.
       (c) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not ``serious health conditions'' unless 
     inpatient hospital care is required or unless complications 
     develop. Ordinarily, unless complications arise, the common 
     cold, the flu, ear aches, upset stomach, minor ulcers, 
     headaches other than migraine, routine dental or orthodontia 
     problems, periodontal disease, etc., are examples of 
     conditions that do not meet the definition of a serious 
     health condition and do not qualify for FMLA leave. 
     Restorative dental or plastic surgery after an injury or 
     removal of cancerous growths are serious health conditions 
     provided all the other conditions of this regulation are met. 
     Mental illness resulting from stress or allergies may be 
     serious health conditions, but only if all the conditions of 
     this section are met.
       (d) Substance abuse may be a serious health condition if 
     the conditions of this section are met. However, FMLA leave 
     may only be taken for treatment for substance abuse by a 
     health care provider or by a provider of health care services 
     on referral by a health care provider. On the other hand, 
     absence because of the employee's use of the substance, 
     rather than for treatment, does not qualify for FMLA leave.
       (e) Absences attributable to incapacity under paragraphs 
     (a)(2) (ii) or (iii) qualify for FMLA leave even though the 
     employee or the immediate family member does not receive 
     treatment from a health care provider during the absence, and 
     even if the absence does not last more than three days. For 
     example, an employee with asthma may be unable to report for 
     work due to the onset of an asthma attack or because the 
     employee's health care provider has advised the employee to 
     stay home when the pollen count exceeds a certain level. An 
     employee who is pregnant may be unable to report to work 
     because of severe morning sickness.

     Sec. 825.115  What does it mean that ``the employee is unable 
       to perform the functions of the position of the employee''?

       An employee is ``unable to perform the functions of the 
     position'' where the health care provider finds that the 
     employee is unable to work at all or is unable to perform any 
     one of the essential functions of the employee's position 
     within the meaning of the Americans with Disabilities Act 
     (ADA), as made applicable by section 201(a)(3) of the CAA (2 
     U.S.C. 1311(a)(3)). An employee who must be absent from work 
     to receive medical treatment for a serious health condition 
     is considered to be unable to perform the essential functions 
     of the position during the absence for treatment. An 
     employing office has the option, in requiring certification 
     from a health care provider, to provide a statement of the 
     essential functions of the employee's position for the health 
     care provider to review. For purposes of FMLA, the essential 
     functions of the employee's position are to be determined 
     with reference to the position the employee held at the time 
     notice is given or leave commenced, whichever is earlier.

     Sec. 825.116  What does it mean that an employee is ``needed 
       to care for'' a family member?

       (a) The medical certification provision that an employee is 
     ``needed to care for'' a family member encompasses both 
     physical and psychological care. It includes situations 
     where, for example, because of a serious health condition, 
     the family member is unable to care for his or her own basic 
     medical, hygienic, or nutritional needs or safety, or is 
     unable to transport himself or herself to the doctor, etc. 
     The term also includes providing psychological comfort and 
     reassurance which would be beneficial to a child, spouse or 
     parent with a serious health condition who is receiving 
     inpatient or home care.
       (b) The term also includes situations where the employee 
     may be needed to fill in for others who are caring for the 
     family member, or to make arrangements for changes in care, 
     such as transfer to a nursing home.
       (c) An employee's intermittent leave or a reduced leave 
     schedule necessary to care for a family member includes not 
     only a situation where the family member's condition itself 
     is intermittent, but also where the employee is only needed 
     intermittently ``such as where other care is normally 
     available, or care responsibilities are shared with another 
     member of the family or a third party.

     Sec. 825.117  For an employee seeking intermittent FMLA leave 
       or leave on a reduced leave schedule, what is meant by 
       ``the medical necessity for'' such leave?

       For intermittent leave or leave on a reduced leave 
     schedule, there must be a medical need for leave (as 
     distinguished from voluntary treatments and procedures) and 
     it must be that such medical need can be best accommodated 
     through an intermittent or reduced leave schedule. The 
     treatment regimen and other information described in the 
     certification of a serious health condition (see 
     Sec. 825.306) meets the requirement for certification of the 
     medical necessity of intermittent leave or leave on a reduced 
     leave schedule. Employees needing intermittent FMLA leave or 
     leave on a reduced leave schedule must attempt to schedule 
     their leave so as not to disrupt the employing office's 
     operations. In addition, an employing office may assign an 
     employee to an alternative position with equivalent pay and 
     benefits that better accommodates the employee's intermittent 
     or reduced leave schedule.

     Sec. 825.118  What is a ``health care provider''?

       (a)(1) The term ``health care provider'' means:
       (i) A doctor of medicine or osteopathy who is authorized to 
     practice medicine or surgery (as appropriate) by the State in 
     which the doctor practices; or
       (ii) Any other person determined by the Office of 
     Compliance to be capable of providing health care services.
       (2) In making a determination referred to in subparagraph 
     (1)(ii), and absent good cause shown to do otherwise, the 
     Office of Compliance will follow any determination made by 
     the Secretary of Labor (under section 101(6)(B) of the FMLA, 
     29 U.S.C. 2611(6)(B)) that a person is capable of providing 
     health care services, provided the Secretary's determination 
     was not made at the request of a person who was then a 
     covered employee.
       (b) Others ``capable of providing health care services'' 
     include only:
       (1) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       (2) Nurse practitioners, nurse-midwives and clinical social 
     workers who are authorized to practice under State law and 
     who are performing within the scope of their practice as 
     defined under State law;
       (3) Christian Science practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts. Where 
     an employee or family member is receiving treatment from a 
     Christian Science practitioner, an employee may not object to 
     any requirement from an employing office that the employee or 
     family member submit to examination (though not treatment) to 
     obtain a second or third certification from a health care 
     provider other than a Christian Science practitioner except 
     as otherwise provided under applicable State or local law or 
     collective bargaining agreement.
       (4) Any health care provider from whom an employing office 
     or the employing office's group health plan's benefits 
     manager will accept certification of the existence of a 
     serious health condition to substantiate a claim for 
     benefits; and
       (5) A health care provider listed above who practices in a 
     country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       (c) The phrase ``authorized to practice in the State'' as 
     used in this section means that the provider must be 
     authorized to diagnose and treat physical or mental health 
     conditions without supervision by a doctor or other health 
     care provider.

Subpart B--What Leave Is an Employee Entitled To Take Under the Family 
    and Medical Leave Act, as Made Applicable by the Congressional 
                          Accountability Act?

     Sec. 825.200  How much leave may an employee take?

       (a) An eligible employee's FMLA leave entitlement is 
     limited to a total of 12 workweeks of leave during any 12-
     month period for any one, or more, of the following reasons:
       (1) The birth of the employee's son or daughter, and to 
     care for the newborn child;
       (2) The placement with the employee of a son or daughter 
     for adoption or foster care, and to care for the newly placed 
     child;
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition; and
       (4) Because of a serious health condition that makes the 
     employee unable to perform one or more of the essential 
     functions of his or her job.
       (b) An employing office is permitted to choose any one of 
     the following methods for determining the ``12-month period'' 
     in which the 12 weeks of leave entitlement occurs:
       (1) The calendar year;
       (2) Any fixed 12-month ``leave year'', such as a fiscal 
     year or a year starting on an employee's ``anniversary'' 
     date;

[[Page S3964]]

       (3) The 12-month period measured forward from the date any 
     employee's first FMLA leave begins; or
       (4) A ``rolling'' 12-month period measured backward from 
     the date an employee uses any FMLA leave (except that such 
     measure may not extend back before the date on which the 
     application of FMLA rights and protections first becomes 
     effective for the employing office; see Sec. 825.102).
       (c) Under methods in paragraphs (b)(1) and (b)(2) of this 
     section an employee would be entitled to up to 12 weeks of 
     FMLA leave at any time in the fixed 12-month period selected. 
     An employee could, therefore, take 12 weeks of leave at the 
     end of the year and 12 weeks at the beginning of the 
     following year. Under the method in paragraph (b)(3) of this 
     section, an employee would be entitled to 12 weeks of leave 
     during the year beginning on the first date FMLA leave is 
     taken; the next 12-month period would begin the first time 
     FMLA leave is taken after completion of any previous 12-month 
     period. Under the method in paragraph (b)(4) of this section, 
     the ``rolling'' 12-month period, each time an employee takes 
     FMLA leave the remaining leave entitlement would be any 
     balance of the 12 weeks which has not been used during the 
     immediately preceding 12 months. For example, if an employee 
     has taken eight weeks of leave during the past 12 months, an 
     additional four weeks of leave could be taken. If an employee 
     used four weeks beginning February 1, 1997, four weeks 
     beginning June 1, 1997, and four weeks beginning December 1, 
     1997, the employee would not be entitled to any additional 
     leave until February 1, 1998. However, beginning on February 
     1, 1998, the employee would be entitled to four weeks of 
     leave, on June 1 the employee would be entitled to an 
     additional four weeks, etc.
       (d)(1) Employing offices will be allowed to choose any one 
     of the alternatives in paragraph (b) of this section provided 
     the alternative chosen is applied consistently and uniformly 
     to all employees. An employing office wishing to change to 
     another alternative is required to give at least 60 days 
     notice to all employees, and the transition must take place 
     in such a way that the employees retain the full benefit of 
     12 weeks of leave under whichever method affords the greatest 
     benefit to the employee. Under no circumstances may a new 
     method be implemented in order to avoid the CAA's FMLA leave 
     requirements.
       (2) [Reserved]
       (e) If an employing office fails to select one of the 
     options in paragraph (b) of this section for measuring the 
     12-month period, the option that provides the most beneficial 
     outcome for the employee will be used. The employing office 
     may subsequently select an option only by providing the 60-
     day notice to all employees of the option the employing 
     office intends to implement. During the running of the 60-day 
     period any other employee who needs FMLA leave may use the 
     option providing the most beneficial outcome to that 
     employee. At the conclusion of the 60-day period the 
     employing office may implement the selected option.
       (f) For purposes of determining the amount of leave used by 
     an employee, the fact that a holiday may occur within the 
     week taken as FMLA leave has no effect; the week is counted 
     as a week of FMLA leave. However, if for some reason the 
     employing office's activity has temporarily ceased and 
     employees generally are not expected to report for work for 
     one or more weeks (e.g., a school closing two weeks for the 
     Christmas/New Year holiday or the summer vacation or an 
     employing office closing the office for repairs), the days 
     the employing office's activities have ceased do not count 
     against the employee's FMLA leave entitlement. Methods for 
     determining an employee's 12-week leave entitlement are also 
     described in Sec. 825.205.
       (g)(1) If employing offices jointly employ an employee, and 
     if they designate a primary employer pursuant to 
     Sec. 825.106(c), the primary employer may choose any one of 
     the alternatives in paragraph (b) of this section for 
     measuring the 12-month period, provided that the alternative 
     chosen is applied consistently and uniformly to all employees 
     of the primary employer including the jointly employed 
     employee.
       (2) If employing offices fail to designated a primary 
     employer pursuant to Sec. 825.106(c), an employee jointly 
     employed by the employing offices may, by so notifying one of 
     the employing offices, select that employing office to be the 
     primary employer of the employee for purposes of the 
     application of paragraphs (d) and (e) of this section.

     Sec. 825.201  If leave is taken for the birth of a child, or 
       for placement of a child for adoption or foster care, when 
       must the leave be concluded?

       An employee's entitlement to leave for a birth or placement 
     for adoption or foster care expires at the end of the 12-
     month period beginning on the date of the birth or placement, 
     unless the employing office permits leave to be taken for a 
     longer period. Any such FMLA leave must be concluded within 
     this one-year period.

     Sec. 825.202  How much leave may a husband and wife take if 
       they are employed by the same employing office?

       (a) A husband and wife who are eligible for FMLA leave and 
     are employed by the same employing office may be limited to a 
     combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken--
       (1) for birth of the employee's son or daughter or to care 
     for the child after birth;
       (2) for placement of a son or daughter with the employee 
     for adoption or foster care, or to care for the child after 
     placement; or
       (3) to care for the employee's parent with a serious health 
     condition.
       (b) This limitation on the total weeks of leave applies to 
     leave taken for the reasons specified in paragraph (a) of 
     this section as long as a husband and wife are employed by 
     the ``same employing office''. It would apply, for example, 
     even though the spouses are employed at two different work 
     sites of an employing office. On the other hand, if one 
     spouse is ineligible for FMLA leave, the other spouse would 
     be entitled to a full 12 weeks of FMLA leave.
       (c) Where the husband and wife both use a portion of the 
     total 12-week FMLA leave entitlement for one of the purposes 
     in paragraph (a) of this section, the husband and wife would 
     each be entitled to the difference between the amount he or 
     she has taken individually and 12 weeks for FMLA leave for a 
     purpose other than those contained in paragraph (a) of this 
     section. For example, if each spouse took 6 weeks of leave to 
     care for a healthy, newborn child, each could use an 
     additional 6 weeks due to his or her own serious health 
     condition or to care for a child with a serious health 
     condition.

     Sec. 825.203  Does FMLA leave have to be taken all at once, 
       or can it be taken in parts?

       (a) FMLA leave may be taken ``intermittently or on a 
     reduced leave schedule'' under certain circumstances. 
     Intermittent leave is FMLA leave taken in separate blocks of 
     time due to a single qualifying reason. A reduced leave 
     schedule is a leave schedule that reduces an employee's usual 
     number of working hours per workweek, or hours per workday. A 
     reduced leave schedule is a change in the employee's schedule 
     for a period of time, normally from full-time to part-time.
       (b) When leave is taken after the birth or placement of a 
     child for adoption or foster care, an employee may take leave 
     intermittently or on a reduced leave schedule only if the 
     employing office agrees. Such a schedule reduction might 
     occur, for example, where an employee, with the employing 
     office's agreement, works part-time after the birth of a 
     child, or takes leave in several segments. The employing 
     office's agreement is not required, however, for leave during 
     which the mother has a serious health condition in connection 
     with the birth of her child or if the newborn child has a 
     serious health condition.
       (c) Leave may be taken intermittently or on a reduced leave 
     schedule when medically necessary for planned and/or 
     unanticipated medical treatment of a related serious health 
     condition by or under the supervision of a health care 
     provider, or for recovery from treatment or recovery from a 
     serious health condition. It may also be taken to provide 
     care or psychological comfort to an immediate family member 
     with a serious health condition.
       (1) Intermittent leave may be taken for a serious health 
     condition which requires treatment by a health care provider 
     periodically, rather than for one continuous period of time, 
     and may include leave of periods from an hour or more to 
     several weeks. Examples of intermittent leave would include 
     leave taken on an occasional basis for medical appointments, 
     or leave taken several days at a time spread over a period of 
     six months, such as for chemotherapy. A pregnant employee may 
     take leave intermittently for prenatal examinations or for 
     her own condition, such as for periods of severe morning 
     sickness. An example of an employee taking leave on a reduced 
     leave schedule is an employee who is recovering from a 
     serious health condition and is not strong enough to work a 
     full-time schedule.
       (2) Intermittent or reduced schedule leave may be taken for 
     absences where the employee or family member is incapacitated 
     or unable to perform the essential functions of the position 
     because of a chronic serious health condition even if he or 
     she does not receive treatment by a health care provider.
       (d) There is no limit on the size of an increment of leave 
     when an employee takes intermittent leave or leave on a 
     reduced leave schedule. However, an employing office may 
     limit leave increments to the shortest period of time that 
     the employing office's payroll system uses to account for 
     absences or use of leave, provided it is one hour or less. 
     For example, an employee might take two hours off for a 
     medical appointment, or might work a reduced day of four 
     hours over a period of several weeks while recuperating from 
     an illness. An employee may not be required to take more FMLA 
     leave than necessary to address the circumstance that 
     precipitated the need for the leave, except as provided in 
     Sec. Sec. 825.601 and 825.602.

     Sec. 825.204  May an employing office transfer an employee to 
       an ``alternative position'' in order to accommodate 
       intermittent leave or a reduced leave schedule?

       (a) If an employee needs intermittent leave or leave on a 
     reduced leave schedule that is foreseeable based on planned 
     medical treatment for the employee or a family member, 
     including during a period of recovery from a serious health 
     condition, or if the employing office agrees to permit 
     intermittent or reduced schedule leave for the birth of a 
     child or for placement of a child for adoption or foster 
     care, the employing office may require the employee to 
     transfer temporarily, during the period the intermittent or 
     reduced leave schedule is required, to an available 
     alternative position for which the employee is qualified and 
     which better accommodates recurring periods of leave than 
     does the employee's regular position. See Sec. 825.601 for

[[Page S3965]]

     special rules applicable to instructional employees of 
     schools.
       (b) Transfer to an alternative position may require 
     compliance with any applicable collective bargaining 
     agreement and any applicable law (such as the Americans with 
     Disabilities Act, as made applicable by the CAA). Transfer to 
     an alternative position may include altering an existing job 
     to better accommodate the employee's need for intermittent or 
     reduced leave.
       (c) The alternative position must have equivalent pay and 
     benefits. An alternative position for these purposes does not 
     have to have equivalent duties. The employing office may 
     increase the pay and benefits of an existing alternative 
     position, so as to make them equivalent to the pay and 
     benefits of the employee's regular job. The employing office 
     may also transfer the employee to a part-time job with the 
     same hourly rate of pay and benefits, provided the employee 
     is not required to take more leave than is medically 
     necessary. For example, an employee desiring to take leave in 
     increments of four hours per day could be transferred to a 
     half-time job, or could remain in the employee's same job on 
     a part-time schedule, paying the same hourly rate as the 
     employee's previous job and enjoying the same benefits. The 
     employing office may not eliminate benefits which otherwise 
     would not be provided to part-time employees; however, an 
     employing office may proportionately reduce benefits such as 
     vacation leave where an employing office's normal practice is 
     to base such benefits on the number of hours worked.
       (d) An employing office may not transfer the employee to an 
     alternative position in order to discourage the employee from 
     taking leave or otherwise work a hardship on the employee. 
     For example, a white collar employee may not be assigned to 
     perform laborer's work; an employee working the day shift may 
     not be reassigned to the graveyard shift; an employee working 
     in the headquarters facility may not be reassigned to a 
     branch a significant distance away from the employee's normal 
     job location. Any such attempt on the part of the employing 
     office to make such a transfer will be held to be contrary to 
     the prohibited-acts provisions of the FMLA, as made 
     applicable by the CAA.
       (e) When an employee who is taking leave intermittently or 
     on a reduced leave schedule and has been transferred to an 
     alternative position no longer needs to continue on leave and 
     is able to return to full-time work, the employee must be 
     placed in the same or equivalent job as the job he/she left 
     when the leave commenced. An employee may not be required to 
     take more leave than necessary to address the circumstance 
     that precipitated the need for leave.

     Sec. 825.205  How does one determine the amount of leave used 
       where an employee takes leave intermittently or on a 
       reduced leave schedule?

       (a) If an employee takes leave on an intermittent or 
     reduced leave schedule, only the amount of leave actually 
     taken may be counted toward the 12 weeks of leave to which an 
     employee is entitled. For example, if an employee who 
     normally works five days a week takes off one day, the 
     employee would use \1/5\ of a week of FMLA leave. Similarly, 
     if a full-time employee who normally works 8-hour days works 
     4-hour days under a reduced leave schedule, the employee 
     would use \1/2\ week of FMLA leave each week.
       (b) Where an employee normally works a part-time schedule 
     or variable hours, the amount of leave to which an employee 
     is entitled is determined on a pro rata or proportional basis 
     by comparing the new schedule with the employee's normal 
     schedule. For example, if an employee who normally works 30 
     hours per week works only 20 hours a week under a reduced 
     leave schedule, the employee's ten hours of leave would 
     constitute one-third of a week of FMLA leave for each week 
     the employee works the reduced leave schedule.
       (c) If an employing office has made a permanent or long-
     term change in the employee's schedule (for reasons other 
     than FMLA, and prior to the notice of need for FMLA leave), 
     the hours worked under the new schedule are to be used for 
     making this calculation.
       (d) If an employee's schedule varies from week to week, a 
     weekly average of the hours worked over the 12 weeks prior to 
     the beginning of the leave period would be used for 
     calculating the employee's normal workweek.

     Sec. 825.206  May an employing office deduct hourly amounts 
       from an employee's salary, when providing unpaid leave 
       under FMLA, as made applicable by the CAA, without 
       affecting the employee's qualification for exemption as an 
       executive, administrative, or professional employee, or 
       when utilizing the fluctuating workweek method for payment 
       of overtime, under the Fair Labor Standards Act?

       (a) Leave taken under FMLA, as made applicable by the CAA, 
     may be unpaid. If an employee is otherwise exempt from 
     minimum wage and overtime requirements of the Fair Labor 
     Standards Act (FLSA), as made applicable by the CAA, as a 
     salaried executive, administrative, or professional employee 
     (under regulations issued by the Board, at part 541), 
     providing unpaid FMLA-qualifying leave to such an employee 
     will not cause the employee to lose the FLSA exemption. This 
     means that under regulations currently in effect, where an 
     employee meets the specified duties test, is paid on a salary 
     basis, and is paid a salary of at least the amount specified 
     in the regulations, the employing office may make deductions 
     from the employee's salary for any hours taken as 
     intermittent or reduced FMLA leave within a workweek, without 
     affecting the exempt status of the employee. The fact that an 
     employing office provides FMLA leave, whether paid or unpaid, 
     or maintains any records regarding FMLA leave, will not be 
     relevant to the determination whether an employee is exempt 
     within the meaning of the Board's regulations at part 541.
       (b) For an employee paid in accordance with a fluctuating 
     workweek method of payment for overtime, where permitted by 
     section 203 of the CAA (2 U.S.C. 1313), the employing office, 
     during the period in which intermittent or reduced schedule 
     FMLA leave is scheduled to be taken, may compensate an 
     employee on an hourly basis and pay only for the hours the 
     employee works, including time and one-half the employee's 
     regular rate for overtime hours. The change to payment on an 
     hourly basis would include the entire period during which the 
     employee is taking intermittent leave, including weeks in 
     which no leave is taken. The hourly rate shall be determined 
     by dividing the employee's weekly salary by the employee's 
     normal or average schedule of hours worked during weeks in 
     which FMLA leave is not being taken. If an employing office 
     chooses to follow this exception from the fluctuating 
     workweek method of payment, the employing office must do so 
     uniformly, with respect to all employees paid on a 
     fluctuating workweek basis for whom FMLA leave is taken on an 
     intermittent or reduced leave schedule basis. If an employing 
     office does not elect to convert the employee's compensation 
     to hourly pay, no deduction may be taken for FMLA leave 
     absences. Once the need for intermittent or reduced scheduled 
     leave is over, the employee may be restored to payment on a 
     fluctuating workweek basis.
       (c) This special exception to the ``salary basis'' 
     requirements of the FLSA exemption or fluctuating workweek 
     payment requirements applies only to employees of employing 
     offices who are eligible for FMLA leave, and to leave which 
     qualifies as (one of the four types of) FMLA leave. Hourly or 
     other deductions which are not in accordance with the Board's 
     regulations at part 541 or with a permissible fluctuating 
     workweek method of payment for overtime may not be taken, for 
     example, where the employee has not worked long enough to be 
     eligible for FMLA leave without potentially affecting the 
     employee's eligibility for exemption. Nor may deductions 
     which are not permitted by the Board's regulations at part 
     541 or by a permissible fluctuating workweek method of 
     payment for overtime be taken from such an employee's salary 
     for any leave which does not qualify as FMLA leave, for 
     example, deductions from an employee's pay for leave required 
     under an employing office's policy or practice for a reason 
     which does not qualify as FMLA leave, e.g., leave to care for 
     a grandparent or for a medical condition which does not 
     qualify as a serious health condition; or for leave which is 
     more generous than provided by FMLA as made applicable by the 
     CAA, such as leave in excess of 12 weeks in a year. The 
     employing office may comply with the employing office's own 
     policy/practice under these circumstances and maintain the 
     employee's eligibility for exemption or for the fluctuating 
     workweek method of pay by not taking hourly deductions from 
     the employee's pay, in accordance with FLSA requirements, or 
     may take such deductions, treating the employee as an 
     ``hourly'' employee and pay overtime premium pay for hours 
     worked over 40 in a workweek.

     Sec. 825.207  Is FMLA leave paid or unpaid?

       (a) Generally, FMLA leave is unpaid. However, under the 
     circumstances described in this section, FMLA, as made 
     applicable by the CAA, permits an eligible employee to choose 
     to substitute paid leave for FMLA leave. If an employee does 
     not choose to substitute accrued paid leave, the employing 
     office may require the employee to substitute accrued paid 
     leave for FMLA leave.
       (b) Where an employee has earned or accrued paid vacation, 
     personal or family leave, that paid leave may be substituted 
     for all or part of any (otherwise) unpaid FMLA leave relating 
     to birth, placement of a child for adoption or foster care, 
     or care for a spouse, child or parent who has a serious 
     health condition. The term ``family leave'' as used in FMLA 
     refers to paid leave provided by the employing office 
     covering the particular circumstances for which the employee 
     seeks leave for either the birth of a child and to care for 
     such child, placement of a child for adoption or foster care, 
     or care for a spouse, child or parent with a serious health 
     condition. For example, if the employing office's leave plan 
     allows use of family leave to care for a child but not for a 
     parent, the employing office is not required to allow accrued 
     family leave to be substituted for FMLA leave used to care 
     for a parent.
       (c) Substitution of paid accrued vacation, personal, or 
     medical/sick leave may be made for any (otherwise) unpaid 
     FMLA leave needed to care for a family member or the 
     employee's own serious health condition. Substitution of paid 
     sick/medical leave may be elected to the extent the 
     circumstances meet the employing office's usual requirements 
     for the use of sick/medical leave. An employing office is not 
     required to allow substitution of paid sick or medical leave 
     for unpaid FMLA leave ``in any situation'' where

[[Page S3966]]

     the employing office's uniform policy would not normally 
     allow such paid leave. An employee, therefore, has a right to 
     substitute paid medical/sick leave to care for a seriously 
     ill family member only if the employing office's leave plan 
     allows paid leave to be used for that purpose. Similarly, an 
     employee does not have a right to substitute paid medical/
     sick leave for a serious health condition which is not 
     covered by the employing office's leave plan.
       (d)(1) Disability leave for the birth of a child would be 
     considered FMLA leave for a serious health condition and 
     counted in the 12 weeks of leave permitted under FMLA as made 
     applicable by the CAA. Because the leave pursuant to a 
     temporary disability benefit plan is not unpaid, the 
     provision for substitution of paid leave is inapplicable. 
     However, the employing office may designate the leave as FMLA 
     leave and count the leave as running concurrently for 
     purposes of both the benefit plan and the FMLA leave 
     entitlement. If the requirements to qualify for payments 
     pursuant to the employing office's temporary disability plan 
     are more stringent than those of FMLA as made applicable by 
     the CAA, the employee must meet the more stringent 
     requirements of the plan, or may choose not to meet the 
     requirements of the plan and instead receive no payments from 
     the plan and use unpaid FMLA leave or substitute available 
     accrued paid leave.
       (2) The FMLA as made applicable by the CAA provides that a 
     serious health condition may result from injury to 
     the employee ``on or off'' the job. If the employing 
     office designates the leave as FMLA leave in accordance 
     with Sec. 825.208, the employee's FMLA 12-week leave 
     entitlement may run concurrently with a workers' 
     compensation absence when the injury is one that meets the 
     criteria for a serious health condition. As the workers' 
     compensation absence is not unpaid leave, the provision 
     for substitution of the employee's accrued paid leave is 
     not applicable. However, if the health care provider 
     treating the employee for the workers' compensation injury 
     certifies the employee is able to return to a ``light duty 
     job'' but is unable to return to the same or equivalent 
     job, the employee may decline the employing office's offer 
     of a ``light duty job''. As a result the employee may lose 
     workers' compensation payments, but is entitled to remain 
     on unpaid FMLA leave until the 12-week entitlement is 
     exhausted. As of the date workers' compensation benefits 
     cease, the substitution provision becomes applicable and 
     either the employee may elect or the employing office may 
     require the use of accrued paid leave. See also Sec. Sec.  
     825.210(f), 825.216(d), 825.220(d), 825.307(a)(1) and 
     825.702(d) (1) and (2) regarding the relationship between 
     workers' compensation absences and FMLA leave.
       (e) Paid vacation or personal leave, including leave earned 
     or accrued under plans allowing ``paid time off'', may be 
     substituted, at either the employee's or the employing 
     office's option, for any qualified FMLA leave. No limitations 
     may be placed by the employing office on substitution of paid 
     vacation or personal leave for these purposes.
       (f) If neither the employee nor the employing office elects 
     to substitute paid leave for unpaid FMLA leave under the 
     above conditions and circumstances, the employee will remain 
     entitled to all the paid leave which is earned or accrued 
     under the terms of the employing office's plan.
       (g) If an employee uses paid leave under circumstances 
     which do not qualify as FMLA leave, the leave will not count 
     against the 12 weeks of FMLA leave to which the employee is 
     entitled. For example, paid sick leave used for a medical 
     condition which is not a serious health condition does not 
     count against the 12 weeks of FMLA leave entitlement.
       (h) When an employee or employing office elects to 
     substitute paid leave (of any type) for unpaid FMLA leave 
     under circumstances permitted by these regulations, and the 
     employing office's procedural requirements for taking that 
     kind of leave are less stringent than the requirements of 
     FMLA as made applicable by the CAA (e.g., notice or 
     certification requirements), only the less stringent 
     requirements may be imposed. An employee who complies with an 
     employing office's less stringent leave plan requirements in 
     such cases may not have leave for an FMLA purpose delayed or 
     denied on the grounds that the employee has not complied with 
     stricter requirements of FMLA as made applicable by the CAA. 
     However, where accrued paid vacation or personal leave is 
     substituted for unpaid FMLA leave for a serious health 
     condition, an employee may be required to comply with any 
     less stringent medical certification requirements of the 
     employing office's sick leave program. See 
     Sec. Sec. 825.302(g), 825.305(e) and 825.306(c).
       (i) Compensatory time off, if any is authorized under 
     applicable law, is not a form of accrued paid leave that an 
     employing office may require the employee to substitute for 
     unpaid FMLA leave. The employee may request to use his/her 
     balance of compensatory time for an FMLA reason. If the 
     employing office permits the accrual of compensatory time to 
     be used in compliance with applicable Board regulations, the 
     absence which is paid from the employee's accrued 
     compensatory time ``account'' may not be counted against the 
     employee's FMLA leave entitlement.

     Sec. 825.208 Under what circumstances may an employing office 
       designate leave, paid or unpaid, as FMLA leave and, as a 
       result, enable leave to be counted against the employee's 
       total FMLA leave entitlement?

       (a) In all circumstances, it is the employing office's 
     responsibility to designate leave, paid or unpaid, as FMLA-
     qualifying, and to give notice of the designation to the 
     employee as provided in this section. In the case of 
     intermittent leave or leave on a reduced schedule, only one 
     such notice is required unless the circumstances regarding 
     the leave have changed. The employing office's designation 
     decision must be based only on information received from the 
     employee or the employee's spokesperson (e.g., if the 
     employee is incapacitated, the employee's spouse, adult 
     child, parent, doctor, etc., may provide notice to the 
     employing office of the need to take FMLA leave). In any 
     circumstance where the employing office does not have 
     sufficient information about the reason for an employee's use 
     of paid leave, the employing office should inquire further of 
     the employee or the spokesperson to ascertain whether the 
     paid leave is potentially FMLA-qualifying.
       (1) An employee giving notice of the need for unpaid FMLA 
     leave must explain the reasons for the needed leave so as to 
     allow the employing office to determine that the leave 
     qualifies under the FMLA, as made applicable by the CAA. If 
     the employee fails to explain the reasons, leave may be 
     denied. In many cases, in explaining the reasons for a 
     request to use paid leave, especially when the need for the 
     leave was unexpected or unforeseen, an employee will provide 
     sufficient information for the employing office to designate 
     the paid leave as FMLA leave. An employee using accrued paid 
     leave, especially vacation or personal leave, may in some 
     cases not spontaneously explain the reasons or their plans 
     for using their accrued leave.
       (2) As noted in Sec. 825.302(c), an employee giving notice 
     of the need for unpaid FMLA leave does not need to expressly 
     assert rights under the FMLA as made applicable by the CAA or 
     even mention the FMLA to meet his or her obligation to 
     provide notice, though the employee would need to state a 
     qualifying reason for the needed leave. An employee 
     requesting or notifying the employing office of an intent to 
     use accrued paid leave, even if for a purpose covered by 
     FMLA, would not need to assert such right either. However, if 
     an employee requesting to use paid leave for an FMLA-
     qualifying purpose does not explain the reason for the 
     leave--consistent with the employing office's established 
     policy or practice--and the employing office denies the 
     employee's request, the employee will need to provide 
     sufficient information to establish an FMLA-qualifying reason 
     for the needed leave so that the employing office is aware of 
     the employee's entitlement (i.e., that the leave may not be 
     denied) and, then, may designate that the paid leave be 
     appropriately counted against (substituted for) the 
     employee's 12-week entitlement. Similarly, an employee using 
     accrued paid vacation leave who seeks an extension of unpaid 
     leave for an FMLA-qualifying purpose will need to state the 
     reason. If this is due to an event which occurred during the 
     period of paid leave, the employing office may count the 
     leave used after the FMLA-qualifying event against the 
     employee's 12-week entitlement.
       (b)(1) Once the employing office has acquired knowledge 
     that the leave is being taken for an FMLA required reason, 
     the employing office must promptly (within two business days 
     absent extenuating circumstances) notify the employee that 
     the paid leave is designated and will be counted as FMLA 
     leave. If there is a dispute between an employing office and 
     an employee as to whether paid leave qualifies as FMLA leave, 
     it should be resolved through discussions between the 
     employee and the employing office. Such discussions and the 
     decision must be documented.
       (2) The employing office's notice to the employee that the 
     leave has been designated as FMLA leave may be orally or in 
     writing. If the notice is oral, it shall be confirmed in 
     writing, no later than the following payday (unless the 
     payday is less than one week after the oral notice, in which 
     case the notice must be no later than the subsequent payday). 
     The written notice may be in any form, including a notation 
     on the employee's pay stub.
       (c) If the employing office requires paid leave to be 
     substituted for unpaid leave, or that paid leave taken under 
     an existing leave plan be counted as FMLA leave, this 
     decision must be made by the employing office within two 
     business days of the time the employee gives notice of the 
     need for leave, or, where the employing office does not 
     initially have sufficient information to make a 
     determination, when the employing office determines that the 
     leave qualifies as FMLA leave if this happens later. The 
     employing office's designation must be made before the leave 
     starts, unless the employing office does not have sufficient 
     information as to the employee's reason for taking the leave 
     until after the leave commenced. If the employing office has 
     the requisite knowledge to make a determination that the paid 
     leave is for an FMLA reason at the time the employee either 
     gives notice of the need for leave or commences leave and 
     fails to designate the leave as FMLA leave (and so notify the 
     employee in accordance with paragraph (b)), the employing 
     office may not designate leave as FMLA leave retroactively, 
     and may designate only prospectively as of the date of 
     notification to the employee of the designation. In such 
     circumstances, the employee is subject to the full 
     protections of the FMLA,

[[Page S3967]]

     as made applicable by the CAA, but none of the absence 
     preceding the notice to the employee of the designation may 
     be counted against the employee's 12-week FMLA leave 
     entitlement.
       (d) If the employing office learns that leave is for an 
     FMLA purpose after leave has begun, such as when an employee 
     gives notice of the need for an extension of the paid leave 
     with unpaid FMLA leave, the entire or some portion of the 
     paid leave period may be retroactively counted as FMLA leave, 
     to the extent that the leave period qualified as FMLA leave. 
     For example, an employee is granted two weeks paid vacation 
     leave for a skiing trip. In mid-week of the second week, the 
     employee contacts the employing office for an extension of 
     leave as unpaid leave and advises that at the beginning of 
     the second week of paid vacation leave the employee suffered 
     a severe accident requiring hospitalization. The employing 
     office may notify the employee that both the extension and 
     the second week of paid vacation leave (from the date of the 
     injury) is designated as FMLA leave. On the other hand, when 
     the employee takes sick leave that turns into a serious 
     health condition (e.g., bronchitis that turns into bronchial 
     pneumonia) and the employee gives notice of the need for an 
     extension of leave, the entire period of the serious health 
     condition may be counted as FMLA leave.
       (e) Employing offices may not designate leave as FMLA leave 
     after the employee has returned to work with two exceptions:
       (1) If the employee was absent for an FMLA reason and the 
     employing office did not learn the reason for the absence 
     until the employee's return (e.g., where the employee was 
     absent for only a brief period), the employing office may, 
     upon the employee's return to work, promptly (within two 
     business days of the employee's return to work) designate the 
     leave retroactively with appropriate notice to the employee. 
     If leave is taken for an FMLA reason but the employing office 
     was not aware of the reason, and the employee desires that 
     the leave be counted as FMLA leave, the employee must notify 
     the employing office within two business days of returning to 
     work of the reason for the leave. In the absence of such 
     timely notification by the employee, the employee may not 
     subsequently assert FMLA protections for the absence.
       (2) If the employing office knows the reason for the leave 
     but has not been able to confirm that the leave qualifies 
     under FMLA, or where the employing office has requested 
     medical certification which has not yet been received or the 
     parties are in the process of obtaining a second or third 
     medical opinion, the employing office should make a 
     preliminary designation, and so notify the employee, at the 
     time leave begins, or as soon as the reason for the leave 
     becomes known. Upon receipt of the requisite information from 
     the employee or of the medical certification which confirms 
     the leave is for an FMLA reason, the preliminary designation 
     becomes final. If the medical certifications fail to confirm 
     that the reason for the absence was an FMLA reason, the 
     employing office must withdraw the designation (with written 
     notice to the employee).
       (f) If, before beginning employment with an employing 
     office, an employee had been employed by another employing 
     office, the subsequent employing office may count against the 
     employee's FMLA leave entitlement FMLA leave taken from the 
     prior employing office, except that, if the FMLA leave began 
     after the effective date of these regulations (or if the FMLA 
     leave was subject to other applicable requirement under which 
     the employing office was to have designated the leave as FMLA 
     leave), the prior employing office must have properly 
     designated the leave as FMLA under these regulations or other 
     applicable requirement.

