[Congressional Record Volume 168, Number 194 (Wednesday, December 14, 2022)]
[House]
[Pages H9752-H9790]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    APPROVAL OF REGULATIONS RELATING TO FAMILY AND MEDICAL LEAVE ACT

  The SPEAKER pro tempore. Pursuant to House Resolution 1518, H. Res. 
1516 is considered adopted.
  The text of the resolution is as follows:

                              H. Res. 1516

       Resolved,

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

       (a) In General.--The regulations described in subsection 
     (b) are hereby approved, insofar as such regulations apply to 
     covered employees of the House of Representatives under the 
     Congressional Accountability Act of 1995 and to the extent 
     such regulations are consistent with the provisions of such 
     Act.
       (b) Regulations Approved.--The regulations described in 
     this subsection are the regulations issued by the Office of 
     Congressional Workplace Rights on December 7, 2021, under 
     section 202(e) of the Congressional Accountability Act of 
     1995 to implement section 202 of such Act (relating to the 
     application of sections 101 through 105 of the Family and 
     Medical Leave Act of 1993), as published in the Congressional 
     Record on December 7,

[[Page H9753]]

     2021 (Volume 167, daily edition) on pages H7230 through 
     H7258, and stated as follows:

     ``Sec. 825.1 Purpose and scope

       ``(a) Section 202 of the Congressional Accountability Act 
     (CAA) (2 U.S.C. 1312) applies the rights and protections of 
     sections 101 through 105 of the Family and Medical Leave Act 
     of 1993 (FMLA) (29 U.S.C. 2611-2615) to covered employees. 
     (The term `covered employee' is defined in section 101(3) of 
     the CAA (2 U.S.C. 1301(3)). See 825.102 of these regulations 
     for that definition.) The purpose of this part is to set 
     forth the regulations to carry out the provisions of section 
     202 of the CAA.
       ``(b) These regulations are issued by the Board of 
     Directors (Board) of the Office of Congressional Workplace 
     Rights, pursuant to sections 202(d) and 304 of the CAA, which 
     direct the Board to promulgate regulations implementing 
     section 202 that are `the same as substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     section 202 of the CAA] except insofar as the Board may 
     determine, for good cause shown . . . that a modification of 
     such regulations would be more effective for the 
     implementation of the rights and protections under this 
     section.'. The regulations issued by the Board herein are on 
     all matters for which section 202 of the CAA requires 
     regulations to be issued. Specifically, it is the Board's 
     considered judgment, based on the information available to it 
     at the time of the promulgation of these regulations, that, 
     with the exception of regulations adopted and set forth 
     herein, there are no other `substantive regulations 
     promulgated by the Secretary of Labor to implement the 
     statutory provisions referred to in subsection (a) [of 
     section 202 of the CAA].'.
       ``(c) On December 20, 2019, Congress enacted the Federal 
     Employee Paid Leave Act (subtitle A of title LXXVI of 
     division F of the National Defense Authorization Act for 
     Fiscal Year 2020, Public Law 116-92, December 20, 2019) 
     (FEPLA). FEPLA amended the FMLA to allow most Federal 
     employees, including eligible employees in the legislative 
     branch, to substitute up to 12 weeks of paid parental leave 
     (PPL) for unpaid FMLA leave granted in connection with the 
     birth of an employee's son or daughter or for the placement 
     of a son or daughter with an employee for adoption or foster 
     care.
     In order to implement FEPLA in the legislative branch, the 
     Board is amending its substantive FMLA regulations pursuant 
     to the CAA rulemaking procedures set forth at sections 202(d) 
     and 304 of the CAA. The Secretary of Labor has not 
     promulgated FEPLA regulations, however, because FEPLA does 
     not extend PPL to private sector employees or other employees 
     directly covered by FMLA title I. The Board has determined 
     that these circumstances constitute good cause for 
     modification of its substantive FMLA regulations in order to 
     effectively implement FEPLA's rights and protections to 
     covered employees in the legislative branch.
       ``(d) In promulgating these regulations, the Board has made 
     certain technical and nomenclature changes to the regulations 
     as promulgated by the Secretary. Such changes are intended to 
     make the provisions adopted accord more naturally to 
     situations in the legislative branch. However, by making 
     these changes, the Board does not intend a substantive 
     difference between these regulations and those of the 
     Secretary from which they are derived. Moreover, such 
     changes, in and of themselves, are not intended to constitute 
     an interpretation of the regulation or of the statutory 
     provisions of the CAA upon which they are based.
       ``(e) Pursuant to section 304(b)(4) of the CAA, (2 U.S.C. 
     1384(b)(4)), the Board of Directors is required to recommend 
     to Congress a method of approval for these regulations. As 
     the Board has adopted the same regulations for the Senate, 
     the House of Representatives, and the other covered entities 
     and facilities, it therefore recommends that the adopted 
     regulations be approved by concurrent resolution of the 
     Congress.

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

     ``Sec. 825.100 The Family and Medical Leave Act

       ``(a) The Family and Medical Leave Act of 1993 (FMLA), as 
     made applicable by the Congressional Accountability Act 
     (CAA), allows eligible employees of an employing office to 
     take job-protected, unpaid leave, or to substitute 
     appropriate paid leave if the employee has earned or accrued 
     it, for up to a total of 12 workweeks in any 12 months (See 
     825.200(b)) because of the birth of a child and to care for 
     the newborn child, because of the placement of a child with 
     the employee for adoption or foster care, because the 
     employee is needed to care for a family member (child, 
     spouse, or parent) with a serious health condition, because 
     the employee's own serious health condition makes the 
     employee unable to perform the functions of his or her job, 
     or because of any qualifying exigency arising out of the fact 
     that the employee's spouse, son, daughter, or parent is a 
     military member on active duty or call to covered active duty 
     status (or has been notified of an impending call or order to 
     covered active duty). In addition, eligible employees of a 
     covered employing office may take job-protected, unpaid 
     leave, or substitute appropriate paid leave if the employee 
     has earned or accrued it, for up to a total of 26 workweeks 
     in a single 12-month period to care for a covered 
     servicemember with a serious injury or illness. In certain 
     cases, FMLA leave may be taken on an intermittent basis 
     rather than all at once, or the employee may work a part-time 
     schedule.
       ``(b) An employee on FMLA leave is also entitled to have 
     health benefits maintained while on leave as if the employee 
     had continued to work instead of taking the leave. If an 
     employee was paying all or part of the premium payments prior 
     to leave, the employee would continue to pay his or her share 
     during the leave period. Subject to 825.208(k), the employing 
     office or a disbursing or other financial office may recover 
     its share only if the employee does not return to work for a 
     reason other than the serious health condition of the 
     employee or the employee's covered family member, the serious 
     injury or illness of a covered servicemember, or another 
     reason beyond the employee's control.
       ``(c) An employee generally has a right to return to the 
     same position or an equivalent position with equivalent pay, 
     benefits, and working conditions at the conclusion of the 
     leave. The taking of FMLA leave cannot result in the loss of 
     any benefit that accrued prior to the start of the leave.
       ``(d) The employing office generally has a right to advance 
     notice from the employee. In addition, the employing office 
     may require an employee to submit certification to 
     substantiate that the leave is due to the serious health 
     condition of the employee or the employee's covered family 
     member, due to the serious injury or illness of a covered 
     servicemember, or because of a qualifying exigency. Failure 
     to comply with these requirements may result in a delay in 
     the start of FMLA leave. Pursuant to a uniformly applied 
     policy, the employing office may also require that an 
     employee present a certification of fitness to return to work 
     when the absence was caused by the employee's serious health 
     condition (See 825.312 and 825.313)). The employing office 
     may delay restoring the employee to employment without such 
     certificate relating to the health condition which caused the 
     employee's absence.

