[Congressional Record Volume 162, Number 100 (Wednesday, June 22, 2016)]
[Senate]
[Pages S4475-S4516]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOTICE OF ADOPTION OF REGULATIONS AND TRANSMITTAL FOR CONGRESSIONAL
APPROVAL
Mr. HATCH. Mr. President, I ask unanimous consent that the attached
documentation from the Office of Compliance be printed in the Record.
U.S. Congress,
Office of Compliance,
Washington, DC, June 22, 2016.
Hon. Orrin Hatch,
President Pro Tempore of the U.S. Senate,
Washington, DC.
Dear Mr. President: 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 Senate 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
[[Page S4476]]
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
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
[[Page S4477]]
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
(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).
[[Page S4478]]
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.
``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
[[Page S4479]]
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 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
[[Page S4480]]
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 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
[[Page S4481]]
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 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)
[[Page S4482]]
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 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.
[[Page S4483]]
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 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
[[Page S4484]]
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 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
[[Page S4485]]
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 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
[[Page S4486]]
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 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
[[Page S4487]]
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 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
[[Page S4488]]
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 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,
[[Page S4489]]
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.
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.
[[Page S4490]]
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
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
[[Page S4491]]
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 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
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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 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
[[Page S4493]]
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.
(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
[[Page S4494]]
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 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.
[[Page S4495]]
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 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
[[Page S4496]]
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).
(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
[[Page S4497]]
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
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
[[Page S4498]]
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
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,
[[Page S4499]]
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 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
[[Page S4500]]
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 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
[[Page S4501]]
type of leave. For example, if an employing office accounts
for the use of annual leave in increments of one hour and the
use of sick leave in increments of one-half hour, then FMLA
leave use must be accounted for using increments no larger
than one-half hour. If an employing office accounts for use
of leave in varying increments at different times of the day
or shift, the employing office may also account for FMLA
leave in varying increments, provided that the increment used
for FMLA leave is no greater than the smallest increment used
for any other type of leave during the period in which the
FMLA leave is taken. If an employing office accounts for
other forms of leave use in increments greater than one hour,
the employing office must account for FMLA leave use in
increments no greater than one hour. An employing office may
account for FMLA leave in shorter increments than used for
other forms of leave. For example, an employing office that
accounts for other forms of leave in one hour increments may
account for FMLA leave in a shorter increment when the
employee arrives at work several minutes late, and the
employing office wants the employee to begin work
immediately. Such accounting for FMLA leave will not alter
the increment considered to be the shortest period used to
account for other forms of leave or the use of FMLA leave in
other circumstances. In all cases, employees may not be
charged FMLA leave for periods during which they are working.
(2) Where it is physically impossible for an employee using
intermittent leave or working a reduced leave schedule to
commence or end work mid-way through a shift, such as where a
flight attendant or a railroad conductor is scheduled to work
aboard an airplane or train, or a laboratory employee is
unable to enter or leave a sealed ``clean room'' during a
certain period of time and no equivalent position is
available, the entire period that the employee is forced to
be absent is designated as FMLA leave and counts against the
employee's FMLA entitlement. The period of the physical
impossibility is limited to the period during which the
employing office is unable to permit the employee to work
prior to a period of FMLA leave or return the employee to the
same or equivalent position due to the physical impossibility
after a period of FMLA leave. See 825.214.
(b) Calculation of leave. (1) When an employee takes leave
on an intermittent or reduced leave schedule, only the amount
of leave actually taken may be counted toward the employee's
leave entitlement. The actual workweek is the basis of leave
entitlement. Therefore, if an employee who would otherwise
work 40 hours a week takes off eight hours, the employee
would use one-fifth (1/5) of a week of FMLA leave. Similarly,
if a full-time employee who would otherwise work eight hour
days works four-hour days under a reduced leave schedule, the
employee would use one half (1/2) week of FMLA leave each
week. Where an employee works a part-time schedule or
variable hours, the amount of FMLA leave that an employee
uses is determined on a pro rata or proportional basis. If an
employee who would otherwise work 30 hours per week, but
works only 20 hours a week under a reduced leave schedule,
the employee's 10 hours of leave would constitute one-third
(1/3) of a week of FMLA leave for each week the employee
works the reduced leave schedule. An employing office may
convert these fractions to their hourly equivalent so long as
the conversion equitably reflects the employee's total
normally scheduled hours. An employee does not accrue FMLA-
protected leave at any particular hourly rate. An eligible
employee is entitled to up to a total of 12 workweeks of
leave, or 26 workweeks in the case of military caregiver
leave, and the total number of hours contained in those
workweeks is necessarily dependent on the specific hours the
employee would have worked but for the use of leave. See also
825.601 and 825.602 on special rules for schools.
(2) If an employing office has made a permanent or long-
term change in the employee's schedule (for reasons other
than FMLA, and prior to the notice of need for FMLA leave),
the hours worked under the new schedule are to be used for
making this calculation.