     Sec. 825.209 Is an employee entitled to benefits while using 
       FMLA leave?

       (a) During any FMLA leave, the employing office must 
     maintain the employee's coverage under the Federal Employees 
     Health Benefits Program or any group health plan (as defined 
     in the Internal Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) 
     on the same conditions as coverage would have been provided 
     if the employee had been continuously employed during the 
     entire leave period. All employing offices are subject to the 
     requirements of the FMLA, as made applicable by the CAA, to 
     maintain health coverage. The definition of ``group health 
     plan'' is set forth in Sec. 825.800. For purposes of FMLA, 
     the term ``group health plan'' shall not include an insurance 
     program providing health coverage under which employees 
     purchase individual policies from insurers provided that--
       (1) no contributions are made by the employing office;
       (2) participation in the program is completely voluntary 
     for employees;
       (3) the sole functions of the employing office with respect 
     to the program are, without endorsing the program, to permit 
     the insurer to publicize the program to employees, to collect 
     premiums through payroll deductions and to remit them to the 
     insurer;
       (4) the employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       (5) the premium charged with respect to such coverage does 
     not increase in the event the employment relationship 
     terminates.
       (b) The same group health plan benefits provided to an 
     employee prior to taking FMLA leave must be maintained during 
     the FMLA leave. For example, if family member coverage is 
     provided to an employee, family member coverage must be 
     maintained during the FMLA leave. Similarly, benefit coverage 
     during FMLA leave for medical care, surgical care, hospital 
     care, dental care, eye care, mental health counseling, 
     substance abuse treatment, etc., must be maintained during 
     leave if provided in an employing office's group health plan, 
     including a supplement to a group health plan, whether or not 
     provided through a flexible spending account or other 
     component of a cafeteria plan.
       (c) If an employing office provides a new health plan or 
     benefits or changes health benefits or plans while an 
     employee is on FMLA leave, the employee is entitled to the 
     new or changed plan/benefits to the same extent as if the 
     employee were not on leave. For example, if an employing 
     office changes a group health plan so that dental care 
     becomes covered under the plan, an employee on FMLA leave 
     must be given the same opportunity as other employees to 
     receive (or obtain) the dental care coverage. Any other plan 
     changes (e.g., in coverage, premiums, deductibles, etc.) 
     which apply to all employees of the workforce would also 
     apply to an employee on FMLA leave.
       (d) Notice of any opportunity to change plans or benefits 
     must also be given to an employee on FMLA leave. If the group 
     health plan permits an employee to change from single to 
     family coverage upon the birth of a child or otherwise add 
     new family members, such a change in benefits must be made 
     available while an employee is on FMLA leave. If the employee 
     requests the changed coverage it must be provided by the 
     employing office.
       (e) An employee may choose not to retain group health plan 
     coverage during FMLA leave. However, when an employee returns 
     from leave, the employee is entitled to be reinstated on the 
     same terms as prior to taking the leave, including family or 
     dependent coverages, without any qualifying period, physical 
     examination, exclusion of pre-existing conditions, etc. See 
     Sec. 825.212(c).
       (f) Except as required by the Consolidated Omnibus Budget 
     Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, 
     whichever is applicable, and for ``key'' employees (as 
     discussed below), an employing office's obligation to 
     maintain health benefits during leave (and to restore the 
     employee to the same or equivalent employment) under FMLA 
     ceases if and when the employment relationship would have 
     terminated if the employee had not taken FMLA leave (e.g., if 
     the employee's position is eliminated as part of a 
     nondiscriminatory reduction in force and the employee would 
     not have been transferred to another position); an employee 
     informs the employing office of his or her intent not to 
     return from leave (including before starting the leave if the 
     employing office is so informed before the leave starts); or 
     the employee fails to return from leave or continues on leave 
     after exhausting his or her FMLA leave entitlement in the 12-
     month period.
       (g) If a ``key employee'' (see Sec. 825.218) does not 
     return from leave when notified by the employing office that 
     substantial or grievous economic injury will result from his 
     or her reinstatement, the employee's entitlement to group 
     health plan benefits continues unless and until the employee 
     advises the employing office that the employee does not 
     desire restoration to employment at the end of the leave 
     period, or FMLA leave entitlement is exhausted, or 
     reinstatement is actually denied.
       (h) An employee's entitlement to benefits other than group 
     health benefits during a period of FMLA leave (e.g., holiday 
     pay) is to be determined by the employing office's 
     established policy for providing such benefits when the 
     employee is on other forms of leave (paid or unpaid, as 
     appropriate).

     Sec. 825.210 How may employees on FMLA leave pay their share 
       of group health benefit premiums?

       (a) Group health plan benefits must be maintained on the 
     same basis as coverage would have been provided if the 
     employee had been continuously employed during the FMLA leave 
     period. Therefore, any share of group health plan premiums 
     which had been paid by the employee prior to FMLA leave must 
     continue to be paid by the employee during the FMLA leave 
     period. If premiums are raised or lowered, the employee would 
     be required to pay the new premium rates. Maintenance of 
     health insurance policies which are not a part of the 
     employing office's group health plan, as described in 
     Sec. 825.209(a), are the sole responsibility of the employee. 
     The employee and the insurer should make necessary 
     arrangements for payment of premiums during periods of unpaid 
     FMLA leave.
       (b) If the FMLA leave is substituted paid leave, the 
     employee's share of premiums must be paid by the method 
     normally used during any paid leave, presumably as a payroll 
     deduction.
       (c) If FMLA leave is unpaid, the employing office has a 
     number of options for obtaining payment from the employee. 
     The employing office may require that payment be made to the 
     employing office or to the insurance carrier, but no 
     additional charge may be added to the employee's premium 
     payment for administrative expenses. The employing office may 
     require employees to pay their share of premium payments in 
     any of the following ways:

[[Page S3968]]

       (1) Payment would be due at the same time as it would be 
     made if by payroll deduction;
       (2) Payment would be due on the same schedule as payments 
     are made under COBRA or 5 U.S.C. 8905a, whichever is 
     applicable;
       (3) Payment would be prepaid pursuant to a cafeteria plan 
     at the employee's option;
       (4) The employing office's existing rules for payment by 
     employees on ``leave without pay'' would be followed, 
     provided that such rules do not require prepayment (i.e., 
     prior to the commencement of the leave) of the premiums that 
     will become due during a period of unpaid FMLA leave or 
     payment of higher premiums than if the employee had continued 
     to work instead of taking leave; or
       (5) Another system voluntarily agreed to between the 
     employing office and the employee, which may include 
     prepayment of premiums (e.g., through increased payroll 
     deductions when the need for the FMLA leave is foreseeable).
       (d) The employing office must provide the employee with 
     advance written notice of the terms and conditions under 
     which these payments must be made. (See Sec. 825.301.)
       (e) An employing office may not require more of an employee 
     using FMLA leave than the employing office requires of other 
     employees on ``leave without pay''.
       (f) An employee who is receiving payments as a result of a 
     workers' compensation injury must make arrangements with the 
     employing office for payment of group health plan benefits 
     when simultaneously taking unpaid FMLA leave. See paragraph 
     (c) of this section and Sec. 825.207(d)(2).

     Sec. 825.211 What special health benefits maintenance rules 
       apply to multi-employer health plans?

       (a) A multi-employer health plan is a plan to which more 
     than one employer is required to contribute, and which is 
     maintained pursuant to one or more collective bargaining 
     agreements between employee organization(s) and the 
     employers.
       (b) An employing office under a multi-employer plan must 
     continue to make contributions on behalf of an employee using 
     FMLA leave as though the employee had been continuously 
     employed, unless the plan contains an explicit FMLA provision 
     for maintaining coverage such as through pooled contributions 
     by all employers party to the plan.
       (c) During the duration of an employee's FMLA leave, 
     coverage by the group health plan, and benefits provided 
     pursuant to the plan, must be maintained at the level of 
     coverage and benefits which were applicable to the employee 
     at the time FMLA leave commenced.
       (d) An employee using FMLA leave cannot be required to use 
     ``banked'' hours or pay a greater premium than the employee 
     would have been required to pay if the employee had been 
     continuously employed.
       (e) As provided in Sec. 825.209(f), group health plan 
     coverage must be maintained for an employee on FMLA leave 
     until:
       (1) the employee's FMLA leave entitlement is exhausted;
       (2) the employing office can show that the employee would 
     have been laid off and the employment relationship 
     terminated; or
       (3) the employee provides unequivocal notice of intent not 
     to return to work.

     Sec. 825.212 What are the consequences of an employee's 
       failure to make timely health plan premium payments?

       (a)(1) In the absence of an established employing office 
     policy providing a longer grace period, an employing office's 
     obligations to maintain health insurance coverage cease under 
     FMLA if an employee's premium payment is more than 30 days 
     late. In order to drop the coverage for an employee whose 
     premium payment is late, the employing office must provide 
     written notice to the employee that the payment has not been 
     received. Such notice must be mailed to the employee at least 
     15 days before coverage is to cease, advising that coverage 
     will be dropped on a specified date at least 15 days after 
     the date of the letter unless the payment has been received 
     by that date. If the employing office has established 
     policies regarding other forms of unpaid leave that provide 
     for the employing office to cease coverage retroactively to 
     the date the unpaid premium payment was due, the employing 
     office may drop the employee from coverage retroactively in 
     accordance with that policy, provided the 15-day notice was 
     given. In the absence of such a policy, coverage for the 
     employee may be terminated at the end of the 30-day grace 
     period, where the required 15-day notice has been provided.
       (2) An employing office has no obligation regarding the 
     maintenance of a health insurance policy which is not a 
     ``group health plan''. See Sec. 825.209(a).
       (3) All other obligations of an employing office under FMLA 
     would continue; for example, the employing office continues 
     to have an obligation to reinstate an employee upon return 
     from leave.
       (b) The employing office may recover the employee's share 
     of any premium payments missed by the employee for any FMLA 
     leave period during which the employing office maintains 
     health coverage by paying the employee's share after the 
     premium payment is missed.
       (c) If coverage lapses because an employee has not made 
     required premium payments, upon the employee's return from 
     FMLA leave the employing office must still restore the 
     employee to coverage/benefits equivalent to those the 
     employee would have had if leave had not been taken and the 
     premium payment(s) had not been missed, including family or 
     dependent coverage. See Sec. 825.215(d) (1)-(5). In such 
     case, an employee may not be required to meet any 
     qualification requirements imposed by the plan, including any 
     new preexisting condition waiting period, to wait for an open 
     season, or to pass a medical examination to obtain 
     reinstatement of coverage.

     Sec. 825.213 May an employing office recover costs it 
       incurred for maintaining ``group health plan'' or other 
       non-health benefits coverage during FMLA leave?

       (a) In addition to the circumstances discussed in 
     Sec. 825.212(b), the share of health plan premiums paid by or 
     on behalf of the employing office during a period of unpaid 
     FMLA leave may be recovered from an employee if the employee 
     fails to return to work after the employee's FMLA leave 
     entitlement has been exhausted or expires, unless the reason 
     the employee does not return is due to:
       (1) The continuation, recurrence, or onset of a serious 
     health condition of the employee or the employee's family 
     member which would otherwise entitle the employee to leave 
     under FMLA;
       (2) Other circumstances beyond the employee's control. 
     Examples of ``other circumstances beyond the employee's 
     control'' are necessarily broad. They include such situations 
     as where a parent chooses to stay home with a newborn child 
     who has a serious health condition; an employee's spouse is 
     unexpectedly transferred to a job location more than 75 miles 
     from the employee's worksite; a relative or individual other 
     than an immediate family member has a serious health 
     condition and the employee is needed to provide care; the 
     employee is laid off while on leave; or, the employee is a 
     ``key employee'' who decides not to return to work upon being 
     notified of the employing office's intention to deny 
     restoration because of substantial and grievous economic 
     injury to the employing office's operations and is not 
     reinstated by the employing office. Other circumstances 
     beyond the employee's control would not include a situation 
     where an employee desires to remain with a parent in a 
     distant city even though the parent no longer requires the 
     employee's care, or a parent chooses not to return to work to 
     stay home with a well, newborn child; or
       (3) When an employee fails to return to work because of the 
     continuation, recurrence, or onset of a serious health 
     condition, thereby precluding the employing office from 
     recovering its (share of) health benefit premium payments 
     made on the employee's behalf during a period of unpaid FMLA 
     leave, the employing office may require medical certification 
     of the employee's or the family member's serious health 
     condition. Such certification is not required unless 
     requested by the employing office. The employee is required 
     to provide medical certification in a timely manner which, 
     for purposes of this section, is within 30 days from the date 
     of the employing office's request. For purposes of medical 
     certification, the employee may use the optional form 
     developed for this purpose (see Sec. 825.306(a) and Appendix 
     B of this part). If the employing office requests medical 
     certification and the employee does not provide such 
     certification in a timely manner (within 30 days), or the 
     reason for not returning to work does not meet the test of 
     other circumstances beyond the employee's control, the 
     employing office may recover 100 percent of the health 
     benefit premiums it paid during the period of unpaid FMLA 
     leave.
       (b) Under some circumstances an employing office may elect 
     to maintain other benefits, e.g., life insurance, disability 
     insurance, etc., by paying the employee's (share of) premiums 
     during periods of unpaid FMLA leave. For example, to ensure 
     the employing office can meet its responsibilities to provide 
     equivalent benefits to the employee upon return from unpaid 
     FMLA leave, it may be necessary that premiums be paid 
     continuously to avoid a lapse of coverage. If the employing 
     office elects to maintain such benefits during the leave, at 
     the conclusion of leave, the employing office is entitled to 
     recover only the costs incurred for paying the employee's 
     share of any premiums whether or not the employee returns to 
     work.
       (c) An employee who returns to work for at least 30 
     calendar days is considered to have ``returned'' to work. An 
     employee who transfers directly from taking FMLA leave to 
     retirement, or who retires during the first 30 days after the 
     employee returns to work, is deemed to have returned to work.
       (d) When an employee elects or an employing office requires 
     paid leave to be substituted for FMLA leave, the employing 
     office may not recover its (share of) health insurance or 
     other non-health benefit premiums for any period of FMLA 
     leave covered by paid leave. Because paid leave provided 
     under a plan covering temporary disabilities (including 
     workers' compensation) is not unpaid, recovery of health 
     insurance premiums does not apply to such paid leave.
       (e) The amount that self-insured employing offices may 
     recover is limited to only the employing office's share of 
     allowable ``premiums'' as would be calculated under COBRA, 
     excluding the 2 percent fee for administrative costs.
       (f) When an employee fails to return to work, any health 
     and non-health benefit premiums which this section of the 
     regulations permits an employing office to recover are a debt 
     owed by the non-returning employee to the employing office. 
     The existence of this

[[Page S3969]]

     debt caused by the employee's failure to return to work does 
     not alter the employing office's responsibilities for health 
     benefit coverage and, under a self-insurance plan, payment of 
     claims incurred during the period of FMLA leave. To the 
     extent recovery is allowed, the employing office may recover 
     the costs through deduction from any sums due to the employee 
     (e.g., unpaid wages, vacation pay, etc.), provided such 
     deductions do not otherwise violate applicable wage payment 
     or other laws. Alternatively, the employing office may 
     initiate legal action against the employee to recover such 
     costs.

     Sec. 825.214 What are an employee's rights on returning to 
       work from FMLA leave?

       (a) On return from FMLA leave, an employee is entitled to 
     be returned to the same position the employee held when leave 
     commenced, or to an equivalent position with equivalent 
     benefits, pay, and other terms and conditions of employment. 
     An employee is entitled to such reinstatement even if the 
     employee has been replaced or his or her position has been 
     restructured to accommodate the employee's absence. See also 
     Sec. 825.106(e) for the obligations of employing offices that 
     are joint employing offices.
       (b) If the employee is unable to perform an essential 
     function of the position because of a physical or mental 
     condition, including the continuation of a serious health 
     condition, the employee has no right to restoration to 
     another position under the FMLA. However, the employing 
     office's obligations may be governed by the Americans with 
     Disabilities Act (ADA), as made applicable by the CAA. See 
     Sec. 825.702.

     Sec. 825.215 What is an equivalent position?

       (a) An equivalent position is one that is virtually 
     identical to the employee's former position in terms of pay, 
     benefits and working conditions, including privileges, 
     perquisites and status. It must involve the same or 
     substantially similar duties and responsibilities, which must 
     entail substantially equivalent skill, effort, 
     responsibility, and authority.
       (b) If an employee is no longer qualified for the position 
     because of the employee's inability to attend a necessary 
     course, renew a license, fly a minimum number of hours, etc., 
     as a result of the leave, the employee shall be given a 
     reasonable opportunity to fulfill those conditions upon 
     return to work.
       (c) Equivalent Pay:
       (1) An employee is entitled to any unconditional pay 
     increases which may have occurred during the FMLA leave 
     period, such as cost of living increases. Pay increases 
     conditioned upon seniority, length of service, or work 
     performed would not have to be granted unless it is the 
     employing office's policy or practice to do so with respect 
     to other employees on ``leave without pay''. In such case, 
     any pay increase would be granted based on the employee's 
     seniority, length of service, work performed, etc., excluding 
     the period of unpaid FMLA leave. An employee is entitled to 
     be restored to a position with the same or equivalent pay 
     premiums, such as a shift differential. If an employee 
     departed from a position averaging ten hours of overtime (and 
     corresponding overtime pay) each week, an employee is 
     ordinarily entitled to such a position on return from FMLA 
     leave.
       (2) Many employing offices pay bonuses in different forms 
     to employees for job-related performance such as for perfect 
     attendance, safety (absence of injuries or accidents on the 
     job) and exceeding production goals. Bonuses for perfect 
     attendance and safety do not require performance by the 
     employee but rather contemplate the absence of occurrences. 
     To the extent an employee who takes FMLA leave had met all 
     the requirements for either or both of these bonuses before 
     FMLA leave began, the employee is entitled to continue this 
     entitlement upon return from FMLA leave, that is, the 
     employee may not be disqualified for the bonus(es) for the 
     taking of FMLA leave. See Sec. 825.220 (b) and (c). A monthly 
     production bonus, on the other hand, does require performance 
     by the employee. If the employee is on FMLA leave during any 
     part of the period for which the bonus is computed, the 
     employee is entitled to the same consideration for the bonus 
     as other employees on paid or unpaid leave (as appropriate). 
     See paragraph (d)(2) of this section.
       (d) Equivalent Benefits. ``Benefits'' include all benefits 
     provided or made available to employees by an employing 
     office, including group life insurance, health insurance, 
     disability insurance, sick leave, annual leave, educational 
     benefits, and pensions, regardless of whether such benefits 
     are provided by a practice or written policy of an employing 
     office through an employee benefit plan.
       (1) At the end of an employee's FMLA leave, benefits must 
     be resumed in the same manner and at the same levels as 
     provided when the leave began, and subject to any changes in 
     benefit levels that may have taken place during the period of 
     FMLA leave affecting the entire workforce, unless otherwise 
     elected by the employee. Upon return from FMLA leave, an 
     employee cannot be required to requalify for any benefits the 
     employee enjoyed before FMLA leave began (including family or 
     dependent coverages). For example, if an employee was covered 
     by a life insurance policy before taking leave but is not 
     covered or coverage lapses during the period of unpaid FMLA 
     leave, the employee cannot be required to meet any 
     qualifications, such as taking a physical examination, in 
     order to requalify for life insurance upon return from leave. 
     Accordingly, some employing offices may find it necessary to 
     modify life insurance and other benefits programs in order to 
     restore employees to equivalent benefits upon return from 
     FMLA leave, make arrangements for continued payment of costs 
     to maintain such benefits during unpaid FMLA leave, or pay 
     these costs subject to recovery from the employee on return 
     from leave. See Sec. 825.213(b).
       (2) An employee may, but is not entitled to, accrue any 
     additional benefits or seniority during unpaid FMLA leave. 
     Benefits accrued at the time leave began, however, (e.g., 
     paid vacation, sick or personal leave to the extent not 
     substituted for FMLA leave) must be available to an employee 
     upon return from leave.
       (3) If, while on unpaid FMLA leave, an employee desires to 
     continue life insurance, disability insurance, or other types 
     of benefits for which he or she typically pays, the employing 
     office is required to follow established policies or 
     practices for continuing such benefits for other instances of 
     leave without pay. If the employing office has no established 
     policy, the employee and the employing office are encouraged 
     to agree upon arrangements before FMLA leave begins.
       (4) With respect to pension and other retirement plans, any 
     period of unpaid FMLA leave shall not be treated as or 
     counted toward a break in service for purposes of vesting and 
     eligibility to participate. Also, if the plan requires an 
     employee to be employed on a specific date in order to be 
     credited with a year of service for vesting, contributions or 
     participation purposes, an employee on unpaid FMLA leave on 
     that date shall be deemed to have been employed on that date. 
     However, unpaid FMLA leave periods need not be treated as 
     credited service for purposes of benefit accrual, vesting and 
     eligibility to participate.
       (5) Employees on unpaid FMLA leave are to be treated as if 
     they continued to work for purposes of changes to benefit 
     plans. They are entitled to changes in benefits plans, except 
     those which may be dependent upon seniority or accrual during 
     the leave period, immediately upon return from leave or to 
     the same extent they would have qualified if no leave had 
     been taken. For example if the benefit plan is predicated on 
     a pre-established number of hours worked each year and the 
     employee does not have sufficient hours as a result of taking 
     unpaid FMLA leave, the benefit is lost. (In this regard, 
     Sec. 825.209 addresses health benefits.)
       (e) Equivalent Terms and Conditions of Employment. An 
     equivalent position must have substantially similar duties, 
     conditions, responsibilities, privileges and status as the 
     employee's original position.
       (1) The employee must be reinstated to the same or a 
     geographically proximate worksite (i.e., one that does not 
     involve a significant increase in commuting time or distance) 
     from where the employee had previously been employed. If the 
     employee's original worksite has been closed, the employee is 
     entitled to the same rights as if the employee had not been 
     on leave when the worksite closed. For example, if an 
     employing office transfers all employees from a closed 
     worksite to a new worksite in a different city, the employee 
     on leave is also entitled to transfer under the same 
     conditions as if he or she had continued to be employed.
       (2) The employee is ordinarily entitled to return to the 
     same shift or the same or an equivalent work schedule.
       (3) The employee must have the same or an equivalent 
     opportunity for bonuses and other similar discretionary and 
     non-discretionary payments.
       (4) FMLA does not prohibit an employing office from 
     accommodating an employee's request to be restored to a 
     different shift, schedule, or position which better suits the 
     employee's personal needs on return from leave, or to offer a 
     promotion to a better position. However, an employee cannot 
     be induced by the employing office to accept a different 
     position against the employee's wishes.
       (f) The requirement that an employee be restored to the 
     same or equivalent job with the same or equivalent pay, 
     benefits, and terms and conditions of employment does not 
     extend to de minimis or intangible, unmeasurable aspects of 
     the job. However, restoration to a job slated for lay-off, 
     when the employee's original position is not, would not meet 
     the requirements of an equivalent position.

     Sec. 825.216 Are there any limitations on an employing 
       office's obligation to reinstate an employee?

       (a) An employee has no greater right to reinstatement or to 
     other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. An employing office must be able to show that an 
     employee would not otherwise have been employed at the time 
     reinstatement is requested in order to deny restoration to 
     employment. For example:
       (1) If an employee is laid off during the course of taking 
     FMLA leave and employment is terminated, the employing 
     office's responsibility to continue FMLA leave, maintain 
     group health plan benefits and restore the employee ceases at 
     the time the employee is laid off, provided the employing 
     office has no continuing obligations under a collective 
     bargaining agreement or otherwise. An employing office would 
     have the burden of proving that an employee would

[[Page S3970]]

     have been laid off during the FMLA leave period and, 
     therefore, would not be entitled to restoration.
       (2) If a shift has been eliminated, or overtime has been 
     decreased, an employee would not be entitled to return to 
     work that shift or the original overtime hours upon 
     restoration. However, if a position on, for example, a night 
     shift has been filled by another employee, the employee is 
     entitled to return to the same shift on which employed before 
     taking FMLA leave.
       (b) If an employee was hired for a specific term or only to 
     perform work on a discrete project, the employing office has 
     no obligation to restore the employee if the employment term 
     or project is over and the employing office would not 
     otherwise have continued to employ the employee.
       (c) In addition to the circumstances explained above, an 
     employing office may deny job restoration to salaried 
     eligible employees (``key employees'', as defined in 
     paragraph (c) of Sec. 825.217) if such denial is necessary to 
     prevent substantial and grievous economic injury to the 
     operations of the employing office; or may delay restoration 
     to an employee who fails to provide a fitness for duty 
     certificate to return to work under the conditions described 
     in Sec. 825.310.
       (d) If the employee has been on a workers' compensation 
     absence during which FMLA leave has been taken concurrently, 
     and after 12 weeks of FMLA leave the employee is unable to 
     return to work, the employee no longer has the protections of 
     FMLA and must look to the workers' compensation statute or 
     ADA, as made applicable by the CAA, for any relief or 
     protections.

     Sec. 825.217 What is a ``key employee''?

       (a) A ``key employee'' is a salaried FMLA-eligible employee 
     who is among the highest paid 10 percent of all the employees 
     employed by the employing office within 75 miles of the 
     employee's worksite.
       (b) The term ``salaried'' means paid on a salary basis, 
     within the meaning of the Board's regulations at part 541, 
     implementing section 203 of the CAA (2 U.S.C. 1313) 
     (regarding employees who may qualify as exempt from the 
     minimum wage and overtime requirements of the FLSA, as made 
     applicable by the CAA, as executive, administrative, and 
     professional employees).
       (c) A ``key employee'' must be ``among the highest paid 10 
     percent'' of all the employees ``both salaried and non-
     salaried, eligible and ineligible ``who are employed by the 
     employing office within 75 miles of the worksite'':
       (1) In determining which employees are among the highest 
     paid 10 percent, year-to-date earnings are divided by weeks 
     worked by the employee (including weeks in which paid leave 
     was taken). Earnings include wages, premium pay, incentive 
     pay, and non-discretionary and discretionary bonuses. 
     Earnings do not include incentives whose value is determined 
     at some future date, e.g., benefits or perquisites.
       (2) The determination of whether a salaried employee is 
     among the highest paid 10 percent shall be made at the time 
     the employee gives notice of the need for leave. No more than 
     10 percent of the employing office's employees within 75 
     miles of the worksite may be ``key employees''.

     Sec. 825.218 What does ``substantial and grievous economic 
       injury'' mean?

       (a) In order to deny restoration to a key employee, an 
     employing office must determine that the restoration of the 
     employee to employment will cause ``substantial and grievous 
     economic injury'' to the operations of the employing office, 
     not whether the absence of the employee will cause such 
     substantial and grievous injury.
       (b) An employing office may take into account its ability 
     to replace on a temporary basis (or temporarily do without) 
     the employee on FMLA leave. If permanent replacement is 
     unavoidable, the cost of then reinstating the employee can be 
     considered in evaluating whether substantial and grievous 
     economic injury will occur from restoration; in other words, 
     the effect on the operations of the employing office of 
     reinstating the employee in an equivalent position.
       (c) A precise test cannot be set for the level of hardship 
     or injury to the employing office which must be sustained. If 
     the reinstatement of a ``key employee'' threatens the 
     economic viability of the employing office, that would 
     constitute ``substantial and grievous economic injury''. A 
     lesser injury which causes substantial, long-term economic 
     injury would also be sufficient. Minor inconveniences and 
     costs that the employing office would experience in the 
     normal course would certainly not constitute ``substantial 
     and grievous economic injury''.
       (d) FMLA's ``substantial and grievous economic injury'' 
     standard is different from and more stringent than the 
     ``undue hardship'' test under the ADA (see, also 
     Sec. 825.702).

     Sec. 825.219 What are the rights of a key employee?

       (a) An employing office which believes that reinstatement 
     may be denied to a key employee, must give written notice to 
     the employee at the time the employee gives notice of the 
     need for FMLA leave (or when FMLA leave commences, if 
     earlier) that he or she qualifies as a key employee. At the 
     same time, the employing office must also fully inform the 
     employee of the potential consequences with respect to 
     reinstatement and maintenance of health benefits if the 
     employing office should determine that substantial and 
     grievous economic injury to the employing office's operations 
     will result if the employee is reinstated from FMLA leave. If 
     such notice cannot be given immediately because of the need 
     to determine whether the employee is a key employee, it shall 
     be given as soon as practicable after being notified of a 
     need for leave (or the commencement of leave, if earlier). It 
     is expected that in most circumstances there will be no 
     desire that an employee be denied restoration after FMLA 
     leave and, therefore, there would be no need to provide such 
     notice. However, an employing office who fails to provide 
     such timely notice will lose its right to deny restoration 
     even if substantial and grievous economic injury will result 
     from reinstatement.
       (b) As soon as an employing office makes a good faith 
     determination, based on the facts available, that substantial 
     and grievous economic injury to its operations will result if 
     a key employee who has given notice of the need for FMLA 
     leave or is using FMLA leave is reinstated, the employing 
     office shall notify the employee in writing of its 
     determination, that it cannot deny FMLA leave, and that it 
     intends to deny restoration to employment on completion of 
     the FMLA leave. It is anticipated that an employing office 
     will ordinarily be able to give such notice prior to the 
     employee starting leave. The employing office must serve this 
     notice either in person or by certified mail. This notice 
     must explain the basis for the employing office's finding 
     that substantial and grievous economic injury will result, 
     and, if leave has commenced, must provide the employee a 
     reasonable time in which to return to work, taking into 
     account the circumstances, such as the length of the leave 
     and the urgency of the need for the employee to return.
       (c) If an employee on leave does not return to work in 
     response to the employing office's notification of intent to 
     deny restoration, the employee continues to be entitled to 
     maintenance of health benefits and the employing office may 
     not recover its cost of health benefit premiums. A key 
     employee's rights under FMLA continue unless and until either 
     the employee gives notice that he or she no longer wishes to 
     return to work, or the employing office actually denies 
     reinstatement at the conclusion of the leave period.
       (d) After notice to an employee has been given that 
     substantial and grievous economic injury will result if the 
     employee is reinstated to employment, an employee is still 
     entitled to request reinstatement at the end of the leave 
     period even if the employee did not return to work in 
     response to the employing office's notice. The employing 
     office must then again determine whether there will be 
     substantial and grievous economic injury from reinstatement, 
     based on the facts at that time. If it is determined that 
     substantial and grievous economic injury will result, the 
     employing office shall notify the employee in writing (in 
     person or by certified mail) of the denial of restoration.

     Sec. 825.220 How are employees protected who request leave or 
       otherwise assert FMLA rights?

       (a) The FMLA, as made applicable by the CAA, prohibits 
     interference with an employee's rights under the law, and 
     with legal proceedings or inquiries relating to an employee's 
     rights. More specifically, the law contains the following 
     employee protections:
       (1) An employing office is prohibited from interfering 
     with, restraining, or denying the exercise of (or attempts to 
     exercise) any rights provided by the FMLA as made applicable 
     by the CAA.
       (2) An employing office is prohibited from discharging or 
     in any other way discriminating against any covered employee 
     (whether or not an eligible employee) for opposing or 
     complaining about any unlawful practice under the FMLA as 
     made applicable by the CAA.
       (3) All employing offices are prohibited from discharging 
     or in any other way discriminating against any covered 
     employee (whether or not an eligible employee) because that 
     covered employee has--
       (i) Filed any charge, or has instituted (or caused to be 
     instituted) any proceeding under or related to the FMLA, as 
     made applicable by the CAA;
       (ii) Given, or is about to give, any information in 
     connection with an inquiry or proceeding relating to a right 
     under the FMLA, as made applicable by the CAA;
       (iii) Testified, or is about to testify, in any inquiry or 
     proceeding relating to a right under the FMLA, as made 
     applicable by the CAA.
       (b) Any violations of the FMLA, as made applicable by the 
     CAA, or of these regulations constitute interfering with, 
     restraining, or denying the exercise of rights provided by 
     the FMLA as made applicable by the CAA. ``Interfering with'' 
     the exercise of an employee's rights would include, for 
     example, not only refusing to authorize FMLA leave, but 
     discouraging an employee from using such leave. It would also 
     include manipulation by an employing office to avoid 
     responsibilities under FMLA, for example--
       (1) [Reserved];
       (2) changing the essential functions of the job in order to 
     preclude the taking of leave;
       (3) reducing hours available to work in order to avoid 
     employee eligibility.
       (c) An employing office is prohibited from discriminating 
     against employees or prospective employees who have used FMLA 
     leave. For example, if an employee on leave without pay would 
     otherwise be entitled to full benefits (other than health 
     benefits), the same benefits would be required to be provided 
     to an employee on unpaid FMLA leave.

[[Page S3971]]

     By the same token, employing offices cannot use the taking of 
     FMLA leave as a negative factor in employment actions, such 
     as hiring, promotions or disciplinary actions; nor can FMLA 
     leave be counted under ``no fault'' attendance policies.
       (d) Employees cannot waive, nor may employing offices 
     induce employees to waive, their rights under FMLA. For 
     example, employees (or their collective bargaining 
     representatives) cannot ``trade off'' the right to take FMLA 
     leave against some other benefit offered by the employing 
     office. This does not prevent an employee's voluntary and 
     uncoerced acceptance (not as a condition of employment) of a 
     ``light duty'' assignment while recovering from a serious 
     health condition (see Sec. 825.702(d)). In such a 
     circumstance the employee's right to restoration to the same 
     or an equivalent position is available until 12 weeks have 
     passed within the 12-month period, including all FMLA leave 
     taken and the period of ``light duty''.
       (e) Covered employees, and not merely eligible employees, 
     are protected from retaliation for opposing (e.g., file a 
     complaint about) any practice which is unlawful under the 
     FMLA, as made applicable by the CAA. They are similarly 
     protected if they oppose any practice which they reasonably 
     believe to be a violation of the FMLA, as made applicable by 
     the CAA or regulations.

Subpart C--How do Employees Learn of Their Rights and Obligations under 
  the FMLA, as Made Applicable by the CAA, and What Can an Employing 
                     Office Require of an Employee?

     Sec. 825.300 [Reserved]

     Sec. 825.301 What notices to employees are required of 
       employing offices under the FMLA as made applicable by the 
       CAA?

