[Congressional Record Volume 162, Number 100 (Wednesday, June 22, 2016)]
[House]
[Pages H4128-H4168]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     NOTICE OF PROPOSED RULEMAKING

                                                    U.S. Congress,


                                         Office of Compliance,

                                    Washington, DC, June 22, 2016.
     Hon. Paul D. Ryan,
     Speaker of the House of Representatives, Washington, DC.
       Dear Mr. Speaker: Section 304(b)(3) of the Congressional 
     Accountability Act (``CAA''), 2 U.S.C. Sec. 1384(b)(3), 
     requires that, with regard to substantive regulations under 
     the CAA, after the Board of Directors of the Office of 
     Compliance (``Board'') has published a general notice of 
     proposed rulemaking as required by subsection (b)(1), and 
     received comments as required by subsection (b)(2), ``the 
     Board shall adopt regulations and shall transmit notice of 
     such action together with a copy of such regulations to the 
     Speaker of the House of Representatives and the President pro 
     tempore of the Senate for publication in the Congressional 
     Record on the first day on which both Houses are in session 
     following such transmittal.''
       The Board has adopted the regulations in the Notice of 
     Adoption of Substantive Regulations and Transmittal for 
     Congressional Approval which accompany this transmittal 
     letter. The Board requests that the accompanying Notice be 
     published in the House version of the Congressional Record on 
     the first day on which both Houses are in session following 
     receipt of this transmittal.
       The Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, and therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.
       All inquiries regarding this notice should be addressed to 
     Barbara J. Sapin, Executive Director of the Office of 
     Compliance, Room LA-200, 110 2nd Street, SE, Washington, DC 
     20540; (202) 724-9250.
           Sincerely,

                                            Barbara L. Camens,

                                  Chair of the Board of Directors,
                                             Office of Compliance.

        From the Board of Directors of the Office of Compliance


  NOTICE OF ADOPTION OF REGULATIONS and TRANSMITTAL FOR CONGRESSIONAL 
                                APPROVAL

     Modifications to the rights and protections under the Family 
         and Medical Leave Act of 1993 (FMLA), Notice of Adoption 
         of Regulations, as required by 2 U.S.C. Sec. 1384, 
         Congressional Accountability Act of 1995, as amended 
         (CAA).
     Background
       The purpose of this Notice is to announce adoption of 
     modifications to the existing legislative branch FMLA 
     substantive regulations under section 202 of the CAA (2 
     U.S.C. Sec. 1302 et seq.), which applies to covered employees 
     the rights and protections of sections 101 through 105 of the 
     FMLA (29 U.S.C. Sec. Sec. 2611 through 2615), and such 
     remedies as would be appropriate if awarded under paragraph 
     (1) of section 107(a) of the FMLA (29 U.S.C. 
     Sec. 2617(a)(1)). These modifications are necessary in order 
     to bring previously approved existing legislative branch FMLA 
     regulations (approved by Congress April 15, 1996) in line 
     with current Department of Labor (DOL) regulations 
     implementing recent statutory changes to the FMLA, 29 U.S.C. 
     Sec. 2601 et seq.
     What is the authority under the CAA for these adopted 
         substantive regulations?
       Section 202(a) of the CAA provides that the rights and 
     protections established by sections 101 through 105, and 
     remedies under section 107(a)(1) of the FMLA (29 U.S.C. 
     Sec. Sec. 2611-2615) shall apply to covered employees.
       Section 202(d)(1) and (2) of the CAA require that the 
     Office of Compliance (OOC) Board of Directors (the Board), 
     pursuant to section 1384 of the CAA, issue regulations 
     implementing the rights and protections of the FMLA and that 
     those regulations shall be ``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 modifications to the regulations issued by the 
     Board herein are all on matters for which section 202 of the 
     CAA requires regulations to be issued.
     Are there FMLA regulations currently in effect?
       Yes. On January 22, 1996, the OOC Board adopted and 
     submitted for publication in the Congressional Record the 
     original FMLA final regulations implementing section 202 of 
     the CAA, which applies certain rights and protections of the 
     FMLA. On April 15, 1996, pursuant to section 304(c) of the 
     CAA, the House and the Senate passed resolutions approving 
     the final regulations. Specifically, the Senate passed S. 
     Res. 242, providing for approval of the final regulations 
     applicable to the Senate and the employees of the Senate; the 
     House passed H. Res. 400 providing for approval of the final 
     regulations applicable to the House and the employees of the 
     House; and the House and the Senate passed S. Con. Res. 51, 
     providing for approval of the final regulations applicable to 
     employing offices and employees other than those offices and 
     employees of the House and the Senate. Once approved by 
     Congress, these regulations would supersede and replace the 
     current substantive Board FMLA regulations from 1996.
     What does the FMLA provide?
       The FMLA entitles eligible employees of covered employers 
     to take job-protected, unpaid leave, or to substitute 
     appropriate accrued paid leave, for up to a total of 12 
     workweeks in a 12-month period: for the birth of the 
     employee's son or daughter and to care for the newborn child; 
     for the placement of a son or daughter with the employee for 
     adoption or foster care; to care for the employee's spouse, 
     parent, son, or daughter with a serious health condition; 
     when the employee is unable to work due to the employee's own 
     serious health condition; or for any qualifying exigency 
     arising out of the fact that the employee's spouse, son, 
     daughter, or parent is a military member on covered active 
     duty (``qualifying exigency leave''). An eligible employee 
     may also take up to 26 workweeks of FMLA leave during a 
     ``single 12-month period'' to care for a covered 
     servicemember with a serious injury or illness, when the 
     employee is the spouse, son, daughter, parent, or next of kin 
     of the servicemember.
       FMLA leave may be taken in a block or, under certain 
     circumstances, intermittently or on a reduced leave schedule 
     basis. In addition to providing job-protected family and 
     medical leave, employers must also maintain any preexisting 
     group health plan coverage for an employee on FMLA-protected 
     leave under the same conditions that would apply if the 
     employee had not taken leave. 2 U.S.C. Sec. 1312(a)(1) 
     (incorporating 29 U.S.C. Sec. 2614). Once the leave period is 
     concluded, the employer is required to restore the employee 
     to the same or an equivalent position with equivalent 
     employment benefits, pay, and other terms and conditions of 
     employment. Id. Under the FMLA statute, but not applicable to 
     the legislative branch, if an employee believes that his or 
     her FMLA rights have been violated, the employee may file a 
     complaint with the DOL or file a private lawsuit in federal 
     or state court.
       Under the CAA, a covered employee of the legislative branch 
     may initiate proceedings with the OOC and may be awarded 
     damages if the employing office has violated the employee's 
     FMLA rights. The employee is entitled to reimbursement for 
     any monetary loss incurred, equitable relief as appropriate, 
     interest, attorneys' fees, expert witness fees, and court 
     costs. Liquidated damages also may be awarded. See 29 U.S.C. 
     Sec. 2617.
     What changes do the proposed amendments make?
       First, these regulations add the military leave provisions 
     of the FMLA enacted under the National Defense Authorization 
     Acts (NDAA) for Fiscal Years 2008 and 2010 (Pub.L. 110-181, 
     Div. A, Title V Sec. Sec. 585(a)(2), (3)(A)-(D) and Pub.L. 
     111-84, Div. A, Title V Sec. 565(a)(1)(B) and (4), which: 
     extend the availability of FMLA leave to family members of

[[Page H4129]]

     the Regular Armed Forces for qualifying exigencies arising 
     out of a servicemember's deployment; define those deployments 
     covered under these provisions; extend FMLA military 
     caregiver leave for family members of current servicemembers 
     to include an injury or illness that existed prior to service 
     and was aggravated in the line of duty on active duty; and 
     extend FMLA military caregiver leave to family members of 
     certain veterans with serious injuries or illnesses. These 
     regulations also set forth the revised definition of 
     ``spouse'' under the FMLA in light of the DOL's February 25, 
     2015 Final Rule on the definition of spouse, and the United 
     States Supreme Court's decision in Obergefell, et al., v. 
     Hodges, No. 14-556, 135 S. Ct. 2584 (2015), which requires a 
     state to license a marriage between two people of the same 
     sex and to recognize a marriage between two people of the 
     same sex when their marriage was lawfully licensed and 
     performed out-of-state.
     Why are these changes to the FMLA regulations necessary?
       The CAA requires that the FMLA regulations applicable to 
     the legislative branch and promulgated by the Board be the 
     same as substantive regulations issued by the Secretary of 
     Labor, unless good cause is shown that a modification would 
     be more effective for the implementation of the rights and 
     protections under the section. 2 U.S.C. Sec. 1312(d)(2).
       On March 8, 2013, the DOL issued its Final Rule 
     implementing its amended FMLA regulations (77 FR 8962), which 
     provide for military caregiver leave for a veteran, 
     qualifying exigency leave for parental care, and special 
     leave calculations for flight crew employees. The Board is 
     required pursuant to the CAA to amend its regulations to 
     achieve parity, unless there is good cause shown to deviate 
     from the DOL's regulations.
       In addition, the FMLA amendments providing additional 
     rights and protections for servicemembers and their families 
     were enacted into law by the NDAA for Fiscal Years 2008 and 
     2010. The Congressional committee reports that accompany the 
     NDAA for Fiscal Years 2008 and 2010 and the amended FMLA 
     provisions do not ``describe the manner in which the 
     provision of the bill [relating to terms and conditions of 
     employment] . . . apply to the legislative branch'' or 
     ``include a statement of the reasons the provision does not 
     apply [to the legislative branch]'' (in the case of a 
     provision not applicable to the legislative branch) as 
     required by Section 102(b)(3) of the CAA. 2 U.S.C. 
     Sec. 1302(3); House Committee on Armed Services, H. Rpt. 110-
     146 (May 11, 2007), H. Rpt. 111-166 (June 18, 2009). 
     Consequently, when the FMLA was amended to add these 
     additional rights and protections, it was not clear whether 
     Congress intended that these additional rights and 
     protections apply in the legislative branch.\1\
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     \1\ In contrast, the committee report accompanying the bill 
     containing the ADA Amendments Act of 2008 complied with 
     section 102(b)(3) of the CAA and contained a provision that 
     indicated an intent to apply the ADA Amendments to the 
     legislative branch. Committee on Education and Labor, H. Rpt. 
     110-730 Sec. VII (June 23, 2008).
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       Several commenters expressed the opinion that when a 
     statutory provision of the FMLA that has generally been 
     incorporated into the CAA is amended, the provision applies 
     as amended unless a provision of the CAA precludes its 
     application. However, there is no clear provision in the CAA 
     that so provides.
       To the extent that there may be an ambiguity regarding the 
     applicability to the legislative branch of the 2008 and 2010 
     FMLA amendments, the Board makes clear through these 
     regulations that the rights and protections for military 
     servicemembers apply in the legislative branch and that 
     protections under the CAA are in line with existing public 
     and private sector protections under the FMLA.\2\ 
     Accordingly, the Board recommends that Congress use its 
     rulemaking authority to clarify that the rights and 
     protections for legislative branch servicemembers and their 
     families have been expanded in a manner consistent with the 
     2008 and 2010 amendments to the FMLA.
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     \2\ An approved regulation can require employing offices to 
     provide the additional rights and protections for 
     servicemembers and their families added to the FMLA since 
     1996. This is because, unlike executive branch agencies, the 
     rulemaking power of the Board (after Congressional approval) 
     is ``an exercise of the rulemaking power of the House of 
     Representatives and the Senate'' under the Constitution. 2 
     U.S.C. Sec. 1431(1). The rulemaking power of Congress under 
     the Constitution, U.S. Const. Art. 1, Sec. 5, cl. 2, is a 
     ``broad grant of authority'' that allows each house of 
     Congress to determine its own internal rules bounded only by 
     ``constitutional restraints and fundamental rights.'' 
     Consumers Union of U.S., Inc. v. Periodical Correspondents' 
     Ass'n, 515 F.2d 1341, 1343 (D.C. Cir. 1975); United States v. 
     Ballin, 144 U.S. 1,5 (1892).
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     What do the military family leave provisions provide?
       Section 585(a) of the NDAA for Fiscal Year 2008 amends the 
     FMLA to provide leave to eligible employees of covered 
     employers to care for injured servicemembers and for any 
     qualifying exigency arising out of the fact that a covered 
     family member is on active duty or has been notified of an 
     impending call to active duty status in support of a 
     contingency operation (collectively referred to herein as 
     ``military family leave''). The provisions of this amendment 
     providing FMLA leave to care for a covered servicemember 
     became effective when the law was enacted on January 28, 
     2008. The provisions of this amendment providing for FMLA 
     leave due to a qualifying exigency arising out of a covered 
     family member's active duty (or call to active duty) status 
     were effective on January 16, 2009.
       Section 565(a) of the NDAA for Fiscal Year 2010, enacted on 
     October 28, 2009, amends the military family leave provisions 
     of the FMLA. Pub. Law 111-84. The Fiscal Year 2010 NDAA 
     expands the availability of qualifying exigency leave and 
     military caregiver leave. Qualifying exigency leave, which 
     was made available to family members of the National Guard 
     and Reserve components under the Fiscal Year 2008 NDAA, is 
     expanded to include family members of the Regular Armed 
     Forces. The entitlement to qualifying exigency leave is 
     expanded by substituting the term ``covered active duty'' for 
     ``active duty'' and defining covered active duty for a member 
     of the Regular Armed Forces as ``duty during the deployment 
     of the member with the Armed Forces to a foreign country'' 
     and for a member of the Reserve components of the Armed 
     Forces as ``duty during the deployment of the member with the 
     Armed Forces to a foreign country under a call or order to 
     active duty under a provision of law referred to in section 
     101(a)(13)(B) of title 10, United States Code.'' 29 U.S.C. 
     Sec. 2611(14). Prior to the Fiscal Year 2010 NDAA amendments, 
     there was no requirement that members of the National Guard 
     and Reserves be deployed to a foreign country.
       The Fiscal Year 2010 NDAA amendments expand the definition 
     of a ``serious injury or illness'' for military caregiver 
     leave for current members of the Armed Forces to include an 
     injury or illness that existed prior to service and was 
     aggravated in the line of duty on active duty. 29 U.S.C. 
     Sec. 2611(18)(A). These amendments also expand the military 
     caregiver leave provisions of the FMLA to allow family 
     members to take military caregiver leave to care for certain 
     veterans. The definition of a ``covered servicemember,'' 
     which is the term the Act uses to indicate the group of 
     military members for whom military caregiver leave may be 
     taken, is broadened to include a veteran with a serious 
     injury or illness who is receiving medical treatment, 
     recuperation, or therapy, if the veteran was a member of the 
     Armed Forces at any time during the period of five years 
     preceding the date of the medical treatment, recuperation, or 
     therapy. 29 U.S.C. Sec. 2611(15)(B). The amendments define a 
     serious injury or illness for a veteran as a ``qualifying (as 
     defined by the Secretary of Labor) injury or illness that was 
     incurred by the member in the line of duty on active duty in 
     the Armed Forces (or existed before the beginning of the 
     member's active duty and was aggravated by service in the 
     line of duty on active duty in the Armed Forces) and that 
     manifested itself before or after the member became a 
     veteran.'' 29 U.S.C. Sec. 2611(18)(B).
     What is the effect of amending the definition of ``spouse''?
       In its Notice of Proposed Rulemaking, the Board modified 
     its definition of spouse and invited comment regarding 
     whether it should adopt the DOL's current definition of 
     spouse or revise the definition of spouse with its newly 
     drafted definition.
       All commenters suggested the Board adopt the DOL definition 
     of ``spouse'' as announced in the DOL's Final Rule for 29 
     C.F.R. Sec. 825 dated February 25, 2015 (one suggesting it be 
     only slightly modified to include a reference to federal 
     law), because the Supreme Court's decision in Obergefell v. 
     Hodges does not invalidate the DOL's definition of spouse, 
     and the Board has not shown good cause to modify the DOL's 
     definition. See 2 U.S.C. Sec. 1312(d)(2).
       The Board has determined that no good cause has been shown 
     to modify the definition of spouse found in the DOL's current 
     regulations and, therefore, adopts the DOL definition.
       Minor editorial changes have been made to sections 825.120, 
     825.121, 825.122, 825.127, 825.201 and 825.202 to make gender 
     neutral references to husbands and wives, and mothers and 
     fathers where appropriate so that they apply equally to 
     opposite-sex and same-sex spouses. The Board uses the terms 
     ``spouses'' and ``parents,'' as appropriate, in these 
     regulations. These editorial changes do not change the 
     availability of FMLA leave, but simply clarify its 
     availability for all eligible employees who are legally 
     married.
     Procedural Summary
     How are substantive regulations proposed and approved under 
         the CAA?
       Pursuant to section 304 of the CAA, 2 U.S.C. Sec. 1384, the 
     procedure for proposing and approving substantive regulations 
     provides that:
       (1) the Board of Directors proposes substantive regulations 
     and publishes a general notice of proposed rulemaking in the 
     Congressional Record;
       (2) there be a comment period of at least 30 days after the 
     date of publication of the general notice of proposed 
     rulemaking;
       (3) after consideration of comments by the Board of 
     Directors, the Board adopts regulations and transmits notice 
     of such action (together with the regulations and a 
     recommendation regarding the method for Congressional 
     approval of the regulations) to the Speaker of the House and 
     President Pro Tempore of the Senate for publication in the 
     Congressional Record;
       (4) the adopted regulations are referred to committees for 
     action by resolution in each chamber by concurrent 
     resolution, or by joint resolution; and

[[Page H4130]]

       (5) approved regulations are then published in the 
     Congressional Record, with an effective date.
       This Notice of Adoption of Regulations is step (3) of the 
     outline set forth above. For more detail, please reference 
     the text of 2 U.S.C. Sec. 1384.
     What is the approach taken by these adopted substantive 
         regulations?
       The Board will follow the procedures as enumerated above 
     and as required by statute. The Board has reviewed and 
     responded to the comments received under step (2) of the 
     outline above, and made changes where necessary to ensure 
     that the adopted regulations fully implement section 202 of 
     the CAA, and reflect the practices and policies particular to 
     the legislative branch.
     Are there substantive differences in the adopted regulations 
         for the House of Representatives, the Senate, and other 
         employing offices?
       No. The Board of Directors has adopted one set of 
     regulations for all employing offices. The House suggested 
     that separate regulations be adopted by the Board because of 
     its ``unique administrative structures.'' For the reasons 
     stated in this Notice, the Board finds no reason to vary the 
     text of the regulations. Therefore, if these regulations are 
     approved as adopted, there will be one text applicable to all 
     employing offices and covered employees. See 2 U.S.C. 
     Sec. 1331(e)(2).
     Are these adopted regulations also recommended by the Office 
         of Compliance's Executive Director, the Deputy Executive 
         Director for the Senate, and the Deputy Executive 
         Director for the House of Representatives?
       Yes. As required by section 304(b)(1) of the CAA, 2 U.S.C. 
     Sec. 1384(b)(1), the substance of these regulations is also 
     recommended by the Executive Director, the Deputy Executive 
     Director for the Senate, and the Deputy Executive Director 
     for the House of Representatives.
     What are the next steps in the process of promulgation of 
         these regulations?
       Pursuant to section 304(b)(4) of the CAA, 2 U.S.C. 
     1384(b)(4), the Board of Directors is required to recommend 
     to Congress a method of approval for these regulations. As 
     the Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, it therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.
     Are these adopted substantive regulations available to 
         persons with disabilities in an alternate format?
       Yes. This Notice of Adopted Regulations and the substantive 
     regulations are available on the OOC's web site, 
     www.compliance.gov, which is compliant with section 508 of 
     the Rehabilitation Act of 1973, as amended, 29 U.S.C. 
     Sec. 794(d). This Notice can also be made available in large 
     print or Braille. Requests for this Notice in an alternative 
     format should be made to: Alexandria Sabatini, Administrative 
     Assistant, Office of Compliance, 110 2nd Street, S.E., Room 
     LA-200, Washington, D.C. 20540; 202-724-9250; FAX: 202-426-
     1913.
     Am I allowed to view copies of comments submitted by others?
       Yes. Copies of submitted comments are available for review 
     on the OOC's web site at www.compliance.gov, and at the 
     Office of Compliance, 110 Second Street, S.E., Washington, 
     D.C. 20540-1999, on Monday through Friday (non-federal 
     holidays) between the hours of 9:30 a.m. and 4:30 p.m.
     Summary
       The Congressional Accountability Act of 1995 (CAA), PL 104-
     1, was enacted into law on January 23, 1995. The CAA, as 
     amended, applies the rights and protections of thirteen 
     federal labor and employment statutes to covered employees 
     and employing offices within the legislative branch of the 
     federal government. Section 202 of the CAA applies to 
     employees covered by the CAA, the rights and protections 
     established by sections 101 through 105 of the Family and 
     Medical Leave Act of 1993 (FMLA), 29 U.S.C. Sec. Sec. 2611--
     2615. The above provisions of section 202 became effective on 
     January 1, 1997. 2 U.S.C. Sec. 1312.
       The Board of Directors of the Office of Compliance is now 
     publishing its adopted amended regulations to implement 
     section 202 of the CAA, 2 U.S.C. Sec. Sec. 1301-1438, as 
     applied to covered employees of the House of Representatives, 
     the Senate, and certain Congressional instrumentalities 
     listed below.
       The purpose of these amended regulations is to implement 
     section 202 of the CAA. In this Notice of Adoption of 
     Regulations, the Board adopts identical regulations for the 
     Senate, the House of Representatives, and the seven 
     Congressional instrumentalities. Accordingly:
       (1) Senate. The amended regulations adopted in this Notice 
     shall apply to entities within the Senate, as recommended by 
     the OOC's Deputy Executive Director for the Senate.
       (2) House of Representatives. The amended regulations 
     adopted in this Notice shall apply to entities within the 
     House of Representatives, as recommended by the OOC's Deputy 
     Executive Director for the House of Representatives.
       (3) Certain Congressional instrumentalities. The amended 
     regulations in this Notice shall apply to the Office of 
     Congressional Accessibility Services, the United States 
     Capitol Police, the Congressional Budget Office, the Office 
     of the Architect of the Capitol, the Office of the Attending 
     Physician, the Office of Compliance, and the Office of 
     Technology Assessment; as recommended by the OOC's Executive 
     Director.

     Section-by-Section Discussion of Adopted Changes to the FMLA 
                              Regulations

       The following is a section-by-section discussion of the 
     adopted regulations. Where a change is made to a regulatory 
     section, that section is discussed below. However, as the DOL 
     has significantly reorganized its FMLA regulations, which the 
     Board's adopted regulations mirror, many of the sections are 
     moved into other areas of the subpart. The Board as a result 
     will use the adopted section and numbers to provide 
     explanation and analysis of changes. In addition, even if a 
     section is not discussed, there may be minor editorial 
     changes or corrections that do not warrant discussion.
       In addition, several sections have been restructured and 
     reorganized to improve the accessibility of the information 
     (e.g., guidance on leave for pregnancy and birth of a child 
     is addressed in one consolidated section; an employing 
     office's notice obligations are combined in one section).
       Some commenters suggested that the Board modify the 
     regulations where a commenter believed that clarification was 
     needed to resolve potential ambiguities in the DOL 
     regulation. However, the Board has long held that it will not 
     opine on interpretive ambiguities in the regulations--outside 
     of the adjudicatory context of individual cases. The Board's 
     rulemaking authority under the CAA is restricted to 
     circumstances where there is ``good cause'' to depart from 
     the Secretary of Labor's substantive regulations. Further, 
     the Board's adjudicatory function would be undermined if it 
     prejudged ambiguous or disputed interpretive matters. 
     Therefore, the Board does not find ``good cause'' to modify a 
     regulation where the request is based on an ostensible need 
     for clarification.

   Section by Section Discussion and Board Consideration of Comments

     SUBPART A--COVERAGE UNDER THE FAMILY AND MEDICAL LEAVE ACT, 
         AS MADE APPLICABLE BY THE CAA
       To clarify that the CAA and not the FMLA applies directly 
     to employing offices, the Board has added ``as made 
     applicable by the CAA'' to the section title at the 
     suggestion of one commenter.
       A commenter suggested that the Board clarify that these 
     regulations supersede and replace the Board's substantive 
     regulations currently applicable to the covered legislative 
     branch entities. To resolve any uncertainty, if approved by 
     Congress, these regulations would necessarily supersede and 
     replace the current substantive Board FMLA regulations.
     Section 825.100 The Family and Medical Leave Act.
       825.100(a)
       This section allows eligible employees to take FMLA leave 
     for reasons including a qualifying exigency `` . . . arising 
     out of the fact that the employee's spouse, son, daughter, or 
     parent . . . is on call to active duty status.'' One 
     commenter requested the Board add an ``ed'' to the word 
     ``call'' for clarity--so that the phrase would read: `` . . . 
     arising out of the fact that the employee's spouse, son, 
     daughter, or parent is a military member on active duty or 
     called to covered active duty status . . . '' The Board finds 
     that the ``call to covered active duty status'' is a status 
     term appearing in the DOL's regulations, and finds no good 
     cause to modify DOL's terminology.
       825.100(b)
       In the proposed regulations, the Board italicized a 
     reference to the House of Representatives. A commenter 
     suggested making consistent the House and instrumentalities' 
     versions of these regulations with the Senate version. 
     Because there is only one version of these regulations, the 
     italicized and parenthetical language that references 
     separate entities has been deleted from these adopted 
     regulations.
     Section 825.102 Definitions.
       The Board finds good cause to depart from the DOL 
     regulations with respect to some definitions. As discussed 
     above, the Board clarifies that the CAA and not the ADA 
     applies directly to employing offices by adding ``as made 
     applicable by the CAA'' to the definition of ADA.
       In addition, the term ``Act'' as defined in the DOL 
     regulations and referred to in the FMLA can be confused with 
     the Congressional Accountability Act (CAA). Accordingly, the 
     definition of ``Act'' is excluded from the Board's 
     regulations. To avoid any confusion, the definition for 
     ``Administrator'' in the DOL regulations has been deleted. 
     Similarly, as there is no airline flight crew covered under 
     the CAA, the definition of and all references to ``airline 
     flight crew employee'' has been deleted in the Board's 
     regulations.
       Because the DOL definitions of ``commerce and industry or 
     activity affecting commerce'' and ``applicable monthly 
     guarantee'' involve concepts that do not apply to employing 
     offices covered by the CAA, the Board finds good cause to 
     exclude these definitions from the regulations.
       One commenter suggested, as a general observation, that 
     several definitions conflict with the statutory definitions 
     of the FMLA (29 U.S.C. Sec. 2611) and the CAA (2 U.S.C. 
     Sec. 1312). The Board responds to the comment by addressing 
     the definitions as they appear in the provisions.

[[Page H4131]]

       ``Covered active duty or call to covered active duty 
     status''
       One commenter suggested that the regulatory definition 
     improperly expands the coverage of ``Covered active duty'' 
     and suggested the Board seek a statutory correction to 2 
     U.S.C. Sec. 2611 or 2 U.S.C. Sec. 1312 if an expanded 
     definition is intended. The Board finds that its regulation 
     is consistent with DOL's regulation which was intended to 
     expand such coverage under the FMLA in line with the military 
     leave provisions of the FMLA enacted under the National 
     Defense Authorization Acts (NDAA), and therefore does not 
     find good cause to modify its regulation.
       ``Covered employee''
       One commenter suggested that the definition of ``Covered 
     employee'' does not need to be included in these regulations 
     because that term is defined in 2 U.S.C. Sec. 1302(3)-(10) of 
     the CAA. The Board finds no good cause to modify the 
     regulation, and includes the definition of ``Covered 
     employee'' in its regulations.
       ``Covered servicemember''
       One commenter stated that the regulatory definition is 
     inconsistent with the definition in 2[sic] U.S.C. Sec. 2611 
     (15), and suggested deleting the definition. The Board finds 
     that the proposed definition of ``Covered servicemember'' is 
     consistent with the DOL's regulation and that no good cause 
     has been shown to modify the DOL's regulation.
       ``Covered veteran''
       One commenter claimed that the regulatory definition is 
     inconsistent with the statutory definition in 2[sic] U.S.C. 
     Sec. 2611 (15) and (19), and suggested deletion. The Board 
     finds that the definition of ``Covered veteran'' is 
     consistent with the DOL's regulation and that no good cause 
     to modify the DOL's regulation has been shown.
       ``Eligible employee''
       A commenter noted that the definition of ``Eligible 
     employee'' in the Board's regulations is different than the 
     statutory definition of ``Eligible employee'' under section 
     202(a)(2)(B), but made no recommendation. Because the DOL's 
     definition of ``Eligible employee'' (paragraphs 
     ii(3)(4)(5)(6)(7) in section 825.102) is not consistent with 
     the definition of ``Eligible employee'' in CAA section 
     202(a)(2)(B), the Board finds good cause to keep the 
     definition of ``Eligible employee'' that is used in the 
     current version of the OOC FMLA regulations and to delete the 
     definition as it appears in the DOL regulation.
       ``Employee''
       One commenter suggested that this definition need not be 
     included in the FMLA regulations because it is already 
     covered in 2 U.S.C. Sec. 1301 of the CAA. The Board finds 
     that no good cause has been provided to modify the 
     regulation, and includes the definition of ``Employee'' in 
     its regulations.
       ``Employee employed in an instructional capacity''
       One commenter suggested that reference to teachers should 
     be deleted from the regulations because the commenter does 
     not currently employ teachers. The Board finds that this 
     section may be relevant to other employing offices now or in 
     the future, and therefore finds no good cause to delete the 
     definition.
       ``Employee of the House of Representatives''
       One commenter suggested correcting the definition of 
     ``Employee of the House of Representatives'' to state that it 
     does not include any individual employed in subparagraphs 2-9 
     in the definition of covered employee above. The Board is 
     following the language of the statute (see 2 U.S.C 
     Sec. 1301(7)) and finds no good cause to modify this 
     provision.
       ``Employee of the Senate''
       One commenter suggested that the definition of ``Employee 
     of the Senate'' should be corrected to include ``but not any 
     individual employed by any entity listed in subparagraphs 1, 
     or 3-9. The Board is following the language of the statute 
     (see 2 U.S.C Sec. 1301(8)) and finds no good cause to modify 
     this provision.
       ``Employing office''
       One commenter suggested that the definition of ``Employing 
     office'' does not need to be included in these regulations 
     because this definition is already covered in 2 U.S.C. 
     Sec. 1301 of the CAA. The Board finds good cause to keep the 
     definition--modified to the extent that it reflects the 
     unique definition of ``Employing office'' under the CAA.
       ``Employment benefits''
       One commenter suggested deleting this regulatory definition 
     because it is similar but not the same as the statutory 
     definition found in 2[sic] U.S.C. Sec. 2611(5). The Board 
     finds that the definition of ``Employment benefits'' is 
     consistent with the DOL's regulation, and that no good cause 
     has been shown to modify the DOL's regulation.
       ``FLSA'' means the Fair Labor Standards Act (29 U.S.C. 
     Sec. 201 et seq.), as made applicable by the Congressional 
     Accountability Act. To clarify that the CAA and not the FLSA 
     applies directly to employing offices, the Board has added 
     ``as made applicable by the CAA'' to the section title, at 
     the suggestion of a commenter.
       ``FMLA'' means the Family and Medical Leave Act of 1993, 
     Public Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 
     Sec. 2601 et seq., as amended), as made applicable by the 
     Congressional Accountability Act. To clarify that the CAA and 
     not the FMLA applies directly to employing offices, the Board 
     has added ``as made applicable by the CAA'' to the section 
     title, at the suggestion of a commenter.
       ``Health care provider''
       In the paragraphs defining ``Health care provider,'' to 
     avoid confusion, the Board is substituting ``the Secretary'' 
     with ``the Department of Labor.'' Thus, the Board's FMLA 
     regulations define ``Health care provider'' as ``any other 
     person determined by the Department of Labor to be capable of 
     providing health care services.''
       One commenter suggested that in the definition ``any other 
     person . . . capable of providing healthcare services . . .'' 
     is overly broad. The Board's definition of ``Health care 
     provider'' is consistent with the DOL's regulation and good 
     cause has not been shown to modify the DOL's regulation.
       ``Outpatient status''
       One commenter claimed the definition of ``Outpatient 
     status'' is different than the statutory definition in 29 
     U.S.C. Sec. 2611(16) and suggested that the Board use the 
     statutory definition. The Board finds that the definition of 
     ``Outpatient status'' in its regulations is consistent with 
     the DOL's regulations and that no good cause has been shown 
     to modify the DOL's regulations.
       ``Physical or mental disability''
       Under the paragraph defining ``physical or mental 
     disability,'' the Board has replaced the language from the 
     DOL regulations indicating that 29 CFR part 1630, issued by 
     the Equal Employment Opportunity Commission under the 
     Americans with Disabilities Act (ADA), 42 U.S.C. Sec. 12101 
     et seq., as amended, ``defines'' these terms, and states 
     instead that regulations issued by the EEOC ``provide 
     guidance to'' these terms.'' (Italics added).
       Because the terms ``Person'' and ``Public agency'' are not 
     applicable to employing offices covered by the CAA, the Board 
     has also found good cause to exclude these DOL definitions 
     from its proposed regulations.
       ``Spouse''
       The Board had proposed to adopt the following definition of 
     ``Spouse'' that is not the same as the DOL definition:
       Spouse means a husband or wife. For purposes of this 
     definition, husband or wife refers to all individuals in 
     lawfully recognized marriages. This definition includes an 
     individual in a same-sex marriage. This definition also 
     includes an individual in a common law marriage that either: 
     (1) was entered into in a State that recognizes such 
     marriages or, (2) if entered into outside of any State, is 
     valid in the place where entered into and could have been 
     entered into in at least one State.
       Commenters suggested that the Board adopt the DOL's 
     definition of spouse noting that the Supreme Court's decision 
     in Obergefell v. Hodges, does not invalidate the DOL's 
     definition. In addition, one commenter suggested that the 
     Board's proposed definition is inconsistent with the 
     statutory definition (``spouse'' means a husband or wife, as 
     the case may be) and the DOL's regulations. Another commenter 
     suggested that the Board's proposed definition does not 
     include a requirement that a valid marriage between 
     participants of any sex is defined by reference to state law. 
     Finding that no good cause has been shown to modify the 
     current definition of spouse found in the DOL's regulations, 
     the Board adopts the DOL definition.
     Section 825.104 Covered employing offices.
       Three commenters suggested that section 825.104(c) should 
     be deleted because the integrated employer concept does not 
     apply in the context of the CAA. Under the integrated 
     employer test, separate entities of a private sector employer 
     will be regarded as a single employer based on an evaluation 
     of such factors as common management, interrelation between 
     operations, centralized control of labor relations, and 
     degree of common ownership/financial control. See 29 C.F.R. 
     Sec. 825.104(c)(2). If the integrated employer test is met, 
     all entities in question will be considered one employer, for 
     purposes of counting employees. Under the FMLA, private 
     sector employees engaged in commerce or an industry affecting 
     commerce are covered if 50 or more employees are employed in 
     at least 20 or more calendar workweeks. Under the CAA, 
     however, there is no such numerosity requirement; the CAA 
     covers all employing offices regardless of the number of 
     employees. The integrated employer concept therefore is 
     inapplicable. Based on the foregoing, the Board agrees that 
     the integrated employer concept does not currently apply to 
     the legislative branch covered employing offices and has 
     deleted section 825.104(c) from its adopted regulations.
     Section 825.106 Joint employer coverage.
       As joint employment relationships are treated differently 
     under the CAA than by the DOL, the Board finds good cause to 
     keep the language in the current OOC regulations in 
     paragraphs (b) through (e) of this section. Also, as it is 
     not applicable under the CAA, the Board finds good cause to 
     exclude from its definitions language relating to 
     Professional Employer Organizations (PEOs) as joint 
     employers. As the DOL has noted, PEOs contract with private 
     small businesses to provide services that large businesses 
     can afford, but that small businesses cannot afford, such as 
     compliance with government standards, employer liability 
     management, retirement benefits, and other employment 
     benefits. Congress already provides these services for its 
     employees.
     Section 825.110 Eligible employees.
       This section defines who may be eligible for FMLA leave. 
     One commenter suggested that the provision is inconsistent 
     with the statutory definition of ``Eligible employee'' under 
     the CAA, and is thus ultra vires and should not be adopted. 
     The Board finds that this provision is not inconsistent with 
     the

[[Page H4132]]

     definition of ``Eligible employee'' under the CAA, and that 
     it is in line with the expanded coverage under the FMLA, as 
     applied by the CAA.
       825.110(a)(1)
       This section provides that ``An eligible employee is an 
     employee of a covered employing office who: (1) Has been 
     employed by any employing office for at least 12 months . . . 
     '' One commenter stated that this section expands the 
     definition of eligible employee found in section 825.102, and 
     suggested that the language in section 825.110(a) be revised 
     to read ``An eligible employee is a covered employee of an 
     employing office who . . . '' (Italics added). The Board has 
     made the language in the definition of eligible employee in 
     section 825.110(a) consistent with the definition in section 
     825.102 and the CAA because the statute uses the terms 
     ``Covered employee'' and ``Employing office.''
       825.110(a)(3) and (e)
       The Board finds good cause to exclude from its regulations 
     the following language from the DOL regulations because it is 
     not applicable to the CAA:
       ``(3) Is employed at a worksite where 50 or more employees 
     are employed by the employer within 75 miles of that 
     worksite. (See section 825.105(b) regarding employees who 
     work outside the U.S.) ''
       Similarly, the Board finds good cause to exclude from these 
     regulations the following paragraph:
       ``(e) Whether 50 employees are employed within 75 miles to 
     ascertain an employee's eligibility for FMLA benefits is 
     determined when the employee gives notice of the need for 
     leave. Whether the leave is to be taken at one time or on an 
     intermittent or reduced leave schedule basis, once an 
     employee is determined eligible in response to that notice of 
     the need for leave, the employee's eligibility is not 
     affected by any subsequent change in the number of employees 
     employed at or within 75 miles of the employee's worksite, 
     for that specific notice of the need for leave. Similarly, an 
     employer may not terminate employee leave that has already 
     started if the employee-count drops below 50. For example, if 
     an employer employs 60 employees in August, but expects that 
     the number of employees will drop to 40 in December, the 
     employer must grant FMLA benefits to an otherwise eligible 
     employee who gives notice of the need for leave in August.''
       825.110(b)(1)-(2)
       The Board has determined that the use of the term ``any 
     employing office'' clarifies that work in more than one 
     employing office may be aggregated to determine eligibility.
       825.110(c)(1)
       Regarding the aggregation of hours where an employee works 
     for more than one employing office, the Board proposed:
       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.
       Several commenters suggested that because section 
     825.110(c)(1) allows employees to aggregate their hours of 
     work from sequential employing offices to meet the hours or 
     months of service requirements to be eligible for FMLA leave, 
     the Board must clarify that FMLA leave taken by an employee 
     at a former employing office may count against FMLA leave 
     entitlement at another employing office in the 12 month 
     period. Section 825.208(f) of the OOC's 1996 regulations made 
     it clear that a subsequent employing office may count FMLA 
     leave taken with a prior employing office against a covered 
     employee's current FMLA entitlement. As a general rule, the 
     legislative branch allows for the aggregation of time whereas 
     the private sector and the executive branch do not. One 
     commenter suggested that the Board incorporate a paragraph 
     (e) in this section that would read:
       ``(e) 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.''
       The Board finds good cause to add language clarifying that 
     FMLA leave taken by an employee may count against FMLA leave 
     entitlement at another employing office, see section 
     825.110(e).
       825.110(c)(3)
       One commenter mentioned that the second sentence of this 
     section references ``a person reemployed following USERRA-
     covered service . . .'' (Italics added) and suggested 
     changing the term ``person'' to ``covered employee.'' The 
     Board has determined that language in this section is 
     consistent with DOL regulations, and there is no good cause 
     shown to modify the DOL regulations.
       825.110(c)(4)
       A commenter suggested that a parenthetical reference to the 
     FLSA regulations should reference the OOC substantive 
     regulations, rather than the DOL citation (i.e., OOC 
     Regulations Sec. Sec. H541.1-H541.3). In addition, the 
     commenter suggested that because the definition of 
     ``teacher'' does not apply to any House entity, the Board 
     should either simplify the clarifying ``example'' contained 
     in this paragraph (e.g., removing the reference to the 
     definition of teacher), or find another example that would be 
     relevant to House employing offices. The Board has amended 
     the proposed language to clarify that the FLSA is made 
     applicable to the legislative branch by the CAA and its 
     substantive regulations, but finds no reason to deviate from 
     the example provided in the DOL regulation regarding this 
     provision.
       825.110(d)
       One commenter suggested that the term ``worked'' is not 
     defined, and suggests including ``met the hours or service 
     requirement.'' The Board agrees that the term ``worked'' is 
     not consistent with the DOL provision and has substituted the 
     phrase ``meets the hours of service requirement'' in the 
     section, as provided in the DOL regulations.
     Section 825.112 Qualifying reasons for leave, general rule.
       825.112(a)(5)
       One commenter stated that the DOL limits ``qualifying 
     exigency'' as determined by regulation of the Secretary (see 
     29 U.S.C. Sec. 2612(a)(1)(e)), and that the Board's proposed 
     regulations do not place any such limitations. The commenter 
     suggested that the Board define what is meant by any 
     ``qualifying exigency.'' The Board has determined that no 
     good cause has been shown to modify the DOL regulation.
       Two commenters suggested adding ``duty'' in between 
     ``covered active'' and ``status'' as shown above in section 
     825.112(a)(5). The Board has made the suggested change.
     Section 825.114 Inpatient Care.
       One commenter noted that ``any period of incapacity'' is 
     defined as an ``inability to work'' but doesn't require 
     medical verification. The commenter suggested adding after 
     ``period of incapacity as defined in section 825.113(b) ``as 
     verified by a medical certification in accordance with 
     section 825.305'' to clarify. The Board finds no good cause 
     to add the suggested language to the provision.
     Section 825.115 Continuing Treatment.
       825.115(a)(5)
       The Board proposed to adopt unchanged the DOL's definitions 
     of ``serious health condition'' and ``incapacity plus 
     treatment.'' One commenter suggested that these definitions 
     as written, while intending to exempt minor ailments from 
     FMLA coverage as legislative history would require, could be 
     argued to cover a three day absence from work combined with a 
     visit to a doctor and round of antibiotics, or an otherwise 
     minor ailment in contravention of the FMLA's intended 
     coverage. The commenter requested that the Board increase the 
     days of incapacity from three to five and further require two 
     visits to a healthcare provider within 30 days of the 
     incapacity to demonstrate ``continuing treatment,'' as 
     opposed to also allowing one visit to a doctor coupled with 
     ``a regimen of continuing treatment.'' (See Sec. 825.115) The 
     commenter believed there to be good cause to change the DOL 
     definitions because legislative branch offices offer generous 
     paid time off and sick leave policies that would more 
     appropriately cover the minor and non-chronic ailments that 
     Congress recognized as outside the statutory protections of 
     the FMLA. The Board finds that no good cause has been shown 
     to deviate from the DOL definitions of ``serious health 
     condition'' or ``incapacity plus treatment.''
     Section 825.120 Leave for pregnancy or birth.
       References in the DOL's regulations to state law in this 
     section and other sections throughout the DOL's regulations 
     have not been adopted by the Board because state law does not 
     apply to the legislative branch.
       Further, in this section and other sections throughout the 
     DOL regulations, any references to spouses who are employed 
     at two different worksites of an employer located more than 
     75 miles from each other have not been adopted by the Board 
     because such scenarios are not applicable to the legislative 
     branch.
       Two commenters suggested deleting the following sentence 
     from section 825.120(a)(3): ``Note, too, that many state 
     pregnancy disability laws specify a period of disability 
     either before or after the birth of a child; such periods 
     would also be considered FMLA leave for a serious health 
     condition of the birth mother, and would not be subject to 
     the combined limit'' because state law does not apply to the 
     legislative branch. Indeed, the commenter notes that the 
     Board, in its preamble to the proposed regulations, agreed 
     that the section should be deleted. If the reasoning for 
     discussing ``state pregnancy disability laws'' is to 
     underscore the point that the birth mother may suffer pre/
     post-birth medical complications that would not be subject to 
     the combined limitation of FMLA leave for spouses, the 
     language earlier in this section, as well as in the following 
     section, (a)(4), clarifies that the serious health condition 
     of the birth mother, either before or after the birth, would 
     independently qualify for FMLA leave. Finally, removal of 
     this language is consistent with the removal of similar 
     references to state law in section 825.121(a)(2) (removing 
     the DOL language that instructs the reader to ``See section 
     825.701 regarding non-FMLA leave which may be available under 
     applicable State laws''). The Board finds good cause to 
     delete this reference to state law, and has deleted the last 
     sentence of section 825.120(a)(3) from its adopted 
     regulations.
     Section 825.121(b) Use of Intermittent and reduced schedule 
         leave.
       One commenter suggested that the reference to section 
     825.601 at the conclusion of this section regarding ``special 
     rules applicable to instructional employees of schools'' is 
     not applicable to House employing offices, and suggested 
     deleting this language. The Board contemplates that if not 
     currently applicable, the term may become applicable to

[[Page H4133]]

     an employing office, and finds that good cause to delete this 
     language from its regulations has not been shown.
     Section 825.122(b) Covered servicemember spouse.
       Commenters noted that the definition of ``spouse'' 
     contained in the proposed regulation deviates from the 
     corresponding DOL regulation, and the Board has not shown 
     good cause for such deviation. As noted previously, the Board 
     hereby adopts DOL's current definition of spouse.
     Section 825.122(d)(2) Physical or mental disability.
       One commenter suggested replacing ``define these terms'' in 
     section 825.122(d)(2) with ``provide guidance for these 
     terms.'' As a basis, the commenter noted that the EEOC's ADA 
     regulations do not define terms related to physical or mental 
     disabilities but merely provide guidance in interpreting 
     those terms. See 161 Cong. Rec. S6707. The Board finds good 
     cause to deviate from DOL's language with regard to this 
     provision, and replaces ``define these terms'' with ``provide 
     guidance for these terms.''
     Section 825.125(a)(2)-(3)
       One commenter said that ``any other person'' is overly 
     broad and expands the statutory definition in 2[sic] U.S.C. 
     Sec. 2611(6), and suggested that the Board use the statutory 
     definition with a clarification. The Board finds that its 
     regulation mirrors the DOL's definition, and that no good 
     cause to modify the regulation has been shown.