(3) If an employee's schedule varies from week to week to
such an extent that an employing office is unable to
determine with any certainty how many hours the employee
would otherwise have worked (but for the taking of FMLA
leave), a weekly average of the hours worked over the 12
months prior to the beginning of the leave period (including
any hours for which the employee took leave of any type)
would be used for calculating the employee's leave
entitlement.
(c) Overtime. If an employee would normally be required to
work overtime, but is unable to do so because of a FMLA-
qualifying reason that limits the employee's ability to work
overtime, the hours which the employee would have been
required to work may be counted against the employee's FMLA
entitlement. In such a case, the employee is using
intermittent or reduced schedule leave. For example, if an
employee would normally be required to work for 48 hours in a
particular week, but due to a serious health condition the
employee is unable to work more than 40 hours that week, the
employee would utilize eight hours of FMLA-protected leave
out of the 48-hour workweek, or one-sixth (1/6) of a week of
FMLA leave. Voluntary overtime hours that an employee does
not work due to an FMLA-qualifying reason may not be counted
against the employee's FMLA leave entitlement.
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
[[Page S4502]]
policy, the employee is not entitled to substitute accrued
paid leave, but the employee remains entitled to take unpaid
FMLA leave. Employing offices may not discriminate against
employees on FMLA leave in the administration of their paid
leave policies.
(b) If neither the employee nor the employing office elects
to substitute paid leave for unpaid FMLA leave under the
above conditions and circumstances, the employee will remain
entitled to all the paid leave which is earned or accrued
under the terms of the employing office's plan.
(c) If an employee uses paid leave under circumstances
which do not qualify as FMLA leave, the leave will not count
against the employee's FMLA leave entitlement. For example,
paid sick leave used for a medical condition which is not a
serious health condition or serious injury or illness does
not count against the employee's FMLA leave entitlement.
(d) Leave taken pursuant to a disability leave plan would
be considered FMLA leave for a serious health condition and
counted in the leave entitlement permitted under FMLA if it
meets the criteria set forth above in 825.112 through
825.115. In such cases, the employing office may designate
the leave as FMLA leave and count the leave against the
employee's FMLA leave entitlement. Because leave pursuant to
a disability benefit plan is not unpaid, the provision for
substitution of the employee's accrued paid leave is
inapplicable, and neither the employee nor the employing
office may require the substitution of paid leave. However,
employing offices and employees may agree to have paid leave
supplement the disability plan benefits, such as in the case
where a plan only provides replacement income for two-thirds
of an employee's salary.
(e) The FMLA, as made applicable by the CAA, provides that
a serious health condition may result from injury to the
employee on or off the job. If the employing office
designates the leave as FMLA leave in accordance with
825.300(d), the leave counts against the employee's FMLA
leave entitlement. Because the workers' compensation absence
is not unpaid, the provision for substitution of the
employee's accrued paid leave is not applicable, and neither
the employee nor the employing office may require the
substitution of paid leave. However, employing offices and
employees may agree, to have paid leave supplement workers'
compensation benefits, such as in the case where workers'
compensation only provides replacement income for two-thirds
of an employee's salary. If the health care provider treating
the employee for the workers' compensation injury certifies
the employee is able to return to a light duty job but is
unable to return to the same or equivalent job, the employee
may decline the employing office's offer of a light duty job.
As a result, the employee may lose workers' compensation
payments, but is entitled to remain on unpaid FMLA leave
until the employee's FMLA leave entitlement is exhausted. As
of the date workers' compensation benefits cease, the
substitution provision becomes applicable and either the
employee may elect or the employing office may require the
use of accrued paid leave. See also 825.210(f), 825.216(d),
825.220(d), 825.307(a) and 825.702 (d)(1) and (2) regarding
the relationship between workers' compensation absences and
FMLA leave.
(f) Under the FLSA, as made applicable by the CAA, an
employing office always has the right to cash out an
employee's compensatory time or to require the employee to
use the time. Therefore, if an employee requests and is
permitted to use accrued compensatory time to receive pay for
time taken off for an FMLA reason, or if the employing office
requires such use pursuant to the FLSA, the time taken may be
counted against the employee's FMLA leave entitlement.
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;
[[Page S4503]]
(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 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.
[[Page S4504]]
(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 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
[[Page S4505]]
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.
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
[[Page S4506]]
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, 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
[[Page S4507]]
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 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
[[Page S4508]]
given before placement for adoption. For foreseeable leave
due to a qualifying exigency, notice must be provided as soon
as practicable, regardless of how far in advance such leave
is foreseeable. Whether FMLA leave is to be continuous or is
to be taken intermittently or on a reduced schedule basis,
notice need only be given one time, but the employee shall
advise the employing office as soon as practicable if dates
of scheduled leave change or are extended, or were initially
unknown. In those cases where the employee is required to
provide at least 30 days notice of foreseeable leave and does
not do so, the employee shall explain the reasons why such
notice was not practicable upon a request from the employing
office for such information.