       (a)(1) If an employing office has any eligible employees 
     and has any written guidance to employees concerning employee 
     benefits or leave rights, such as in an employee handbook, 
     information concerning both entitlements and employee 
     obligations under the FMLA, as made applicable by the CAA, 
     must be included in the handbook or other document. For 
     example, if an employing office provides an employee handbook 
     to all employees that describes the employing office's 
     policies regarding leave, wages, attendance, and similar 
     matters, the handbook must incorporate information on FMLA 
     rights and responsibilities and the employing office's 
     policies regarding the FMLA, as made applicable by the CAA. 
     Informational publications describing the provisions of the 
     FMLA as made applicable by the CAA are available from the 
     Office of Compliance and may be incorporated in such 
     employing office handbooks or written policies.
       (2) If such an employing office does not have written 
     policies, manuals, or handbooks describing employee benefits 
     and leave provisions, the employing office shall provide 
     written guidance to an employee concerning all the employee's 
     rights and obligations under the FMLA as made applicable by 
     the CAA. This notice shall be provided to employees each time 
     notice is given pursuant to paragraph (b), and in accordance 
     with the provisions of that paragraph. Employing offices may 
     duplicate and provide the employee a copy of the FMLA Fact 
     Sheet available from the Office of Compliance to provide such 
     guidance.
       (b)(1) The employing office shall also provide the employee 
     with written notice detailing the specific expectations and 
     obligations of the employee and explaining any consequences 
     of a failure to meet these obligations. The written notice 
     must be provided to the employee in a language in which the 
     employee is literate. Such specific notice must include, as 
     appropriate--
       (i) that the leave will be counted against the employee's 
     annual FMLA leave entitlement (see Sec. 825.208);
       (ii) any requirements for the employee to furnish medical 
     certification of a serious health condition and the 
     consequences of failing to do so (see Sec. 825.305);
       (iii) the employee's right to substitute paid leave and 
     whether the employing office will require the substitution of 
     paid leave, and the conditions related to any substitution;
       (iv) any requirement for the employee to make any premium 
     payments to maintain health benefits and the arrangements for 
     making such payments (see Sec. 825.210), and the possible 
     consequences of failure to make such payments on a timely 
     basis (i.e., the circumstances under which coverage may 
     lapse);
       (v) any requirement for the employee to present a fitness-
     for-duty certificate to be restored to employment (see 
     Sec. 825.310);
       (vi) the employee's status as a ``key employee'' and the 
     potential consequence that restoration may be denied 
     following FMLA leave, explaining the conditions required for 
     such denial (see Sec. 825.218);
       (vii) the employee's right to restoration to the same or an 
     equivalent job upon return from leave (see Sec. Sec.  825.214 
     and 825.604); and
       (viii) the employee's potential liability for payment of 
     health insurance premiums paid by the employing office during 
     the employee's unpaid FMLA leave if the employee fails to 
     return to work after taking FMLA leave (see Sec. 825.213).
       (2) The specific notice may include other information--
     e.g., whether the employing office will require periodic 
     reports of the employee's status and intent to return to 
     work, but is not required to do so. A prototype notice is 
     contained in Appendix D of this part, or may be obtained from 
     the Office of Compliance, which employing offices may adapt 
     for their use to meet these specific notice requirements.
       (c) Except as provided in this subparagraph, the written 
     notice required by paragraph (b) (and by subparagraph (a)(2) 
     where applicable) must be provided to the employee no less 
     often than the first time in each six-month period that an 
     employee gives notice of the need for FMLA leave (if FMLA 
     leave is taken during the six-month period). The notice shall 
     be given within a reasonable time after notice of the need 
     for leave is given by the employee--within one or two 
     business days if feasible. If leave has already begun, the 
     notice should be mailed to the employee's address of record.
       (1) If the specific information provided by the notice 
     changes with respect to a subsequent period of FMLA leave 
     during the six-month period, the employing office shall, 
     within one or two business days of receipt of the employee's 
     notice of need for leave, provide written notice referencing 
     the prior notice and setting forth any of the information in 
     subparagraph (b) which has changed. For example, if the 
     initial leave period were paid leave and the subsequent leave 
     period would be unpaid leave, the employing office may need 
     to give notice of the arrangements for making premium 
     payments.
       (2)(i) Except as provided in subparagraph (ii), if the 
     employing office is requiring medical certification or a 
     ``fitness-for-duty'' report, written notice of the 
     requirement shall be given with respect to each employee 
     notice of a need for leave.
       (ii) Subsequent written notification shall not be required 
     if the initial notice in the six-month period and the 
     employing office handbook or other written documents (if any) 
     describing the employing office's leave policies, clearly 
     provided that certification or a ``fitness-for-duty'' report 
     would be required (e.g., by stating that certification would 
     be required in all cases, by stating that certification would 
     be required in all cases in which leave of more than a 
     specified number of days is taken, or by stating that a 
     ``fitness-for-duty'' report would be required in all cases 
     for back injuries for employees in a certain occupation). 
     Where subsequent written notice is not required, at least 
     oral notice shall be provided. (See Sec. 825.305(a).)
       (d) Employing offices are also expected to responsively 
     answer questions from employees concerning their rights and 
     responsibilities under the FMLA as made applicable under the 
     CAA.
       (e) Employing offices furnishing FMLA-required notices to 
     sensory impaired individuals must also comply with all 
     applicable requirements under law.
       (f) If an employing office fails to provide notice in 
     accordance with the provisions of this section, the employing 
     office may not take action against an employee for failure to 
     comply with any provision required to be set forth in the 
     notice.

     Sec. 825.302 What notice does an employee have to give an 
       employing office when the need for FMLA leave is 
       foreseeable?

       (a) An employee must provide the employing office at least 
     30 days advance notice before FMLA leave is to begin if the 
     need for the leave is foreseeable based on an expected birth, 
     placement for adoption or foster care, or planned medical 
     treatment for a serious health condition of the employee or 
     of a family member. If 30 days notice is not practicable, 
     such as because of a lack of knowledge of approximately when 
     leave will be required to begin, a change in circumstances, 
     or a medical emergency, notice must be given as soon as 
     practicable. For example, an employee's health condition may 
     require leave to commence earlier than anticipated before the 
     birth of a child. Similarly, little opportunity for notice 
     may be given before placement for adoption. Whether the leave 
     is to be continuous or is to be taken intermittently or on a 
     reduced schedule basis, notice need only be given one time, 
     but the employee shall advise the employing office as soon as 
     practicable if dates of scheduled leave change or are 
     extended, or were initially unknown.
       (b) ``As soon as practicable'' means as soon as both 
     possible and practical, taking into account all of the facts 
     and circumstances in the individual case. For foreseeable 
     leave where it is not possible to give as much as 30 days 
     notice, ``as soon as practicable'' ordinarily would mean at 
     least verbal notification to the employing office within one 
     or two business days of when the need for leave becomes known 
     to the employee.
       (c) An employee shall provide at least verbal notice 
     sufficient to make the employing office aware that the 
     employee needs FMLA-qualifying leave, and the anticipated 
     timing and duration of the leave. The employee need not 
     expressly assert rights under the FMLA as made applicable by 
     the CAA, or even mention the FMLA, but may only state that 
     leave is needed for an expected birth or adoption, for 
     example. The employing office should inquire further of the 
     employee if it is necessary to have more information about 
     whether FMLA leave is being sought by the employee, and 
     obtain the necessary details of the leave to be taken. In the 
     case of medical conditions, the employing office may find it 
     necessary to inquire further to determine if the leave is 
     because of a serious health condition and may request medical 
     certification to support the need for such leave (see 
     Sec. 825.305).
       (d) An employing office may also require an employee to 
     comply with the employing office's usual and customary notice 
     and procedural requirements for requesting leave.

[[Page S3972]]

     For example, an employing office may require that written 
     notice set forth the reasons for the requested leave, the 
     anticipated duration of the leave, and the anticipated start 
     of the leave. However, failure to follow such internal 
     employing office procedures will not permit an employing 
     office to disallow or delay an employee's taking FMLA leave 
     if the employee gives timely verbal or other notice.
       (e) When planning medical treatment, the employee must 
     consult with the employing office and make a reasonable 
     effort to schedule the leave so as not to disrupt unduly the 
     employing office's operations, subject to the approval of the 
     health care provider. Employees are ordinarily expected to 
     consult with their employing offices prior to the scheduling 
     of treatment in order to work out a treatment schedule which 
     best suits the needs of both the employing office and the 
     employee. If an employee who provides notice of the need to 
     take FMLA leave on an intermittent basis for planned medical 
     treatment neglects to consult with the employing office to 
     make a reasonable attempt to arrange the schedule of 
     treatments so as not to unduly disrupt the employing office's 
     operations, the employing office may initiate discussions 
     with the employee and require the employee to attempt to make 
     such arrangements, subject to the approval of the health care 
     provider.
       (f) In the case of intermittent leave or leave on a reduced 
     leave schedule which is medically necessary, an employee 
     shall advise the employing office, upon request, of the 
     reasons why the intermittent/reduced leave schedule is 
     necessary and of the schedule for treatment, if applicable. 
     The employee and employing office shall attempt to work out a 
     schedule which meets the employee's needs without unduly 
     disrupting the employing office's operations, subject to the 
     approval of the health care provider.
       (g) An employing office may waive employees' FMLA notice 
     requirements. In addition, an employing office may not 
     require compliance with stricter FMLA notice requirements 
     where the provisions of a collective bargaining agreement or 
     applicable leave plan allow less advance notice to the 
     employing office. For example, if an employee (or employing 
     office) elects to substitute paid vacation leave for unpaid 
     FMLA leave (see Sec. 825.207), and the employing office's 
     paid vacation leave plan imposes no prior notification 
     requirements for taking such vacation leave, no advance 
     notice may be required for the FMLA leave taken in these 
     circumstances. On the other hand, FMLA notice requirements 
     would apply to a period of unpaid FMLA leave, unless the 
     employing office imposes lesser notice requirements on 
     employees taking leave without pay.

     Sec. 825.303  What are the requirements for an employee to 
       furnish notice to an employing office where the need for 
       FMLA leave is not foreseeable?

       (a) When the approximate timing of the need for leave is 
     not foreseeable, an employee should give notice to the 
     employing office of the need for FMLA leave as soon as 
     practicable under the facts and circumstances of the 
     particular case. It is expected that an employee will give 
     notice to the employing office within no more than one or two 
     working days of learning of the need for leave, except in 
     extraordinary circumstances where such notice is not 
     feasible. In the case of a medical emergency requiring 
     leave because of an employee's own serious health 
     condition or to care for a family member with a serious 
     health condition, written advance notice pursuant to an 
     employing office's internal rules and procedures may not 
     be required when FMLA leave is involved.
       (b) The employee should provide notice to the employing 
     office either in person or by telephone, telegraph, facsimile 
     (``fax'') machine or other electronic means. Notice may be 
     given by the employee's spokesperson (e.g., spouse, adult 
     family member or other responsible party) if the employee is 
     unable to do so personally. The employee need not expressly 
     assert rights under the FMLA, as made applicable by the CAA, 
     or even mention the FMLA, but may only state that leave is 
     needed. The employing office will be expected to obtain any 
     additional required information through informal means. The 
     employee or spokesperson will be expected to provide more 
     information when it can readily be accomplished as a 
     practical matter, taking into consideration the exigencies of 
     the situation.

     Sec. 825.304  What recourse do employing offices have if 
       employees fail to provide the required notice?

       (a) An employing office may waive employees' FMLA notice 
     obligations or the employing office's own internal rules on 
     leave notice requirements.
       (b) If an employee fails to give 30 days notice for 
     foreseeable leave with no reasonable excuse for the delay, 
     the employing office may delay the taking of FMLA leave until 
     at least 30 days after the date the employee provides notice 
     to the employing office of the need for FMLA leave.
       (c) In all cases, in order for the onset of an employee's 
     FMLA leave to be delayed due to lack of required notice, it 
     must be clear that the employee had actual notice of the FMLA 
     notice requirements. This condition would be satisfied by the 
     employing office's proper posting, at the worksite where the 
     employee is employed, of the information regarding the FMLA 
     provided (pursuant to section 301(h)(2) of the CAA, 2 U.S.C. 
     1381(h)(2)) by the Office of Compliance to the employing 
     office in a manner suitable for posting. Furthermore, the 
     need for leave and the approximate date leave would be taken 
     must have been clearly foreseeable to the employee 30 days in 
     advance of the leave. For example, knowledge that an employee 
     would receive a telephone call about the availability of a 
     child for adoption at some unknown point in the future would 
     not be sufficient.

     Sec. 825.305  When must an employee provide medical 
       certification to support FMLA leave?

       (a) An employing office may require that an employee's 
     leave to care for the employee's seriously ill spouse, son, 
     daughter, or parent, or due to the employee's own serious 
     health condition that makes the employee unable to perform 
     one or more of the essential functions of the employee's 
     position, be supported by a certification issued by the 
     health care provider of the employee or the employee's ill 
     family member. An employing office must give notice of a 
     requirement for medical certification each time a 
     certification is required; such notice must be written notice 
     whenever required by Sec. 825.301. An employing office's oral 
     request to an employee to furnish any subsequent medical 
     certification is sufficient.
       (b) When the leave is foreseeable and at least 30 days 
     notice has been provided, the employee should provide the 
     medical certification before the leave begins. When this is 
     not possible, the employee must provide the requested 
     certification to the employing office within the time frame 
     requested by the employing office (which must allow at least 
     15 calendar days after the employing office's request), 
     unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts.
       (c) In most cases, the employing office should request that 
     an employee furnish certification from a health care provider 
     at the time the employee gives notice of the need for leave 
     or within two business days thereafter, or, in the case of 
     unforeseen leave, within two business days after the leave 
     commences. The employing office may request certification at 
     some later date if the employing office later has reason to 
     question the appropriateness of the leave or its duration.
       (d) At the time the employing office requests 
     certification, the employing office must also advise an 
     employee of the anticipated consequences of an employee's 
     failure to provide adequate certification. The employing 
     office shall advise an employee whenever the employing office 
     finds a certification incomplete, and provide the employee a 
     reasonable opportunity to cure any such deficiency.
       (e) If the employing office's sick or medical leave plan 
     imposes medical certification requirements that are less 
     stringent than the certification requirements of these 
     regulations, and the employee or employing office elects to 
     substitute paid sick, vacation, personal or family leave for 
     unpaid FMLA leave where authorized (see Sec. 825.207), only 
     the employing office's less stringent sick leave 
     certification requirements may be imposed.

     Sec. 825.306  How much information may be required in medical 
       certifications of a serious health condition?

       (a) The Office of Compliance has made available an optional 
     form (``Certification of Physician or Practitioner'') for 
     employees' (or their family members') use in obtaining 
     medical certification, including second and third opinions, 
     from health care providers that meets FMLA's certification 
     requirements. (See Appendix B to these regulations.) This 
     optional form reflects certification requirements so as to 
     permit the health care provider to furnish appropriate 
     medical information within his or her knowledge.
       (b) The Certification of Physician or Practitioner form is 
     modeled closely on Form WH-380, as revised, which was 
     developed by the Department of Labor (see 29 C.F.R. Part 825, 
     Appendix B). The employing office may use the Office of 
     Compliance's form, or Form WH-380, as revised, or another 
     form containing the same basic information; however, no 
     additional information may be required. In all instances the 
     information on the form must relate only to the serious 
     health condition for which the current need for leave exists. 
     The form identifies the health care provider and type of 
     medical practice (including pertinent specialization, if 
     any), makes maximum use of checklist entries for ease in 
     completing the form, and contains required entries for:
       (1) A certification as to which part of the definition of 
     ``serious health condition'' (see Sec. 825.114), if any, 
     applies to the patient's condition, and the medical facts 
     which support the certification, including a brief statement 
     as to how the medical facts meet the criteria of the 
     definition.
       (2)(i) The approximate date the serious health condition 
     commenced, and its probable duration, including the probable 
     duration of the patient's present incapacity (defined to mean 
     inability to work, attend school or perform other regular 
     daily activities due to the serious health condition, 
     treatment therefor, or recovery therefrom) if different.
       (ii) Whether it will be necessary for the employee to take 
     leave intermittently or to work on a reduced leave schedule 
     basis (i.e., part-time) as a result of the serious health 
     condition (see Sec. 825.117 and Sec. 825.203), and if so, the 
     probable duration of such schedule.
       (iii) If the condition is pregnancy or a chronic condition 
     within the meaning of

[[Page S3973]]

     Sec. 825.114(a)(2)(iii), whether the patient is presently 
     incapacitated and the likely duration and frequency of 
     episodes of incapacity.
       (3)(i)(A) If additional treatments will be required for the 
     condition, an estimate of the probable number of such 
     treatments.
       (B) If the patient's incapacity will be intermittent, or 
     will require a reduced leave schedule, an estimate of the 
     probable number and interval between such treatments, actual 
     or estimated dates of treatment if known, and period required 
     for recovery if any.
       (ii) If any of the treatments referred to in subparagraph 
     (i) will be provided by another provider of health services 
     (e.g., physical therapist), the nature of the treatments.
       (iii) If a regimen of continuing treatment by the patient 
     is required under the supervision of the health care 
     provider, a general description of the regimen (see 
     Sec. 825.114(b)).
       (4) If medical leave is required for the employee's absence 
     from work because of the employee's own condition (including 
     absences due to pregnancy or a chronic condition), whether 
     the employee--
       (i) is unable to perform work of any kind;
       (ii) is unable to perform any one or more of the essential 
     functions of the employee's position, including a statement 
     of the essential functions the employee is unable to perform 
     (see Sec. 825.115), based on either information provided on a 
     statement from the employing office of the essential 
     functions of the position or, if not provided, discussion 
     with the employee about the employee's job functions; or
       (iii) must be absent from work for treatment.
       (5)(i) If leave is required to care for a family member of 
     the employee with a serious health condition, whether the 
     patient requires assistance for basic medical or personal 
     needs or safety, or for transportation; or if not, whether 
     the employee's presence to provide psychological comfort 
     would be beneficial to the patient or assist in the patient's 
     recovery. The employee is required to indicate on the form 
     the care he or she will provide and an estimate of the time 
     period.
       (ii) If the employee's family member will need care only 
     intermittently or on a reduced leave schedule basis (i.e., 
     part-time), the probable duration of the need.
       (c) If the employing office's sick or medical leave plan 
     requires less information to be furnished in medical 
     certifications than the certification requirements of these 
     regulations, and the employee or employing office elects to 
     substitute paid sick, vacation, personal or family leave for 
     unpaid FMLA leave where authorized (see Sec. 825.207), only 
     the employing office's lesser sick leave certification 
     requirements may be imposed.

     Sec. 825.307  What may an employing office do if it questions 
       the adequacy of a medical certification?

       (a) If an employee submits a complete certification signed 
     by the health care provider, the employing office may not 
     request additional information from the employee's health 
     care provider. However, a health care provider representing 
     the employing office may contact the employee's health care 
     provider, with the employee's permission, for purposes of 
     clarification and authenticity of the medical certification.
       (1) If an employee is on FMLA leave running concurrently 
     with a workers' compensation absence, and the provisions of 
     the workers' compensation statute permit the employing office 
     or the employing office's representative to have direct 
     contact with the employee's workers' compensation health care 
     provider, the employing office may follow the workers' 
     compensation provisions.
       (2) An employing office that has reason to doubt the 
     validity of a medical certification may require the employee 
     to obtain a second opinion at the employing office's expense. 
     Pending receipt of the second (or third) medical opinion, the 
     employee is provisionally entitled to the benefits of the 
     FMLA as made applicable by the CAA, including maintenance of 
     group health benefits. If the certifications do not 
     ultimately establish the employee's entitlement to FMLA 
     leave, the leave shall not be designated as FMLA leave and 
     may be treated as paid or unpaid leave under the employing 
     office's established leave policies. The employing office is 
     permitted to designate the health care provider to furnish 
     the second opinion, but the selected health care provider may 
     not be employed on a regular basis by the employing office. 
     See also paragraphs (e) and (f) of this section.
       (b) The employing office may not regularly contract with or 
     otherwise regularly utilize the services of the health care 
     provider furnishing the second opinion unless the employing 
     office is located in an area where access to health care is 
     extremely limited (e.g., a rural area where no more than one 
     or two doctors practice in the relevant specialty in the 
     vicinity).
       (c) If the opinions of the employee's and the employing 
     office's designated health care providers differ, the 
     employing office may require the employee to obtain 
     certification from a third health care provider, again at the 
     employing office's expense. This third opinion shall be final 
     and binding. The third health care provider must be 
     designated or approved jointly by the employing office and 
     the employee. The employing office and the employee must each 
     act in good faith to attempt to reach agreement on whom to 
     select for the third opinion provider. If the employing 
     office does not attempt in good faith to reach agreement, the 
     employing office will be bound by the first certification. If 
     the employee does not attempt in good faith to reach 
     agreement, the employee will be bound by the second 
     certification. For example, an employee who refuses to agree 
     to see a doctor in the specialty in question may be failing 
     to act in good faith. On the other hand, an employing office 
     that refuses to agree to any doctor on a list of specialists 
     in the appropriate field provided by the employee and whom 
     the employee has not previously consulted may be failing to 
     act in good faith.
       (d) The employing office is required to provide the 
     employee with a copy of the second and third medical 
     opinions, where applicable, upon request by the employee. 
     Requested copies are to be provided within two business days 
     unless extenuating circumstances prevent such action.
       (e) If the employing office requires the employee to obtain 
     either a second or third opinion the employing office must 
     reimburse an employee or family member for any reasonable 
     ``out of pocket'' travel expenses incurred to obtain the 
     second and third medical opinions. The employing office may 
     not require the employee or family member to travel outside 
     normal commuting distance for purposes of obtaining the 
     second or third medical opinions except in very unusual 
     circumstances.
       (f) In circumstances when the employee or a family member 
     is visiting in another country, or a family member resides in 
     a another country, and a serious health condition develops, 
     the employing office shall accept a medical certification as 
     well as second and third opinions from a health care provider 
     who practices in that country.

     Sec. 825.308  Under what circumstances may an employing 
       office request subsequent recertifications of medical 
       conditions?

       (a) For pregnancy, chronic, or permanent/long-term 
     conditions under continuing supervision of a health care 
     provider (as defined in Sec. 825.114(a)(2) (ii), (iii) or 
     (iv)), an employing office may request recertification no 
     more often than every 30 days and only in connection with an 
     absence by the employee, unless:
       (1) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration or frequency 
     of absences, the severity of the condition, complications); 
     or
       (2) The employing office receives information that casts 
     doubt upon the employee's stated reason for the absence.
       (b)(1) If the minimum duration of the period of incapacity 
     specified on a certification furnished by the health care 
     provider is more than 30 days, the employing office may not 
     request recertification until that minimum duration has 
     passed unless one of the conditions set forth in paragraph 
     (c) (1), (2) or (3) of this section is met.
       (2) For FMLA leave taken intermittently or on a reduced 
     leave schedule basis, the employing office may not request 
     recertification in less than the minimum period specified on 
     the certification as necessary for such leave (including 
     treatment) unless one of the conditions set forth in 
     paragraph (c) (1), (2) or (3) of this section is met.
       (c) For circumstances not covered by paragraphs (a) or (b) 
     of this section, an employing office may request 
     recertification at any reasonable interval, but not more 
     often than every 30 days, unless:
       (1) The employee requests an extension of leave;
       (2) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration of the 
     illness, the nature of the illness, complications); or
       (3) The employing office receives information that casts 
     doubt upon the continuing validity of the certification.
       (d) The employee must provide the requested recertification 
     to the employing office within the time frame requested by 
     the employing office (which must allow at least 15 calendar 
     days after the employing office's request), unless it is not 
     practicable under the particular circumstances to do so 
     despite the employee's diligent, good faith efforts.
       (e) Any recertification requested by the employing office 
     shall be at the employee's expense unless the employing 
     office provides otherwise. No second or third opinion on 
     recertification may be required.

     Sec. 825.309  What notice may an employing office require 
       regarding an employee's intent to return to work?

       (a) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intent to return to work. The employing office's policy 
     regarding such reports may not be discriminatory and must 
     take into account all of the relevant facts and circumstances 
     related to the individual employee's leave situation.
       (b) If an employee gives unequivocal notice of intent not 
     to return to work, the employing office's obligations under 
     FMLA, as made applicable by the CAA, to maintain health 
     benefits (subject to requirements of COBRA or 5 U.S.C. 8905a, 
     whichever is applicable) and to restore the employee cease. 
     However, these obligations continue if an employee indicates 
     he or she may be unable to return to work but expresses a 
     continuing desire to do so.
       (c) It may be necessary for an employee to take more leave 
     than originally anticipated. Conversely, an employee may 
     discover after beginning leave that the circumstances have 
     changed and the amount of leave originally anticipated is no 
     longer necessary. An employee may not be required to take 
     more

[[Page S3974]]

     FMLA leave than necessary to resolve the circumstance that 
     precipitated the need for leave. In both of these situations, 
     the employing office may require that the employee provide 
     the employing office reasonable notice (i.e., within two 
     business days) of the changed circumstances where 
     foreseeable. The employing office may also obtain information 
     on such changed circumstances through requested status 
     reports.

     Sec. 825.310  Under what circumstances may an employing 
       office require that an employee submit a medical 
       certification that the employee is able (or unable) to 
       return to work (i.e., a ``fitness-for-duty'' report)?

       (a) As a condition of restoring an employee whose FMLA 
     leave was occasioned by the employee's own serious health 
     condition that made the employee unable to perform the 
     employee's job, an employing office may have a uniformly-
     applied policy or practice that requires all similarly-
     situated employees (i.e., same occupation, same serious 
     health condition) who take leave for such conditions to 
     obtain and present certification from the employee's health 
     care provider that the employee is able to resume work.
       (b) If the terms of a collective bargaining agreement 
     govern an employee's return to work, those provisions shall 
     be applied. Similarly, requirements under the Americans with 
     Disabilities Act (ADA), as made applicable by the CAA, that 
     any return-to-work physical be job-related and consistent 
     with business necessity apply. For example, an attorney could 
     not be required to submit to a medical examination or inquiry 
     just because her leg had been amputated. The essential 
     functions of an attorney's job do not require use of both 
     legs; therefore such an inquiry would not be job related. An 
     employing office may require a warehouse laborer, whose back 
     impairment affects the ability to lift, to be examined by an 
     orthopedist, but may not require this employee to submit to 
     an HIV test where the test is not related to either the 
     essential functions of his/her job or to his/her impairment.
       (c) An employing office may seek fitness-for-duty 
     certification only with regard to the particular health 
     condition that caused the employee's need for FMLA leave. The 
     certification itself need only be a simple statement of an 
     employee's ability to return to work. A health care provider 
     employed by the employing office may contact the employee's 
     health care provider with the employee's permission, for 
     purposes of clarification of the employee's fitness to return 
     to work. No additional information may be acquired, and 
     clarification may be requested only for the serious health 
     condition for which FMLA leave was taken. The employing 
     office may not delay the employee's return to work while 
     contact with the health care provider is being made.
       (d) The cost of the certification shall be borne by the 
     employee and the employee is not entitled to be paid for the 
     time or travel costs spent in acquiring the certification.
       (e) The notice that employing offices are required to give 
     to each employee giving notice of the need for FMLA leave 
     regarding their FMLA rights and obligations as made 
     applicable by the CAA (see Sec. 825.301) shall advise the 
     employee if the employing office will require fitness-for-
     duty certification to return to work. If the employing office 
     has a handbook explaining employment policies and benefits, 
     the handbook should explain the employing office's general 
     policy regarding any requirement for fitness-for-duty 
     certification to return to work. Specific notice shall also 
     be given to any employee from whom fitness-for-duty 
     certification will be required either at the time notice of 
     the need for leave is given or immediately after leave 
     commences and the employing office is advised of the medical 
     circumstances requiring the leave, unless the employee's 
     condition changes from one that did not previously require 
     certification pursuant to the employing office's practice or 
     policy. No second or third fitness-for-duty certification may 
     be required.
       (f) An employing office may delay restoration to employment 
     until an employee submits a required fitness-for-duty 
     certification unless the employing office has failed to 
     provide the notices required in paragraph (e) of this 
     section.
       (g) An employing office is not entitled to certification of 
     fitness to return to duty when the employee takes 
     intermittent leave as described in Sec. 825.203.
       (h) When an employee is unable to return to work after FMLA 
     leave because of the continuation, recurrence, or onset of 
     the employee's or family member's serious health condition, 
     thereby preventing the employing office from recovering its 
     share of health benefit premium payments made on the 
     employee's behalf during a period of unpaid FMLA leave, the 
     employing office may require medical certification of the 
     employee's or the family member's serious health condition. 
     (See Sec. 825.213(a)(3).) The cost of the certification shall 
     be borne by the employee and the employee is not entitled to 
     be paid for the time or travel costs spent in acquiring the 
     certification.

     Sec. 825.311  What happens if an employee fails to satisfy 
       the medical certification and/or recertification 
       requirements?

       (a) In the case of foreseeable leave, an employing office 
     may delay the taking of FMLA leave to an employee who fails 
     to provide timely certification after being requested by the 
     employing office to furnish such certification (i.e., within 
     15 calendar days, if practicable), until the required 
     certification is provided.
       (b) When the need for leave is not foreseeable, or in the 
     case of recertification, an employee must provide 
     certification (or recertification) within the time frame 
     requested by the employing office (which must allow at least 
     15 days after the employing office's request) or as soon as 
     reasonably possible under the particular facts and 
     circumstances. In the case of a medical emergency, it may not 
     be practicable for an employee to provide the required 
     certification within 15 calendar days. If an employee fails 
     to provide a medical certification within a reasonable time 
     under the pertinent circumstances, the employing office may 
     delay the employee's continuation of FMLA leave. If the 
     employee never produces the certification, the leave is not 
     FMLA leave.
       (c) When requested by the employing office pursuant to a 
     uniformly applied policy for similarly-situated employees, 
     the employee must provide medical certification at the time 
     the employee seeks reinstatement at the end of FMLA leave 
     taken for the employee's serious health condition, that the 
     employee is fit for duty and able to return to work (see 
     Sec. 825.310(a)) if the employing office has provided the 
     required notice (see Sec. 825.301(c)); the employing office 
     may delay restoration until the certification is provided. In 
     this situation, unless the employee provides either a 
     fitness-for-duty certification or a new medical certification 
     for a serious health condition at the time FMLA leave is 
     concluded, the employee may be terminated. See also 
     Sec. 825.213(a)(3).

     Sec. 825.312  Under what circumstances may an employing 
       office refuse to provide FMLA leave or reinstatement to 
       eligible employees?

       (a) If an employee fails to give timely advance notice when 
     the need for FMLA leave is foreseeable, the employing office 
     may delay the taking of FMLA leave until 30 days after the 
     date the employee provides notice to the employing office of 
     the need for FMLA leave. (See Sec. 825.302.)
       (b) If an employee fails to provide in a timely manner a 
     requested medical certification to substantiate the need for 
     FMLA leave due to a serious health condition, an employing 
     office may delay continuation of FMLA leave until an employee 
     submits the certificate. (See Sec. Sec.  825.305 and 
     825.311.) If the employee never produces the certification, 
     the leave is not FMLA leave.
       (c) If an employee fails to provide a requested fitness-
     for-duty certification to return to work, an employing office 
     may delay restoration until the employee submits the 
     certificate. (See Sec. Sec.  825.310 and 825.311.)
       (d) An employee has no greater right to reinstatement or to 
     other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. Thus, an employee's rights to continued leave, 
     maintenance of health benefits, and restoration cease under 
     FMLA, as made applicable by the CAA, if and when the 
     employment relationship terminates (e.g., layoff), unless 
     that relationship continues, for example, by the employee 
     remaining on paid FMLA leave. If the employee is recalled or 
     otherwise re-employed, an eligible employee is immediately 
     entitled to further FMLA leave for an FMLA-qualifying reason. 
     An employing office must be able to show, when an employee 
     requests restoration, that the employee would not otherwise 
     have been employed if leave had not been taken in order to 
     deny restoration to employment. (See Sec. 825.216.)
       (e) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intention to return to work. (See Sec. 825.309.) If an 
     employee unequivocally advises the employing office either 
     before or during the taking of leave that the employee does 
     not intend to return to work, and the employment relationship 
     is terminated, the employee's entitlement to continued leave, 
     maintenance of health benefits, and restoration ceases unless 
     the employment relationship continues, for example, by the 
     employee remaining on paid leave. An employee may not be 
     required to take more leave than necessary to address the 
     circumstances for which leave was taken. If the employee is 
     able to return to work earlier than anticipated, the employee 
     shall provide the employing office two business days notice 
     where feasible; the employing office is required to restore 
     the employee once such notice is given, or where such prior 
     notice was not feasible.
       (f) An employing office may deny restoration to employment, 
     but not the taking of FMLA leave and the maintenance of 
     health benefits, to an eligible employee only under the terms 
     of the ``key employee'' exemption. Denial of reinstatement 
     must be necessary to prevent ``substantial and grievous 
     economic injury'' to the employing office's operations. The 
     employing office must notify the employee of the employee's 
     status as a ``key employee'' and of the employing office's 
     intent to deny reinstatement on that basis when the employing 
     office makes these determinations. If leave has started, the 
     employee must be given a reasonable opportunity to return to 
     work after being so notified. (See Sec. 825.219.)
       (g) An employee who fraudulently obtains FMLA leave from an 
     employing office is not protected by job restoration or 
     maintenance of health benefits provisions of the FMLA as made 
     applicable by the CAA.
       (h) If the employing office has a uniformly-applied policy 
     governing outside or supplemental employment, such a policy 
     may continue to apply to an employee while on

[[Page S3975]]

     FMLA leave. An employing office which does not have such a 
     policy may not deny benefits to which an employee is entitled 
     under FMLA as made applicable by the CAA on this basis unless 
     the FMLA leave was fraudulently obtained as in paragraph (g) 
     of this section.

      Subpart D--What Enforcement Mechanisms Does the CAA Provide?

     Sec. 825.400  What can employees do who believe that their 
       rights under the FMLA as made applicable by the CAA have 
       been violated?

       (a) To commence a proceeding, a covered employee alleging a 
     violation of the rights and protections of the FMLA made 
     applicable by the CAA must request counseling by the Office 
     of Compliance not later than 180 days after the date of the 
     alleged violation. If a covered employee misses this 
     deadline, the covered employee will be unable to obtain a 
     remedy under the CAA.
       (b) The following procedures are available under title IV 
     of the CAA for covered employees who believe that their 
     rights under FMLA as made applicable by the CAA have been 
     violated--
       (1) counseling;
       (2) mediation; and
       (3) election of either--
       (A) a formal complaint, filed with the Office of 
     Compliance, and a hearing before a hearing officer, subject 
     to review by the Board of Directors of the Office of 
     Compliance, and judicial review in the United States Court of 
     Appeals for the Federal Circuit; or
       (B) a civil action in a district court of the United 
     States.
       (c) Regulations of the Office of Compliance describing and 
     governing these procedures are found at [proposed rules can 
     be found at 141 Cong. Rec. S17012 (November 14, 1995)].

     Sec. 825.401  [Reserved]

     Sec. 825.402  [Reserved]

     Sec. 825.403  [Reserved]

     Sec. 825.404  [Reserved]

                         Subpart E--[Reserved]

      Subpart F--What Special Rules Apply to Employees of Schools?

     Sec. 825.600  To whom do the special rules apply?

       (a) Certain special rules apply to employees of ``local 
     educational agencies'', including public school boards and 
     elementary schools under their jurisdiction, and private 
     elementary and secondary schools. The special rules do not 
     apply to other kinds of educational institutions, such as 
     colleges and universities, trade schools, and preschools.
       (b) Educational institutions are covered by FMLA as made 
     applicable by the CAA (and these special rules). The usual 
     requirements for employees to be ``eligible'' apply.
       (c) The special rules affect the taking of intermittent 
     leave or leave on a reduced leave schedule, or leave near the 
     end of an academic term (semester), by instructional 
     employees. ``Instructional employees'' are those whose 
     principal function is to teach and instruct students in a 
     class, a small group, or an individual setting. This term 
     includes not only teachers, but also athletic coaches, 
     driving instructors, and special education assistants such as 
     signers for the hearing impaired. It does not include, and 
     the special rules do not apply to, teacher assistants or 
     aides who do not have as their principal job actual teaching 
     or instructing, nor does it include auxiliary personnel such 
     as counselors, psychologists, or curriculum specialists. It 
     also does not include cafeteria workers, maintenance workers, 
     or bus drivers.
       (d) Special rules which apply to restoration to an 
     equivalent position apply to all employees of local 
     educational agencies.

     Sec. 825.601  What limitations apply to the taking of 
       intermittent leave or leave on a reduced leave schedule?

       (a) Leave taken for a period that ends with the school year 
     and begins the next semester is leave taken consecutively 
     rather than intermittently. The period during the summer 
     vacation when the employee would not have been required to 
     report for duty is not counted against the employee's FMLA 
     leave entitlement. An instructional employee who is on FMLA 
     leave at the end of the school year must be provided with any 
     benefits over the summer vacation that employees would 
     normally receive if they had been working at the end of the 
     school year.
       (1) If an eligible instructional employee needs 
     intermittent leave or leave on a reduced leave schedule to 
     care for a family member, or for the employee's own serious 
     health condition, which is foreseeable based on planned 
     medical treatment, and the employee would be on leave for 
     more than 20 percent of the total number of working days over 
     the period the leave would extend, the employing office may 
     require the employee to choose either to:
       (i) Take leave for a period or periods of a particular 
     duration, not greater than the duration of the planned 
     treatment; or
       (ii) Transfer temporarily to an available alternative 
     position for which the employee is qualified, which has 
     equivalent pay and benefits and which better accommodates 
     recurring periods of leave than does the employee's regular 
     position.
       (2) These rules apply only to a leave involving more than 
     20 percent of the working days during the period over which 
     the leave extends. For example, if an instructional employee 
     who normally works five days each week needs to take two days 
     of FMLA leave per week over a period of several weeks, the 
     special rules would apply. Employees taking leave which 
     constitutes 20 percent or less of the working days during the 
     leave period would not be subject to transfer to an 
     alternative position. ``Periods of a particular duration'' 
     means a block, or blocks, of time beginning no earlier than 
     the first day for which leave is needed and ending no later 
     than the last day on which leave is needed, and may include 
     one uninterrupted period of leave.
       (b) If an instructional employee does not give required 
     notice of foreseeable FMLA leave (see Sec. 825.302) to be 
     taken intermittently or on a reduced leave schedule, the 
     employing office may require the employee to take leave of a 
     particular duration, or to transfer temporarily to an 
     alternative position. Alternatively, the employing office may 
     require the employee to delay the taking of leave until the 
     notice provision is met. See Sec. 825.207(h).

     Sec. 825.602  What limitations apply to the taking of leave 
       near the end of an academic term?

       (a) There are also different rules for instructional 
     employees who begin leave more than five weeks before the end 
     of a term, less than five weeks before the end of a term, and 
     less than three weeks before the end of a term. Regular rules 
     apply except in circumstances when:
       (1) An instructional employee begins leave more than five 
     weeks before the end of a term. The employing office may 
     require the employee to continue taking leave until the end 
     of the term if--
       (i) the leave will last at least three weeks, and
       (ii) the employee would return to work during the three-
     week period before the end of the term.
       (2) The employee begins leave for a purpose other than the 
     employee's own serious health condition during the five-week 
     period before the end of a term. The employing office may 
     require the employee to continue taking leave until the end 
     of the term if--
       (i) the leave will last more than two weeks, and
       (ii) the employee would return to work during the two-week 
     period before the end of the term.
       (3) The employee begins leave for a purpose other than the 
     employee's own serious health condition during the three-week 
     period before the end of a term, and the leave will last more 
     than five working days. The employing office may require the 
     employee to continue taking leave until the end of the term.
        (b) For purposes of these provisions, ``academic term'' 
     means the school semester, which typically ends near the end 
     of the calendar year and the end of spring each school year. 
     In no case may a school have more than two academic terms or 
     semesters each year for purposes of FMLA as made applicable 
     by the CAA. An example of leave falling within these 
     provisions would be where an employee plans two weeks of 
     leave to care for a family member which will begin three 
     weeks before the end of the term. In that situation, the 
     employing office could require the employee to stay out on 
     leave until the end of the term.