     SUBPART B--EMPLOYEE LEAVE ENTITLEMENTS UNDER THE FAMILY AND 
                   MEDICAL LEAVE ACT

     Section 825.200 Amount of Leave.
       825.200(a)(5)
       One commenter suggested adding ``covered'' between ``order 
     to'' and ``active duty'' in section 825.200(a)(5). The Board 
     has made the suggested change.
       825.200(h)
       One commenter suggested that since the House no longer has 
     a school, the example of a school closing two weeks for the 
     Christmas/New Year Holiday or for a summer vacation is not 
     helpful when discussing temporary cessation of business 
     activities. The Board finds that no good cause has been shown 
     to modify the DOL regulation.
     Section 825.202 Intermittent leave or reduced leave schedule.
       825.202(b)
       One commenter requested additional guidance regarding the 
     use of intermittent leave claiming the terms ``medical 
     necessity'' and ``to provide care or psychological comfort to 
     a covered family member with a serious health condition'' are 
     too vague. As noted previously, the Board declines to modify 
     DOL's regulations to resolve potential ambiguities.
       825.202(d)
       One commenter suggested that ``qualifying exigency'' be 
     specifically defined (as discussed in section 825.112 above). 
     The Board has determined that no good cause has been shown to 
     modify the DOL regulation, and the Board will not modify 
     DOL's regulations to resolve potential ambiguities.
     Section 825.203 Scheduling of intermittent or reduced 
         schedule leave.
       825.203
       One commenter suggested that section 825.203 addresses only 
     situations where intermittent leave is ``medically 
     necessary'' or ``because of a qualifying exigency'' and does 
     not address the circumstances outlined in section 825.202. 
     Further, the commenter suggests that the proposed regulation 
     be rewritten to address each circumstance proposed in section 
     825.202, and to provide ``objective specific notice 
     requirements an employee must provide to an employing 
     office.'' The commenter also suggested that section 825.203 
     be rewritten to consider each of the factors enumerated in 
     proposed regulation section 825.303, particularly section 
     303(c) ``Complying with Employing Office Policies,'' or 
     minimally, that section 825.203 should have a 24 hour notice 
     period requirement, absent exceptional circumstances, to 
     ``avoid situations where an employee attempts to use 
     intermittent leave to avoid working additional duty--placing 
     supervisors in the position of questioning the need for leave 
     and staffing the post.'' The Board has determined that no 
     good cause has been shown to modify the current DOL 
     regulation.
     Section 825.205 Increments of FMLA leave for intermittent or 
         reduced schedule leave.
       825.205(a)(2)
       One commenter suggested that the examples given that 
     include reference to a flight attendant or a railroad 
     conductor scheduled to work aboard an airplane or train, or a 
     laboratory employee are not useful because there is no 
     equivalent position available in the House of 
     Representatives. The commenter suggested using examples that 
     would occur in the House workplace. Also, given the statement 
     in the definitions section of the Preamble that all 
     references to ``airline flight crew employee'' have been 
     deleted, the reference to ``flight attendant'' should be 
     deleted because of the similarity between these descriptions. 
     The examples given are for illustrative purposes only. The 
     Board has determined that no good cause has been shown to 
     modify the current DOL regulation.
     Section 825.206 Interaction with the FLSA, as made applicable 
         by the CAA.
       Although the DOL amended its FMLA regulations to add 
     computer employees to the list of exempt employees who do not 
     lose their FLSA exempt status despite being provided unpaid 
     FMLA leave, the Board finds good cause not to include 
     ``computer employees'' to the list of employees who may 
     qualify as exempt from the overtime and minimum wage 
     requirements of the FLSA. The Board's September 29, 2004 
     Proposed Regulations implementing exemptions from the 
     overtime pay requirements under the Fair Labor Standards Act 
     of 1938 (FLSA) were never enacted into law, and so the 
     existing OOC FLSA regulations do not include exemptions for 
     computer employees. Therefore, the OOC's adopted FMLA 
     regulations do not include these employees in this section.
       One commenter suggested that the Board reference OOC's FLSA 
     regulations concerning ``employees exempt under a salary and 
     duties test'' rather than mention each category of employee 
     subject to the exemption and specifically exclude computer 
     employees. The Board has determined that there is good cause 
     to modify the provision to exclude reference to DOL's 
     specific categories of exemption because that reference 
     conflicts with the Board's 1996 FLSA regulations.
       825.206(c)
       One commenter suggested that the Board delete ``such as 
     leave in excess of 12 weeks in a year'' after ``for leave 
     which is more generous than provided by the FMLA, as made 
     applicable by the CAA.'' The Board has made the requested 
     change making the Board's regulation the same as the current 
     DOL regulation.
       Two commenters suggested that this section refers to ``. . 
     . leave to care for a grandparent or for a medical condition 
     which does not qualify as a serious health condition,'' but 
     the language of the corresponding DOL regulation reads ``. . 
     . leave to care for a grandparent or for a medical condition 
     which does not qualify as a serious health condition or 
     serious injury or illness'' (emphasis supplied). The 
     commenters suggested that it is unclear why there is a 
     variation between the language of the DOL regulations and the 
     proposed amendments to the Board's regulations. One commenter 
     noted that the April 19, 1996 FMLA regulations issued by the 
     Board also inexplicably contain this variation in the 
     language from the DOL regulations. Further, the broader 
     description as stated in the DOL regulations more fully 
     captures the scope of the definition of a ``serious health 
     condition.'' The commenters suggested that the Board revise 
     the language in this section to make it consistent with the 
     DOL regulations. The Board has made the suggested change 
     making the Board's regulation the same as the current DOL 
     regulation.
       Further, any references in this section and other sections 
     throughout the DOL regulations which place limitations on an 
     employee who works for an employing office with fewer than 50 
     employees have not been adopted by the Board because such 
     limitations do not apply to the legislative branch. See 
     825.111.
     Section 825.207 Substitution of paid leave.
       825.207(a)
       A commenter suggested that the phrase ``will remain 
     entitled to all paid leave which is earned or accrued'' in 
     section 825.207(b) is not clear when an employee takes unpaid 
     leave. The commenter noted that many employing offices' 
     policies do not permit paid leave to be earned or accrued 
     when an employee takes unpaid leave, and suggested that the 
     following language be added to section 825.207(a): ``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 accrue leave 
     in accordance with the employing offices[sic] stated 
     policies.'' Section 825.207(a) and (b) reference the 
     requirements of an employer's leave plan, and the Board finds 
     no good cause to modify the regulation.
       825.207(f)
       Under the FLSA, an employing office always has the right to 
     cash out an employee's FLSA compensatory time or to require 
     the employee to use the time. Therefore, if an employee 
     requests and is permitted to use accrued FLSA compensatory 
     time to receive pay for time taken off for an FMLA reason, or 
     if the employing office requires such use pursuant to the 
     FLSA, the time taken may be counted against the employee's 
     FMLA leave entitlement.
       The Board sought comments from interested parties as to 
     whether such a provision is appropriate for the legislative 
     branch.
       One commenter suggested that the proposed language is 
     appropriate given the fact that there is no reason to treat 
     compensatory time differently than paid annual or sick leave 
     for purposes of substituting that time for unpaid FMLA leave.
       One commenter suggested substituting ``as applied by 
     Sec. 1313 of the Congressional Accountability Act'' for ``as 
     made applicable by the CAA'' in section 825.207(f). The Board 
     has determined that the current language sufficiently 
     underscores the fact that the CAA, and not the FLSA, applies 
     to employing offices.
       A commenter suggested that under the proposed regulation, 
     the payment of compensatory time is not clear because some 
     employing offices provide compensatory time that is not 
     covered/authorized under the FLSA, and suggested the 
     regulation state ``FLSA'' prior to each reference to FLSA 
     compensatory time. The commenter is correct that in some 
     cases employing offices

[[Page H4134]]

     may grant ``time off awards'' or other non-monetary 
     entitlements to time away from the workplace that do not 
     accrue under the FLSA. However, these grants of time do not 
     necessarily entitle employees to pay, and may not be ``cashed 
     out'' for wages as this section instructs. The section 
     specifically covers an employee's use of accrued compensatory 
     time that was earned in lieu of overtime pay ``under the 
     FLSA,'' and the Board finds no good cause to modify the 
     provision.
     Section 825.209 Maintenance of employee benefits.
       The Board has changed what it believes to be a 
     typographical error in the DOL regulations and cross 
     references this section with section 825.102 and not section 
     825.800 when referring to the definition of ``group health 
     plan.''
     Section 825.215 Equivalent position.
       Any references from the DOL regulations in this section and 
     other sections to the Employee Retirement Income Security Act 
     (ERISA) have not been adopted by the Board because ERISA does 
     not apply to the legislative branch.
     Section 825.216 Limitations on employee's right to 
         reinstatement.
       This section clarifies that an employee has no greater 
     employment rights than if the employee had been continually 
     employed during the FMLA leave period. The Board questioned 
     whether the following language in section 825.216(a)(3) of 
     the DOL regulations applied to the legislative branch: ``On 
     the other hand, if an employee was hired to perform work on a 
     contract, and after that contract period the contract was 
     awarded to another contractor, the successor contractor may 
     be required to restore the employee if it is a successor 
     employer. See section 825.107.''
       The Board proposed that the OOC regulations contain the 
     following language and requested comments from interested 
     parties, especially with respect to caucus or committee 
     employees: ``On the other hand, if an employee was hired to 
     perform work for one employing office for a project for a 
     specific time period, and after that time period has ended, 
     the same employee was assigned to work at another employing 
     office on the same project, the successor employing office 
     may be required to restore the employee if it is a successor 
     employing office.''
       Two commenters suggested deleting section 825.216(a)(3) 
     because it refers to the concept of successor liability, a 
     concept they say is inapplicable, and cross-references 
     Sec. 825.107 which has been ``reserved'' by the Board in 
     these proposed regulations.
       The concept of ``successor in interest'' is developed in 
     section 825.107 of the Secretary of Labor's regulations. The 
     regulations state that a determination of whether a 
     ``successor in interest'' exists is determined by the 
     ``entire circumstances * * * viewed in their totality.'' The 
     regulation also states: ``The factors to be considered 
     include: (1) Substantial continuity of the same business 
     operations; (2) Use of the same plant; (3) Continuity of the 
     work force; (4) Similarity of jobs and working conditions; 
     (5) Similarity of supervisory personnel; (6) Similarity of 
     machinery, equipment, and production methods; (7) Similarity 
     of products or services; and (8) The ability of the 
     predecessor to provide relief.'' Many of the factors listed 
     above are inapplicable to the legislative branch. Thus, 
     section 825.107 remains reserved in these regulations. 
     However, situations may arise where the concept of 
     successorship will be relevant. For example, if committee 
     jurisdictions are restructured, it may be necessary to 
     determine which, if any, of the surviving committees is the 
     ``successor in interest'' to the former committee. Thus, 
     determining the successor may be important in determining 
     whether a remaining committee must grant leave for an 
     eligible employee who provided adequate notice to the former 
     committee, or must continue leave begun while an employee was 
     employed by the former committee. Therefore, a determination 
     as to successorship may yet be decided. As such, the Board 
     finds no good cause to modify the DOL regulation, but has 
     deleted the cross reference to section 825.107 because it is 
     reserved in these regulations.
       825.216(e)
       This regulation prohibits an employing office that does not 
     have a policy regarding outside income from denying benefits 
     to which an employee is entitled under FMLA, unless 
     fraudulently obtained. One commenter suggested that the 
     Board's proposed language ignores the fact that there are 
     statutory and ethics rules governing the outside employment 
     of all House employees. See, e.g., House Ethics Manual (2008 
     Ed.) 185-246. To address this issue, the commenter suggested 
     that the Board amend the second sentence of this section to 
     include the following italicized language:
       ``An employing office which does not have such a policy may 
     not deny benefits to which an employee is entitled under 
     FMLA, as made applicable by the CAA, on this basis unless the 
     FMLA leave was fraudulently obtained as in paragraph (d) of 
     this section or the employee's outside or supplemental 
     employment violates applicable law, regulation or House 
     Rule.''
       The Board has determined that there is no good cause to 
     modify the rule as suggested because the Board's proposed 
     language is the same as the DOL regulation, and the term 
     ``policy'' should be broad enough to include ``applicable 
     law, regulation, or rule'' as it is applied to the employing 
     offices, including the House, should there be such a rule.
     Section 825.217 Key employee, general rule.
       For the reasons already stated, the Board finds good cause 
     to modify the DOL changes to section 825.217(b) which exempt 
     computer employees from the minimum wage and overtime 
     requirements of the FLSA. As the language in the FLSA is 
     inconsistent with the 1996 OOC FLSA regulations, the Board 
     believes that this exemption should not be included.
       825.217(b)
       One commenter believes the regulations should reference 
     ``OOC's FLSA regulations concerning employees who are exempt 
     under the salary and duties test'' instead of listing the 
     exemption categories (professional, executive, 
     administrative), and specifically excluding computer 
     employees. As the salary and duties test is made applicable 
     by the CAA, the Board finds good cause to delete the 
     parenthetical list of exemptions as well as the superfluous 
     ``end parentheses'' typographical error as suggested.
     Section 825.220 Protection for employees who request leave or 
         otherwise assert FMLA rights.
       825.220(a)(2)
       This section protects employees who exercise their rights 
     under the law. One commenter suggested that section 
     825.220(a) is confusing and not consistent with 29 U.S.C. 
     Sec. 2615, as adopted by the CAA, and stated that since 
     section 825.220(a)(1-3) merely restates the law, they should 
     be deleted as duplicative. In addition, by adding 
     ``complaining about'' in section 825.220(2), a cause of 
     action not otherwise available under the CAA is created. The 
     Board has determined that no good cause has been shown to 
     modify the DOL regulation, with two minor deviations 
     (``person v. covered employee'' and ``covered employee v. 
     eligible employee'') which are terms that are substituted to 
     make the regulation consistent with the CAA terminology. 
     While the term ``complaining'' is not found in section 207 of 
     the CAA, it is the language used by the DOL in its anti-
     retaliation regulation (See 29 C.F.R. Sec. 825.220). Covered 
     employees are covered by the anti-retaliation prohibition in 
     both the CAA and the FMLA.
       825.220(b)
       Two commenters proposed removing the sentence ``An 
     employing office may be liable for compensation and benefits 
     lost by reason of the violation, for other actual monetary 
     losses sustained as a direct result of the violation, and for 
     appropriate equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See section 825.400(c).'' One commenter 
     suggested that the quoted language misstates the law as it 
     applies to the CAA because an employing office could not be 
     liable for compensation and benefits lost by reason of the 
     violation and for other actual monetary losses sustained. See 
     29 U.S.C. Sec. 2617(a)(1)(A)(i). The commenter suggested that 
     only one type of recovery is lawfully available, as an 
     employee is entitled to either ``any wages, salary, employing 
     benefits, or other compensation denied or lost to such 
     employee by reason of the violation'' or when ``wages, 
     salary, employing benefits, or other compensation have not 
     been denied or lost to the employee, any actual monetary 
     losses sustained by the employee as a direct result of the 
     violation.'' In other words, an employee is not entitled to 
     both compensation and other actual monetary losses sustained. 
     Additionally, the commenter suggested removing the cross-
     reference to section 825.400(c) because it does not outline 
     what remedies are available for violations of the FMLA, as 
     made applicable by the CAA; rather, proposed regulation 
     section 825.400(c) merely states where aggrieved covered 
     employees can find the OOC's complaint procedures. Another 
     commenter proposed removing subsection (b) because it is 
     inconsistent with 2 U.S.C. Sec. 1361(d)(1) regarding 
     exclusive procedures under the CAA, attempts to ``make 
     applicable additional causes of action'' by use of the term 
     ``manipulation,'' and expands ``the scope of rights . . . 
     under the FMLA and the CAA.''
       The Board finds that no good cause has been shown to modify 
     or delete the DOL regulation because the CAA applies section 
     2617(a)(1)(A)(i) of the FMLA, and the Board's regulation is 
     the same as the DOL regulation applying that section. While 
     we recognize that the commenters' arguments may have merit, 
     it would not be appropriate for the Board to make that 
     determination as a part of its rulemaking authority under the 
     CAA. The Board finds that it is appropriate to reserve 
     section 825.220(b)(1) regarding numerosity.
       With respect to a commenter's suggestion that the Board 
     remove the cross-reference to section 825.400(c) in its 
     proposed regulations because it does not outline what 
     remedies are available for violations of the FMLA but merely 
     states where an aggrieved covered employee can find the OOC's 
     complaint procedures, the Board did revisit this section and 
     add the DOL's remedies section 825.400(c) to its regulations, 
     and moved the reference to its complaint procedures to 
     subsection (d).
       825.220(d)
       Except for the paragraph related to settlements, as noted 
     below, the Board proposed to adopt the DOL amendments with 
     respect to this section. Section 825.220 provides protection 
     for employees who request leave or otherwise assert FMLA 
     rights and includes new language discussing remedies when an 
     employing office interferes with an employee's rights under 
     the FMLA. This section further

[[Page H4135]]

     clarifies that the prohibition against interference includes 
     prohibitions against retaliation as well as discrimination. 
     The Board finds that there is good cause to modify DOL's 
     language in paragraph (d) of this section.
       Sections 1414 and 1415 of the CAA govern awards and 
     settlements made as a result of parties proceeding through an 
     OOC process. While the Board recognizes that parties will now 
     have the right to settle or release FMLA claims without the 
     approval of the OOC or a court, parties seeking to release 
     claims which were raised in an OOC process pursuant to CAA 
     sections 1414 and 1415 must still comply with those 
     provisions. Therefore, the Board proposed to insert the 
     following language: ``Except for settlement agreements 
     covered by sections 1414 and/or 1415 of the Congressional 
     Accountability Act, this does not prevent the settlement or 
     release of FMLA claims by employees based on past employing 
     office conduct without the approval of the Office of 
     Compliance or a court.''
       One commenter noted that an employee's acceptance of a 
     light duty assignment or right to restoration beyond the 12 
     month FMLA year may be terms of an approved settlement 
     agreement, and ``should not be restricted in considering 
     prospective rights in a settlement of an FMLA claim.'' The 
     Board finds no good cause to modify the regulation.
       One commenter agreed that the regulation should be amended 
     to clarify that employing offices are permitted to settle 
     FMLA claims without OOC or court approval unless the 
     settlement agreement is covered by section 1414 or 1415 of 
     the CAA. The commenter further suggested that the phrase 
     ``based on past employing office conduct'' found in the third 
     sentence of the section hints of presumptive inappropriate 
     conduct by employing offices and that the phrase is 
     unnecessary to achieve the goal of this sentence. The 
     commenter suggested deleting it. The Board has determined 
     that there is no good cause shown to modify the DOL 
     regulation.
       825.220(e)
       Two commenters suggested that only ``covered employees'' 
     and ``employees,'' as defined in sections 101(3) and (4) of 
     the CAA, and not ``individuals,'' are protected by the CAA; 
     therefore (e) should be deleted. The Board has determined 
     that good cause has been shown to modify the DOL regulation 
     and delete the term ``individuals'' from section 825.220(e). 
     The 1996 Board regulations do not reference the term 
     ``individuals.'' The term ``Individuals'' was added to the 
     proposed regulations to be consistent with the DOL 
     regulations. However, the Board wants to clarify that only 
     ``covered employees,'' as defined by the CAA, are entitled to 
     FMLA protection under the CAA.
     SUBPART C--EMPLOYEE AND EMPLOYING OFFICE RIGHTS AND 
         OBLIGATIONS UNDER THE FMLA, AS MADE APPLICABLE BY THE 
         CAA.
     Section 825.300 Employing office notice requirements.
       The Board follows the DOL regulations insofar as they 
     consolidate the employing office notice requirements from 
     sections 825.300, 825.301, 825.110 and 825.208 into one 
     comprehensive section addressing an employing office's notice 
     obligations. However, the Board finds good cause not to adopt 
     the DOL regulations in section 825.300(a) General notice, but 
     instead to keep the requirements found in the current OOC 
     regulations under section 825.301(a). The DOL regulations, at 
     section 825.300(a), address the requirement that employing 
     offices post a notice on employee rights and responsibilities 
     under the law and the civil monetary penalty provision in the 
     law for employing offices who willfully violate the posting 
     requirement. In 1995, while developing the current FMLA 
     regulations, the OOC Board determined that ``while the CAA 
     incorporates certain specific sections of the FMLA, the CAA 
     explicitly did not incorporate the notice posting and 
     recordkeeping requirements of sections 106(b) and 109 of the 
     FMLA. The CAA has not incorporated the notice posting and 
     recordkeeping requirements of the FMLA, and the Board will 
     not do so.'' As a result, we find no authority that would 
     require employing offices covered under the CAA to provide 
     notice postings of employees' FMLA rights in the workplace. 
     See November 28, 1995 OOC Notice of Proposed Rulemaking 
     S17628. As to the remainder of the paragraphs in this 
     section, the Board finds no good cause to depart from the 
     amendments adopted by the DOL.
       The Board adopts section 825.300 regarding the eligibility 
     notice (825.300(b)); the rights and responsibility notice 
     (825.300(c)); the designation notice (825.300(d)); and the 
     consequences of failing to provide notice (825.300(e)).
       (b) Eligibility notice.
       The Board adopts the DOL amendments with respect to this 
     section. The Board also adopts the DOL regulations 
     consolidating existing eligibility notice requirements in 
     current sections 825.110 and 825.301 into one section, 
     section 825.300(b) of the OOC regulations, to strengthen and 
     clarify them. For example, section 825.300(b)(1) of the DOL 
     regulations requires an employer to advise an employee of his 
     or her eligibility status when the employee requests leave 
     under the FMLA. The regulations extend the time frame for an 
     employer to respond to an employee's request for FMLA leave 
     from two business days to five business days. Further, the 
     DOL regulations in section 825.300(b)(2) specify what 
     information an employer must convey to an employee as to 
     eligibility status. Analogous to the DOL's regulations, the 
     Board adopts in its regulations that an employing office must 
     provide reasons to an employee if he or she is not eligible 
     for FMLA leave, as do the DOL regulations. The regulations 
     limit that notification to any one of the potential reasons 
     why an employee fails to meet the eligibility requirements.
       One commenter supported the OOC's reorganization and 
     consolidation of its notice provisions to better align with 
     DOL's regulations. In particular, the commenter welcomed the 
     extension of time from 2 to 5 business days to provide an 
     employee the required eligibility notice in response to the 
     employee's request for FMLA leave.
       Further, the OOC regulations require employing offices to 
     include in the eligibility notice an explanation of 
     conditions applicable to the use of paid leave that runs 
     concurrently with unpaid FMLA leave. While this requirement 
     is in the Board's 1996 regulations, it is expanded to require 
     that employing offices also notify employees of their 
     continuing entitlement to take unpaid FMLA leave if they do 
     not comply with an employing office's required conditions for 
     use of paid leave.
       (c) Rights and responsibilities notice.
       The Board is following the DOL regulations separating the 
     notice of rights and responsibilities from the notice of 
     eligibility. Accordingly, if the employee is eligible for 
     FMLA leave, section 825.300(c) of the OOC regulations require 
     the employing office to provide the employee with specific 
     notice of his or her rights and obligations under the law and 
     the consequences of failing to meet those obligations.
       To simplify the timing of the notice of rights and 
     responsibilities and to avoid unnecessary administrative 
     burden on employing offices, section 825.300(c)(1) of the 
     Board's regulations require employing offices to provide this 
     notice to employees at the same time they provide the 
     eligibility notice. Additionally, if the information in the 
     notice of rights and responsibilities changes, section 
     825.300(c) requires the employing office to notify the 
     employee of any changes within five business days of the 
     first notice of the need for FMLA leave subsequent to any 
     change. This timing requirement will ensure that employees 
     receive timely notice of the expectations and obligations 
     associated with their FMLA leave each leave year and also 
     receive prompt notice of any change in those rights or 
     responsibilities when leave is needed during the leave year.
       In this section, employing offices are required to notify 
     employees of the method used for establishing the 12-month 
     period for FMLA entitlement, or, in the case of military 
     caregiver leave, the start date of the ``single 12-month 
     period.''
       Employing offices are not, however, required to provide the 
     certification form with the notice of rights and 
     responsibilities. Notice of any changes in the rights and 
     responsibilities notice must be provided within five business 
     days of the first notice of an employee's need for leave 
     subsequent to any change. Electronic distribution of the 
     notice of rights and responsibilities is allowed, so long as 
     the employing office can demonstrate that the employee (who 
     may already be on leave and who may not have access to 
     employing office-provided computers) has access to the 
     information electronically.
       825.300(b)(2)
       Two commenters suggested deleting the sentence ``The 
     employing office is obligated to translate this notice in any 
     situation in which it is obligated to do so in 
     825.300(a)(4)'' because section 825.300(a)(4) does not exist 
     in the regulations. The Board has made the suggested change 
     because the referenced section does not exist in its 
     regulations.
       One commenter suggested that the OOC provide a Spanish 
     language translation of its prototype forms and notices, as 
     Spanish is the most widely spoken second language in the 
     United States. The commenter suggested that because many 
     Congressional employing offices do not have in-house 
     capability to translate notices, uniform prototype notices in 
     Spanish will encourage consistency and assist in compliance 
     with the FMLA. The Board welcomes the suggestion, and will 
     provide a Spanish language translation of its forms.
       825.300(c)(ii)
       One commenter suggested adding ``covered'' between 
     ``qualifying exigency arising out of'' and ``active duty.'' 
     The Board has made the suggested change.
       825.300(c)(6)
       One commenter requested that the Board provide more 
     guidance concerning what methods are sufficient to assume 
     and/or demonstrate receipt of notices electronically sent to 
     employees. The commenter suggested that court decisions 
     illustrate uncertainty in this area. The Board has determined 
     that no good cause has been shown to modify the DOL 
     regulations.
       (d) Designation notice.
       The Board adopts the DOL amendments with respect to this 
     requirement. Section 825.300(d) outlines the requirements of 
     the designation notice an employing office must provide to an 
     employee. Once the employing office has enough information to 
     determine whether the leave qualifies as FMLA leave, the 
     employing office must notify the employee within five 
     business days of making the determination whether the leave 
     has or has not been designated as FMLA leave. This is an 
     increase from the two-day time frame in the current OOC 
     regulations. Further, only one designation notice is required 
     for

[[Page H4136]]

     each FMLA-qualifying reason per leave year, regardless of 
     whether the leave is taken as a continuous block of leave or 
     on an intermittent or reduced leave schedule basis.
       Further, the employing office must inform the employee of 
     the number of hours that would be designated as FMLA leave, 
     only upon employee request and no more often than every 30 
     days if FMLA leave was taken during that period. To the 
     extent it is not possible to provide such information (such 
     as in the case of unforeseeable intermittent leave), the 
     employing office is required to provide such information to 
     the employee every 30 days if the employee took leave during 
     the 30-day period. The employing office is permitted to 
     notify the employee of the hours counted against the FMLA 
     leave entitlement orally and follow up with written 
     notification on a pay stub at the next payday (unless the 
     next payday is in less than one week, in which case the 
     notice must be no later than the subsequent payday). If the 
     employing office requires that paid leave be substituted for 
     unpaid leave, or that paid leave taken under an existing 
     leave plan be counted as FMLA leave, the employing office 
     must inform the employee of this designation at the time the 
     leave is designated as FMLA leave.
       Although the designation notice has to be in writing, it 
     may be in any form, including a notation on the employee's 
     pay stub. If the leave is not designated as FMLA leave, the 
     notice to the employee may be in the form of a simple written 
     statement. Employing offices can provide an employee with 
     both the eligibility and designation notice at the same time 
     in cases where the employing office has adequate information 
     to designate leave as FMLA leave when an employee requests 
     the leave.
       Employing offices must provide written notice of any 
     requirement for a fitness-for-duty certification, including 
     whether the fitness-for-duty certification must address the 
     employee's ability to perform the essential functions of the 
     employee's position and, if so, to provide a list of the 
     essential functions of the employee's position with the 
     designation notice. If the employee handbook or other written 
     documents clearly provides that a fitness-for-duty 
     certificate will be required, written notice is not required, 
     but oral notice must be provided.
       Finally, the employing office is required to notify the 
     employee if the information provided in the designation 
     notice changes. For example, if an employee exhausts his or 
     her FMLA leave entitlement and the leave will no longer be 
     designated as FMLA leave, the employing office must provide 
     the employee with written notice of this change consistent 
     with this section.
       825.300(d)(4)
       One commenter would like clarification that electronic 
     receipt of the ``designation notices'' is permitted in 
     addition to the notice of rights and responsibilities. The 
     Board finds good cause to clarify that the designation notice 
     may be distributed electronically, so long as it otherwise 
     meets the requirements of section 825.300(d)(4) and the 
     employing office can demonstrate that the employee (who may 
     already be on leave and who may not have access to employing 
     office-provided computers) has access to the information 
     electronically.
       825.300(e)
       The Board proposed to adopt the DOL amendments with respect 
     to this section entitled ``Consequences of failing to provide 
     notice.'' Section 825.300(e) clarifies that failure to comply 
     with the notice requirements set forth in this section could 
     constitute interference with, restraint of, or denial of the 
     use of FMLA leave. The Board proposed that the following 
     language be included in the OOC regulations:
       Consequences of failing to provide notice. Failure to 
     follow the notice requirements set forth in this section may 
     constitute an interference with, restraint, or denial of the 
     exercise of an employee's FMLA rights. An employing office 
     may be liable for compensation and benefits lost by reason of 
     the violation, for other actual monetary losses sustained as 
     a direct result of the violation, and for appropriate 
     equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See section 825.400(c).
       One commenter asserted that the proposed regulation section 
     825.300(e) derives from section 109 of the FMLA, and 
     suggested deleting the entire section because the Board had 
     proposed to establish a remedy for a right that does not 
     exist under the FMLA, as applied by the CAA. The CAA 
     incorporates the ``rights and protections established by 
     section 101 through 105'' of the FMLA and incorporates 
     remedies ``as would be appropriate if awarded under'' section 
     107(a)(1) of the FMLA. See 2 U.S.C. Sec. Sec. 1312(a)(1), 
     (b). The Board agrees that Section 109 of the FMLA is not 
     incorporated in the CAA, and that no legal authority exists 
     for a regulation that incorporates requirements and penalties 
     based on section 109 of the FMLA. However, the Board does not 
     agree with the commenter's assertion that the remedies for 
     section 825.300(e) derive from Section 109 of the FMLA, and 
     finds that no good cause has been shown to modify the DOL 
     regulation.
     Section 825.301 Designation of FMLA leave.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. Section 825.301 addresses an employing 
     office's obligations regarding timely designation of leave as 
     FMLA-qualifying and reiterates the requirement to notify the 
     employee of the designation within five business days. Among 
     other things, this section requires that the employing 
     office's designation decision be based only on information 
     received from the employee or the employee's representative 
     and also provides that, if the employing office does not have 
     sufficient information about the employee's reason for leave, 
     the employing office should inquire further of the employee 
     or of the employee's spokesperson.
       One commenter suggested that the second sentence of 
     subsection (e) regarding categories of potential remedies 
     directs the reader to ``See 825.400(c),'' as does the DOL 
     regulation. However, that section in the Board's proposed 
     regulations simply references the regulations of the Office 
     of Compliance, and suggests the reference be deleted. The 
     Board agrees with the comment, and has modified the language 
     of section 825.400 to include the potential remedies.
       Another commenter suggested deleting the second sentence in 
     section 825.301(e) for the same reasons as stated under 
     section 825.220, above, that under the CAA, an employee is 
     not entitled to both compensation and other actual monetary 
     losses sustained. As discussed previously, the Board does not 
     agree with the assertion that there is no legal authority for 
     the remedies provided in section 825.301(e), and has 
     determined that no good cause has been shown to modify the 
     DOL regulation.
     Section 825.302 Employee notice requirements for foreseeable 
         FMLA leave.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. In general, section 825.302 addresses an 
     employee's obligation to provide notice of the need for 
     foreseeable FMLA leave. This includes requiring an employee 
     to give at least 30 days' notice when the need for FMLA leave 
     is foreseeable at least 30 days in advance or ``as soon as 
     practicable'' if leave is foreseeable but 30 days' notice is 
     not practicable. In such cases, employees must respond to 
     requests from employing offices to explain why it was not 
     possible to give 30 days' notice. Further, the language in 
     this section defines ``as soon as practicable'' to be ``as 
     soon as both possible and practical, taking into account all 
     of the facts and circumstances in the individual case.'' This 
     is a change from defining ``as soon as practicable'' as 
     ``ordinarily within one or two business days.''
       Further, when an employee seeks leave for the first time 
     for a FMLA-qualifying reason, the employee need not expressly 
     assert rights under the FMLA, as made applicable by the CAA, 
     or even mention the FMLA but must provide: sufficient 
     information that indicates that a condition renders the 
     employee unable to perform the functions of the job, or if 
     the leave is for a family member, that the condition renders 
     the family member unable to perform daily activities; the 
     anticipated duration of the absence; and whether the employee 
     or the employee's family member intends to visit a health 
     care provider or has a condition for which the employee or 
     the employee's family member is under the continuing care of 
     a health care provider. The regulations set forth the types 
     of information that an employee may have to provide in order 
     to put an employing office on notice of the employee's need 
     for FMLA-protected leave. Rather than establish a list of 
     information that must be provided in all cases, the 
     regulations provide additional guidance to employees so that 
     they would know what information to provide to their 
     employing offices. The nature of the information necessary to 
     put the employing office on notice of the need for FMLA leave 
     will vary depending on the circumstances.
       Employees seeking leave for previously certified FMLA leave 
     must inform the employing office that the leave is for a 
     condition, covered servicemember's serious injury or illness, 
     or qualifying exigency that was previously certified or for 
     which the employee has previously taken FMLA leave.
       While an employee must still comply with the employing 
     office's usual notice and procedural requirements for calling 
     in absences and requesting leave, under the new regulations, 
     language stating that an employing office cannot delay or 
     deny FMLA leave if an employee fails to follow such 
     procedures has been deleted. However, employing offices may 
     need to inquire further to determine for which reason the 
     leave is being taken, and employees will be required to 
     respond to such inquiries.
       Additionally, the regulations make clear that the 
     requirement that an employee and employing office attempt to 
     work out a schedule without unduly disrupting the employing 
     office's operations applies only to military caregiver leave. 
     It does not apply to qualifying exigency leave.
       825.302 (g)
       Regarding a waiver of notice requirements, one commenter 
     suggested replacing the reference ``See 825.304'' with the 
     more specific reference ``See 825.304(e).'' The Board 
     understands that such a reference would be more direct, but 
     as such would have limited context. Therefore, the Board 
     finds that no good cause has been shown to modify the DOL 
     regulation.
     Section 825.303 Employee notice requirements for 
         unforeseeable FMLA leave.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. Section 825.303 addresses an employee's 
     obligation to provide notice when the need for FMLA leave is 
     unforeseeable. Section 825.303 retains the current standard 
     that employees must provide notice of their need for 
     unforeseeable leave ``as soon as practicable under

[[Page H4137]]

     the facts and circumstances of the particular case,'' but 
     instead of expecting employees to give notice ``within no 
     more than one or two working days of learning of the need for 
     leave,'' in ``unusual circumstances,'' notice should be 
     provided within the time prescribed by the employing office's 
     usual and customary notice requirements applicable to such 
     leave. Section 825.303 also retains the current standard that 
     employees need not assert their rights under the FMLA or even 
     mention the FMLA to put employing offices on notice of the 
     need for unforeseeable FMLA leave, but adds the same language 
     used in proposed section 825.302 clarifying what information 
     must be provided in order to give sufficient notice to the 
     employing office of the need for FMLA leave. New regulations 
     in section 825.303 add that the employee has an obligation to 
     respond to an employing office's questions designed to 
     determine whether leave is FMLA-qualifying, explaining that 
     calling in ``sick,'' without providing additional 
     information, would not be sufficient notice.
     Section 825.304 Employee failure to provide notice.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. Section 825.304 follows the DOL's 
     reorganization of the rules that are applicable to leave 
     foreseeable at least 30 days in advance, leave foreseeable 
     less than 30 days in advance, and unforeseeable leave. This 
     section retains language that FMLA leave cannot be delayed 
     due to lack of required employee notice if the employing 
     office has not complied with its notice requirements.
       One commenter suggested deleting or amending the sentence 
     ``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. 
     Sec. 1381(h)(2)) by the Office of Compliance to the employing 
     office in a manner suitable for posting'' because posting is 
     merely one way in which an employing office could provide 
     employees with actual notice of the FMLA's notice 
     requirements. Another commenter stated that since the FMLA's 
     posting requirements do not apply to congressional employing 
     offices, the Board has good cause to clarify that an 
     employing office can also meet its notice requirements by 
     distributing a written FMLA policy to employees, or including 
     an FMLA policy in an employee handbook. The regulation merely 
     suggests a method to provide notice, but does not provide 
     that it is the only method. Therefore, the Board has 
     determined that good cause has not been shown to modify the 
     DOL regulation.
     Section 825.305 Certification, general rule.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. Under the FMLA, as applied under the CAA, 
     employing offices are permitted to require that employees 
     provide a certification from their health care provider (or 
     their family member's health care provider, as appropriate) 
     to support the need for leave due to a serious health 
     condition. Section 825.305 sets forth the general rules 
     governing employing office requests for medical certification 
     to substantiate an employee's need for FMLA leave due to a 
     serious health condition. Military family leave provisions 
     have been added to permit employing offices to require 
     employees to provide a certification in the case of leave 
     taken for a qualifying exigency or to care for a covered 
     servicemember with a serious injury or illness. Section 
     825.305 applies generally to all types of certification. In 
     most cases, for example, former references to ``medical 
     certification'' have been changed to ``certification.''
       In section 825.305, 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 five business days thereafter, or, in the 
     case of unforeseen leave, within five business days after the 
     leave commences. This time frame has been increased from two 
     to five business days after notice of the need for FMLA leave 
     is provided. Further, 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. This section also adds a 15-day time period 
     for providing a requested certification to all cases.
       Definitions of incomplete and insufficient certifications 
     have been added in this section, as well as a procedure for 
     curing an incomplete or insufficient certification. This 
     procedure requires that an employing office notify the 
     employee in writing as to what additional information is 
     necessary for the medical certification and provides seven 
     calendar days in which the employee must provide the 
     additional information. If an employee fails to submit a 
     complete and sufficient certification, despite the 
     opportunity to cure the deficiency, the employing office may 
     deny the request for FMLA leave.
       Section 825.305 also deletes an earlier provision that if a 
     less stringent medical certification standard applies under 
     the employing office's sick leave plan, only that lesser 
     standard may be required when the employee substitutes any 
     form of paid leave for FMLA leave and replaces it with a 
     provision allowing employing offices to require a new 
     certification on an annual basis for conditions lasting 
     beyond a single leave year.
       825.305(b)
       One commenter suggested that the opportunity to ``cure'' 
     any deficiency be deleted because it makes no sense to have 
     the employee serve as a ``go-between''--referencing its 
     comments to section 825.307(a), below [suggesting the 
     employing office be able to speak directly to the healthcare 
     provider]. The Board has determined that good cause has not 
     been shown to modify DOL regulations.
     Section 825.306 Content of medical certification for leave 
         taken because of an employee's own serious health 
         condition or the serious health condition of a family 
         member.
       The Board proposed to adopt the DOL amendments with respect 
     to this section. Section 825.306 addresses the information an 
     employing office can require in the medical certification to 
     substantiate the existence of a serious health condition (of 
     the employee or a family member) and the employee's need for 
     leave due to the condition, and adds: the health care 
     provider's specialization; guidance as to what may constitute 
     appropriate medical facts, including that a health care 
     provider may provide a diagnosis; and whether intermittent or 
     reduced schedule leave is medically necessary. Section 
     825.306 clarifies that where a serious health condition may 
     also be a disability, employing offices are not prevented 
     from following the procedures under the Americans with 
     Disabilities Act (ADA), as applied under the CAA, for 
     requesting medical information. Section 825.306 also contains 
     new language that employing offices may not require employees 
     to sign a release of their medical information as a condition 
     of taking FMLA leave.
       825.306(a)(4)
       One commenter suggested deleting ``and (c)'' because 
     section 825.123(c) does not exist in the proposed 
     regulations. The Board has made the suggested change.
       This section does not apply to the military family leave 
     provisions. The Board's proposed regulations have revised the 
     current optional certification form into two separate 
     optional forms, one for the employee's own serious health 
     condition and one for the serious health condition of a 
     covered family member.
     Section 825.307 Authentication and clarification of medical 
         certification for leave taken because of an employee's 
         own serious health condition or the serious health 
         condition of a family member; second and third opinions.
       The Board proposed to adopt the DOL's amendments covered 
     under this section. Section 825.307 addresses the employing 
     office's ability to clarify or authenticate a complete and 
     sufficient FMLA certification. Section 825.307 defines the 
     terms ``authentication'' and ``clarification.'' 
     ``Authentication'' involves providing the health care 
     provider with a copy of the certification and requesting 
     verification that the information on the form was completed 
     and/or authorized by the provider. The regulations add that 
     no additional medical information may be requested and the 
     employee's permission is not required. In contrast, 
     ``clarification'' involves contacting the employee's health 
     care provider in order to understand the handwriting on the 
     medical certification or to understand the meaning of a 
     response. As is the case with authentication, no additional 
     information beyond that included in the certification form 
     may be requested. Any contact with the employee's health care 
     provider must comply with the requirements of the HIPAA 
     Privacy Rule.
       It is no longer necessary that the employing office utilize 
     a health care provider to make the contact with the 
     employee's health care provider, but the regulations do 
     clarify who may contact the employee's health care provider 
     and ensure that the employee's direct supervisor is not the 
     point of contact. Employee consent to the contact is no 
     longer required. However, before the employing office 
     contacts the employee's health care provider for 
     clarification or authentication of the FMLA certification, 
     the employee must first be given an opportunity to cure any 
     deficiencies in the certification. Section 825.307 also 
     provides requirements for an employing office's request for a 
     second opinion, and adds language requiring the employee or 
     the employee's family member to authorize his or her health 
     care provider to release relevant medical information 
     pertaining to the serious health condition at issue if such 
     information is requested by the second opinion health care 
     provider. Section 825.307 also increases the number of days 
     the employing office has to provide an employee with a 
     requested copy of a second or third opinion from two to five 
     business days. This section of the regulations does not apply 
     to the military family leave provisions.
       One commenter supported allowing an individual from the 
     employing office other than a health care professional to 
     contact the health care provider for purposes of 
     clarification and authentication of the medical 
     certification.
       One commenter suggested that the ``clarification and 
     authentication'' creates more confusion than guidance. The 
     commenter suggested that requiring the employer to first 
     speak with the employee regarding clarification before it may 
     directly contact the healthcare provider creates an 
     opportunity for miscommunication about the information 
     actually needed by the employer, an issue that can be best 
     handled by direct communication. The commenter also believes 
     that the regulation would allow an employee who may have 
     furnished a fraudulent certification to ``cure'' the defect, 
     and suggests