     ``Sec. 825.101 Purpose of the FMLA

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

     ``Sec. 825.102 Definitions

       ``For purposes of this part:
       ``(1) ADA means the Americans with Disabilities Act (42 
     U.S.C. 12101 et seq., as amended), as made applicable by the 
     Congressional Accountability Act.
       ``(2) Birth means the delivery of a child. When the term 
     `birth' under this subpart is used in connection with the use 
     of leave before birth, it refers to an anticipated birth.
       ``(3) CAA means the Congressional Accountability Act of 
     1995 (Pub. Law 104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq., as 
     amended).
       ``(4) COBRA means the continuation coverage requirements of 
     Title X of the Consolidated Omnibus Budget Reconciliation Act 
     of 1986 (Pub. Law 99-272, title X, section 10002; 100 Stat. 
     227; 29 U.S.C. 1161-1168).
       ``(5) Contingency operation means a military operation 
     that:
       ``(A) Is designated by the Secretary of Defense as an 
     operation in which members of the Armed Forces are or may 
     become involved in military actions, operations, or

[[Page H9754]]

     hostilities against an enemy of the United States or against 
     an opposing military force; or
       ``(B) Results in the call or order to, or retention on, 
     active duty of members of the uniformed services under 
     section 688, 12301(a), 12302, 12304, 12305, or 12406 of Title 
     10 of the United States Code, chapter 15 of Title 10 of the 
     United States Code, or any other provision of law during a 
     war or during a national emergency declared by the President 
     or Congress. See also 825.126(a)(2).
       ``(6) Continuing treatment by a health care provider means 
     any one of the following:
       ``(A) Incapacity and treatment. A period of incapacity of 
     more than three consecutive, full calendar days, and any 
     subsequent treatment or period of incapacity relating to the 
     same condition, that also involves:
       ``(i) Treatment two or more times, within 30 days of the 
     first day of incapacity, unless extenuating circumstances 
     exist, by a health care provider, by a nurse under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under orders 
     of, or on referral by, a health care provider; or
       ``(ii) Treatment by a health care provider on at least one 
     occasion, which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       ``(iii) The requirement in paragraphs (i) and (ii) of this 
     definition for treatment by a health care provider means an 
     in-person visit to a health care provider. The first in-
     person treatment visit must take place within seven days of 
     the first day of incapacity.
       ``(iv) Whether additional treatment visits or a regimen of 
     continuing treatment is necessary within the 30-day period 
     shall be determined by the health care provider.
       ``(v) The term `extenuating circumstances' in paragraph (i) 
     means circumstances beyond the employee's control that 
     prevent the follow-up visit from occurring as planned by the 
     health care provider. Whether a given set of circumstances 
     are extenuating depends on the facts. See also 825.115(a)(5).
       ``(B) Pregnancy or prenatal care. Any period of incapacity 
     due to pregnancy, or for prenatal care. See also 825.120.
       ``(C) Chronic conditions. Any period of incapacity or 
     treatment for such incapacity due to a chronic serious health 
     condition. A chronic serious health condition is one which:
       ``(i) Requires periodic visits (defined as at least twice a 
     year) for treatment by a health care provider, or by a nurse 
     under direct supervision of a health care provider;
       ``(ii) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       ``(iii) May cause episodic rather than a continuing period 
     of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       ``(D) Permanent or long-term conditions. A period of 
     incapacity which is permanent or long-term due to a condition 
     for which treatment may not be effective. The employee or 
     family member must be under the continuing supervision of, 
     but need not be receiving active treatment by, a health care 
     provider. Examples include Alzheimer's, a severe stroke, or 
     the terminal stages of a disease.
       ``(E) Conditions requiring multiple treatments. Any period 
     of absence to receive multiple treatments (including any 
     period of recovery therefrom) by a health care provider or by 
     a provider of health care services under orders of, or on 
     referral by, a health care provider, for:
       ``(i) Restorative surgery after an accident or other 
     injury; or
       ``(ii) A condition that would likely result in a period of 
     incapacity of more than three consecutive full calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), kidney disease (dialysis).
       ``(F) Absences attributable to incapacity under paragraphs 
     (A) or (B) of this definition qualify for FMLA leave even 
     though the employee or the covered family member does not 
     receive treatment from a health care provider during the 
     absence, and even if the absence does not last more than 
     three consecutive, full calendar days. For example, an 
     employee with asthma may be unable to report for work due to 
     the onset of an asthma attack or because the employee's 
     health care provider has advised the employee to stay home 
     when the pollen count exceeds a certain level. An employee 
     who is pregnant may be unable to report to work because of 
     severe morning sickness.
       ``(7) Covered active duty or call to covered active duty 
     status means:
       ``(A) In the case of a member of the Regular Armed Forces, 
     duty during the deployment of the member with the Armed 
     Forces to a foreign country; and,
       ``(B) In the case of a member of the Reserve components of 
     the Armed Forces, duty during the deployment of the member 
     with the Armed Forces to a foreign country under a Federal 
     call or order to active duty in support of a contingency 
     operation pursuant to: Section 688 of Title 10 of the United 
     States Code, which authorizes ordering to active duty retired 
     members of the Regular Armed Forces and members of the 
     retired Reserve who retired after completing at least 20 
     years of active service; Section 12301(a) of Title 10 of the 
     United States Code, which authorizes ordering all reserve 
     component members to active duty in the case of war or 
     national emergency; Section 12302 of Title 10 of the United 
     States Code, which authorizes ordering any unit or unassigned 
     member of the Ready Reserve to active duty; Section 12304 of 
     Title 10 of the United States Code, which authorizes ordering 
     any unit or unassigned member of the Selected Reserve and 
     certain members of the Individual Ready Reserve to active 
     duty; Section 12305 of Title 10 of the United States Code, 
     which authorizes the suspension of promotion, retirement or 
     separation rules for certain Reserve components; Section 
     12406 of Title 10 of the United States Code, which authorizes 
     calling the National Guard into Federal service in certain 
     circumstances; chapter 15 of Title 10 of the United States 
     Code, which authorizes calling the National Guard and State 
     military into Federal service in the case of insurrections 
     and national emergencies; or any other provision of law 
     during a war or during a national emergency declared by the 
     President or Congress so long as it is in support of a 
     contingency operation. See 10 U.S.C. 101(a)(13)(B). See also 
     825.126(a).
       ``(8) Covered employee as defined in the CAA, means any 
     employee of--(1) the House of Representatives; (2) the 
     Senate; (3) the Office of Congressional Accessibility 
     Services; (4) the Capitol Police; (5) the Congressional 
     Budget Office; (6) the Office of the Architect of the 
     Capitol; (7) the Office of the Attending Physician; (8) the 
     Office of Congressional Workplace Rights; (9) the Library of 
     Congress; (10) the Stennis Center for Public Service; (11) 
     the Office of Technology Assessment; (12) the China Review 
     Commission; (13) the Congressional Executive China 
     Commission; (14) the Helsinki Commission; or (15) the United 
     States Commission on International Religious Freedom.
       ``(9) Covered servicemember means:
       ``(A) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation, or therapy, is otherwise in 
     outpatient status, or is otherwise on the temporary 
     disability retired list, for a serious injury or illness, or
       ``(B) A covered veteran who is undergoing medical 
     treatment, recuperation, or therapy for a serious injury or 
     illness.
       ``(10) Covered veteran means an individual who was a member 
     of the Armed Forces (including a member of the National Guard 
     or Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. See 
     825.127(b)(2).
       ``(11) Eligible employee as defined in the CAA, means:
       ``(A) For purposes of leave under subparagraphs (a)(1) or 
     (a)(2) of section 825.112 [or subsections (A) or (B) of 
     section 102(a)(1) of the FMLA], a covered employee as defined 
     in the CAA.
       ``(B) For purposes of leave under subparagraphs (a)(3)-(6) 
     of section 825.112 [or subsections (C)-(F) of section 
     102(a)(1) of the FMLA], a covered employee who has been 
     employed for a total of at least 12 months in any employing 
     office on the date on which any FMLA leave is to commence, 
     except that an employing office need not consider any period 
     of previous employment that occurred more than seven years 
     before the date of the most recent hiring of the employee, 
     unless:
       ``(i) The break in service is occasioned by the fulfillment 
     of the employee's Uniformed Services Employment and 
     Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., 
     covered service obligation (the period of absence from work 
     due to or necessitated by USERRA-covered service must be also 
     counted in determining whether the employee has been employed 
     for at least 12 months by any employing office, but this 
     section does not provide any greater entitlement to the 
     employee than would be available under the USERRA, as made 
     applicable by the CAA); or
       ``(ii) A written agreement, including a collective 
     bargaining agreement, exists concerning the employing 
     office's intention to rehire the employee after the break in 
     service (e.g., for purposes of the employee furthering his or 
     her education or for childrearing purposes); and
       ``(C) Who, on the date on which any FMLA leave is to 
     commence, has met the hours of service requirement by having 
     been employed for at least 1,250 hours of service with an 
     employing office during the previous 12-month period, except 
     that:
       ``(i) An employee returning from fulfilling his or her 
     USERRA-covered service obligation shall be credited with the 
     hours of service that would have been performed but for the 
     period of absence from work due to or necessitated by USERRA-
     covered service in determining whether the employee met the 
     hours of service requirement (accordingly, a person 
     reemployed following absence from work due to or necessitated 
     by USERRA-covered service has the hours that would have been 
     worked for the employing office added to any hours actually 
     worked during the previous 12-month period to meet the hours 
     of service requirement);
       ``(ii) To determine the hours that would have been worked 
     during the period of absence from work due to or necessitated 
     by USERRA-covered service, the employee's pre-service work 
     schedule can generally be used for calculations; and
       ``(iii) Any service on active duty (as defined in 29 U.S.C. 
     2611(14)) by a covered employee who is a member of the 
     National Guard or Reserves shall be counted as time during 
     which such employee has been employed in an employing office 
     for purposes of subparagraph (C) of this section.