     Sec. 825.603  Is all leave taken during ``periods of a 
       particular duration'' counted against the FMLA leave 
       entitlement?

       (a) If an employee chooses to take leave for ``periods of a 
     particular duration'' in the case of intermittent or reduced 
     schedule leave, the entire period of leave taken will count 
     as FMLA leave.
       (b) In the case of an employee who is required to take 
     leave until the end of an academic term, only the period of 
     leave until the employee is ready and able to return to work 
     shall be charged against the employee's FMLA leave 
     entitlement. The employing office has the option not to 
     require the employee to stay on leave until the end of the 
     school term. Therefore, any additional leave required by the 
     employing office to the end of the school term is not counted 
     as FMLA leave; however, the employing office shall be 
     required to maintain the employee's group health insurance 
     and restore the employee to the same or equivalent job 
     including other benefits at the conclusion of the leave.

     Sec. 825.604  What special rules apply to restoration to ``an 
       equivalent position''?

       The determination of how an employee is to be restored to 
     ``an equivalent position'' upon return from FMLA leave will 
     be made on the basis of ``established school board policies 
     and practices, private school policies and practices, and 
     collective bargaining agreements''. The ``established 
     policies'' and collective bargaining agreements used as a 
     basis for restoration must be in writing, must be made known 
     to the employee prior to the taking of FMLA leave, and must 
     clearly explain the employee's restoration rights upon return 
     from leave. Any established policy which is used as the basis 
     for restoration of an employee to ``an equivalent position'' 
     must provide substantially the same protections as provided 
     in the FMLA, as made applicable by the CAA, for reinstated 
     employees. See Sec. 825.215. In other words, the policy or 
     collective bargaining agreement must provide for restoration 
     to an ``equivalent position'' with equivalent employment 
     benefits, pay, and other terms and conditions of employment. 
     For example, an employee may not be restored to a position 
     requiring additional licensure or certification.

[[Page S3976]]

     Subpart G--How Do Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements Affect Employee Rights Under the FMLA 
                     as Made Applicable by the CAA?

     Sec. 825.700  What if an employing office provides more 
       generous benefits than required by FMLA as made applicable 
       by the CAA?

       (a) An employing office must observe any employment benefit 
     program or plan that provides greater family or medical leave 
     rights to employees than the rights established by the FMLA. 
     Conversely, the rights established by the FMLA, as made 
     applicable by the CAA, may not be diminished by any 
     employment benefit program or plan. For example, a provision 
     of a collective bargaining agreement (CBA) which provides for 
     reinstatement to a position that is not equivalent because of 
     seniority (e.g., provides lesser pay) is superseded by FMLA. 
     If an employing office provides greater unpaid family leave 
     rights than are afforded by FMLA, the employing office is not 
     required to extend additional rights afforded by FMLA, such 
     as maintenance of health benefits (other than through COBRA 
     or 5 U.S.C. 8905a, whichever is applicable), to the 
     additional leave period not covered by FMLA. If an employee 
     takes paid or unpaid leave and the employing office does not 
     designate the leave as FMLA leave, the leave taken does not 
     count against an employee's FMLA entitlement.
       (b) Nothing in the FMLA, as made applicable by the CAA, 
     prevents an employing office from amending existing leave and 
     employee benefit programs, provided they comply with FMLA as 
     made applicable by the CAA. However, nothing in the FMLA, as 
     made applicable by the CAA, is intended to discourage 
     employing offices from adopting or retaining more generous 
     leave policies.
       (c) [Reserved]

     Sec. 825.701  [Reserved]

     Sec. 825.702  How does FMLA affect anti-discrimination laws 
       as applied by section 201 of the CAA?

       (a) Nothing in FMLA modifies or affects any applicable law 
     prohibiting discrimination on the basis of race, religion, 
     color, national origin, sex, age, or disability (e.g., title 
     VII of the Civil Rights Act of 1964, as amended by the 
     Pregnancy Discrimination Act), as made applicable by the CAA. 
     FMLA's legislative history explains that FMLA is ``not 
     intended to modify or affect the Rehabilitation Act of 1973, 
     as amended, the regulations concerning employment which have 
     been promulgated pursuant to that statute, or the Americans 
     with Disabilities Act of 1990, or the regulations issued 
     under that Act. Thus, the leave provisions of the [FMLA] are 
     wholly distinct from the reasonable accommodation obligations 
     of employers covered under the [ADA] * * * or the Federal 
     government itself. The purpose of the FMLA is to make leave 
     available to eligible employees and employing offices within 
     its coverage, and not to limit already existing rights and 
     protection''. S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). 
     An employing office must therefore provide leave under 
     whichever statutory provision provides the greater rights to 
     employees.
       (b) If an employee is a qualified individual with a 
     disability within the meaning of the Americans with 
     Disabilities Act (ADA), the employing office must make 
     reasonable accommodations, etc., barring undue hardship, in 
     accordance with the ADA. At the same time, the employing 
     office must afford an employee his or her FMLA rights. ADA's 
     ``disability'' and FMLA's ``serious health condition'' are 
     different concepts, and must be analyzed separately. FMLA 
     entitles eligible employees to 12 weeks of leave in any 12-
     month period, whereas the ADA allows an indeterminate amount 
     of leave, barring undue hardship, as a reasonable 
     accommodation. FMLA requires employing offices to maintain 
     employees' group health plan coverage during FMLA leave on 
     the same conditions as coverage would have been provided if 
     the employee had been continuously employed during the leave 
     period, whereas ADA does not require maintenance of health 
     insurance unless other employees receive health insurance 
     during leave under the same circumstances.
       (c)(1) A reasonable accommodation under the ADA might be 
     accomplished by providing an individual with a disability 
     with a part-time job with no health benefits, assuming the 
     employing office did not ordinarily provide health insurance 
     for part-time employees. However, FMLA would permit an 
     employee to work a reduced leave schedule until the 
     equivalent of 12 workweeks of leave were used, with group 
     health benefits maintained during this period. FMLA permits 
     an employing office to temporarily transfer an employee who 
     is taking leave intermittently or on a reduced leave schedule 
     to an alternative position, whereas the ADA allows an 
     accommodation of reassignment to an equivalent, vacant 
     position only if the employee cannot perform the essential 
     functions of the employee's present position and an 
     accommodation is not possible in the employee's present 
     position, or an accommodation in the employee's present 
     position would cause an undue hardship. The examples in the 
     following paragraphs of this section demonstrate how the two 
     laws would interact with respect to a qualified individual 
     with a disability.
       (2) A qualified individual with a disability who is also an 
     ``eligible employee'' entitled to FMLA leave requests 10 
     weeks of medical leave as a reasonable accommodation, which 
     the employing office grants because it is not an undue 
     hardship. The employing office advises the employee that the 
     10 weeks of leave is also being designated as FMLA leave and 
     will count towards the employee's FMLA leave entitlement. 
     This designation does not prevent the parties from also 
     treating the leave as a reasonable accommodation and 
     reinstating the employee into the same job, as required by 
     the ADA, rather than an equivalent position under FMLA, if 
     that is the greater right available to the employee. At the 
     same time, the employee would be entitled under FMLA to have 
     the employing office maintain group health plan coverage 
     during the leave, as that requirement provides the greater 
     right to the employee.
       (3) If the same employee needed to work part-time (a 
     reduced leave schedule) after returning to his or her same 
     job, the employee would still be entitled under FMLA to have 
     group health plan coverage maintained for the remainder of 
     the two-week equivalent of FMLA leave entitlement, 
     notwithstanding an employing office policy that part-time 
     employees do not receive health insurance. This employee 
     would be entitled under the ADA to reasonable accommodations 
     to enable the employee to perform the essential functions of 
     the part-time position. In addition, because the employee is 
     working a part-time schedule as a reasonable accommodation, 
     the employee would be shielded from FMLA's provision for 
     temporary assignment to a different alternative position. 
     Once the employee has exhausted his or her remaining FMLA 
     leave entitlement while working the reduced (part-time) 
     schedule, if the employee is a qualified individual with a 
     disability, and if the employee is unable to return to the 
     same full-time position at that time, the employee might 
     continue to work part-time as a reasonable accommodation, 
     barring undue hardship; the employee would then be entitled 
     to only those employment benefits ordinarily provided by the 
     employing office to part-time employees.
       (4) At the end of the FMLA leave entitlement, an employing 
     office is required under FMLA to reinstate the employee in 
     the same or an equivalent position, with equivalent pay and 
     benefits, to that which the employee held when leave 
     commenced. The employing office's FMLA obligations would be 
     satisfied if the employing office offered the employee an 
     equivalent full-time position. If the employee were unable to 
     perform the essential functions of that equivalent position 
     even with reasonable accommodation, because of a disability, 
     the ADA may require the employing office to make a reasonable 
     accommodation at that time by allowing the employee to work 
     part-time or by reassigning the employee to a vacant 
     position, barring undue hardship.
       (d)(1) If FMLA entitles an employee to leave, an employing 
     office may not, in lieu of FMLA leave entitlement, require an 
     employee to take a job with a reasonable accommodation. 
     However, ADA may require that an employing office offer an 
     employee the opportunity to take such a position. An 
     employing office may not change the essential functions of 
     the job in order to deny FMLA leave. See Sec. 825.220(b).
       (2) An employee may be on a workers' compensation absence 
     due to an on-the-job injury or illness which also qualifies 
     as a serious health condition under FMLA. The workers' 
     compensation absence and FMLA leave may run concurrently 
     (subject to proper notice and designation by the employing 
     office). At some point the health care provider providing 
     medical care pursuant to the workers' compensation injury may 
     certify the employee is able to return to work in a ``light 
     duty'' position. If the employing office offers such a 
     position, the employee is permitted but not required to 
     accept the position (see Sec. 825.220(d)). As a result, the 
     employee may no longer qualify for payments from the workers' 
     compensation benefit plan, but the employee is entitled to 
     continue on unpaid FMLA leave either until the employee is 
     able to return to the same or equivalent job the employee 
     left or until the 12-week FMLA leave entitlement is 
     exhausted. See Sec. 825.207(d)(2). If the employee returning 
     from the workers' compensation injury is a qualified 
     individual with a disability, he or she will have rights 
     under the ADA.
       (e) If an employing office requires certifications of an 
     employee's fitness for duty to return to work, as permitted 
     by FMLA under a uniform policy, it must comply with the ADA 
     requirement that a fitness for duty physical be job-related 
     and consistent with business necessity.
       (f) Under title VII of the Civil Rights Act of 1964, as 
     amended by the Pregnancy Discrimination Act, and as made 
     applicable by the CAA, an employing office should provide the 
     same benefits for women who are pregnant as the employing 
     office provides to other employees with short-term 
     disabilities. Because title VII does not require employees to 
     be employed for a certain period of time to be protected, an 
     employee employed for less than 12 months by any employing 
     office (and, therefore, not an ``eligible'' employee under 
     FMLA, as made applicable by the CAA) may not be denied 
     maternity leave if the employing office normally provides 
     short-term disability benefits to employees with the same 
     tenure who are experiencing other short-term disabilities.
       (g) For further information on Federal anti-discrimination 
     laws applied by section 201 of the CAA (2 U.S.C. 1311), 
     including title VII, the Rehabilitation Act, and the ADA, 
     individuals are encouraged to contact the Office of 
     Compliance.

[[Page S3977]]

                         Subpart H--Definitions

     Sec. 825.800  Definitions.

       For purposes of this part:
       ADA means the Americans With Disabilities Act (42 U.S.C. 
     12101 et seq.).
       CAA means the Congressional Accountability Act of 1995 
     (Pub. Law 104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq.).
       COBRA means the continuation coverage requirements of title 
     X of the Consolidated Omnibus Budget Reconciliation Act of 
     1986 (Pub. Law 99-272, title X, section 10002; 100 Stat. 227; 
     as amended; 29 U.S.C. 1161-1168).
       Continuing treatment means: A serious health condition 
     involving continuing treatment by a health care provider 
     includes any one or more of the following:
       (1) A period of incapacity (i.e., inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefor, or recovery 
     therefrom) of more than three consecutive calendar days, and 
     any subsequent treatment or period of incapacity relating to 
     the same condition, that also involves:
       (i) Treatment two or more times by a health care provider, 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider, or by a provider of health care 
     services (e.g., physical therapist) under orders of, or on 
     referral by, a health care provider; or
       (ii) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       (2) Any period of incapacity due to pregnancy, or for 
     prenatal care.
       (3) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which:
       (i) Requires periodic visits for treatment by a health care 
     provider, or by a nurse or physician's assistant under direct 
     supervision of a health care provider;
       (ii) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (iii) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       (4) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       (5) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider or by a provider of health care services under 
     orders of, or on referral by, a health care provider, either 
     for restorative surgery after an accident or other injury, or 
     for a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       Covered employee--The term ``covered employee'', as defined 
     in the CAA, means any employee of--(1) the House of 
     Representatives; (2) the Senate; (3) the Capitol Guide 
     Service; (4) the Capitol Police; (5) the Congressional Budget 
     Office; (6) the Office of the Architect of the Capitol; (7) 
     the Office of the Attending Physician; (8) the Office of 
     Compliance; or (9) the Office of Technology Assessment.
       Eligible employee--The term ``eligible employee'', as 
     defined in the CAA, means a covered employee who has been 
     employed in any employing office for 12 months and for at 
     least 1,250 hours of employment during the previous 12 
     months.
       Employ means to suffer or permit to work.
       Employee means an employee as defined in the CAA and 
     includes an applicant for employment and a former employee.
       Employee employed in an instructional capacity: See 
     Teacher.
       Employee of the Capitol Police--The term ``employee of the 
     Capitol Police'' includes any member or officer of the 
     Capitol Police.
       Employee of the House of Representatives--The term 
     ``employee of the House of Representatives'' includes an 
     individual occupying a position the pay for which is 
     disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (9) under 
     ``covered employee'' above.
       Employee of the Office of the Architect of the Capitol--The 
     term ``employee of the Office of the Architect of the 
     Capitol'' includes any employee of the Office of the 
     Architect of the Capitol, the Botanic Garden, or the Senate 
     Restaurants.
       Employee of the Senate--The term ``employee of the Senate'' 
     includes any employee whose pay is disbursed by the Secretary 
     of the Senate, but not any such individual employed by any 
     entity listed in subparagraphs (3) through (9) under 
     ``covered employee'' above.
       Employing Office--The term ``employing office'', as defined 
     in the CAA, means--
       (1) the personal office of a Member of the House of 
     Representatives or of a Senator;
       (2) a committee of the House of Representatives or the 
     Senate or a joint committee;
       (3) any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       (4) the Capitol Guide Board, the Capitol Police Board, the 
     Congessional Budget Office, the Office of the Architect of 
     the Capitol, the Office of the Attending Physician, the 
     Office of Compliance, and the Office of Technology 
     Assessment.
       Employment benefits means all benefits provided or made 
     available to employees by an employing office, including 
     group life insurance, health insurance, disability insurance, 
     sick leave, annual leave, educational benefits, and pensions, 
     regardless of whether such benefits are provided by a 
     practice or written policy of an employing office or through 
     an employee benefit plan. The term does not include non-
     employment related obligations paid by employees through 
     voluntary deductions such as supplemental insurance coverage. 
     (See Sec. 825.209(a)).
       FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et 
     seq.).
       FMLA means the Family and Medical Leave Act of 1993, Public 
     Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et 
     seq.).
       Group health plan means the Federal Employees Health 
     Benefits Program and any other plan of, or contributed to by, 
     an employing office (including a self-insured plan) to 
     provide health care (directly or otherwise) to the employing 
     office's employees, former employees, or the families of such 
     employees or former employees. For purposes of FMLA, as made 
     applicable by the CAA, the term ``group health plan'' shall 
     not include an insurance program providing health coverage 
     under which employees purchase individual policies from 
     insurers provided that--
       (1) no contributions are made by the employing office;
       (2) participation in the program is completely voluntary 
     for employees;
       (3) the sole functions of the employing office with respect 
     to the program are, without endorsing the program, to permit 
     the insurer to publicize the program to employees, to collect 
     premiums through payroll deductions and to remit them to the 
     insurer;
       (4) the employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       (5) the premium charged with respect to such coverage does 
     not increase in the event the employment relationship 
     terminates.
       Health care provider means:
       (1) A doctor of medicine or osteopathy who is authorized to 
     practice medicine or surgery by the State in which the doctor 
     practices; or
       (2) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law; and
       (3) Nurse practitioners, nurse-midwives and clinical social 
     workers who are authorized to practice under State law and 
     who are performing within the scope of their practice as 
     defined under State law; and
       (4) Christian Science practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts.
       (5) Any health care provider from whom an employing office 
     or a group health plan's benefits manager will accept 
     certification of the existence of a serious health condition 
     to substantiate a claim for benefits.
       (6) A health care provider as defined above who practices 
     in a country other than the United States, who is licensed to 
     practice in accordance with the laws and regulations of that 
     country.
       ``Incapable of self-care'' means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in several of the ``activities of daily living'' 
     (ADLs) or ``instrumental activities of daily living'' 
     (IADLs). Activities of daily living include adaptive 
     activities such as caring appropriately for one's grooming 
     and hygiene, bathing, dressing and eating. Instrumental 
     activities of daily living include cooking, cleaning, 
     shopping, taking public transportation, paying bills, 
     maintaining a residence, using telephones and directories, 
     using a post office, etc.
       Instructional employee: See Teacher.
       Intermittent leave means leave taken in separate periods of 
     time due to a single illness or injury, rather than for one 
     continuous period of time, and may include leave of periods 
     from an hour or more to several weeks. Examples of 
     intermittent leave would include leave taken on an occasional 
     basis for medical appointments, or leave taken several days 
     at a time spread over a period of six months, such as for 
     chemotherapy.
       Mental disability: See Physical or mental disability.
       Office of Compliance means the independent office 
     established in the legislative branch under section 301 of 
     the CAA (2 U.S.C. 1381).
       Parent means the biological parent of an employee or an 
     individual who stands or stood in loco parentis to an 
     employee when the employee was a child.

[[Page S3978]]

       Physical or mental disability means a physical or mental 
     impairment that substantially limits one or more of the major 
     life activities of an individual. See the Americans with 
     Disabilities Act (ADA), as made applicable by section 
     201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)).
       Reduced leave schedule means a leave schedule that reduces 
     the usual number of hours per workweek, or hours per workday, 
     of an employee.
       Secretary means the Secretary of Labor or authorized 
     representative.
       Serious health condition entitling an employee to FMLA 
     leave means:
       (1) An illness, injury, impairment, or physical or mental 
     condition that involves:
       (i) Inpatient care (i.e., an overnight stay) in a hospital, 
     hospice, or residential medical care facility, including any 
     period of incapacity (for purposes of this section, defined 
     to mean inability to work, attend school or perform other 
     regular daily activities due to the serious health condition, 
     treatment therefor, or recovery therefrom), or any subsequent 
     treatment in connection with such inpatient care; or
       (ii) Continuing treatment by a health care provider. A 
     serious health condition involving continuing treatment by a 
     health care provider includes:
       (A) A period of incapacity (i.e., inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefor, or recovery 
     therefrom) of more than three consecutive calendar days, 
     including any subsequent treatment or period of incapacity 
     relating to the same condition, that also involves:

       (1) Treatment two or more times by a health care provider, 
     by a nurse or physician's assistant under direct supervision 
     of a health care provider, or by a provider of health care 
     services (e.g., physical therapist) under orders of, or on 
     referral by, a health care provider; or
       (2) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     under the supervision of the health care provider.

       (B) Any period of incapacity due to pregnancy, or for 
     prenatal care.
       (C) Any period of incapacity or treatment for such 
     incapacity due to a chronic serious health condition. A 
     chronic serious health condition is one which:

       (1) Requires periodic visits for treatment by a health care 
     provider, or by a nurse or physician's assistant under direct 
     supervision of a health care provider;
       (2) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (3) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).

       (D) A period of incapacity which is permanent or long-term 
     due to a condition for which treatment may not be effective. 
     The employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       (E) Any period of absence to receive multiple treatments 
     (including any period of recovery therefrom) by a health care 
     provider or by a provider of health care services under 
     orders of, or on referral by, a health care provider, either 
     for restorative surgery after an accident or other injury, or 
     for a condition that would likely result in a period of 
     incapacity of more than three consecutive calendar days in 
     the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       (2) Treatment for purposes of paragraph (1) of this 
     definition includes (but is not limited to) examinations to 
     determine if a serious health condition exists and 
     evaluations of the condition. Treatment does not 
     include routine physical examinations, eye examinations, 
     or dental examinations. Under paragraph (1)(ii)(A)(2) of 
     this definition, a regimen of continuing treatment 
     includes, for example, a course of prescription medication 
     (e.g., an antibiotic) or therapy requiring special 
     equipment to resolve or alleviate the health condition 
     (e.g., oxygen). A regimen of continuing treatment that 
     includes the taking of over-the-counter medications such 
     as aspirin, antihistamines, or salves; or bed-rest, 
     drinking fluids, exercise, and other similar activities 
     that can be initiated without a visit to a health care 
     provider, is not, by itself, sufficient to constitute a 
     regimen of continuing treatment for purposes of FMLA 
     leave.
       (3) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not ``serious health conditions'' unless 
     inpatient hospital care is required or unless complications 
     develop. Ordinarily, unless complications arise, the common 
     cold, the flu, ear aches, upset stomach, minor ulcers, 
     headaches other than migraine, routine dental or orthodontia 
     problems, periodontal disease, etc., are examples of 
     conditions that do not meet the definition of a serious 
     health condition and do not qualify for FMLA leave. 
     Restorative dental or plastic surgery after an injury or 
     removal of cancerous growths are serious health conditions 
     provided all the other conditions of this regulation are met. 
     Mental illness resulting from stress or allergies may be 
     serious health conditions, but only if all the conditions of 
     this section are met.
       (4) Substance abuse may be a serious health condition if 
     the conditions of this section are met. However, FMLA leave 
     may only be taken for treatment for substance abuse by a 
     health care provider or by a provider of health care services 
     on referral by a health care provider. On the other hand, 
     absence because of the employee's use of the substance, 
     rather than for treatment, does not qualify for FMLA leave.
       (5) Absences attributable to incapacity under paragraphs 
     (1)(ii) (B) or (C) of this definition qualify for FMLA leave 
     even though the employee or the immediate family member does 
     not receive treatment from a health care provider during the 
     absence, and even if the absence does not last more than 
     three days. For example, an employee with asthma may be 
     unable to report for work due to the onset of an asthma 
     attack or because the employee's health care provider has 
     advised the employee to stay home when the pollen count 
     exceeds a certain level. An employee who is pregnant may be 
     unable to report to work because of severe morning sickness.
       Son or daughter means a biological, adopted, or foster 
     child, a stepchild, a legal ward, or a child of a person 
     standing in loco parentis, who is under 18 years of age or 18 
     years of age or older and incapable of self-care because of a 
     mental or physical disability.
       Spouse means a husband or wife as defined or recognized 
     under State law for purposes of marriage in the State where 
     the employee resides, including common law marriage in States 
     where it is recognized.
       State means any State of the United States or the District 
     of Columbia or any Territory or possession of the United 
     States.
       Teacher (or employee employed in an instructional capacity, 
     or instructional employee) means an employee employed 
     principally in an instructional capacity by an educational 
     agency or school whose principal function is to teach and 
     instruct students in a class, a small group, or an individual 
     setting, and includes athletic coaches, driving instructors, 
     and special education assistants such as signers for the 
     hearing impaired. The term does not include teacher 
     assistants or aides who do not have as their principal 
     function actual teaching or instructing, nor auxiliary 
     personnel such as counselors, psychologists, curriculum 
     specialists, cafeteria workers, maintenance workers, bus 
     drivers, or other primarily noninstructional employees.

                   Appendix A to Part 825--[Reserved]

   Appendix B to Part 825--Certification of Physician or Practitioner

                 Certification of Health Care Provider

    (family and medical leave act of 1993 as made applicable by the 
               congressional accountability act of 1995)

       1. Employee's Name:
       2. Patient's Name (if different from employee):
       3. The attached sheet describes what is meant by a 
     ``serious health condition'' under the Family and Medical 
     Leave Act as made applicable by the Congressional 
     Accountability Act. Does the patient's condition \1\ qualify 
     under any of the categories described? If so, please check 
     the applicable category.
       (1) ________
       (2) ________
       (3) ________
       (4) ________
       (5) ________
       (6) ________, or
       None of the above ________
       4. Describe the medical facts which support your 
     certification, including a brief statement as to how the 
     medical facts meet the criteria of one of these categories:
       5.a. State the approximate date the condition commenced, 
     and the probable duration of the condition (and also the 
     probable duration of the patient's present incapacity 2 
     if different):
       b. Will it be necessary for the employee to take work only 
     intermittently or to work on a less than full schedule as a 
     result of the condition (including for treatment described in 
     Item 6 below)? ________
     If yes, give probable duration:
       c. If the condition is a chronic condition (condition #4) 
     or pregnancy, state whether the patient is presently 
     incapacitated \2\ and the likely duration and frequency of 
     episodes of incapacity \2\:
       6.a. If additional treatments will be required for the 
     condition, provide an estimate of the probable number of such 
     treatments:
     If the patient will be absent from work or other daily 
     activities because of treatment on an intermittent or part-
     time basis, also provide an estimate of the probable number 
     and interval between such treatments, actual or estimated 
     dates of treatment if known, and period required for recovery 
     if any:
       b. If any of these treatments will be provided by another 
     provider of health services (e.g., physical therapist), 
     please state the nature of the treatments:
       c. If a regimen of continuing treatment by the patient is 
     required under your supervision, provide a general 
     description of such regimen (e.g., prescription drugs, 
     physical therapy requiring special equipment):
       7.a. If medical leave is required for the employee's 
     absence from work because of the employee's own condition 
     (including absences due to pregnancy or a chronic condition), 
     is the employee unable to perform work of any kind? ________
       b. If able to perform some work, is the employee unable to 
     perform any one or more of

[[Page S3979]]

     the essential functions of the employee's job (the employee 
     or the employer should supply you with information about the 
     essential job functions)? ________ If yes, please list the 
     essential functions the employee is unable to perform: 
     ________
       c. If neither a. nor b. applies, is it necessary for the 
     employee to be absent from work for treatment? ________
       8.a. If leave is required to care for a family member of 
     the employee with a serious health condition, does the 
     patient require assistance for basic medical or personal 
     needs or safety, or for transportation? ________
       b. If no, would the employee's presence to provide 
     psychological comfort be beneficial to the patient or assist 
     in the patient's recovery? ________
       c. If the patient will need care only intermittently or on 
     a part-time basis, please indicate the probable duration of 
     this need:
       (Signature of Health Care Provider)
       (Type of Practice)
       (Address)
       (Telephone number)
       To be completed by the employee needing family leave to 
     care for a family member:
     State the care you will provide and an estimate of the period 
     during which care will be provided, including a schedule if 
     leave is to be taken intermittently or if it will be 
     necessary for you to work less than a full schedule:
       (Employee signature)
       (Date)
       A ``Serious Health Condition'' means an illness, injury, 
     impairment, or physical or mental condition that involves one 
     of the following:
       1. Hospital Care.--Inpatient care (i.e., an overnight stay) 
     in a hospital, hospice, or residential medical care facility, 
     including any period of incapacity \1\ or subsequent 
     treatment in connection with or consequent to such inpatient 
     care.
       2. Absence Plus Treatment.--A period of incapacity \2\ of 
     more than three consecutive calendar days (including any 
     subsequent treatment or period of incapacity \2\ relating to 
     the same condition), that also involves:
     (1) Treatment \3\ two or more times by a health care 
     provider, by a nurse or physician's assistant under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under orders 
     of, or on referral by, a health care provider; or
     (2) Treatment by a health care provider on at least one 
     occasion which results in a regimen of continuing treatment 
     4 under the supervision of the health care provider.
       3. Pregnancy.--Any period of incapacity due to pregnancy, 
     or for prenatal care.
       4. Chronic Conditions Requiring Treatments.--A chronic 
     condition which:
     (1) Requires periodic visits for treatment by a health care 
     provider, or by a nurse or physician's assistant under direct 
     supervision of a health care provider;
     (2) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
     (3) May cause episodic rather than a continuing period of 
     incapacity \2\ (e.g., asthma, diabetes, epilepsy, etc.).
       5. Permanent/Long-term Conditions Requiring Supervision.--A 
     period of incapacity \2\ which is permanent or long-term due 
     to a condition for which treatment may not be effective. The 
     employee or family member must be under the continuing 
     supervision of, but need not be receiving active treatment 
     by, a health care provider. Examples include Alzheimer's, a 
     severe stroke, or the terminal stages of a disease.
       6. Multiple Treatments (Non-Chronic Conditions).--Any 
     period of absence to receive multiple treatments (including 
     any period of recovery therefrom) by a health care provider 
     or by a provider of health care services under orders of, or 
     on referral by, a health care provider, either for 
     restorative surgery after an accident or other injury, or for 
     a condition that would likely result in a period of 
     incapacity \2\ of more than three consecutive calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).

                               FOOTNOTES

\1\ Here and elsewhere on this form, the information sought relates 
only to the condition for which the employee is taking FMLA leave.
\2\ ``Incapacity'', for purposes of FMLA as make applicable by the CAA, 
is defined to mean inability to work, attend school or perform other 
regular daily activities due to the serious health condition, treatment 
therefore, or recovery therefrom.
3  Treatment includes examinations to determine if a serious 
health condition exists and evaluations of the condition. Treatment 
does not include routine physical examinations, eye examinations, or 
dental examinations.
4  A regimen of continuing treatment includes, for example, a 
course of prescription medication (e.g., an antibiotic) or therapy 
requiring special equipment to resolve or alleviate the health 
condition. A regimen of treatment does not include the taking of over-
the-counter medications such as aspirin, antihistamines, or salves; or 
bed-rest, drinking fluids, exercise, and other similar activities that 
can be initiated without a visit to a health care provider.

                   Appendix C to Part 825--[Reserved]

Appendix D to Part 825--Prototype Notice: Employing Office Response to 
             Employee Request for Family and Medical Leave

  Employing Office Response to Employee Request for Family or Medical 
                                 Leave

 (optional use form--see Sec. 825.301(b)(1) of the regulations of the 
                         office of compliance)


   (family and medical leave act of 1993, as made applicable by the 
               congressional accountability act of 1995)

       (Date)
       To:____________________
     (Employee's name)
       From:____________________
     (Name of appropriate employing office representative)
       Subject: Request for Family/Medical Leave
     On________, (date) you notified us of your need to take 
     family/medical leave due to:
       (Date)
       The birth of your child, or the placement of a child with 
     you for adoption or foster care; or
       A serious health condition that makes you unable to perform 
     the essential functions of your job; or
       A serious health condition affecting your spouse, child, 
     parent, for which you are needed to provide care.
       You notified us that you need this leave beginning on 
     ________(date) and that you expect leave to continue until on 
     or about________ (date).
       Except as explained below, you have a right under the FMLA, 
     as made applicable by the CAA, for up to 12 weeks of unpaid 
     leave in a 12-month period for the reasons listed above. 
     Also, your health benefits must be maintained during any 
     period of unpaid leave under the same conditions as if you 
     continued to work, and you must be reinstated to the same or 
     an equivalent job with the same pay, benefits, and terms and 
     conditions of employment on your return from leave. If you do 
     not return to work following FMLA leave for a reason other 
     than: (1) the continuation, recurrence, or onset of a serious 
     health condition which would entitle you to FMLA leave; or 
     (2) other circumstances beyond your control, you may be 
     required to reimburse us for our share of health insurance 
     premiums paid on your behalf during your FMLA leave.
       This is to inform you that: (check appropriate boxes; 
     explain where indicated)
       1. You are  {time}  eligible  {time}  not eligible  for 
     leave under the FMLA as made applicable by the CAA.
       2. The requested leave  {time}  will  {time}  will not  be 
     counted against your annual FMLA leave entitlement.
       3. You  {time}  will  {time}  will not  be required to 
     furnish medical certification of a serious health condition. 
     If required, you must furnish certification by________ 
     (insert date) (must be at least 15 days after you are 
     notified of this requirement) or we may delay the 
     commencement of your leave until the certification is 
     submitted.
       4. You may elect to substitute accrued paid leave for 
     unpaid FMLA leave. We  {time}  will  {time}  will not  
     require that you substitute accrued paid leave for unpaid 
     FMLA leave. If paid leave will be used the following 
     conditions will apply: (Explain)
       5(a). If you normally pay a portion of the premiums for 
     your health insurance, these payments will continue during 
     the period of FMLA leave. Arrangements for payment have been 
     discussed with you and it is agreed that you will make 
     premium payments as follows: (Set forth dates, e.g., the 10th 
     of each month, or pay periods, etc. that specifically cover 
     the agreement with the employee.).
       (b). You have a minimum 30-day (or, indicate longer period, 
     if applicable) grace period in which to make premium 
     payments. If payment is not made timely, your group health 
     insurance may be cancelled: Provided, That we notify you in 
     writing at least 15 days before the date that your health 
     coverage will lapse, or, at our option, we may pay your share 
     of the premiums during FMLA leave, and recover these payments 
     from you upon your return to work. We  {time}  will  {time}  
     will not  pay your share of health insurance premiums while 
     you are on leave.
       (c). We  {time}  will  {time}  will not  do the same with 
     other benefits (e.g., life insurance, disability insurance, 
     etc.) while you are on FMLA leave. If we do pay your premiums 
     for other benefits, when you return from leave you  {time}  
     will  {time}  will not  be expected to reimburse us for the 
     payments made on your behalf.
       6. You  {time}  will  {time}  will not  be required to 
     present a fitness-for-duty certificate prior to being 
     restored to employment. If such certification is required but 
     not received, your return to work may be delayed until the 
     certification is provided.
       7(a). You  {time}  are  {time}  are not  a ``key employee'' 
     as described in Sec. 825.218 of the Office of Compliance's 
     FMLA regulations. If you are a ``key employee'', restoration 
     to employment may be denied following FMLA leave on the 
     grounds that such restoration will cause substantial and 
     grievous economic injury to us.
       (b). We  {time}  have   {time}  have not  determined that 
     restoring you to employment at the conclusion of FMLA leave 
     will cause substantial and grievous economic harm to us. 
     (Explain (a) and/or (b) below. See Sec. 825.219 of the Office 
     of Compliance's FMLA regulations.)
       8. While on leave, you  {time}  will  {time}  will not  be 
     required to furnish us with periodic reports every ________ 
     (indicate interval of periodic reports, as appropriate for 
     the particular leave situation) of your status and intent to 
     return to work (see Sec. 825.309 of the Office of 
     Compliance's FMLA regulations). If the circumstances of your 
     leave change and you are able to return to work earlier than 
     the date indicated on the reverse side of this form, you  
     {time}  will  {time}  will not  be required to notify us at 
     least two work days prior to the date you intend to report 
     for work.
       9. You  {time}  will  {time}  will not  be required to 
     furnish recertification relating to a serious

[[Page S3980]]

     health condition. (Explain below, if necessary, including the 
     interval between certifications as prescribed in Sec. 825.308 
     of the Office of Compliance's FMLA regulations.)
   Subtitle A--Regulations Relating to the Senate and Its Employing 
                           Offices--S Series

 CHAPTER III--REGULATIONS RELATING TO THE RIGHTS AND PROTECTIONS UNDER 
                  THE FAIR LABOR STANDARDS ACT OF 1938

                     PART S501--GENERAL PROVISIONS

Sec.
S501.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S501.101  Purpose and scope.
S501.102  Definitions.
S501.103  Coverage.
S501.104  Administrative authority.
S501.105  Effect of Interpretations of the Labor Department.
S501.106  Application of the Portal-to-Portal Act of 1947.
S501.107  [Reserved]

     Sec. S501.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

         The following table lists the parts of the Secretary of 
     Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding parts of 
     the Office of Compliance (OC) Regulations under section 203 
     of the CAA:

        Secretary of Labor regulations                   OC regulations
Part 531  Wage payments under the Fair Labor Standards Act of Part S531
Part 541  Defining and delimiting the terms ``bona fide executive'', 
  ``administrative'', and ``professional'' employees..........Part S541
Part 547  Requirements of a ``Bona fide thrift or savings planPart S547
Part 553  Application of the FLSA to employees of public agencPart S553
Part 570  Child labor.........................................Part S570

              Subpart A--Matters of General Applicability

     Sec. S501.101  Purpose and scope.