[[Page H4138]]

     that section 825.307(c) be deleted. Further, rather than deny 
     an FMLA request for failure to `clarify the certification' as 
     in subsection (a), the commenter suggests that the regulation 
     permit the employee to provide advanced authorization to the 
     employing office to contact the healthcare provider for 
     clarification or authentication. The Board has determined 
     that no good cause has been shown to modify DOL regulations.
       Another commenter suggested that the fourth sentence of 
     section 825.307(a) addresses the issue of who within an 
     employing office may contact the eligible employee's health 
     care provider to clarify and/or authenticate the medical 
     certification submitted by the employee. Specifically, the 
     sentence, which is the same as that in the DOL's regulation, 
     states that ``Under no circumstances, however, may the 
     employee's direct supervisor contact the employee's health 
     care provider.'' The commenter suggested that this provision 
     would be unworkable with respect to many employing offices of 
     the House, particularly Member offices, due to the statutory 
     limit on the size of those offices. Specifically, under 2 
     U.S.C. Sec. 5321(a), Member offices are permitted to employ 
     no more than 22 employees (this covers the total number of 
     employees for both the Washington, D.C. and district 
     offices). Accordingly, the vast majority of House employing 
     offices do not have separate human resources divisions to 
     assure compliance with the FMLA. In actuality, it is often 
     the employee's direct supervisor (e.g. the District Director 
     or the Chief of Staff) who handles FMLA requests. If the 
     direct supervisor is prohibited from contacting the 
     employee's health care provider, the employing office would 
     have to find someone else--perhaps a peer/co-worker of the 
     employee seeking FMLA--to contact the health care provider. 
     This would unnecessarily expand the scope of individuals with 
     knowledge of the employee's FMLA request, and would be 
     inconsistent with the spirit of the regulations requiring 
     that access to such FMLA-related information be limited to as 
     few persons as possible to preserve privacy and 
     confidentiality. The commenter also mentioned that it is 
     notable that the DOL regulation applies to employers who have 
     at least 50 employees (29 C.F.R. Sec. 825.104(a)), or are 
     public agencies that are more likely to have other managers 
     or a human resources office to contact health care providers. 
     The commenter believes that, with respect to the House, there 
     is good cause to deviate from the DOL regulations and to 
     delete the fourth sentence from subsection (a).
       Based on these comments and the unique nature of employing 
     offices under the CAA, the Board modifies its regulation by 
     deleting the fourth sentence and adding in its place ``An 
     employee's direct supervisor may not contact the employee's 
     healthcare provider, unless the direct supervisor is also the 
     only individual in the employing office designated to process 
     FMLA requests and the direct supervisor receives specific 
     authorization from the employee to contact the employee's 
     health care provider.'' This change will allow smaller 
     employing offices, who only have one person designated to 
     process FMLA leave requests to clarify and authenticate an 
     employee's FMLA certification without violating the OOC's 
     FMLA regulations. This narrowly tailored language will 
     maintain the intent of the regulation--to prevent an 
     employee's direct supervisor from contacting the employee's 
     healthcare provider to clarify and authenticate a 
     certification--without preventing small employing offices 
     from clarifying and authenticating FMLA leave certifications.
       A commenter also suggested that the reference to the Health 
     Insurance Portability and Accountability Act (HIPAA) in 
     section (a) be deleted. HIPAA, and the regulations 
     promulgated thereunder, allow the Secretary of Health and 
     Human Services to take enforcement action against health 
     plans, health care clearinghouses, and specific health care 
     providers for violations of privacy standards. 42 U.S.C. 
     Sec. 1320d, et seq.; 45 C.F.R. Sec. Sec. 160.102, 160.312. 
     HIPAA does not create any obligations for Congressional 
     employing offices. Thus, although a health care provider may 
     require that a patient complete an appropriate HIPAA-
     authorization before that health care provider will speak to 
     a representative of that patient's employing office, there is 
     no basis for any implication that HIPAA applies to 
     Congressional employers. The commenter suggested that the 
     regulatory language in subsection (a) referencing HIPAA be 
     deleted. The reference to HIPAA in this section should not be 
     read to apply HIPAA to employing offices. However, it should 
     be clear that the level of privacy afforded individually-
     identifiable health information created or held by HIPAA-
     covered entities is satisfied when this information is shared 
     with an employing office by a HIPAA-covered health care 
     provider. The Board finds that good cause has not been shown 
     to modify the DOL regulation.
       One commenter would like clarification on whether an 
     employing office may rely on the findings of a second or 
     third opinion examination to deny FMLA leave for a future 
     absence requested by the employee for the same condition. 
     Current regulations are silent with respect to the use of 
     second and third opinion examinations. The Board finds that 
     no good cause has been shown to modify the DOL regulation.
     Section 825.308 Recertifications for leave taken because of 
         an employee's own serious health condition or the serious 
         health condition of a family member.
       The Board proposed to adopt the DOL amendments covered in 
     this section. Section 825.308 of the regulations addresses 
     the employing office's ability to seek recertification of an 
     employee's medical condition. This section has been 
     reorganized to clarify how often employing offices may seek 
     recertification in situations where the minimum duration of 
     the condition, as opposed to the duration of the period of 
     incapacity, exceeds 30 days. Thus, an employing office may 
     request recertification no more often than every 30 days and 
     only in connection with an absence by the employee, unless 
     the medical certification indicates that the minimum duration 
     of the condition is more than 30 days, then an employing 
     office must wait until that minimum duration expires before 
     requesting a recertification. In all cases, an employing 
     office may request a recertification of a medical condition 
     every six months in connection with an absence by the 
     employee. An employing office may request recertification in 
     less than 30 days if, among other things, the employee 
     requests an extension of leave or circumstances described by 
     the previous certification change significantly. This section 
     clarifies that an employing office may request the same 
     information on recertification as required for the initial 
     certification and the employee has the same obligation to 
     cooperate in providing recertification as he or she does in 
     providing the initial certification.
       One commenter suggested that the Board clarify that an 
     employing office may provide ``a record of the employee's 
     absence pattern'' directly to the healthcare provider. The 
     Board has determined that no good cause has been shown to 
     modify the DOL regulation.
     Section 825.309 Certification for leave taken because of a 
         qualifying exigency.
       The Board proposed to adopt the DOL's regulations under 
     this section. Under the military family leave provisions of 
     the DOL regulations, an employing office may require that 
     leave taken because of a qualifying exigency be supported by 
     a certification and require that the employee provide a copy 
     of the covered military member's active duty orders or other 
     documentation issued by the military, which indicates that 
     the covered military member is on active duty (or has been 
     notified of an impending call or order to active duty) in 
     support of a contingency operation, as well as the dates of 
     the covered military member's active duty service. While a 
     form requesting this basic information may be used by the 
     employing office, no information may be required beyond that 
     specified in this section and in all instances the 
     information on the form must relate only to the qualifying 
     exigency for which the current need for leave exists. Section 
     825.309 also establishes the verification process for 
     certifications.
       This section also provides that the information required in 
     a certification need only be provided to the employing office 
     the first time an employee requests leave because of a 
     qualifying exigency arising out of a particular active duty 
     or call to active duty of a covered military member. While 
     additional information may be needed to provide certification 
     for subsequent requests for exigency leave, an employee is 
     only required to give a copy of the active duty orders to the 
     employing office once. A copy of new active duty orders or 
     other documentation issued by the military only needs to be 
     provided to the employing office if the need for leave 
     because of a qualifying exigency arises out of a different 
     active duty or call to active duty order of the same or a 
     different covered military member. See DOL (Form WH-384) and 
     OOC regulations proposed Form E.
       One commenter suggested adding ``or Form WH-384 (developed 
     by the Department of Labor)'' between ``Form E'' and 
     ``another form containing the same basic information'' for 
     consistency with other provisions cross-referencing DOL 
     forms. See, e.g., Sec. 825.306(b) and Sec. 825.310(d). The 
     Board has made the suggested change.
       An employing office may contact an appropriate unit of the 
     Department of Defense (DOD) to request verification that a 
     covered military member has been called to active duty status 
     (or notified of an impending call to active duty status) in 
     support of a contingency operation. Again, no additional 
     information may be requested by the employing office and the 
     employee's permission is not required. This verification 
     process will protect employees from unnecessary intrusion 
     while still providing a useful tool for employing offices to 
     verify the certification information given to them.
       Consistent with the amendments to section 825.126(b)(6), 
     with respect to Rest and Recuperation qualifying exigency 
     leave, the employing office is permitted to request a copy of 
     the military member's Rest and Recuperation orders, or other 
     documentation issued by the military indicating that the 
     military member has been granted Rest and Recuperation leave, 
     as well as the dates of the leave, in order to determine the 
     employee's specific qualifying exigency leave period 
     available for Rest and Recuperation. Employing offices may 
     also contact the appropriate unit of the DOD to verify that 
     the military member is on active duty or call to active duty 
     status. The employee's permission is not required to conduct 
     such verifications. The employing office may not, however, 
     request any additional information.
     Section 825.310 Certification for leave taken to care for a 
         covered servicemember (military caregiver leave).
       The Board proposed to adopt the amendments covered in the 
     DOL regulations under

[[Page H4139]]

     this section. While the military family leave provisions of 
     the NDAA amended the FMLA's certification requirements to 
     permit an employer to request certification for leave taken 
     to care for a covered servicemember, the FMLA's existing 
     certification requirements focus on providing information 
     related to a serious health condition--a term that is not 
     necessarily relevant to leave taken to care for a covered 
     servicemember. At the same time, the military family leave 
     provisions of the NDAA do not explicitly require that a 
     sufficient certification for purposes of military caregiver 
     leave provide relevant information regarding the covered 
     servicemember's serious injury or illness. Section 825.310 of 
     the DOL's regulations provide that when leave is taken to 
     care for a covered servicemember with a serious injury or 
     illness, an employer may require an employee to support his 
     or her request for leave with a sufficient certification. An 
     employer may require that certain necessary information to 
     support the request for leave be supported by a certification 
     from one of the following authorized health care providers: 
     (1) a DOD health care provider; (2) a VA health care 
     provider; (3) a DOD TRICARE network authorized private health 
     care provider; or (4) a DOD non-network TRICARE authorized 
     private health care provider. Sections 825.310(b)-(c) of the 
     DOL regulations set forth the information an employing office 
     may request from an employee (or the authorized health care 
     provider) in order to support the employee's request for 
     leave. The DOL developed a new optional form, Form WH-385, 
     which the Board adopted for proposed OOC Form F. The Board 
     agrees that OOC Form F may be used to obtain appropriate 
     information to support an employee's request for leave to 
     care for a covered servicemember with a serious injury or 
     illness. However, an employing office may use any form 
     containing the following basic information: (1) whether the 
     servicemember has incurred a serious injury or illness; (2) 
     whether the injury or illness may render the servicemember 
     medically unfit to perform the duties of the member's office, 
     grade, rank, or rating; (3) whether the injury or illness was 
     incurred by the member in line of duty on active duty; and 
     (4) whether the servicemember is undergoing medical 
     treatment, recuperation, or therapy, is otherwise on 
     outpatient status, or is otherwise on the temporary 
     disability retired list. Additionally, as is the case for any 
     required certification for leave taken to care for a family 
     member with a serious health condition, no information may be 
     required beyond that specified above. In all instances, the 
     information on any required certification must relate only to 
     the serious injury or illness for which the current need for 
     leave exists.
       Additionally, section 825.310 of the proposed OOC 
     regulations provides that an employing office requiring an 
     employee to submit a certification for leave to care for a 
     covered servicemember must accept as sufficient certification 
     ``invitational travel orders'' (ITOs) or ``invitational 
     travel authorizations'' (ITAs) issued by the DOD for a family 
     member to join an injured or ill servicemember at his or her 
     bedside. If an employee will need leave to care for a covered 
     servicemember beyond the expiration date specified in an ITO 
     or an ITA, the regulations provide that an employing office 
     may request further certification from the employee. Lastly 
     this section provides that in all instances in which 
     certification is requested, it is the employee's 
     responsibility to provide the employing office with complete 
     and sufficient certification and failure to do so may result 
     in the denial of FMLA leave.
       The regulations also permit an eligible employee who is a 
     spouse, parent, son, daughter or next of kin of a covered 
     servicemember to submit an ITO or ITA issued to another 
     family member as sufficient certification for the duration of 
     time specified in the ITO or ITA, even if the employee 
     seeking leave is not the named recipient on the ITO or ITA. 
     The regulations further permit an employing office to 
     authenticate and clarify medical certifications submitted to 
     support a request for leave to care for a covered 
     servicemember using the procedures applicable to FMLA leave 
     taken to care for a family member with a serious health 
     condition. However, unlike the recertification, second and 
     third opinion processes used for other types of FMLA leave, 
     recertification, second and third opinions are not warranted 
     for purposes of military caregiver leave when the 
     certification has been completed by a DOD health care 
     provider, a VA health care provider, a DOD TRICARE network 
     authorized private health care provider, or a DOD non-network 
     TRICARE authorized private health care provider, but are 
     permitted when the certification has been completed by a 
     health care provider who is not affiliated with the DOD, VA, 
     or TRICARE.
       An employee seeking to take military caregiver leave 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.
       One commenter suggested that the reference to section 
     825.122(j) in the final sentence of subsection (d) be changed 
     to section 825.122(k). The Board has made the suggested 
     correction to the provision.
       One commenter suggested replacing ``However, second and 
     third opinions under 825.307 are not permitted for leave to 
     care for a covered servicemember'' with ``Second and third 
     opinions under 825.307 are not permitted for leave to care 
     for a covered servicemember when the certification has been 
     completed by one of the types of healthcare providers 
     identified in 825.310(a)(1-4). However, second and third 
     opinions under 825.307 are permitted when the certification 
     has been completed by a health care provider as defined in 
     825.125 that is not one of the types identified in 
     825.310(a)(1)-(4).'' The Board has made the requested 
     correction to the provision.
     Section 825.311 Intent to Return to Work.
       One commenter noted that section 825.311(b) states that, 
     ``subject to COBRA requirements or 5 U.S.C. Sec. 8905a, 
     whichever is applicable'' employing offices do not need to 
     maintain health benefits once an employee gives unequivocal 
     notice of his or her intent not to return to work. The 
     commenter suggested that DOL regulations do not contain the 
     reference to 5 U.S.C. Sec. 8905a. The commenter suggested 
     that it is unclear whether the Board considered the 
     application of the Affordable Care Act and/or enrollment in 
     state exchanges in developing its language. The commenter 
     requests that the Board state its position on this issue. The 
     Board has deleted reference to ``5 U.S.C. Sec. 8905a.''
     Section 825.312 Fitness-for-duty certification.
       The Board proposed to adopt the amendments covered in the 
     DOL's regulations under this section. Section 825.312 
     addresses the fitness-for-duty certification that an employee 
     may be required to submit upon return to work from FMLA 
     leave. This section clarifies that employees have the same 
     obligation to provide a complete certification or provide 
     sufficient authorization to the health care provider in order 
     for that person to provide the information directly to the 
     employing office in the fitness-for-duty certification 
     process as they do in the initial certification process. The 
     employing office may require that the fitness-for-duty 
     certification address the employee's ability to perform the 
     essential functions of the employee's job, as long as the 
     employing office provides the employee with a list of those 
     essential job functions no later than the employing office 
     provides the designation notice. The designation notice must 
     indicate that the certification address the employee's 
     ability to perform those essential functions. An employing 
     office may contact the employee's health care provider 
     directly, consistent with the procedure in proposed section 
     825.307(a), for purposes of authenticating or clarifying the 
     fitness-for-duty certification. The employing office is 
     required to advise the employee in the eligibility notice 
     required by proposed section 825.300(b) if the employing 
     office will require a fitness-for-duty certification to 
     return to work. Employees are not entitled to the 
     reinstatement protections of the Act if they do not provide 
     the required fitness-for-duty certification or request 
     additional FMLA leave.
       Section 825.312 also requires that the employing office 
     uniformly apply its policies permitting fitness-for-duty 
     certifications to intermittent and reduced schedule leave 
     users when reasonable safety concerns are present, but limits 
     the frequency of such certifications to once in a 30-day 
     period in which intermittent or reduced schedule leave was 
     taken. ``Reasonable safety concerns'' means a reasonable 
     belief of a significant risk of harm to the individual 
     employee or others. In determining whether reasonable safety 
     concerns exist, an employing office should consider the 
     nature and severity of the potential harm and the likelihood 
     that potential harm will occur. This is meant to be a high 
     standard. Thus, the determination that there are reasonable 
     safety concerns must rely on objective factual evidence, not 
     subjective perceptions. Employing offices cannot, under this 
     section, require such certifications in all intermittent or 
     reduced leave schedule situations, but only where reasonable 
     safety concerns are present. There is no fitness-for-duty 
     certification form, nor is there any specific format such a 
     certification must follow as long as it contains the required 
     information. An employing office is allowed to require that 
     the fitness-for-duty certification address the employee's 
     ability to perform the essential functions of his or her 
     position. However, the employing office can choose to accept 
     a simple statement in place of the fitness-for-duty 
     certification (or not require a fitness-for-duty 
     certification at all).
       There is no second and third opinion process for a fitness-
     for-duty certification. A fitness-for-duty certification need 
     only address the condition for which FMLA leave was taken and 
     the employee's ability to perform the essential functions of 
     the job. The employee's health care provider determines 
     whether a separate examination is required in order to 
     determine the employee's fitness to return to duty under the 
     FMLA. A medical examination at the employing office's expense 
     may be required only after the employee has returned from 
     FMLA leave and must be job-related and consistent with 
     business necessity as required by the ADA. The employing 
     office cannot delay the employee's return to work while 
     arranging for and having the employee undergo a medical 
     examination.
       One commenter suggested that this provision limits an 
     employing office's ability to seek a fitness-for-duty 
     certification at any time it deems necessary, and that it 
     would be negligent to preclude a fitness-for-duty test on an 
     officer carrying a weapon because the FMLA regulations limit 
     the ability to conduct a fitness-for-duty test. The commenter 
     suggested that proposed section

[[Page H4140]]

     825.312(i) be added to permit the employing office to conduct 
     fitness for duty certifications at any time it deems a police 
     officer may not be able to perform the essential functions of 
     the position, and that it not be considered retaliation. The 
     Board has determined that good cause has not been shown to 
     modify the DOL regulation.
       825.312(e)
       One commenter noted that when an employee is delayed by the 
     employer from returning to work because the employee has not 
     provided a fitness-for-duty certification, it is not clear 
     what the employee's status is. The commenter suggested that 
     the regulation permit the employing office to carry the 
     employee in an AWOL (absent without approved leave) status, 
     or the employee may use approved annual leave until the 
     certification is provided. The commenter also suggested the 
     regulation provide a 15 day time limit for the employee to 
     act on the fitness for duty certification. The Board has 
     determined that no good cause has been shown to modify the 
     DOL regulation.
     Section 825.313 Failure to provide certification.
       The Board proposed to adopt the amendments covered in the 
     DOL regulations under this section. Section 825.313 explains 
     the consequences for an employee who fails to provide medical 
     certification in a timely manner. An employing office may 
     deny FMLA leave until the required certification is provided. 
     This section also addresses the consequences of failing to 
     provide timely recertification. Section 825.313 also 
     clarifies that recertification does not apply to leave taken 
     for a qualifying exigency or to care for a covered 
     servicemember.
       Employees must be provided at least 15 calendar days to 
     provide the requested certification, and are entitled to 
     additional time when they are unable to meet that deadline 
     despite their diligent, good-faith efforts. An employee's 
     certification (or recertification) is not untimely until that 
     period has passed. Employing offices may deny FMLA protection 
     when an employee fails to provide a timely certification or 
     recertification, but the FMLA does not require employing 
     offices to do so. Employing offices always have the option of 
     accepting an untimely certification and not denying FMLA 
     protection to any absences that occurred during the period in 
     which the certification was delayed.
       One commenter suggested that while consistent with the 
     language of the DOL regulation that states, ``If the employee 
     never produces the certification, the leave is not FMLA 
     leave,'' the proposed regulation necessarily begs the 
     question: when can an employing office plausibly state that 
     the employee ``never'' produced a certification? Given this 
     ambiguity, the commenter suggested that the Board deviate 
     from the DOL language and provide more direction in this area 
     by amending the last sentence of this section to read, ``If 
     the employee fails to produce the certification after a 
     reasonable amount of time under the circumstances, the leave 
     is not FMLA leave.'' Although there still may be a question 
     of what constitutes a ``reasonable amount of time under the 
     circumstances,'' this language, in the commenter's view, 
     provides more clarity on the issue. The Board has determined 
     that no good cause has been shown to modify the DOL 
     regulation.
       One commenter suggested that a ``grace period'' should be 
     provided, as it proposes in section 312(e) above, to bridge 
     the gap between the expiration of FMLA leave and termination. 
     The Board has determined that no good cause has been shown to 
     modify the DOL regulation.
     SUBPART D--Administrative Process
     Section 825.400, Administrative Process, general rules.
       One commenter suggested that section 825.400 be deleted in 
     its entirety because the CAA specifically addresses the 
     procedures to be followed, and the proposed regulation is 
     duplicative. Additionally, the commenter proposed that 
     regulation section 825.400(c) is not appropriate and should 
     be deleted because it does not govern ``enforcement of the 
     FMLA rights,'' and the citation to a website does not assist 
     in determining what procedures have been approved by 
     Congress.
       Another commenter agreed that there is good cause not to 
     adopt the DOL regulation because the enforcement provisions 
     of the FMLA differ from those applicable in CAA actions. 
     However, in section 825.400(c), the commenter suggested that 
     the Board identify the exact name/nature of the procedures 
     referenced, and also clarify that these procedures only apply 
     to CAA complaints pending before the OOC, not those brought 
     in federal court.
       Upon review of the comments regarding section 825.400, the 
     Board has decided to retain section 825.400 in the final 
     regulation, change the title of the Subpart D from 
     ``Enforcement Mechanisms'' to ``Administrative Process'' and 
     change the subtitle ``Enforcement, general rules'' to 
     ``Administrative Process, general rules.'' In addition, the 
     DOL language added as section 825.400(c) to the Board's final 
     regulation describes the remedies available to covered 
     employees for a violation of the FMLA, as made applicable by 
     the CAA.
     Sections 825.401-825.404 Filing a complaint with the Federal 
         Government; Violations of the posting requirement; 
         Appealing the assessment of a penalty for willful 
         violation of the posting requirement; Consequences for an 
         employer when not paying the penalty assessment after a 
         final order is issued.
       These sections do not apply to the CAA and will remain 
     reserved in the OOC regulations.
     SUBPART E--RECORDKEEPING REQUIREMENTS
     Section 825.500 Recordkeeping requirements.
       This section does not apply to the CAA and will remain 
     reserved in the OOC regulations.
     SUBPART F--SPECIAL RULES APPLICABLE TO EMPLOYEES OF SCHOOLS
     Sections 825.600-825.604 Special rules for school employees, 
         definitions; Special rules for school employees, 
         limitations on intermittent leave; Special rules for 
         school employees, limitations on leave near the end of an 
         academic term; Special rules for school employees, 
         duration of FMLA leave; Special rules for school 
         employees, restoration to an equivalent position.
       The Board proposed to adopt the amendments covered in the 
     DOL regulations under these sections. Sections 825.600-
     825.604 cover the special rules applicable to instructional 
     employees. When an eligible instructional employee needs 
     intermittent leave or leave on a reduced schedule basis to 
     care for a covered servicemember, the employee may choose to 
     either: (1) take leave for a period or periods of particular 
     duration; or (2) transfer temporarily to an available 
     alternative position with equivalent pay and benefits that 
     better accommodates recurring periods of leave.
       These sections also extend some of the limitations on leave 
     near the end of an academic term to leave requested during 
     this period to care for a covered servicemember. If an 
     instructional employee begins leave for a purpose other than 
     the employee's own serious health condition during the five-
     week period before the end of the term, the employing office 
     may require the employee to continue taking leave until the 
     end of the term if the leave will last more than two weeks 
     and the employee would return to work during the two-week 
     period before the end of the term. Further, an employing 
     office may require an instructional employee to continue 
     taking leave until the end of the term if the employee begins 
     leave that will last more than five working days for a 
     purpose other than the employee's own serious health 
     condition during the three-week period before the end of the 
     term. The types of leave that are subject to the limitations 
     are: (1) leave because of the birth of a son or daughter, (2) 
     leave because of the placement of a son or daughter for 
     adoption or foster care, (3) leave taken to care for a 
     spouse, parent, or child with a serious health condition, and 
     (4) leave taken to care for a covered servicemember.
       One commenter suggested that this provision demonstrated a 
     need for FMLA regulations specific to the House. The 
     commenter suggested that, unlike in the Senate, the House no 
     longer has a school and thus these regulations are 
     inapplicable to the House. The Board finds no good cause to 
     modify the regulation as a whole.
     SUBPART G--EFFECT OF OTHER LAWS, EMPLOYING OFFICE PRACTICES, 
         AND COLLECTIVE BARGAINING AGREEMENTS ON EMPLOYEE RIGHTS 
         UNDER FMLA, AS MADE APPLICABLE BY THE CAA
     Section 825.700 Interaction with employing office's policies.
       The Board proposed to adopt the amendments covered in the 
     DOL regulations under this section. Section 825.700 provides 
     that an employing office may not limit the rights established 
     by the FMLA through an employment benefit program or plan, 
     but an employing office may provide greater leave rights than 
     the FMLA requires. This section also provides that an 
     employing office may amend existing leave programs, so long 
     as they comply with the FMLA, and that nothing in the FMLA is 
     intended to discourage employing offices from adopting or 
     retaining more generous leave policies. The Board proposed to 
     follow the DOL regulations and delete from the current OOC 
     section 825.700(a) the following: ``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.'' As explained by the 
     DOL, this last sentence of section 825.700(a) was deleted in 
     order to conform to the U.S. Supreme Court's decision in 
     Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002), which 
     specifically invalidated this provision.
       825.700(a)
       One commenter objected to the first sentence of this 
     section, suggesting that the proposed regulation state that 
     where an employing office fails to observe a program 
     providing greater benefits than those provided under the 
     FMLA, the employee has a right to bring a claim under the 
     CAA. The commenter suggested instead, that the avenue for 
     redress of a claim arising in another program, for example in 
     the collective bargaining agreement, would be through the 
     grievance process or another section of the CAA, and not 
     under the FMLA provision of the CAA. The Board has determined 
     that no good cause has been shown to modify the DOL 
     regulation.
       One commenter notes that subsection (a) limits an employing 
     office's ability to change its policies, including a policy 
     with greater employment benefits, impermissibly requiring an 
     employing office to continue a

[[Page H4141]]

     benefit program that it may no longer be able to afford. 
     Thus, it improperly limits management's right to determine 
     its own policies. The Board has determined that no good cause 
     has been shown to modify the DOL regulation.
       One commenter agrees that the Board should follow the DOL 
     regulation to comply with the Supreme Court's decision in 
     Ragsdale v. Wolverine World Wide, 535 U.S. 81 (2002) (holding 
     that an employer may retroactively designate leave as FMLA 
     leave under certain circumstances). However, the commenter 
     urges the Board to further clarify the following language: 
     ``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.'' Specifically, the commenter suggested that the Board 
     clarify what constitutes such an employment benefit program 
     or plan. This proposed section discusses a hypothetical 
     example of a collective bargaining agreement which provides 
     for reinstatement rights based on seniority; however, the 
     commenter recommends that the Board offer additional examples 
     (e.g., to clarify whether leave policies set forth in an 
     employee handbook qualify) and clarify that this language 
     does not contemplate the application of state law. The Board 
     has determined that no good cause has been shown to modify 
     the DOL regulations.
     Section 825.701 Interaction with State laws.
       This DOL section does not apply to the CAA and will remain 
     reserved in the OOC regulations.
     Section 825.702 Interaction with anti-discrimination laws, as 
         applied by section 201 of the CAA.
       The Board proposed to adopt the amendments covered in the 
     DOL regulations under this section. Section 825.702 addresses 
     the interaction between the FMLA and other Federal and State 
     antidiscrimination laws. Section 825.702 discusses the 
     interaction between the Uniformed Services Employment and 
     Reemployment Rights Act of 1994 (USERRA) and the FMLA. Under 
     USERRA, a returning servicemember would be entitled to FMLA 
     leave if, after including the hours that he or she would have 
     worked for the civilian employing office during the period of 
     military service, the employee would have met the FMLA 
     eligibility threshold. This is not an expansion of FMLA 
     rights through regulation; this is a requirement of USERRA.
       With respect to the interaction of the FMLA and ADA, where 
     both laws may apply, the applicability of each statute needs 
     to be evaluated independently.
       Further, the reference to employers who receive Federal 
     financial assistance and employers who contract with the 
     Federal government in this section has not been adopted by 
     the Board because federal contractor employers are not 
     covered by the CAA.
       One commenter suggested adding ``as made applicable by the 
     CAA'' between ``(ADA)'' and ``the employing office.'' The 
     same commenter suggested adding ``as made applicable by the 
     CAA'' after ``afford an employee his or her FMLA rights.'' 
     The Board has made the suggested changes.
       One commenter suggested adding ``as made applicable by the 
     CAA'' after ``he or she will have rights under the ADA.'' The 
     Board has made the suggested change.
     COMMENTS ON MODEL FORMS:
       I. In its final regulations, the DOL removed the following 
     optional-use forms and notices from the Appendix of the 
     regulations, but continued to make them available to the 
     public on the WHD Web site: Forms WH-380-E (Certification of 
     Health Care Provider for Employee's Serious Health 
     Condition); WH-380-F (Certification of Health Care Provider 
     for Family Member's Serious Health Condition); WH-381 (Notice 
     of Eligibility and Rights & Responsibilities); WH-382 
     (Designation Notice); WH-384 (Certification of Qualifying 
     Exigency for Military Family Leave); WH-385 (Certification 
     for Serious Injury or Illness of Current Servicemember for 
     Military Family Leave); and WH-385-V (Certification for 
     Serious Injury or Illness of a Veteran for Military Caregiver 
     Leave).
       The Board proposed to revise its forms and to make the 
     following OOC forms available on its website: Form A: 
     Certification of Health Care Provider for Employee's Serious 
     Health Condition; Form B: Certification of Health Care 
     Provider for Family Member's Serious Health Condition; Form 
     C: Notice of Eligibility and Rights and Responsibilities; 
     Form D: Designation Notice to Employee of FMLA Leave; Form E: 
     Certification of Qualifying Exigency for Military Family 
     Leave; Form F: Certification for Serious Injury or Illness of 
     Covered Servicemember for Military Family Leave; and Form G: 
     Certification for Serious Injury or Illness of a Veteran for 
     Military Caregiver Leave. The Board's proposed forms now 
     include references to the Genetic Information 
     Nondiscrimination Act of 2008, which is made applicable to 
     employees covered under the CAA. In any event, the use of a 
     specific set of forms is optional and other forms requiring 
     the same information may be used instead. In proposing these 
     revised forms, the Board recognizes that the use of specific 
     forms play a key role in employing offices' compliance with 
     the FMLA and employees' ability to take FMLA protected leave 
     when needed.
       One commenter recommended that the OOC follow its past 
     practice of creating FMLA-related forms that are CAA-
     compliant rather than directing covered employees and 
     employing offices to the DOL website for the appropriate 
     forms.
       One commenter suggested that these forms should be 
     available on the OOC's website and not in the regulations 
     themselves because use of the proposed model forms is not 
     required. The Board will make the forms available on the OOC 
     website and, consistent with the DOL, will not include them 
     in its regulations. Some commenters suggested minor changes 
     to the forms, and the Board has made the appropriate 
     modifications.
       One commenter suggested that the Board adopt and include 
     (on Model Forms A, B, F, and G) the EEOC's ``safe harbor'' 
     language for employers to use to warn employees that their 
     healthcare providers should not provide genetic information 
     in their response to an FMLA request. The commenter suggested 
     use of the EEOC's model warning language as opposed to the 
     DOL language that was included in the Board's proposal. The 
     commenter also suggested that the language should be more 
     prominent and obvious, which would have the intended effect 
     of reducing additional notices to employees and thus burdens 
     on the employing offices. Having reviewed the EEOC's model 
     warning language, as well as model warning language from 
     government agencies and private employers, the Board finds 
     good cause to modify the DOL's GINA model warning language on 
     Forms A, B, F, and G.
     Substantive Regulations Adopted by the Board of Directors of 
         the Office of Compliance Extending Rights and Protections 
         Under the Family and Medical Act of 1993, as amended, as 
         Made Applicable by the Congressional Accountability Act

                           FINAL REGULATIONS

     PART 825--FAMILY AND MEDICAL LEAVE

     825.1 Purpose and Scope.

     SUBPART A--COVERAGE UNDER THE FAMILY AND MEDICAL LEAVE ACT, 
                   AS MADE APPLICABLE BY THE CONGRESSIONAL 
                   ACCOUNTABILITY ACT

     825.100 The Family and Medical Leave Act.
     825.101 Purpose of the FMLA.
     825.102 Definitions.
     825.103 [Reserved]
     825.104 Covered employing offices.
     825.105 [Reserved]
     825.106 Joint employer coverage.
     825.107-825.109 [Reserved]
     825.110 Eligible employee.
     825.111 [Reserved]
     825.112 Qualifying reasons for leave, general rule.
     825.113 Serious health condition.
     825.114 Inpatient care.
     825.115 Continuing treatment.
     825.116-825.118 [Reserved]
     825.119 Leave for treatment of substance abuse.
     825.120 Leave for pregnancy or birth.
     825.121 Leave for adoption or foster care.
     825.122 Definitions of covered servicemember, spouse, parent, 
         son or daughter, next of kin of a covered servicemember, 
         adoption, foster care, son or daughter on covered active 
         duty or call to covered active duty status, son or 
         daughter of a covered servicemember, and parent of a 
         covered servicemember.
     825.123 Unable to perform the functions of the position.
     825.124 Needed to care for a family member or covered 
         servicemember.
     825.125 Definition of health care provider.
     825.126 Leave because of a qualifying exigency.
     825.127 Leave to care for a covered servicemember with a 
         serious injury or illness (military caregiver leave).

     SUBPART B--EMPLOYEE LEAVE ENTITLEMENTS UNDER THE FAMILY AND 
                   MEDICAL LEAVE ACT, AS MADE APPLICABLE BY THE 
                   CONGRESSIONAL ACCOUNTABILITY ACT

     825.200 Amount of leave.
     825.201 Leave to care for a parent.
     825.202 Intermittent leave or reduced leave schedule.
     825.203 Scheduling of intermittent or reduced schedule leave.
     825.204 Transfer of an employee to an alternative position 
         during intermittent leave or reduced schedule leave.
     825.205 Increments of FMLA leave for intermittent or reduced 
         schedule leave.
     825.206 Interaction with the FLSA.
     825.207 Substitution of paid leave.
     825.208 [Reserved]
     825.209 Maintenance of employee benefits.
     825.210 Employee payment of group health benefit premiums.
     825.211 Maintenance of benefits under multi-employer health 
         plans.
     825.212 Employee failure to pay health plan premium payments.
     825.213 Employing office recovery of benefit costs.
     825.214 Employee right to reinstatement.
     825.215 Equivalent position.
     825.216 Limitations on an employee's right to reinstatement.
     825.217 Key employee, general rule.
     825.218 Substantial and grievous economic injury.
     825.219 Rights of a key employee.

[[Page H4142]]

     825.220 Protection for employees who request leave or 
         otherwise assert FMLA rights.

     SUBPART C--EMPLOYEE AND EMPLOYING OFFICE RIGHTS AND 
                   OBLIGATIONS UNDER THE FMLA, AS MADE APPLICABLE 
                   BY THE CAA.

     825.300 Employing office notice requirements.
     825.301 Designation of FMLA leave.
     825.302 Employee notice requirements for foreseeable FMLA 
         leave.
     825.303 Employee notice requirements for unforeseeable FMLA 
         leave.
     825.304 Employee failure to provide notice.
     825.305 Certification, general rule.
     825.306 Content of medical certification for leave taken 
         because of an employee's own serious health condition or 
         the serious health condition of a family member.
     825.307 Authentication and clarification of medical 
         certification for leave taken because of an employee's 
         own serious health condition or the serious health 
         condition of a family member; second and third opinions.
     825.308 Recertifications for leave taken because of an 
         employee's own serious health condition or the serious 
         health condition of a family member.
     825.309 Certification for leave taken because of a qualifying 
         exigency.
     825.310 Certification for leave taken to care for a covered 
         servicemember (military caregiver leave).
     825.311 Intent to return to work.
     825.312 Fitness-for-duty certification.
     825.313 Failure to provide certification.

     SUBPART D--ENFORCEMENT MECHANISMS

     825.400 Enforcement of FMLA rights, as made applicable by the 
         CAA.
     825.401-825.404 [Reserved]

     SUBPART E--[RESERVED]

     SUBPART F--SPECIAL RULES APPLICABLE TO EMPLOYEES OF SCHOOLS

     825.600 Special rules for school employees, definitions.
     825.601 Special rules for school employees, limitations on 
         intermittent leave.
     825.602 Special rules for school employees, limitations on 
         leave near the end of an academic term.
     825.603 Special rules for school employees, duration of FMLA 
         leave.
     825.604 Special rules for school employees, restoration to an 
         equivalent position.

     SUBPART G--EFFECT OF OTHER LAWS, EMPLOYING OFFICE PRACTICES, 
                   AND COLLECTIVE BARGAINING AGREEMENTS ON 
                   EMPLOYEE RIGHTS UNDER THE FMLA, AS MADE 
                   APPLICABLE BY THE CAA

     825.700 Interaction with employing office's policies.
     825.701 [Reserved]
     825.702 Interaction with anti-discrimination laws as applied 
         by section 201 of the CAA.

     SUBPART H--[RESERVED]

                                 FORMS

     Form A: Certification of Health Care Provider for Employee's 
       Serious Health Condition;

     Form B: Certification of Health Care Provider for Family 
       Member's Serious Health Condition;

     Form C: Notice of Eligibility and Rights & Responsibilities;

     Form D: Designation Notice to Employee of FMLA Leave;

     Form E: Certification of Qualifying Exigency for Military 
       Family Leave;

     Form F: Certification for Serious Injury or Illness of 
       Covered Servicemember for Military Family Leave;

     Form G: Certification for Serious Injury or Illness of a 
       Veteran for Military Caregiver Leave.

     825.1 Purpose and scope.
       (a) Section 202 of the Congressional Accountability Act 
     (CAA) (2 U.S.C. 1312) applies the rights and protections of 
     sections 101 through 105 of the Family and Medical Leave Act 
     of 1993 (FMLA) (29 U.S.C. 2611-2615) to covered employees. 
     (The term ``covered employee'' is defined in section 101(3) 
     of the CAA (2 U.S.C. 1301(3)). See 825.102 of these 
     regulations for that definition.) The purpose of this part is 
     to set forth the regulations to carry out the provisions of 
     section 202 of the CAA.
       (b) These regulations are issued by the Board of Directors 
     (Board) of the Office of 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.
       (d) Pursuant to section 304(b)(4) of the CAA, 2 U.S.C. 
     1384(b)(4), the Board of Directors is required to recommend 
     to Congress a method of approval for these regulations. As 
     the Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, it therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.