(b) As soon as practicable means as soon as both possible
and practical, taking into account all of the facts and
circumstances in the individual case. When an employee
becomes aware of a need for FMLA leave less than 30 days in
advance, it should be practicable for the employee to provide
notice of the need for leave either the same day or the next
business day. In all cases, however, the determination of
when an employee could practicably provide notice must take
into account the individual facts and circumstances.
(c) Content of notice. An employee shall provide at least
verbal notice sufficient to make the employing office aware
that the employee needs FMLA-qualifying leave, and the
anticipated timing and duration of the leave. Depending on
the situation, such information may include that a condition
renders the employee unable to perform the functions of the
job; that the employee is pregnant or has been hospitalized
overnight; whether the employee or the employee's family
member is under the continuing care of a health care
provider; if the leave is due to a qualifying exigency, that
a military member is on covered active duty or call to
covered active duty status (or has been notified of an
impending call or order to covered active duty), and that the
requested leave is for one of the reasons listed in
825.126(b); if the leave is for a family member, that the
condition renders the family member unable to perform daily
activities, or that the family member is a covered
servicemember with a serious injury or illness; and the
anticipated duration of the absence, if known. When an
employee seeks leave for the first time for a FMLA-qualifying
reason, the employee need not expressly assert rights under
the FMLA, as made applicable by the CAA, or even mention the
FMLA. When an employee seeks leave due to a FMLA-qualifying
reason, for which the employing office has previously
provided FMLA-protected leave, the employee must specifically
reference the qualifying reason for leave or the need for
FMLA leave. In all cases, the employing office should inquire
further of the employee if it is necessary to have more
information about whether FMLA leave is being sought by the
employee, and obtain the necessary details of the leave to be
taken. In the case of medical conditions, the employing
office may find it necessary to inquire further to determine
if the leave is because of a serious health condition and may
request medical certification to support the need for such
leave. See 825.305. An employing office may also request
certification to support the need for leave for a qualifying
exigency or for military caregiver leave. See 825.309,
825.310. When an employee has been previously certified for
leave due to more than one FMLA-qualifying reason, the
employing office may need to inquire further to determine for
which qualifying reason the leave is needed. An employee has
an obligation to respond to an employing office's questions
designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employing office
inquiries regarding the leave request may result in denial of
FMLA protection if the employing office is unable to
determine whether the leave is FMLA-qualifying.
(d) Complying with the employing office policy. An
employing office may require an employee to comply with the
employing office's usual and customary notice and procedural
requirements for requesting leave, absent unusual
circumstances. For example, an employing office may require
that written notice set forth the reasons for the requested
leave, the anticipated duration of the leave, and the
anticipated start of the leave. An employee also may be
required by an employing office's policy to contact a
specific individual. Unusual circumstances would include
situations such as when an employee is unable to comply with
the employing office's policy that requests for leave should
be made by contacting a specific number because on the day
the employee needs to provide notice of his or her need for
FMLA leave there is no one to answer the call-in number and
the voice mail box is full. Where an employee does not comply
with the employing office's usual notice and procedural
requirements, and no unusual circumstances justify the
failure to comply, FMLA-protected leave may be delayed or
denied. However, FMLA-protected leave may not be delayed or
denied where the employing office's policy requires notice to
be given sooner than set forth in paragraph (a) of this
section and the employee provides timely notice as set forth
in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning
medical treatment, the employee must consult with the
employing office and make a reasonable effort to schedule the
treatment so as not to disrupt unduly the employing office's
operations, subject to the approval of the health care
provider. Employees are ordinarily expected to consult with
their employing offices prior to the scheduling of treatment
in order to work out a treatment schedule which best suits
the needs of both the employing office and the employee. For
example, if an employee who provides notice of the need to
take FMLA leave on an intermittent basis for planned medical
treatment neglects to consult with the employing office to
make a reasonable effort to arrange the schedule of
treatments so as not to unduly disrupt the employing office's
operations, the employing office may initiate discussions
with the employee and require the employee to attempt to make
such arrangements, subject to the approval of the health care
provider. See 825.203 and 825.205.
(f) Intermittent leave or leave on a reduced leave schedule
must be medically necessary due to a serious health condition
or a serious injury or illness. An employee shall advise the
employing office, upon request, of the reasons why the
intermittent/reduced leave schedule is necessary and of the
schedule for treatment, if applicable. The employee and
employing office shall attempt to work out a schedule for
such leave that meets the employee's needs without unduly
disrupting the employing office's operations, subject to the
approval of the health care provider.
(g) An employing office may waive employees' FMLA notice
requirements. See 825.304.
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
[[Page S4509]]
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).
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
[[Page S4510]]
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
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
[[Page S4511]]
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 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:
[[Page S4512]]
(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;
(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
[[Page S4513]]
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 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.
[[Page S4514]]
(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 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.
[[Page S4515]]
(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.
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
[[Page S4516]]
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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