[[Page H9755]]

       ``(12) Employ means to suffer or permit to work.
       ``(13) Employee means an employee as defined by the CAA and 
     includes an applicant for employment and a former employee.
       ``(14) Employee employed in an instructional capacity. See 
     the definition of Teacher in this section.
       ``(15) Employee of the Capitol Police means any member or 
     officer of the Capitol Police.
       ``(16) Employee of the House of Representatives means an 
     individual occupying a position the pay for which is 
     disbursed by the Chief Administrative Officer of the House of 
     Representatives, or another official designated by the House 
     of Representatives, or any employment position in an entity 
     that is paid with funds derived from the Members' 
     Representational Allowance of the House of Representatives 
     but not any such individual employed by any entity listed in 
     subparagraphs (3) through (9) under the definition of covered 
     employee above.
       ``(17) Employee of the Office of the Architect of the 
     Capitol means any employee of the Office of the Architect of 
     the Capitol or the Botanic Garden.
       ``(18) Employee of the Senate means any employee whose pay 
     is disbursed by the Secretary of the Senate, but not any such 
     individual employed by any entity listed in subparagraphs (3) 
     through (9) under the definition of covered employee above.
       ``(19) Employing Office, as defined by the CAA, means:
       ``(A) The personal office of a Member of the House of 
     Representatives or of a Senator;
       ``(B) A committee of the House of Representatives or the 
     Senate or a joint committee;
       ``(C) Any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       ``(D) The Office of Congressional Accessibility Services, 
     the United States Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of 
     Congressional Workplace Rights, the Library of Congress, the 
     Stennis Center for Public Service, the Office of Technology 
     Assessment, the United States Commission on International 
     Religious Freedom, the China Review Commission, the 
     Congressional Executive China Commission, and the Helsinki 
     Commission.
       ``(20) Employment benefits means all benefits provided or 
     made available to employees by an employing office, including 
     group life insurance, health insurance, disability insurance, 
     sick leave, annual leave, educational benefits, and pensions, 
     regardless of whether such benefits are provided by a 
     practice or written policy of an employing office or through 
     an employee benefit plan. The term does not include non-
     employment related obligations paid by employees through 
     voluntary deductions such as supplemental insurance coverage. 
     See also 825.209(a).
       ``(21) Family and medical leave means an employee's 
     entitlement of up to 12 workweeks (or 26 workweeks in the 
     case of leave under 825.127) of unpaid leave for certain 
     family and medical needs, as prescribed under the FMLA, as 
     made applicable by the CAA.
       ``(22) FLSA means the Fair Labor Standards Act (29 U.S.C. 
     201 et seq.), as made applicable by the CAA.
       ``(23) FMLA means the Family and Medical Leave Act of 1993, 
     Public Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 
     2601 et seq., as amended), as made applicable by the CAA.
       ``(24) Group health plan means the Federal Employees Health 
     Benefits Program and any other plan of, or contributed to by, 
     an employing office (including a self-insured plan) to 
     provide health care (directly or otherwise) to the employing 
     office's employees, former employees, or the families of such 
     employees or former employees. For purposes of FMLA, as made 
     applicable by the CAA, the term group health plan shall not 
     include an insurance program providing health coverage under 
     which employees purchase individual policies from insurers 
     provided that:
       ``(A) No contributions are made by the employing office;
       ``(B) Participation in the program is completely voluntary 
     for employees;
       ``(C) The sole functions of the employing office with 
     respect to the program are, without endorsing the program, to 
     permit the insurer to publicize the program to employees, to 
     collect premiums through payroll deductions and to remit them 
     to the insurer;
       ``(D) The employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       ``(E) The premium charged with respect to such coverage 
     does not increase in the event the employment relationship 
     terminates.
       ``(25) Health care provider means:
       ``(A) The FMLA, as made applicable by the CAA, defines 
     health care provider as:
       ``(i) A doctor of medicine or osteopathy who is authorized 
     to practice medicine or surgery (as appropriate) by the State 
     in which the doctor practices; or
       ``(ii) Any other person determined by the Department of 
     Labor to be capable of providing health care services.
       ``(B) Others `capable of providing health care services' 
     include only:
       ``(i) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       ``(ii) Nurse practitioners, nurse-midwives and clinical 
     social workers and physician assistants who are authorized to 
     practice under State law and who are performing within the 
     scope of their practice as defined under State law;
       ``(iii) Christian Science practitioners listed with the 
     First Church of Christ, Scientist in Boston, Massachusetts. 
     Where an employee or family member is receiving treatment 
     from a Christian Science practitioner, an employee may not 
     object to any requirement from an employing office that the 
     employee or family member submit to examination (though not 
     treatment) to obtain a second or third certification from a 
     health care provider other than a Christian Science 
     practitioner except as otherwise provided under applicable 
     State or local law or collective bargaining agreement;
       ``(iv) Any health care provider from whom an employing 
     office or a group health plan's benefits manager will accept 
     certification of the existence of a serious health condition 
     to substantiate a claim for benefits; and
       ``(v) A health care provider listed above who practices in 
     a country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       ``(C) The phrase `authorized to practice in the State' as 
     used in this section means that the provider must be 
     authorized to diagnose and treat physical or mental health 
     conditions.
       ``(26) Incapable of self-care means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in several of the `activities of daily living' 
     (ADLs) or `instrumental activities of daily living' (IADLs). 
     Activities of daily living include adaptive activities such 
     as caring appropriately for one's grooming and hygiene, 
     bathing, dressing and eating. Instrumental activities of 
     daily living include cooking, cleaning, shopping, taking 
     public transportation, paying bills, maintaining a residence, 
     using telephones and directories, using a post office, etc.
       ``(27) Instructional employee: See the definition of 
     Teacher in this section.
       ``(28) Intermittent leave means leave taken in separate 
     periods of time due to a single illness or injury, birth, or 
     placement, rather than for one continuous period of time, and 
     may include leave of periods from an hour or more to several 
     weeks. Examples of intermittent leave would include leave 
     taken on an occasional basis for medical appointments, or 
     leave taken several days at a time spread over a period of 
     six months, such as for chemotherapy.
       ``(29) Invitational travel authorization (ITA) or 
     Invitational travel order (ITO) mean orders issued by the 
     Armed Forces to a family member to join an injured or ill 
     servicemember at his or her bedside. See also 825.310(e).
       ``(30) Key employee means a salaried FMLA-eligible employee 
     who is among the highest paid 10 percent of all the employees 
     employed by the employing office within 75 miles of the 
     employee's worksite. See also 825.217.
       ``(31) Mental disability: See the definition of Physical or 
     mental disability in this section.
       ``(32) Military caregiver leave means leave taken to care 
     for a covered servicemember with a serious injury or illness 
     under the Family and Medical Leave Act of 1993. See also 
     825.127.
       ``(33) Next of kin of a covered servicemember means the 
     nearest blood relative other than the covered servicemember's 
     spouse, parent, son, or daughter, in the following order of 
     priority: blood relatives who have been granted legal custody 
     of the covered servicemember by court decree or statutory 
     provisions, brothers and sisters, grandparents, aunts and 
     uncles, and first cousins, unless the covered servicemember 
     has specifically designated in writing another blood relative 
     as his or her nearest blood relative for purposes of military 
     caregiver leave under the FMLA. When no such designation is 
     made, and there are multiple family members with the same 
     level of relationship to the covered servicemember, all such 
     family members shall be considered the covered 
     servicemember's next of kin and may take FMLA leave to 
     provide care to the covered servicemember, either 
     consecutively or simultaneously. When such designation has 
     been made, the designated individual shall be deemed to be 
     the covered servicemember's only next of kin. See also 
     825.127(d)(3).
       ``(34) Office of Congressional Workplace Rights means the 
     independent office established in the legislative branch 
     under section 301 of the CAA (2 U.S.C. 1381).
       ``(35) Outpatient status means, with respect to a covered 
     servicemember who is a current member of the Armed Forces, 
     the status of a member of the Armed Forces assigned to either 
     a military medical treatment facility as an outpatient; or a 
     unit established for the purpose of providing command and 
     control of members of the Armed Forces receiving medical care 
     as outpatients. See also 825.127(b)(1).
       ``(36) Parent means a biological, adoptive, step or foster 
     father or mother or any other individual who stood in loco 
     parentis to the employee when the employee was a son or