  SUBPART A--COVERAGE UNDER THE FAMILY AND MEDICAL LEAVE ACT, AS MADE 
           APPLICABLE BY THE CONGRESSIONAL ACCOUNTABILITY ACT

     825.100 The Family and Medical Leave Act.
       (a) The Family and Medical Leave Act of 1993 (FMLA), as 
     made applicable by the Congressional Accountability Act 
     (CAA), allows eligible employees of an employing office to 
     take job-protected, unpaid leave, or to substitute 
     appropriate paid leave if the employee has earned or accrued 
     it, for up to a total of 12 workweeks in any 12 months (see 
     825.200(b)) because of the birth of a child and to care for 
     the newborn child, because of the placement of a child with 
     the employee for adoption or foster care, because the 
     employee is needed to care for a family member (child, 
     spouse, or parent) with a serious health condition, because 
     the employee's own serious health condition makes the 
     employee unable to perform the functions of his or her job, 
     or because of any qualifying exigency arising out of the fact 
     that the employee's spouse, son, daughter, or parent is a 
     military member on active duty or call to covered active duty 
     status (or has been notified of an impending call or order to 
     covered active duty). In addition, eligible employees of a 
     covered employing office may take job-protected, unpaid 
     leave, or substitute appropriate paid leave if the employee 
     has earned or accrued it, for up to a total of 26 workweeks 
     in a single 12-month period to care for a covered 
     servicemember with a serious injury or illness. In certain 
     cases, FMLA leave may be taken on an intermittent basis 
     rather than all at once, or the employee may work a part-time 
     schedule.
       (b) An employee on FMLA leave is also entitled to have 
     health benefits maintained while on leave as if the employee 
     had continued to work instead of taking the leave. If an 
     employee was paying all or part of the premium payments prior 
     to leave, the employee would continue to pay his or her share 
     during the leave period. The employing office or a disbursing 
     or other financial office may recover its share only if the 
     employee does not return to work for a reason other than the 
     serious health condition of the employee or the employee's 
     covered family member, the serious injury or illness of a 
     covered servicemember, or another reason beyond the 
     employee's control.
       (c) An employee generally has a right to return to the same 
     position or an equivalent position with equivalent pay, 
     benefits, and working conditions at the conclusion of the 
     leave. The taking of FMLA leave cannot result in the loss of 
     any benefit that accrued prior to the start of the leave.
       (d) The employing office generally has a right to advance 
     notice from the employee. In addition, the employing office 
     may require an employee to submit certification to 
     substantiate that the leave is due to the serious health 
     condition of the employee or the employee's covered family 
     member, due to the serious injury or illness of a covered 
     servicemember, or because of a qualifying exigency. Failure 
     to comply with these requirements may result in a delay in 
     the start of FMLA leave. Pursuant to a uniformly applied 
     policy, the employing office may also require that an 
     employee present a certification of fitness to return to work 
     when the absence was caused by the employee's serious health 
     condition (see 825.312 and 825.313)). The employing office 
     may delay restoring the employee to employment without such 
     certificate relating to the health condition which caused the 
     employee's absence.
     825.101 Purpose of the FMLA.
       (a) FMLA is intended to allow employees to balance their 
     work and family life by taking reasonable unpaid leave for 
     medical reasons, for the birth or adoption of a child, for

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     the care of a child, spouse, or parent who has a serious 
     health condition, for the care of a covered servicemember 
     with a serious injury or illness, or because of a qualifying 
     exigency arising out of the fact that the employee's spouse, 
     son, daughter, or parent is a military member on covered 
     active duty or call to covered active duty status. The FMLA 
     is intended to balance the demands of the workplace with the 
     needs of families, to promote the stability and economic 
     security of families, and to promote national interests in 
     preserving family integrity. It was intended that the FMLA 
     accomplish these purposes in a manner that accommodates the 
     legitimate interests of employing offices, and in a manner 
     consistent with the Equal Protection Clause of the Fourteenth 
     Amendment in minimizing the potential for employment 
     discrimination on the basis of sex, while promoting equal 
     employment opportunity for men and women.
       (b) The FMLA was predicated on two fundamental concerns--
     the needs of the American workforce, and the development of 
     high-performance organizations. Increasingly, America's 
     children and elderly are dependent upon family members who 
     must spend long hours at work. When a family emergency 
     arises, requiring workers to attend to seriously-ill children 
     or parents, or to newly-born or adopted infants, or even to 
     their own serious illness, workers need reassurance that they 
     will not be asked to choose between continuing their 
     employment, and meeting their personal and family obligations 
     or tending to vital needs at home.
       (c) The FMLA is both intended and expected to benefit 
     employing offices as well as their employees. A direct 
     correlation exists between stability in the family and 
     productivity in the workplace. FMLA will encourage the 
     development of high-performance organizations. When workers 
     can count on durable links to their workplace they are able 
     to make their own full commitments to their jobs. The record 
     of hearings on family and medical leave indicate the powerful 
     productive advantages of stable workplace relationships, and 
     the comparatively small costs of guaranteeing that those 
     relationships will not be dissolved while workers attend to 
     pressing family health obligations or their own serious 
     illness.
     825.102 Definitions.
       For purposes of this part:
       ADA means the Americans With Disabilities Act (42 U.S.C. 
     12101 et seq., as amended), as made applicable by the 
     Congressional Accountability Act.
       CAA means the Congressional Accountability Act of 1995 
     (Pub. Law 104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq., as 
     amended).
       COBRA means the continuation coverage requirements of Title 
     X of the Consolidated Omnibus Budget Reconciliation Act of 
     1986 (Pub. Law 99-272, title X, section 10002; 100 Stat. 227; 
     29 U.S.C. 1161-1168).
       Contingency operation means a military operation that:
       (1) Is designated by the Secretary of Defense as an 
     operation in which members of the Armed Forces are or may 
     become involved in military actions, operations, or 
     hostilities against an enemy of the United States or against 
     an opposing military force; or
       (2) Results in the call or order to, or retention on, 
     active duty of members of the uniformed services under 
     section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 
     10 of the United States Code, chapter 15 of Title 10 of the 
     United States Code, or any other provision of law during a 
     war or during a national emergency declared by the President 
     or Congress. See also 825.126(a)(2).
       Continuing treatment by a health care provider means any 
     one of the following:
       (1) Incapacity and treatment. A period of incapacity of 
     more than three consecutive, full calendar days, and any 
     subsequent treatment or period of incapacity relating to the 
     same condition, that also involves:
       (i) Treatment two or more times, within 30 days of the 
     first day of incapacity, unless extenuating circumstances 
     exist, by a health care provider, by a nurse under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under orders 
     of, or on referral by, a health care provider; or
       (ii) Treatment by a health care provider on at least one 
     occasion, which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       (iii) The requirement in paragraphs (i) and (ii) of this 
     definition for treatment by a health care provider means an 
     in-person visit to a health care provider. The first in-
     person treatment visit must take place within seven days of 
     the first day of incapacity.
       (iv) Whether additional treatment visits or a regimen of 
     continuing treatment is necessary within the 30-day period 
     shall be determined by the health care provider.
       (v) The term ``extenuating circumstances'' in paragraph (i) 
     means circumstances beyond the employee's control that 
     prevent the follow-up visit from occurring as planned by the 
     health care provider. Whether a given set of circumstances 
     are extenuating depends on the facts. See also 825.115(a)(5).
       (2) Pregnancy or prenatal care. Any period of incapacity 
     due to pregnancy, or for prenatal care. 825.120.
       (3) Chronic conditions. Any period of incapacity or 
     treatment for such incapacity due to a chronic serious health 
     condition. A chronic serious health condition is one which:
       (i) Requires periodic visits (defined as at least twice a 
     year) for treatment by a health care provider, or by a nurse 
     under direct supervision of a health care provider;
       (ii) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (iii) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       (4) Permanent or long-term conditions. A period of 
     incapacity which is permanent or long-term due to a condition 
     for which treatment may not be effective. The employee or 
     family member must be under the continuing supervision of, 
     but need not be receiving active treatment by, a health care 
     provider. Examples include Alzheimer's, a severe stroke, or 
     the terminal stages of a disease.
       (5) Conditions requiring multiple treatments. Any period of 
     absence to receive multiple treatments (including any period 
     of recovery therefrom) by a health care provider or by a 
     provider of health care services under orders of, or on 
     referral by, a health care provider, for:
       (i) Restorative surgery after an accident or other injury; 
     or
       (ii) A condition that would likely result in a period of 
     incapacity of more than three consecutive full calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       (6) Absences attributable to incapacity under paragraphs 
     (2) or (3) of this definition qualify for FMLA leave even 
     though the employee or the covered family member does not 
     receive treatment from a health care provider during the 
     absence, and even if the absence does not last more than 
     three consecutive, full calendar days. For example, an 
     employee with asthma may be unable to report for work due to 
     the onset of an asthma attack or because the employee's 
     health care provider has advised the employee to stay home 
     when the pollen count exceeds a certain level. An employee 
     who is pregnant may be unable to report to work because of 
     severe morning sickness.
       Covered active duty or call to covered active duty status 
     means:
       (1) In the case of a member of the Regular Armed Forces, 
     duty during the deployment of the member with the Armed 
     Forces to a foreign country; and,
       (2) In the case of a member of the Reserve components of 
     the Armed Forces, duty during the deployment of the member 
     with the Armed Forces to a foreign country under a Federal 
     call or order to active duty in support of a contingency 
     operation pursuant to: Section 688 of Title 10 of the United 
     States Code, which authorizes ordering to active duty retired 
     members of the Regular Armed Forces and members of the 
     retired Reserve who retired after completing at least 20 
     years of active service; Section 12301(a) of Title 10 of the 
     United States Code, which authorizes ordering all reserve 
     component members to active duty in the case of war or 
     national emergency; Section 12302 of Title 10 of the United 
     States Code, which authorizes ordering any unit or unassigned 
     member of the Ready Reserve to active duty; Section 12304 of 
     Title 10 of the United States Code, which authorizes ordering 
     any unit or unassigned member of the Selected Reserve and 
     certain members of the Individual Ready Reserve to active 
     duty; Section 12305 of Title 10 of the United States Code, 
     which authorizes the suspension of promotion, retirement or 
     separation rules for certain Reserve components; Section 
     12406 of Title 10 of the United States Code, which authorizes 
     calling the National Guard into Federal service in certain 
     circumstances; chapter 15 of Title 10 of the United States 
     Code, which authorizes calling the National Guard and state 
     military into Federal service in the case of insurrections 
     and national emergencies; or any other provision of law 
     during a war or during a national emergency declared by the 
     President or Congress so long as it is in support of a 
     contingency operation. See 10 U.S.C. 101(a)(13)(B). See also 
     825.126(a).
       Covered employee as defined in the CAA, means any employee 
     of--(1) the House of Representatives; (2) the Senate; (3) the 
     Office of Congressional Accessibility Services; (4) the 
     Capitol Police; (5) the Congressional Budget Office; (6) the 
     Office of the Architect of the Capitol; (7) the Office of the 
     Attending Physician; (8) the Office of Compliance; or (9) the 
     Office of Technology Assessment.
       Covered servicemember means:
       (1) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation, or therapy, is otherwise in 
     outpatient status, or is otherwise on the temporary 
     disability retired list, for a serious injury or illness, or
       (2) A covered veteran who is undergoing medical treatment, 
     recuperation, or therapy for a serious injury or illness.
       Covered veteran means an individual who was a member of the 
     Armed Forces (including a member of the National Guard or 
     Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. See 
     825.127(b)(2).
       Eligible employee as defined in the CAA, means:
       (1) A covered employee who has been employed for a total of 
     at least 12 months in any employing office on the date on 
     which any FMLA leave is to commence, except that an employing 
     office need not consider any

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     period of previous employment that occurred more than seven 
     years before the date of the most recent hiring of the 
     employee, unless:
       (i) The break in service is occasioned by the fulfillment 
     of the employee's Uniformed Services Employment and 
     Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., 
     covered service obligation (the period of absence from work 
     due to or necessitated by USERRA-covered service must be also 
     counted in determining whether the employee has been employed 
     for at least 12 months by any employing office, but this 
     section does not provide any greater entitlement to the 
     employee than would be available under the USERRA, as made 
     applicable by the CAA); or
       (ii) A written agreement, including a collective bargaining 
     agreement, exists concerning the employing office's intention 
     to rehire the employee after the break in service (e.g., for 
     purposes of the employee furthering his or her education or 
     for childrearing purposes); and
       (2) Who, on the date on which any FMLA leave is to 
     commence, has met the hours of service requirement by having 
     been employed for at least 1,250 hours of service with an 
     employing office during the previous 12-month period, except 
     that:
       (i) An employee returning from fulfilling his or her 
     USERRA-covered service obligation shall be credited with the 
     hours of service that would have been performed but for the 
     period of absence from work due to or necessitated by USERRA-
     covered service in determining whether the employee met the 
     hours of service requirement (accordingly, a person 
     reemployed following absence from work due to or necessitated 
     by USERRA-covered service has the hours that would have been 
     worked for the employing office added to any hours actually 
     worked during the previous 12-month period to meet the hours 
     of service requirement); and
       (ii) To determine the hours that would have been worked 
     during the period of absence from work due to or necessitated 
     by USERRA-covered service, the employee's pre-service work 
     schedule can generally be used for calculations.
       Employ means to suffer or permit to work.
       Employee means an employee as defined by the CAA and 
     includes an applicant for employment and a former employee.
       Employee employed in an instructional capacity. See the 
     definition of Teacher in this section.
       Employee of the Capitol Police means any member or officer 
     of the Capitol Police.
       Employee of the House of Representatives means 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 the 
     definition of covered employee above.
       Employee of the Office of the Architect of the Capitol 
     means any employee of the Office of the Architect of the 
     Capitol or the Botanic Garden.
       Employee of the Senate means any employee whose pay is 
     disbursed by the Secretary of the Senate, but not any such 
     individual employed by any entity listed in subparagraphs (3) 
     through (9) under the definition of covered employee above.
       Employing Office, as defined by 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 Office of Congressional Accessibility Services, the 
     United States Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of 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 also 825.209(a).
       FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et 
     seq.), as made applicable by the CAA.
       FMLA means the Family and Medical Leave Act of 1993, Public 
     Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et 
     seq., as amended), as made applicable by the CAA.
       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) The FMLA, as made applicable by the CAA, defines health 
     care provider as:
       (i) A doctor of medicine or osteopathy who is authorized to 
     practice medicine or surgery (as appropriate) by the State in 
     which the doctor practices; or
       (ii) Any other person determined by the Department of Labor 
     to be capable of providing health care services.
       (2) Others ``capable of providing health care services'' 
     include only:
       (i) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       (ii) Nurse practitioners, nurse-midwives and clinical 
     social workers and physician assistants who are authorized to 
     practice under State law and who are performing within the 
     scope of their practice as defined under State law;
       (iii) Christian Science practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts. Where 
     an employee or family member is receiving treatment from a 
     Christian Science practitioner, an employee may not object to 
     any requirement from an employing office that the employee or 
     family member submit to examination (though not treatment) to 
     obtain a second or third certification from a health care 
     provider other than a Christian Science practitioner except 
     as otherwise provided under applicable State or local law or 
     collective bargaining agreement;
       (iv) Any health care provider from whom an employing office 
     or a group health plan's benefits manager will accept 
     certification of the existence of a serious health condition 
     to substantiate a claim for benefits; and
       (v) A health care provider listed above who practices in a 
     country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       (3) 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.
       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 the definition of Teacher in 
     this section.
       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.
       Invitational travel authorization (ITA) or Invitational 
     travel order (ITO) mean orders issued by the Armed Forces to 
     a family member to join an injured or ill servicemember at 
     his or her bedside. See also 825.310(e).
       Key employee means a salaried FMLA-eligible employee who is 
     among the highest paid 10 percent of all the employees 
     employed by the employing office within 75 miles of the 
     employee's worksite. See also 825.217.
       Mental disability: See the definition of Physical or mental 
     disability in this section.
       Military caregiver leave means leave taken to care for a 
     covered servicemember with a serious injury or illness under 
     the Family and Medical Leave Act of 1993. See also 825.127.
       Next of kin of a covered servicemember means the nearest 
     blood relative other than the covered servicemember's spouse, 
     parent, son, or daughter, in the following order of priority: 
     blood relatives who have been granted legal custody of the 
     covered servicemember by court decree or statutory 
     provisions, brothers and sisters, grandparents, aunts and 
     uncles, and first cousins, unless the covered servicemember 
     has specifically designated in writing another blood relative 
     as his or her nearest blood relative for purposes of military 
     caregiver leave under the FMLA. When

[[Page H4145]]

     no such designation is made, and there are multiple family 
     members with the same level of relationship to the covered 
     servicemember, all such family members shall be considered 
     the covered servicemember's next of kin and may take FMLA 
     leave to provide care to the covered servicemember, either 
     consecutively or simultaneously. When such designation has 
     been made, the designated individual shall be deemed to be 
     the covered servicemember's only next of kin. See also 
     825.127(d)(3).
       Office of Compliance means the independent office 
     established in the legislative branch under section 301 of 
     the CAA (2 U.S.C. 1381).
       Outpatient status means, with respect to a covered 
     servicemember who is a current member of the Armed Forces, 
     the status of a member of the Armed Forces assigned to either 
     a military medical treatment facility as an outpatient; or a 
     unit established for the purpose of providing command and 
     control of members of the Armed Forces receiving medical care 
     as outpatients. See also 825.127(b)(1).
       Parent means a biological, adoptive, step or foster father 
     or mother or any other individual who stood in loco parentis 
     to the employee when the employee was a son or daughter as 
     defined below. This term does not include parents ``in law.''
       Parent of a covered servicemember means a covered 
     servicemember's biological, adoptive, step or foster father 
     or mother, or any other individual who stood in loco parentis 
     to the covered servicemember. This term does not include 
     parents ``in law.'' See also 825.127(d)(2).
       Physical or mental disability means a physical or mental 
     impairment that substantially limits one or more of the major 
     life activities of an individual. Regulations at 29 CFR part 
     1630, issued by the Equal Employment Opportunity Commission 
     under the Americans with Disabilities Act (ADA), 42 U.S.C. 
     12101 et seq., as amended, provide guidance for these terms.
       Reduced leave schedule means a leave schedule that reduces 
     the usual number of hours per workweek, or hours per workday, 
     of an employee.
       Reserve components of the Armed Forces, for purposes of 
     qualifying exigency leave, include the Army National Guard of 
     the United States, Army Reserve, Navy Reserve, Marine Corps 
     Reserve, Air National Guard of the United States, Air Force 
     Reserve, and Coast Guard Reserve, and retired members of the 
     Regular Armed Forces or Reserves who are called up in support 
     of a contingency operation. See also 825.126(a)(2)(i).
       Secretary means the Secretary of Labor or authorized 
     representative.
       Serious health condition means an illness, injury, 
     impairment, or physical or mental condition that involves 
     inpatient care as defined in 825.114 or continuing treatment 
     by a health care provider as defined in 825.115. Conditions 
     for which cosmetic treatments are administered (such as most 
     treatments for acne or plastic surgery) are not serious 
     health conditions unless inpatient hospital care is required 
     or unless complications develop. Restorative dental or 
     plastic surgery after an injury or removal of cancerous 
     growths are serious health conditions provided all the other 
     conditions of this regulation are met. Mental illness or 
     allergies may be serious health conditions, but only if all 
     the conditions of 825.113 are met.
       Serious injury or illness means:
       (1) In the case of a current member of the Armed Forces, 
     including a member of the National Guard or Reserves, an 
     injury or illness that was incurred by the covered 
     servicemember in the line of duty on active duty in the Armed 
     Forces or that existed before the beginning of the member's 
     active duty and was aggravated by service in the line of duty 
     on active duty in the Armed Forces and that may render the 
     servicemember medically unfit to perform the duties of the 
     member's office, grade, rank, or rating; and
       (2) In the case of a covered veteran, an injury or illness 
     that was incurred by the member in the line of duty on active 
     duty in the Armed Forces (or existed before the beginning of 
     the member's active duty and was aggravated by service in the 
     line of duty on active duty in the Armed Forces) and 
     manifested itself before or after the member became a 
     veteran, and is:
       (i) A continuation of a serious injury or illness that was 
     incurred or aggravated when the covered veteran was a member 
     of the Armed Forces and rendered the servicemember unable to 
     perform the duties of the servicemember's office, grade, 
     rank, or rating; or
       (ii) A physical or mental condition for which the covered 
     veteran has received a U.S. Department of Veterans Affairs 
     Service-Related Disability Rating (VASRD) of 50 percent or 
     greater, and such VASRD rating is based, in whole or in part, 
     on the condition precipitating the need for military 
     caregiver leave; or
       (iii) A physical or mental condition that substantially 
     impairs the covered veteran's ability to secure or follow a 
     substantially gainful occupation by reason of a disability or 
     disabilities related to military service, or would do so 
     absent treatment; or
       (iv) An injury, including a psychological injury, on the 
     basis of which the covered veteran has been enrolled in the 
     Department of Veterans Affairs Program of Comprehensive 
     Assistance for Family Caregivers. See also 825.127(c).
       Son or daughter means a biological, adopted, or foster 
     child, a stepchild, a legal ward, or a child of a person 
     standing in loco parentis, who is either under age 18, or age 
     18 or older and ``incapable of self-care because of a mental 
     or physical disability'' at the time that FMLA leave is to 
     commence.
       Son or daughter of a covered servicemember means a covered 
     servicemember's biological, adopted, or foster child, 
     stepchild, legal ward, or a child for whom the covered 
     servicemember stood in loco parentis, and who is of any age. 
     See also 825.127(d)(1).
       Son or daughter on covered active duty or call to covered 
     active duty status means the employee's biological, adopted, 
     or foster child, stepchild, legal ward, or a child for whom 
     the employee stood in loco parentis, who is on covered active 
     duty or call to covered active duty status, and who is of any 
     age. See also 825.126(a)(5).
       Spouse means a husband or wife. For purposes of this 
     definition, husband or wife refers to the other person with 
     whom an individual entered into marriage as defined or 
     recognized under state law for purposes of marriage in the 
     State in which the marriage was entered into or, in the case 
     of a marriage entered into outside of any State, if the 
     marriage is valid in the place where entered into and could 
     have been entered into in at least one State. This definition 
     includes an individual in a same-sex or common law marriage 
     that either:
       (1) Was entered into in a State that recognizes such 
     marriages; or
       (2) If entered into outside of any State, is valid in the 
     place where entered into and could have been entered into in 
     at least one State.
       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.
       TRICARE is the health care program serving active duty 
     servicemembers, National Guard and Reserve members, retirees, 
     their families, survivors, and certain former spouses 
     worldwide.
     825.103 [Reserved]
     825.104 Covered employing offices.
       (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 Office of Congressional Accessibility Services, the 
     United States Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of Compliance, 
     and the Office of Technology Assessment.
     825.105 [Reserved].
     825.106 Joint employer coverage.
       (a) Where two or more employing offices exercise some 
     control over the work or working conditions of the employee, 
     the employing offices may be joint employers under FMLA, as 
     made applicable by the CAA. Where the employee performs work 
     which simultaneously benefits two or more employing offices, 
     or works for two or more employing offices at different times 
     during the workweek, a joint employment relationship 
     generally will be considered to exist in situations such as:
       (1) Where there is an arrangement between employing offices 
     to share an employee's services or to interchange employees;
       (2) Where one employing office acts directly or indirectly 
     in the interest of the other employing office in relation to 
     the employee; or
       (3) Where the employing offices are not completely 
     disassociated with respect to the employee's employment and 
     may be deemed to share control of the employee, directly or 
     indirectly, because one employing office controls, is 
     controlled by, or is under common control with the other 
     employing office.
       (b) A determination of whether or not a joint employment 
     relationship exists is not determined by the application of 
     any single criterion, but rather the entire relationship is 
     to be viewed in its totality. For example, joint employment 
     will ordinarily be found to exist when:
       (1) An employee, who is employed by an employing office 
     other than the personal office of a Member of the House of 
     Representatives or of a Senator, is under the actual 
     direction and control of the Member of the House of 
     Representatives or Senator; or
       (2) Two or more employing offices employ an individual to 
     work on common issues or other matters for both or all of 
     them.
       (c) When employing offices employ a covered employee 
     jointly, they may designate one of themselves to be the 
     primary employing office, and the other or others to be the 
     secondary employing office(s). Such a designation shall be 
     made by written notice to the covered employee.

[[Page H4146]]

       (d) If an employing office is designated a primary 
     employing office pursuant to paragraph (c) of this section, 
     only that employing office is responsible for giving required 
     notices to the covered employee, providing FMLA leave, and 
     maintenance of health benefits. Job restoration is the 
     primary responsibility of the primary employing office, and 
     the secondary employing office(s) may, subject to the 
     limitations in 825.216, be responsible for accepting the 
     employee returning from FMLA leave.
       (e) If employing offices employ an employee jointly, but 
     fail to designate a primary employing office pursuant to 
     paragraph (c) of this section, then all of these employing 
     offices shall be jointly and severally liable for giving 
     required notices to the employee, for providing FMLA leave, 
     for assuring that health benefits are maintained, and for job 
     restoration. The employee may give notice of need for FMLA 
     leave, as described in 825.302 and 825.303, to whichever of 
     these employing offices the employee chooses. If the employee 
     makes a written request for restoration to one of these 
     employing offices, that employing office shall be primarily 
     responsible for job restoration, and the other employing 
     office(s) may, subject to the limitations in 825.216, be 
     responsible for accepting the employee returning from FMLA 
     leave.
     825.107 [Reserved]
     825.108 [Reserved]
     825.109 [Reserved]
     825.110 Eligible employees.
       (a) An eligible employee is a covered employee of an 
     employing office who:
       (1) Has been employed by any employing office for at least 
     12 months, and
       (2) Has been employed for at least 1,250 hours of service 
     during the 12-month period immediately preceding the 
     commencement of the leave.
       (b) The 12 months an employee must have been employed by 
     any employing office need not be consecutive months, 
     provided:
       (1) Subject to the exceptions provided in paragraph (b)(2) 
     of this section, employment periods prior to a break in 
     service of seven years or more need not be counted in 
     determining whether the employee has been employed by any 
     employing office for at least 12 months.
       (2) Employment periods preceding a break in service of more 
     than seven years must be counted in determining whether the 
     employee has been employed by any employing office for at 
     least 12 months where:
       (i) The employee's break in service is occasioned by the 
     fulfillment of his or her Uniformed Services Employment and 
     Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., 
     covered service obligation. The period of absence from work 
     due to or necessitated by USERRA-covered service must be also 
     counted in determining whether the employee has been employed 
     for at least 12 months by any employing office. However, this 
     section does not provide any greater entitlement to the 
     employee than would be available under the USERRA; or
       (ii) A written agreement, including a collective bargaining 
     agreement, exists concerning the employing office's intention 
     to rehire the employee after the break in service (e.g., for 
     purposes of the employee furthering his or her education or 
     for childrearing purposes).
       (3) If an employee worked for two or more employing offices 
     sequentially, the time worked will be aggregated to determine 
     whether it equals 12 months.
       (4) If an employee is maintained on the payroll for any 
     part of a week, including any periods of paid or unpaid leave 
     (sick, vacation) during which other benefits or compensation 
     are provided by the employing office (e.g., Federal 
     Employees' Compensation, group health plan benefits, etc.), 
     the week counts as a week of employment. For purposes of 
     determining whether intermittent/occasional/casual employment 
     qualifies as at least 12 months, 52 weeks is deemed to be 
     equal to 12 months.
       (5) Nothing in this section prevents employing offices from 
     considering employment prior to a continuous break in service 
     of more than seven years when determining whether an employee 
     has met the 12-month employment requirement. However, if an 
     employing office chooses to recognize such prior employment, 
     the employing office must do so uniformly, with respect to 
     all employees with similar breaks in service.
       (c)(1) If an employee was employed by two or more employing 
     offices, either sequentially or concurrently, the hours of 
     service will be aggregated to determine whether the minimum 
     of 1,250 hours has been reached.
       (2) Except as provided in paragraph (c)(3) of this section, 
     whether an employee has worked the minimum 1,250 hours of 
     service is determined according to the principles established 
     under the Fair Labor Standards Act (FLSA), as applied by 
     section 203 of the CAA (2 U.S.C. 1313), for determining 
     compensable hours of work. The determining factor is the 
     number of hours an employee has worked for one or more 
     employing offices as defined by the CAA. The determination is 
     not limited by methods of recordkeeping, or by compensation 
     agreements that do not accurately reflect all of the hours an 
     employee has worked for or been in service to the employing 
     office. Any accurate accounting of actual hours worked under 
     the FLSA's principles, as made applicable by the CAA (2 
     U.S.C. 1313), may be used.
       (3) An employee returning from USERRA-covered service shall 
     be credited with the hours of service that would have been 
     performed but for the period of absence from work due to or 
     necessitated by USERRA-covered service in determining the 
     employee's eligibility for FMLA-qualifying leave. 
     Accordingly, a person reemployed following USERRA-covered 
     service has the hours that would have been worked for the 
     employing office added to any hours actually worked during 
     the previous 12-month period to meet the hours of service 
     requirement. In order to determine the hours that would have 
     been worked during the period of absence from work due to or 
     necessitated by USERRA-covered service, the employee's pre-
     service work schedule can generally be used for calculations.
       (4) In the event an employing office does not maintain an 
     accurate record of hours worked by an employee, including for 
     employees who are exempt from the overtime requirements of 
     the FLSA, as made applicable by the CAA and its regulations, 
     the employing office has the burden of showing that the 
     employee has not worked the requisite hours. An employing 
     office must be able to clearly demonstrate, for example, that 
     full time teachers (see 825.102 for definition) of an 
     elementary or secondary school system, or institution of 
     higher education, or other educational establishment or 
     institution (who often work outside the classroom or at their 
     homes) did not work 1,250 hours during the previous 12 months 
     in order to claim that the teachers are not covered or 
     eligible for FMLA leave.
       (d) The determination of whether an employee meets the 
     hours of service requirement for any employing office and has 
     been employed by any employing office for a total of at least 
     12 months, must be made as of the date the FMLA leave is to 
     start. An employee may be on non-FMLA leave at the time he or 
     she meets the 12-month eligibility requirement, and in that 
     event, any portion of the leave taken for an FMLA-qualifying 
     reason after the employee meets the eligibility requirement 
     would be FMLA leave. See 825.300(b) for rules governing the 
     content of the eligibility notice given to employees.
       (e) If, before beginning employment with an employing 
     office, an employee had been employed by another employing 
     office, the subsequent employing office may count against the 
     employee's FMLA leave entitlement FMLA leave taken from the 
     prior employing office, so long as the prior employing office 
     properly designated the leave as FMLA under these regulations 
     or other applicable requirements.
     825.111 [Reserved]
     825.112 Qualifying reasons for leave, general rule.
       (a) Circumstances qualifying for leave. Employing offices 
     covered by FMLA as made applicable by the CAA are required to 
     grant leave to eligible employees:
       (1) For birth of a son or daughter, and to care for the 
     newborn child (see 825.120);
       (2) For placement with the employee of a son or daughter 
     for adoption or foster care (see 825.121);
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition (see 825.113 and 
     825.122);
       (4) Because of a serious health condition that makes the 
     employee unable to perform the functions of the employee's 
     job (see 825.113 and 825.123);
       (5) Because of any qualifying exigency arising out of the 
     fact that the employee's spouse, son, daughter, or parent is 
     a military member on covered active duty (or has been 
     notified of an impending call or order to covered active duty 
     status) (see 825.122 and 825.126); and
       (6) To care for a covered servicemember with a serious 
     injury or illness if the employee is the spouse, son, 
     daughter, parent, or next of kin of the covered servicemember 
     (see 825.122 and 825.127).
       (b) Equal Application. The right to take leave under FMLA, 
     as made applicable by the CAA, applies equally to male and 
     female employees. A father, as well as a mother, can take 
     family leave for the birth, placement for adoption, or foster 
     care of a child.
       (c) Active employee. In situations where the employing 
     office/employee relationship has been interrupted, such as an 
     employee who has been on layoff, the employee must be 
     recalled or otherwise be re-employed before being eligible 
     for FMLA leave. Under such circumstances, an eligible 
     employee is immediately entitled to further FMLA leave for a 
     qualifying reason.
     825.113 Serious health condition.
       (a) For purposes of FMLA, serious health condition 
     entitling an employee to FMLA leave means an illness, injury, 
     impairment, or physical or mental condition that involves 
     inpatient care as defined in 825.114 or continuing treatment 
     by a health care provider as defined in 825.115.
       (b) The term incapacity means inability to work, attend 
     school or perform other regular daily activities due to the 
     serious health condition, treatment therefore, or recovery 
     therefrom.
       (c) The term treatment includes (but is not limited to) 
     examinations to determine if a serious health condition 
     exists and evaluations of the condition. Treatment does not 
     include routine physical examinations, eye examinations, or 
     dental examinations. A regimen of continuing treatment 
     includes, for example, a course of prescription medication 
     (e.g., an antibiotic) or therapy requiring special equipment 
     to resolve or alleviate the health condition (e.g., oxygen). 
     A regimen of continuing treatment that includes the taking of 
     over-the-counter medications such as

[[Page H4147]]

     aspirin, antihistamines, or salves; or bed-rest, drinking 
     fluids, exercise, and other similar activities that can be 
     initiated without a visit to a health care provider, is not, 
     by itself, sufficient to constitute a regimen of continuing 
     treatment for purposes of FMLA leave.
       (d) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not serious health conditions unless inpatient 
     hospital care is required or unless complications develop. 
     Ordinarily, unless complications arise, the common cold, the 
     flu, ear aches, upset stomach, minor ulcers, headaches other 
     than migraine, routine dental or orthodontia problems, 
     periodontal disease, etc., are examples of conditions that do 
     not meet the definition of a serious health condition and do 
     not qualify for FMLA leave. Restorative dental or plastic 
     surgery after an injury or removal of cancerous growths are 
     serious health conditions provided all the other conditions 
     of this regulation are met. Mental illness or allergies may 
     be serious health conditions, but only if all the conditions 
     of this section are met.
     825.114 Inpatient care.
       In patient care means an overnight stay in a hospital, 
     hospice, or residential medical care facility, including any 
     period of incapacity as defined in 825.113(b), or any 
     subsequent treatment in connection with such inpatient care.
     825.115 Continuing treatment.
       A serious health condition involving continuing treatment 
     by a health care provider includes any one or more of the 
     following:
       (a) Incapacity and treatment. A period of incapacity of 
     more than three consecutive, full calendar days, and any 
     subsequent treatment or period of incapacity relating to the 
     same condition, that also involves:
       (1) Treatment two or more times, within 30 days of the 
     first day of incapacity, unless extenuating circumstances 
     exist, by a health care provider, by a nurse under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under orders 
     of, or on referral by, a health care provider; 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.
       (3) The requirement in paragraphs (a)(1) and (2) of this 
     section for treatment by a health care provider means an in-
     person visit to a health care provider. The first (or only) 
     in-person treatment visit must take place within seven days 
     of the first day of incapacity.
       (4) Whether additional treatment visits or a regimen of 
     continuing treatment is necessary within the 30-day period 
     shall be determined by the health care provider.
       (5) The term extenuating circumstances in paragraph (a)(1) 
     of this section means circumstances beyond the employee's 
     control that prevent the follow-up visit from occurring as 
     planned by the health care provider. Whether a given set of 
     circumstances are extenuating depends on the facts. For 
     example, extenuating circumstances exist if a health care 
     provider determines that a second in-person visit is needed 
     within the 30-day period, but the health care provider does 
     not have any available appointments during that time period.
       (b) Pregnancy or prenatal care. Any period of incapacity 
     due to pregnancy, or for prenatal care. See also 825.120.
       (c) Chronic conditions. Any period of incapacity or 
     treatment for such incapacity due to a chronic serious health 
     condition. A chronic serious health condition is one which:
       (1) Requires periodic visits (defined as at least twice a 
     year) for treatment by a health care provider, or by a nurse 
     under direct supervision of a health care provider;
       (2) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       (3) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       (d) Permanent or long-term conditions. A period of 
     incapacity which is permanent or long-term due to a condition 
     for which treatment may not be effective. The employee or 
     family member must be under the continuing supervision of, 
     but need not be receiving active treatment by, a health care 
     provider. Examples include Alzheimer's, a severe stroke, or 
     the terminal stages of a disease.
       (e) Conditions requiring multiple treatments. Any period of 
     absence to receive multiple treatments (including any period 
     of recovery therefrom) by a health care provider or by a 
     provider of health care services under orders of, or on 
     referral by, a health care provider, for:
       (1) Restorative surgery after an accident or other injury; 
     or
       (2) A condition that would likely result in a period of 
     incapacity of more than three consecutive, full calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), or kidney disease (dialysis).
       (f) Absences attributable to incapacity under paragraphs 
     (b) or (c) of this section qualify for FMLA leave even though 
     the employee or the covered family member does not receive 
     treatment from a health care provider during the absence, and 
     even if the absence does not last more than three 
     consecutive, full calendar days. For example, an employee 
     with asthma may be unable to report for work due to the onset 
     of an asthma attack or because the employee's health care 
     provider has advised the employee to stay home when the 
     pollen count exceeds a certain level. An employee who is 
     pregnant may be unable to report to work because of severe 
     morning sickness.
     825.116 [Reserved]
     825.117 [Reserved]
     825.118 [Reserved]
     825.119 Leave for treatment of substance abuse.
       (a) Substance abuse may be a serious health condition if 
     the conditions of 825.113 through 825.115 are met. However, 
     FMLA leave may only be taken for treatment for substance 
     abuse by a health care provider or by a provider of health 
     care services on referral by a health care provider. On the 
     other hand, absence because of the employee's use of the 
     substance, rather than for treatment, does not qualify for 
     FMLA leave.
       (b) Treatment for substance abuse does not prevent an 
     employing office from taking employment action against an 
     employee. The employing office may not take action against 
     the employee because the employee has exercised his or her 
     right to take FMLA leave for treatment. However, if the 
     employing office has an established policy, applied in a non-
     discriminatory manner that has been communicated to all 
     employees, that provides under certain circumstances an 
     employee may be terminated for substance abuse, pursuant to 
     that policy the employee may be terminated whether or not the 
     employee is presently taking FMLA leave. An employee may also 
     take FMLA leave to care for a covered family member who is 
     receiving treatment for substance abuse. The employing office 
     may not take action against an employee who is providing care 
     for a covered family member receiving treatment for substance 
     abuse.
     825.120 Leave for pregnancy or birth.
       (a) General rules. Eligible employees are entitled to FMLA 
     leave for pregnancy or birth of a child as follows:
       (1) Both parents are entitled to FMLA leave for the birth 
     of their child.
       (2) Both parents are entitled to FMLA leave to be with the 
     healthy newborn child (i.e., bonding time) during the 12-
     month period beginning on the date of birth. An employee's 
     entitlement to FMLA leave for a birth expires at the end of 
     the 12-month period beginning on the date of the birth. If 
     the employing office permits bonding leave to be taken beyond 
     this period, such leave will not qualify as FMLA leave. Under 
     this section, both parents are entitled to FMLA leave even if 
     the newborn does not have a serious health condition.
       (3) Spouses who are eligible for FMLA leave and are 
     employed by the same employing office may be limited to a 
     combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken for birth of the employee's son 
     or daughter or to care for the child after birth, for 
     placement of a son or daughter with the employee for adoption 
     or foster care or to care for the child after placement, or 
     to care for the employee's parent with a serious health 
     condition. This limitation on the total weeks of leave 
     applies to leave taken for the reasons specified as long as 
     the spouses are employed by the same employing office. It 
     would apply, for example, even though the spouses are 
     employed at two different worksites of an employing office. 
     On the other hand, if one spouse is ineligible for FMLA 
     leave, the other spouse would be entitled to a full 12 weeks 
     of FMLA leave. Where spouses both use a portion of the total 
     12-week FMLA leave entitlement for either the birth of a 
     child, for placement for adoption or foster care, or to care 
     for a parent, the spouses would each be entitled to the 
     difference between the amount he or she has taken 
     individually and 12 weeks for FMLA leave for other purposes. 
     For example, if each spouse took six weeks of leave to care 
     for a healthy, newborn child, each could use an additional 
     six weeks due to his or her own serious health condition or 
     to care for a child with a serious health condition.
       (4) The expectant mother is entitled to FMLA leave for 
     incapacity due to pregnancy, for prenatal care, or for her 
     own serious health condition following the birth of the 
     child. An expectant mother may take FMLA leave before the 
     birth of the child for prenatal care or if her condition 
     makes her unable to work. The expectant mother is entitled to 
     leave for incapacity due to pregnancy even though she does 
     not receive treatment from a health care provider during the 
     absence, and even if the absence does not last for more than 
     three consecutive calendar days.
       (5) A spouse is entitled to FMLA leave if needed to care 
     for a pregnant spouse who is incapacitated or if needed to 
     care for her during her prenatal care, or if needed to care 
     for her following the birth of a child if she has a serious 
     health condition. See 825.124.
       (6) Both parents are entitled to FMLA leave if needed to 
     care for a child with a serious health condition if the 
     requirements of 825.113 through 825.115 and 825.122(d) are 
     met. Thus, spouses may each take 12 weeks of FMLA leave if 
     needed to care for their newborn child with a serious health 
     condition, even if both are employed by the same employing 
     office, provided they have not exhausted their entitlements 
     during the applicable 12-month FMLA leave period.
       (b) Intermittent and reduced schedule leave. An eligible 
     employee may use intermittent

[[Page H4148]]

     or reduced schedule leave after the birth to be with a 
     healthy newborn child only if the employing office agrees. 
     For example, an employing office and employee may agree to a 
     part-time work schedule after the birth. If the employing 
     office agrees to permit intermittent or reduced schedule 
     leave for the birth of a child, the employing office may 
     require the employee to transfer temporarily, during the 
     period the intermittent or reduced leave schedule is 
     required, to an available alternative position for which the 
     employee is qualified and which better accommodates recurring 
     periods of leave than does the employee's regular position. 
     Transfer to an alternative position may require compliance 
     with any applicable collective bargaining agreement and 
     federal law (such as the Americans with Disabilities Act, as 
     made applicable by the CAA). Transfer to an alternative 
     position may include altering an existing job to better 
     accommodate the employee's need for intermittent or reduced 
     leave. The employing office's agreement is not required for 
     intermittent leave required by the serious health condition 
     of the expectant mother or newborn child. See 825.202-825.205 
     for general rules governing the use of intermittent and 
     reduced schedule leave. See 825.121 for rules governing leave 
     for adoption or foster care. See 825.601 for special rules 
     applicable to instructional employees of schools.
     825.121 Leave for adoption or foster care.
       (a) General rules. Eligible employees are entitled to FMLA 
     leave for placement with the employee of a son or daughter 
     for adoption or foster care as follows:
       (1) Employees may take FMLA leave before the actual 
     placement or adoption of a child if an absence from work is 
     required for the placement for adoption or foster care to 
     proceed. For example, the employee may be required to attend 
     counseling sessions, appear in court, consult with his or her 
     attorney or the doctor(s) representing the birth parent, 
     submit to a physical examination, or travel to another 
     country to complete an adoption. The source of an adopted 
     child (e.g., whether from a licensed placement agency or 
     otherwise) is not a factor in determining eligibility for 
     leave for this purpose.
       (2) An employee's entitlement to leave for adoption or 
     foster care expires at the end of the 12-month period 
     beginning on the date of the placement. If the employing 
     office permits leave for adoption or foster care to be taken 
     beyond this period, such leave will not qualify as FMLA 
     leave. Under this section, the employee is entitled to FMLA 
     leave even if the adopted or foster child does not have a 
     serious health condition.
       (3) Spouses who are eligible for FMLA leave and are 
     employed by the same covered employing office may be limited 
     to a combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken for the placement of the 
     employee's son or daughter or to care for the child after 
     placement, for the birth of the employee's son or daughter or 
     to care for the child after birth, or to care for the 
     employee's parent with a serious health condition. This 
     limitation on the total weeks of leave applies to leave taken 
     for the reasons specified as long as the spouses are employed 
     by the same employing office. It would apply, for example, 
     even though the spouses are employed at two different 
     worksites of an employing office. On the other hand, if one 
     spouse is ineligible for FMLA leave, the other spouse would 
     be entitled to a full 12 weeks of FMLA leave. Where spouses 
     both use a portion of the total 12-week FMLA leave 
     entitlement for either the birth of a child, for placement 
     for adoption or foster care, or to care for a parent, the 
     spouses would each be entitled to the difference between the 
     amount he or she has taken individually and 12 weeks for FMLA 
     leave for other purposes. For example, if each spouse took 
     six weeks of leave to care for a healthy, newly placed child, 
     each could use an additional six weeks due to his or her own 
     serious health condition or to care for a child with a 
     serious health condition.
       (4) An eligible employee is entitled to FMLA leave in order 
     to care for an adopted or foster child with a serious health 
     condition if the requirements of 825.113 through 825.115 and 
     825.122(d) are met. Thus, spouses may each take 12 weeks of 
     FMLA leave if needed to care for an adopted or foster child 
     with a serious health condition, even if both are employed by 
     the same employing office, provided they have not exhausted 
     their entitlements during the applicable 12-month FMLA leave 
     period.
       (b) Use of intermittent and reduced schedule leave. An 
     eligible employee may use intermittent or reduced schedule 
     leave after the placement of a healthy child for adoption or 
     foster care only if the employing office agrees. Thus, for 
     example, the employing office and employee may agree to a 
     part-time work schedule after the placement for bonding 
     purposes. If the employing office agrees to permit 
     intermittent or reduced schedule leave for the placement for 
     adoption or foster care, the employing office may require the 
     employee to transfer temporarily, during the period the 
     intermittent or reduced leave schedule is required, to an 
     available alternative position for which the employee is 
     qualified and which better accommodates recurring periods of 
     leave than does the employee's regular position. Transfer to 
     an alternative position may require compliance with any 
     applicable collective bargaining agreement and federal law 
     (such as the Americans with Disabilities Act, as made 
     applicable by the CAA). Transfer to an alternative position 
     may include altering an existing job to better accommodate 
     the employee's need for intermittent or reduced leave. The 
     employing office's agreement is not required for intermittent 
     leave required by the serious health condition of the adopted 
     or foster child. See 825.202-825.205 for general rules 
     governing the use of intermittent and reduced schedule leave. 
     See 825.120 for general rules governing leave for pregnancy 
     and birth of a child. See 825.601 for special rules 
     applicable to instructional employees of schools.
     825.122 Definitions of covered servicemember, spouse, parent, 
         son or daughter, next of kin of a covered servicemember, 
         adoption, foster care, son or daughter on covered active 
         duty or call to covered active duty status, son or 
         daughter of a covered servicemember, and parent of a 
         covered servicemember.
       (a) Covered servicemember means:
       (1) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation or therapy, is otherwise in 
     outpatient status, or is otherwise on the temporary 
     disability retired list, for a serious injury or illness; or
       (2) A covered veteran who is undergoing medical treatment, 
     recuperation, or therapy for a serious injury or illness. 
     Covered veteran means an individual who was a member of the 
     Armed Forces (including a member of the National Guard or 
     Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. See 
     825.127(b)(2).
       (b) Spouse means a husband or wife. For purposes of this 
     definition, husband or wife refers to the other person with 
     whom an individual entered into marriage as defined or 
     recognized under state law for purposes of marriage in the 
     State in which the marriage was entered into or, in the case 
     of a marriage entered into outside of any State, if the 
     marriage is valid in the place where entered into and could 
     have been entered into in at least one State. This definition 
     includes an individual in a same-sex or common law marriage 
     that either:
       (1) Was entered into in a State that recognizes such 
     marriages; or
       (2) If entered into outside of any State, is valid in the 
     place where entered into and could have been entered into in 
     at least one State.
       (c) Parent. Parent means a biological, adoptive, step or 
     foster father or mother, or any other individual who stood in 
     loco parentis to the employee when the employee was a son or 
     daughter as defined in paragraph (d) of this section. This 
     term does not include parents ``in law.''
       (d) Son or daughter. For purposes of FMLA leave taken for 
     birth or adoption, or to care for a family member with a 
     serious health condition, son or daughter means a biological, 
     adopted, or foster child, a stepchild, a legal ward, or a 
     child of a person standing in loco parentis, who is either 
     under age 18, or age 18 or older and ``incapable of self-care 
     because of a mental or physical disability'' at the time that 
     FMLA leave is to commence.
       (1) Incapable of self-care means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in three or more of the activities of daily living 
     (ADLs) or instrumental activities of daily living (IADLs). 
     Activities of daily living include adaptive activities such 
     as caring appropriately for one's grooming and hygiene, 
     bathing, dressing and eating. Instrumental activities of 
     daily living include cooking, cleaning, shopping, taking 
     public transportation, paying bills, maintaining a residence, 
     using telephones and directories, using a post office, etc.
       (2) Physical or mental disability means a physical or 
     mental impairment that substantially limits one or more of 
     the major life activities of an individual. Regulations at 29 
     CFR 1630.2(h), (i), and (j), issued by the Equal Employment 
     Opportunity Commission under the Americans with Disabilities 
     Act (ADA), 42 U.S.C. 12101 et seq., provide guidance for 
     these terms.
       (3) Persons who are ``in loco parentis'' include those with 
     day-to-day responsibilities to care for and financially 
     support a child, or, in the case of an employee, who had such 
     responsibility for the employee when the employee was a 
     child. A biological or legal relationship is not necessary.
       (e) Next of kin of a covered servicemember means the 
     nearest blood relative other than the covered servicemember's 
     spouse, parent, son, or daughter, in the following order of 
     priority: blood relatives who have been granted legal custody 
     of the covered servicemember by court decree or statutory 
     provisions, brothers and sisters, grandparents, aunts and 
     uncles, and first cousins, unless the covered servicemember 
     has specifically designated in writing another blood relative 
     as his or her nearest blood relative for purposes of military 
     caregiver leave under the FMLA. When no such designation is 
     made, and there are multiple family members with the same 
     level of relationship to the covered servicemember, all such 
     family members shall be considered the covered 
     servicemember's next of kin and may take FMLA leave to 
     provide care to the covered servicemember, either 
     consecutively or simultaneously. When such designation has 
     been made, the designated individual shall be deemed to be 
     the covered servicemember's only next of kin. See 
     825.127(d)(3).