         (a) Section 203 of the Congressional Accountability Act 
     (CAA) provides that the rights and protections of subsections 
     (a)(1) and (d) of section 6, section 7, and section 12(c) of 
     the Fair Labor Standards Act of 1938 (FLSA) (29 U.S.C. 
     Sec. Sec. 206 (a)(1) and (d), 207, 212(c)) shall apply to 
     covered employees of the legislative branch of the Federal 
     Government. Section 301 of the CAA creates the Office of 
     Compliance as an independent office in the legislative branch 
     for enforcing the rights and protections of the FLSA, as 
     applied by the CAA.
         (b) The FLSA as applied by the CAA provides for minimum 
     standards for both wages and overtime entitlements, and 
     delineates administrative procedures by which covered 
     worktime must be compensated. Included also in the FLSA are 
     provisions related to child labor, equal pay, and portal-to-
     portal activities. In addition, the FLSA exempts specified 
     employees or groups of employees from the application of 
     certain of its provisions.
         (c) This chapter contains the substantive regulations 
     with respect to the FLSA that the Board of Directors of the 
     Office of Compliance has adopted pursuant to sections 203(c) 
     and 304 of the CAA, which require that the Board promulgate 
     regulations that are ``the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     Sec. 203 of the CAA] except insofar as the Board may 
     determine, for good cause shown . . . that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section''.
         (d) These regulations are issued by the Board of 
     Directors, Office of Compliance, pursuant to sections 203(c) 
     and 304 of the CAA, which directs the Board to promulgate 
     regulations implementing section 203 that are ``the same as 
     substantive regulations promulgated by the Secretary of Labor 
     to implement the statutory provisions referred to in 
     subsection (a) [of section 203 of the CAA] except insofar as 
     the Board may determine, for good cause shown . . . that a 
     modification of such regulations would be more effective for 
     the implementation of the rights and protections under this 
     section''. The regulations issued by the Board herein are on 
     all matters for which section 203 of the CAA requires 
     regulations to be issued. Specifically, it is the Board's 
     considered judgment, based on the information available to it 
     at the time of the promulgation of these regulations, that, 
     with the exception of regulations adopted and set forth 
     herein, there are no other ``substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     section 203 of the CAA]''.
         (e) In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Secretary. Such changes are intended to 
     make the provisions adopted accord more naturally to 
     situations in the legislative branch. However, by making 
     these changes, the Board does not intend a substantive 
     difference between these regulations and those of the 
     Secretary from which they are derived. Moreover, such 
     changes, in and of themselves, are not intended to constitute 
     an interpretation of the regulation or of the statutory 
     provisions of the CAA upon which they are based.

     Sec. S501.102  Definitions.

         For purposes of this chapter:
       (a) CAA means the Congressional Accountability Act of 1995 
     (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
       (b) FLSA or Act means the Fair Labor Standards Act of 1938, 
     as amended (29 U.S.C. Sec. 201 et seq.), as applied by 
     section 203 of the CAA to covered employees and employing 
     offices.
       (c) Covered employee means any employee of the Senate, 
     including an applicant for employment and a former employee, 
     but shall not include an intern.
       (d) Employee of the Senate includes any employee whose pay 
     is disbursed by the Secretary of the Senate, but not any such 
     individual employed by (1) the Capitol Guide Service; (2) the 
     Capitol Police; (3) the Congressional Budget Office; (4) the 
     Office of the Architect of the Capitol; (5) the Office of the 
     Attending Physician; (6) the Office of Compliance; or (7) the 
     Office of Technology Assessment.
       (e) Employing office and employer mean (1) the personal 
     office of a Senator; (2) a committee of the Senate or a joint 
     committee; or (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 Senate.
       (f) Board means the Board of Directors of the Office of 
     Compliance.
       (g) Office means the Office of Compliance.
       (h) Intern is an individual who (a) is performing services 
     in an employing office as part of a demonstrated educational 
     plan, and (b) is appointed on a temporary basis for a period 
     not to exceed 12 months: Provided, That if an intern is 
     appointed for a period shorter than 12 months, the intern may 
     be reappointed for additional periods as long as the total 
     length of the internship does not exceed 12 months: Provided 
     further, That an intern for purposes of section 203(a)(2) of 
     the CAA also includes an individual who is a senior citizen 
     appointed under S. Res. 219 (May 5, 1978, as amended by S. 
     Res. 96, April 9, 1991), but does not include volunteers, 
     fellows or pages.

     Sec. S501.103  Coverage.

         The coverage of section 203 of the CAA extends to any 
     covered employee of an employing office without regard to 
     whether the covered employee is engaged in commerce or the 
     production of goods for interstate commerce and without 
     regard to size, number of employees, amount of business 
     transacted, or other measure.

     Sec. S501.104  Administrative authority.

         (a) The Office of Compliance is authorized to administer 
     the provisions of section 203 of the Act with respect to any 
     covered employee or covered employer.
         (b) The Board is authorized to promulgate substantive 
     regulations in accordance with the provisions of sections 
     203(c) and 304 of the CAA.

     Sec. S501.105  Effect of Interpretation of the Department of 
       Labor.

         (a) In administering the FLSA, the Wage and Hour Division 
     of the Department of Labor has issued not only substantive 
     regulations but also interpretative bulletins. Substantive 
     regulations represent an exercise of statutory-delegated 
     lawmaking authority from the legislative branch to an 
     administrative agency. Generally, they are proposed in 
     accordance with the notice-and-comment procedures of the 
     Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once 
     promulgated, such regulations are considered to have the 
     force and effect of law, unless set aside upon judicial 
     review as arbitrary, capricious, an abuse of discretion, or 
     otherwise not in accordance with law. See Batterton v. 
     Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 CFR 
     Sec. 790.17(b) (1994). Unlike substantive regulations, 
     interpretative statements, including bulletins and other 
     releases of the Wage and Hour Division, are not issued 
     pursuant to the provisions of the APA and may not have the 
     force and effect of law. Rather, they may only constitute 
     official interpretations of the Department of Labor with 
     respect to the meaning and application of the minimum wage, 
     maximum hour, and overtime pay requirements of the FLSA. See 
     29 C.F.R. Sec. 790.17(c) (citing Final Report of the Attorney 
     General's Committee on Administrative Procedure, Senate 
     Document No. 8, 77th Cong., 1st Sess., at p. 27 (1941)). The 
     purpose of such statements is to make available in one place 
     the interpretations of the FLSA which will guide the 
     Secretary of Labor and the Wage and Hour Administrator in the 
     performance of their duties unless and until they are 
     otherwise directed by authoritative decisions of the courts 
     or conclude, upon reexamination of an interpretation, that it 
     is incorrect. The Supreme Court has observed: ``[T]he 
     rulings, interpretations and opinions of the Administrator 
     under this Act, while not controlling upon the courts by 
     reason of their authority, do constitute a body of experience 
     and informed judgment to which courts and litigants may 
     properly resort for guidance. The weight of such a judgment 
     in a particular case will depend upon the thoroughness 
     evident in the consideration, the validity of its

[[Page S3981]]

     reasoning, its consistency with earlier and later 
     pronouncements, and all those factors which give it power to 
     persuade, if lacking power to control'', Skidmore v. Swift, 
     323 U.S. 134, 140 (1944).
         (b) Section 203(c) of the CAA provides that the 
     substantive regulations implementing section 203 of the CAA 
     shall be ``the same as substantive regulations promulgated by 
     the Secretary of Labor'' except where the Board finds, for 
     good cause shown, that a modification would more effectively 
     implement the rights and protections established by the FLSA. 
     Thus, the CAA by its terms does not mandate that the Board 
     adopt the interpretative statements of the Department of 
     Labor or its Wage and Hour Division. The Board is thus not 
     adopting such statements as part of its substantive 
     regulations.

     Sec. S501.106 Application of the Portal-to-Portal Act of 
       1947.

         (a) Consistent with section 225 of the CAA, the Portal-
     to-Portal Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., 
     is applicable in defining and delimiting the rights and 
     protections of the FLSA that are prescribed by the CAA. 
     Section 10 of the PPA, 29 U.S.C. Sec. 259, provides in 
     pertinent part: ``[N]o employer shall be subject to any 
     liability or punishment for or on account of the failure of 
     the employer to pay minimum wages or overtime compensation 
     under the Fair Labor Standards Act of 1938, as amended, . . . 
     if he pleads and proves that the act of omission complained 
     of was in good faith in conformity with and reliance on any 
     written administrative regulation, order, ruling, approval or 
     interpretation of [the Administrator of the Wage and Hour 
     Division of the Department of Labor] . . . or any 
     administrative practice or enforcement policy of such agency 
     with respect to the class of employers to which he belonged. 
     Such a defense, if established shall be a bar to the action 
     or proceeding, notwithstanding that after such act or 
     omission, such administrative regulation, order, ruling, 
     approval, interpretation, practice or enforcement policy is 
     modified or rescinded or is determined by judicial authority 
     to be invalid or of no legal effect''.
         (b) In defending any action or proceeding based on any 
     act or omission arising out of section 203 of the CAA, an 
     employing office may satisfy the standards set forth in 
     subsection (a) by pleading and proving good faith reliance 
     upon any written administrative regulation, order, ruling, 
     approval or interpretation, of the Administrator of the Wage 
     and Hour Division of the Department of Labor: Provided, That 
     such regulation, order, ruling approval or interpretation had 
     not been superseded at the time or reliance by any 
     regulation, order, decision, or ruling of the Board or the 
     courts.

     Sec. S501.107  [Reserved].

  PART S531--WAGE PAYMENTS UNDER THE FAIR LABOR STANDARDS ACT OF 1938

                     Subpart A--Preliminary Matters

Sec.
S531.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S531.1  Definitions.
S531.2  Purpose and scope.

     Subpart B--Determinations of ``Reasonable Costs''; Effects of 
                    Collective Bargaining Agreements

S531.3  General determinations of ``reasonable cost''.
S531.6  Effects of collective bargaining agreements.

                     Subpart A--Preliminary Matters

     Sec. S531.00  Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

         The following table lists the sections of the Secretary 
     of Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under section 203 
     of the CAA:

        Secretary of Labor Regulations                   OC Regulations
531.1  Defintions................................................S531.1
531.2  Purpose and scope.........................................S531.2
531.3  General determinations of ``reasonable cost''.............S531.3
531.6  Effects of collective bargaining agreements...............S531.6

     Sec. S531.1  Definitions.

         (a) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative. The Secretary 
     of Labor has delegated to the Administrator the functions 
     vested in him under section 3(m) of the Act.
         (b) Act means the Fair Labor Standards Act of 1938, as 
     amended.

     Sec. S531.2  Purpose and scope.

         (a) Section 3(m) of the Act defines the term ``wage'' to 
     include the ``reasonable cost'', as determined by the 
     Secretary of Labor, to an employer of furnishing any employee 
     with board, lodging, or other facilities, if such board, 
     lodging, or other facilities are customarily furnished by the 
     employer to his employees. In addition, section 3(m) gives 
     the Secretary authority to determine the ``fair value'' of 
     such facilities on the basis of average cost to the employer 
     or to groups of employers similarly situated, on average 
     value to groups of employees, or other appropriate measures 
     of ``fair value''. Whenever so determined and when applicable 
     and pertinent, the ``fair value'' of the facilities involved 
     shall be includable as part of ``wages'' instead of the 
     actual measure of the costs of those facilities. The section 
     provides, however, the cost of board, lodging, or other 
     facilities shall not be included as part of ``wages'' if 
     excluded therefrom by a bona fide collective bargaining 
     agreement. Section 3(m) also provides a method for 
     determining the wage of a tipped employee.
         (b) This part 531 contains any determinations made as to 
     the ``reasonable cost'' and ``fair value'' of board, lodging, 
     or other facilities have general application.

 Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value''; 
              Effects of Collective Bargaining Agreements

     Sec. S531.3  General determinations of ``reasonable cost''.

         (a) The term ``reasonable cost'' as used in section 3(m) 
     of the Act is hereby determined to be not more than the 
     actual cost to the employer of the board, lodging, or other 
     facilities customarily furnished by him to his employees.
         (b) Reasonable cost does not include a profit to the 
     employer or to any affiliated person.
         (c) The reasonable cost to the employer of furnishing the 
     employee with board, lodging, or other facilities (including 
     housing) is the cost of operation and maintenance including 
     adequate depreciation plus a reasonable allowance (not more 
     than 5\1/2\ percent) for interest on the depreciated amount 
     of capital invested by the employer: Provided, That if the 
     total so computed is more than the fair rental value (or the 
     fair price of the commodities or facilities offered for 
     sale), the fair rental value (or the fair price of the 
     commodities or facilities offered for sale) shall be the 
     reasonable cost. The cost of operation and maintenance, the 
     rate of depreciation, and the depreciated amount of capital 
     invested by the employer shall be those arrived at under good 
     accounting practices. As used in this paragraph, the term 
     good accounting practices does not include accounting 
     practices which have been rejected by the Internal Revenue 
     Service for tax purposes, and the term depreciation includes 
     obsolescence.
         (d)(1) The cost of furnishing ``facilities'' found by the 
     Administrator to be primarily for the benefit or convenience 
     of the employer will not be recognized as reasonable and may 
     not therefore be included in computing wages.
         (2) The following is a list of facilities found by the 
     Administrator to be primarily for the benefit of convenience 
     of the employer. The list is intended to be illustrative 
     rather than exclusive: (i) Tools of the trade and other 
     materials and services incidental to carrying on the 
     employer's business; (ii) the cost of any construction by and 
     for the employer; (iii) the cost of uniforms and of their 
     laundering, where the nature of the business requires the 
     employee to wear a uniform.

     Sec. S531.6  Effects of collective bargaining agreements.

         (a) The cost of board, lodging, or other facilities shall 
     not be included as part of the wage paid to any employee to 
     the extent it is excluded therefrom under the terms of a bona 
     fide collective bargaining agreement applicable to the 
     particular employee.
         (b) A collective bargaining agreement shall be deemed to 
     be ``bona fide'' when pursuant to the provisions of section 
     7(b)(1) or 7(b)(2) of the FLSA it is made with the certified 
     representative of the employees under the provisions of the 
     CAA.

 PART S541--DEFINING AND DELIMITING THE TERMS ``BONA FIDE EXECUTIVE'', 
    ``ADMINISTRATIVE'', OR ``PROFESSIONAL'' CAPACITY (INCLUDING ANY 
EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL 
                    OR TEACHER IN SECONDARY SCHOOL)

                     Subpart A--General Regulations

Sec.
S541.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S541.01 Application of the exemptions of section 13(a)(1) of the FLSA.
S541.1 Executive.
S541.2 Administrative.
S541.3 Professional.
S541.5b Equal pay provisions of section 6(d) of the FLSA as applied by 
              the CAA extend to executive, administrative, and 
              professional employees.
S541.5d Special provisions applicable to employees of public agencies.

     Sec. S541.00 Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

         The following table lists the sections of the Secretary 
     of Labor Regulations at Title 29 of the Code of Federal 
     Regulations under the FLSA with the corresponding sections of 
     the Office of Compliance (OC) Regulations under section 203 
     of the CAA:

        Secretary of Labor Regulations                   OC Regulations
541.1 Executive..................................................S541.1
541.2 Administrative.............................................S541.2
541.3 Professional...............................................S541.3

[[Page S3982]]

541.5b Equal pay provisions of section 6(d) of the FLSA apply to 
  executive, administrative, and professional employees.........S541.5b
541.5d Special provisions applicable to employees of public agenS541.5d

     Sec. S541.01 Application of the exemptions of section 
       13(a)(1) of the FLSA

         (a) Section 13(a)(1) of the FLSA, which provides certain 
     exemptions for employees employed in a bona fide executive, 
     administrative, or professional capacity (including any 
     employee employed in a capacity of academic administrative 
     personnel or teacher in a secondary school), applies to 
     covered employees by virtue of section 225(f)(1) of the CAA.
         (b) The substantive regulations set forth in this part 
     are promulgated under the authority of sections 203(c) and 
     304 of the CAA, which require that such regulations be the 
     same as the substantive regulations promulgated by the 
     Secretary of Labor except where the Board determines for good 
     cause shown that modifications would be more effective for 
     the implementation of the rights and protections under 
     Sec. 203.

     Sec. S541.1 Executive

         The term employee employed in a bona fide executive * * * 
     capacity in section 13(a)(1) of the FSLA as applied by the 
     CAA shall mean any employee:
         (a) Whose primary duty consists of the management of an 
     employing office in which he is employed or of a customarily 
     recognized department or subdivision thereof; and
         (b) Who customarily and regularly directs the work of two 
     or more other employees therein; and
         (c) Who has the authority to hire or fire other employees 
     or whose suggestions and recommendations as to the hiring or 
     firing and as to the advancement and promotion or any other 
     change of status of other employees will be given particular 
     weight; and
         (d) Who customarily and regularly exercises discretionary 
     powers; and
         (e) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours of work 
     in the workweek to activities which are not directly and 
     closely related to the performance of the work described in 
     paragraphs (a) through (d) of this section: Provided, That 
     this paragraph shall not apply in the case of an employee who 
     is in sole charge of an independent establishment or a 
     physically separated branch establishment; and
         (f) Who is compensated for his services on a salary basis 
     at a rate of not less than $155 per week, exclusive of board, 
     lodging or other facilities: Provided, That an employee who 
     is compensated on a salary basis at a rate of not less than 
     $250 per week, exclusive of board, lodging or other 
     facilities, and whose primary duty consists of the management 
     of the employing office in which the employee is employed or 
     of a customarily recognized department or subdivision 
     thereof, and includes the customary and regular direction of 
     work of two or more other employees therein, shall be deemed 
     to meet all the requirements of this section

     Sec. S541.2  Administrative

         The term employee employed in a bona fide * * * 
     administrative * * * capacity in section 13(a)(1) of the FLSA 
     as applied by the CAA shall mean any employee:
         (a) Whose primary duty consists of either:
       (1) The performance of office or nonmanual work directly 
     related to management policies or general operations of his 
     employer or his employer's customers, or
       (2) The performance of functions in the administration of a 
     school system, or educational establishment or institution, 
     or of a department or subdivision thereof, in work directly 
     related to the academic instruction or training carried on 
     therein; and
         (b) Who customarily and regularly exercises discretion 
     and independent judgment; and
         (c)(1) Who regularly and directly assists the head of an 
     employing office, or an employee employed in a bona fide 
     executive or administrative capacity (as such terms are 
     defined in the regulations of this subpart), or
         (2) Who performs under only general supervision work 
     along specialized or technical lines requiring special 
     training, experience, or knowledge, or
         (3) Who executes under only general supervision special 
     assignments and tasks; and
         (d) Who does not devote more than 20 percent, or, in the 
     case of an employee of a retail or service establishment who 
     does not devote as much as 40 percent, of his hours worked in 
     the workweek to activities which are not directly and closely 
     related to the performance of the work described in 
     paragraphs (a) through (c) of this section; and
         (e)(1) Who is compensated for his services on a salary or 
     fee basis at a rate of not less than $155 per week, exclusive 
     of board, lodging or other facilities, or
         (2) Who, in the case of academic administrative 
     personnel, is compensated for services as required by 
     paragraph (e)(1) of this section, or on a salary basis which 
     is at least equal to the entrance salary for teachers in the 
     school system, educational establishment or institution by 
     which employed: Provided, That an employee who is compensated 
     on a salary or fee basis at a rate of not less than $250 per 
     week, exclusive of board, lodging or other facilities, and 
     whose primary duty consists of the performance of work 
     described in paragraph (a) of this section, which includes 
     work requiring the exercise of discretion and independent 
     judgment, shall be deemed to meet all the requirements of 
     this section.

     Sec. S541.3  Professional

         The term employee employed in a bona fide * * * 
     professional capacity in section 13(a)(1) of the FLSA as 
     applied by the CAA shall mean any employee:
         (a) Whose primary duty consists of the performance of:
       (1) Work requiring knowledge of an advance type in a field 
     of science or learning customarily acquired by a prolonged 
     course of specialized intellectual instruction and study, as 
     distinguished from a general academic education and from an 
     apprenticeship, and from training in the performance of 
     routine mental, manual, or physical processes, or
       (2) Work that is original and creative in a recognized 
     field of artistic endeavor (as opposed to work which can be 
     produced by a person endowed with general manual or 
     intellectual ability and training), and the result of which 
     depends primarily on the invention, imagination, or talent of 
     the employee, or
       (3) Teaching, tutoring, instructing, or lecturing in the 
     activity of imparting knowledge and who is employed and 
     engaged in this activity as a teacher in the school system, 
     educational establishment or institution by which employed, 
     or
       (4) Work that requires theoretical and practical 
     application of highly-specialized knowledge in computer 
     systems analysis, programming, and software engineering, and 
     who is employed and engaged in these activities as a computer 
     systems analyst, computer programmer, software engineer, or 
     other similarly skilled worker in the computer software 
     field; and
         (b) Whose work requires the consistent exercise of 
     discretion and judgment in its performance; and
         (c) Whose work is predominantly intellectual and varied 
     in character (as opposed to routine mental, manual, 
     mechanical, or physical work) and is of such character that 
     the output produced or the result accomplished cannot be 
     standardized in relation to a given period of time; and
         (d) Who does not devote more than 20 percent of his hours 
     worked in the workweek to activities which are not an 
     essential part of and necessarily incident to the work 
     described in paragraphs (a) through (c) of this section; and
         (e) Who is compensated for services on a salary or fee 
     basis at a rate of not less than $170 per week, exclusive of 
     board, lodging or other facilities: Provided, That this 
     paragraph shall not apply in the case of an employee who is 
     the holder of a valid license or certificate permitting the 
     practice of law or medicine or any of their branches and who 
     is actually engaged in the practice thereof, nor in the case 
     of an employee who is the holder of the requisite academic 
     degree for the general practice of medicine and is engaged in 
     an internship or resident program pursuant to the practice of 
     medicine or any of its branches, nor in the case of an 
     employee employed and engaged as a teacher as provided in 
     paragraph (a)(3) of this section: Provided further, That an 
     employee who is compensated on a salary or fee basis at a 
     rate of not less than $250 per week, exclusive of board, 
     lodging or other facilities, and whose primary duty consists 
     of the performance either of work described in paragraph 
     (a)(1), (3), or (4) of this section, which includes work 
     requiring the consistent exercise of discretion and judgment, 
     or of work requiring invention, imagination, or talent in a 
     recognized field of artistic endeavor, shall be deemed to 
     meet all of the requirements of this section: Provided 
     further, That the salary or fee requirements of this 
     paragraph shall not apply to an employee engaged in computer-
     related work within the scope of paragraph (a)(4) of this 
     section and who is compensated on an hourly basis at a rate 
     in excess of 6\1/2\ times the minimum wage provided by 
     section 6 of the FLSA as applied by the CAA.

     Sec. S541.5b  Equal pay provisions of section 6(d) of the 
       FLSA as applied by the CAA extend to executive, 
       administrative, and professional employees

         The FLSA, as amended and as applied by the CAA, includes 
     within the protection of the equal pay provisions those 
     employees exempt from the minimum wage and overtime pay 
     provisions as bona fide executive, administrative, and 
     professional employees (including any employee employed in 
     the capacity of academic administrative personnel or teacher 
     in elementary or secondary schools) under section 13(a)(1) of 
     the FLSA. Thus, for example, where an exempt administrative 
     employee and another employee of the employing office are 
     performing substantially ``equal work'', the sex 
     discrimination prohibitions of section 6(d) are applicable 
     with respect to any wage differential between those two 
     employees.

     Sec. S541.5d  Special provisions applicable to employees of 
       public agencies

         (a) An employee of a public agency who otherwise meets 
     the requirement of being paid on a salary basis shall not be 
     disqualified from exemption under section S541.1, S541.2, or 
     S541.3 on the basis that such employee is paid according to a 
     pay system established by statute, ordinance, or regulation, 
     or by a policy for practice established

[[Page S3983]]

     pursuant to principles of public accountability, under which 
     the employee accrues personal leave and sick leave and which 
     requires the public agency employee's pay to be reduced or 
     such employee to be placed on leave without pay for absences 
     for personal reasons or because of illness or injury of less 
     than one workday when accrued leave is not used by an 
     employee because--
       (1) permission for its use has not been sought or has been 
     sought and denied;
       (2) accrued leave has been exhausted; or
       (3) the employee chooses to use leave without pay.
         (b) Deductions from the pay for an employee of a public 
     agency for absences due to a budget-required furlough shall 
     not disqualify the employee from being paid ``on a salary 
     basis'' except in the workweek in which the furlough occurs 
     and for which the employee's pay is accordingly reduced.

   PART S547--REQUIREMENTS OF A ``BONA FIDE THRIFT OR SAVINGS PLAN''

Sec.
S547.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S547.0  Scope and effect of part.
S547.1  Essential requirements of qualifications.
S547.2  Disqualifying provisions.

     Sec. S547.00  Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance

         The following table lists the sections of the Secretary 
     of Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance (OC) Regulations under 
     section 203 of the CAA:

        Secretary of Labor Regulations                   OC Regulations
547.0  Scope and effect of part..................................S547.0
547.1  Essential requirements of qualifications..................S547.1
547.2  Disqualifying provisions..................................S547.2

     Sec. S547.0  Scope and effect of part

         (a) The regulations in this part set forth the 
     requirements of a ``bona fide thrift or savings plan'' under 
     section 7(3)(e)(b) of the Fair Labor Standards Act of 1938, 
     as amended (FLSA), as applied by the CAA. In determining the 
     total remuneration for employment which section 7(e) of the 
     FLSA requires to be included in the regular rate at which an 
     employee is employed, it is not necessary to include any sums 
     paid to or on behalf of such employee, in recognition of 
     services performed by him during a given period, which are 
     paid pursuant to a bona fide thrift or savings plan meeting 
     the requirements set forth herein. In the formulation of 
     these regulations due regard has been given to the factors 
     and standards set forth in section 7(e)(3)(b) of the Act.
         (b) Where a thrift or savings plan is combined in a 
     single program (whether in one or more documents) with a plan 
     or trust for providing old age, retirement, life, accident or 
     health insurance or similar benefits for employees, 
     contributions made by the employer pursuant to such thrift or 
     savings plan may be excluded from the regular rate if the 
     plan meets the requirements of the regulation in this part 
     and the contributions made for the other purposes may be 
     excluded from the regular rate if they meet the tests set 
     forth in regulations.

     Sec. S547.1  Essential requirements for qualifications

         (a) A ``bona fide thrift or savings plan'' for the 
     purpose of section 7(e)(3)(b) of the FLSA as applied by the 
     CAA is required to meet all the standards set forth in 
     paragraphs (b) through (f) of this section and must not 
     contain the disqualifying provisions set forth in 
     Sec. S547.2.
         (b) The thrift or savings plan constitutes a definite 
     program or arrangement in writing, adopted by the employer or 
     by contract as a result of collective bargaining and 
     communicated or made available to the employees, which is 
     established and maintained, in good faith, for the purpose of 
     encouraging voluntary thrift or savings by employees by 
     providing an incentive to employees to accumulate regularly 
     and retain cash savings for a reasonable period of time or to 
     save through the regular purchase of public or private 
     securities.
         (c) The plan specifically shall set forth the category or 
     categories of employees participating and the basis of their 
     eligibility. Eligibility may not be based on such factors as 
     hours of work, production, or efficiency of the employees: 
     Provided, however, That hours of work may be used to 
     determine eligibility of part-time or casual employees.
         (d) The amount any employee may save under the plan shall 
     be specified in the plan or determined in accordance with a 
     definite formula specified in the plan, which formula may be 
     based on one or more factors such as the straight-time 
     earnings or total earnings, base rate of pay, or length of 
     service of the employee.
         (e) The employer's total contribution in any year may not 
     exceed 15 percent of the participating employees' total 
     earnings during that year. In addition, the employer's total 
     contribution in any year may not exceed the total amount 
     saved or invested by the participating employees during that 
     year.
         (f) The employer's contributions shall be apportioned 
     among the individual employees in accordance with a definite 
     formula or method of calculation specified in the plan, which 
     formula or method of calculation is based on the amount saved 
     or the length of time the individual employee retains his 
     savings or investment in the plan: Provided, That no 
     employee's share determined in accordance with the plan may 
     be diminished because of any other remuneration received by 
     him.

     Sec. S547.2  Disqualifying provisions

         (a) No employee's participation in the plan shall be on 
     other than a voluntary basis.
         (b) No employee's wages or salary shall be dependent upon 
     or influenced by the existence of such thrift or savings plan 
     or the employer's contributions thereto.
         (c) The amounts any employee may save under the plan, or 
     the amounts paid by the employer under the plan may not be 
     based upon the employee's hours of work, production or 
     efficiency.

   PART S553--OVERTIME COMPENSATION: PARTIAL EXEMPTION FOR EMPLOYEES 
     ENGAGED IN LAW ENFORCEMENT AND FIRE PROTECTION; OVERTIME AND 
   COMPENSATORY TIME-OFF FOR EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY 
          DEPENDS UPON THE SCHEDULE OF THE HOUSE INTRODUCTION

Sec.
S553.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S553.1  Definitions
S553.2  Purpose and scope

 Subpart C--Partial Exemption for Employees Engaged in Law Enforcement 
                          and Fire Protection

S553.201  Statutory provisions: section 7(k).
S553.202  Limitations.
S553.211  Law enforcement activities.
S553.212  Twenty percent limitation on nonexempt work.
S553.213  Public agency employees engaged in both fire protection and 
              law enforcement activities.
S553.214  Trainees.
S553.215  Ambulance and rescue service employees.
S553.216  Other exemptions.
S553.220  ``Tour of duty'' defined.
S553.221  Compensable hours of work.
S553.222  Sleep time.
S553.223  Meal time.
S553.224  ``Work period'' defined.
S553.225  Early relief.
S553.226  Training time.
S553.227  Outside employment.
S553.230  Maximum hours standard for work periods of 7 to 28 days--
              section 7(k).
S553.231  Compensatory time off.
S553.232  Overtime pay requirements.
S553.233  ``Regular rate'' defined.

Subpart D--Compensatory Time-off for Overtime Earned by Employees Whose 
     Work Schedule Directly Depends Upon the Schedule of the House

S553.301  Definiton of ``directly depends''.
S553.302  Overtime compensation and compensatory time off for an 
              employee whose work schedule directly depends upon the 
              schedule of the House.
S553.303  Using compensatory time off.
S553.304  Payment of overtime compensation for accrued compensatory 
              time off as of termination of service.


                              introduction

     Sec. S553.00  Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance

         The following table lists the sections of the Secretary 
     of Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance (OC) Regulations under 
     section 203 of the CAA:

        Secretary of Labor Regulations                   OC Regulations
553.1  Definitions...............................................S553.1
553.2  Purpose and scope.........................................S553.2
553.201  Statutory provisions: section 7(k)....................S553.201
553.202  Limitations...........................................S553.202
553.211  Law enforcement activities............................S553.211
553.212  Twenty percent limitation on nonexempt work...........S553.212
553.213  Public agency employees engaged in both fire protection and 
  law enforcement activities...................................S553.213
553.214  Trainees..............................................S553.214
553.215  Ambulance and rescue service employees................S553.215
553.216  Other exemptions......................................S553.216
553.220  ``Tour of duty'' defined..............................S553.220
553.221  Compensable hours of work.............................S553.221
553.222  Sleep time............................................S553.222
553.223  Meal time.............................................S553.223
553.224  ``Work period'' defined...............................S553.224
553.225  Early relief..........................................S553.225
553.226  Training time.........................................S553.226
553.227  Outside employment....................................S553.227
553.230  Maximum hours standard for work periods of 7 to 28 days--
  section 7(k).................................................S553.230
553.231  Compensatory time off.................................S553.231

[[Page S3984]]

        Secretary of Labor Regulations                   OC Regulations
553.232  Overtime pay requirements.............................S553.232
553.233  ``Regular rate'' defined..............................S553.233


                              introduction

     Sec. S553.1  Definitions

         (a) Act or FLSA means the Fair Labor Standards Act of 
     1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. 201-
     219), as applied by the CAA.
         (b) 1985 Amendments means the Fair Labor Standards Act 
     Amendments of 1985 (Pub. L. 99-150).
         (c) Public agency means an employing office as the term 
     is defined in Sec. 501.102 of this chapter, including the 
     Capitol Police.
         (d) Section 7(k) means the provisions of Sec. 7(k) of the 
     FLSA as applied to covered employees and employing offices by 
     Sec. 203 of the CAA.

     Sec. S553.2  Purpose and scope

         The purpose of part S553 is to adopt with appropriate 
     modifications the regulations of the Secretary of Labor to 
     carry out those provisions of the FLSA relating to public 
     agency employees as they are applied to covered employees and 
     employing offices of the CAA. In particular, these 
     regulations apply section 7(k) as it relates to fire 
     protection and law enforcement employees of public agencies.

 Subpart C--Partial Exemption for Employees Engaged in Law Enforcement 
                          and Fire Protection

     Sec. S553.201  Statutory provisions: section 7(k)

         Section 7(k) of the Act provides a partial overtime pay 
     exemption for fire protection and law enforcement personnel 
     (including security personnel in correctional institutions) 
     who are employed by public agencies on a work period basis. 
     This section of the Act formerly permitted public agencies to 
     pay overtime compensation to such employees in work periods 
     of 28 consecutive days only after 216 hours of work. As 
     further set forth in Sec. S553.230 of this part, the 216-hour 
     standard has been replaced, pursuant to the study mandated by 
     the statute, by 212 hours for fire protection employees and 
     171 hours for law enforcement employees. In the case of such 
     employees who have a work period of at least 7 but less than 
     28 consecutive days, overtime compensation is required when 
     the ratio of the number of hours worked to the number of days 
     in the work period exceeds the ratio of 212 (or 171) hours to 
     28 days.

     Sec. S553.202  Limitations

         The application of Sec. 7(k), by its terms, is limited to 
     public agencies, and does not apply to any private 
     organization engaged in furnishing fire protection or law 
     enforcement services. This is so even if the services are 
     provided under contract with a public agency.


                         exemption requirements

     Sec. S553.211  Law enforcement activities

         (a) As used in Sec. 7(k) of the Act, the term ``any 
     employee . . . in law enforcement activities'' refers to any 
     employee (1) who is a uniformed or plainclothed member of a 
     body of officers and subordinates who are empowered by law to 
     enforce laws designed to maintain public peace and order and 
     to protect both life and property from accidental or willful 
     injury, and to prevent and detect crimes, (2) who has the 
     power to arrest, and (3) who is presently undergoing or has 
     undergone or will undergo on-the-job training and/or a course 
     of instruction and study which typically includes physical 
     training, self-defense, firearm proficiency, criminal and 
     civil law principles, investigative and law enforcement 
     techniques, community relations, medical aid and ethics.
         (b) Employees who meet these tests are considered to be 
     engaged in law enforcement activities regardless of their 
     rank, or of their status as ``trainee'', ``probationary'', or 
     ``permanent'', and regardless of their assignment to duties 
     incidental to the performance of their law enforcement 
     activities such as equipment maintenance, and lecturing, or 
     to support activities of the type described in paragraph (g) 
     of this section, whether or not such assignment is for 
     training or familiarization purposes, or for reasons of 
     illness, injury or infirmity. The term would also include 
     rescue and ambulance service personnel if such personnel form 
     an integral part of the public agency's law enforcement 
     activities. See section S553.215.
         (c) Typically, employees engaged in law enforcement 
     activities include police who are regularly employed and paid 
     as such. Other agency employees with duties not specifically 
     mentioned may, depending upon the particular facts and 
     pertinent statutory provisions in that jurisdiction, meet the 
     three tests described above. If so, they will also qualify as 
     law enforcement officers. Such employees might include, for 
     example, any law enforcement employee within the legislative 
     branch concerned with keeping public peace and order and 
     protecting life and property.
         (d) Employees who do not meet each of the three tests 
     described above are not engaged in ``law enforcement 
     activities'' as that term is used in section 7(k). Employees 
     who normally would not meet each of these tests include:
       (1) Building inspectors (other than those defined in 
     section S553.213(a)),
       (2) Health inspectors,
       (3) Sanitarians,
       (4) Civilian traffic employees who direct vehicular and 
     pedestrian traffic at specified intersections or other 
     control points,
       (5) Civilian parking checkers who patrol assigned areas for 
     the purpose of discovering parking violations and issuing 
     appropriate warnings or appearance notices,
       (6) Wage and hour compliance officers,
       (7) Equal employment opportunity compliance officers, and
       (8) Building guards whose primary duty is to protect the 
     lives and property of persons within the limited area of the 
     building.
         (e) The term ``any employee in law enforcement 
     activities'' also includes, by express reference, ``security 
     personnel in correctional institutions''. Typically, such 
     facilities may include precinct house lockups. Employees of 
     correctional institutions who qualify as security personnel 
     for purposes of the section 7(k) exemption are those who have 
     responsibility for controlling and maintaining custody of 
     inmates and of safeguarding them from other inmates or for 
     supervising such functions, regardless of whether their 
     duties are performed inside the correctional institution or 
     outside the institution. These employees are considered to be 
     engaged in law enforcement activities regardless of their 
     rank or of their status as ``trainee'', ``probationary'', or 
     ``permanent'', and regardless of their assignment to duties 
     incidental to the performance of their law enforcement 
     activities, or to support activities of the type described in 
     paragraph (f) of this section, whether or not such assignment 
     is for training or familiarization purposes or for reasons of 
     illness, injury or infirmity.
         (f) Not included in the term ``employee in law 
     enforcement activities'' are the so-called ``civilian'' 
     employees of law enforcement agencies or correctional 
     institutions who engage in such support activities as those 
     performed by dispatcher, radio operators, apparatus and 
     equipment maintenance and repair workers, janitors, clerks 
     and stenographers. Nor does the term include employees in 
     correctional institutions who engage in building repair and 
     maintenance, culinary services, teaching, or in 
     psychological, medical and paramedical services. This is so 
     even though such employees may, when assigned to correctional 
     institutions, come into regular contact with the inmates in 
     the performance of their duties.