[[Page H9756]]

     daughter as defined below. This term does not include parents 
     `in law'.
       ``(37) Parent of a covered servicemember means a covered 
     servicemember's biological, adoptive, step or foster father 
     or mother, or any other individual who stood in loco parentis 
     to the covered servicemember. This term does not include 
     parents `in law'. See also 825.127(d)(2).
       ``(38) Physical or mental disability means a physical or 
     mental impairment that substantially limits one or more of 
     the major life activities of an individual. Regulations at 29 
     C.F.R. part 1630, issued by the Equal Employment Opportunity 
     Commission under the Americans with Disabilities Act (ADA), 
     42 U.S.C. 12101 et seq., as amended, provide guidance for 
     these terms.
       ``(39) Reduced leave schedule means a leave schedule that 
     reduces the usual number of hours per workweek, or hours per 
     workday, of an employee.
       ``(40) Reserve components of the Armed Forces, for purposes 
     of qualifying exigency leave, include the Army National Guard 
     of the United States, Army Reserve, Navy Reserve, Marine 
     Corps Reserve, Air National Guard of the United States, Air 
     Force Reserve, and Coast Guard Reserve, and retired members 
     of the Regular Armed Forces or Reserves who are called up in 
     support of a contingency operation. See also 
     825.126(a)(2)(i).
       ``(41) Secretary means the Secretary of Labor or authorized 
     representative.
       ``(42) Serious health condition means an illness, injury, 
     impairment, or physical or mental condition that involves 
     inpatient care as defined in 825.114 or continuing treatment 
     by a health care provider as defined in 825.115. Conditions 
     for which cosmetic treatments are administered (such as most 
     treatments for acne or plastic surgery) are not serious 
     health conditions unless inpatient hospital care is required 
     or unless complications develop. Restorative dental or 
     plastic surgery after an injury or removal of cancerous 
     growths are serious health conditions provided all the other 
     conditions of this regulation are met. Mental illness or 
     allergies may be serious health conditions, but only if all 
     the conditions of 825.113 are met.
       ``(43) Serious injury or illness means:
       ``(A) In the case of a current member of the Armed Forces, 
     including a member of the National Guard or Reserves, an 
     injury or illness that was incurred by the covered 
     servicemember in the line of duty on active duty in the Armed 
     Forces or that existed before the beginning of the member's 
     active duty and was aggravated by service in the line of duty 
     on active duty in the Armed Forces and that may render the 
     servicemember medically unfit to perform the duties of the 
     member's office, grade, rank, or rating; and
       ``(B) In the case of a covered veteran, an injury or 
     illness that was incurred by the member in the line of duty 
     on active duty in the Armed Forces (or existed before the 
     beginning of the member's active duty and was aggravated by 
     service in the line of duty on active duty in the Armed 
     Forces) and manifested itself before or after the member 
     became a veteran, and is:
       ``(i) A continuation of a serious injury or illness that 
     was incurred or aggravated when the covered veteran was a 
     member of the Armed Forces and rendered the servicemember 
     unable to perform the duties of the servicemember's office, 
     grade, rank, or rating; or
       ``(ii) A physical or mental condition for which the covered 
     veteran has received a U.S. Department of Veterans Affairs 
     Service-Related Disability Rating (VASRD) of 50 percent or 
     greater, and such VASRD rating is based, in whole or in part, 
     on the condition precipitating the need for military 
     caregiver leave; or
       ``(iii) A physical or mental condition that substantially 
     impairs the covered veteran's ability to secure or follow a 
     substantially gainful occupation by reason of a disability or 
     disabilities related to military service, or would do so 
     absent treatment; or
       ``(iv) An injury, including a psychological injury, on the 
     basis of which the covered veteran has been enrolled in the 
     Department of Veterans Affairs Program of Comprehensive 
     Assistance for Family Caregivers. See also 825.127(c).
       ``(44) Son or daughter means a biological, adopted, or 
     foster child, a stepchild, a legal ward, or a child of a 
     person standing in loco parentis, who is either under age 18, 
     or age 18 or older and `incapable of self-care because of a 
     mental or physical disability' at the time that FMLA leave is 
     to commence.
       ``(45) Son or daughter of a covered servicemember means a 
     covered servicemember's biological, adopted, or foster child, 
     stepchild, legal ward, or a child for whom the covered 
     servicemember stood in loco parentis, and who is of any age. 
     See also 825.127(d)(1).
       ``(46) Son or daughter on covered active duty or call to 
     covered active duty status means the employee's biological, 
     adopted, or foster child, stepchild, legal ward, or a child 
     for whom the employee stood in loco parentis, who is on 
     covered active duty or call to covered active duty status, 
     and who is of any age. See also 825.126(a)(5).
       ``(47) Spouse means a husband or wife. For purposes of this 
     definition, husband or wife refers to the other person with 
     whom an individual entered into marriage as defined or 
     recognized under State law for purposes of marriage in the 
     State in which the marriage was entered into or, in the case 
     of a marriage entered into outside of any State, if the 
     marriage is valid in the place where entered into and could 
     have been entered into in at least one State. This definition 
     includes an individual in a same-sex or common law marriage 
     that either:
       ``(A) Was entered into in a State that recognizes such 
     marriages; or
       ``(B) If entered into outside of any State, is valid in the 
     place where entered into and could have been entered into in 
     at least one State.
       ``(48) Teacher (or employee employed in an instructional 
     capacity, or instructional employee) means an employee 
     employed principally in an instructional capacity by an 
     educational agency or school whose principal function is to 
     teach and instruct students in a class, a small group, or an 
     individual setting, and includes athletic coaches, driving 
     instructors, and special education assistants such as signers 
     for the hearing impaired. The term does not include teacher 
     assistants or aides who do not have as their principal 
     function actual teaching or instructing, nor auxiliary 
     personnel such as counselors, psychologists, curriculum 
     specialists, cafeteria workers, maintenance workers, bus 
     drivers, or other primarily noninstructional employees.
       ``(49) TRICARE is the health care program serving active 
     duty servicemembers, National Guard and Reserve members, 
     retirees, their families, survivors, and certain former 
     spouses worldwide.