[[Page H4149]]

       (f) Adoption means legally and permanently assuming the 
     responsibility of raising a child as one's own. The source of 
     an adopted child (e.g., whether from a licensed placement 
     agency or otherwise) is not a factor in determining 
     eligibility for FMLA leave. See 825.121 for rules governing 
     leave for adoption.
       (g) Foster care means 24-hour care for children in 
     substitution for, and away from, their parents or guardian. 
     Such placement is made by or with the agreement of the State 
     as a result of a voluntary agreement between the parent or 
     guardian that the child be removed from the home, or pursuant 
     to a judicial determination of the necessity for foster care, 
     and involves agreement between the State and foster family 
     that the foster family will take care of the child. Although 
     foster care may be with relatives of the child, State action 
     is involved in the removal of the child from parental 
     custody. See 825.121 for rules governing leave for foster 
     care.
       (h) Son or daughter on covered active duty or call to 
     covered active duty status means the employee's biological, 
     adopted, or foster child, stepchild, legal ward, or a child 
     for whom the employee stood in loco parentis, who is on 
     covered active duty or call to covered active duty status, 
     and who is of any age. See 825.126(a)(5).
       (i) Son or daughter of a covered servicemember means the 
     covered servicemember's biological, adopted, or foster child, 
     stepchild, legal ward, or a child for whom the covered 
     servicemember stood in loco parentis, and who is of any age. 
     See 825.127(d)(1).
       (j) Parent of a covered servicemember means a covered 
     servicemember's biological, adoptive, step or foster father 
     or mother, or any other individual who stood in loco parentis 
     to the covered servicemember. This term does not include 
     parents ``in law.'' See 825.127(d)(2).
       (k) Documenting relationships. For purposes of confirmation 
     of family relationship, the employing office may require the 
     employee giving notice of the need for leave to provide 
     reasonable documentation or statement of family relationship. 
     This documentation may take the form of a simple statement 
     from the employee, or a child's birth certificate, a court 
     document, etc. The employing office is entitled to examine 
     documentation such as a birth certificate, etc., but the 
     employee is entitled to the return of the official document 
     submitted for this purpose.
     825.123 Unable to perform the functions of the position.
       (a) Definition. An employee is unable to perform the 
     functions of the position where the health care provider 
     finds that the employee is unable to work at all or is unable 
     to perform any one of the essential functions of the 
     employee's position within the meaning of the Americans with 
     Disabilities Act (ADA), as amended and made applicable by 
     Section 201(a) of the CAA (2 U.S.C. 1311(a)(3)). An employee 
     who must be absent from work to receive medical treatment for 
     a serious health condition is considered to be unable to 
     perform the essential functions of the position during the 
     absence for treatment.
       (b) Statement of functions. An employing office has the 
     option, in requiring certification from a health care 
     provider, to provide a statement of the essential functions 
     of the employee's position for the health care provider to 
     review. A sufficient medical certification must specify what 
     functions of the employee's position the employee is unable 
     to perform so that the employing office can then determine 
     whether the employee is unable to perform one or more 
     essential functions of the employee's position. For purposes 
     of the FMLA, the essential functions of the employee's 
     position are to be determined with reference to the position 
     the employee held at the time notice is given or leave 
     commenced, whichever is earlier. See 825.306.
     825.124 Needed to care for a family member or covered 
         servicemember.
       (a) The medical certification provision that an employee is 
     needed to care for a family member or covered servicemember 
     encompasses both physical and psychological care. It includes 
     situations where, for example, because of a serious health 
     condition, the family member is unable to care for his or her 
     own basic medical, hygienic, or nutritional needs or safety, 
     or is unable to transport himself or herself to the doctor. 
     The term also includes providing psychological comfort and 
     reassurance which would be beneficial to a child, spouse or 
     parent with a serious health condition who is receiving 
     inpatient or home care.
       (b) The term also includes situations where the employee 
     may be needed to substitute for others who normally care for 
     the family member or covered servicemember, or to make 
     arrangements for changes in care, such as transfer to a 
     nursing home. The employee need not be the only individual or 
     family member available to care for the family member or 
     covered servicemember.
       (c) An employee's intermittent leave or a reduced leave 
     schedule necessary to care for a family member or covered 
     servicemember includes not only a situation where the 
     condition of the family member or covered servicemember 
     itself is intermittent, but also where the employee is only 
     needed intermittently--such as where other care is normally 
     available, or care responsibilities are shared with another 
     member of the family or a third party. See 825.202-825.205 
     for rules governing the use of intermittent or reduced 
     schedule leave.
     825.125 Definition of health care provider.
       (a) The FMLA, as made applicable by the CAA, defines health 
     care provider as:
       (1) A doctor of medicine or osteopathy who is authorized to 
     practice medicine or surgery (as appropriate) by the State in 
     which the doctor practices; or
       (2) Any other person determined by the Office of Compliance 
     to be capable of providing health care services.
       (3) In making a determination referred to in subparagraph 
     (a)(2), and absent good cause shown to do otherwise, the 
     Office of Compliance will follow any determination made by 
     the Department of Labor (under section 101(6)(B) of FMLA (29 
     U.S.C. 2611(6)(B))) that a person is capable of providing 
     health care services, provided the determination by the 
     Department of Labor was not made at the request of a person 
     who was then a covered employee.
       (b) Others capable of providing health care services 
     include only:
       (1) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       (2) Nurse practitioners, nurse-midwives, clinical social 
     workers and physician assistants who are authorized to 
     practice under State law and who are performing within the 
     scope of their practice as defined under State law;
       (3) Christian Science Practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts. Where 
     an employee or family member is receiving treatment from a 
     Christian Science practitioner, an employee may not object to 
     any requirement from an employing office that the employee or 
     family member submit to examination (though not treatment) to 
     obtain a second or third certification from a health care 
     provider other than a Christian Science practitioner except 
     as otherwise provided under applicable State or local law or 
     collective bargaining agreement;
       (4) Any health care provider from whom an employing office 
     or the employing office's group health plan's benefits 
     manager will accept certification of the existence of a 
     serious health condition to substantiate a claim for 
     benefits; and
       (5) A health care provider listed above who practices in a 
     country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       (c) The phrase authorized to practice in the State as used 
     in this section means that the provider must be authorized to 
     diagnose and treat physical or mental health conditions.
     825.126 Leave because of a qualifying exigency.
       (a) Eligible employees may take FMLA leave for a qualifying 
     exigency while the employee's spouse, son, daughter, or 
     parent (the military member or member) is on covered active 
     duty or call to covered active duty status (or has been 
     notified of an impending call or order to covered active 
     duty).
       (1) Covered active duty or call to covered active duty 
     status in the case of a member of the Regular Armed Forces 
     means duty during the deployment of the member with the Armed 
     Forces to a foreign country. The active duty orders of a 
     member of the Regular components of the Armed Forces will 
     generally specify if the member is deployed to a foreign 
     country.
       (2) Covered active duty or call to covered active duty 
     status in the case of a member of the Reserve components of 
     the Armed Forces means duty during the deployment of the 
     member with the Armed Forces to a foreign country under a 
     Federal call or order to active duty in support of a 
     contingency operation pursuant to: Section 688 of Title 10 of 
     the United States Code, which authorizes ordering to active 
     duty retired members of the Regular Armed Forces and members 
     of the retired Reserve who retired after completing at least 
     20 years of active service; Section 12301(a) of Title 10 of 
     the United States Code, which authorizes ordering all reserve 
     component members to active duty in the case of war or 
     national emergency; Section 12302 of Title 10 of the United 
     States Code, which authorizes ordering any unit or unassigned 
     member of the Ready Reserve to active duty; Section 12304 of 
     Title 10 of the United States Code, which authorizes ordering 
     any unit or unassigned member of the Selected Reserve and 
     certain members of the Individual Ready Reserve to active 
     duty; Section 12305 of Title 10 of the United States Code, 
     which authorizes the suspension of promotion, retirement or 
     separation rules for certain Reserve components; Section 
     12406 of Title 10 of the United States Code, which authorizes 
     calling the National Guard into Federal service in certain 
     circumstances; chapter 15 of Title 10 of the United States 
     Code, which authorizes calling the National Guard and state 
     military into Federal service in the case of insurrections 
     and national emergencies; or any other provision of law 
     during a war or during a national emergency declared by the 
     President or Congress so long as it is in support of a 
     contingency operation. See 10 U.S.C. 101(a)(13)(B).
       (i) For purposes of covered active duty or call to covered 
     active duty status, the Reserve components of the Armed 
     Forces include the Army National Guard of the United States, 
     Army Reserve, Navy Reserve, Marine Corps Reserve, Air 
     National Guard of the United States, Air Force Reserve and

[[Page H4150]]

     Coast Guard Reserve, and retired members of the Regular Armed 
     Forces or Reserves who are called up in support of a 
     contingency operation pursuant to one of the provisions of 
     law identified in paragraph (a)(2).
       (ii) The active duty orders of a member of the Reserve 
     components will generally specify if the military member is 
     serving in support of a contingency operation by citation to 
     the relevant section of Title 10 of the United States Code 
     and/or by reference to the specific name of the contingency 
     operation and will specify that the deployment is to a 
     foreign country.
       (3) Deployment of the member with the Armed Forces to a 
     foreign country means deployment to areas outside of the 
     United States, the District of Columbia, or any Territory or 
     possession of the United States, including international 
     waters.
       (4) A call to covered active duty for purposes of leave 
     taken because of a qualifying exigency refers to a Federal 
     call to active duty. State calls to active duty are not 
     covered unless under order of the President of the United 
     States pursuant to one of the provisions of law identified in 
     paragraph (a)(2) of this section.
       (5) Son or daughter on covered active duty or call to 
     covered active duty status means the employee's biological, 
     adopted, or foster child, stepchild, legal ward, or a child 
     for whom the employee stood in loco parentis, who is on 
     covered active duty or call to covered active duty status, 
     and who is of any age.
       (b) An eligible employee may take FMLA leave for one or 
     more of the following qualifying exigencies:
       (1) Short-notice deployment. (i) To address any issue that 
     arises from the fact that the military member is notified of 
     an impending call or order to covered active duty seven or 
     less calendar days prior to the date of deployment;
       (ii) Leave taken for this purpose can be used for a period 
     of seven calendar days beginning on the date the military 
     member is notified of an impending call or order to covered 
     active duty;
       (2) Military events and related activities. (i) To attend 
     any official ceremony, program, or event sponsored by the 
     military that is related to the covered active duty or call 
     to covered active duty status of the military member; and
       (ii) To attend family support or assistance programs and 
     informational briefings sponsored or promoted by the 
     military, military service organizations, or the American Red 
     Cross that are related to the covered active duty or call to 
     covered active duty status of the military member;
       (3) Childcare and school activities. For the purposes of 
     leave for childcare and school activities listed in (i) 
     through (iv) of this paragraph, a child of the military 
     member must be the military member's biological, adopted, or 
     foster child, stepchild, legal ward, or child for whom the 
     military member stands in loco parentis, who is either under 
     18 years of age or 18 years of age or older and incapable of 
     self-care because of a mental or physical disability at the 
     time that FMLA leave is to commence. As with all instances of 
     qualifying exigency leave, the military member must be the 
     spouse, son, daughter, or parent of the employee requesting 
     qualifying exigency leave.
       (i) To arrange for alternative childcare for a child of the 
     military member when the covered active duty or call to 
     covered active duty status of the military member 
     necessitates a change in the existing childcare arrangement;
       (ii) To provide childcare for a child of the military 
     member on an urgent, immediate need basis (but not on a 
     routine, regular, or everyday basis) when the need to provide 
     such care arises from the covered active duty or call to 
     covered active duty status of the military member;
       (iii) To enroll in or transfer to a new school or day care 
     facility a child of the military member when enrollment or 
     transfer is necessitated by the covered active duty or call 
     to covered active duty status of the military member; and
       (iv) To attend meetings with staff at a school or a daycare 
     facility, such as meetings with school officials regarding 
     disciplinary measures, parent-teacher conferences, or 
     meetings with school counselors, for a child of the military 
     member, when such meetings are necessary due to circumstances 
     arising from the covered active duty or call to covered 
     active duty status of the military member;
       (4) Financial and legal arrangements. (i) To make or update 
     financial or legal arrangements to address the military 
     member's absence while on covered active duty or call to 
     covered active duty status, such as preparing and executing 
     financial and healthcare powers of attorney, transferring 
     bank account signature authority, enrolling in the Defense 
     Enrollment Eligibility Reporting System (DEERS), obtaining 
     military identification cards, or preparing or updating a 
     will or living trust; and
       (ii) To act as the military member's representative before 
     a federal, state, or local agency for purposes of obtaining, 
     arranging, or appealing military service benefits while the 
     military member is on covered active duty or call to covered 
     active duty status, and for a period of 90 days following the 
     termination of the military member's covered active duty 
     status;
       (5) Counseling. To attend counseling provided by someone 
     other than a health care provider, for oneself, for the 
     military member, or for the biological, adopted, or foster 
     child, a stepchild, or a legal ward of the military member, 
     or a child for whom the military member stands in loco 
     parentis, who is either under age 18, or age 18 or older and 
     incapable of self-care because of a mental or physical 
     disability at the time that FMLA leave is to commence, 
     provided that the need for counseling arises from the covered 
     active duty or call to covered active duty status of the 
     military member;
       (6) Rest and Recuperation. (i) To spend time with the 
     military member who is on short-term, temporary, Rest and 
     Recuperation leave during the period of deployment;
       (ii) Leave taken for this purpose can be used for a period 
     of 15 calendar days beginning on the date the military member 
     commences each instance of Rest and Recuperation leave;
       (7) Post-deployment activities. (i) To attend arrival 
     ceremonies, reintegration briefings and events, and any other 
     official ceremony or program sponsored by the military for a 
     period of 90 days following the termination of the military 
     member's covered active duty status; and
       (ii) To address issues that arise from the death of the 
     military member while on covered active duty status, such as 
     meeting and recovering the body of the military member, 
     making funeral arrangements, and attending funeral services;
       (8) Parental care. For purposes of leave for parental care 
     listed in (i) through (iv) of this paragraph, the parent of 
     the military member must be incapable of self-care and must 
     be the military member's biological, adoptive, step, or 
     foster father or mother, or any other individual who stood in 
     loco parentis to the military member when the member was 
     under 18 years of age. A parent who is incapable of self-care 
     means that the parent requires active assistance or 
     supervision to provide daily self-care in three or more of 
     the activities of daily living or instrumental activities of 
     daily living. Activities of daily living include adaptive 
     activities such as caring appropriately for one's grooming 
     and hygiene, bathing, dressing, and eating. Instrumental 
     activities of daily living include cooking, cleaning, 
     shopping, taking public transportation, paying bills, 
     maintaining a residence, using telephones and directories, 
     using a post office, etc. As with all instances of qualifying 
     exigency leave, the military member must be the spouse, son, 
     daughter, or parent of the employee requesting qualifying 
     exigency leave.
       (i) To arrange for alternative care for a parent of the 
     military member when the parent is incapable of self-care and 
     the covered active duty or call to covered active duty status 
     of the military member necessitates a change in the existing 
     care arrangement for the parent;
       (ii) To provide care for a parent of the military member on 
     an urgent, immediate need basis (but not on a routine, 
     regular, or everyday basis) when the parent is incapable of 
     self-care and the need to provide such care arises from the 
     covered active duty or call to covered active duty status of 
     the military member;
       (iii) To admit to or transfer to a care facility a parent 
     of the military member when admittance or transfer is 
     necessitated by the covered active duty or call to covered 
     active duty status of the military member; and
       (iv) To attend meetings with staff at a care facility, such 
     as meetings with hospice or social service providers for a 
     parent of the military member, when such meetings are 
     necessary due to circumstances arising from the covered 
     active duty or call to covered active duty status of the 
     military member but not for routine or regular meetings;
       (9) Additional activities. To address other events which 
     arise out of the military member's covered active duty or 
     call to covered active duty status provided that the 
     employing office and employee agree that such leave shall 
     qualify as an exigency, and agree to both the timing and 
     duration of such leave.
     825.127 Leave to care for a covered servicemember with a 
         serious injury or illness (military caregiver leave).
       (a) Eligible employees are entitled to FMLA leave to care 
     for a covered servicemember with a serious illness or injury.
       (b) Covered servicemember means:
       (1) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation, or therapy, is otherwise in 
     outpatient status; or is otherwise on the temporary 
     disability retired list, for a serious injury or illness. 
     Outpatient status means the status of a member of the Armed 
     Forces assigned to either a military medical treatment 
     facility as an outpatient or a unit established for the 
     purpose of providing command and control of members of the 
     Armed Forces receiving medical care as outpatients.
       (2) A covered veteran who is undergoing medical treatment, 
     recuperation or therapy for a serious injury or illness. 
     Covered veteran means an individual who was a member of the 
     Armed Forces (including a member of the National Guard or 
     Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. An eligible 
     employee must commence leave to care for a covered veteran 
     within five years of the veteran's active duty service, but 
     the single 12-month period described in paragraph (e)(1) of

[[Page H4151]]

     this section may extend beyond the five-year period.
       (i) For an individual who was a member of the Armed Forces 
     (including a member of the National Guard or Reserves) and 
     who was discharged or released under conditions other than 
     dishonorable prior to the effective date of this Final Rule, 
     the period between October 28, 2009 and the effective date of 
     this Final Rule shall not count towards the determination of 
     the five-year period for covered veteran status.
       (c) A serious injury or illness means:
       (1) In the case of a current member of the Armed Forces, 
     including a member of the National Guard or Reserves, means 
     an injury or illness that was incurred by the covered 
     servicemember in the line of duty on active duty in the Armed 
     Forces or that existed before the beginning of the member's 
     active duty and was aggravated by service in the line of duty 
     on active duty in the Armed Forces, and that may render the 
     member medically unfit to perform the duties of the member's 
     office, grade, rank or rating; and,
       (2) In the case of a covered veteran, means an injury or 
     illness that was incurred by the member in the line of duty 
     on active duty in the Armed Forces (or existed before the 
     beginning of the member's active duty and was aggravated by 
     service in the line of duty on active duty in the Armed 
     Forces), and manifested itself before or after the member 
     became a veteran, and is:
       (i) A continuation of a serious injury or illness that was 
     incurred or aggravated when the covered veteran was a member 
     of the Armed Forces and rendered the servicemember unable to 
     perform the duties of the servicemember's office, grade, 
     rank, or rating; or
       (ii) A physical or mental condition for which the covered 
     veteran has received a U.S. Department of Veterans Affairs 
     Service-Related Disability Rating (VASRD) of 50 percent or 
     greater, and such VASRD rating is based, in whole or in part, 
     on the condition precipitating the need for military 
     caregiver leave; or
       (iii) A physical or mental condition that substantially 
     impairs the covered veteran's ability to secure or follow a 
     substantially gainful occupation by reason of a disability or 
     disabilities related to military service, or would do so 
     absent treatment; or
       (iv) An injury, including a psychological injury, on the 
     basis of which the covered veteran has been enrolled in the 
     Department of Veterans Affairs Program of Comprehensive 
     Assistance for Family Caregivers.
       (d) In order to care for a covered servicemember, an 
     eligible employee must be the spouse, son, daughter, or 
     parent, or next of kin of a covered servicemember.
       (1) Son or daughter of a covered servicemember means the 
     covered servicemember's biological, adopted, or foster child, 
     stepchild, legal ward, or a child for whom the covered 
     servicemember stood in loco parentis, and who is of any age.
       (2) Parent of a covered servicemember means a covered 
     servicemember's biological, adoptive, step or foster father 
     or mother, or any other individual who stood in loco parentis 
     to the covered servicemember. This term does not include 
     parents ``in law.''
       (3) Next of kin of a covered servicemember means the 
     nearest blood relative, other than the covered 
     servicemember's spouse, parent, son, or daughter, in the 
     following order of priority: blood relatives who have been 
     granted legal custody of the servicemember by court decree or 
     statutory provisions, brothers and sisters, grandparents, 
     aunts and uncles, and first cousins, unless the covered 
     servicemember has specifically designated in writing another 
     blood relative as his or her nearest blood relative for 
     purposes of military caregiver leave under the FMLA. When no 
     such designation is made, and there are multiple family 
     members with the same level of relationship to the covered 
     servicemember, all such family members shall be considered 
     the covered servicemember's next of kin and may take FMLA 
     leave to provide care to the covered servicemember, either 
     consecutively or simultaneously. When such designation has 
     been made, the designated individual shall be deemed to be 
     the covered servicemember's only next of kin. For example, if 
     a covered servicemember has three siblings and has not 
     designated a blood relative to provide care, all three 
     siblings would be considered the covered servicemember's next 
     of kin. Alternatively, where a covered servicemember has a 
     sibling(s) and designates a cousin as his or her next of kin 
     for FMLA purposes, then only the designated cousin is 
     eligible as the covered servicemember's next of kin. An 
     employing office is permitted to require an employee to 
     provide confirmation of covered family relationship to the 
     covered servicemember pursuant to 825.122(k).
       (e) An eligible employee is entitled to 26 workweeks of 
     leave to care for a covered servicemember with a serious 
     injury or illness during a single 12-month period.
       (1) The single 12-month period described in paragraph (e) 
     of this section begins on the first day the eligible employee 
     takes FMLA leave to care for a covered servicemember and ends 
     12 months after that date, regardless of the method used by 
     the employing office to determine the employee's 12 workweeks 
     of leave entitlement for other FMLA-qualifying reasons. If an 
     eligible employee does not take all of his or her 26 
     workweeks of leave entitlement to care for a covered 
     servicemember during this single 12-month period, the 
     remaining part of his or her 26 workweeks of leave 
     entitlement to care for the covered servicemember is 
     forfeited.
       (2) The leave entitlement described in paragraph (e) of 
     this section is to be applied on a per-covered-servicemember, 
     per-injury basis such that an eligible employee may be 
     entitled to take more than one period of 26 workweeks of 
     leave if the leave is to care for different covered 
     servicemembers or to care for the same servicemember with a 
     subsequent serious injury or illness, except that no more 
     than 26 workweeks of leave may be taken within any single 12-
     month period. An eligible employee may take more than one 
     period of 26 workweeks of leave to care for a covered 
     servicemember with more than one serious injury or illness 
     only when the serious injury or illness is a subsequent 
     serious injury or illness. When an eligible employee takes 
     leave to care for more than one covered servicemember or for 
     a subsequent serious injury or illness of the same covered 
     servicemember, and the single 12-month periods corresponding 
     to the different military caregiver leave entitlements 
     overlap, the employee is limited to taking no more than 26 
     workweeks of leave in each single 12-month period.
       (3) An eligible employee is entitled to a combined total of 
     26 workweeks of leave for any FMLA-qualifying reason during 
     the single 12-month period described in paragraph (e) of this 
     section, provided that the employee is entitled to no more 
     than 12 workweeks of leave for one or more of the following: 
     because of the birth of a son or daughter of the employee and 
     in order to care for such son or daughter; because of the 
     placement of a son or daughter with the employee for adoption 
     or foster care; in order to care for the spouse, son, 
     daughter, or parent with a serious health condition; because 
     of the employee's own serious health condition; or because of 
     a qualifying exigency. Thus, for example, an eligible 
     employee may, during the single 12-month period, take 16 
     workweeks of FMLA leave to care for a covered servicemember 
     and 10 workweeks of FMLA leave to care for a newborn child. 
     However, the employee may not take more than 12 weeks of FMLA 
     leave to care for the newborn child during the single 12-
     month period, even if the employee takes fewer than 14 
     workweeks of FMLA leave to care for a covered servicemember.
       (4) In all circumstances, including for leave taken to care 
     for a covered servicemember, the employing office is 
     responsible for designating leave, paid or unpaid, as FMLA-
     qualifying, and for giving notice of the designation to the 
     employee as provided in 825.300. In the case of leave that 
     qualifies as both leave to care for a covered servicemember 
     and leave to care for a family member with a serious health 
     condition during the single 12-month period described in 
     paragraph (e) of this section, the employing office must 
     designate such leave as leave to care for a covered 
     servicemember in the first instance. Leave that qualifies as 
     both leave to care for a covered servicemember and leave 
     taken to care for a family member with a serious health 
     condition during the single 12-month period described in 
     paragraph (e) of this section must not be designated and 
     counted as both leave to care for a covered servicemember and 
     leave to care for a family member with a serious health 
     condition. As is the case with leave taken for other 
     qualifying reasons, employing offices may retroactively 
     designate leave as leave to care for a covered servicemember 
     pursuant to 825.301(d).
       (f) Spouses who are eligible for FMLA leave and are 
     employed by the same covered employing office may be limited 
     to a combined total of 26 workweeks of leave during the 
     single 12-month period described in paragraph (e) of this 
     section if the leave is taken for birth of the employee's son 
     or daughter or to care for the child after birth, for 
     placement of a son or daughter with the employee for adoption 
     or foster care, or to care for the child after placement, to 
     care for the employee's parent with a serious health 
     condition, or to care for a covered servicemember with a 
     serious injury or illness. This limitation on the total weeks 
     of leave applies to leave taken for the reasons specified as 
     long as the spouses are employed by the same employing 
     office. It would apply, for example, even though the spouses 
     are employed at two different worksites. On the other hand, 
     if one spouse is ineligible for FMLA leave, the other spouse 
     would be entitled to a full 26 workweeks of FMLA leave.

  SUBPART B--EMPLOYEE LEAVE ENTITLEMENTS UNDER THE FAMILY AND MEDICAL 
 LEAVE ACT, AS MADE APPLICABLE BY THE CONGRESSIONAL ACCOUNTABILITY ACT

     825.200 Amount of Leave.
       (a) Except in the case of leave to care for a covered 
     servicemember with a serious injury or illness, an eligible 
     employee's FMLA leave entitlement is limited to a total of 12 
     workweeks of leave during any 12-month period for any one, or 
     more, of the following reasons:
       (1) The birth of the employee's son or daughter, and to 
     care for the newborn child;
       (2) The placement with the employee of a son or daughter 
     for adoption or foster care, and to care for the newly placed 
     child;
       (3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition;
       (4) Because of a serious health condition that makes the 
     employee unable to perform one or more of the essential 
     functions of his or her job; and
       (5) Because of any qualifying exigency arising out of the 
     fact that the employee's

[[Page H4152]]

     spouse, son, daughter, or parent is a military member on 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty).
       (b) An employing office is permitted to choose any one of 
     the following methods for determining the 12-month period in 
     which the 12 weeks of leave entitlement described in 
     paragraph (a) of this section occurs:
       (1) The calendar year;
       (2) Any fixed 12-month leave year, such as a fiscal year or 
     a year starting on an employee's anniversary date;
       (3) The 12-month period measured forward from the date any 
     employee's first FMLA leave under paragraph (a) begins; or
       (4) A ``rolling'' 12-month period measured backward from 
     the date an employee uses any FMLA leave as described in 
     paragraph (a).
       (c) Under methods in paragraphs (b)(1) and (b)(2) of this 
     section an employee would be entitled to up to 12 weeks of 
     FMLA leave at any time in the fixed 12-month period selected. 
     An employee could, therefore, take 12 weeks of leave at the 
     end of the year and 12 weeks at the beginning of the 
     following year. Under the method in paragraph (b)(3) of this 
     section, an employee would be entitled to 12 weeks of leave 
     during the year beginning on the first date FMLA leave is 
     taken; the next 12-month period would begin the first time 
     FMLA leave is taken after completion of any previous 12-month 
     period. Under the method in paragraph (b)(4) of this section, 
     the ``rolling'' 12-month period, each time an employee takes 
     FMLA leave the remaining leave entitlement would be any 
     balance of the 12 weeks which has not been used during the 
     immediately preceding 12 months. For example, if an employee 
     has taken eight weeks of leave during the past 12 months, an 
     additional four weeks of leave could be taken. If an employee 
     used four weeks beginning February 1, 2008, four weeks 
     beginning June 1, 2008, and four weeks beginning December 1, 
     2008, the employee would not be entitled to any additional 
     leave until February 1, 2009. However, beginning on February 
     1, 2009, the employee would again be eligible to take FMLA 
     leave, recouping the right to take the leave in the same 
     manner and amounts in which it was used in the previous year. 
     Thus, the employee would recoup (and be entitled to use) one 
     additional day of FMLA leave each day for four weeks, 
     commencing February 1, 2009. The employee would also begin to 
     recoup additional days beginning on June 1, 2009, and 
     additional days beginning on December 1, 2009. Accordingly, 
     employing offices using the rolling 12-month period may need 
     to calculate whether the employee is entitled to take FMLA 
     leave each time that leave is requested, and employees taking 
     FMLA leave on such a basis may fall in and out of FMLA 
     protection based on their FMLA usage in the prior 12 months. 
     For example, in the example above, if the employee needs six 
     weeks of leave for a serious health condition commencing 
     February 1, 2009, only the first four weeks of the leave 
     would be FMLA-protected.
       (d)(1) Employing offices will be allowed to choose any one 
     of the alternatives in paragraph (b) of this section for the 
     leave entitlements described in paragraph (a) of this section 
     provided the alternative chosen is applied consistently and 
     uniformly to all employees. An employing office wishing to 
     change to another alternative is required to give at least 60 
     days notice to all employees, and the transition must take 
     place in such a way that the employees retain the full 
     benefit of 12 weeks of leave under whichever method affords 
     the greatest benefit to the employee. Under no circumstances 
     may a new method be implemented in order to avoid the CAA's 
     FMLA leave requirements.
       (2) [Reserved]
       (e) If an employing office fails to select one of the 
     options in paragraph (b) of this section for measuring the 
     12-month period for the leave entitlements described in 
     paragraph (a), the option that provides the most beneficial 
     outcome for the employee will be used. The employing office 
     may subsequently select an option only by providing the 60-
     day notice to all employees of the option the employing 
     office intends to implement. During the running of the 60-day 
     period any other employee who needs FMLA leave may use the 
     option providing the most beneficial outcome to that 
     employee. At the conclusion of the 60-day period the 
     employing office may implement the selected option.
       (f) An eligible employee's FMLA leave entitlement is 
     limited to a total of 26 workweeks of leave during a single 
     12-month period to care for a covered servicemember with a 
     serious injury or illness. An employing office shall 
     determine the single 12-month period in which the 26 weeks of 
     leave entitlement described in this paragraph occurs using 
     the 12-month period measured forward from the date an 
     employee's first FMLA leave to care for the covered 
     servicemember begins. See 825.127(e)(1).
       (g) During the single 12-month period described in 
     paragraph (f), an eligible employee's FMLA leave entitlement 
     is limited to a combined total of 26 workweeks of FMLA leave 
     for any qualifying reason. See 825.127(e)(3).
       (h) For purposes of determining the amount of leave used by 
     an employee, the fact that a holiday may occur within the 
     week taken as FMLA leave has no effect; the week is counted 
     as a week of FMLA leave. However, if an employee is using 
     FMLA leave in increments of less than one week, the holiday 
     will not count against the employee's FMLA entitlement unless 
     the employee was otherwise scheduled and expected to work 
     during the holiday. Similarly, if for some reason the 
     employing office's business activity has temporarily ceased 
     and employees generally are not expected to report for work 
     for one or more weeks (e.g., a school closing two weeks for 
     the Christmas/New Year holiday or the summer vacation or an 
     employing office closing the office for repairs), the days 
     the employing office's activities have ceased do not count 
     against the employee's FMLA leave entitlement. Methods for 
     determining an employee's 12-week leave entitlement are also 
     described in 825.205.
       (i)(1) If employing offices jointly employ an employee, and 
     if they designate a primary employing office pursuant to 
     825.106(c), the primary employing office may choose any one 
     of the alternatives in paragraph (b) of this section for 
     measuring the 12-month period, provided that the alternative 
     chosen is applied consistently and uniformly to all employees 
     of the primary employing office including the jointly 
     employed employee.
       (2) If employing offices fail to designate a primary 
     employing office pursuant to 825.106(c), an employee jointly 
     employed by the employing offices may, by so notifying one of 
     the employing offices, select that employing office to be the 
     primary employing office of the employee for purposes of the 
     application of paragraphs (d) and (e) of this section.
     825.201 Leave to care for a parent.
       (a) General rule. An eligible employee is entitled to FMLA 
     leave if needed to care for the employee's parent with a 
     serious health condition. Care for parents-in-law is not 
     covered by the FMLA. See 825.122(c) for definition of parent.
       (b) Same employing office limitation. Spouses who are 
     eligible for FMLA leave and are employed by the same covered 
     employing office may be limited to a combined total of 12 
     weeks of leave during any 12-month period if the leave is 
     taken to care for the employee's parent with a serious health 
     condition, for the birth of the employee's son or daughter or 
     to care for the child after the birth, or for placement of a 
     son or daughter with the employee for adoption or foster care 
     or to care for the child after placement. This limitation on 
     the total weeks of leave applies to leave taken for the 
     reasons specified as long as the spouses are employed by the 
     same employing office. It would apply, for example, even 
     though the spouses are employed at two different worksites of 
     an employing office. On the other hand, if one spouse is 
     ineligible for FMLA leave, the other spouse would be entitled 
     to a full 12 weeks of FMLA leave. Where the spouses both use 
     a portion of the total 12-week FMLA leave entitlement for 
     either the birth of a child, for placement for adoption or 
     foster care, or to care for a parent, the spouses would each 
     be entitled to the difference between the amount he or she 
     has taken individually and 12 weeks for FMLA leave for other 
     purposes. For example, if each spouse took six weeks of leave 
     to care for a parent, each could use an additional six weeks 
     due to his or her own serious health condition or to care for 
     a child with a serious health condition. See also 825.127(d).
     825.202 Intermittent leave or reduced leave schedule.
       (a) Definition. FMLA leave may be taken intermittently or 
     on a reduced leave schedule under certain circumstances. 
     Intermittent leave is FMLA leave taken in separate blocks of 
     time due to a single qualifying reason. A reduced leave 
     schedule is a leave schedule that reduces an employee's usual 
     number of working hours per workweek, or hours per workday. A 
     reduced leave schedule is a change in the employee's schedule 
     for a period of time, normally from full-time to part-time.
       (b) Medical necessity. For intermittent leave or leave on a 
     reduced leave schedule taken because of one's own serious 
     health condition, to care for a spouse, parent, son, or 
     daughter with a serious health condition, or to care for a 
     covered servicemember with a serious injury or illness, there 
     must be a medical need for leave and it must be that such 
     medical need can be best accommodated through an intermittent 
     or reduced leave schedule. The treatment regimen and other 
     information described in the certification of a serious 
     health condition and in the certification of a serious injury 
     or illness, if required by the employing office, addresses 
     the medical necessity of intermittent leave or leave on a 
     reduced leave schedule. See 825.306, 825.310. Leave may be 
     taken intermittently or on a reduced leave schedule when 
     medically necessary for planned and/or unanticipated medical 
     treatment of a serious health condition or of a covered 
     servicemember's serious injury or illness, or for recovery 
     from treatment or recovery from a serious health condition or 
     a covered servicemember's serious injury or illness. It may 
     also be taken to provide care or psychological comfort to a 
     covered family member with a serious health condition or a 
     covered servicemember with a serious injury or illness.
       (1) Intermittent leave may be taken for a serious health 
     condition of a spouse, parent, son, or daughter, for the 
     employee's own serious health condition, or a serious injury 
     or illness of a covered servicemember which requires 
     treatment by a health care provider periodically, rather than 
     for one continuous period of time, and may include leave of 
     periods from an hour or more to several weeks. Examples of 
     intermittent leave would include leave taken on an occasional 
     basis for

[[Page H4153]]

     medical appointments, or leave taken several days at a time 
     spread over a period of six months, such as for chemotherapy. 
     A pregnant employee may take leave intermittently for 
     prenatal examinations or for her own condition, such as for 
     periods of severe morning sickness. An example of an employee 
     taking leave on a reduced leave schedule is an employee who 
     is recovering from a serious health condition and is not 
     strong enough to work a full-time schedule.
       (2) Intermittent or reduced schedule leave may be taken for 
     absences where the employee or family member is incapacitated 
     or unable to perform the essential functions of the position 
     because of a chronic serious health condition or a serious 
     injury or illness of a covered servicemember, even if he or 
     she does not receive treatment by a health care provider. See 
     825.113 and 825.127.
       (c) Birth or placement. When leave is taken after the birth 
     of a healthy child or placement of a healthy child for 
     adoption or foster care, an employee may take leave 
     intermittently or on a reduced leave schedule only if the 
     employing office agrees. Such a schedule reduction might 
     occur, for example, where an employee, with the employing 
     office's agreement, works part-time after the birth of a 
     child, or takes leave in several segments. The employing 
     office's agreement is not required, however, for leave during 
     which the expectant mother has a serious health condition in 
     connection with the birth of her child or if the newborn 
     child has a serious health condition. See 825.204 for rules 
     governing transfer to an alternative position that better 
     accommodates intermittent leave. See also 825.120 (pregnancy) 
     and 825.121 (adoption and foster care).
       (d) Qualifying exigency. Leave due to a qualifying exigency 
     may be taken on an intermittent or reduced leave schedule 
     basis.
     825.203 Scheduling of intermittent or reduced schedule leave.
       Eligible employees may take FMLA leave on an intermittent 
     or reduced schedule basis when medically necessary due to the 
     serious health condition of a covered family member or the 
     employee or the serious injury or illness of a covered 
     servicemember. See 825.202. Eligible employees may also take 
     FMLA leave on an intermittent or reduced schedule basis when 
     necessary because of a qualifying exigency. If an employee 
     needs leave intermittently or on a reduced leave schedule for 
     planned medical treatment, then the employee must make a 
     reasonable effort to schedule the treatment so as not to 
     disrupt unduly the employing office's operations.
     825.204 Transfer of an employee to an alternative position 
         during intermittent leave or reduced schedule leave.
       (a) Transfer or reassignment. If an employee needs 
     intermittent leave or leave on a reduced leave schedule that 
     is foreseeable based on planned medical treatment for the 
     employee, a family member, or a covered servicemember, 
     including during a period of recovery from one's own serious 
     health condition, a serious health condition of a spouse, 
     parent, son, or daughter, or a serious injury or illness of a 
     covered servicemember, or if the employing office agrees to 
     permit intermittent or reduced schedule leave for the birth 
     of a child or for placement of a child for adoption or foster 
     care, the employing office may require the employee to 
     transfer temporarily, during the period the intermittent or 
     reduced leave schedule is required, to an available 
     alternative position for which the employee is qualified and 
     which better accommodates recurring periods of leave than 
     does the employee's regular position. See 825.601 for special 
     rules applicable to instructional employees of schools.
       (b) Compliance. Transfer to an alternative position may 
     require compliance with any applicable collective bargaining 
     agreement and Federal law (such as the Americans with 
     Disabilities Act, as made applicable by the CAA). Transfer to 
     an alternative position may include altering an existing job 
     to better accommodate the employee's need for intermittent or 
     reduced scheduled leave.
       (c) Equivalent pay and benefits. The alternative position 
     must have equivalent pay and benefits. An alternative 
     position for these purposes does not have to have equivalent 
     duties. The employing office may increase the pay and 
     benefits of an existing alternative position, so as to make 
     them equivalent to the pay and benefits of the employee's 
     regular job. The employing office may also transfer the 
     employee to a part-time job with the same hourly rate of pay 
     and benefits, provided the employee is not required to take 
     more leave than is medically necessary. For example, an 
     employee desiring to take leave in increments of four hours 
     per day could be transferred to a half-time job, or could 
     remain in the employee's same job on a part-time schedule, 
     paying the same hourly rate as the employee's previous job 
     and enjoying the same benefits. The employing office may not 
     eliminate benefits which otherwise would not be provided to 
     part-time employees; however, an employing office may 
     proportionately reduce benefits such as vacation leave where 
     an employing office's normal practice is to base such 
     benefits on the number of hours worked.
       (d) Employing office limitations. An employing office may 
     not transfer the employee to an alternative position in order 
     to discourage the employee from taking leave or otherwise 
     work a hardship on the employee. For example, a white collar 
     employee may not be assigned to perform laborer's work; an 
     employee working the day shift may not be reassigned to the 
     graveyard shift; an employee working in the headquarters 
     facility may not be reassigned to a branch a significant 
     distance away from the employee's normal job location. Any 
     such attempt on the part of the employing office to make such 
     a transfer will be held to be contrary to the prohibited acts 
     provisions of the FMLA, as made applicable by the CAA.
       (e) Reinstatement of employee. When an employee who is 
     taking leave intermittently or on a reduced leave schedule 
     and has been transferred to an alternative position no longer 
     needs to continue on leave and is able to return to full-time 
     work, the employee must be placed in the same or equivalent 
     job as the job he or she left when the leave commenced. An 
     employee may not be required to take more leave than 
     necessary to address the circumstance that precipitated the 
     need for leave.
     825.205 Increments of FMLA leave for intermittent or reduced 
         schedule leave.
       (a) Minimum increment. (1) When an employee takes FMLA 
     leave on an intermittent or reduced leave schedule basis, the 
     employing office must account for the leave using an 
     increment no greater than the shortest period of time that 
     the employing office uses to account for use of other forms 
     of leave provided that it is not greater than one hour and 
     provided further that an employee's FMLA leave entitlement 
     may not be reduced by more than the amount of leave actually 
     taken. An employing office may not require an employee to 
     take more leave than is necessary to address the 
     circumstances that precipitated the need for the leave, 
     provided that the leave is counted using the shortest 
     increment of leave used to account for any other type of 
     leave. See also 825.205(a)(2) for the physical impossibility 
     exception, and 825.600 and 825.601 for special rules 
     applicable to employees of schools. If an employing office 
     uses different increments to account for different types of 
     leave, the employing office must account for FMLA leave in 
     the smallest increment used to account for any other type of 
     leave. For example, if an employing office accounts for the 
     use of annual leave in increments of one hour and the use of 
     sick leave in increments of one-half hour, then FMLA leave 
     use must be accounted for using increments no larger than 
     one-half hour. If an employing office accounts for use of 
     leave in varying increments at different times of the day or 
     shift, the employing office may also account for FMLA leave 
     in varying increments, provided that the increment used for 
     FMLA leave is no greater than the smallest increment used for 
     any other type of leave during the period in which the FMLA 
     leave is taken. If an employing office accounts for other 
     forms of leave use in increments greater than one hour, the 
     employing office must account for FMLA leave use in 
     increments no greater than one hour. An employing office may 
     account for FMLA leave in shorter increments than used for 
     other forms of leave. For example, an employing office that 
     accounts for other forms of leave in one hour increments may 
     account for FMLA leave in a shorter increment when the 
     employee arrives at work several minutes late, and the 
     employing office wants the employee to begin work 
     immediately. Such accounting for FMLA leave will not alter 
     the increment considered to be the shortest period used to 
     account for other forms of leave or the use of FMLA leave in 
     other circumstances. In all cases, employees may not be 
     charged FMLA leave for periods during which they are working.
       (2) Where it is physically impossible for an employee using 
     intermittent leave or working a reduced leave schedule to 
     commence or end work mid-way through a shift, such as where a 
     flight attendant or a railroad conductor is scheduled to work 
     aboard an airplane or train, or a laboratory employee is 
     unable to enter or leave a sealed ``clean room'' during a 
     certain period of time and no equivalent position is 
     available, the entire period that the employee is forced to 
     be absent is designated as FMLA leave and counts against the 
     employee's FMLA entitlement. The period of the physical 
     impossibility is limited to the period during which the 
     employing office is unable to permit the employee to work 
     prior to a period of FMLA leave or return the employee to the 
     same or equivalent position due to the physical impossibility 
     after a period of FMLA leave. See 825.214.
       (b) Calculation of leave. (1) When an employee takes leave 
     on an intermittent or reduced leave schedule, only the amount 
     of leave actually taken may be counted toward the employee's 
     leave entitlement. The actual workweek is the basis of leave 
     entitlement. Therefore, if an employee who would otherwise 
     work 40 hours a week takes off eight hours, the employee 
     would use one-fifth (1/5) of a week of FMLA leave. Similarly, 
     if a full-time employee who would otherwise work eight hour 
     days works four-hour days under a reduced leave schedule, the 
     employee would use one half (1/2) week of FMLA leave each 
     week. Where an employee works a part-time schedule or 
     variable hours, the amount of FMLA leave that an employee 
     uses is determined on a pro rata or proportional basis. If an 
     employee who would otherwise work 30 hours per week, but 
     works only 20 hours a week under a reduced leave schedule, 
     the employee's 10 hours of leave would constitute one-third 
     (1/3) of a week of FMLA leave for each week the employee 
     works the reduced leave schedule. An employing office may 
     convert these fractions to their hourly equivalent so long as 
     the conversion equitably reflects the employee's total 
     normally scheduled hours. An employee does not accrue FMLA-
     protected leave at any particular