     Sec. S553.212  Twenty percent limitation on nonexempt work

         (a) Employees engaged in fire protection or law 
     enforcement activities as described in sections S553.210 and 
     S553.211, may also engage in some nonexempt work which is not 
     performed as an incident to or in conjunction with their fire 
     protection or law enforcement activities. For example, 
     firefighters who work for forest conservation agencies may, 
     during slack times, plant trees and perform other 
     conservation activities unrelated to their firefighting 
     duties. The performance of such nonexempt work will not 
     defeat the Sec. 7(k) exemption unless it exceeds 20 percent 
     of the total hours worked by that employee during the 
     workweek or applicable work period. A person who spends more 
     than 20 percent of his/her working time in nonexempt 
     activities is not considered to be an employee engaged in 
     fire protection or law enforcement activities for purposes of 
     this part.
         (b) Public agency fire protection and law enforcement 
     personnel may, at their own option, undertake employment for 
     the same employer on an occasional or sporadic and part-time 
     basis in a different capacity from their regular employment. 
     The performance of such work does not affect the application 
     of the Sec. 7(k) exemption with respect to the regular 
     employment. In addition, the hours of work in the different 
     capacity need not be counted as hours worked for overtime 
     purposes on the regular job, nor are such hours counted in 
     determining the 20 percent tolerance for nonexempt work 
     discussed in paragraph (a) of this section.

     Sec. S553.213  Public agency employees engaged in both fire 
       protection and law enforcement activities

         (a) Some public agencies have employees (often called 
     ``public safety officers'') who engage in both fire 
     protection and law enforcement activities, depending on the 
     agency needs at the time. This dual assignment would not 
     defeat the section 7(k) exemption: Provided, That each of the 
     activities performed meets the appropriate tests set forth in 
     sections S553.210 and S553.211. This is so regardless of how 
     the employee's time is divided between the two activities. 
     However, all time spent in nonexempt activities by public 
     safety officers within the work period, whether performed in 
     connection with fire protection or law enforcement functions, 
     or with neither, must be combined for purposes of the 20 
     percent limitation on nonexempt work discussed in section 
     S553.212.
         (b) As specified in section S553.230, the maximum hours 
     standards under section 7(k) are different for employees 
     engaged in fire protection and for employees engaged in law 
     enforcement. For those employees who perform both fire 
     protection and law enforcement activities, the applicable 
     standard is the one which applies to the activity in which 
     the employee spends the majority of work time during the work 
     period.

     Sec. S553.214  Trainees

         The attendance at a bona fide fire or police academy or 
     other training facility, when required by the employing 
     agency, constitutes engagement in activities under section 
     7(k) only when the employee meets all the applicable tests 
     described in section S553.210 or section S553.211 (except for 
     the power of arrest for law enforcement personnel), as the

[[Page S3985]]

     case may be. If the applicable tests are met, then basic 
     training or advanced training is considered incidental to, 
     and part of, the employee's fire protection or law 
     enforcement activities.

     Sec. S553.215  Ambulance and rescue service employees

         Ambulance and rescue service employees of a public agency 
     other than a fire protection or law enforcement agency may be 
     treated as employees engaged in fire protection or law 
     enforcement activities of the type contemplated by Sec. 7(k) 
     if their services are substantially related to firefighting 
     or law enforcement activities in that (1) the ambulance and 
     rescue service employees have received training in the rescue 
     of fire, crime, and accident victims or firefighters or law 
     enforcement personnel injured in the performance of their 
     respective, duties, and (2) the ambulance and rescue service 
     employees are regularly dispatched to fires, crime scenes, 
     riots, natural disasters and accidents. As provided in 
     section S553.213(b), where employees perform both fire 
     protection and law enforcement activities, the applicable 
     standard is the one which applies to the activity in which 
     the employee spends the majority of work time during the work 
     period.

     Sec. S553.216  Other exemptions

         Although the 1974 Amendments to the FLSA as applied by 
     the CAA provide special exemptions for employees of public 
     agencies engaged in fire protection and law enforcement 
     activities, such workers may also be subject to other 
     exemptions in the Act, and public agencies may claim such 
     other applicable exemptions in lieu of Sec. 7(k). For 
     example, section 13(a)(1) as applied by the CAA provides a 
     complete minimum wage and overtime pay exemption for any 
     employee employed in a bona fide executive, administrative, 
     or professional capacity, as those terms are defined and 
     delimited in Part S541. The section 13(a)(1) exemption can be 
     claimed for any fire protection or law enforcement employee 
     who meets all of the tests specified in Part S541 relating to 
     duties, responsibilities, and salary. Thus, high ranking 
     police officials who are engaged in law enforcement 
     activities, may also, depending on the facts, qualify for the 
     section 13(a)(1) exemption as ``executive'' employees. 
     Similarly, certain criminal investigative agents may qualify 
     as ``administrative'' employees under section 13(a)(1).


            tour of duty and compensable hours of work rules

     Sec. S553.220  ``Tour of duty'' defined

         (a) The term ``tour of duty'' is a unique concept 
     applicable only to employees for whom the section 7(k) 
     exemption is claimed. This term, as used in section 7(k), 
     means the period of time during which an employee is 
     considered to be on duty for purposes of determining 
     compensable hours. It may be a scheduled or unscheduled 
     period. Such periods include ``shifts'' assigned to employees 
     often days in advance of the performance of the work. 
     Scheduled periods also include time spent in work outside the 
     ``shift'' which the public agency employer assigns. For 
     example, a police officer may be assigned to crowd control 
     during a parade or other special event outside of his or her 
     shift.
         (b) Unscheduled periods include time spent in court by 
     police officers, time spent handling emergency situations, 
     and time spent working after a shift to complete an 
     assignment. Such time must be included in the compensable 
     tour of duty even though the specific work performed may not 
     have been assigned in advance.
         (c) The tour of duty does not include time spent working 
     for a separate and independent employer in certain types of 
     special details as provided in section S553.227.

     Sec. S553.221  Compensable hours of work

         (a) The rules under the FLSA as applied by the CAA on 
     compensable hours of work are applicable to employees for 
     whom the section 7(k) exemption is claimed. Special rules for 
     sleep time (section S553.222) apply to both law enforcement 
     and firefighting employees for whom the section 7(k) 
     exemption is claimed. Also, special rules for meal time apply 
     in the case of firefighters (section S553.223).
         (b) Compensable hours of work generally include all of 
     the time during which an employee is on duty on the 
     employer's premises or at a prescribed workplace, as well as 
     all other time during which the employee is suffered or 
     permitted to work for the employer. Such time includes all 
     pre-shift and post-shift activities which are an integral 
     part of the employee's principal activity or which are 
     closely related to the performance of the principal activity, 
     such as attending roll call, writing up and completing 
     tickets or reports, and washing and re-racking fire hoses.
         (c) Time spent away from the employer's premises under 
     conditions that are so circumscribed that they restrict the 
     employee from effectively using the time for personal 
     pursuits also constitutes compensable hours of work. For 
     example, where a police station must be evacuated because of 
     an electrical failure and the employees are expected to 
     remain in the vicinity and return to work after the emergency 
     has passed, the entire time spent away from the premises is 
     compensable. The employees in this example cannot use the 
     time for their personal pursuits.
         (d) An employee who is not required to remain on the 
     employer's premises but is merely required to leave word at 
     home or with company officials where he or she may be reached 
     is not working while on call. Time spent at home on call may 
     or may not be compensable depending on whether the 
     restrictions placed on the employee preclude using the time 
     for personal pursuits. Where, for example, a firefighter has 
     returned home after the shift, with the understanding that he 
     or she is expected to return to work in the event of an 
     emergency in the night, such time spent at home is normally 
     not compensable. On the other hand, where the conditions 
     placed on the employee's activities are so restrictive that 
     the employee cannot use the time effectively for personal 
     pursuits, such time spent on call is compensable.
         (e) Normal home to work travel is not compensable, even 
     where the employee is expected to report to work at a 
     location away from the location of the employer's premises.
         (f) A police officer, who has completed his or her tour 
     of duty and who is given a patrol car to drive home and use 
     on personal business, is not working during the travel time 
     even where the radio must be left on so that the officer can 
     respond to emergency calls. Of course, the time spent in 
     responding to such calls is compensable.

     Sec. S553.222  Sleep time

         (a) Where a public agency elects to pay overtime 
     compensation to firefighters and/or law enforcement personnel 
     in accordance with section 7(a)(1) of the Act, the public 
     agency may exclude sleep time from hours worked if all the 
     conditions for the exclusion of such time are met.
         (b) Where the employer has elected to use the section 
     7(k) exemption, sleep time cannot be excluded from the 
     compensable hours of work where--
       (1) the employee is on a tour of duty of less than 24 
     hours, and
       (2) the employee is on a tour of duty of exactly 24 hours.
         (c) Sleep time can be excluded from compensable hours of 
     work, however, in the case of police officers or firefighters 
     who are on a tour of duty of more than 24 hours, but only if 
     there is an expressed or implied agreement between the 
     employer and the employees to exclude such time. In the 
     absence of such an agreement, the sleep time is compensable. 
     In no event shall the time excluded as sleep time exceed 8 
     hours in a 24-hour period. If the sleep time is interrupted 
     by a call to duty, the interruption must be counted as hours 
     worked. If the sleep period is interrupted to such an extent 
     that the employee cannot get a reasonable night's sleep 
     (which, for enforcement purposes means at least 5 hours), the 
     entire time must be counted as hours of work.

     Sec. S553.223  Meal time

         (a) If a public agency elects to pay overtime 
     compensation to firefighters and law enforcement personnel in 
     accordance with section 7(a)(1) of the Act, the public agency 
     may exclude meal time from hours worked if all the statutory 
     tests for the exclusion of such time are met.
         (b) If a public agency elects to use the section 7(k) 
     exemption, the public agency may, in the case of law 
     enforcement personnel, exclude meal time from hours worked on 
     tours of duty of 24 hours or less: Provided, That the 
     employee is completely relieved from duty during the meal 
     period, and all the other statutory tests for the exclusion 
     of such time are met. On the other hand, where law 
     enforcement personnel are required to remain on call in 
     barracks or similar quarters, or are engaged in extended 
     surveillance activities (e.g., stakeouts), they are not 
     considered to be completely relieved from duty, and any 
     such meal periods would be compensable.
       (c) With respect to firefighters employed under section 
     7(k), who are confined to a duty station, the legislative 
     history of the Act indicates congressional intent to mandate 
     a departure from the usual FLSA ``hours of work'' rules and 
     adoption of an overtime standard keyed to the unique concept 
     of ``tour of duty'' under which firefighters are employed. 
     Where the public agency elects to use the section 7(k) 
     exemption for firefighters, meal time cannot be excluded from 
     the compensable hours of work where (1) the firefighter is on 
     a tour of duty of less than 24 hours, and (2) where the 
     firefighter is on a tour of duty of exactly 24 hours.
       (d) In the case of police officers or firefighters who are 
     on a tour of duty of more than 24 hours, meal time may be 
     excluded from compensable hours of work provided that the 
     statutory tests for exclusion of such hours are met.

     Sec. S553.224  ``Work period'' defined

       (a) As used in section 7(k), the term ``work period'' 
     refers to any established and regularly recurring period of 
     work which, under the terms of the Act and legislative 
     history, cannot be less than 7 consecutive days nor more than 
     28 consecutive days. Except for this limitation, the work 
     period can be of any length, and it need not coincide with 
     the duty cycle or pay period or with a particular day of the 
     week or hour of the day. Once the beginning and ending time 
     of an employee's work period is established, however, it 
     remains fixed regardless of how many hours are worked within 
     the period. The beginning and ending of the work period may 
     be changed: Provided, That the change is intended to be 
     permanent and is not designed to evade the overtime 
     compensation requirements of the Act.
       (b) An employer may have one work period applicable to all 
     employees, or different work periods for different employees 
     or groups of employees.

[[Page S3986]]

     Sec. S553.225  Early relief

       It is a common practice among employees engaged in fire 
     protection activities to relieve employees on the previous 
     shift prior to the scheduled starting time. Such early relief 
     time may occur pursuant to employee agreement, either 
     expressed or implied. This practice will not have the effect 
     of increasing the number of compensable hours of work for 
     employees employed under section 7(k) where it is voluntary 
     on the part of the employees and does not result, over a 
     period of time, in their failure to receive proper 
     compensation for all hours actually worked. On the other 
     hand, if the practice is required by the employer, the time 
     involved must be added to the employee's tour of duty and 
     treated as compensable hours of work.

     Sec. S553.226  Training time

       (a) The general rules for determining the compensability of 
     training time under the FLSA apply to employees engaged in 
     law enforcement or fire protection activities.
       (b) While time spent in attending training required by an 
     employer is normally considered compensable hours of work, 
     following are situations where time spent by employees in 
     required training is considered to be noncompensable:
       (1) Attendance outside of regular working hours at 
     specialized or follow-up training, which is required by law 
     for certification of public and private sector employees 
     within a particular governmental jurisdiction (e.g., 
     certification of public and private emergency rescue 
     workers), does not constitute compensable hours of work for 
     public employees within that jurisdiction and subordinate 
     jurisdictions.
       (2) Attendance outside of regular working hours at 
     specialized or follow-up training, which is required for 
     certification of employees of a governmental jurisdiction by 
     law of a higher level of Government, does not constitute 
     compensable hours of work.
       (3) Time spent in the training described in paragraphs (b) 
     (1) or (2) of this section is not compensable, even if all or 
     part of the costs of the training is borne by the employer.
       (c) Police officers or firefighters, who are in attendance 
     at a police or fire academy or other training facility, are 
     not considered to be on duty during those times when they are 
     not in class or at a training session, if they are free to 
     use such time for personal pursuits. Such free time is not 
     compensable.

     Sec. S553.227  Outside employment

       (a) Section 7(p)(1) makes special provision for fire 
     protection and law enforcement employees of public agencies 
     who, at their own option, perform special duty work in fire 
     protection, law enforcement or related activities for a 
     separate and independent employer (public or private) during 
     their off-duty hours. The hours of work for the separate and 
     independent employer are not combined with the hours worked 
     for the primary public agency employer for purposes of 
     overtime compensation.
       (b) Section 7(p)(1) applies to such outside employment 
     provided (1) the special detail work is performed solely at 
     the employee's option, and (2) the two employers are in fact 
     separate and independent.
       (c) Whether two employers are, in fact, separate and 
     independent can only be determined on a case-by-case basis.
       (d) The primary employer may facilitate the employment or 
     affect the conditions of employment of such employees. For 
     example, a police department may maintain a roster of 
     officers who wish to perform such work. The department may 
     also select the officers for special details from a list of 
     those wishing to participate, negotiate their pay, and retain 
     a fee for administrative expenses. The department may require 
     that the separate and independent employer pay the fee for 
     such services directly to the department, and establish 
     procedures for the officers to receive their pay for the 
     special details through the agency's payroll system. Finally, 
     the department may require that the officers observe their 
     normal standards of conduct during such details and take 
     disciplinary action against those who fail to do so.
       (e) Section 7(p)(1) applies to special details even where a 
     State law or local ordinance requires that such work be 
     performed and that only law enforcement or fire protection 
     employees of a public agency in the same jurisdiction perform 
     the work. For example, a city ordinance may require the 
     presence of city police officers at a convention center 
     during concerts or sports events. If the officers perform 
     such work at their own option, the hours of work need not be 
     combined with the hours of work for their primary employer in 
     computing overtime compensation.
       (f) The principles in paragraphs (d) and (e) of this 
     section with respect to special details of public agency fire 
     protection and law enforcement employees under section 
     7(p)(1) are exceptions to the usual rules on joint employment 
     set forth in part 791 of this title.
       (g) Where an employee is directed by the public agency to 
     perform work for a second employer, section 7(p)(1) does not 
     apply. Thus, assignments of police officers outside of their 
     normal work hours to perform crowd control at a parade, where 
     the assignments are not solely at the option of the officers, 
     would not qualify as special details subject to this 
     exception. This would be true even if the parade organizers 
     reimburse the public agency for providing such services.
       (h) Section 7(p)(1) does not prevent a public agency from 
     prohibiting or restricting outside employment by its 
     employees.


                      overtime compensation rules

     Sec. S553.230  Maximum hours standards for work periods of 7 
       to 28 days--section 7(k)

       (a) For those employees engaged in fire protection 
     activities who have a work period of at least 7 but less than 
     28 consecutive days, no overtime compensation is required 
     under section 7(k) until the number of hours worked exceeds 
     the number of hours which bears the same relationship to 212 
     as the number of days in the work period bears to 28.
       (b) For those employees engaged in law enforcement 
     activities (including security personnel in correctional 
     institutions) who have a work period of at least 7 but less 
     than 28 consecutive days, no overtime compensation is 
     required under section 7(k) until the number of hours worked 
     exceeds the number of hours which bears the same relationship 
     to 171 as the number of days in the work period bears to 28.
       (c) The ratio of 212 hours to 28 days for employees engaged 
     in fire protection activities is 7.57 hours per day (rounded) 
     and the ratio of 171 hours to 28 days for employees engaged 
     in law enforcement activities is 6.11 hours per day 
     (rounded). Accordingly, overtime compensation (in premium pay 
     or compensatory time) is required for all hours worked in 
     excess of the following maximum hours standards (rounded to 
     the nearest whole hour):

------------------------------------------------------------------------
                                                 Maximum hours standards
                                               -------------------------
              Work period (days)                    Fire         Law    
                                                 protection  enforcement
------------------------------------------------------------------------
28............................................          212          171
27............................................          204          165
26............................................          197          159
25............................................          189          153
24............................................          182          147
23............................................          174          141
22............................................          167          134
21............................................          159          128
20............................................          151          122
19............................................          144          116
18............................................          136          110
17............................................          129          104
16............................................          121           98
15............................................          114           92
14............................................          106           86
13............................................           98           79
12............................................           91           73
11............................................           83           67
10............................................           76           61
9.............................................           68           55
8.............................................           61           49
7.............................................           53           43
------------------------------------------------------------------------

     Sec. S553.231  Compensatory time off

       (a) Law enforcement and fire protection employees who are 
     subject to the section 7(k) exemption may receive 
     compensatory time off in lieu of overtime pay for hours 
     worked in excess of the maximum for their work period as set 
     forth in section S553.230.
       (b) Section 7(k) permits public agencies to balance the 
     hours of work over an entire work period for law enforcement 
     and fire protection employees. For example, if a 
     firefighter's work period is 28 consecutive days, and he or 
     she works 80 hours in each of the first two weeks, but only 
     52 hours in the third week, and does not work in the fourth 
     week, no overtime compensation (in cash wages or compensatory 
     time) would be required since the total hours worked do not 
     exceed 212 for the work period. If the same firefighter had a 
     work period of only 14 days, overtime compensation or 
     compensatory time off would be due for 54 hours (160 minus 
     106 hours) in the first 14 day work period.

     Sec. S553.232  Overtime pay requirements

       If a public agency pays employees subject to section 7(k) 
     for overtime hours worked in cash wages rather than 
     compensatory time off, such wages must be paid at one and 
     one-half times the employees' regular rates of pay.

     Sec. S553.233  ``Regular rate'' defined

       The statutory rules for computing an employee's ``regular 
     rate'', for purposes of the Act's overtime pay requirements 
     are applicable to employees for whom the section 7(k) 
     exemption is claimed when overtime compensation is provided 
     in cash wages.

Subpart D--Compensatory Time-off for Overtime Earned by Employees Whose 
     Work Schedule Directly Depends Upon the Schedule of the Senate

     Sec. S553.301  Definition of ``directly depends''

       For the purposes of this Part, a covered employee's work 
     schedule ``directly depends'' on the schedule of the Senate 
     only if the eligible employee performs work that directly 
     supports the conduct of legislative or other business in the 
     chamber and works hours that regularly change in response to 
     the schedule of the House and the Senate.

     Sec. S553.302  Overtime compensation and compensatory time 
       off for an employee whose work schedule directly depends 
       upon the schedule of the Senate

       No employing office shall be deemed to have violated 
     section 203(a)(1) of the CAA, which applies the protections 
     of section 7(a) of the Fair Labor Standards Act (``FLSA'') to 
     covered employees and employing office, by employing any 
     employee for a workweek in excess of the maximum workweek 
     applicable to such employee under section 7(a) of the FLSA 
     where the employee's work schedule directly depends on the 
     schedule of the Senate within the meaning of Sec. S553.301, 
     and: (a) the employee is compensated at the rate

[[Page S3987]]

     of time-and-a-half in pay for all hours in excess of 40 and 
     up to 60 hours in a workweek, and (b) the employee is 
     compensated at the rate of time-and-a-half in either pay or 
     in time off for all hours in excess of 60 hours in a 
     workweek.

     Sec. S553.303  Using compensatory time off

       An employee who has accrued compensatory time off under 
     Sec. S553.302, upon his or her request, shall be permitted by 
     the employing office to use such time within a reasonable 
     period after making the request, unless the employing office 
     makes a bona fide determination that the needs of the 
     operations of the office do not allow the taking of 
     compensatory time off at the time of the request. An employee 
     may renew the request at a subsequent time. An employing 
     office may also, upon reasonable notice, require an employee 
     to use accrued compensatory time-off.

     Sec. S553.304  Payment of overtime compensation for accrued 
       compensatory time off as of termination of service

       An employee who has accrued compensatory time authorized by 
     this regulation shall, upon termination of employment, be 
     paid for the unused compensatory time at the rate earned by 
     the employee at the time the employee receives such payment.

                   PART S570--CHILD LABOR REGULATIONS

                           Subpart A--General

Sec.
S570.00  Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
S570.1  Definitions.
S570.2  Minimum age standards.

 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

S570.31  Determination.
S570.32  Effect of this subpart.
S570.33  Occupations.
S570.35  Periods and conditions of employment.

                           Subpart A--General

     Sec. S570.00  Corresponding section table of the FLSA 
       regulations of the Labor Department and the CAA regulations 
       of the Office of Compliance.

       The following table lists the sections of the Secretary of 
     Labor Regulations under the FLSA with the corresponding 
     sections of the Office of Compliance Regulations under 
     section 202 of the CAA:

        Secretary of Labor Regulations                   OC Regulations
570.1  Definitions...............................................S570.1
570.2  Minimum age standards.....................................S570.2
570.31  Determinations..........................................S570.31
570.32  Effect of this subpart..................................S570.32
570.33  Occupations.............................................S570.33
570.35  Periods and conditions of employment....................S570.35

     Sec. S570.1  Definitions

       As used in this part:
       (a) Act means the Fair Labor Standards Act of 1938, as 
     amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219).
       (b) Oppressive child labor means employment of a minor in 
     an occupation for which he does not meet the minimum age 
     standards of the Act, as set forth in section S570.2 of this 
     subpart.
       (c) Oppressive child labor age means an age below the 
     minimum age established under the Act for the occupation in 
     which a minor is employed or in which his employment is 
     contemplated.
       (d) [Reserved]
       (e) [Reserved]
       (f) Secretary or Secretary of Labor means the Secretary of 
     Labor, United States Department of Labor, or his authorized 
     representative.
       (g) Wage and Hour Division means the Wage and Hour 
     Division, Employment Standards Administration, United States 
     Department of Labor.
       (h) Administrator means the Administrator of the Wage and 
     Hour Division or his authorized representative.

     Sec. S570.2  Minimum age standards

       (a) All occupations except in agriculture. (1) The Act, in 
     section 3(1), sets a general 16-year minimum age which 
     applies to all employment subject to its child labor 
     provisions in any occupation other than in agriculture, with 
     the following exceptions:
       (i) The Act authorizes the Secretary of Labor to provide by 
     regulation or by order that the employment of employees 
     between the ages of 14 and 16 years in occupations other than 
     manufacturing and mining shall not be deemed to constitute 
     oppressive child labor, if and to the extent that the 
     Secretary of Labor determines that such employment is 
     confined to periods which will not interfere with their 
     schooling and to conditions which will not interfere with 
     their health and well-being (see subpart C of this part); and
       (ii) The Act sets an 18-year minimum age with respect to 
     employment in any occupation found and declared by the 
     Secretary of Labor to be particularly hazardous for the 
     employment of minors of such age or detrimental to their 
     health or well-being.
       (2) The Act exempts from its minimum age requirements the 
     employment by a parent of his own child, or by a person 
     standing in place of a parent of a child in his custody, 
     except in occupations to which the 18-year age minimum 
     applies and in manufacturing and mining occupations.

                         Subpart B--[Reserved]

 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

     Sec. S570.31  Determination

       The employment of minors between 14 and 16 years of age in 
     the occupations, for the periods, and under the conditions 
     hereafter specified does not interfere with their schooling 
     or with their health and well-being and shall not be deemed 
     to be oppressive child labor.

     Sec. S570.32  Effect of this subpart

       In all occupations covered by this subpart the employment 
     (including suffering or permitting to work) by an employer of 
     minor employees between 14 and 16 years of age for the 
     periods and under the conditions specified in Sec.  S570.35 
     shall not be deemed to be oppressive child labor within the 
     meaning of the Fair Labor Standards Act of 1938.

     Sec. S570.33  Occupations

       This subpart shall apply to all occupations other than the 
     following:
       (a) Manufacturing, mining, or processing occupations, 
     including occupations requiring the performance of any duties 
     in work rooms or work places where goods are manufactured, 
     mined, or otherwise processed;
       (b) Occupations which involve the operation or tending of 
     hoisting apparatus or of any power-driven machinery other 
     than office machines;
       (c) The operation of motor vehicles or service as helpers 
     on such vehicles;
       (d) Public messenger service;
       (e) Occupations which the Secretary of Labor may, pursuant 
     to section 3(1) of the Fair Labor Standards Act and 
     Reorganization Plan No. 2, issued pursuant to the 
     Reorganization Act of 1945, find and declare to be hazardous 
     for the employment of minors between 16 and 18 years of age 
     or detrimental to their health or well-being;
       (f) Occupations in connection with:
       (1) Transportation of persons or property by rail, highway, 
     air, water, pipeline, or other means;
       (2) Warehousing and storage;
       (3) Communications and public utilities;
       (4) Construction (including demolition and repair); except 
     such office (including ticket office) work, or sales work, in 
     connection with paragraphs (f) (1), (2), (3), and (4) of this 
     section, as does not involve the performance of any duties on 
     trains, motor vehicles, aircraft, vessels, or other media of 
     transportation or at the actual site of construction 
     operations.

     Sec. S570.35  Periods and conditions of employment

       (a) Except as provided in paragraph (b) of this section, 
     employment in any of the occupations to which this subpart is 
     applicable shall be confined to the following periods:
       (1) Outside school hours;
       (2) Not more than 40 hours in any 1 week when school is not 
     in session;
       (3) Not more than 18 hours in any 1 week when school is in 
     session;
       (4) Not more than 8 hours in any 1 day when school is not 
     in session;
       (5) Not more than 3 hours in any 1 day when school is in 
     session;
       (6) Between 7 a.m. and 7 p.m. in any 1 day, except during 
     the summer (June 1 through Labor Day) when the evening hour 
     will be 9 p.m.

    APPLICATION OF RIGHTS AND PROTECTIONS OF THE EMPLOYEE POLYGRAPH 
                         PROTECTION ACT OF 1988

                           Subpart A--General

Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Coverage.
1.4 Prohibitions on lie detector use.
1.5 Effect on other laws or agreements.
1.6 Notice of protection.
1.7 Authority of the Board.
1.8 Employment relationship.

                         Subpart B--Exemptions

1.10 Exclusion for employees of the Capitol Police. [Reserved]
1.11 Exemption for national defense and security.
1.12 Exemption for employing offices conducting investigations of 
              economic loss or injury.
1.13  Exemption for employing offices authorized to manufacture, 
              distribute, or dispense controlled substances.

      Subpart C--Restrictions on Polygraph Usage Under Exemptions

1.20  Adverse employment action under ongoing investigation exemption.
1.21  Adverse employment action under controlled substance exemption.
1.22  Rights of examinee--general.
1.23  Rights of examinee--pretest phase.
1.24  Rights of examinee--actual testing phase.
1.25  Rights of examinee--post-test phase.
1.26  Qualifications of and requirements for examiners.

          Subpart D--Recordkeeping and Disclosure Requirements

1.30  Records to be preserved for 3 years.
1.35  Disclosure of test information.

                         Subpart E--[Reserved]

1.40  [Reserved]
Appendix A--Notice to Examinee

[[Page S3988]]

Authority: Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1314(c)

                           Subpart A--General

     SEC. 1.1  PURPOSE AND SCOPE.

       Enacted into law on January 23, 1995, the Congressional 
     Accountability Act (``CAA'') directly applies the rights and 
     protections of eleven Federal labor and employment law 
     statutes to covered employees and employing offices within 
     the legislative branch. Section 204(a) of the CAA, 2 U.S.C. 
     Sec. 1314(a) provides that no employing office may require 
     any covered employee (including a covered employee who does 
     not work in that employing office) to take a lie detector 
     test where such test would be prohibited if required by an 
     employer under paragraphs (1), (2) or (3) of section 3 of the 
     Employee Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. 
     Sec. 2002 (1), (2) or (3). The purpose of this Part is to set 
     forth the regulations to carry out the provisions of section 
     204 of the CAA.
       Subpart A contains the provisions generally applicable to 
     covered employers, including the requirements relating to the 
     prohibitions on lie detector use. Subpart B sets forth rules 
     regarding the statutory exemptions from application of 
     section 204 of the CAA. Subpart C sets forth the restrictions 
     on polygraph usage under such exemptions. Subpart D sets 
     forth the rules on recordkeeping and the disclosure of 
     polygraph test information.

     SEC. 1.2  DEFINITIONS.

       For purposes of this part:
       (a) Act or CAA means the Congressional Accountability Act 
     of 1995 (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-
     1438).
       (b) EPPA means the Employee Polygraph Protection Act of 
     1988 (Pub. L. 100-347, 102 Stat. 646, 29 U.S.C. 
     Sec. Sec. 2001-2009) as applied to covered employees and 
     employing offices by section 204 of the CAA.
       (c) The term covered employee means any employee of (1) the 
     House of Representatives; (2) the Senate; (3) the Capitol 
     Guide Service; (4) the Congressional Budget Office; (5) the 
     Office of the Architect of the Capitol; (6) the Office of the 
     Attending Physician; (7) the Office of Compliance; or (8) the 
     Office of Technology Assessment.
       (d) The term employee includes an applicant for employment 
     and a former employee.
       (e) The term employee of the Office of the Architect of the 
     Capitol includes any employee of the Office of the Architect 
     of the Capitol, the Botanic Gardens, or the Senate 
     Restaurants.
       (f) The term employee of the Capitol Police includes any 
     member or officer of the Capitol Police.
       (g) The term employee of the House of Representatives 
     includes an individual occupying a position the pay for which 
     is disbursed by the Clerk of the House of Representatives, or 
     another official designated by the House of Representatives, 
     or any employment position in an entity that is paid with 
     funds derived from the clerk-hire allowance of the House of 
     Representatives but not any such individual employed by any 
     entity listed in subparagraphs (3) through (8) of paragraph 
     (c) above.
       (h) The term employee of the Senate includes any employee 
     whose pay is disbursed by the Secretary of the Senate, but 
     not any such individual employed by any entity listed in 
     subparagraphs (3) through (8) of paragraph (c) above.
       (i) The term employing office means (1) the personal office 
     of a Member of the House of Representatives or of a Senator; 
     (2) a committee of the House of Representatives or the Senate 
     or a joint committee; (3) any other office headed by a person 
     with the final authority to appoint, hire, discharge, and set 
     the terms, conditions, or privileges of the employment of an 
     employee of the House of Representatives or the Senate; or 
     (4) the Capitol Guide Board, the Congressional Budget Office, 
     the Office of the Architect of the Capitol, the Office of the 
     Attending Physician, the Office of Compliance, and the Office 
     of Technology Assessment. The term employing office includes 
     any person acting directly or indirectly in the interest of 
     an employing office in relation to an employee or prospective 
     employee. A polygraph examiner either employed for or whose 
     services are retained for the sole purpose of administering 
     polygraph tests ordinarily would not be deemed an employing 
     office with respect to the examinees. Any reference to 
     ``employer'' in these regulations includes employing offices.
       (j)(1) The term lie detector means a polygraph, 
     deceptograph, voice stress analyzer, psychological stress 
     evaluator, or any other similar device (whether mechanical or 
     electrical) that is used, or the results of which are used, 
     for the purpose of rendering a diagnostic opinion regarding 
     the honesty or dishonesty of an individual. Voice stress 
     analyzers, or psychological stress evaluators, include any 
     systems that utilize voice stress analysis, whether or not an 
     opinion on honesty or dishonesty is specifically rendered.
       (2) The term lie detector does not include medical tests 
     used to determine the presence or absence of controlled 
     substances or alcohol in bodily fluids. Also not included in 
     the definition of lie detector are written or oral tests 
     commonly referred to as ``honesty'' or ``paper and pencil'' 
     tests, machine-scored or otherwise; and graphology tests 
     commonly referred to as handwriting tests.
       (k) The term polygraph means an instrument that--
       (1) records continuously, visually, permanently, and 
     simultaneously changes in cardiovascular, respiratory, and 
     electrodermal patterns as minimum instrumentation standards; 
     and
       (2) is used, or the results of which are used, for the 
     purpose of rendering a diagnostic opinion regarding the 
     honesty or dishonesty of an individual.
       (l) Board means the Board of Directors of the Office of 
     Compliance.
       (m) Office means the Office of Compliance.

     SEC. 1.3  COVERAGE.

       The coverage of section 204 of the Act extends to any 
     ``covered employee'' or ``covered employing office'' without 
     regard to the number of employees or the employing office's 
     effect on interstate commerce.

     SEC. 1.4  PROHIBITIONS ON LIE DETECTOR USE.

       (a) Section 204 of the CAA provides that, subject to the 
     exemptions of the EPPA incorporated into the CAA under 
     section 225(f) of the CAA, as set forth in section 1.10 
     through 1.12 of this Part, employing offices are prohibited 
     from:
       (1) Requiring, requesting, suggesting or causing, directly 
     or indirectly, any covered employee or prospective employee 
     to take or submit to a lie detector test;
       (2) Using, accepting, or inquiring about the results of a 
     lie detector test of any covered employee or prospective 
     employee; and
       (3) Discharging, disciplining, discriminating against, 
     denying employment or promotion, or threatening any covered 
     employee or prospective employee to take such action for 
     refusal or failure to take or submit to such test, or on the 
     basis of the results of a test.
       The above prohibitions apply irrespective of whether the 
     covered employee referred to in paragraphs (1), (2) or (3), 
     above, works in that employing office.
       (b) An employing office that reports a theft or other 
     incident involving economic loss to police or other law 
     enforcement authorities is not engaged in conduct subject to 
     the prohibitions under paragraph (a) of this section if, 
     during the normal course of a subsequent investigation, such 
     authorities deem it necessary to administer a polygraph test 
     to a covered employee(s) suspected of involvement in the 
     reported incident. Employing offices that cooperate with 
     police authorities during the course of their investigations 
     into criminal misconduct are likewise not deemed engaged in 
     prohibitive conduct: Provided, That such cooperation is 
     passive in nature. For example, it is not uncommon for police 
     authorities to request employees suspected of theft or 
     criminal activity to submit to a polygraph test during the 
     employee's tour of duty since, as a general rule, suspect 
     employees are often difficult to locate away from their place 
     of employment. Allowing a test on the employing office's 
     premises, releasing a covered employee during working hours 
     to take a test at police headquarters, and other similar 
     types of cooperation at the request of the police authorities 
     would not be construed as ``requiring, requesting, 
     suggesting, or causing, directly or indirectly, any covered 
     employee * * * to take or submit to a lie detector test''. 
     Cooperation of this type must be distinguished from actual 
     participation in the testing of employees suspected of 
     wrongdoing, either through the administration of a test by 
     the employing office at the request or direction of police 
     authorities, or through reimbursement by the employing office 
     of tests administered by police authorities to employees. In 
     some communities, it may be a practice of police authorities 
     to request testing by employing offices of employees before a 
     police investigation is initiated on a reported incident. In 
     other communities, police examiners are available to covered 
     employing offices, on a cost reimbursement basis, to conduct 
     tests on employees suspected by an employing office of 
     wrongdoing. All such conduct on the part of employing offices 
     is deemed within the prohibitions of section 204 of the CAA.
       (c) The receipt by an employing office of information from 
     a polygraph test administered by police authorities pursuant 
     to an investigation is prohibited by section 3(2) of the 
     EPPA. (See paragraph (a)(2) of this section.)
       (d) The simulated use of a polygraph instrument so as to 
     lead an individual to believe that an actual test is being or 
     may be performed (e.g., to elicit confessions or admissions 
     of guilt) constitutes conduct prohibited by paragraph (a) of 
     this section. Such use includes the connection of a covered 
     employee or prospective employee to the instrument without 
     any intention of a diagnostic purpose, the placement of the 
     instrument in a room used for interrogation unconnected to 
     the covered employee or prospective employee, or the mere 
     suggestion that the instrument may be used during the course 
     of the interview.
       (e) The Capitol Police may not require a covered employee 
     not employed by the Capitol Police to take a lie detector 
     test (on its own initiative or at the request of another 
     employing office) except where the Capitol Police administers 
     such lie detector test as part of an ``ongoing 
     investigation'' by the Capitol Police. For the purpose of 
     this subsection, the definition of ``ongoing investigation'' 
     contained in section 1.12(b) shall apply.

     SEC. 1.5  EFFECT ON OTHER LAWS OR AGREEMENTS.