     ``Sec. 825.103 [Reserved]

     ``Sec. 825.104 Covered employing offices

       ``The FMLA, as made applicable by the CAA, covers all 
     employing offices. As used in the CAA, the term employing 
     office means:
       ``(1) The personal office of a Member of the House of 
     Representatives or of a Senator;
       ``(2) A committee of the House of Representatives or the 
     Senate or a joint committee;
       ``(3) Any other office headed by a person with the final 
     authority to appoint, hire, discharge, and set the terms, 
     conditions, or privileges of the employment of an employee of 
     the House of Representatives or the Senate; or
       ``(4) The Office of Congressional Accessibility Services, 
     the United States Capitol Police, the Congressional Budget 
     Office, the Office of the Architect of the Capitol, the 
     Office of the Attending Physician, the Office of 
     Congressional Workplace Rights, the Library of Congress, the 
     Stennis Center for Public Service, the China Review 
     Commission, the Congressional Executive China Commission, the 
     Helsinki Commission, the United States Commission on 
     International Religious Freedom, and the Office of Technology 
     Assessment.

     ``Sec. 825.105 [Reserved]

     ``Sec. 825.106 Joint employer coverage

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

[[Page H9757]]

     and for job restoration. The employee may give notice of need 
     for FMLA leave, as described in 825.302 and 825.303, to 
     whichever of these employing offices the employee chooses. If 
     the employee makes a written request for restoration to one 
     of these employing offices, that employing office shall be 
     primarily responsible for job restoration, and the other 
     employing office(s) may, subject to the limitations in 
     825.216, be responsible for accepting the employee returning 
     from FMLA leave.

     ``Sec. 825.107 [Reserved]

     ``Sec. 825.108 [Reserved]

     ``Sec. 825.109 [Reserved]

     ``Sec. 825.110 Eligible employee, general rule

       ``(a) Subject to the exceptions provided in 825.111, an 
     eligible employee is a covered employee of an employing 
     office who:
       ``(1) Has been employed by any employing office for at 
     least 12 months, and
       ``(2) Has been employed for at least 1,250 hours of service 
     during the 12-month period immediately preceding the 
     commencement of the leave.
       ``(b) Any service on active duty (as defined in 29 U.S.C. 
     2611(14)) by a covered employee who is a member of the 
     National Guard or Reserves shall be counted as time during 
     which such employee has been employed in an employing office 
     for purposes of paragraph (a)(1) and (2) of this section.
       ``(c) The 12 months an employee must have been employed by 
     any employing office need not be consecutive months, 
     provided:
       ``(1) Subject to the exceptions provided in paragraph 
     (c)(2) of this section, employment periods prior to a break 
     in service of seven years or more need not be counted in 
     determining whether the employee has been employed by any 
     employing office for at least 12 months.
       ``(2) Employment periods preceding a break in service of 
     more than seven years must be counted in determining whether 
     the employee has been employed by any employing office for at 
     least 12 months where:
       ``(A) The employee's break in service is occasioned by the 
     fulfillment of his or her Uniformed Services Employment and 
     Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., 
     covered service obligation. The period of absence from work 
     due to or necessitated by USERRA-covered service must be also 
     counted in determining whether the employee has been employed 
     for at least 12 months by any employing office. However, this 
     section does not provide any greater entitlement to the 
     employee than would be available under the USERRA; or
       ``(B) A written agreement, including a collective 
     bargaining agreement, exists concerning the employing 
     office's intention to rehire the employee after the break in 
     service (e.g., for purposes of the employee furthering his or 
     her education or for childrearing purposes).
       ``(3) If an employee worked for two or more employing 
     offices sequentially, the time worked will be aggregated to 
     determine whether it equals 12 months.
       ``(4) If an employee is maintained on the payroll for any 
     part of a week, including any periods of paid or unpaid leave 
     (sick, vacation) during which other benefits or compensation 
     are provided by the employing office (e.g., Federal 
     Employees' Compensation, group health plan benefits, etc.), 
     the week counts as a week of employment. For purposes of 
     determining whether intermittent/occasional/casual employment 
     qualifies as at least 12 months, 52 weeks is deemed to be 
     equal to 12 months.
       ``(5) Nothing in this section prevents employing offices 
     from considering employment prior to a continuous break in 
     service of more than seven years when determining whether an 
     employee has met the 12-month employment requirement. 
     However, if an employing office chooses to recognize such 
     prior employment, the employing office must do so uniformly, 
     with respect to all employees with similar breaks in service.
       ``(d)(1) If an employee was employed by two or more 
     employing offices, either sequentially or concurrently, the 
     hours of service will be aggregated to determine whether the 
     minimum of 1,250 hours has been reached.
       ``(2) Except as provided in paragraph (c)(3) of this 
     section, whether an employee has worked the minimum 1,250 
     hours of service is determined according to the principles 
     established under the Fair Labor Standards Act (FLSA), as 
     applied by section 203 of the CAA (2 U.S.C. 1313), for 
     determining compensable hours of work. The determining factor 
     is the number of hours an employee has worked for one or more 
     employing offices as defined by the CAA. The determination is 
     not limited by methods of recordkeeping, or by compensation 
     agreements that do not accurately reflect all of the hours an 
     employee has worked for or been in service to the employing 
     office. Any accurate accounting of actual hours worked under 
     the FLSA's principles, as made applicable by the CAA (2 
     U.S.C. 1313), may be used.
       ``(3) An employee returning from USERRA-covered service 
     shall be credited with the hours of service that would have 
     been performed but for the period of absence from work due to 
     or necessitated by USERRA-covered service in determining the 
     employee's eligibility for FMLA-qualifying leave. 
     Accordingly, a person reemployed following USERRA-covered 
     service has the hours that would have been worked for the 
     employing office added to any hours actually worked during 
     the previous 12-month period to meet the hours of service 
     requirement. In order to determine the hours that would have 
     been worked during the period of absence from work due to or 
     necessitated by USERRA-covered service, the employee's pre-
     service work schedule can generally be used for calculations.
       ``(4) In the event an employing office does not maintain an 
     accurate record of hours worked by an employee, including for 
     employees who are exempt from the overtime requirements of 
     the FLSA, as made applicable by the CAA and its regulations, 
     the employing office has the burden of showing that the 
     employee has not worked the requisite hours. An employing 
     office must be able to clearly demonstrate, for example, that 
     full time teachers (See 825.102 for definition) of an 
     elementary or secondary school system, or institution of 
     higher education, or other educational establishment or 
     institution (who often work outside the classroom or at their 
     homes) did not work 1,250 hours during the previous 12 months 
     in order to claim that the teachers are not covered or 
     eligible for FMLA leave.
       ``(e) The determination of whether an employee meets the 
     hours of service requirement for any employing office and has 
     been employed by any employing office for a total of at least 
     12 months, must be made as of the date the FMLA leave is to 
     start. An employee may be on non-FMLA leave at the time he or 
     she meets the 12-month eligibility requirement, and in that 
     event, any portion of the leave taken for an FMLA-qualifying 
     reason after the employee meets the eligibility requirement 
     would be FMLA leave. See 825.300(b) for rules governing the 
     content of the eligibility notice given to employees.