[[Page H4154]]

     hourly rate. An eligible employee is entitled to up to a 
     total of 12 workweeks of leave, or 26 workweeks in the case 
     of military caregiver leave, and the total number of hours 
     contained in those workweeks is necessarily dependent on the 
     specific hours the employee would have worked but for the use 
     of leave. See also 825.601 and 825.602 on special rules for 
     schools.
       (2) If an employing office has made a permanent or long-
     term change in the employee's schedule (for reasons other 
     than FMLA, and prior to the notice of need for FMLA leave), 
     the hours worked under the new schedule are to be used for 
     making this calculation.
       (3) If an employee's schedule varies from week to week to 
     such an extent that an employing office is unable to 
     determine with any certainty how many hours the employee 
     would otherwise have worked (but for the taking of FMLA 
     leave), a weekly average of the hours worked over the 12 
     months prior to the beginning of the leave period (including 
     any hours for which the employee took leave of any type) 
     would be used for calculating the employee's leave 
     entitlement.
       (c) Overtime. If an employee would normally be required to 
     work overtime, but is unable to do so because of a FMLA-
     qualifying reason that limits the employee's ability to work 
     overtime, the hours which the employee would have been 
     required to work may be counted against the employee's FMLA 
     entitlement. In such a case, the employee is using 
     intermittent or reduced schedule leave. For example, if an 
     employee would normally be required to work for 48 hours in a 
     particular week, but due to a serious health condition the 
     employee is unable to work more than 40 hours that week, the 
     employee would utilize eight hours of FMLA-protected leave 
     out of the 48-hour workweek, or one-sixth (1/6) of a week of 
     FMLA leave. Voluntary overtime hours that an employee does 
     not work due to an FMLA-qualifying reason may not be counted 
     against the employee's FMLA leave entitlement.
     825.206 Interaction with the FLSA, as made applicable by the 
         Congressional Accountability Act.
       (a) Leave taken under FMLA, as made applicable by the CAA, 
     may be unpaid. If an employee is otherwise exempt from 
     minimum wage and overtime requirements of the Fair Labor 
     Standards Act (FLSA), as made applicable by the CAA, and as 
     exempt under regulations issued by the Board, at part 541, 
     providing unpaid FMLA-qualifying leave to such an employee 
     will not cause the employee to lose the FLSA exemption. This 
     means that under regulations currently in effect, where an 
     employee meets the specified duties test, is paid on a salary 
     basis, and is paid a salary of at least the amount specified 
     in the regulations, the employing office may make deductions 
     from the employee's salary for any hours taken as 
     intermittent or reduced FMLA leave within a workweek, without 
     affecting the exempt status of the employee.
       (b) For an employee paid in accordance with a fluctuating 
     workweek method of payment for overtime, where permitted by 
     section 203 of the CAA (2 U.S.C. 1313), the employing office, 
     during the period in which intermittent or reduced schedule 
     FMLA leave is scheduled to be taken, may compensate an 
     employee on an hourly basis and pay only for the hours the 
     employee works, including time and one-half the employee's 
     regular rate for overtime hours. The change to payment on an 
     hourly basis would include the entire period during which the 
     employee is taking intermittent leave, including weeks in 
     which no leave is taken. The hourly rate shall be determined 
     by dividing the employee's weekly salary by the employee's 
     normal or average schedule of hours worked during weeks in 
     which FMLA leave is not being taken. If an employing office 
     chooses to follow this exception from the fluctuating 
     workweek method of payment, the employing office must do so 
     uniformly, with respect to all employees paid on a 
     fluctuating workweek basis for whom FMLA leave is taken on an 
     intermittent or reduced leave schedule basis. If an employing 
     office does not elect to convert the employee's compensation 
     to hourly pay, no deduction may be taken for FMLA leave 
     absences. Once the need for intermittent or reduced scheduled 
     leave is over, the employee may be restored to payment on a 
     fluctuating workweek basis.
       (c) This special exception to the salary basis requirements 
     of the FLSA exemption or fluctuating workweek payment 
     requirements applies only to employees of covered employing 
     offices who are eligible for FMLA leave, and to leave which 
     qualifies as FMLA leave. Hourly or other deductions which are 
     not in accordance with the Board's FLSA regulations at part 
     541 or with a permissible fluctuating workweek method of 
     payment for overtime may not be taken, for example, where the 
     employee has not worked long enough to be eligible for FMLA 
     leave without potentially affecting the employee's 
     eligibility for exemption. Nor may deductions which are not 
     permitted by the Board's FLSA regulations at part 541 or by a 
     permissible fluctuating workweek method of payment for 
     overtime be taken from such an employee's salary for any 
     leave which does not qualify as FMLA leave, for example, 
     deductions from an employee's pay for leave required under an 
     employing office's policy or practice for a reason which does 
     not qualify as FMLA leave, e.g., leave to care for a 
     grandparent or for a medical condition which does not qualify 
     as a serious health condition or serious injury or illness; 
     or for leave which is more generous than provided by the 
     FMLA, as made applicable by the CAA. Employing offices may 
     comply with the employing office's own policy/practice under 
     these circumstances and maintain the employee's eligibility 
     for exemption or for the fluctuating workweek method of pay 
     by not taking hourly deductions from the employee's pay, in 
     accordance with FLSA requirements, as made applicable by the 
     CAA, or may take such deductions, treating the employee as an 
     hourly employee and pay overtime premium pay for hours worked 
     over 40 in a workweek.
     825.207 Substitution of paid leave.
       (a) Generally, FMLA leave is unpaid leave. However, under 
     the circumstances described in this section, FMLA, as made 
     applicable by the CAA, permits an eligible employee to choose 
     to substitute accrued 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 unpaid FMLA leave. The term substitute 
     means that the paid leave provided by the employing office, 
     and accrued pursuant to established policies of the employing 
     office, will run concurrently with the unpaid FMLA leave. 
     Accordingly, the employee receives pay pursuant to the 
     employing office's applicable paid leave policy during the 
     period of otherwise unpaid FMLA leave. An employee's ability 
     to substitute accrued paid leave is determined by the terms 
     and conditions of the employing office's normal leave policy. 
     When an employee chooses, or an employing office requires, 
     substitution of accrued paid leave, the employing office must 
     inform the employee that the employee must satisfy any 
     procedural requirements of the paid leave policy only in 
     connection with the receipt of such payment. See 825.300(c). 
     If an employee does not comply with the additional 
     requirements in an employing office's paid leave policy, the 
     employee is not entitled to substitute accrued paid leave, 
     but the employee remains entitled to take unpaid FMLA leave. 
     Employing offices may not discriminate against employees on 
     FMLA leave in the administration of their paid leave 
     policies.
       (b) If neither the employee nor the employing office elects 
     to substitute paid leave for unpaid FMLA leave under the 
     above conditions and circumstances, the employee will remain 
     entitled to all the paid leave which is earned or accrued 
     under the terms of the employing office's plan.
       (c) If an employee uses paid leave under circumstances 
     which do not qualify as FMLA leave, the leave will not count 
     against the employee's FMLA leave entitlement. For example, 
     paid sick leave used for a medical condition which is not a 
     serious health condition or serious injury or illness does 
     not count against the employee's FMLA leave entitlement.
       (d) Leave taken pursuant to a disability leave plan would 
     be considered FMLA leave for a serious health condition and 
     counted in the leave entitlement permitted under FMLA if it 
     meets the criteria set forth above in 825.112 through 
     825.115. In such cases, the employing office may designate 
     the leave as FMLA leave and count the leave against the 
     employee's FMLA leave entitlement. Because leave pursuant to 
     a disability benefit plan is not unpaid, the provision for 
     substitution of the employee's accrued paid leave is 
     inapplicable, and neither the employee nor the employing 
     office may require the substitution of paid leave. However, 
     employing offices and employees may agree to have paid leave 
     supplement the disability plan benefits, such as in the case 
     where a plan only provides replacement income for two-thirds 
     of an employee's salary.
       (e) The FMLA, as made applicable by the CAA, provides that 
     a serious health condition may result from injury to the 
     employee on or off the job. If the employing office 
     designates the leave as FMLA leave in accordance with 
     825.300(d), the leave counts against the employee's FMLA 
     leave entitlement. Because the workers' compensation absence 
     is not unpaid, the provision for substitution of the 
     employee's accrued paid leave is not applicable, and neither 
     the employee nor the employing office may require the 
     substitution of paid leave. However, employing offices and 
     employees may agree, to have paid leave supplement workers' 
     compensation benefits, such as in the case where workers' 
     compensation only provides replacement income for two-thirds 
     of an employee's salary. If the health care provider treating 
     the employee for the workers' compensation injury certifies 
     the employee is able to return to a light duty job but is 
     unable to return to the same or equivalent job, the employee 
     may decline the employing office's offer of a light duty job. 
     As a result, the employee may lose workers' compensation 
     payments, but is entitled to remain on unpaid FMLA leave 
     until the employee's FMLA leave entitlement is exhausted. As 
     of the date workers' compensation benefits cease, the 
     substitution provision becomes applicable and either the 
     employee may elect or the employing office may require the 
     use of accrued paid leave. See also 825.210(f), 825.216(d), 
     825.220(d), 825.307(a) and 825.702 (d)(1) and (2) regarding 
     the relationship between workers' compensation absences and 
     FMLA leave.
       (f) Under the FLSA, as made applicable by the CAA, an 
     employing office always has the right to cash out an 
     employee's compensatory time or to require the employee to 
     use the time. Therefore, if an employee requests and is 
     permitted to use accrued compensatory time to receive pay for 
     time taken

[[Page H4155]]

     off for an FMLA reason, or if the employing office requires 
     such use pursuant to the FLSA, the time taken may be counted 
     against the employee's FMLA leave entitlement.
     825.208 [Removed and reserved]
     825.209 Maintenance of employee benefits.
       (a) During any FMLA leave, an employing office must 
     maintain the employee's coverage under the Federal Employees 
     Health Benefits Program or any group health plan (as defined 
     in the Internal Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) 
     on the same conditions as coverage would have been provided 
     if the employee had been continuously employed during the 
     entire leave period. All employing offices are subject to the 
     requirements of the FMLA, as made applicable by the CAA, to 
     maintain health coverage. The definition of group health plan 
     is set forth in 825.102. For purposes of FMLA, the term group 
     health plan shall not include an insurance program providing 
     health coverage under which employees purchase individual 
     policies from insurers provided that:
       (1) No contributions are made by the employing office;
       (2) Participation in the program is completely voluntary 
     for employees;
       (3) The sole functions of the employing office with respect 
     to the program are, without endorsing the program, to permit 
     the insurer to publicize the program to employees, to collect 
     premiums through payroll deductions and to remit them to the 
     insurer;
       (4) The employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       (5) The premium charged with respect to such coverage does 
     not increase in the event the employment relationship 
     terminates.
       (b) The same group health plan benefits provided to an 
     employee prior to taking FMLA leave must be maintained during 
     the FMLA leave. For example, if family member coverage is 
     provided to an employee, family member coverage must be 
     maintained during the FMLA leave. Similarly, benefit coverage 
     during FMLA leave for medical care, surgical care, hospital 
     care, dental care, eye care, mental health counseling, 
     substance abuse treatment, etc., must be maintained during 
     leave if provided in an employing office's group health plan, 
     including a supplement to a group health plan, whether or not 
     provided through a flexible spending account or other 
     component of a cafeteria plan.
       (c) If an employing office provides a new health plan or 
     benefits or changes health benefits or plans while an 
     employee is on FMLA leave, the employee is entitled to the 
     new or changed plan/benefits to the same extent as if the 
     employee were not on leave. For example, if an employing 
     office changes a group health plan so that dental care 
     becomes covered under the plan, an employee on FMLA leave 
     must be given the same opportunity as other employees to 
     receive (or obtain) the dental care coverage. Any other plan 
     changes (e.g., in coverage, premiums, deductibles, etc.) 
     which apply to all employees of the workforce would also 
     apply to an employee on FMLA leave.
       (d) Notice of any opportunity to change plans or benefits 
     must also be given to an employee on FMLA leave. If the group 
     health plan permits an employee to change from single to 
     family coverage upon the birth of a child or otherwise add 
     new family members, such a change in benefits must be made 
     available while an employee is on FMLA leave. If the employee 
     requests the changed coverage it must be provided by the 
     employing office.
       (e) An employee may choose not to retain group health plan 
     coverage during FMLA leave. However, when an employee returns 
     from leave, the employee is entitled to be reinstated on the 
     same terms as prior to taking the leave, including family or 
     dependent coverages, without any qualifying period, physical 
     examination, exclusion of pre-existing conditions, etc. See 
     825.212(c).
       (f) Except as required by the Consolidated Omnibus Budget 
     Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, 
     whichever is applicable, and for key employees (as discussed 
     below), an employing office's obligation to maintain health 
     benefits during leave (and to restore the employee to the 
     same or equivalent employment) under FMLA ceases if and when 
     the employment relationship would have terminated if the 
     employee had not taken FMLA leave (e.g., if the employee's 
     position is eliminated as part of a nondiscriminatory 
     reduction in force and the employee would not have been 
     transferred to another position); an employee informs the 
     employing office of his or her intent not to return from 
     leave (including before starting the leave if the employing 
     office is so informed before the leave starts); or the 
     employee fails to return from leave or continues on leave 
     after exhausting his or her FMLA leave entitlement in the 12-
     month period.
       (g) If a key employee (see 825.218) does not return from 
     leave when notified by the employing office that substantial 
     or grievous economic injury will result from his or her 
     reinstatement, the employee's entitlement to group health 
     plan benefits continues unless and until the employee advises 
     the employing office that the employee does not desire 
     restoration to employment at the end of the leave period, or 
     the FMLA leave entitlement is exhausted, or reinstatement is 
     actually denied.
       (h) An employee's entitlement to benefits other than group 
     health benefits during a period of FMLA leave (e.g., holiday 
     pay) is to be determined by the employing office's 
     established policy for providing such benefits when the 
     employee is on other forms of leave (paid or unpaid, as 
     appropriate).
     825.210 Employee payment of group health benefit premiums.
       (a) Group health plan benefits must be maintained on the 
     same basis as coverage would have been provided if the 
     employee had been continuously employed during the FMLA leave 
     period. Therefore, any share of group health plan premiums 
     which had been paid by the employee prior to FMLA leave must 
     continue to be paid by the employee during the FMLA leave 
     period. If premiums are raised or lowered, the employee would 
     be required to pay the new premium rates. Maintenance of 
     health insurance policies which are not a part of the 
     employing office's group health plan, as described in 
     825.209(a), are the sole responsibility of the employee. The 
     employee and the insurer should make necessary arrangements 
     for payment of premiums during periods of unpaid FMLA leave.
       (b) If the FMLA leave is substituted paid leave, the 
     employee's share of premiums must be paid by the method 
     normally used during any paid leave, presumably as a payroll 
     deduction.
       (c) If FMLA leave is unpaid, the employing office has a 
     number of options for obtaining payment from the employee. 
     The employing office may require that payment be made to the 
     employing office or to the insurance carrier, but no 
     additional charge may be added to the employee's premium 
     payment for administrative expenses. The employing office may 
     require employees to pay their share of premium payments in 
     any of the following ways:
       (1) Payment would be due at the same time as it would be 
     made if by payroll deduction;
       (2) Payment would be due on the same schedule as payments 
     are made under COBRA or 5 U.S.C. 8905a, whichever is 
     applicable;
       (3) Payment would be prepaid pursuant to a cafeteria plan 
     at the employee's option;
       (4) The employing office's existing rules for payment by 
     employees on leave without pay would be followed, provided 
     that such rules do not require prepayment (i.e., prior to the 
     commencement of the leave) of the premiums that will become 
     due during a period of unpaid FMLA leave or payment of higher 
     premiums than if the employee had continued to work instead 
     of taking leave; or
       (5) Another system voluntarily agreed to between the 
     employing office and the employee, which may include 
     prepayment of premiums (e.g., through increased payroll 
     deductions when the need for the FMLA leave is foreseeable).
       (d) The employing office must provide the employee with 
     advance written notice of the terms and conditions under 
     which these payments must be made. See 825. 300(c).
       (e) An employing office may not require more of an employee 
     using unpaid FMLA leave than the employing office requires of 
     other employees on leave without pay.
       (f) An employee who is receiving payments as a result of a 
     workers' compensation injury must make arrangements with the 
     employing office for payment of group health plan benefits 
     when simultaneously taking FMLA leave. See 825.207(e).
     825.211 Maintenance of benefits under multi-employer health 
         plans.
       (a) A multi-employer health plan is a plan to which more 
     than one employing office is required to contribute, and 
     which is maintained pursuant to one or more collective 
     bargaining agreements between employee organization(s) and 
     the employing offices.
       (b) An employing office under a multi-employer plan must 
     continue to make contributions on behalf of an employee using 
     FMLA leave as though the employee had been continuously 
     employed, unless the plan contains an explicit FMLA provision 
     for maintaining coverage such as through pooled contributions 
     by all employing offices party to the plan.
       (c) During the duration of an employee's FMLA leave, 
     coverage by the group health plan, and benefits provided 
     pursuant to the plan, must be maintained at the level of 
     coverage and benefits which were applicable to the employee 
     at the time FMLA leave commenced.
       (d) An employee using FMLA leave cannot be required to use 
     banked hours or pay a greater premium than the employee would 
     have been required to pay if the employee had been 
     continuously employed.
       (e) As provided in 825.209(f) of this part, group health 
     plan coverage must be maintained for an employee on FMLA 
     leave until:
       (1) The employee's FMLA leave entitlement is exhausted;
       (2) The employing office can show that the employee would 
     have been laid off and the employment relationship 
     terminated; or
       (3) The employee provides unequivocal notice of intent not 
     to return to work.
     825.212 Employee failure to pay health plan premium payments.
       (a) (1) In the absence of an established employing office 
     policy providing a longer grace period, an employing office's 
     obligations to maintain health insurance coverage cease under 
     FMLA if an employee's premium payment is more than 30 days 
     late. In order to drop the coverage for an employee whose 
     premium payment is late, the employing office must provide 
     written notice to the employee that the payment has not been 
     received. Such notice must be mailed to the

[[Page H4156]]

     employee at least 15 days before coverage is to cease, 
     advising that coverage will be dropped on a specified date at 
     least 15 days after the date of the letter unless the payment 
     has been received by that date. If the employing office has 
     established policies regarding other forms of unpaid leave 
     that provide for the employing office to cease coverage 
     retroactively to the date the unpaid premium payment was due, 
     the employing office may drop the employee from coverage 
     retroactively in accordance with that policy, provided the 
     15-day notice was given. In the absence of such a policy, 
     coverage for the employee may be terminated at the end of the 
     30-day grace period, where the required 15-day notice has 
     been provided.
       (2) An employing office has no obligation regarding the 
     maintenance of a health insurance policy which is not a group 
     health plan. See 825.209(a).
       (3) All other obligations of an employing office under FMLA 
     would continue; for example, the employing office continues 
     to have an obligation to reinstate an employee upon return 
     from leave.
       (b) The employing office may recover the employee's share 
     of any premium payments missed by the employee for any FMLA 
     leave period during which the employing office maintains 
     health coverage by paying the employee's share after the 
     premium payment is missed.
       (c) If coverage lapses because an employee has not made 
     required premium payments, upon the employee's return from 
     FMLA leave the employing office must still restore the 
     employee to coverage/benefits equivalent to those the 
     employee would have had if leave had not been taken and the 
     premium payment(s) had not been missed, including family or 
     dependent coverage. See 825.215(d)(1)-(5). In such case, an 
     employee may not be required to meet any qualification 
     requirements imposed by the plan, including any new 
     preexisting condition waiting period, to wait for an open 
     season, or to pass a medical examination to obtain 
     reinstatement of coverage. If an employing office terminates 
     an employee's insurance in accordance with this section and 
     fails to restore the employee's health insurance as required 
     by this section upon the employee's return, the employing 
     office may be liable for benefits lost by reason of the 
     violation, for other actual monetary losses sustained as a 
     direct result of the violation, and for appropriate equitable 
     relief tailored to the harm suffered.
     825.213 Employing office recovery of benefit costs.
       (a) In addition to the circumstances discussed in 
     825.212(b), an employing office may recover its share of 
     health plan premiums during a period of unpaid FMLA leave 
     from an employee if the employee fails to return to work 
     after the employee's FMLA leave entitlement has been 
     exhausted or expires, unless the reason the employee does not 
     return is due to:
       (1) The continuation, recurrence, or onset of either a 
     serious health condition of the employee or the employee's 
     family member, or a serious injury or illness of a covered 
     servicemember, which would otherwise entitle the employee to 
     leave under FMLA; or
       (2) Other circumstances beyond the employee's control. 
     Examples of other circumstances beyond the employee's control 
     are necessarily broad. They include such situations as where 
     a parent chooses to stay home with a newborn child who has a 
     serious health condition; an employee's spouse is 
     unexpectedly transferred to a job location more than 75 miles 
     from the employee's worksite; a relative or individual other 
     than a covered family member has a serious health condition 
     and the employee is needed to provide care; the employee is 
     laid off while on leave; or, the employee is a key employee 
     who decides not to return to work upon being notified of the 
     employing office's intention to deny restoration because of 
     substantial and grievous economic injury to the employing 
     office's operations and is not reinstated by the employing 
     office. Other circumstances beyond the employee's control 
     would not include a situation where an employee desires to 
     remain with a parent in a distant city even though the parent 
     no longer requires the employee's care, or a parent chooses 
     not to return to work to stay home with a well, newborn 
     child.
       (3) When an employee fails to return to work because of the 
     continuation, recurrence, or onset of either a serious health 
     condition of the employee or employee's family member, or a 
     serious injury or illness of a covered servicemember, thereby 
     precluding the employing office from recovering its (share 
     of) health benefit premium payments made on the employee's 
     behalf during a period of unpaid FMLA leave, the employing 
     office may require medical certification of the employee's or 
     the family member's serious health condition or the covered 
     servicemember's serious injury or illness. Such certification 
     is not required unless requested by the employing office. The 
     cost of the certification shall be borne by the employee, and 
     the employee is not entitled to be paid for the time or 
     travel costs spent in acquiring the certification. The 
     employee is required to provide medical certification in a 
     timely manner which, for purposes of this section, is within 
     30 days from the date of the employing office's request. For 
     purposes of medical certification, the employee may use the 
     optional forms developed for this purpose. See 825.306(b), 
     825.310(c)-(d) and Forms A, B, and F. If the employing office 
     requests medical certification and the employee does not 
     provide such certification in a timely manner (within 30 
     days), or the reason for not returning to work does not meet 
     the test of other circumstances beyond the employee's 
     control, the employing office may recover 100 percent of the 
     health benefit premiums it paid during the period of unpaid 
     FMLA leave.
       (b) Under some circumstances an employing office may elect 
     to maintain other benefits, e.g., life insurance, disability 
     insurance, etc., by paying the employee's (share of) premiums 
     during periods of unpaid FMLA leave. For example, to ensure 
     the employing office can meet its responsibilities to provide 
     equivalent benefits to the employee upon return from unpaid 
     FMLA leave, it may be necessary that premiums be paid 
     continuously to avoid a lapse of coverage. If the employing 
     office elects to maintain such benefits during the leave, at 
     the conclusion of leave, the employing office is entitled to 
     recover only the costs incurred for paying the employee's 
     share of any premiums whether or not the employee returns to 
     work.
       (c) An employee who returns to work for at least 30 
     calendar days is considered to have returned to work. An 
     employee who transfers directly from taking FMLA leave to 
     retirement, or who retires during the first 30 days after the 
     employee returns to work, is deemed to have returned to work.
       (d) When an employee elects or an employing office requires 
     paid leave to be substituted for FMLA leave, the employing 
     office may not recover its (share of) health insurance or 
     other non-health benefit premiums for any period of FMLA 
     leave covered by paid leave. Because paid leave provided 
     under a plan covering temporary disabilities (including 
     workers' compensation) is not unpaid, recovery of health 
     insurance premiums does not apply to such paid leave.
       (e) The amount that self-insured employing offices may 
     recover is limited to only the employing office's share of 
     allowable premiums as would be calculated under COBRA, 
     excluding the two percent fee for administrative costs.
       (f) When an employee fails to return to work, any health 
     and non-health benefit premiums which this section of the 
     regulations permits an employing office to recover are a debt 
     owed by the non-returning employee to the employing office. 
     The existence of this debt caused by the employee's failure 
     to return to work does not alter the employing office's 
     responsibilities for health benefit coverage and, under a 
     self-insurance plan, payment of claims incurred during the 
     period of FMLA leave. To the extent recovery is allowed, the 
     employing office may recover the costs through deduction from 
     any sums due to the employee (e.g., unpaid wages, vacation 
     pay, etc.), provided such deductions do not otherwise violate 
     applicable wage payment or other laws. Alternatively, the 
     employing office may initiate legal action against the 
     employee to recover such costs.
     825.214 Employee right to reinstatement.
       General Rule. On return from FMLA leave, an employee is 
     entitled to be returned to the same position the employee 
     held when leave commenced, or to an equivalent position with 
     equivalent benefits, pay, and other terms and conditions of 
     employment. An employee is entitled to such reinstatement 
     even if the employee has been replaced or his or her position 
     has been restructured to accommodate the employee's absence. 
     See also 825.106(e) for the obligations of employing offices 
     that are joint employers.
     825.215 Equivalent position.
       (a) Equivalent position. An equivalent position is one that 
     is virtually identical to the employee's former position in 
     terms of pay, benefits and working conditions, including 
     privileges, prerequisites and status. It must involve the 
     same or substantially similar duties and responsibilities, 
     which must entail substantially equivalent skill, effort, 
     responsibility, and authority.
       (b) Conditions to qualify. If an employee is no longer 
     qualified for the position because of the employee's 
     inability to attend a necessary course, renew a license, 
     etc., as a result of the leave, the employee shall be given a 
     reasonable opportunity to fulfill those conditions upon 
     return to work.
       (c) Equivalent Pay. (1) An employee is entitled to any 
     unconditional pay increases which may have occurred during 
     the FMLA leave period, such as cost of living increases. Pay 
     increases conditioned upon seniority, length of service, or 
     work performed must be granted in accordance with the 
     employing office's policy or practice with respect to other 
     employees on an equivalent leave status for a reason that 
     does not qualify as FMLA leave. An employee is entitled to be 
     restored to a position with the same or equivalent pay 
     premiums, such as a shift differential. If an employee 
     departed from a position averaging ten hours of overtime (and 
     corresponding overtime pay) each week, an employee is 
     ordinarily entitled to such a position on return from FMLA 
     leave.
       (2) Equivalent pay includes any bonus or payment, whether 
     it is discretionary or non-discretionary, made to employees 
     consistent with the provisions of paragraph (c)(1) of this 
     section. However, if a bonus or other payment is based on the 
     achievement of a specified goal such as hours worked, 
     products sold or perfect attendance, and the employee has not 
     met the goal due to FMLA leave, then the payment may be 
     denied, unless otherwise paid to employees on an equivalent 
     leave status for a reason that does not qualify as FMLA 
     leave. For example, if an employee

[[Page H4157]]

     who used paid vacation leave for a non-FMLA purpose would 
     receive the payment, then the employee who used paid vacation 
     leave for an FMLA-protected purpose also must receive the 
     payment.
       (d) Equivalent benefits. Benefits include all benefits 
     provided or made available to employees by an employing 
     office, including group life insurance, health insurance, 
     disability insurance, sick leave, annual leave, educational 
     benefits, and pensions, regardless of whether such benefits 
     are provided by a practice or written policy of an employing 
     office through an employee benefit plan.
       (1) At the end of an employee's FMLA leave, benefits must 
     be resumed in the same manner and at the same levels as 
     provided when the leave began, and subject to any changes in 
     benefit levels that may have taken place during the period of 
     FMLA leave affecting the entire work force, unless otherwise 
     elected by the employee. Upon return from FMLA leave, an 
     employee cannot be required to requalify for any benefits the 
     employee enjoyed before FMLA leave began (including family or 
     dependent coverages). For example, if an employee was covered 
     by a life insurance policy before taking leave but is not 
     covered or coverage lapses during the period of unpaid FMLA 
     leave, the employee cannot be required to meet any 
     qualifications, such as taking a physical examination, in 
     order to requalify for life insurance upon return from leave. 
     Accordingly, some employing offices may find it necessary to 
     modify life insurance and other benefits programs in order to 
     restore employees to equivalent benefits upon return from 
     FMLA leave, make arrangements for continued payment of costs 
     to maintain such benefits during unpaid FMLA leave, or pay 
     these costs subject to recovery from the employee on return 
     from leave. See 825.213(b).
       (2) An employee may, but is not entitled to, accrue any 
     additional benefits or seniority during unpaid FMLA leave. 
     Benefits accrued at the time leave began, however, (e.g., 
     paid vacation, sick or personal leave to the extent not 
     substituted for FMLA leave) must be available to an employee 
     upon return from leave.
       (3) If, while on unpaid FMLA leave, an employee desires to 
     continue life insurance, disability insurance, or other types 
     of benefits for which he or she typically pays, the employing 
     office is required to follow established policies or 
     practices for continuing such benefits for other instances of 
     leave without pay. If the employing office has no established 
     policy, the employee and the employing office are encouraged 
     to agree upon arrangements before FMLA leave begins.
       (4) With respect to pension and other retirement plans, any 
     period of unpaid FMLA leave shall not be treated as or 
     counted toward a break in service for purposes of vesting and 
     eligibility to participate. Also, if the plan requires an 
     employee to be employed on a specific date in order to be 
     credited with a year of service for vesting, contributions or 
     participation purposes, an employee on unpaid FMLA leave on 
     that date shall be deemed to have been employed on that date. 
     However, unpaid FMLA leave periods need not be treated as 
     credited service for purposes of benefit accrual, vesting and 
     eligibility to participate.
       (5) Employees on unpaid FMLA leave are to be treated as if 
     they continued to work for purposes of changes to benefit 
     plans. They are entitled to changes in benefits plans, except 
     those which may be dependent upon seniority or accrual during 
     the leave period, immediately upon return from leave or to 
     the same extent they would have qualified if no leave had 
     been taken. For example if the benefit plan is predicated on 
     a pre-established number of hours worked each year and the 
     employee does not have sufficient hours as a result of taking 
     unpaid FMLA leave, the benefit is lost. (In this regard, 
     825.209 addresses health benefits.)
       (e) Equivalent terms and conditions of employment. An 
     equivalent position must have substantially similar duties, 
     conditions, responsibilities, privileges and status as the 
     employee's original position.
       (1) The employee must be reinstated to the same or a 
     geographically proximate worksite (i.e., one that does not 
     involve a significant increase in commuting time or distance) 
     from where the employee had previously been employed. If the 
     employee's original worksite has been closed, the employee is 
     entitled to the same rights as if the employee had not been 
     on leave when the worksite closed. For example, if an 
     employing office transfers all employees from a closed 
     worksite to a new worksite in a different city, the employee 
     on leave is also entitled to transfer under the same 
     conditions as if he or she had continued to be employed.
       (2) The employee is ordinarily entitled to return to the 
     same shift or the same or an equivalent work schedule.
       (3) The employee must have the same or an equivalent 
     opportunity for bonuses, and other similar discretionary and 
     non-discretionary payments.
       (4) FMLA does not prohibit an employing office from 
     accommodating an employee's request to be restored to a 
     different shift, schedule, or position which better suits the 
     employee's personal needs on return from leave, or to offer a 
     promotion to a better position. However, an employee cannot 
     be induced by the employing office to accept a different 
     position against the employee's wishes.
       (f) De minimis exception. The requirement that an employee 
     be restored to the same or equivalent job with the same or 
     equivalent pay, benefits, and terms and conditions of 
     employment does not extend to de minimis, intangible, or 
     unmeasurable aspects of the job.
     825.216 Limitations on an employee's right to reinstatement.
       (a) An employee has no greater right to reinstatement or to 
     other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. An employing office must be able to show that an 
     employee would not otherwise have been employed at the time 
     reinstatement is requested in order to deny restoration to 
     employment. For example:
       (1) If an employee is laid off during the course of taking 
     FMLA leave and employment is terminated, the employing 
     office's responsibility to continue FMLA leave, maintain 
     group health plan benefits and restore the employee ceases at 
     the time the employee is laid off, provided the employing 
     office has no continuing obligations under a collective 
     bargaining agreement or otherwise. An employing office would 
     have the burden of proving that an employee would have been 
     laid off during the FMLA leave period and, therefore, would 
     not be entitled to restoration. Restoration to a job slated 
     for lay-off when the employee's original position is not 
     would not meet the requirements of an equivalent position.
       (2) If a shift has been eliminated, or overtime has been 
     decreased, an employee would not be entitled to return to 
     work that shift or the original overtime hours upon 
     restoration. However, if a position on, for example, a night 
     shift has been filled by another employee, the employee is 
     entitled to return to the same shift on which employed before 
     taking FMLA leave.
       (3) If an employee was hired for a specific term or only to 
     perform work on a discrete project, the employing office has 
     no obligation to restore the employee if the employment term 
     or project is over and the employing office would not 
     otherwise have continued to employ the employee. On the other 
     hand, if an employee was hired to perform work for one 
     employing office for a specific time period, and after that 
     time period has ended, the work was assigned to another 
     employing office, the successor employing office may be 
     required to restore the employee if it is a successor 
     employing office.
       (b) In addition to the circumstances explained above, an 
     employing office may deny job restoration to salaried 
     eligible employees (key employees, as defined in 825.217(c)), 
     if such denial is necessary to prevent substantial and 
     grievous economic injury to the operations of the employing 
     office; or may delay restoration to an employee who fails to 
     provide a fitness-for-duty certificate to return to work 
     under the conditions described in 825.312.
       (c) If the employee is unable to perform an essential 
     function of the position because of a physical or mental 
     condition, including the continuation of a serious health 
     condition or an injury or illness also covered by workers' 
     compensation, the employee has no right to restoration to 
     another position under the FMLA. The employing office's 
     obligations may, however, be governed by the Americans with 
     Disabilities Act (ADA), as amended and as made applicable by 
     the CAA. See 825.702.
       (d) An employee who fraudulently obtains FMLA leave from an 
     employing office is not protected by the job restoration or 
     maintenance of health benefits provisions of the FMLA, as 
     made applicable by the CAA.
       (e) If the employing office has a uniformly-applied policy 
     governing outside or supplemental employment, such a policy 
     may continue to apply to an employee while on FMLA leave. An 
     employing office which does not have such a policy may not 
     deny benefits to which an employee is entitled under FMLA, as 
     made applicable by the CAA, on this basis unless the FMLA 
     leave was fraudulently obtained as in paragraph (d) of this 
     section.
     825.217 Key employee, general rule.
       (a) A key employee is a salaried FMLA-eligible employee who 
     is among the highest paid 10 percent of all the employees 
     employed by the employing office within 75 miles of the 
     employee's worksite.
       (b) The term salaried means paid on a salary basis, within 
     the meaning of the Board's FLSA regulations at part 541, 
     implementing section 203 of the CAA (2 U.S.C. 1313), 
     regarding employees who may qualify as exempt from the 
     minimum wage and overtime requirements of the FLSA, as made 
     applicable by the CAA.
       (c) A key employee must be among the highest paid 10 
     percent of all the employees--both salaried and non-salaried, 
     eligible and ineligible--who are employed by the employing 
     office within 75 miles of the worksite.
       (1) In determining which employees are among the highest 
     paid 10 percent, year- to-date earnings are divided by weeks 
     worked by the employee (including weeks in which paid leave 
     was taken). Earnings include wages, premium pay, incentive 
     pay, and non-discretionary and discretionary bonuses. 
     Earnings do not include incentives whose value is determined 
     at some future date, e.g., benefits or prerequisites.
       (2) The determination of whether a salaried employee is 
     among the highest paid 10 percent shall be made at the time 
     the employee gives notice of the need for leave. No more than 
     10 percent of the employing office's employees within 75 
     miles of the worksite may be key employees.