       (a) Section 204 of the CAA does not preempt any otherwise 
     applicable provision of Federal law or any rule or regulation 
     of the House or Senate or any negotiated collective 
     bargaining agreement that prohibits lie detector tests or is 
     more restrictive with respect to the use of lie detector 
     tests.

[[Page S3989]]

       (b)(1) This provision applies to all aspects of the use of 
     lie detector tests, including procedural safeguards, the use 
     of test results, the rights and remedies provided examinees, 
     and the rights, remedies, and responsibilities of examiners 
     and employing offices.
       (2) For example, a collective bargaining agreement that 
     provides greater protection to an examinee would apply in 
     addition to the protection provided in section 204 of the 
     CAA.

     SEC. 1.6  NOTICE OF PROTECTION.

       Pursuant to section 301(h) of the CAA, the Office shall 
     prepare, in a manner suitable for posting, a notice 
     explaining the provisions of section 204 of the CAA. Copies 
     of such notice may be obtained from the Office of Compliance.

     SEC. 1.7  AUTHORITY OF THE BOARD.

       Pursuant to sections 204 and 304 of the CAA, the Board is 
     authorized to issue regulations to implement the rights and 
     protections of the EPPA. Section 204(c) directs the Board to 
     promulgate regulations implementing section 204 that are 
     ``the same as substantive regulations promulgated by the 
     Secretary of Labor to implement the statutory provisions 
     referred to in subsections (a) and (b) [of section 204 of the 
     CAA] except insofar as the Board may determine, for good 
     cause shown . . . that a modification of such regulations 
     would be more effective for the implementation of the rights 
     and protections under this section''. The regulations issued 
     by the Board herein are on all matters for which section 204 
     of the CAA requires a regulation to be issued. Specifically, 
     it is the Board's considered judgment, based on the 
     information available to it at the time of promulgation of 
     these regulations, that, with the exception of the 
     regulations adopted and set forth herein, there are no other 
     ``substantive regulations promulgated by the Secretary of 
     Labor to implement the statutory provisions referred to in 
     subsections (a) and (b) [of section 204 of the CAA]''.
       In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Secretary. Such changes are intended to 
     make the provisions adopted accord more naturally to 
     situations in the legislative branch. However, by making 
     these changes, the Board does not intend a substantive 
     difference between these regulations and those of the 
     Secretary from which they are derived. Moreover such changes, 
     in and of themselves, are not intended to constitute an 
     interpretation of the regulation or of the statutory 
     provisions of the CAA upon which they are based.

     SEC. 1.8  EMPLOYMENT RELATIONSHIP.

       Subject to the exemptions incorporated into the CAA by 
     section 225(f), section 204 applies the prohibitions on the 
     use of lie detectors by employing offices with respect to 
     covered employees irrespective of whether a covered employee 
     works in that employing office. Sections 101 (3), (4) and 204 
     of the CAA also apply EPPA prohibitions against 
     discrimination to applicants for employment and former 
     employees of a covered employing office. For example, an 
     employee may quit rather than take a lie detector test. The 
     employing office cannot discriminate or threaten to 
     discriminate in any manner against that person (such as by 
     providing bad references in the future) because of that 
     person's refusal to be tested. Similarly, an employing office 
     cannot discriminate or threaten to discriminate in any manner 
     against that person because that person files a complaint, 
     institutes a proceeding, testifies in a proceeding, or 
     exercises any right under section 204 of the CAA. (See 
     section 207 of the CAA.)

                         Subpart B--Exemptions

     SEC. 1.10  EXCLUSION FOR EMPLOYEES OF THE CAPITOL POLICE 
                   [RESERVED].

     SEC. 1.11  EXEMPTION FOR NATIONAL DEFENSE AND SECURITY.

       (a) The exemptions allowing for the administration of lie 
     detector tests in the following paragraphs (b) through (e) of 
     this section apply only to the Federal Government; they do 
     not allow covered employing offices to administer such tests. 
     For the purposes of this section, the term ``Federal 
     Government'' means any agency or entity within the Federal 
     Government authorized to administer polygraph examinations 
     which is otherwise exempt from coverage under section 7(a) of 
     the EPPA, 29 U.S.C. Sec. 2006(a).
       (b) Section 7(b)(1) of the EPPA, incorporated into the CAA 
     under section 225(f) of the CAA, provides that nothing in the 
     EPPA shall be construed to prohibit the administration of any 
     lie detector test by the Federal Government, in the 
     performance of any counterintelligence function, to any 
     expert, consultant or employee of any contractor under 
     contract with the Department of Defense; or with the 
     Department of Energy, in connection with the atomic energy 
     defense activities of such Department.
       (c) Section 7(b)(2)(A) of the EPPA, incorporated into the 
     CAA under section 225(f) of the CAA, provides that nothing in 
     the EPPA shall be construed to prohibit the administration of 
     any lie detector test by the Federal Government, in the 
     performance of any intelligence or counterintelligence 
     function of the National Security Agency, the Defense 
     Intelligence Agency, or the Central Intelligence Agency, to 
     any individual employed by, assigned to, or detailed to any 
     such agency; or any expert or consultant under contract to 
     any such agency; or any employee of a contractor to such 
     agency; or any individual applying for a position in any such 
     agency; or any individual assigned to a space where sensitive 
     cryptologic information is produced, processed, or stored for 
     any such agency.
       (d) Section 7(b)(2)(B) of the EPPA, incorporated into the 
     CAA under section 225(f) of the CAA, provides that nothing in 
     the EPPA shall be construed to prohibit the administration of 
     any lie detector test by the Federal Government, in the 
     performance of any intelligence or counterintelligence 
     function, to any covered employee whose duties involve access 
     to information that has been classified at the level of top 
     secret or designated as being within a special access program 
     under section 4.2 (a) of Executive Order 12356 (or a 
     successor Executive order).
       (c) Counterintelligence for purposes of the above 
     paragraphs means information gathered and activities 
     conducted to protect against espionage and other clandestine 
     intelligence activities, sabotage, terrorist activities, or 
     assassinations conducted for or on behalf of foreign 
     governments, or foreign or domestic organizations or persons.
       (d) Lie detector tests of persons described in the above 
     paragraphs will be administered in accordance with applicable 
     Department of Defense directives and regulations, or other 
     regulations and directives governing the use of such tests by 
     the United States Government, as applicable.

     SEC. 1.12  EXEMPTION FOR EMPLOYING OFFICES CONDUCTING 
                   INVESTIGATIONS OF ECONOMIC LOSS OR INJURY.

       (a) Section 7(d) of the EPPA, incorporated into the CAA 
     under section 225(f) of the CAA, provides a limited exemption 
     from the general prohibition on lie detector use for 
     employers conducting ongoing investigations of economic loss 
     or injury to the employer's business. An employing office may 
     request an employee, subject to the conditions set forth in 
     sections 8 and 10 of the EPPA and sections 1.20, 1.22, 1.23, 
     1.24, 1.25, 1.26 and 1.35 of this part, to submit to a 
     polygraph test, but no other type of lie detector test, only 
     if--
       (1) The test is administered in connection with an ongoing 
     investigation involving economic loss or injury to the 
     employing office's operations, such as theft, embezzlement, 
     misappropriation or an act of unlawful industrial espionage 
     or sabotage;
       (2) The employee had access to the property that is the 
     subject of the investigation;
       (3) The employing office has a reasonable suspicion that 
     the employee was involved in the incident or activity under 
     investigation;
       (4) The employing office provides the examinee with a 
     statement, in a language understood by the examinee, prior to 
     the test which fully explains with particularity the specific 
     incident or activity being investigated and the basis for 
     testing particular employees and which contains, at a 
     minimum:
       (i) An identification with particularity of the specific 
     economic loss or injury to the operations of the employing 
     office;
       (ii) A description of the employee's access to the property 
     that is the subject of the investigation;
       (iii) A description in detail of the basis of the employing 
     office's reasonable suspicion that the employee was involved 
     in the incident or activity under investigation; and
       (iv) Signature of a person (other than a polygraph 
     examiner) authorized to legally bind the employing office; 
     and
       (5) The employing office retains a copy of the statement 
     and proof of service described in paragraph (a)(4) of this 
     section for at least 3 years.
       (b) For the exemption to apply, the condition of an 
     ``ongoing investigation'' must be met. As used in section 
     7(d) of the EPPA, the ongoing investigation must be of a 
     specific incident or activity. Thus, for example, an 
     employing office may not request that an employee or 
     employees submit to a polygraph test in an effort to 
     determine whether or not any thefts have occurred. Such 
     random testing by an employing office is precluded by the 
     EPPA. Further, because the exemption is limited to a specific 
     incident or activity, an employing office is precluded from 
     using the exemption in situations where the so-called 
     ``ongoing investigation'' is continuous. For example, the 
     fact that items are frequently missing would not be a 
     sufficient basis, standing alone, for administering a 
     polygraph test. Even if the employing office can establish 
     that unusually high amounts of property are missing in a 
     given month, this, in and of itself, would not be a 
     sufficient basis to meet the specific incident requirement. 
     On the other hand, polygraph testing in response to missing 
     property would be permitted where additional evidence is 
     obtained through subsequent investigation of specific items 
     missing through intentional wrongdoing, and a reasonable 
     suspicion that the employee to be polygraphed was involved in 
     the incident under investigation. Administering a polygraph 
     test in circumstances where the missing property is merely 
     unspecified, statistical shortages, without identification of 
     a specific incident or activity that produced the missing 
     property and a ``reasonable suspicion that the employee was 
     involved'', would amount to little more than a fishing 
     expedition and is prohibited by the EPPA as applied to 
     covered employees and employing offices by the CAA.
       (c)(1)(i) The terms economic loss or injury to the 
     employing office's operations include both direct and 
     indirect economic loss or injury.
       (ii) Direct loss or injury includes losses or injuries 
     resulting from theft, embezzlement,

[[Page S3990]]

     misappropriation, espionage or sabotage. These examples, 
     cited in the EPPA, are intended to be illustrative and not 
     exhaustive. Another specific incident which would constitute 
     direct economic loss or injury is the misappropriation of 
     confidential or trade secret information.
       (iii) Indirect loss or injury includes the use of an 
     employing office's operations to commit a crime, such as 
     check-kiting or money laundering. In such cases, the ongoing 
     investigation must be limited to criminal activity that has 
     already occurred, and to use of the employing office's 
     operations (and not simply the use of the premises) for such 
     activity. For example, the use of an employing office's 
     vehicles, warehouses, computers or equipment to smuggle or 
     facilitate the importing of illegal substances constitutes an 
     indirect loss or injury to the employing office's business 
     operations. Conversely, the mere fact that an illegal act 
     occurs on the employing office's premises (such as a drug 
     transaction that takes place in the employing office's 
     parking lot or rest room) does not constitute an indirect 
     economic loss or injury to the employing office.
       (iv) Indirect loss or injury also includes theft or injury 
     to property of another for which the employing office 
     exercises fiduciary, managerial or security responsibility, 
     or where the office has custody of the property (but not 
     property of other offices to which the employees have access 
     by virtue of the employment relationship). For example, if a 
     maintenance employee of the manager of an apartment building 
     steals jewelry from a tenant's apartment, the theft results 
     in an indirect economic loss or injury to the employer 
     because of the manager's management responsibility with 
     respect to the tenant's apartment. A messenger on a delivery 
     of confidential business reports for a client firm who steals 
     the reports causes an indirect economic loss or injury to the 
     messenger service because the messenger service is custodian 
     of the client firm's reports, and therefore is responsible 
     for their security. Similarly, the theft of property 
     protected by a security service employer is considered an 
     economic loss or injury to that employer.
       (v) A theft or injury to a client firm does not constitute 
     an indirect loss or injury to an employing office unless that 
     employing office has custody of, or management, or security 
     responsibility for, the property of the client that was lost 
     or stolen or injured. For example, a cleaning contractor has 
     no responsibility for the money at a client bank. If money is 
     stolen from the bank by one of the cleaning contractor's 
     employees, the cleaning contractor does not suffer an 
     indirect loss or injury.
       (vi) Indirect loss or injury does not include loss or 
     injury which is merely threatened or potential, e.g., a 
     threatened or potential loss of an advantageous business 
     relationship.
       (2) Economic losses or injuries which are the result of 
     unintentional or lawful conduct would not serve as a basis 
     for the administration of a polygraph test. Thus, apparently 
     unintentional losses or injuries stemming from truck, car, 
     workplace, or other similar type accidents or routine 
     inventory or cash register shortages would not meet the 
     economic loss or injury requirement. Any economic loss 
     incident to lawful union or employee activity also would not 
     satisfy this requirement.
       (3) It is the operations of the employing office which must 
     suffer the economic loss or injury. Thus, a theft committed 
     by one employee against another employee of the same 
     employing office would not satisfy the requirement.
       (d) While nothing in the EPPA as applied by the CAA 
     prohibits the use of medical tests to determine the presence 
     of controlled substances or alcohol in bodily fluids, the 
     section 7(d) exemption of the EPPA does not permit the use of 
     a polygraph test to learn whether an employee has used drugs 
     or alcohol, even where such possible use may have contributed 
     to an economic loss to the employing office (e.g., an 
     accident involving an employing office's vehicle).
       (e) Section 7(d)(2) of the EPPA provides that, as a 
     condition for the use of the exemption, the employee must 
     have had access to the property that is the subject of the 
     investigation.
       (1) The word access, as used in section 7(d)(2), refers to 
     the opportunity which an employee had to cause, or to aid or 
     abet in causing, the specific economic loss or injury under 
     investigation. The term ``access'', thus, includes more than 
     direct or physical contact during the course of employment. 
     For example, as a general matter, all employees working in or 
     with authority to enter a property storage area have 
     ``access'' to unsecured property in the area. All employees 
     with the combination to a safe have ``access'' to the 
     property in a locked safe. Employees also have ``access'' who 
     have the ability to divert possession or otherwise affect the 
     disposition of the property that is the subject of 
     investigation. For example, a bookkeeper in a jewelry store 
     with access to inventory records may aid or abet a clerk who 
     steals an expensive watch by removing the watch from the 
     employing office's inventory records. In such a situation, it 
     is clear that the bookkeeper effectively has ``access'' to 
     the property that is the subject of the investigation.
       (2) As used in section 7(d)(2), property refers to 
     specifically identifiable property, but also includes such 
     things of value as security codes and computer data, and 
     proprietary, financial or technical information, such as 
     trade secrets, which by its availability to competitors or 
     others would cause economic harm to the employing office.
       (f)(1) As used in section 7(d)(3), the term reasonable 
     suspicion refers to an observable, articulable basis in fact 
     which indicates that a particular employee was involved in, 
     or responsible for, an economic loss. Access in the sense of 
     possible or potential opportunity, standing alone, does not 
     constitute a basis for ``reasonable suspicion''. Information 
     from a co-worker, or an employee's behavior, demeanor, or 
     conduct may be factors in the basis for reasonable suspicion. 
     Likewise, inconsistencies between facts, claims, or 
     statements that surface during an investigation can serve as 
     a sufficient basis for reasonable suspicion. While access or 
     opportunity, standing alone, does not constitute a basis for 
     reasonable suspicion, the totality of circumstances 
     surrounding the access or opportunity (such as its 
     unauthorized or unusual nature or the fact that access was 
     limited to a single individual) may constitute a factor in 
     determining whether there is a reasonable suspicion.
       (2) For example, in an investigation of a theft of an 
     expensive piece of jewelry, an employee authorized to open 
     the establishment's safe no earlier than 9 a.m., in order to 
     place the jewelry in a window display case, is observed 
     opening the safe at 7:30 a.m. In such a situation, the 
     opening of the safe by the employee one and one-half hours 
     prior to the specified time may serve as the basis for 
     reasonable suspicion. On the other hand, in the example 
     given, if the employee is asked to bring the piece of jewelry 
     to his or her office at 7:30 a.m., and the employee then 
     opened the safe and reported the jewelry missing, such 
     access, standing alone, would not constitute a basis for 
     reasonable suspicion that the employee was involved in the 
     incident unless access to the safe was limited solely to the 
     employee. If no one other than the employee possessed the 
     combination to the safe, and all other possible explanations 
     for the loss are ruled out, such as a break-in, a basis for 
     reasonable suspicion may be formulated based on sole access 
     by one employee.
       (3) The employing office has the burden of establishing 
     that the specific individual or individuals to be tested are 
     ``reasonably suspected'' of involvement in the specific 
     economic loss or injury for the requirement in section 
     7(d)(3) of the EPPA to be met.
       (g)(1) As discussed in paragraph (a)(4) of this section, 
     section 7(d)(4) of the EPPA sets forth what information, at a 
     minimum, must be provided to an employee if the employing 
     office wishes to claim the exemption.
       (2) The statement required under paragraph (a)(4) of this 
     section must be received by the employee at least 48 hours, 
     excluding weekend days and holidays, prior to the time of the 
     examination. The statement must set forth the time and date 
     of receipt by the employee and be verified by the employee's 
     signature. This will provide the employee with adequate pre-
     test notice of the specific incident or activity being 
     investigated and afford the employee sufficient time prior to 
     the test to obtain and consult with legal counsel or an 
     employee representative.
       (3) The statement to be provided to the employee must set 
     forth with particularity the specific incident or activity 
     being investigated and the basis for testing particular 
     employees. Section 7(d)(4)(A) of the EPPA requires 
     specificity beyond the mere assertion of general statements 
     regarding economic loss, employee access, and reasonable 
     suspicion. For example, an employing office's assertion that 
     an expensive watch was stolen, and that the employee had 
     access to the watch and is therefore a suspect, would not 
     meet the ``with particularity'' criterion. If the basis for 
     an employing office's requesting an employee (or employees) 
     to take a polygraph test is not articulated with 
     particularity, and reduced to writing, then the standard is 
     not met. The identity of a co-worker or other individual 
     providing information used to establish reasonable suspicion 
     need not be revealed in the statement.
       (4) It is further required that the statement provided to 
     the examinee be signed by the employing office, or an 
     employee or other representative of the employing office with 
     authority to legally bind the employing office. The person 
     signing the statement must not be a polygraph examiner unless 
     the examiner is acting solely in the capacity of an employing 
     office with respect to his or her own employees and does not 
     conduct the examination. The standard would not be met, and 
     the exemption would not apply if the person signing the 
     statement is not authorized to legally bind the employing 
     office.
       (h) Polygraph tests administered pursuant to this exemption 
     are subject to the limitations set forth in sections 8 and 10 
     of the EPPA, as discussed in sections 1.20, 1.22, 1.23, 1.24, 
     1.25, 1.26, and 1.35 of this part. As provided in these 
     sections, the exemption will apply only if certain 
     requirements are met. Failure to satisfy any of the specified 
     requirements nullifies the statutory authority for polygraph 
     test administration and may subject the employing office to 
     remedial actions, as provided for in section 6(c) of the 
     EPPA.

     SEC. 1.13  EXEMPTION OF EMPLOYING OFFICES AUTHORIZED TO 
                   MANUFACTURE, DISTRIBUTE, OR DISPENSE CONTROLLED 
                   SUBSTANCES.

       (a) Section 7(f) of the EPPA, incorporated into the CAA by 
     section 225(f) of the CAA, provides an exemption from the 
     EPPA's general prohibition regarding the use of polygraph 
     tests for employers authorized to manufacture, distribute, or 
     dispense a controlled substance listed in schedule I, II, 
     III, or IV of

[[Page S3991]]

     section 202 of the Controlled Substances Act (21 U.S.C. 
     Sec. 812). This exemption permits the administration of 
     polygraph tests, subject to the conditions set forth in 
     sections 8 and 10 of the EPPA and sections 1.21, 1.22, 1.23, 
     1.24, 1.25, 1.26, and 1.35 of this part, to:
       (1) A prospective employee who would have direct access to 
     the manufacture, storage, distribution, or sale of any such 
     controlled substance; or
       (2) A current employee if the following conditions are met:
       (i) The test is administered in connection with an ongoing 
     investigation of criminal or other misconduct involving, or 
     potentially involving, loss or injury to the manufacture, 
     distribution, or dispensing of any such controlled substance 
     by such employing office; and
       (ii) The employee had access to the person or property that 
     is the subject of the investigation.
        (b)(1) The terms manufacture, distribute, distribution, 
     dispense, storage, and sale, for the purposes of this 
     exemption, are construed within the meaning of the Controlled 
     Substances Act (21 U.S.C. Sec. 812 et seq.), as administered 
     by the Drug Enforcement Administration (DEA), United States 
     Department of Justice.
       (2) The exemption in section 7(f) of the EPPA applies only 
     to employing offices that are authorized by DEA to 
     manufacture, distribute, or dispense a controlled substance. 
     Section 202 of the Controlled Substances Act (21 U.S.C. 
     Sec. 812) requires every person who manufactures, 
     distributes, or dispenses any controlled substance to 
     register with the Attorney General (i.e., with DEA). Common 
     or contract carriers and warehouses whose possession of the 
     controlled substance is in the usual course of their business 
     or employment are not required to register. Truck drivers and 
     warehouse employees of the persons or entities registered 
     with DEA and authorized to manufacture, distribute, or 
     dispense controlled substances, are within the scope of the 
     exemption where they have direct access or access to the 
     controlled substances, as discussed below.
       (c) In order for a polygraph examination to be performed, 
     section 7(f) of the Act requires that a prospective employee 
     have ``direct access'' to the controlled substance(s) 
     manufactured, dispensed, or distributed by the employing 
     office. Where a current employee is to be tested as a part of 
     an ongoing investigation, section 7(f) requires that the 
     employee have ``access'' to the person or property that is 
     the subject of the investigation.
       (1) A prospective employee would have ``direct access'' if 
     the position being applied for has responsibilities which 
     include contact with or which affect the disposition of a 
     controlled substance, including participation in the process 
     of obtaining, dispensing, or otherwise distributing a 
     controlled substance. This includes contact or direct 
     involvement in the manufacture, storage, testing, 
     distribution, sale or dispensing of a controlled substance 
     and may include, for example, packaging, repackaging, 
     ordering, licensing, shipping, receiving, taking inventory, 
     providing security, prescribing, and handling of a controlled 
     substance. A prospective employee would have ``direct 
     access'' if the described job duties would give such person 
     access to the products in question, whether such employee 
     would be in physical proximity to controlled substances or 
     engaged in activity which would permit the employee to divert 
     such substances to his or her possession.
       (2) A current employee would have ``access'' within the 
     meaning of section 7(f) if the employee had access to the 
     specific person or property which is the subject of the on-
     going investigation, as discussed in section 1.12(e) of this 
     part. Thus, to test a current employee, the employee need not 
     have had ``direct'' access to the controlled substance, but 
     may have had only infrequent, random, or opportunistic 
     access. Such access would be sufficient to test the employee 
     if the employee could have caused, or could have aided or 
     abetted in causing, the loss of the specific property which 
     is the subject of the investigation. For example, a 
     maintenance worker in a drug warehouse, whose job duties 
     include the cleaning of areas where the controlled substances 
     which are the subject of the investigation were present, but 
     whose job duties do not include the handling of controlled 
     substances, would be deemed to have ``access'', but normally 
     not ``direct access'', to the controlled substances. On the 
     other hand, a drug warehouse truck loader, whose job duties 
     include the handling of outgoing shipment orders which 
     contain controlled substances, would have ``direct access'' 
     to such controlled substances. A pharmacy department in a 
     supermarket is another common situation which is useful in 
     illustrating the distinction between ``direct access'' and 
     ``access''. Store personnel receiving pharmaceutical orders, 
     i.e., the pharmacist, pharmacy intern, and other such 
     employees working in the pharmacy department, would 
     ordinarily have ``direct access'' to controlled substances. 
     Other store personnel whose job duties and responsibilities 
     do not include the handling of controlled substances but who 
     had occasion to enter the pharmacy department where the 
     controlled substances which are the subject of the 
     investigation were stored, such as maintenance personnel or 
     pharmacy cashiers, would have ``access''. Certain other store 
     personnel whose job duties do not permit or require entrance 
     into the pharmacy department for any reason, such as produce 
     or meat clerks, checkout cashiers, or baggers, would not 
     ordinarily have ``access''. However, any current employee, 
     regardless of described job duties, may be polygraphed if the 
     employing office's investigation of criminal or other 
     misconduct discloses that such employee in fact took action 
     to obtain ``access'' to the person or property that is the 
     subject of the investigation--e.g., by actually entering the 
     drug storage area in violation of company rules. In the case 
     of ``direct access'', the prospective employee's access to 
     controlled substances would be as a part of the 
     manufacturing, dispensing or distribution process, while a 
     current employee's ``access'' to the controlled substances 
     which are the subject of the investigation need only be 
     opportunistic.
       (d) The term prospective employee, for the purposes of this 
     section, includes a current employee who presently holds a 
     position which does not entail direct access to controlled 
     substances, and therefore is outside the scope of the 
     exemption's provisions for preemployment polygraph testing, 
     provided the employee has applied for and is being considered 
     for transfer or promotion to another position which entails 
     such direct access. For example, an office secretary may 
     apply for promotion to a position in the vault or cage areas 
     of a drug warehouse, where controlled substances are kept. In 
     such a situation, the current employee would be deemed a 
     ``prospective employee'' for the purposes of this exemption, 
     and thus could be subject to preemployment polygraph 
     screening, prior to such a change in position. However, any 
     adverse action which is based in part on a polygraph test 
     against a current employee who is considered a ``prospective 
     employee'' for purposes of this section may be taken only 
     with respect to the prospective position and may not affect 
     the employee's employment in the current position.
       (e) Section 7(f) of the EPPA, as applied by the CAA, makes 
     no specific reference to a requirement that employing offices 
     provide current employees with a written statement prior to 
     polygraph testing. Thus, employing offices to whom this 
     exemption is available are not required to furnish a written 
     statement such as that specified in section 7(d) of the EPPA 
     and section 1.12(a)(4) of this part.
       (f) For the section 7(f) exemption to apply, the polygraph 
     testing of current employees must be administered in 
     connection with an ongoing investigation of criminal or other 
     misconduct involving, or potentially involving, loss or 
     injury to the manufacture, distribution, or dispensing of any 
     such controlled substance by such employing office.
       (1) Current employees may only be administered polygraph 
     tests in connection with an ongoing investigation of criminal 
     or other misconduct, relating to a specific incident or 
     activity, or potential incident or activity. Thus, an 
     employing office is precluded from using the exemption in 
     connection with continuing investigations or on a random 
     basis to determine if thefts are occurring. However, unlike 
     the exemption in section 7(d) of the EPPA for employing 
     offices conducting ongoing investigations of economic loss or 
     injury, the section 7(f) exemption includes ongoing 
     investigations of misconduct involving potential drug losses. 
     Nor does the latter exemption include the requirement for 
     ``reasonable suspicion'' contained in the section 7(d) 
     exemption. Thus, a drug store operator is permitted to 
     polygraph all current employees who have access to a 
     controlled substance stolen from the inventory, or where 
     there is evidence that such a theft is planned. Polygraph 
     testing based on an inventory shortage of the drug during a 
     particular accounting period would not be permitted unless 
     there is extrinsic evidence of misconduct.
       (2) In addition, the test must be administered in 
     connection with loss or injury, or potential loss or injury, 
     to the manufacture, distribution, or dispensing of a 
     controlled substance.
       (i) Retail drugstores and wholesale drug warehouses 
     typically carry inventory of so-called health and beauty 
     aids, cosmetics, over-the-counter drugs, and a variety of 
     other similar products, in addition to their product lines of 
     controlled drugs. The noncontrolled products usually 
     constitute the majority of such firms' sales volumes. An 
     economic loss or injury related to such noncontrolled 
     substances would not constitute a basis of applicability of 
     the section 7(f) exemption. For example, an investigation 
     into the theft of a gross of cosmetic products could not be a 
     basis for polygraph testing under section 7(f), but the theft 
     of a container of valium could be.
       (ii) Polygraph testing, with respect to an ongoing 
     investigation concerning products other than controlled 
     substances might be initiated under section 7(d) of the EPPA 
     and section 1.12 of this part. However, the exemption in 
     section 7(f) of the EPPA and this section is limited solely 
     to losses or injury associated with controlled substances.
       (g) Polygraph tests administered pursuant to this exemption 
     are subject to the limitations set forth in sections 8 and 10 
     of the EPPA, as discussed in sections 1.21, 1.22, 1.23, 1.24, 
     1.25, 1.26, and 1.35 of this part. As provided in these 
     sections, the exemption will apply only if certain 
     requirements are met. Failure to satisfy any of the specified 
     requirements nullifies the statutory authority for polygraph 
     test administration and may subject the employing office to 
     the remedies authorized in section 204 of the CAA. The 
     administration of such tests is also subject to collective 
     bargaining agreements, which may either prohibit lie detector 
     tests, or

[[Page S3992]]

     contain more restrictive provisions with respect to polygraph 
     testing.

      Subpart C--Restrictions on Polygraph Usage Under Exemptions

     SEC. 1.20  ADVERSE EMPLOYMENT ACTION UNDER ONGOING 
                   INVESTIGATION EXEMPTION.

       (a) Section 8(a)(1) of the EPPA provides that the limited 
     exemption in section 7(d) of the EPPA and section 1.12 of 
     this part for ongoing investigations shall not apply if an 
     employing office discharges, disciplines, denies employment 
     or promotion or otherwise discriminates in any manner against 
     a current employee based upon the analysis of a polygraph 
     test chart or the refusal to take a polygraph test, without 
     additional supporting evidence.
       (b) ``Additional supporting evidence'', for purposes of 
     section 8(a) of the EPPA, includes, but is not limited to, 
     the following:
       (1)(i) Evidence indicating that the employee had access to 
     the missing or damaged property that is the subject of an 
     ongoing investigation; and
       (ii) Evidence leading to the employing office's reasonable 
     suspicion that the employee was involved in the incident or 
     activity under investigation; or
       (2) Admissions or statements made by an employee before, 
     during or following a polygraph examination.
       (c) Analysis of a polygraph test chart or refusal to take a 
     polygraph test may not serve as a basis for adverse 
     employment action, even with additional supporting evidence, 
     unless the employing office observes all the requirements 
     of sections 7(d) and 8(b) of the EPPA, as applied by the 
     CAA and described in sections 1.12, 1.22, 1.23, 1.24 and 
     1.25 of this part.

     SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED 
                   SUBSTANCE EXEMPTION.

       (a) Section 8(a)(2) of the EPPA provides that the 
     controlled substance exemption in section 7(f) of the EPPA 
     and section 1.13 of this part shall not apply if an employing 
     office discharges, disciplines, denies employment or 
     promotion, or otherwise discriminates in any manner against a 
     current employee or prospective employee based solely on the 
     analysis of a polygraph test chart or the refusal to take a 
     polygraph test.
       (b) Analysis of a polygraph test chart or refusal to take a 
     polygraph test may serve as one basis for adverse employment 
     actions of the type described in paragraph (a) of this 
     section: Provided, That the adverse action was also based on 
     another bona fide reason, with supporting evidence therefor. 
     For example, traditional factors such as prior employment 
     experience, education, job performance, etc. may be used as a 
     basis for employment decisions. Employment decisions based on 
     admissions or statements made by an employee or prospective 
     employee before, during or following a polygraph examination 
     may, likewise, serve as a basis for such decisions.
       (c) Analysis of a polygraph test chart or the refusal to 
     take a polygraph test may not serve as a basis for adverse 
     employment action, even with another legitimate basis for 
     such action, unless the employing office observes all the 
     requirements of section 7(f) of the EPPA, as appropriate, and 
     section 8(b) of the EPPA, as described in sections 1.13, 
     1.22, 1.23, 1.24 and 1.25 of this part.

     SEC. 1.22 RIGHTS OF EXAMINEE--GENERAL.

       (a) Pursuant to section 8(b) of the EPPA, the limited 
     exemption in section 7(d) of the EPPA for ongoing 
     investigations (described in sections 1.12 and 1.13 of this 
     part) shall not apply unless all of the requirements set 
     forth in this section and sections 1.23 through 1.25 of this 
     part are met.
       (b) During all phases of the polygraph testing the person 
     being examined has the following rights:
       (1) The examinee may terminate the test at any time.
       (2) The examinee may not be asked any questions in a 
     degrading or unnecessarily intrusive manner.
       (3) The examinee may not be asked any questions dealing 
     with:
       (i) Religious beliefs or affiliations;
       (ii) Beliefs or opinions regarding racial matters;
       (iii) Political beliefs or affiliations;
       (iv) Sexual preferences or behavior; or
       (v) Beliefs, affiliations, opinions, or lawful activities 
     concerning unions or labor organizations.
       (4) The examinee may not be subjected to a test when there 
     is sufficient written evidence by a physician that the 
     examinee is suffering from any medical or psychological 
     condition or undergoing any treatment that might cause 
     abnormal responses during the actual testing phase. 
     ``Sufficient written evidence'' shall constitute, at a 
     minimum, a statement by a physician specifically describing 
     the examinee's medical or psychological condition or 
     treatment and the basis for the physician's opinion that the 
     condition or treatment might result in such abnormal 
     responses.
       (5) An employee or prospective employee who exercises the 
     right to terminate the test, or who for medical reasons with 
     sufficient supporting evidence is not administered the test, 
     shall be subject to adverse employment action only on the 
     same basis as one who refuses to take a polygraph test, as 
     described in sections 1.20 and 1.21 of this part.
       (c) Any polygraph examination shall consist of one or more 
     pretest phases, actual testing phases, and post-test phases, 
     which must be conducted in accordance with the rights of 
     examinees described in sections 1.23 through 1.25 of this 
     part.

     SEC. 1.23 RIGHTS OF EXAMINEE--PRETEST PHASE.

       (a) The pretest phase consists of the questioning and other 
     preparation of the prospective examinee before the actual use 
     of the polygraph instrument. During the initial pretest 
     phase, the examinee must be:
       (1) Provided with written notice, in a language understood 
     by the examinee, as to when and where the examination will 
     take place and that the examinee has the right to consult 
     with counsel or an employee representative before each phase 
     of the test. Such notice shall be received by the examinee at 
     least forty-eight hours, excluding weekend days and holidays, 
     before the time of the examination, except that a prospective 
     employee may, at the employee's option, give written consent 
     to administration of a test anytime within 48 hours but no 
     earlier than 24 hours after receipt of the written notice. 
     The written notice or proof of service must set forth the 
     time and date of receipt by the employee or prospective 
     employee and be verified by his or her signature. The purpose 
     of this requirement is to provide a sufficient opportunity 
     prior to the examination for the examinee to consult with 
     counsel or an employee representative. Provision shall also 
     be made for a convenient place on the premises where the 
     examination will take place at which the examinee may consult 
     privately with an attorney or an employee representative 
     before each phase of the test. The attorney or representative 
     may be excluded from the room where the examination is 
     administered during the actual testing phase.
       (2) Informed orally and in writing of the nature and 
     characteristics of the polygraph instrument and examination, 
     including an explanation of the physical operation of the 
     polygraph instrument and the procedure used during the 
     examination.
       (3) Provided with a written notice prior to the testing 
     phase, in a language understood by the examinee, which shall 
     be read to and signed by the examinee. Use of Appendix A to 
     this part, if properly completed, will constitute compliance 
     with the contents of the notice requirement of this 
     paragraph. If a format other than in Appendix A is used, it 
     must contain at least the following information:
       (i) Whether or not the polygraph examination area contains 
     a two-way mirror, a camera, or other device through which the 
     examinee may be observed;
       (ii) Whether or not any other device, such as those used in 
     conversation or recording will be used during the 
     examination;
       (iii) That both the examinee and the employing office have 
     the right, with the other's knowledge, to make a recording of 
     the entire examination;
       (iv) That the examinee has the right to terminate the test 
     at any time;
       (v) That the examinee has the right, and will be given the 
     opportunity, to review all questions to be asked during the 
     test;
       (vi) That the examinee may not be asked questions in a 
     manner which degrades, or needlessly intrudes;
       (vii) That the examinee may not be asked any questions 
     concerning religious beliefs or opinions; beliefs regarding 
     racial matters; political beliefs or affiliations; matters 
     relating to sexual behavior; beliefs, affiliations, opinions, 
     or lawful activities regarding unions or labor organizations;
       (viii) That the test may not be conducted if there is 
     sufficient written evidence by a physician that the examinee 
     is suffering from a medical or psychological condition or 
     undergoing treatment that might cause abnormal responses 
     during the examination;
       (ix) That the test is not and cannot be required as a 
     condition of employment;
       (x) That the employing office may not discharge, dismiss, 
     discipline, deny employment or promotion, or otherwise 
     discriminate against the examinee based on the analysis of a 
     polygraph test, or based on the examinee's refusal to take 
     such a test, without additional evidence which would support 
     such action;
       (xi)(A) In connection with an ongoing investigation, that 
     the additional evidence required for the employing office to 
     take adverse action against the examinee, including 
     termination, may be evidence that the examinee had access to 
     the property that is the subject of the investigation, 
     together with evidence supporting the employing office's 
     reasonable suspicion that the examinee was involved in the 
     incident or activity under investigation;
       (B) That any statement made by the examinee before or 
     during the test may serve as additional supporting evidence 
     for an adverse employment action, as described in paragraph 
     (a)(3)(x) of this section, and that any admission of criminal 
     conduct by the examinee may be transmitted to an appropriate 
     Government law enforcement agency;
       (xii) That information acquired from a polygraph test may 
     be disclosed by the examiner or by the employing office only:
       (A) To the examinee or any other person specifically 
     designated in writing by the examinee to receive such 
     information;
       (B) To the employing office that requested the test;
       (C) To a court, governmental agency, arbitrator, or 
     mediator pursuant to a court order;
       (D) By the employing office, to an appropriate governmental 
     agency without a court

[[Page S3993]]

     order where, and only insofar as, the information disclosed 
     is an admission of criminal conduct;
       (xiii) That if any of the examinee's rights or protections 
     under the law are violated, the examinee has the right to 
     take action against the employing office under sections 401-
     404 of the CAA. Employing offices that violate this law are 
     liable to the affected examinee, who may recover such legal 
     or equitable relief as may be appropriate, including, but not 
     limited to, employment, reinstatement, and promotion, payment 
     of lost wages and benefits, and reasonable costs, including 
     attorney's fees;
       (xiv) That the examinee has the right to obtain and consult 
     with legal counsel or other representative before each phase 
     of the test, although the legal counsel or representative may 
     be excluded from the room where the test is administered 
     during the actual testing phase.
       (xv) That the employee's rights under the CAA may not be 
     waived, either voluntarily or involuntarily, by contract or 
     otherwise, except as part of a written settlement to a 
     pending action or complaint under the CAA, agreed to and 
     signed by the parties.
       (b) During the initial or any subsequent pretest phases, 
     the examinee must be given the opportunity, prior to the 
     actual testing phase, to review all questions in writing that 
     the examiner will ask during each testing phase. Such 
     questions may be presented at any point in time prior to the 
     testing phase.