     ``Sec. 825.111 Eligible employee, birth or placement

       ``For purposes of leave under subparagraphs (A) or (B) of 
     section 102(a)(1) of the FMLA, 29 U.S.C. 2612(a)(1)(A) or 
     (B):
       ``(1) an eligible employee is a covered employee of an 
     employing office; and
       ``(2) the eligibility requirements of section 825.110 shall 
     not apply. See also 825.120-21.

     ``Sec. 825.112 Qualifying reasons for leave, general rule

       ``(a) Circumstances qualifying for leave. Employing offices 
     covered by FMLA as made applicable by the CAA are required to 
     grant leave to eligible employees:
       ``(1) For birth of a son or daughter, and to care for the 
     newborn child (See 825.120);
       ``(2) For the placement of a son or daughter with the 
     employee for adoption or foster care and the care of such son 
     or daughter (See 825.121);
       ``(3) To care for the employee's spouse, son, daughter, or 
     parent with a serious health condition (See 825.113 and 
     825.122);
       ``(4) Because of a serious health condition that makes the 
     employee unable to perform the functions of the employee's 
     job (See 825.113 and 825.123);
       ``(5) Because of any qualifying exigency arising out of the 
     fact that the employee's spouse, son, daughter, or parent is 
     a military member on covered active duty (or has been 
     notified of an impending call or order to covered active duty 
     status) (See 825.122 and 825.126); and
       ``(6) To care for a covered servicemember with a serious 
     injury or illness if the employee is the spouse, son, 
     daughter, parent, or next of kin of the covered servicemember 
     (See 825.122 and 825.127).
       ``(b) Equal Application. The right to take leave under 
     FMLA, as made applicable by the CAA, applies equally to male 
     and female employees. A father, as well as a mother, can take 
     family leave for the birth, placement for adoption, or foster 
     care of a child.
       ``(c) Active employee. In situations where the employing 
     office/employee relationship has been interrupted, such as an 
     employee who has been on layoff, the employee must be 
     recalled or otherwise be re-employed before being eligible 
     for FMLA leave. Under such circumstances, an eligible 
     employee is immediately entitled to further FMLA leave for a 
     qualifying reason.

     ``Sec. 825.113 Serious health condition

       ``(a) For purposes of FMLA, serious health condition 
     entitling an employee to FMLA leave means an illness, injury, 
     impairment, or physical or mental condition that involves 
     inpatient care as defined in 825.114 or continuing treatment 
     by a health care provider as defined in 825.115.
       ``(b) The term incapacity means inability to work, attend 
     school, or perform other regular daily activities due to the 
     serious health condition, treatment therefore, or recovery 
     therefrom.
       ``(c) The term treatment includes (but is not limited to) 
     examinations to determine if a serious health condition 
     exists and evaluations of the condition. Treatment does not 
     include routine physical examinations, eye examinations, or 
     dental examinations. A regimen of continuing treatment 
     includes, for example, a course of prescription medication 
     (e.g., an antibiotic) or therapy requiring special equipment 
     to resolve or alleviate the health condition (e.g., oxygen). 
     A regimen of continuing treatment that includes the taking of 
     over-the-counter medications such as aspirin, antihistamines, 
     or salves; or bed-rest, drinking fluids, exercise, and other 
     similar activities that can be initiated without a visit to a 
     health care provider, is not, by itself, sufficient to 
     constitute a regimen of continuing treatment for purposes of 
     FMLA leave.
       ``(d) Conditions for which cosmetic treatments are 
     administered (such as most treatments for acne or plastic 
     surgery) are not serious health conditions unless inpatient 
     hospital care is required or unless complications

[[Page H9758]]

     develop. Ordinarily, unless complications arise, the common 
     cold, the flu, ear aches, upset stomach, minor ulcers, 
     headaches other than migraine, routine dental or orthodontia 
     problems, periodontal disease, etc., are examples of 
     conditions that do not meet the definition of a serious 
     health condition and do not qualify for FMLA leave. 
     Restorative dental or plastic surgery after an injury or 
     removal of cancerous growths are serious health conditions 
     provided all the other conditions of this regulation are met. 
     Mental illness or allergies may be serious health conditions, 
     but only if all the conditions of this section are met.

     ``Sec. 825.114 Inpatient care

       ``Inpatient care means an overnight stay in a hospital, 
     hospice, or residential medical care facility, including any 
     period of incapacity as defined in 825.113(b), or any 
     subsequent treatment in connection with such inpatient care.