[[Page H4158]]

  

     825.218 Substantial and grievous economic injury.
       (a) In order to deny restoration to a key employee, an 
     employing office must determine that the restoration of the 
     employee to employment will cause substantial and grievous 
     economic injury to the operations of the employing office, 
     not whether the absence of the employee will cause such 
     substantial and grievous injury.
       (b) An employing office may take into account its ability 
     to replace on a temporary basis (or temporarily do without) 
     the employee on FMLA leave. If permanent replacement is 
     unavoidable, the cost of then reinstating the employee can be 
     considered in evaluating whether substantial and grievous 
     economic injury will occur from restoration; in other words, 
     the effect on the operations of the employing office of 
     reinstating the employee in an equivalent position.
       (c) A precise test cannot be set for the level of hardship 
     or injury to the employing office which must be sustained. If 
     the reinstatement of a key employee threatens the economic 
     viability of the employing office, that would constitute 
     substantial and grievous economic injury. A lesser injury 
     which causes substantial, long-term economic injury would 
     also be sufficient. Minor inconveniences and costs that the 
     employing office would experience in the normal course would 
     certainly not constitute substantial and grievous economic 
     injury.
       (d) FMLA's substantial and grievous economic injury 
     standard is different from and more stringent than the undue 
     hardship test under the ADA, as made applicable by the CAA. 
     See also 825.702.
     825.219 Rights of a key employee.
       (a) An employing office that believes that reinstatement 
     may be denied to a key employee, must give written notice to 
     the employee at the time the employee gives notice of the 
     need for FMLA leave (or when FMLA leave commences, if 
     earlier) that he or she qualifies as a key employee. At the 
     same time, the employing office must also fully inform the 
     employee of the potential consequences with respect to 
     reinstatement and maintenance of health benefits if the 
     employing office should determine that substantial and 
     grievous economic injury to the employing office's operations 
     will result if the employee is reinstated from FMLA leave. If 
     such notice cannot be given immediately because of the need 
     to determine whether the employee is a key employee, it shall 
     be given as soon as practicable after being notified of a 
     need for leave (or the commencement of leave, if earlier). It 
     is expected that in most circumstances there will be no 
     desire that an employee be denied restoration after FMLA 
     leave and, therefore, there would be no need to provide such 
     notice. However, an employing office who fails to provide 
     such timely notice will lose its right to deny restoration 
     even if substantial and grievous economic injury will result 
     from reinstatement.
       (b) As soon as an employing office makes a good faith 
     determination, based on the facts available, that substantial 
     and grievous economic injury to its operations will result if 
     a key employee who has given notice of the need for FMLA 
     leave or is using FMLA leave is reinstated, the employing 
     office shall notify the employee in writing of its 
     determination, that it cannot deny FMLA leave, and that it 
     intends to deny restoration to employment on completion of 
     the FMLA leave. It is anticipated that an employing office 
     will ordinarily be able to give such notice prior to the 
     employee starting leave. The employing office must serve this 
     notice either in person or by certified mail. This notice 
     must explain the basis for the employing office's finding 
     that substantial and grievous economic injury will result, 
     and, if leave has commenced, must provide the employee a 
     reasonable time in which to return to work, taking into 
     account the circumstances, such as the length of the leave 
     and the urgency of the need for the employee to return.
       (c) If an employee on leave does not return to work in 
     response to the employing office's notification of intent to 
     deny restoration, the employee continues to be entitled to 
     maintenance of health benefits and the employing office may 
     not recover its cost of health benefit premiums. A key 
     employee's rights under FMLA continue unless and until the 
     employee either gives notice that he or she no longer wishes 
     to return to work, or the employing office actually denies 
     reinstatement at the conclusion of the leave period.
       (d) After notice to an employee has been given that 
     substantial and grievous economic injury will result if the 
     employee is reinstated to employment, an employee is still 
     entitled to request reinstatement at the end of the leave 
     period even if the employee did not return to work in 
     response to the employing office's notice. The employing 
     office must then again determine whether there will be 
     substantial and grievous economic injury from reinstatement, 
     based on the facts at that time. If it is determined that 
     substantial and grievous economic injury will result, the 
     employing office shall notify the employee in writing (in 
     person or by certified mail) of the denial of restoration.
     825.220 Protection for employees who request leave or 
         otherwise assert FMLA rights.
       (a) The FMLA, as made applicable by the CAA, prohibits 
     interference with an employee's rights under the law, and 
     with legal proceedings or inquiries relating to an employee's 
     rights. More specifically, the law contains the following 
     employee protections:
       (1) An employing office is prohibited from interfering 
     with, restraining, or denying the exercise of (or attempts to 
     exercise) any rights provided by the FMLA, as made applicable 
     by the CAA.
       (2) An employing office is prohibited from discharging or 
     in any other way discriminating against any covered employee 
     (whether or not an eligible employee) for opposing or 
     complaining about any unlawful practice under the FMLA, as 
     made applicable by the CAA.
       (3) All employing offices are prohibited from discharging 
     or in any other way discriminating against any covered 
     employee (whether or not an eligible employee) because that 
     covered employee has--
       (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. An employing office 
     may be liable for compensation and benefits lost by reason of 
     the violation, for other actual monetary losses sustained as 
     a direct result of the violation, and for appropriate 
     equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See 825.400(c). Interfering with the exercise 
     of an employee's rights would include, for example, not only 
     refusing to authorize FMLA leave, but discouraging an 
     employee from using such leave. It would also include 
     manipulation by a covered employing office to avoid 
     responsibilities under FMLA, for example:
       (1) [Reserved]
       (2) Changing the essential functions of the job in order to 
     preclude the taking of leave; or
       (3) Reducing hours available to work in order to avoid 
     employee eligibility.
       (c) The FMLA's prohibition against interference prohibits 
     an employing office from discriminating or retaliating 
     against an employee or prospective employee for having 
     exercised or attempted to exercise FMLA rights. For example, 
     if an employee on leave without pay would otherwise be 
     entitled to full benefits (other than health benefits), the 
     same benefits would be required to be provided to an employee 
     on unpaid FMLA leave. By the same token, employing offices 
     cannot use the taking of FMLA leave as a negative factor in 
     employment actions, such as hiring, promotions or 
     disciplinary actions; nor can FMLA leave be counted under no 
     fault attendance policies. See 825.215.
       (d) Employees cannot waive, nor may employing offices 
     induce employees to waive, their rights under FMLA. For 
     example, employees (or their collective bargaining 
     representatives) cannot trade off the right to take FMLA 
     leave against some other benefit offered by the employing 
     office. Except for settlement agreements covered by 1414 and/
     or 1415 of the Congressional Accountability Act, this does 
     not prevent the settlement or release of FMLA claims by 
     employees based on past employing office conduct without the 
     approval of the Office of Compliance or a court. Nor does it 
     prevent an employee's voluntary and uncoerced acceptance (not 
     as a condition of employment) of a light duty assignment 
     while recovering from a serious health condition. See 
     825.702(d). An employee's acceptance of such light duty 
     assignment does not constitute a waiver of the employee's 
     prospective rights, including the right to be restored to the 
     same position the employee held at the time the employee's 
     FMLA leave commenced or to an equivalent position. The 
     employee's right to restoration, however, ceases at the end 
     of the applicable 12-month FMLA leave year.
       (e) Covered employees, and not merely eligible employees, 
     are protected from retaliation for opposing (e.g., filing a 
     complaint about) any practice which is unlawful under the 
     FMLA, as made applicable by the CAA. They are similarly 
     protected if they oppose any practice which they reasonably 
     believe to be a violation of the FMLA, as made applicable by 
     the CAA, or regulations.
     SUBPART C--EMPLOYEE AND EMPLOYING OFFICE RIGHTS AND 
         OBLIGATIONS UNDER THE FMLA, AS MADE APPLICABLE BY THE CAA
     825.300 Employing office notice requirements.
       (a)(1) If an employing office has any eligible employees 
     and has any written guidance to employees concerning employee 
     benefits or leave rights, such as in an employee handbook, 
     information concerning both entitlements and employee 
     obligations under the FMLA, as made applicable by the CAA, 
     must be included in the handbook or other document. For 
     example, if an employing office provides an employee handbook 
     to all employees that describes the employing office's 
     policies regarding leave, wages, attendance, and similar 
     matters, the handbook must incorporate information on FMLA 
     rights and responsibilities and the employing office's 
     policies regarding the FMLA, as made applicable by the CAA. 
     Informational publications describing the provisions of the 
     FMLA,

[[Page H4159]]

     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 (c), and in accordance 
     with the provisions of that paragraph. Employing offices may 
     duplicate and provide the employee a copy of the FMLA Fact 
     Sheet available from the Office of Compliance to provide such 
     guidance.
       (b) Eligibility notice. (1) When an employee requests FMLA 
     leave, or when the employing office acquires knowledge that 
     an employee's leave may be for an FMLA-qualifying reason, the 
     employing office must notify the employee of the employee's 
     eligibility to take FMLA leave within five business days, 
     absent extenuating circumstances. See 825.110 for definition 
     of an eligible employee. Employee eligibility is determined 
     (and notice must be provided) at the commencement of the 
     first instance of leave for each FMLA-qualifying reason in 
     the applicable 12-month period. See 825.127(c) and 
     825.200(b). All FMLA absences for the same qualifying reason 
     are considered a single leave and employee eligibility as to 
     that reason for leave does not change during the applicable 
     12-month period.
       (2) The eligibility notice must state whether the employee 
     is eligible for FMLA leave as defined in 825.110. If the 
     employee is not eligible for FMLA leave, the notice must 
     state at least one reason why the employee is not eligible, 
     including as applicable the number of months the employee has 
     been employed by the employing office and the hours of 
     service with the employing office during the 12-month period. 
     Notification of eligibility may be oral or in writing; 
     employing offices may use Form C to provide such notification 
     to employees.
       (3) If, at the time an employee provides notice of a 
     subsequent need for FMLA leave during the applicable 12-month 
     period due to a different FMLA-qualifying reason, and the 
     employee's eligibility status has not changed, no additional 
     eligibility notice is required. If, however, the employee's 
     eligibility status has changed (e.g., if the employee has not 
     met the hours of service requirement in the 12 months 
     preceding the commencement of leave for the subsequent 
     qualifying reason), the employing office must notify the 
     employee of the change in eligibility status within five 
     business days, absent extenuating circumstances.
       (c) Rights and responsibilities notice. (1) Employing 
     offices shall provide written notice detailing the specific 
     expectations and obligations of the employee and explaining 
     any consequences of a failure to meet these obligations. This 
     notice shall be provided to the employee each time the 
     eligibility notice is provided pursuant to paragraph (b) of 
     this section. If leave has already begun, the notice should 
     be mailed to the employee's address of record. Such specific 
     notice must include, as appropriate:
       (i) That the leave may be designated and counted against 
     the employee's annual FMLA leave entitlement if qualifying 
     (see 825.300(c) and 825.301) and the applicable 12-month 
     period for FMLA entitlement (see 825.127(c), 825.200(b), (f), 
     and (g));
       (ii) Any requirements for the employee to furnish 
     certification of a serious health condition, serious injury 
     or illness, or qualifying exigency arising out of covered 
     active duty or call to covered active duty status, and the 
     consequences of failing to do so (see 825.305, 825.309, 
     825.310, 825.313);
       (iii) The employee's right to substitute paid leave, 
     whether the employing office will require the substitution of 
     paid leave, the conditions related to any substitution, and 
     the employee's entitlement to take unpaid FMLA leave if the 
     employee does not meet the conditions for paid leave (see 
     825.207);
       (iv) Any requirement for the employee to make any premium 
     payments to maintain health benefits and the arrangements for 
     making such payments (see 825.210), and the possible 
     consequences of failure to make such payments on a timely 
     basis (i.e., the circumstances under which coverage may 
     lapse);
       (v) The employee's status as a key employee and the 
     potential consequence that restoration may be denied 
     following FMLA leave, explaining the conditions required for 
     such denial (see 825.218);
       (vi) The employee's right to maintenance of benefits during 
     the FMLA leave and restoration to the same or an equivalent 
     job upon return from FMLA leave (see 825.214 and 825.604); 
     and
       (vii) The employee's potential liability for payment of 
     health insurance premiums paid by the employing office during 
     the employee's unpaid FMLA leave if the employee fails to 
     return to work after taking FMLA leave (see 825.213).
       (2) The notice of rights and responsibilities may include 
     other information--e.g., whether the employing office will 
     require periodic reports of the employee's status and intent 
     to return to work--but is not required to do so.
       (3) The notice of rights and responsibilities may be 
     accompanied by any required certification form.
       (4) If the specific information provided by the notice of 
     rights and responsibilities changes, the employing office 
     shall, within five business days of receipt of the employee's 
     first notice of need for leave subsequent to any change, 
     provide written notice referencing the prior notice and 
     setting forth any of the information in the notice of rights 
     and responsibilities that has changed. For example, if the 
     initial leave period was paid leave and the subsequent leave 
     period would be unpaid leave, the employing office may need 
     to give notice of the arrangements for making premium 
     payments.
       (5) Employing offices are also expected to responsively 
     answer questions from employees concerning their rights and 
     responsibilities under the FMLA, as made applicable under the 
     CAA.
       (6) A prototype notice of rights and responsibilities may 
     be obtained in Form C, or from the Office of Compliance. 
     Employing offices may adapt the prototype notice as 
     appropriate to meet these notice requirements. The notice of 
     rights and responsibilities may be distributed electronically 
     so long as it otherwise meets the requirements of this 
     section.
       (d) Designation notice. (1) The employing office is 
     responsible in all circumstances for designating leave as 
     FMLA-qualifying, and for giving notice of the designation to 
     the employee as provided in this section. When the employing 
     office has enough information to determine whether the leave 
     is being taken for a FMLA-qualifying reason (e.g., after 
     receiving a certification), the employing office must notify 
     the employee whether the leave will be designated and will be 
     counted as FMLA leave within five business days absent 
     extenuating circumstances. Only one notice of designation is 
     required for each FMLA-qualifying reason per applicable 12-
     month period, regardless of whether the leave taken due to 
     the qualifying reason will be a continuous block of leave or 
     intermittent or reduced schedule leave. If the employing 
     office determines that the leave will not be designated as 
     FMLA-qualifying (e.g., if the leave is not for a reason 
     covered by FMLA or the FMLA leave entitlement has been 
     exhausted), the employing office must notify the employee of 
     that determination. If the employing office requires paid 
     leave to be substituted for unpaid FMLA leave, or that paid 
     leave taken under an existing leave plan be counted as FMLA 
     leave, the employing office must inform the employee of this 
     designation at the time of designating the FMLA leave.
       (2) If the employing office has sufficient information to 
     designate the leave as FMLA leave immediately after receiving 
     notice of the employee's need for leave, the employing office 
     may provide the employee with the designation notice at that 
     time.
       (3) If the employing office will require the employee to 
     present a fitness-for-duty certification to be restored to 
     employment, the employing office must provide notice of such 
     requirement with the designation notice. If the employing 
     office will require that the fitness-for-duty certification 
     address the employee's ability to perform the essential 
     functions of the employee's position, the employing office 
     must so indicate in the designation notice, and must include 
     a list of the essential functions of the employee's position. 
     See 825.312. If the employing office's handbook or other 
     written documents (if any) describing the employing office's 
     leave policies clearly provide that a fitness-for-duty 
     certification will be required in specific circumstances 
     (e.g., by stating that fitness-for-duty certification will be 
     required in all cases of back injuries for employees in a 
     certain occupation), the employing office is not required to 
     provide written notice of the requirement with the 
     designation notice, but must provide oral notice no later 
     than with the designation notice.
       (4) The designation notice must be in writing. A prototype 
     designation notice is contained in Form D which may be 
     obtained from the Office of Compliance. If the leave is not 
     designated as FMLA leave because it does not meet the 
     requirements of the FMLA, as made applicable by the CAA, the 
     notice to the employee that the leave is not designated as 
     FMLA leave may be in the form of a simple written statement. 
     The designation notice may be distributed electronically so 
     long as it otherwise meets the requirements of this section 
     and the employing office can demonstrate that the employee 
     (who may already be on leave and who may not have access to 
     employing office-provided computers) has access to the 
     information electronically.
       (5) If the information provided by the employing office to 
     the employee in the designation notice changes (e.g., the 
     employee exhausts the FMLA leave entitlement), the employing 
     office shall provide, within five business days of receipt of 
     the employee's first notice of need for leave subsequent to 
     any change, written notice of the change.
       (6) The employing office must notify the employee of the 
     amount of leave counted against the employee's FMLA leave 
     entitlement. If the amount of leave needed is known at the 
     time the employing office designates the leave as FMLA-
     qualifying, the employing office must notify the employee of 
     the number of hours, days, or weeks that will be counted 
     against the employee's FMLA leave entitlement in the 
     designation notice. If it is not possible to provide the 
     hours, days, or weeks that will be counted against the 
     employee's FMLA leave entitlement (such as in the case of 
     unforeseeable intermittent leave), then the employing office 
     must provide notice of the amount of

[[Page H4160]]

     leave counted against the employee's FMLA leave entitlement 
     upon the request by the employee, but no more often than once 
     in a 30-day period and only if leave was taken in that 
     period. The notice of the amount of leave counted against the 
     employee's FMLA entitlement may be oral or in writing. If 
     such notice is oral, it shall be confirmed in writing no 
     later than the following payday (unless the payday is less 
     than one week after the oral notice, in which case the notice 
     must be no later than the subsequent payday). Such written 
     notice may be in any form, including a notation on the 
     employee's pay stub.
       (e) Consequences of failing to provide notice. Failure to 
     follow the notice requirements set forth in this section may 
     constitute an interference with, restraint, or denial of the 
     exercise of an employee's FMLA rights. An employing office 
     may be liable for compensation and benefits lost by reason of 
     the violation, for other actual monetary losses sustained as 
     a direct result of the violation, and for appropriate 
     equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See 825.400(c).
     825.301 Designation of FMLA leave.
       (a) Employing office responsibilities. The employing 
     office's decision to designate leave as FMLA-qualifying must 
     be based only on information received from the employee or 
     the employee's spokesperson (e.g., if the employee is 
     incapacitated, the employee's spouse, adult child, parent, 
     doctor, etc., may provide notice to the employing office of 
     the need to take FMLA leave). In any circumstance where the 
     employing office does not have sufficient information about 
     the reason for an employee's use of leave, the employing 
     office should inquire further of the employee or the 
     spokesperson to ascertain whether leave is potentially FMLA-
     qualifying. Once the employing office has acquired knowledge 
     that the leave is being taken for a FMLA-qualifying reason, 
     the employing office must notify the employee as provided in 
     825.300(d).
       (b) Employee responsibilities. An employee giving notice of 
     the need for FMLA leave does not need to expressly assert 
     rights under the FMLA, as made applicable by the CAA, or even 
     mention the FMLA to meet his or her obligation to provide 
     notice, though the employee would need to state a qualifying 
     reason for the needed leave and otherwise satisfy the notice 
     requirements set forth in 825.302 or 825.303 depending on 
     whether the need for leave is foreseeable or unforeseeable. 
     An employee giving notice of the need for FMLA leave must 
     explain the reasons for the needed leave so as to allow the 
     employing office to determine whether the leave qualifies 
     under the FMLA, as made applicable by the CAA. If the 
     employee fails to explain the reasons, leave may be denied. 
     In many cases, in explaining the reasons for a request to use 
     leave, especially when the need for the leave was unexpected 
     or unforeseen, an employee will provide sufficient 
     information for the employing office to designate the leave 
     as FMLA leave. An employee using accrued paid leave may in 
     some cases not spontaneously explain the reasons or their 
     plans for using their accrued leave. However, if an employee 
     requesting to use paid leave for a FMLA-qualifying reason 
     does not explain the reason for the leave and the employing 
     office denies the employee's request, the employee will need 
     to provide sufficient information to establish a FMLA-
     qualifying reason for the needed leave so that the employing 
     office is aware that the leave may not be denied and may 
     designate that the paid leave be appropriately counted 
     against (substituted for) the employee's FMLA leave 
     entitlement. Similarly, an employee using accrued paid 
     vacation leave who seeks an extension of unpaid leave for a 
     FMLA-qualifying reason will need to state the reason. If this 
     is due to an event which occurred during the period of paid 
     leave, the employing office may count the leave used after 
     the FMLA-qualifying reason against the employee's FMLA leave 
     entitlement.
       (c) Disputes. If there is a dispute between an employing 
     office and an employee as to whether leave qualifies as FMLA 
     leave, it should be resolved through discussions between the 
     employee and the employing office. Such discussions and the 
     decision must be documented.
       (d) Retroactive designation. If an employing office does 
     not designate leave as required by 825.300, the employing 
     office may retroactively designate leave as FMLA leave with 
     appropriate notice to the employee as required by 825.300 
     provided that the employing office's failure to timely 
     designate leave does not cause harm or injury to the 
     employee. In all cases where leave would qualify for FMLA 
     protections, an employing office and an employee can mutually 
     agree that leave be retroactively designated as FMLA leave.
       (e) Remedies. If an employing office's failure to timely 
     designate leave in accordance with 825.300 causes the 
     employee to suffer harm, it may constitute an interference 
     with, restraint of, or denial of the exercise of an 
     employee's FMLA rights. An employing office may be liable for 
     compensation and benefits lost by reason of the violation, 
     for other actual monetary losses sustained as a direct result 
     of the violation, and for appropriate equitable or other 
     relief, including employment, reinstatement, promotion, or 
     any other relief tailored to the harm suffered. See 
     825.400(c). For example, if an employing office that was put 
     on notice that an employee needed FMLA leave failed to 
     designate the leave properly, but the employee's own serious 
     health condition prevented him or her from returning to work 
     during that time period regardless of the designation, an 
     employee may not be able to show that the employee suffered 
     harm as a result of the employing office's actions. However, 
     if an employee took leave to provide care for a son or 
     daughter with a serious health condition believing it would 
     not count toward his or her FMLA entitlement, and the 
     employee planned to later use that FMLA leave to provide care 
     for a spouse who would need assistance when recovering from 
     surgery planned for a later date, the employee may be able to 
     show that harm has occurred as a result of the employing 
     office's failure to designate properly. The employee might 
     establish this by showing that he or she would have arranged 
     for an alternative caregiver for the seriously-ill son or 
     daughter if the leave had been designated timely.
     825.302 Employee notice requirements for foreseeable FMLA 
         leave.
       (a) Timing of notice. An employee must provide the 
     employing office at least 30 days advance notice before FMLA 
     leave is to begin if the need for the leave is foreseeable 
     based on an expected birth, placement for adoption or foster 
     care, planned medical treatment for a serious health 
     condition of the employee or of a family member, or the 
     planned medical treatment for a serious injury or illness of 
     a covered servicemember. If 30 days notice is not 
     practicable, such as because of a lack of knowledge of 
     approximately when leave will be required to begin, a change 
     in circumstances, or a medical emergency, notice must be 
     given as soon as practicable. For example, an employee's 
     health condition may require leave to commence earlier than 
     anticipated before the birth of a child. Similarly, little 
     opportunity for notice may be given before placement for 
     adoption. For foreseeable leave due to a qualifying exigency, 
     notice must be provided as soon as practicable, regardless of 
     how far in advance such leave is foreseeable. Whether FMLA 
     leave is to be continuous or is to be taken intermittently or 
     on a reduced schedule basis, notice need only be given one 
     time, but the employee shall advise the employing office as 
     soon as practicable if dates of scheduled leave change or are 
     extended, or were initially unknown. In those cases where the 
     employee is required to provide at least 30 days notice of 
     foreseeable leave and does not do so, the employee shall 
     explain the reasons why such notice was not practicable upon 
     a request from the employing office for such information.
       (b) As soon as practicable means as soon as both possible 
     and practical, taking into account all of the facts and 
     circumstances in the individual case. When an employee 
     becomes aware of a need for FMLA leave less than 30 days in 
     advance, it should be practicable for the employee to provide 
     notice of the need for leave either the same day or the next 
     business day. In all cases, however, the determination of 
     when an employee could practicably provide notice must take 
     into account the individual facts and circumstances.
       (c) Content of notice. An employee shall provide at least 
     verbal notice sufficient to make the employing office aware 
     that the employee needs FMLA-qualifying leave, and the 
     anticipated timing and duration of the leave. Depending on 
     the situation, such information may include that a condition 
     renders the employee unable to perform the functions of the 
     job; that the employee is pregnant or has been hospitalized 
     overnight; whether the employee or the employee's family 
     member is under the continuing care of a health care 
     provider; if the leave is due to a qualifying exigency, that 
     a military member is on covered active duty or call to 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty), and that the 
     requested leave is for one of the reasons listed in 
     825.126(b); if the leave is for a family member, that the 
     condition renders the family member unable to perform daily 
     activities, or that the family member is a covered 
     servicemember with a serious injury or illness; and the 
     anticipated duration of the absence, if known. When an 
     employee seeks leave for the first time for a FMLA-qualifying 
     reason, the employee need not expressly assert rights under 
     the FMLA, as made applicable by the CAA, or even mention the 
     FMLA. When an employee seeks leave due to a FMLA-qualifying 
     reason, for which the employing office has previously 
     provided FMLA-protected leave, the employee must specifically 
     reference the qualifying reason for leave or the need for 
     FMLA leave. In all cases, the employing office should inquire 
     further of the employee if it is necessary to have more 
     information about whether FMLA leave is being sought by the 
     employee, and obtain the necessary details of the leave to be 
     taken. In the case of medical conditions, the employing 
     office may find it necessary to inquire further to determine 
     if the leave is because of a serious health condition and may 
     request medical certification to support the need for such 
     leave. See 825.305. An employing office may also request 
     certification to support the need for leave for a qualifying 
     exigency or for military caregiver leave. See 825.309, 
     825.310. When an employee has been previously certified for 
     leave due to more than one FMLA-qualifying reason, the 
     employing office may need to inquire further to determine for 
     which qualifying reason the leave is needed. An employee has 
     an obligation to respond to

[[Page H4161]]

     an employing office's questions designed to determine whether 
     an absence is potentially FMLA-qualifying. Failure to respond 
     to reasonable employing office inquiries regarding the leave 
     request may result in denial of FMLA protection if the 
     employing office is unable to determine whether the leave is 
     FMLA-qualifying.
       (d) Complying with the employing office policy. An 
     employing office may require an employee to comply with the 
     employing office's usual and customary notice and procedural 
     requirements for requesting leave, absent unusual 
     circumstances. For example, an employing office may require 
     that written notice set forth the reasons for the requested 
     leave, the anticipated duration of the leave, and the 
     anticipated start of the leave. An employee also may be 
     required by an employing office's policy to contact a 
     specific individual. Unusual circumstances would include 
     situations such as when an employee is unable to comply with 
     the employing office's policy that requests for leave should 
     be made by contacting a specific number because on the day 
     the employee needs to provide notice of his or her need for 
     FMLA leave there is no one to answer the call-in number and 
     the voice mail box is full. Where an employee does not comply 
     with the employing office's usual notice and procedural 
     requirements, and no unusual circumstances justify the 
     failure to comply, FMLA-protected leave may be delayed or 
     denied. However, FMLA-protected leave may not be delayed or 
     denied where the employing office's policy requires notice to 
     be given sooner than set forth in paragraph (a) of this 
     section and the employee provides timely notice as set forth 
     in paragraph (a) of this section.
       (e) Scheduling planned medical treatment. When planning 
     medical treatment, the employee must consult with the 
     employing office and make a reasonable effort to schedule the 
     treatment so as not to disrupt unduly the employing office's 
     operations, subject to the approval of the health care 
     provider. Employees are ordinarily expected to consult with 
     their employing offices prior to the scheduling of treatment 
     in order to work out a treatment schedule which best suits 
     the needs of both the employing office and the employee. For 
     example, if an employee who provides notice of the need to 
     take FMLA leave on an intermittent basis for planned medical 
     treatment neglects to consult with the employing office to 
     make a reasonable effort to arrange the schedule of 
     treatments so as not to unduly disrupt the employing office's 
     operations, the employing office may initiate discussions 
     with the employee and require the employee to attempt to make 
     such arrangements, subject to the approval of the health care 
     provider. See 825.203 and 825.205.
       (f) Intermittent leave or leave on a reduced leave schedule 
     must be medically necessary due to a serious health condition 
     or a serious injury or illness. An employee shall advise the 
     employing office, upon request, of the reasons why the 
     intermittent/reduced leave schedule is necessary and of the 
     schedule for treatment, if applicable. The employee and 
     employing office shall attempt to work out a schedule for 
     such leave that meets the employee's needs without unduly 
     disrupting the employing office's operations, subject to the 
     approval of the health care provider.
       (g) An employing office may waive employees' FMLA notice 
     requirements. See 825.304.
     825.303 Employee notice requirements for unforeseeable FMLA 
         leave.
       (a) Timing of notice. When the approximate timing of the 
     need for leave is not foreseeable, an employee must provide 
     notice to the employing office as soon as practicable under 
     the facts and circumstances of the particular case. It 
     generally should be practicable for the employee to provide 
     notice of leave that is unforeseeable within the time 
     prescribed by the employing office's usual and customary 
     notice requirements applicable to such leave. See 825.303(c). 
     Notice may be given by the employee's spokesperson (e.g., 
     spouse, adult family member, or other responsible party) if 
     the employee is unable to do so personally. For example, if 
     an employee's child has a severe asthma attack and the 
     employee takes the child to the emergency room, the employee 
     would not be required to leave his or her child in order to 
     report the absence while the child is receiving emergency 
     treatment. However, if the child's asthma attack required 
     only the use of an inhaler at home followed by a period of 
     rest, the employee would be expected to call the employing 
     office promptly after ensuring the child has used the 
     inhaler.
       (b) Content of notice. An employee shall provide sufficient 
     information for an employing office to reasonably determine 
     whether the FMLA may apply to the leave request. Depending on 
     the situation, such information may include that a condition 
     renders the employee unable to perform the functions of the 
     job; that the employee is pregnant or has been hospitalized 
     overnight; whether the employee or the employee's family 
     member is under the continuing care of a health care 
     provider; if the leave is due to a qualifying exigency, that 
     a military member is on covered active duty or call to 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty), that the 
     requested leave is for one of the reasons listed in 
     825.126(b), and the anticipated duration of the absence; or 
     if the leave is for a family member that the condition 
     renders the family member unable to perform daily activities 
     or that the family member is a covered servicemember with a 
     serious injury or illness; and the anticipated duration of 
     the absence, if known. When an employee seeks leave for the 
     first time for a FMLA-qualifying reason, the employee need 
     not expressly assert rights under the FMLA, as made 
     applicable by the CAA, or even mention the FMLA. When an 
     employee seeks leave due to a qualifying reason, for which 
     the employing office has previously provided the employee 
     FMLA-protected leave, the employee must specifically 
     reference either the qualifying reason for leave or the need 
     for FMLA leave. Calling in ``sick'' without providing more 
     information will not be considered sufficient notice to 
     trigger an employing office's obligations under the FMLA, as 
     made applicable by the CAA. The employing office will be 
     expected to obtain any additional required information 
     through informal means. An employee has an obligation to 
     respond to an employing office's questions designed to 
     determine whether an absence is potentially FMLA-qualifying. 
     Failure to respond to reasonable employing office inquiries 
     office regarding the leave request may result in denial of 
     FMLA protection if the employing office is unable to 
     determine whether the leave is FMLA-qualifying.
       (c) Complying with employing office policy. When the need 
     for leave is not foreseeable, an employee must comply with 
     the employing office's usual and customary notice and 
     procedural requirements for requesting leave, absent unusual 
     circumstances. For example, an employing office may require 
     employees to call a designated number or a specific 
     individual to request leave. However, if an employee requires 
     emergency medical treatment, he or she would not be required 
     to follow the call-in procedure until his or her condition is 
     stabilized and he or she has access to, and is able to use, a 
     phone. Similarly, in the case of an emergency requiring leave 
     because of a FMLA-qualifying reason, written advance notice 
     pursuant to an employing office's internal rules and 
     procedures may not be required when FMLA leave is involved. 
     If an employee does not comply with the employing office's 
     usual notice and procedural requirements, and no unusual 
     circumstances justify the failure to comply, FMLA-protected 
     leave may be delayed or denied.
     825.304 Employee failure to provide notice.
       (a) Proper notice required. In all cases, in order for the 
     onset of an employee's FMLA leave to be delayed due to lack 
     of required notice, it must be clear that the employee had 
     actual notice of the FMLA notice requirements. This condition 
     would be satisfied by the employing office's proper posting, 
     at the worksite where the employee is employed, of the 
     information regarding the FMLA provided (pursuant to section 
     301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by the Office of 
     Compliance to the employing office in a manner suitable for 
     posting.
       (b) Foreseeable leave--30 days. When the need for FMLA 
     leave is foreseeable at least 30 days in advance and an 
     employee fails to give timely advance notice with no 
     reasonable excuse, the employing office may delay FMLA 
     coverage until 30 days after the date the employee provides 
     notice. The need for leave and the approximate date leave 
     would be taken must have been clearly foreseeable to the 
     employee 30 days in advance of the leave. For example, 
     knowledge that an employee would receive a telephone call 
     about the availability of a child for adoption at some 
     unknown point in the future would not be sufficient to 
     establish the leave was clearly foreseeable 30 days in 
     advance.
       (c) Foreseeable leave--less than 30 days. When the need for 
     FMLA leave is foreseeable fewer than 30 days in advance and 
     an employee fails to give notice as soon as practicable under 
     the particular facts and circumstances, the extent to which 
     an employing office may delay FMLA coverage for leave depends 
     on the facts of the particular case. For example, if an 
     employee reasonably should have given the employing office 
     two weeks' notice but instead only provided one week's 
     notice, then the employing office may delay FMLA-protected 
     leave for one week (thus, if the employing office elects to 
     delay FMLA coverage and the employee nonetheless takes leave 
     one week after providing the notice (i.e., a week before the 
     two week notice period has been met) the leave will not be 
     FMLA-protected).
       (d) Unforeseeable leave. When the need for FMLA leave is 
     unforeseeable and an employee fails to give notice in 
     accordance with 825.303, the extent to which an employing 
     office may delay FMLA coverage for leave depends on the facts 
     of the particular case. For example, if it would have been 
     practicable for an employee to have given the employing 
     office notice of the need for leave very soon after the need 
     arises consistent with the employing office's policy, but 
     instead the employee provided notice two days after the leave 
     began, then the employing office may delay FMLA coverage of 
     the leave by two days.
       (e) Waiver of notice. An employing office may waive 
     employees' FMLA notice obligations or the employing office's 
     own internal rules on leave notice requirements. If an 
     employing office does not waive the employee's obligations 
     under its internal leave rules, the employing office may take 
     appropriate action under its internal rules and procedures 
     for failure to follow its usual and customary notification 
     rules, absent unusual circumstances, as long as the actions 
     are taken in a manner that does not discriminate against 
     employees taking FMLA leave and the rules are not 
     inconsistent with 825.303(a).

[[Page H4162]]

  

     825.305 Certification, general rule.
       (a) General. An employing office may require that an 
     employee's leave to care for the employee's covered family 
     member with a serious health condition, or due to the 
     employee's own serious health condition that makes the 
     employee unable to perform one or more of the essential 
     functions of the employee's position, be supported by a 
     certification issued by the health care provider of the 
     employee or the employee's family member. An employing office 
     may also require that an employee's leave because of a 
     qualifying exigency or to care for a covered servicemember 
     with a serious injury or illness be supported by a 
     certification, as described in 825.309 and 825.310, 
     respectively. An employing office must give notice of a 
     requirement for certification each time a certification is 
     required; such notice must be written notice whenever 
     required by 825.300(c). An employing office's oral request to 
     an employee to furnish any subsequent certification is 
     sufficient.
       (b) Timing. In most cases, the employing office should 
     request that an employee furnish certification at the time 
     the employee gives notice of the need for leave or within 
     five business days thereafter, or, in the case of unforeseen 
     leave, within five business days after the leave commences. 
     The employing office may request certification at some later 
     date if the employing office later has reason to question the 
     appropriateness of the leave or its duration. The employee 
     must provide the requested certification to the employing 
     office within 15 calendar days after the employing office's 
     request, unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts or the employing office provides more than 15 
     calendar days to return the requested certification.
       (c) Complete and sufficient certification. The employee 
     must provide a complete and sufficient certification to the 
     employing office if required by the employing office in 
     accordance with 825.306, 825.309, and 825.310. The employing 
     office shall advise an employee whenever the employing office 
     finds a certification incomplete or insufficient, and shall 
     state in writing what additional information is necessary to 
     make the certification complete and sufficient. A 
     certification is considered incomplete if the employing 
     office receives a certification, but one or more of the 
     applicable entries have not been completed. A certification 
     is considered insufficient if the employing office receives a 
     complete certification, but the information provided is 
     vague, ambiguous, or non-responsive. The employing office 
     must provide the employee with seven calendar days (unless 
     not practicable under the particular circumstances despite 
     the employee's diligent good faith efforts) to cure any such 
     deficiency. If the deficiencies specified by the employing 
     office are not cured in the resubmitted certification, the 
     employing office may deny the taking of FMLA leave, in 
     accordance with 825.313. A certification that is not returned 
     to the employing office is not considered incomplete or 
     insufficient, but constitutes a failure to provide 
     certification.
       (d) Consequences. At the time the employing office requests 
     certification, the employing office must also advise an 
     employee of the anticipated consequences of an employee's 
     failure to provide adequate certification. If the employee 
     fails to provide the employing office with a complete and 
     sufficient certification, despite the opportunity to cure the 
     certification as provided in paragraph (c) of this section, 
     or fails to provide any certification, the employing office 
     may deny the taking of FMLA leave, in accordance with 
     825.313. It is the employee's responsibility either to 
     furnish a complete and sufficient certification or to furnish 
     the health care provider providing the certification with any 
     necessary authorization from the employee or the employee's 
     family member in order for the health care provider to 
     release a complete and sufficient certification to the 
     employing office to support the employee's FMLA request. This 
     provision will apply in any case where an employing office 
     requests a certification permitted by these regulations, 
     whether it is the initial certification, a recertification, a 
     second or third opinion, or a fitness-for-duty certificate, 
     including any clarifications necessary to determine if such 
     certifications are authentic and sufficient. See 825.306, 
     825.307, 825.308, and 825.312.
       (e) Annual medical certification. Where the employee's need 
     for leave due to the employee's own serious health condition, 
     or the serious health condition of the employee's covered 
     family member, lasts beyond a single leave year (as defined 
     in 825.200), the employing office may require the employee to 
     provide a new medical certification in each subsequent leave 
     year. Such new medical certifications are subject to the 
     provisions for authentication and clarification set forth in 
     825.307, including second and third opinions.
     825.306 Content of medical certification for leave taken 
         because of an employee's own serious health condition or 
         the serious health condition of a family member.
       (a) Required information. When leave is taken because of an 
     employee's own serious health condition, or the serious 
     health condition of a family member, an employing office may 
     require an employee to obtain a medical certification from a 
     health care provider that sets forth the following 
     information:
       (1) The name, address, telephone number, and fax number of 
     the health care provider and type of medical practice/
     specialization;
       (2) The approximate date on which the serious health 
     condition commenced, and its probable duration;
       (3) A statement or description of appropriate medical facts 
     regarding the patient's health condition for which FMLA leave 
     is requested. The medical facts must be sufficient to support 
     the need for leave. Such medical facts may include 
     information on symptoms, diagnosis, hospitalization, doctor 
     visits, whether medication has been prescribed, any referrals 
     for evaluation or treatment (physical therapy, for example), 
     or any other regimen of continuing treatment;
       (4) If the employee is the patient, information sufficient 
     to establish that the employee cannot perform the essential 
     functions of the employee's job as well as the nature of any 
     other work restrictions, and the likely duration of such 
     inability (see 825.123(b));
       (5) If the patient is a covered family member with a 
     serious health condition, information sufficient to establish 
     that the family member is in need of care, as described in 
     825.124, and an estimate of the frequency and duration of the 
     leave required to care for the family member;
       (6) If an employee requests leave on an intermittent or 
     reduced schedule basis for planned medical treatment of the 
     employee's or a covered family member's serious health 
     condition, information sufficient to establish the medical 
     necessity for such intermittent or reduced schedule leave and 
     an estimate of the dates and duration of such treatments and 
     any periods of recovery;
       (7) If an employee requests leave on an intermittent or 
     reduced schedule basis for the employee's serious health 
     condition, including pregnancy, that may result in 
     unforeseeable episodes of incapacity, information sufficient 
     to establish the medical necessity for such intermittent or 
     reduced schedule leave and an estimate of the frequency and 
     duration of the episodes of incapacity; and
       (8) If an employee requests leave on an intermittent or 
     reduced schedule basis to care for a covered family member 
     with a serious health condition, a statement that such leave 
     is medically necessary to care for the family member, as 
     described in 825.124 and 825.203(b), which can include 
     assisting in the family member's recovery, and an estimate of 
     the frequency and duration of the required leave.
       (b) The Office of Compliance has developed two optional 
     forms (Form A and Form B) for use in obtaining medical 
     certification, including second and third opinions, from 
     health care providers that meets FMLA's certification 
     requirements, as made applicable by the CAA. (See Forms A and 
     B.) Optional Form A is for use when the employee's need for 
     leave is due to the employee's own serious health condition. 
     Optional Form B is for use when the employee needs leave to 
     care for a family member with a serious health condition. 
     These optional forms reflect certification requirements so as 
     to permit the health care provider to furnish appropriate 
     medical information. Forms A and B are modeled closely on 
     Form WH-380E and Form WH-380F, as revised, which were 
     developed by the Department of Labor (see 29 C.F.R. Part 
     825). The employing office may use the Office of Compliance's 
     forms, or Form WH-380E and Form WH-380F, as revised, or 
     another form containing the same basic information; however, 
     no information may be required beyond that specified in 
     825.306, 825.307, and 825.308. In all instances the 
     information on the form must relate only to the serious 
     health condition for which the current need for leave exists.
       (c) If an employee is on FMLA leave running concurrently 
     with a workers' compensation absence, and the provisions of 
     the workers' compensation statute permit the employing office 
     or the employing office's representative to request 
     additional information from the employee's workers' 
     compensation health care provider, the FMLA does not prevent 
     the employing office from following the applicable workers' 
     compensation provisions and information received under those 
     provisions may be considered in determining the employee's 
     entitlement to FMLA-protected leave. Similarly, an employing 
     office may request additional information in accordance with 
     a paid leave policy or disability plan that requires greater 
     information to qualify for payments or benefits, provided 
     that the employing office informs the employee that the 
     additional information only needs to be provided in 
     connection with receipt of such payments or benefits. Any 
     information received pursuant to such policy or plan may be 
     considered in determining the employee's entitlement to FMLA-
     protected leave. If the employee fails to provide the 
     information required for receipt of such payments or 
     benefits, such failure will not affect the employee's 
     entitlement to take unpaid FMLA leave. See 825.207(a).
       (d) If an employee's serious health condition may also be a 
     disability within the meaning of the Americans with 
     Disabilities Act (ADA), as amended and as made applicable by 
     the CAA, the FMLA does not prevent the employing office from 
     following the procedures for requesting medical information 
     under the ADA. Any information received pursuant to these 
     procedures may be considered in determining the employee's 
     entitlement to FMLA-protected leave.
       (e) While an employee may choose to comply with the 
     certification requirement by providing the employing office 
     with an authorization, release, or waiver allowing the

[[Page H4163]]

     employing office to communicate directly with the health care 
     provider of the employee or his or her covered family member, 
     the employee may not be required to provide such an 
     authorization, release, or waiver. In all instances in which 
     certification is requested, it is the employee's 
     responsibility to provide the employing office with complete 
     and sufficient certification and failure to do so may result 
     in the denial of FMLA leave. See 825.305(d).
     825.307 Authentication and clarification of medical 
         certification for leave taken because of an employee's 
         own serious health condition or the serious health 
         condition of a family member; second and third opinions.
       (a) Clarification and authentication. If an employee 
     submits a complete and sufficient certification signed by the 
     health care provider, the employing office may not request 
     additional information from the health care provider. 
     However, the employing office may contact the health care 
     provider for purposes of clarification and authentication of 
     the medical certification (whether initial certification or 
     recertification) after the employing office has given the 
     employee an opportunity to cure any deficiencies as set forth 
     in 825.305(c). To make such contact, the employing office 
     must use a health care provider, a human resources 
     professional, a leave administrator, or a management 
     official. An employee's direct supervisor may not contact the 
     employee's health care provider, unless the direct supervisor 
     is also the only individual in the employing office 
     designated to process FMLA requests and the direct supervisor 
     receives specific authorization from the employee to contact 
     the employee's health care provider. For purposes of these 
     regulations, authentication means providing the health care 
     provider with a copy of the certification and requesting 
     verification that the information contained on the 
     certification form was completed and/or authorized by the 
     health care provider who signed the document; no additional 
     medical information may be requested.
       Clarification means contacting the health care provider to 
     understand the handwriting on the medical certification or to 
     understand the meaning of a response. Employing offices may 
     not ask health care providers for additional information 
     beyond that required by the certification form. The 
     requirements of the Health Insurance Portability and 
     Accountability Act (HIPAA) Privacy Rule, (see 45 CFR parts 
     160 and 164), which governs the privacy of individually-
     identifiable health information created or held by HIPAA-
     covered entities, must be satisfied when individually-
     identifiable health information of an employee is shared with 
     an employing office by a HIPAA-covered health care provider. 
     If an employee chooses not to provide the employing office 
     with authorization allowing the employing office to clarify 
     the certification with the health care provider, and does not 
     otherwise clarify the certification, the employing office may 
     deny the taking of FMLA leave if the certification is 
     unclear. See 825.305(d). It is the employee's responsibility 
     to provide the employing office with a complete and 
     sufficient certification and to clarify the certification if 
     necessary.
       (b) Second Opinion. (1) An employing office that has reason 
     to doubt the validity of a medical certification may require 
     the employee to obtain a second opinion at the employing 
     office's expense. Pending receipt of the second (or third) 
     medical opinion, the employee is provisionally entitled to 
     the benefits of the FMLA, as made applicable by the CAA, 
     including maintenance of group health benefits. If the 
     certifications do not ultimately establish the employee's 
     entitlement to FMLA leave, the leave shall not be designated 
     as FMLA leave and may be treated as paid or unpaid leave 
     under the employing office's established leave policies. In 
     addition, the consequences set forth in 825.305(d) will apply 
     if the employee or the employee's family member fails to 
     authorize his or her health care provider to release all 
     relevant medical information pertaining to the serious health 
     condition at issue if requested by the health care provider 
     designated to provide a second opinion in order to render a 
     sufficient and complete second opinion.
       (2) The employing office is permitted to designate the 
     health care provider to furnish the second opinion, but the 
     selected health care provider may not be employed on a 
     regular basis by the employing office. The employing office 
     may not regularly contract with or otherwise regularly 
     utilize the services of the health care provider furnishing 
     the second opinion unless the employing office is located in 
     an area where access to health care is extremely limited 
     (e.g., a rural area where no more than one or two doctors 
     practice in the relevant specialty in the vicinity).
       (c) Third opinion. If the opinions of the employee's and 
     the employing office's designated health care providers 
     differ, the employing office may require the employee to 
     obtain certification from a third health care provider, again 
     at the employing office's expense. This third opinion shall 
     be final and binding. The third health care provider must be 
     designated or approved jointly by the employing office and 
     the employee. The employing office and the employee must each 
     act in good faith to attempt to reach agreement on whom to 
     select for the third opinion provider. If the employing 
     office does not attempt in good faith to reach agreement, the 
     employing office will be bound by the first certification. If 
     the employee does not attempt in good faith to reach 
     agreement, the employee will be bound by the second 
     certification. For example, an employee who refuses to agree 
     to see a doctor in the specialty in question may be failing 
     to act in good faith. On the other hand, an employing office 
     that refuses to agree to any doctor on a list of specialists 
     in the appropriate field provided by the employee and whom 
     the employee has not previously consulted may be failing to 
     act in good faith. In addition, the consequences set forth in 
     825.305(d) will apply if the employee or the employee's 
     family member fails to authorize his or her health care 
     provider to release all relevant medical information 
     pertaining to the serious health condition at issue if 
     requested by the health care provider designated to provide a 
     third opinion in order to render a sufficient and complete 
     third opinion.
       (d) Copies of opinions. The employing office is required to 
     provide the employee with a copy of the second and third 
     medical opinions, where applicable, upon request by the 
     employee. Requested copies are to be provided within five 
     business days unless extenuating circumstances prevent such 
     action.
       (e) Travel expenses. If the employing office requires the 
     employee to obtain either a second or third opinion the 
     employing office must reimburse an employee or family member 
     for any reasonable ``out of pocket'' travel expenses incurred 
     to obtain the second and third medical opinions. The 
     employing office may not require the employee or family 
     member to travel outside normal commuting distance for 
     purposes of obtaining the second or third medical opinions 
     except in very unusual circumstances.
       (f) Medical certification abroad. In circumstances in which 
     the employee or a family member is visiting in another 
     country, or a family member resides in another country, and a 
     serious health condition develops, the employing office shall 
     accept a medical certification as well as second and third 
     opinions from a health care provider who practices in that 
     country. Where a certification by a foreign health care 
     provider is in a language other than English, the employee 
     must provide the employing office with a written translation 
     of the certification upon request.
     825.308 Recertifications for leave taken because of an 
         employee's own serious health condition or the serious 
         health condition of a family member.
       (a) 30-day rule. An employing office may request 
     recertification no more often than every 30 days and only in 
     connection with an absence by the employee, unless paragraphs 
     (b) or (c) of this section apply.
       (b) More than 30 days. If the medical certification 
     indicates that the minimum duration of the condition is more 
     than 30 days, an employing office must wait until that 
     minimum duration expires before requesting a recertification, 
     unless paragraph (c) of this section applies. For example, if 
     the medical certification states that an employee will be 
     unable to work, whether continuously or on an intermittent 
     basis, for 40 days, the employing office must wait 40 days 
     before requesting a recertification. In all cases, an 
     employing office may request a recertification of a medical 
     condition every six months in connection with an absence by 
     the employee. Accordingly, even if the medical certification 
     indicates that the employee will need intermittent or reduced 
     schedule leave for a period in excess of six months (e.g., 
     for a lifetime condition), the employing office would be 
     permitted to request recertification every six months in 
     connection with an absence.
       (c) Less than 30 days. An employing office may request 
     recertification in less than 30 days if:
       (1) The employee requests an extension of leave;
       (2) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration or frequency 
     of the absence, the nature or severity of the illness, 
     complications). For example, if a medical certification 
     stated that an employee would need leave for one to two days 
     when the employee suffered a migraine headache and the 
     employee's absences for his or her last two migraines lasted 
     four days each, then the increased duration of absence might 
     constitute a significant change in circumstances allowing the 
     employing office to request a recertification in less than 30 
     days. Likewise, if an employee had a pattern of using 
     unscheduled FMLA leave for migraines in conjunction with his 
     or her scheduled days off, then the timing of the absences 
     also might constitute a significant change in circumstances 
     sufficient for an employing office to request a 
     recertification more frequently than every 30 days; or
       (3) The employing office receives information that casts 
     doubt upon the employee's stated reason for the absence or 
     the continuing validity of the certification. For example, if 
     an employee is on FMLA leave for four weeks due to the 
     employee's knee surgery, including recuperation, and the 
     employee plays in company softball league games during the 
     employee's third week of FMLA leave, such information might 
     be sufficient to cast doubt upon the continuing validity of 
     the certification allowing the employing office to request a 
     recertification in less than 30 days.
       (d) Timing. The employee must provide the requested 
     recertification to the employing office within the time frame 
     requested by the employing office (which must allow at