     SEC. 1.24  RIGHTS OF EXAMINEE--ACTUAL TESTING PHASE.

       (a) The actual testing phase refers to that time during 
     which the examiner administers the examination by using a 
     polygraph instrument with respect to the examinee and then 
     analyzes the charts derived from the test. Throughout the 
     actual testing phase, the examiner shall not ask any question 
     that was not presented in writing for review prior to the 
     testing phase. An examiner may, however, recess the testing 
     phase and return to the pre-test phase to review additional 
     relevant questions with the examinee. In the case of an 
     ongoing investigation, the examiner shall ensure that all 
     relevant questions (as distinguished from technical baseline 
     questions) pertain to the investigation.
       (b) No testing period subject to the provisions of the Act 
     shall be less than ninety minutes in length. Such ``test 
     period'' begins at the time that the examiner begins 
     informing the examinee of the nature and characteristics of 
     the examination and the instruments involved, as prescribed 
     in section 8(b)(2)(B) of the EPPA and section 1.23(a)(2) of 
     this part, and ends when the examiner completes the review of 
     the test results with the examinee as provided in section 
     1.25 of this part. The ninety-minute minimum duration shall 
     not apply if the examinee voluntarily acts to terminate the 
     test before the completion thereof, in which event the 
     examiner may not render an opinion regarding the employee's 
     truthfulness.

     SEC. 1.25  RIGHTS OF EXAMINEE--POST-TEST PHASE.

       (a) The post-test phase refers to any questioning or other 
     communication with the examinee following the use of the 
     polygraph instrument, including review of the results of the 
     test with the examinee. Before any adverse employment action, 
     the employing office must:
       (1) Further interview the examinee on the basis of the test 
     results; and
       (2) Give to the examinee a written copy of any opinions or 
     conclusions rendered in response to the test, as well as the 
     questions asked during the test, with the corresponding 
     charted responses. The term ``corresponding charted 
     responses'' refers to copies of the entire examination charts 
     recording the employee's physiological responses, and not 
     just the examiner's written report which describes the 
     examinee's responses to the questions as ``charted'' by the 
     instrument.

     SEC. 1.26  QUALIFICATIONS OF AND REQUIREMENTS FOR EXAMINERS.

       (a) Section 8 (b) and (c) of the EPPA provides that the 
     limited exemption in section 7(d) of the EPPA for ongoing 
     investigations shall not apply unless the person conducting 
     the polygraph examination meets specified qualifications and 
     requirements.
       (b) An examiner must meet the following qualifications:
       (1) Have a valid current license, if required by the State 
     in which the test is to be conducted; and
       (2) Carry a minimum bond of $50,000 provided by a surety 
     incorporated under the laws of the United States or of any 
     State, which may under those laws guarantee the fidelity of 
     persons holding positions of trust, or carry an equivalent 
     amount of professional liability coverage.
       (c) An examiner must also, with respect to examinees 
     identified by the employing office pursuant to section 
     1.30(c) of this part:
       (1) Observe all rights of examinees, as set out in sections 
     1.22, 1.23, 1.24, and 1.25 of this part;
       (2) Administer no more than five polygraph examinations in 
     any one calendar day on which a test or tests subject to the 
     provisions of EPPA are administered, not counting those 
     instances where an examinee voluntarily terminates an 
     examination prior to the actual testing phase;
       (3) Administer no polygraph examination subject to the 
     provisions of the EPPA which is less than ninety minutes in 
     duration, as described in section 1.24(b) of this part; and
       (4) Render any opinion or conclusion regarding truthfulness 
     or deception in writing. Such opinion or conclusion must be 
     based solely on the polygraph test results. The written 
     report shall not contain any information other than 
     admissions, information, case facts, and interpretation of 
     the charts relevant to the stated purpose of the polygraph 
     test and shall not include any recommendation concerning the 
     employment of the examinee.
       (5) Maintain all opinions, reports, charts, written 
     questions, lists, and other records relating to the test, 
     including, statements signed by examinees advising them of 
     rights under the CAA (as described in section 1.23(a)(3) of 
     this part) and any electronic recordings of examinations, for 
     at least three years from the date of the administration of 
     the test. (See section 1.30 of this part for recordkeeping 
     requirements.)

          Subpart D--Recordkeeping and Disclosure Requirements

     SEC. 1.30  RECORDS TO BE PRESERVED FOR 3 YEARS.

       (a) The following records shall be kept for a minimum 
     period of three years from the date the polygraph examination 
     is conducted (or from the date the examination is requested 
     if no examination is conducted):
       (1) Each employing office that requests an employee to 
     submit to a polygraph examination in connection with an 
     ongoing investigation involving economic loss or injury shall 
     retain a copy of the statement that sets forth the specific 
     incident or activity under investigation and the basis for 
     testing that particular covered employee, as required by 
     section 7(d)(4) of the EPPA and described in 1.12(a)(4) of 
     this part.
       (2) Each examiner retained to administer examinations 
     pursuant to any of the exemptions under section 7 (d), (e) or 
     (f) of the EPPA (described in sections 1.12 and 1.13 of this 
     part) shall maintain all opinions, reports, charts, written 
     questions, lists, and other records relating to polygraph 
     tests of such persons.

     SEC. 1.35  DISCLOSURE OF TEST INFORMATION.

       This section prohibits the unauthorized disclosure of any 
     information obtained during a polygraph test by any person, 
     other than the examinee, directly or indirectly, except as 
     follows:
       (a) A polygraph examiner or an employing office (other than 
     an employing office exempt under section 7 (a) or (b) of the 
     EPPA (described in sections 1.10 and 1.11 of this part)) may 
     disclose information acquired from a polygraph test only to:
       (1) The examinee or an individual specifically designated 
     in writing by the examinee to receive such information;
       (2) The employing office that requested the polygraph test 
     pursuant to the provisions of the EPPA (including management 
     personnel of the employing office where the disclosure is 
     relevant to the carrying out of their job responsibilities);
       (3) Any court, governmental agency, arbitrator, or mediator 
     pursuant to an order from a court of competent jurisdiction 
     requiring the production of such information;
       (b) An employing office may disclose information from the 
     polygraph test at any time to an appropriate governmental 
     agency without the need of a court order where, and only 
     insofar as, the information disclosed is an admission of 
     criminal conduct.
       (c) A polygraph examiner may disclose test charts, without 
     identifying information (but not other examination materials 
     and records), to another examiner(s) for examination and 
     analysis, provided that such disclosure is for the sole 
     purpose of consultation and review of the initial examiner's 
     opinion concerning the indications of truthfulness or 
     deception. Such action would not constitute disclosure under 
     this part provided that the other examiner has no direct or 
     indirect interest in the matter.

                         Subpart E--[Reserved]

     SEC. 1.40  [RESERVED].

               Appendix A to Part 801--Notice to Examinee

       Section 204 of the Congressional Accountability Act, which 
     applies the rights and protections of section 8(b) of the 
     Employee Polygraph Protection Act to covered employees and 
     employing offices, and the regulations of the Board of 
     Directors of the Office of Compliance (sections 1.22, 1.23, 
     1.24, and 1.25), require that you be given the following 
     information before taking a polygraph examination:

     1. (a) The polygraph examination area  [does]  [does not]  
     contain a two-way mirror, a camera, or other device through 
     which you may be observed.

     (b) Another device, such as those used in conversation or 
     recording  [will]  [will not]  be used during the 
     examination.

     (c) Both you and the employing office have the right, with 
     the other's knowledge, to record electronically the entire 
     examination.

     2. (a) You have the right to terminate the test at any time.

     (b) You have the right, and will be given the opportunity, to 
     review all questions to be asked during the test.

     (c) You may not be asked questions in a manner which 
     degrades, or needlessly intrudes.

     (d) You may not be asked any questions concerning: Religious 
     beliefs or opinions; beliefs regarding racial matters; 
     political beliefs or affiliations; matters relating to sexual 
     preference or behavior; beliefs, affiliations, opinions, or 
     lawful activities regarding unions or labor organizations.


[[Page S3994]]


     (e) The test may not be conducted if there is sufficient 
     written evidence by a physician that you are suffering from a 
     medical or psychological condition or undergoing treatment 
     that might cause abnormal responses during the examination.

     (f) You have the right to consult with legal counsel or other 
     representative before each phase of the test, although the 
     legal counsel or other representative may be excluded from 
     the room where the test is administered during the actual 
     testing phase.

     3. (a) The test is not and cannot be required as a condition 
     of employment.

     (b) The employing office may not discharge, dismiss, 
     discipline, deny employment or promotion, or otherwise 
     discriminate against you based on the analysis of a polygraph 
     test, or based on your refusal to take such a test without 
     additional evidence which would support such action.

     (c)(1) In connection with an ongoing investigation, the 
     additional evidence required for an employing office to take 
     adverse action against you, including termination, may be (A) 
     evidence that you had access to the property that is the 
     subject of the investigation, together with (B) the evidence 
     supporting the employing office's reasonable suspicion that 
     you were involved in the incident or activity under 
     investigation.

     (2) Any statement made by you before or during the test may 
     serve as additional supporting evidence for an adverse 
     employment action, as described in 3(b) above, and any 
     admission of criminal conduct by you may be transmitted to an 
     appropriate Government law enforcement agency.

     4. (a) Information acquired from a polygraph test may be 
     disclosed by the examiner or by the employing office only:

     (1) To you or any other person specifically designated in 
     writing by you to receive such information;

     (2) To the employing office that requested the test;

     (3) To a court, governmental agency, arbitrator, or mediator 
     that obtains a court order.

     (b) Information acquired from a polygraph test may be 
     disclosed by the employing office to an appropriate 
     governmental agency without a court order where, and only 
     insofar as, the information disclosed is an admission of 
     criminal conduct.

     5. If any of your rights or protections under the law are 
     violated, you have the right to take action against the 
     employing office by filing a request for counseling with the 
     Office of Compliance under section 402 of the Congressional 
     Accountability Act. Employing offices that violate this law 
     are liable to the affected examinee, who may recover such 
     legal or equitable relief as may be appropriate, including, 
     but not limited to, employment, reinstatement, and promotion, 
     payment of lost wages and benefits, and reasonable costs, 
     including attorney's fees.

     6. Your rights under the CAA may not be waived, either 
     voluntarily or involuntarily, by contract or otherwise, 
     except as part of a written settlement to a pending action or 
     complaint under the CAA, and agreed to and signed by the 
     parties.

     I acknowledge that I have received a copy of the above 
     notice, and that it has been read to me.

     ________________________________________
     (Date)
     ________________________________________
     (Signature)

    APPLICATION OF RIGHTS AND PROTECTIONS OF THE WORKER ADJUSTMENT 
 RETRAINING AND NOTIFICATION ACT OF 1988 (IMPLEMENTING SECTION 204 OF 
                                THE CAA)

Sec.
639.1  Purpose and scope.
639.2  What does WARN require?
639.3  Definitions.
639.4  Who must give notice?
639.5  When must notice be given?
639.6  Who must receive notice?
639.7  What must the notice contain?
639.8  How is the notice served?
639.9  When may notice be given less than 60 days in advance?
639.10  When may notice be extended?
639.11  [Reserved].

     Sec. 639.1  Purpose and scope

       (a) Purpose of WARN as Applied by the CAA.--Section 205 of 
     the Congressional Accountability Act, Public Law 104-1 
     (``CAA''), provides protection to covered employees and their 
     families by requiring employing offices to provide 
     notification 60 calendar days in advance of office closings 
     and mass layoffs within the meaning of section 3 of the 
     Worker Adjustment and Retraining Notification Act of 1988, 29 
     U.S.C. Sec. 2102. Advance notice provides workers and their 
     families some transition time to adjust to the prospective 
     loss of employment, to seek and obtain alternative jobs and, 
     if necessary, to enter skill training or retraining that will 
     allow these workers to successfully compete in the job 
     market. As used in these regulations, WARN shall refer to the 
     provisions of WARN applied to covered employing offices by 
     section 205 of the CAA.
       (b) Scope of These Regulations.--These regulations are 
     issued by the Board of Directors, Office of Compliance, 
     pursuant to sections 205(c) and 304 of the CAA, which directs 
     the Board to promulgate regulations implementing section 205 
     that are ``the same as substantive regulations promulgated by 
     the Secretary of Labor to implement the statutory provisions 
     referred to in subsection (a) [of section 205 of the CAA] 
     except insofar as the Board may determine, for good cause 
     shown . . . that a modification of such regulations would be 
     more effective for the implementation of the rights and 
     protections under this section''. The regulations issued by 
     the Board herein are on all matters for which section 205 of 
     the CAA requires a regulation to be issued. Specifically, it 
     is the Board's considered judgment, based on the information 
     available to it at the time of promulgation of these 
     regulations, that, with the exception of regulations adopted 
     and set forth herein, there are no other ``substantive 
     regulations promulgated by the Secretary of Labor to 
     implement the statutory provisions referred to in subsection 
     (a) [of section 205 of the CAA]''.
       In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Secretary. Such changes are intended to 
     make the provisions adopted accord more naturally to 
     situations in the legislative branch. However, by making 
     these changes, the Board does not intend a substantive 
     difference between these sections and those of the Secretary 
     from which they are derived. Moreover, such changes, in and 
     of themselves, are not intended to constitute an 
     interpretation of the regulation or of the statutory 
     provisions of the CAA upon which they are based.
       These regulations establish basic definitions and rules for 
     giving notice, implementing the provisions of WARN. The 
     objective of these regulations is to establish clear 
     principles and broad guidelines which can be applied in 
     specific circumstances. However, it is recognized that 
     rulemaking cannot address the multitude of employing office-
     specific situations in which advance notice will be given.
       (c) Notice in Ambiguous Situations.--It is civically 
     desirable and it would appear to be good business practice 
     for an employing office to provide advance notice, where 
     reasonably possible, to its workers or unions when 
     terminating a significant number of employees. The Office 
     encourages employing offices to give notice in such 
     circumstances.
       (d) WARN not to Supersede Other Laws and Contracts.--The 
     provisions of WARN do not supersede any otherwise applicable 
     laws or collective bargaining agreements that provide for 
     additional notice or additional rights and remedies. If such 
     law or agreement provides for a longer notice period, WARN 
     notice shall run concurrently with that additional notice 
     period. Collective bargaining agreements may be used to 
     clarify or amplify the terms and conditions of WARN, but may 
     not reduce WARN rights.

     Sec. 639.2 What does WARN require?

       WARN requires employing offices that are planning an office 
     closing or a mass layoff to give affected employees at least 
     60 days' notice of such an employment action. While the 60-
     day period is the minimum for advance notice, this provision 
     is not intended to discourage employing offices from 
     voluntarily providing longer periods of advance notice. Not 
     all office closings and layoffs are subject to WARN, and 
     certain employment thresholds must be reached before WARN 
     applies. WARN sets out specific exemptions, and provides for 
     a reduction in the notification period in particular 
     circumstances. Remedies authorized under section 205 of the 
     CAA may be assessed against employing offices that violate 
     WARN requirements.

     Sec. 639.3 Definitions

       (a) Employing Office.--(1) The term ``employing office'' 
     means any of the entities listed in section 101(9) of the 
     CAA, 2 U.S.C. Sec. 1301(9) that employs--
       (i) 100 or more employees, excluding part-time employees; 
     or
       (ii) employs 100 or more employees, including part-time 
     employees, who in the aggregate work at least 4,000 hours per 
     week, exclusive of overtime.

     Workers on temporary layoff or on leave who have a reasonable 
     expectation of recall are counted as employees. An employee 
     has a ``reasonable expectation of recall'' when he/she 
     understands, through notification or through common practice, 
     that his/her employment with the employing office has been 
     temporarily interrupted and that he/she will be recalled to 
     the same or to a similar job.
       (2) Workers, other than part-time workers, who are exempt 
     from notice under section 4 of WARN, are nonetheless counted 
     as employees for purposes of determining coverage as an 
     employing office.
       (3) An employing office may have one or more sites of 
     employment under common control.
       (b) Office Closing.--The term ``office closing'' means the 
     permanent or temporary shutdown of a ``single site of 
     employment'', or one or more ``facilities or operating 
     units'' within a single site of employment, if the shutdown 
     results in an ``employment loss'' during any 30-day period at 
     the single site of employment for 50 or more employees, 
     excluding any part-time employees. An employment action that 
     results in the effective cessation of the work performed by a 
     unit, even if a few employees remain, is a shutdown. A 
     ``temporary shutdown'' triggers the notice requirement only 
     if there are a sufficient number of terminations, layoffs 
     exceeding 6 months, or reductions in hours of work as 
     specified under the definition of ``employment loss''.
       (c) Mass Layoff.--(1) The term ``mass layoff'' means a 
     reduction in force which first, is not the result of an 
     office closing, and second, results in an employment loss at 
     the

[[Page S3995]]

     single site of employment during any 30-day period for:
       (i) At least 33 percent of the active employees, excluding 
     part-time employees, and
       (ii) At least 50 employees, excluding part-time employees.

     Where 500 or more employees (excluding part-time employees) 
     are affected, the 33 percent requirement does not apply, and 
     notice is required if the other criteria are met. Office 
     closings involve employment loss which results from the 
     shutdown of one or more distinct units within a single site 
     or the entire site. A mass layoff involves employment loss, 
     regardless of whether one or more units are shut down at the 
     site.
       (2) Workers, other than part-time workers, who are exempt 
     from notice under section 4 of WARN are nonetheless counted 
     as employees for purposes of determining coverage as an 
     office closing or mass layoff. For example, if an employing 
     office closes a temporary project on which 10 permanent and 
     40 temporary workers are employed, a covered office closing 
     has occurred although only 10 workers are entitled to notice.
       (d) Representative.--The term ``representative'' means an 
     exclusive representative of employees within the meaning of 5 
     U.S.C. Sec. Sec. 7101 et seq., as applied to covered 
     employees and employing offices by section 220 of the CAA, 2 
     U.S.C. Sec. 1351.
       (e) Affected Employees.--The term ``affected employees'' 
     means employees who may reasonably be expected to experience 
     an employment loss as a consequence of a proposed office 
     closing or mass layoff by their employing office. This 
     includes individually identifiable employees who will likely 
     lose their jobs because of bumping rights or other factors, 
     to the extent that such individual workers reasonably can be 
     identified at the time notice is required to be given. The 
     term affected employees includes managerial and supervisory 
     employees. Consultant or contract employees who have a 
     separate employment relationship with another employing 
     office or employer and are paid by that other employing 
     office or employer, or who are self-employed, are not 
     ``affected employees'' of the operations to which they are 
     assigned. In addition, for purposes of determining whether 
     coverage thresholds are met, either incumbent workers in jobs 
     being eliminated or, if known 60 days in advance, the actual 
     employees who suffer an employment loss may be counted.
       (f) Employment Loss.--(1) The term employment loss means 
     (i) an employment termination, other than a discharge for 
     cause, voluntary departure, or retirement, (ii) a layoff 
     exceeding 6 months, or (iii) a reduction in hours of work of 
     individual employees of more than 50 percent during each 
     month of any 6-month period.
       (2) Where a termination or a layoff (see paragraphs (f)(1) 
     (i) and (ii) of this section) is involved, an employment loss 
     does not occur when an employee is reassigned or transferred 
     to employing office-sponsored programs, such as retraining or 
     job search activities, as long as the reassignment does not 
     constitute a constructive discharge or other involuntary 
     termination.
       (3) An employee is not considered to have experienced an 
     employment loss if the closing or layoff is the result of the 
     relocation or consolidation of part or all of the employing 
     office's operations and, prior to the closing or layoff--
       (i) The employing office offers to transfer the employee to 
     a different site of employment within a reasonable commuting 
     distance with no more than a 6-month break in employment, or
       (ii) The employing office offers to transfer the employee 
     to any other site of employment regardless of distance with 
     no more than a 6-month break in employment, and the employee 
     accepts within 30 days of the offer or of the closing or 
     layoff, whichever is later.
       (4) A ``relocation or consolidation'' of part or all of an 
     employing office's operations, for purposes of paragraph 
     Sec. 639.3(f)(3), means that some definable operations are 
     transferred to a different site of employment and that 
     transfer results in an office closing or mass layoff.
       (g) Part-time Employee.--The term ``part-time'' employee 
     means an employee who is employed for an average of fewer 
     than 20 hours per week or who has been employed for fewer 
     than 6 of the 12 months preceding the date on which notice is 
     required, including workers who work full-time. This term may 
     include workers who would traditionally be understood as 
     ``seasonal'' employees. The period to be used for calculating 
     whether a worker has worked ``an average of fewer than 20 
     hours per week'' is the shorter of the actual time the worker 
     has been employed or the most recent 90 days.
       (h) Single Site of Employment.--(1) A single site of 
     employment can refer to either a single location or a group 
     of contiguous locations. Separate facilities across the 
     street from one another may be considered a single site of 
     employment.
       (2) There may be several single sites of employment within 
     a single building, such as an office building, if separate 
     employing offices conduct activities within such a building. 
     For example, an office building housing 50 different 
     employing offices will contain 50 single sites of employment. 
     The offices of each employing office will be its single site 
     of employment.
       (3) Separate buildings or areas which are not directly 
     connected or in immediate proximity may be considered a 
     single site of employment if they are in reasonable 
     geographic proximity, used for the same purpose, and share 
     the same staff and equipment.
       (4) Non-contiguous sites in the same geographic area which 
     do not share the same staff or operational purpose should not 
     be considered a single site.
       (5) Contiguous buildings operated by the same employing 
     office which have separate management and have separate 
     workforces are considered separate single sites of 
     employment.
       (6) For workers whose primary duties require travel from 
     point to point, who are outstationed, or whose primary duties 
     involve work outside any of the employing office's regular 
     employment sites (e.g., railroad workers, bus drivers, 
     salespersons), the single site of employment to which they 
     are assigned as their home base, from which their work is 
     assigned, or to which they report will be the single site in 
     which they are covered for WARN purposes.
       (7) Foreign sites of employment are not covered under WARN. 
     United States workers at such sites are counted to determine 
     whether an employing office is covered as an employing office 
     under Sec. 639.3(a).
       (8) The term ``single site of employment'' may also apply 
     to truly unusual organizational situations where the above 
     criteria do not reasonably apply. The application of this 
     definition with the intent to evade the purpose of WARN to 
     provide notice is not acceptable.
       (i) Facility or Operating Unit.--The term ``facility'' 
     refers to a building or buildings. The term ``operating 
     unit'' refers to an organizationally or operationally 
     distinct product, operation, or specific work function within 
     or across facilities at the single site.

     Sec. 639.4 Who must give notice?

       Section 205(a)(1) of the CAA states that ``[n]o employing 
     office shall be closed or a mass layoff ordered within the 
     meaning of section 3 of [WARN] until the end of a 60-day 
     period after the employing office serves written notice of 
     such prospective closing or layoff . . . ''. Therefore, an 
     employing office that is anticipating carrying out an office 
     closing or mass layoff is required to give notice to affected 
     employees or their representative(s). (See definitions in 
     Sec. 639.3 of this part.)
       (a) It is the responsibility of the employing office to 
     decide the most appropriate person within the employing 
     office's organization to prepare and deliver the notice to 
     affected employees or their representative(s). In most 
     instances, this may be the local site office manager, the 
     local personnel director or a labor relations officer.
       (b) An employing office that has previously announced and 
     carried out a short-term layoff (6 months or less) which is 
     being extended beyond 6 months due to circumstances not 
     reasonably foreseeable at the time of the initial layoff is 
     required to give notice when it becomes reasonably 
     foreseeable that the extension is required. A layoff 
     extending beyond 6 months from the date the layoff commenced 
     for any other reason shall be treated as an employment loss 
     from the date of its commencement.
       (c) In the case of the privatization or sale of part or all 
     of an employing office's operations, the employing office is 
     responsible for providing notice of any office closing or 
     mass layoff which takes place up to and including the 
     effective date (time) of the privatization or sale, and the 
     contractor or buyer is responsible for providing any required 
     notice of any office closing or mass layoff that takes place 
     thereafter.
       (1) If the employing office is made aware of any definite 
     plans on the part of the buyer or contractor to carry out an 
     office closing or mass layoff within 60 days of purchase, the 
     employing office may give notice to affected employees as an 
     agent of the buyer or contractor, if so empowered. If the 
     employing office does not give notice, the buyer or 
     contractor is, nevertheless, responsible to give notice. If 
     the employing office gives notice as the agent of the buyer 
     or contractor, the responsibility for notice still remains 
     with the buyer or contractor.
       (2) It may be prudent for the buyer or contractor and 
     employing office to determine the impacts of the 
     privatization or sale on workers, and to arrange between them 
     for advance notice to be given to affected employees or their 
     representative(s), if a mass layoff or office closing is 
     planned.

     Sec. 639.5 When must notice be given?

       (a) General Rule.--(1) With certain exceptions discussed in 
     paragraphs (b) and (c) of this section and in Sec. 639.9 of 
     this part, notice must be given at least 60 calendar days 
     prior to any planned office closing or mass layoff, as 
     defined in these regulations. When all employees are not 
     terminated on the same date, the date of the first individual 
     termination within the statutory 30-day or 90-day period 
     triggers the 60-day notice requirement. A worker's last day 
     of employment is considered the date of that worker's layoff. 
     The first and each subsequent group of terminees are entitled 
     to a full 60 days' notice. In order for an employing office 
     to decide whether issuing notice is required, the employing 
     office should--
       (i) look ahead 30 days and behind 30 days to determine 
     whether employment actions both taken and planned will, in 
     the aggregate for any 30-day period, reach the minimum 
     numbers for an office closing or a mass layoff and thus 
     trigger the notice requirement; and
       (ii) look ahead 90 days and behind 90 days to determine 
     whether employment actions both taken and planned each of 
     which separately is not of sufficient size to trigger

[[Page S3996]]

     WARN coverage will, in the aggregate for any 90-day period, 
     reach the minimum numbers for an office closing or a mass 
     layoff and thus trigger the notice requirement. An employing 
     office is not, however, required under section 3(d) to give 
     notice if the employing office demonstrates that the separate 
     employment losses are the result of separate and distinct 
     actions and causes, and are not an attempt to evade the 
     requirements of WARN.
       (2) The point in time at which the number of employees is 
     to be measured for the purpose of determining coverage is the 
     date the first notice is required to be given. If this 
     ``snapshot'' of the number of employees employed on that date 
     is clearly unrepresentative of the ordinary or average 
     employment level, then a more representative number can be 
     used to determine coverage. Examples of unrepresentative 
     employment levels include cases when the level is near the 
     peak or trough of an employment cycle or when large upward or 
     downward shifts in the number of employees occur around the 
     time notice is to be given. A more representative number may 
     be an average number of employees over a recent period of 
     time or the number of employees on an alternative date which 
     is more representative of normal employment levels. 
     Alternative methods cannot be used to evade the purpose of 
     WARN, and should only be used in unusual circumstances.
       (b) Transfers.--(1) Notice is not required in certain cases 
     involving transfers, as described under the definition of 
     ``employment loss'' at Sec. 639.3(f) of this part.
       (2) An offer of reassignment to a different site of 
     employment should not be deemed to be a ``transfer'' if the 
     new job constitutes a constructive discharge.
       (3) The meaning of the term ``reasonable commuting 
     distance'' will vary with local conditions. In determining 
     what is a ``reasonable commuting distance'', consideration 
     should be given to the following factors: geographic 
     accessibility of the place of work, the quality of the roads, 
     customarily available transportation, and the usual travel 
     time.
       (4) In cases where the transfer is beyond reasonable 
     commuting distance, the employing office may become liable 
     for failure to give notice if an offer to transfer is not 
     accepted within 30 days of the offer or of the closing or 
     layoff (whichever is later). Depending upon when the offer of 
     transfer was made by the employing office, the normal 60-day 
     notice period may have expired and the office closing or mass 
     layoff may have occurred. An employing office is, therefore, 
     well advised to provide 60-day advance notice as part of the 
     transfer offer.
       (c) Temporary Employment.--(1) No notice is required if the 
     closing is of a temporary facility, or if the closing or 
     layoff is the result of the completion of a particular 
     project or undertaking, and the affected employees were hired 
     with the understanding that their employment was limited to 
     the duration of the facility or the project or undertaking.
       (2) Employees must clearly understand at the time of hire 
     that their employment is temporary. When such understandings 
     exist will be determined by reference to employment 
     contracts, collective bargaining agreements, or employment 
     practices of other employing offices or a locality, but the 
     burden of proof will lie with the employing office to show 
     that the temporary nature of the project or facility was 
     clearly communicated should questions arise regarding the 
     temporary employment understandings.

     Sec. 639.6  Who must receive notice?

       Section 3(a) of WARN provides for notice to each 
     representative of the affected employees as of the time 
     notice is required to be given or, if there is no such 
     representative at that time, to each affected employee.
       (a) Representative(s) of Affected Employees.--Written 
     notice is to be served upon the chief elected officer of the 
     exclusive representative(s) or bargaining agent(s) of 
     affected employees at the time of the notice. If this person 
     is not the same as the officer of the local union(s) 
     representing affected employees, it is recommended that a 
     copy also be given to the local union official(s).
       (b) Affected Employees.--Notice is required to be given to 
     employees who may reasonably be expected to experience an 
     employment loss. This includes employees who will likely lose 
     their jobs because of bumping rights or other factors, to the 
     extent that such workers can be identified at the time notice 
     is required to be given. If, at the time notice is required 
     to be given, the employing office cannot identify the 
     employee who may reasonably be expected to experience an 
     employment loss due to the elimination of a particular 
     position, the employing office must provide notice to the 
     incumbent in that position. While part-time employees are not 
     counted in determining whether office closing or mass layoff 
     thresholds are reached, such workers are due notice.

     Sec. 639.7  What must the notice contain?

       (a) Notice Must be Specific.--(1) All notice must be 
     specific.
       (2) Where voluntary notice has been given more than 60 days 
     in advance, but does not contain all of the required elements 
     set out in this section, the employing office must ensure 
     that all of the information required by this section is 
     provided in writing to the parties listed in Sec. 639.6 at 
     least 60 days in advance of a covered employment action.
       (3) Notice may be given conditional upon the occurrence or 
     nonoccurrence of an event only when the event is definite and 
     the consequences of its occurrence or nonoccurrence will 
     necessarily, in the normal course of operations, lead to a 
     covered office closing or mass layoff less than 60 days after 
     the event. The notice must contain each of the elements set 
     out in this section.
       (4) The information provided in the notice shall be based 
     on the best information available to the employing office at 
     the time the notice is served. It is not the intent of the 
     regulations that errors in the information provided in a 
     notice that occur because events subsequently change or that 
     are minor, inadvertent errors are to be the basis for finding 
     a violation of WARN.
       (b) Definition.--As used in this section, the term ``date'' 
     refers to a specific date or to a 14-day period during which 
     a separation or separations are expected to occur. If 
     separations are planned according to a schedule, the schedule 
     should indicate the specific dates on which or the beginning 
     date of each 14-day period during which any separations are 
     expected to occur. Where a 14-day period is used, notice must 
     be given at least 60 days in advance of the first day of the 
     period.
       (c) Notice.--Notice to each representative of affected 
     employees is to contain:
       (1) The name and address of the employment site where the 
     office closing or mass layoff will occur, and the name and 
     telephone number of an employing office official to contact 
     for further information;
       (2) A statement as to whether the planned action is 
     expected to be permanent or temporary and, if the entire 
     office is to be closed, a statement to that effect;
       (3) The expected date of the first separation and the 
     anticipated schedule for making separations;
       (4) The job titles of positions to be affected and the 
     names of the workers currently holding affected jobs.

     The notice may include additional information useful to the 
     employees such as information on available dislocated worker 
     assistance, and, if the planned action is expected to be 
     temporary, the estimated duration, if known.
       (d) Employees not Represented.--Notice to each affected 
     employee who does not have a representative is to be written 
     in language understandable to the employees and is to 
     contain:
       (1) A statement as to whether the planned action is 
     expected to be permanent or temporary and, if the entire 
     office is to be closed, a statement to that effect;
       (2) The expected date when the office closing or mass 
     layoff will commence and the expected date when the 
     individual employee will be separated;
       (3) An indication whether or not bumping rights exist;
       (4) The name and telephone number of an employing office 
     official to contact for further information.

     The notice may include additional information useful to the 
     employees such as information on available dislocated worker 
     assistance, and, if the planned action is expected to be 
     temporary, the estimated duration, if known.

     Sec. 639.8  How is the notice served?

       Any reasonable method of delivery to the parties listed 
     under Sec. 639.6 of this part which is designed to ensure 
     receipt of notice of at least 60 days before separation is 
     acceptable (e.g., first class mail, personal delivery with 
     optional signed receipt). In the case of notification 
     directly to affected employees, insertion of notice into pay 
     envelopes is another viable option. A ticketed notice, i.e., 
     preprinted notice regularly included in each employee's pay 
     check or pay envelope, does not meet the requirements of 
     WARN.

     Sec. 639.9  When may notice be given less than 60 days in 
       advance?

       Section 3(b) of WARN, as applied by section 205 of the CAA, 
     sets forth two conditions under which the notification period 
     may be reduced to less than 60 days. The employing office 
     bears the burden of proof that conditions for the exceptions 
     have been met. If one of the exceptions is applicable, the 
     employing office must give as much notice as is practicable 
     to the union and non-represented employees and this may, in 
     some circumstances, be notice after the fact. The employing 
     office must, at the time notice actually is given, provide a 
     brief statement of the reason for reducing the notice period, 
     in addition to the other elements set out in Sec. 639.7.
       (a) The ``unforeseeable business circumstances'' exception 
     under section 3(b)(2)(A) of WARN, as applied under the CAA, 
     applies to office closings and mass layoffs caused by 
     circumstances that were not reasonably foreseeable at the 
     time that 60-day notice would have been required.
       (1) An important indicator of a circumstance that is not 
     reasonably foreseeable is that the circumstance is caused by 
     some sudden, dramatic, and unexpected action or condition 
     outside the employing office's control.
       (2) The test for determining when circumstances are not 
     reasonably foreseeable focuses on an employing office's 
     business judgment. The employing office must exercise such 
     reasonable business judgment as would a similarly situated 
     employing office in predicting the demands of its operations. 
     The employing office is not required, however, to accurately 
     predict general economic conditions that also may affect its 
     operations.
       (b) The ``natural disaster'' exception in section 
     3(b)(2)(B) of WARN applies to office

[[Page S3997]]

     closings and mass layoffs due to any form of a natural 
     disaster.
       (1) Floods, earthquakes, droughts, storms, tidal waves or 
     tsunamis and similar effects of nature are natural disasters 
     under this provision.
       (2) To qualify for this exception, an employing office must 
     be able to demonstrate that its office closing or mass layoff 
     is a direct result of a natural disaster.
       (3) While a disaster may preclude full or any advance 
     notice, such notice as is practicable, containing as much of 
     the information required in Sec. 639.7 as is available in the 
     circumstances of the disaster still must be given, whether in 
     advance or after the fact of an employment loss caused by a 
     natural disaster.
       (4) Where an office closing or mass layoff occurs as an 
     indirect result of a natural disaster, the exception does not 
     apply but the ``unforeseeable business circumstance'' 
     exception described in paragraph (a) of this section may be 
     applicable.

     Sec. 639.10 When may notice be extended?

       Additional notice is required when the date or schedule of 
     dates of a planned office closing or mass layoff is extended 
     beyond the date or the ending date of any 14-day period 
     announced in the original notice as follows:
       (a) If the postponement is for less than 60 days, the 
     additional notice should be given as soon as possible to the 
     parties identified in Sec. 639.6 and should include reference 
     to the earlier notice, the date (or 14-day period) to which 
     the planned action is postponed, and the reasons for the 
     postponement. The notice should be given in a manner which 
     will provide the information to all affected employees.
       (b) If the postponement is for 60 days or more, the 
     additional notice should be treated as new notice subject to 
     the provisions of Sec. Sec. 639.5, 639.6 and 639.7 of this 
     part. Rolling notice, in the sense of routine periodic 
     notice, given whether or not an office closing or mass layoff 
     is impending, and with the intent to evade the purpose of the 
     Act rather than give specific notice as required by WARN, is 
     not acceptable.

     Sec. 639.11 [Reserved]

                          ____________________