     ``Sec. 825.115 Continuing treatment

       ``A serious health condition involving continuing treatment 
     by a health care provider includes any one or more of the 
     following:
       ``(a) Incapacity and treatment. A period of incapacity of 
     more than three consecutive, full calendar days, and any 
     subsequent treatment or period of incapacity relating to the 
     same condition, that also involves:
       ``(1) Treatment two or more times, within 30 days of the 
     first day of incapacity, unless extenuating circumstances 
     exist, by a health care provider, by a nurse under direct 
     supervision of a health care provider, or by a provider of 
     health care services (e.g., physical therapist) under orders 
     of, or on referral by, a health care provider.
       ``(2) Treatment by a health care provider on at least one 
     occasion, which results in a regimen of continuing treatment 
     under the supervision of the health care provider.
       ``(3) The requirement in paragraphs (a)(1) and (2) of this 
     section for treatment by a health care provider means an in-
     person visit to a health care provider. The first (or only) 
     in-person treatment visit must take place within seven days 
     of the first day of incapacity.
       ``(4) Whether additional treatment visits or a regimen of 
     continuing treatment is necessary within the 30-day period 
     shall be determined by the health care provider.
       ``(5) The term extenuating circumstances in paragraph 
     (a)(1) of this section means circumstances beyond the 
     employee's control that prevent the follow-up visit from 
     occurring as planned by the health care provider. Whether a 
     given set of circumstances are extenuating depends on the 
     facts. For example, extenuating circumstances exist if a 
     health care provider determines that a second in-person visit 
     is needed within the 30-day period, but the health care 
     provider does not have any available appointments during that 
     time period.
       ``(b) Pregnancy or prenatal care. Any period of incapacity 
     due to pregnancy, or for prenatal care. See also 825.120.
       ``(c) Chronic conditions. Any period of incapacity or 
     treatment for such incapacity due to a chronic serious health 
     condition. A chronic serious health condition is one which:
       ``(1) Requires periodic visits (defined as at least twice a 
     year) for treatment by a health care provider, or by a nurse 
     under direct supervision of a health care provider;
       ``(2) Continues over an extended period of time (including 
     recurring episodes of a single underlying condition); and
       ``(3) May cause episodic rather than a continuing period of 
     incapacity (e.g., asthma, diabetes, epilepsy, etc.).
       ``(d) Permanent or long-term conditions. A period of 
     incapacity which is permanent or long-term due to a condition 
     for which treatment may not be effective. The employee or 
     family member must be under the continuing supervision of, 
     but need not be receiving active treatment by, a health care 
     provider. Examples include Alzheimer's, a severe stroke, or 
     the terminal stages of a disease.
       ``(e) Conditions requiring multiple treatments. Any period 
     of absence to receive multiple treatments (including any 
     period of recovery therefrom) by a health care provider or by 
     a provider of health care services under orders of, or on 
     referral by, a health care provider, for:
       ``(1) Restorative surgery after an accident or other 
     injury; or
       ``(2) A condition that would likely result in a period of 
     incapacity of more than three consecutive, full calendar days 
     in the absence of medical intervention or treatment, such as 
     cancer (chemotherapy, radiation, etc.), severe arthritis 
     (physical therapy), or kidney disease (dialysis).
       ``(f) Absences attributable to incapacity under paragraphs 
     (b) or (c) of this section qualify for FMLA leave even though 
     the employee or the covered family member does not receive 
     treatment from a health care provider during the absence, and 
     even if the absence does not last more than three 
     consecutive, full calendar days. For example, an employee 
     with asthma may be unable to report for work due to the onset 
     of an asthma attack or because the employee's health care 
     provider has advised the employee to stay home when the 
     pollen count exceeds a certain level. An employee who is 
     pregnant may be unable to report to work because of severe 
     morning sickness.

     ``Sec. 825.116 [Reserved]

     ``Sec. 825.117 [Reserved]

     ``Sec. 825.118 [Reserved]

     ``Sec. 825.119 Leave for treatment of substance abuse

       ``(a) Substance abuse may be a serious health condition if 
     the conditions of 825.113 through 825.115 are met. However, 
     FMLA leave may only be taken for treatment for substance 
     abuse by a health care provider or by a provider of health 
     care services on referral by a health care provider. On the 
     other hand, absence because of the employee's use of the 
     substance, rather than for treatment, does not qualify for 
     FMLA leave.
       ``(b) Treatment for substance abuse does not prevent an 
     employing office from taking employment action against an 
     employee. The employing office may not take action against 
     the employee because the employee has exercised his or her 
     right to take FMLA leave for treatment. However, if the 
     employing office has an established policy, applied in a non-
     discriminatory manner that has been communicated to all 
     employees, that provides under certain circumstances an 
     employee may be terminated for substance abuse, pursuant to 
     that policy the employee may be terminated whether or not the 
     employee is presently taking FMLA leave. An employee may also 
     take FMLA leave to care for a covered family member who is 
     receiving treatment for substance abuse. The employing office 
     may not take action against an employee who is providing care 
     for a covered family member receiving treatment for substance 
     abuse.

     ``Sec. 825.120 Leave for pregnancy or birth

       ``(a) General rules. Eligible employees are entitled to 
     FMLA leave for pregnancy or birth of a son or daughter and to 
     care for the newborn child as follows:
       ``(1) Both parents are entitled to FMLA leave for the birth 
     of their child.
       ``(2) Both parents are entitled to FMLA leave to be with 
     the healthy newborn child (i.e., bonding time) during the 12-
     month period beginning on the date of birth. An employee's 
     entitlement to FMLA leave for a birth expires at the end of 
     the 12-month period beginning on the date of the birth. If 
     the employing office permits bonding leave to be taken beyond 
     this period, such leave will not qualify as FMLA leave. Under 
     this section, both parents are entitled to FMLA leave even if 
     the newborn does not have a serious health condition.
       ``(3) Spouses who are eligible for FMLA leave and are 
     employed by the same employing office may be limited to a 
     combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken for birth of the employee's son 
     or daughter or to care for the child after birth, for 
     placement of a son or daughter with the employee for adoption 
     or foster care or to care for the child after placement, or 
     to care for the employee's parent with a serious health 
     condition. This limitation on the total weeks of leave 
     applies to leave taken for the reasons specified as long as 
     the spouses are employed by the same employing office. It 
     would apply, for example, even though the spouses are 
     employed at two different worksites of an employing office. 
     On the other hand, if one spouse is ineligible for FMLA 
     leave, the other spouse would be entitled to a full 12 weeks 
     of FMLA leave. Where spouses both use a portion of the total 
     12-week FMLA leave entitlement for either the birth of a 
     child, for placement for adoption or foster care, or to care 
     for a parent, the spouses would each be entitled to the 
     difference between the amount he or she has taken 
     individually and 12 weeks for FMLA leave for other purposes. 
     For example, if each spouse took six weeks of leave to care 
     for a healthy, newborn child, each could use an additional 
     six weeks due to his or her own serious health condition or 
     to care for a child with a serious health condition.
       ``(4) The expectant mother is entitled to FMLA leave for 
     incapacity due to pregnancy, for prenatal care, or for her 
     own serious health condition following the birth of the 
     child. An expectant mother may take FMLA leave before the 
     birth of the child for prenatal care or if her condition 
     makes her unable to work. The expectant mother is entitled to 
     leave for incapacity due to pregnancy even though she does 
     not receive treatment from a health care provider during the 
     absence, and even if the absence does not last for more than 
     three consecutive calendar days.
       ``(5) A spouse is entitled to FMLA leave if needed to care 
     for a pregnant spouse who is incapacitated or if needed to 
     care for her during her prenatal care, or if needed to care 
     for her following the birth of a child if she has a serious 
     health condition. See 825.124.
       ``(6) Both parents are entitled to FMLA leave if needed to 
     care for a child with a serious health condition if the 
     requirements of 825.113 through 825.115 and 825.122(d) are 
     met. Thus, spouses may each take 12 weeks of FMLA leave if 
     needed to care for their newborn child with a serious health 
     condition, even if both are employed by the same employing 
     office, provided they have not exhausted their entitlements 
     during the applicable 12-month FMLA leave period.
       ``(b) Intermittent and reduced schedule leave. An eligible 
     employee may use intermittent or reduced schedule leave after 
     the birth to be with a healthy newborn child only if the 
     employing office agrees. For example, an employing office and 
     employee may agree to a part-time work schedule after the 
     birth. If the employing office agrees to permit intermittent 
     or reduced schedule leave for the birth of a child, the 
     employing office may require the employee to transfer 
     temporarily,

[[Page H9759]]

     during the period the intermittent or reduced leave schedule 
     is required, to an available alternative position for which 
     the employee is qualified and which better accommodates 
     recurring periods of leave than does the employee's regular 
     position. Transfer to an alternative position may require 
     compliance with any applicable collective bargaining 
     agreement and Federal law (such as the Americans with 
     Disabilities Act, as made applicable by the CAA). Transfer to 
     an alternative position may include altering an existing job 
     to better accommodate the employee's need for intermittent or 
     reduced leave. The employing office's agreement is not 
     required for intermittent leave required by the serious 
     health condition of the expectant mother or newborn child. 
     See 825.202-825.205 for general rules governing the use of 
     intermittent and reduced schedule leave. See 825.121 for 
     rules governing leave for adoption or foster care. See 
     825.601 for special rules applicable to instructional 
     employees of schools.