[[Page H4164]]

     least 15 calendar days after the employing office's request), 
     unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts.
       (e) Content. The employing office may ask for the same 
     information when obtaining recertification as that permitted 
     for the original certification as set forth in 825.306. The 
     employee has the same obligations to participate and 
     cooperate (including providing a complete and sufficient 
     certification or adequate authorization to the health care 
     provider) in the recertification process as in the initial 
     certification process. See 825.305(d). As part of the 
     information allowed to be obtained on recertification for 
     leave taken because of a serious health condition, the 
     employing office may provide the health care provider with a 
     record of the employee's absence pattern and ask the health 
     care provider if the serious health condition and need for 
     leave is consistent with such a pattern.
       (f) Any recertification requested by the employing office 
     shall be at the employee's expense unless the employing 
     office provides otherwise. No second or third opinion on 
     recertification may be required.
     825.309 Certification for leave taken because of a qualifying 
         exigency.
       (a) Active Duty Orders. The first time an employee requests 
     leave because of a qualifying exigency arising out of the 
     covered active duty or call to covered active duty status (or 
     notification of an impending call or order to covered active 
     duty) of a military member (see 825.126(a)), an employing 
     office may require the employee to provide a copy of the 
     military member's active duty orders or other documentation 
     issued by the military which indicates that the military 
     member is on covered active duty or call to covered active 
     duty status, and the dates of the military member's covered 
     active duty service. This information need only be provided 
     to the employing office once. A copy of new active duty 
     orders or other documentation issued by the military may be 
     required by the employing office if the need for leave 
     because of a qualifying exigency arises out of a different 
     covered active duty or call to covered active duty status (or 
     notification of an impending call or order to covered active 
     duty) of the same or a different military member;
       (b) Required information. An employing office may require 
     that leave for any qualifying exigency specified in 825.126 
     be supported by a certification from the employee that sets 
     forth the following information:
       (1) A statement or description, signed by the employee, of 
     appropriate facts regarding the qualifying exigency for which 
     FMLA leave is requested. The facts must be sufficient to 
     support the need for leave. Such facts should include 
     information on the type of qualifying exigency for which 
     leave is requested and any available written documentation 
     which supports the request for leave; such documentation, for 
     example, may include a copy of a meeting announcement for 
     informational briefings sponsored by the military, a document 
     confirming an appointment with a counselor or school 
     official, or a copy of a bill for services for the handling 
     of legal or financial affairs;
       (2) The approximate date on which the qualifying exigency 
     commenced or will commence;
       (3) If an employee requests leave because of a qualifying 
     exigency for a single, continuous period of time, the 
     beginning and end dates for such absence;
       (4) If an employee requests leave because of a qualifying 
     exigency on an intermittent or reduced schedule basis, an 
     estimate of the frequency and duration of the qualifying 
     exigency;
       (5) If the qualifying exigency involves meeting with a 
     third party, appropriate contact information for the 
     individual or entity with whom the employee is meeting (such 
     as the name, title, organization, address, telephone number, 
     fax number, and email address) and a brief description of the 
     purpose of the meeting; and
       (6) If the qualifying exigency involves Rest and 
     Recuperation leave, a copy of the military member's Rest and 
     Recuperation orders, or other documentation issued by the 
     military which indicates that the military member has been 
     granted Rest and Recuperation leave, and the dates of the 
     military member's Rest and Recuperation leave.
       (c) The Office of Compliance has developed an optional form 
     (Form E) for employees' use in obtaining a certification that 
     meets FMLA's certification requirements. This optional form 
     reflects certification requirements so as to permit the 
     employee to furnish appropriate information to support his or 
     her request for leave because of a qualifying exigency. Form 
     E, or Form WH-384 (developed by the Department of Labor), or 
     another form containing the same basic information, may be 
     used by the employing office; however, no information may be 
     required beyond that specified in this section.
       (d) Verification. If an employee submits a complete and 
     sufficient certification to support his or her request for 
     leave because of a qualifying exigency, the employing office 
     may not request additional information from the employee. 
     However, if the qualifying exigency involves meeting with a 
     third party, the employing office may contact the individual 
     or entity with whom the employee is meeting for purposes of 
     verifying a meeting or appointment schedule and the nature of 
     the meeting between the employee and the specified individual 
     or entity. The employee's permission is not required in order 
     to verify meetings or appointments with third parties, but no 
     additional information may be requested by the employing 
     office. An employing office also may contact an appropriate 
     unit of the Department of Defense to request verification 
     that a military member is on covered active duty or call to 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty); no 
     additional information may be requested and the employee's 
     permission is not required.
     825.310 Certification for leave taken to care for a covered 
         servicemember (military caregiver leave).
       (a) Required information from health care provider. When 
     leave is taken to care for a covered servicemember with a 
     serious injury or illness, an employing office may require an 
     employee to obtain a certification completed by an authorized 
     health care provider of the covered servicemember. For 
     purposes of leave taken to care for a covered servicemember, 
     any one of the following health care providers may complete 
     such a certification:
       (1) A United States Department of Defense (``DOD'') health 
     care provider;
       (2) A United States Department of Veterans Affairs (``VA'') 
     health care provider;
       (3) A DOD TRICARE network authorized private health care 
     provider;
       (4) A DOD non-network TRICARE authorized private health 
     care provider; or
       (5) Any health care provider as defined in 825.125.
       (b) If the authorized health care provider is unable to 
     make certain military-related determinations outlined below, 
     the authorized health care provider may rely on 
     determinations from an authorized DOD representative (such as 
     a DOD recovery care coordinator) or an authorized VA 
     representative. An employing office may request that the 
     health care provider provide the following information:
       (1) The name, address, and appropriate contact information 
     (telephone number, fax number, and/or email address) of the 
     health care provider, the type of medical practice, the 
     medical specialty, and whether the health care provider is 
     one of the following:
       (i) A DOD health care provider;
       (ii) A VA health care provider;
       (iii) A DOD TRICARE network authorized private health care 
     provider;
       (iv) A DOD non-network TRICARE authorized private health 
     care provider; or
       (v) A health care provider as defined in 825.125.
       (2) Whether the covered servicemember's injury or illness 
     was incurred in the line of duty on active duty or, if not, 
     whether the covered servicemember's injury or illness existed 
     before the beginning of the servicemember's active duty and 
     was aggravated by service in the line of duty on active duty;
       (3) The approximate date on which the serious injury or 
     illness commenced, or was aggravated, and its probable 
     duration;
       (4) A statement or description of appropriate medical facts 
     regarding the covered servicemember's health condition for 
     which FMLA leave is requested. The medical facts must be 
     sufficient to support the need for leave.
       (i) In the case of a current member of the Armed Forces, 
     such medical facts must include information on whether the 
     injury or illness may render the covered servicemember 
     medically unfit to perform the duties of the servicemember's 
     office, grade, rank, or rating and whether the member is 
     receiving medical treatment, recuperation, or therapy;
       (ii) In the case of a covered veteran, such medical facts 
     must include:
       (A) Information on whether the veteran is receiving medical 
     treatment, recuperation, or therapy for an injury or illness 
     that is the continuation of an injury or illness that was 
     incurred or aggravated when the covered veteran was a member 
     of the Armed Forces and rendered the servicemember medically 
     unfit to perform the duties of the servicemember's office, 
     grade, rank, or rating; or
       (B) Information on whether the veteran is receiving medical 
     treatment, recuperation, or therapy for an injury or illness 
     that is a physical or mental condition for which the covered 
     veteran has received a U.S. Department of Veterans Affairs 
     Service-Related Disability Rating (VASRD) of 50 percent or 
     greater, and that such VASRD rating is based, in whole or in 
     part, on the condition precipitating the need for military 
     caregiver leave; or
       (C) Information on whether the veteran is receiving medical 
     treatment, recuperation, or therapy for an injury or illness 
     that is a physical or mental condition that substantially 
     impairs the covered veteran's ability to secure or follow a 
     substantially gainful occupation by reason of a disability or 
     disabilities related to military service, or would do so 
     absent treatment; or
       (D) Documentation of enrollment in the Department of 
     Veterans Affairs Program of Comprehensive Assistance for 
     Family Caregivers.
       (5) Information sufficient to establish that the covered 
     servicemember is in need of care, as described in 825.124, 
     and whether the covered servicemember will need care for a 
     single continuous period of time, including any time for 
     treatment and recovery, and an estimate as to the beginning 
     and ending dates for this period of time;
       (6) If an employee requests leave on an intermittent or 
     reduced schedule basis for planned medical treatment 
     appointments for the covered servicemember, whether there is 
     a medical necessity for the covered servicemember to have 
     such periodic care and an estimate of the treatment schedule 
     of such appointments;

[[Page H4165]]

       (7) If an employee requests leave on an intermittent or 
     reduced schedule basis to care for a covered servicemember 
     other than for planned medical treatment (e.g., episodic 
     flare-ups of a medical condition), whether there is a medical 
     necessity for the covered servicemember to have such periodic 
     care, which can include assisting in the covered 
     servicemember's recovery, and an estimate of the frequency 
     and duration of the periodic care.
       (c) Required information from employee and/or covered 
     servicemember. In addition to the information that may be 
     requested under 825.310(b), an employing office may also 
     request that such certification set forth the following 
     information provided by an employee and/or covered 
     servicemember:
       (1) The name and address of the employing office of the 
     employee requesting leave to care for a covered 
     servicemember, the name of the employee requesting such 
     leave, and the name of the covered servicemember for whom the 
     employee is requesting leave to care;
       (2) The relationship of the employee to the covered 
     servicemember for whom the employee is requesting leave to 
     care;
       (3) Whether the covered servicemember is a current member 
     of the Armed Forces, the National Guard or Reserves, and the 
     covered servicemember's military branch, rank, and current 
     unit assignment;
       (4) Whether the covered servicemember is assigned to a 
     military medical facility as an outpatient or to a unit 
     established for the purpose of providing command and control 
     of members of the Armed Forces receiving medical care as 
     outpatients (such as a medical hold or warrior transition 
     unit), and the name of the medical treatment facility or 
     unit;
       (5) Whether the covered servicemember is on the temporary 
     disability retired list;
       (6) Whether the covered servicemember is a veteran, the 
     date of separation from military service, and whether the 
     separation was other than dishonorable. The employing office 
     may require the employee to provide documentation issued by 
     the military which indicates that the covered servicemember 
     is a veteran, the date of separation, and that the separation 
     is other than dishonorable. Where an employing office 
     requires such documentation, an employee may provide a copy 
     of the veteran's Certificate of Release or Discharge from 
     Active Duty issued by the U.S. Department of Defense (DD Form 
     214) or other proof of veteran status. See 825.127(c)(2).
       (7) A description of the care to be provided to the covered 
     servicemember and an estimate of the leave needed to provide 
     the care.
       (d) The Office of Compliance has developed an optional form 
     (Form F) for employees' use in obtaining certification that 
     meets FMLA's certification requirements. (See Form F). This 
     optional form reflects certification requirements so as to 
     permit the employee to furnish appropriate information to 
     support his or her request for leave to care for a covered 
     servicemember with a serious injury or illness. Form F, or 
     Form WH-385 (developed by the Department of Labor), or 
     another form containing the same basic information, may be 
     used by the employing office; however, no information may be 
     required beyond that specified in this section. In all 
     instances the information on the certification must relate 
     only to the serious injury or illness for which the current 
     need for leave exists. An employing office may seek 
     authentication and/or clarification of the certification 
     under 825.307. Second and third opinions under 825.307 are 
     not permitted for leave to care for a covered servicemember 
     when the certification has been completed by one of the types 
     of healthcare providers identified in section 825.310(a)(1-
     4). However, second and third opinions under 825.307 are 
     permitted when the certification has been completed by a 
     health care provider as defined in 825.125 that is not one of 
     the types identified in 825.310(a)(1)-(4). Additionally, 
     recertifications under 825.308 are not permitted for leave to 
     care for a covered servicemember. An employing office may 
     require an employee to provide confirmation of covered family 
     relationship to the seriously injured or ill servicemember 
     pursuant to 825.122(k) of the FMLA.
       (e) An employing office requiring an employee to submit a 
     certification for leave to care for a covered servicemember 
     must accept as sufficient certification, in lieu of the 
     Office of Compliance's optional certification form (Form F) 
     or an employing office's own certification form, invitational 
     travel orders (ITOs) or invitational travel authorizations 
     (ITAs) issued to any family member to join an injured or ill 
     servicemember at his or her bedside. An ITO or ITA is 
     sufficient certification for the duration of time specified 
     in the ITO or ITA. During that time period, an eligible 
     employee may take leave to care for the covered servicemember 
     in a continuous block of time or on an intermittent basis. An 
     eligible employee who provides an ITO or ITA to support his 
     or her request for leave may not be required to provide any 
     additional or separate certification that leave taken on an 
     intermittent basis during the period of time specified in the 
     ITO or ITA is medically necessary. An ITO or ITA is 
     sufficient certification for an employee entitled to take 
     FMLA leave to care for a covered servicemember regardless of 
     whether the employee is named in the order or authorization.
       (1) If an employee will need leave to care for a covered 
     servicemember beyond the expiration date specified in an ITO 
     or ITA, an employing office may request that the employee 
     have one of the authorized health care providers listed under 
     825.310(a) complete the Office of Compliance optional 
     certification form (Form F) or an employing office's own 
     form, as requisite certification for the remainder of the 
     employee's necessary leave period.
       (2) An employing office may seek authentication and 
     clarification of the ITO or ITA under 825.307. An employing 
     office may not utilize the second or third opinion process 
     outlined in 825.307 or the recertification process under 
     825.308 during the period of time in which leave is supported 
     by an ITO or ITA.
       (3) An employing office may require an employee to provide 
     confirmation of covered family relationship to the seriously 
     injured or ill servicemember pursuant to 825.122(k) when an 
     employee supports his or her request for FMLA leave with a 
     copy of an ITO or ITA.
       (f) An employing office requiring an employee to submit a 
     certification for leave to care for a covered servicemember 
     must accept as sufficient certification of the 
     servicemember's serious injury or illness documentation 
     indicating the servicemember's enrollment in the Department 
     of Veterans Affairs Program of Comprehensive Assistance for 
     Family Caregivers. Such documentation is sufficient 
     certification of the servicemember's serious injury or 
     illness to support the employee's request for military 
     caregiver leave regardless of whether the employee is the 
     named caregiver in the enrollment documentation.
       (1) An employing office may seek authentication and 
     clarification of the documentation indicating the 
     servicemember's enrollment in the Department of Veterans 
     Affairs Program of Comprehensive Assistance for Family 
     Caregivers under 825.307. An employing office may not utilize 
     the second or third opinion process outlined in 825.307 or 
     the recertification process under 825.308 when the 
     servicemember's serious injury or illness is shown by 
     documentation of enrollment in this program.
       (2) An employing office may require an employee to provide 
     confirmation of covered family relationship to the seriously 
     injured or ill servicemember pursuant to 825.122(k) when an 
     employee supports his or her request for FMLA leave with a 
     copy of such enrollment documentation. An employing office 
     may also require an employee to provide documentation, such 
     as a veteran's Form DD-214, showing that the discharge was 
     other than dishonorable and the date of the veteran's 
     discharge.
       (g) Where medical certification is requested by an 
     employing office, an employee may not be held liable for 
     administrative delays in the issuance of military documents, 
     despite the employee's diligent, good-faith efforts to obtain 
     such documents. See 825.305(b). In all instances in which 
     certification is requested, it is the employee's 
     responsibility to provide the employing office with complete 
     and sufficient certification and failure to do so may result 
     in the denial of FMLA leave. See 825.305(d).
     825.311 Intent to return to work.
       (a) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intent to return to work. The employing office's policy 
     regarding such reports may not be discriminatory and must 
     take into account all of the relevant facts and circumstances 
     related to the individual employee's leave situation.
       (b) If an employee gives unequivocal notice of intent not 
     to return to work, the employing office's obligations under 
     FMLA, as made applicable by the CAA, to maintain health 
     benefits (subject to COBRA requirements) and to restore the 
     employee cease. However, these obligations continue if an 
     employee indicates he or she may be unable to return to work 
     but expresses a continuing desire to do so.
       (c) It may be necessary for an employee to take more leave 
     than originally anticipated. Conversely, an employee may 
     discover after beginning leave that the circumstances have 
     changed and the amount of leave originally anticipated is no 
     longer necessary. An employee may not be required to take 
     more FMLA leave than necessary to resolve the circumstance 
     that precipitated the need for leave. In both of these 
     situations, the employing office may require that the 
     employee provide the employing office reasonable notice 
     (i.e., within two business days) of the changed circumstances 
     where foreseeable. The employing office may also obtain 
     information on such changed circumstances through requested 
     status reports.
     825.312 Fitness-for-duty certification.
       (a) As a condition of restoring an employee whose FMLA 
     leave was occasioned by the employee's own serious health 
     condition that made the employee unable to perform the 
     employee's job, an employing office may have a uniformly-
     applied policy or practice that requires all similarly-
     situated employees (i.e., same occupation, same serious 
     health condition) who take leave for such conditions to 
     obtain and present certification from the employee's health 
     care provider that the employee is able to resume work. The 
     employee has the same obligations to participate and 
     cooperate (including providing a complete and sufficient 
     certification or providing sufficient authorization to the 
     health care provider to provide the information directly to 
     the employing office) in the fitness-for-duty certification 
     process

[[Page H4166]]

     as in the initial certification process. See 825.305(d).
       (b) An employing office may seek a fitness-for-duty 
     certification only with regard to the particular health 
     condition that caused the employee's need for FMLA leave. The 
     certification from the employee's health care provider must 
     certify that the employee is able to resume work. 
     Additionally, an employing office may require that the 
     certification specifically address the employee's ability to 
     perform the essential functions of the employee's job. In 
     order to require such a certification, an employing office 
     must provide an employee with a list of the essential 
     functions of the employee's job no later than with the 
     designation notice required by 825.300(d), and must indicate 
     in the designation notice that the certification must address 
     the employee's ability to perform those essential functions. 
     If the employing office satisfies these requirements, the 
     employee's health care provider must certify that the 
     employee can perform the identified essential functions of 
     his or her job. Following the procedures set forth in 
     825.307(a), the employing office may contact the employee's 
     health care provider for purposes of clarifying and 
     authenticating the fitness-for-duty certification. 
     Clarification may be requested only for the serious health 
     condition for which FMLA leave was taken. The employing 
     office may not delay the employee's return to work while 
     contact with the health care provider is being made. No 
     second or third opinions on a fitness-for-duty certification 
     may be required.
       (c) The cost of the certification shall be borne by the 
     employee, and the employee is not entitled to be paid for the 
     time or travel costs spent in acquiring the certification.
       (d) The designation notice required in 825.300(d) shall 
     advise the employee if the employing office will require a 
     fitness-for-duty certification to return to work and whether 
     that fitness-for-duty certification must address the 
     employee's ability to perform the essential functions of the 
     employee's job.
       (e) An employing office may delay restoration to employment 
     until an employee submits a required fitness-for-duty 
     certification unless the employing office has failed to 
     provide the notice required in paragraph (d) of this section. 
     If an employing office provides the notice required, an 
     employee who does not provide a fitness-for-duty 
     certification or request additional FMLA leave is no longer 
     entitled to reinstatement under the FMLA. See 825.313(d).
       (f) An employing office is not entitled to a certification 
     of fitness to return to duty for each absence taken on an 
     intermittent or reduced leave schedule. However, an employing 
     office is entitled to a certification of fitness to return to 
     duty for such absences up to once every 30 days if reasonable 
     safety concerns exist regarding the employee's ability to 
     perform his or her duties, based on the serious health 
     condition for which the employee took such leave. If an 
     employing office chooses to require a fitness-for-duty 
     certification under such circumstances, the employing office 
     shall inform the employee at the same time it issues the 
     designation notice that for each subsequent instance of 
     intermittent or reduced schedule leave, the employee will be 
     required to submit a fitness-for-duty certification unless 
     one has already been submitted within the past 30 days. 
     Alternatively, an employing office can set a different 
     interval for requiring a fitness-for-duty certification as 
     long as it does not exceed once every 30 days and as long as 
     the employing office advises the employee of the requirement 
     in advance of the employee taking the intermittent or reduced 
     schedule leave. The employing office may not terminate the 
     employment of the employee while awaiting such a 
     certification of fitness to return to duty for an 
     intermittent or reduced schedule leave absence. Reasonable 
     safety concerns means a reasonable belief of significant risk 
     of harm to the individual employee or others. In determining 
     whether reasonable safety concerns exist, an employing office 
     should consider the nature and severity of the potential harm 
     and the likelihood that potential harm will occur.
       (g) If the terms of a collective bargaining agreement 
     govern an employee's return to work, those provisions shall 
     be applied.
       (h) Requirements under the Americans with Disabilities Act 
     (ADA), as amended and as made applicable by the CAA, apply. 
     After an employee returns from FMLA leave, the ADA requires 
     any medical examination at an employing office's expense by 
     the employing office's health care provider be job-related 
     and consistent with business necessity. For example, an 
     attorney could not be required to submit to a medical 
     examination or inquiry just because her leg had been 
     amputated. The essential functions of an attorney's job do 
     not require use of both legs; therefore such an inquiry would 
     not be job related. An employing office may require a 
     warehouse laborer, whose back impairment affects the ability 
     to lift, to be examined by an orthopedist, but may not 
     require this employee to submit to an HIV test where the test 
     is not related to either the essential functions of his or 
     her job or to his/her impairment. If an employee's serious 
     health condition may also be a disability within the meaning 
     of the ADA, as made applicable by the CAA, the FMLA does not 
     prevent the employing office from following the procedures 
     for requesting medical information under the ADA.
     825.313 Failure to provide certification.
       (a) Foreseeable leave. In the case of foreseeable leave, if 
     an employee fails to provide certification in a timely manner 
     as required by 825.305, then an employing office may deny 
     FMLA coverage until the required certification is provided. 
     For example, if an employee has 15 days to provide a 
     certification and does not provide the certification for 45 
     days without sufficient reason for the delay, the employing 
     office can deny FMLA protections for the 30-day period 
     following the expiration of the 15-day time period, if the 
     employee takes leave during such period.
       (b) Unforeseeable leave. In the case of unforeseeable 
     leave, an employing office may deny FMLA coverage for the 
     requested leave if the employee fails to provide a 
     certification within 15 calendar days from receipt of the 
     request for certification unless not practicable due to 
     extenuating circumstances. For example, in the case of a 
     medical emergency, it may not be practicable for an employee 
     to provide the required certification within 15 calendar 
     days. Absent such extenuating circumstances, if the employee 
     fails to timely return the certification, the employing 
     office can deny FMLA protections for the leave following the 
     expiration of the 15-day time period until a sufficient 
     certification is provided. If the employee never produces the 
     certification, the leave is not FMLA leave.
       (c) Recertification. An employee must provide 
     recertification within the time requested by the employing 
     office (which must allow at least 15 calendar days after the 
     request) or as soon as practicable under the particular facts 
     and circumstances. If an employee fails to provide a 
     recertification within a reasonable time under the particular 
     facts and circumstances, then the employing office may deny 
     continuation of the FMLA leave protections until the employee 
     produces a sufficient recertification. If the employee never 
     produces the recertification, the leave is not FMLA leave. 
     Recertification does not apply to leave taken for a 
     qualifying exigency or to care for a covered servicemember.
       (d) Fitness-for-duty certification. When requested by the 
     employing office pursuant to a uniformly applied policy for 
     similarly-situated employees, the employee must provide 
     medical certification, at the time the employee seeks 
     reinstatement at the end of FMLA leave taken for the 
     employee's serious health condition, that the employee is fit 
     for duty and able to return to work (see 825.312(a)) if the 
     employing office has provided the required notice (see 
     825.300(e)); the employing office may delay restoration until 
     the certification is provided. Unless the employee provides 
     either a fitness-for-duty certification or a new medical 
     certification for a serious health condition at the time FMLA 
     leave is concluded, the employee may be terminated. See also 
     825.213(a)(3).
     SUBPART D--ADMINISTRATIVE PROCESS
     825.400 Administrative Process, general rules.
       (a) To commence a proceeding, a covered employee alleging a 
     violation of the rights and protections of the FMLA, as 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 (2 U.S.C. 1401) 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) If an employer has violated one or more provisions of 
     FMLA, and if justified by the facts of a particular case, an 
     employee may receive one or more of the following: wages, 
     employment benefits, or other compensation denied or lost to 
     such employee by reason of the violation; or, where no such 
     tangible loss has occurred, such as when FMLA leave was 
     unlawfully denied, any actual monetary loss sustained by the 
     employee as a direct result of the violation, such as the 
     cost of providing care, up to a sum equal to 26 weeks of 
     wages for the employee in a case involving leave to care for 
     a covered servicemember or 12 weeks of wages for the employee 
     in a case involving leave for any other FMLA qualifying 
     reason. In addition, the employee may be entitled to interest 
     on such sum, calculated at the prevailing rate. An amount 
     equaling the preceding sums may also be awarded as liquidated 
     damages unless such amount is reduced by the court because 
     the violation was in good faith and the employer had 
     reasonable grounds for believing the employer had not 
     violated the Act. When appropriate, the employee may also 
     obtain appropriate equitable relief, such as employment, 
     reinstatement and promotion. When the employer is found in 
     violation, the employee may recover a reasonable attorney's 
     fee, reasonable expert witness fees, and other costs of the 
     action from the employer in addition to any judgment awarded 
     by the court.
       (d) Regulations of the Office of Compliance describing and 
     governing these procedures

[[Page H4167]]

     are found at 150 Cong. Rec. H4166-02 (2004), 150 Cong. Rec. 
     S6870-02 (2004), and may be found on the Office's website.
     825.401 [Reserved]
     825.402 [Reserved]
     825.403 [Reserved]
     825.404 [Reserved]

     SUBPART E--[RESERVED]

     SUBPART F--SPECIAL RULES APPLICABLE TO EMPLOYEES OF SCHOOLS

     825.600 Special rules for school employees, definitions.
       (a) Certain special rules apply to employees of local 
     educational agencies, including public school boards and 
     elementary schools under their jurisdiction, and private 
     elementary and secondary schools. The special rules do not 
     apply to other kinds of educational institutions, such as 
     colleges and universities, trade schools, and preschools.
       (b) Educational institutions are covered by FMLA, as made 
     applicable by the CAA (and these special rules). The usual 
     requirements for employees to be eligible do apply.
       (c) The special rules affect the taking of intermittent 
     leave or leave on a reduced leave schedule, or leave near the 
     end of an academic term (semester), by instructional 
     employees. Instructional employees are those whose principal 
     function is to teach and instruct students in a class, a 
     small group, or an individual setting. This term includes not 
     only teachers, but also athletic coaches, driving 
     instructors, and special education assistants such as signers 
     for the hearing impaired. It does not include, and the 
     special rules do not apply to, teacher assistants or aides 
     who do not have as their principal job actual teaching or 
     instructing, nor does it include auxiliary personnel such as 
     counselors, psychologists, or curriculum specialists. It also 
     does not include cafeteria workers, maintenance workers, or 
     bus drivers.
       (d) Special rules which apply to restoration to an 
     equivalent position apply to all employees of local 
     educational agencies.
     825.601 Special rules for school employees, limitations on 
         intermittent leave.
       (a) Leave taken for a period that ends with the school year 
     and begins the next semester is leave taken consecutively 
     rather than intermittently. The period during the summer 
     vacation when the employee would not have been required to 
     report for duty is not counted against the employee's FMLA 
     leave entitlement. An instructional employee who is on FMLA 
     leave at the end of the school year must be provided with any 
     benefits over the summer vacation that employees would 
     normally receive if they had been working at the end of the 
     school year.
       (1) If an eligible instructional employee needs 
     intermittent leave or leave on a reduced leave schedule to 
     care for a family member with a serious health condition, to 
     care for a covered servicemember, or for the employee's own 
     serious health condition, which is foreseeable based on 
     planned medical treatment, and the employee would be on leave 
     for more than 20 percent of the total number of working days 
     over the period the leave would extend, the employing office 
     may require the employee to choose either to:
       (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 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.
     825.602 Special rules for school employees, limitations on 
         leave near the end of an academic term.
       (a) There are also different rules for instructional 
     employees who begin leave more than five weeks before the end 
     of a term, less than five weeks before the end of a term, and 
     less than three weeks before the end of a term. Regular rules 
     apply except in circumstances when:
       (1) An instructional employee begins leave more than five 
     weeks before the end of a term. The employing office may 
     require the employee to continue taking leave until the end 
     of the term if--
       (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 during the five-week period 
     before the end of a term because of the birth of a son or 
     daughter; the placement of a son or daughter for adoption or 
     foster care; to care for a spouse, son, daughter, or parent 
     with a serious health condition; or to care for a covered 
     servicemember. The employing office may require the employee 
     to continue taking leave until the end of the term if--
       (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 during the three-week period 
     before the end of a term because of the birth of a son or 
     daughter; the placement of a son or daughter for adoption or 
     foster care; to care for a spouse, son, daughter, or parent 
     with a serious health condition; or to care for a covered 
     servicemember. The employing office may require the employee 
     to continue taking leave until the end of the term if the 
     leave will last more than five working days.
       (b) For purposes of these provisions, academic term means 
     the school semester, which typically ends near the end of the 
     calendar year and the end of spring each school year. In no 
     case may a school have more than two academic terms or 
     semesters each year for purposes of FMLA, as made applicable 
     by the CAA. An example of leave falling within these 
     provisions would be where an employee plans two weeks of 
     leave to care for a family member which will begin three 
     weeks before the end of the term. In that situation, the 
     employing office could require the employee to stay out on 
     leave until the end of the term.
     825.603 Special rules for school employees, duration of FMLA 
         leave.
       (a) If an employee chooses to take leave for periods of a 
     particular duration in the case of intermittent or reduced 
     schedule leave, the entire period of leave taken will count 
     as FMLA leave.
       (b) In the case of an employee who is required to take 
     leave until the end of an academic term, only the period of 
     leave until the employee is ready and able to return to work 
     shall be charged against the employee's FMLA leave 
     entitlement. The employing office has the option not to 
     require the employee to stay on leave until the end of the 
     school term. Therefore, any additional leave required by the 
     employing office to the end of the school term is not counted 
     as FMLA leave; however, the employing office shall be 
     required to maintain the employee's group health insurance 
     and restore the employee to the same or equivalent job 
     including other benefits at the conclusion of the leave.
     825.604 Special rules for school employees, restoration to an 
         equivalent position.
       The determination of how an employee is to be restored to 
     an equivalent position upon return from FMLA leave will be 
     made on the basis of ``established school board policies and 
     practices, private school policies and practices, and 
     collective bargaining agreements.'' The ``established 
     policies'' and collective bargaining agreements used as a 
     basis for restoration must be in writing, must be made known 
     to the employee prior to the taking of FMLA leave, and must 
     clearly explain the employee's restoration rights upon return 
     from leave. Any established policy which is used as the basis 
     for restoration of an employee to an equivalent position must 
     provide substantially the same protections as provided in the 
     FMLA, as made applicable by the CAA, for reinstated 
     employees. See 825.215. In other words, the policy or 
     collective bargaining agreement must provide for restoration 
     to an equivalent position with equivalent employment 
     benefits, pay, and other terms and conditions of employment. 
     For example, an employee may not be restored to a position 
     requiring additional licensure or certification.
     SUBPART G--EFFECT OF OTHER LAWS, EMPLOYING OFFICE PRACTICES, 
         AND COLLECTIVE BARGAINING AGREEMENTS ON EMPLOYEE RIGHTS 
         UNDER THE FMLA, AS MADE APPLICABLE BY THE CAA.
     825.700 Interaction with employing office's policies.
       (a) An employing office must observe any employment benefit 
     program or plan that provides greater family or medical leave 
     rights to employees than the rights established by the FMLA. 
     Conversely, the rights established by the FMLA, as made 
     applicable by the CAA, may not be diminished by any 
     employment benefit program or plan. For example, a provision 
     of a collective bargaining agreement (CBA) which provides for 
     reinstatement to a position that is not equivalent because of 
     seniority (e.g., provides lesser pay) is superseded by FMLA. 
     If an employing office provides greater unpaid family leave 
     rights than are afforded by FMLA, the employing office is not 
     required to extend additional rights afforded by FMLA, such 
     as maintenance of health benefits (other than through COBRA 
     or 5 U.S.C. 8905a, whichever is applicable), to the 
     additional leave period not covered by FMLA.
       (b) Nothing in the FMLA, as made applicable by the CAA, 
     prevents an employing office from amending existing leave and 
     employee benefit programs, provided they comply with FMLA, as 
     made applicable by the CAA. However, nothing in the FMLA, as 
     made applicable by the CAA, is intended to discourage 
     employing offices from adopting or retaining more generous 
     leave policies.

[[Page H4168]]

  

     825.701 [Reserved]
     825.702 Interaction with anti-discrimination laws, as applied 
         by section 201 of the CAA.
       (a) Nothing in the FMLA modifies or affects any applicable 
     law prohibiting discrimination on the basis of race, 
     religion, color, national origin, sex, age, or disability 
     (e.g., Title VII of the Civil Rights Act of 1964, as amended 
     by the Pregnancy Discrimination Act and as made applicable by 
     the CAA). FMLA's legislative history explains that FMLA is 
     ``not intended to modify or affect the Rehabilitation Act of 
     1973, as amended, the regulations concerning employment which 
     have been promulgated pursuant to that statute, or the 
     Americans with Disabilities Act of 1990 [as amended] or the 
     regulations issued under that act. Thus, the leave provisions 
     of the [FMLA] are wholly distinct from the reasonable 
     accommodation obligations of employers covered under the 
     [ADA] . . . or the Federal government itself. The purpose of 
     the FMLA, as applied by the CAA, is to make leave available 
     to eligible employees and [employing offices] within its 
     coverage, and not to limit already existing rights and 
     protection.'' S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). 
     An employing office must therefore provide leave under 
     whichever statutory provision provides the greater rights to 
     employees. When an employer violates both FMLA and a 
     discrimination law, an employee may be able to recover under 
     either or both statutes (double relief may not be awarded for 
     the same loss; when remedies coincide a claimant may be 
     allowed to utilize whichever avenue of relief is desired. 
     Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 445 (D.C. 
     Cir. 1976), cert. denied, 434 U.S. 1086 (1978).
       (b) If an employee is a qualified individual with a 
     disability within the meaning of the Americans with 
     Disabilities Act (ADA), as made applicable by the CAA, the 
     employing office must make reasonable accommodations, etc., 
     barring undue hardship, in accordance with the ADA. At the 
     same time, the employing office must afford an employee his 
     or her FMLA rights, as made applicable by the CAA. ADA's 
     ``disability'' and FMLA's ``serious health condition'' are 
     different concepts, and must be analyzed separately. FMLA 
     entitles eligible employees to 12 weeks of leave in any 12-
     month period due to their own serious health condition, 
     whereas the ADA allows an indeterminate amount of leave, 
     barring undue hardship, as a reasonable accommodation. FMLA 
     requires employing offices to maintain employees' group 
     health plan coverage during FMLA leave on the same conditions 
     as coverage would have been provided if the employee had been 
     continuously employed during the leave period, whereas ADA 
     does not require maintenance of health insurance unless other 
     employees receive health insurance during leave under the 
     same circumstances.
       (c) (1) A reasonable accommodation under the ADA might be 
     accomplished by providing an individual with a disability 
     with a part-time job with no health benefits, assuming the 
     employing office did not ordinarily provide health insurance 
     for part-time employees. However, FMLA would permit an 
     employee to work a reduced leave schedule until the 
     equivalent of 12 workweeks of leave were used, with group 
     health benefits maintained during this period. FMLA permits 
     an employing office to temporarily transfer an employee who 
     is taking leave intermittently or on a reduced leave schedule 
     to an alternative position, whereas the ADA allows an 
     accommodation of reassignment to an equivalent, vacant 
     position only if the employee cannot perform the essential 
     functions of the employee's present position and an 
     accommodation is not possible in the employee's present 
     position, or an accommodation in the employee's present 
     position would cause an undue hardship. The examples in the 
     following paragraphs of this section demonstrate how the two 
     laws would interact with respect to a qualified individual 
     with a disability.
       (2) A qualified individual with a disability who is also an 
     eligible employee entitled to FMLA leave requests 10 weeks of 
     medical leave as a reasonable accommodation, which the 
     employing office grants because it is not an undue hardship. 
     The employing office advises the employee that the 10 weeks 
     of leave is also being designated as FMLA leave and will 
     count towards the employee's FMLA leave entitlement. This 
     designation does not prevent the parties from also treating 
     the leave as a reasonable accommodation and reinstating the 
     employee into the same job, as required by the ADA, rather 
     than an equivalent position under FMLA, if that is the 
     greater right available to the employee. At the same time, 
     the employee would be entitled under FMLA to have the 
     employing office maintain group health plan coverage during 
     the leave, as that requirement provides the greater right to 
     the employee.
       (3) If the same employee needed to work part-time (a 
     reduced leave schedule) after returning to his or her same 
     job, the employee would still be entitled under FMLA to have 
     group health plan coverage maintained for the remainder of 
     the two-week equivalent of FMLA leave entitlement, 
     notwithstanding an employing office policy that part-time 
     employees do not receive health insurance. This employee 
     would be entitled under the ADA to reasonable accommodations 
     to enable the employee to perform the essential functions of 
     the part-time position. In addition, because the employee is 
     working a part-time schedule as a reasonable accommodation, 
     the FMLA's provision for temporary assignment to a different 
     alternative position would not apply. Once the employee has 
     exhausted his or her remaining FMLA leave entitlement while 
     working the reduced (part-time) schedule, if the employee is 
     a qualified individual with a disability, and if the employee 
     is unable to return to the same full-time position at that 
     time, the employee might continue to work part-time as a 
     reasonable accommodation, barring undue hardship; the 
     employee would then be entitled to only those employment 
     benefits ordinarily provided by the employing office to part-
     time employees.
       (4) At the end of the FMLA leave entitlement, an employing 
     office is required under FMLA to reinstate the employee in 
     the same or an equivalent position, with equivalent pay and 
     benefits, to that which the employee held when leave 
     commenced. The employing office's FMLA obligations would be 
     satisfied if the employing office offered the employee an 
     equivalent full-time position. If the employee were unable to 
     perform the essential functions of that equivalent position 
     even with reasonable accommodation, because of a disability, 
     the ADA may require the employing office to make a reasonable 
     accommodation at that time by allowing the employee to work 
     part-time or by reassigning the employee to a vacant 
     position, barring undue hardship.
       (d) (1) If FMLA entitles an employee to leave, an employing 
     office may not, in lieu of FMLA leave entitlement, require an 
     employee to take a job with a reasonable accommodation. 
     However, ADA may require that an employing office offer an 
     employee the opportunity to take such a position. An 
     employing office may not change the essential functions of 
     the job in order to deny FMLA leave. See 825.220(b).
       (2) An employee may be on a workers' compensation absence 
     due to an on-the-job injury or illness which also qualifies 
     as a serious health condition under FMLA. The workers' 
     compensation absence and FMLA leave may run concurrently 
     (subject to proper notice and designation by the employing 
     office). At some point the health care provider providing 
     medical care pursuant to the workers' compensation injury may 
     certify the employee is able to return to work in a light 
     duty position. If the employing office offers such a 
     position, the employee is permitted but not required to 
     accept the position. See 825.220(d). As a result, the 
     employee may no longer qualify for payments from the workers' 
     compensation benefit plan, but the employee is entitled to 
     continue on unpaid FMLA leave either until the employee is 
     able to return to the same or equivalent job the employee 
     left or until the 12-week FMLA leave entitlement is 
     exhausted. See 825.207 (e). If the employee returning from 
     the workers' compensation injury is a qualified individual 
     with a disability, he or she will have rights under the ADA, 
     as made applicable by the CAA.
       (e) If an employing office requires certifications of an 
     employee's fitness for duty to return to work, as permitted 
     by FMLA under a uniform policy, it must comply with the ADA 
     requirement that a fitness for duty physical be job-related 
     and consistent with business necessity.
       (f) Under Title VII of the Civil Rights Act of 1964, as 
     amended by the Pregnancy Discrimination Act, and as made 
     applicable by the CAA, an employing office should provide the 
     same benefits for women who are pregnant as the employing 
     office provides to other employees with short-term 
     disabilities. Because Title VII does not require employees to 
     be employed for a certain period of time to be protected, an 
     employee employed for less than 12 months by the employing 
     office (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) Under the Uniformed Services Employment and 
     Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301, et 
     seq., veterans are entitled to receive all rights and 
     benefits of employment that they would have obtained if they 
     had been continuously employed. Therefore, under USERRA, a 
     returning servicemember would be eligible for FMLA leave if 
     the months and hours that he or she would have worked for the 
     civilian employing office during the period of absence due to 
     or necessitated by USERRA-covered service, combined with the 
     months employed and the hours actually worked, meet the FMLA 
     eligibility threshold of 12 months of employment and the 
     hours of service requirement. See 825.110(b)(2)(i) and (c)(2) 
     and 825.802(c).
       (h) For further information on Federal antidiscrimination 
     laws applied by section 201 of the CAA (2 U.S.C. 1311), 
     including Title VII, the Rehabilitation Act, and the ADA, 
     individuals are encouraged to contact the Office of 
     Compliance.

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