     ``Sec. 825.121 Leave for adoption or foster care

       ``(a) General rules. Eligible employees are entitled to 
     FMLA leave for placement with the employee of a son or 
     daughter for adoption or foster care and to care for the 
     newly placed child as follows:
       ``(1) Employees may take FMLA leave before the actual 
     placement or adoption of a child if an absence from work is 
     required for the placement for adoption or foster care to 
     proceed. For example, the employee may be required to attend 
     counseling sessions, appear in court, consult with his or her 
     attorney or the doctor(s) representing the birth parent, 
     submit to a physical examination, or travel to another 
     country to complete an adoption. The source of an adopted 
     child (e.g., whether from a licensed placement agency or 
     otherwise) is not a factor in determining eligibility for 
     leave for this purpose.
       ``(2) An employee's entitlement to leave for adoption or 
     foster care expires at the end of the 12-month period 
     beginning on the date of the placement. If the employing 
     office permits leave for adoption or foster care to be taken 
     beyond this period, such leave will not qualify as FMLA 
     leave. Under this section, the employee is entitled to FMLA 
     leave even if the adopted or foster child does not have a 
     serious health condition.
       ``(3) Spouses who are eligible for FMLA leave and are 
     employed by the same covered employing office may be limited 
     to a combined total of 12 weeks of leave during any 12-month 
     period if the leave is taken for the placement of the 
     employee's son or daughter or to care for the child after 
     placement, for the birth of the employee's son or daughter or 
     to care for the child after birth, or to care for the 
     employee's parent with a serious health condition. This 
     limitation on the total weeks of leave applies to leave taken 
     for the reasons specified as long as the spouses are employed 
     by the same employing office. It would apply, for example, 
     even though the spouses are employed at two different 
     worksites of an employing office. On the other hand, if one 
     spouse is ineligible for FMLA leave, the other spouse would 
     be entitled to a full 12 weeks of FMLA leave. Where spouses 
     both use a portion of the total 12-week FMLA leave 
     entitlement for either the birth of a child, for placement 
     for adoption or foster care, or to care for a parent, the 
     spouses would each be entitled to the difference between the 
     amount he or she has taken individually and 12 weeks for FMLA 
     leave for other purposes. For example, if each spouse took 
     six weeks of leave to care for a healthy, newly placed child, 
     each could use an additional six weeks due to his or her own 
     serious health condition or to care for a child with a 
     serious health condition.
       ``(4) An eligible employee is entitled to FMLA leave in 
     order to care for an adopted or foster child with a serious 
     health condition if the requirements of 825.113 through 
     825.115 and 825.122(d) are met. Thus, spouses may each take 
     12 weeks of FMLA leave if needed to care for an adopted or 
     foster child with a serious health condition, even if both 
     are employed by the same employing office, provided they have 
     not exhausted their entitlements during the applicable 12-
     month FMLA leave period.
       ``(b) Use of intermittent and reduced schedule leave. An 
     eligible employee may use intermittent or reduced schedule 
     leave after the placement of a healthy child for adoption or 
     foster care only if the employing office agrees. Thus, for 
     example, the employing office and employee may agree to a 
     part-time work schedule after the placement for bonding 
     purposes. If the employing office agrees to permit 
     intermittent or reduced schedule leave for the placement for 
     adoption or foster care, the employing office may require the 
     employee to transfer temporarily, during the period the 
     intermittent or reduced leave schedule is required, to an 
     available alternative position for which the employee is 
     qualified and which better accommodates recurring periods of 
     leave than does the employee's regular position. Transfer to 
     an alternative position may require compliance with any 
     applicable collective bargaining agreement and Federal law 
     (such as the Americans with Disabilities Act, as made 
     applicable by the CAA). Transfer to an alternative position 
     may include altering an existing job to better accommodate 
     the employee's need for intermittent or reduced leave. The 
     employing office's agreement is not required for intermittent 
     leave required by the serious health condition of the adopted 
     or foster child. See 825.202-825.205 for general rules 
     governing the use of intermittent and reduced schedule leave. 
     See 825.120 for general rules governing leave for pregnancy 
     and birth of a child. See 825.601 for special rules 
     applicable to instructional employees of schools.

     ``Sec. 825.122 Definitions of covered servicemember, spouse, 
       parent, son or daughter, next of kin of a covered 
       servicemember, adoption, foster care, son or daughter on 
       covered active duty or call to covered active duty status, 
       son or daughter of a covered servicemember, and parent of a 
       covered servicemember

       ``(a) Covered servicemember means:
       ``(1) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation or therapy, is otherwise in 
     outpatient status, or is otherwise on the temporary 
     disability retired list, for a serious injury or illness; or
       ``(2) A covered veteran who is undergoing medical 
     treatment, recuperation, or therapy for a serious injury or 
     illness. Covered veteran means an individual who was a member 
     of the Armed Forces (including a member of the National Guard 
     or Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. See 
     825.127(b)(2).
       ``(b) Spouse means a husband or wife. For purposes of this 
     definition, husband or wife refers to the other person with 
     whom an individual entered into marriage as defined or 
     recognized under State law for purposes of marriage in the 
     State in which the marriage was entered into or, in the case 
     of a marriage entered into outside of any State, if the 
     marriage is valid in the place where entered into and could 
     have been entered into in at least one State. This definition 
     includes an individual in a same-sex or common law marriage 
     that either:
       ``(1) Was entered into in a State that recognizes such 
     marriages; or
       ``(2) If entered into outside of any State, is valid in the 
     place where entered into and could have been entered into in 
     at least one State.
       ``(c) Parent. Parent means a biological, adoptive, step, or 
     foster father or mother, or any other individual who stood in 
     loco parentis to the employee when the employee was a son or 
     daughter as defined in paragraph (d) of this section. This 
     term does not include parents `in law'.
       ``(d) Son or daughter. For purposes of FMLA leave taken for 
     birth or adoption, or to care for a family member with a 
     serious health condition, son or daughter means a biological, 
     adopted, or foster child, a stepchild, a legal ward, or a 
     child of a person standing in loco parentis, who is either 
     under age 18, or age 18 or older and `incapable of self-care 
     because of a mental or physical disability' at the time that 
     FMLA leave is to commence.
       ``(1) Incapable of self-care means that the individual 
     requires active assistance or supervision to provide daily 
     self-care in three or more of the activities of daily living 
     (ADLs) or instrumental activities of daily living (IADLs). 
     Activities of daily living include adaptive activities such 
     as caring appropriately for one's grooming and hygiene, 
     bathing, dressing, and eating. Instrumental activities of 
     daily living include cooking, cleaning, shopping, taking 
     public transportation, paying bills, maintaining a residence, 
     using telephones and directories, using a post office, etc.
       ``(2) Physical or mental disability means a physical or 
     mental impairment that substantially limits one or more of 
     the major life activities of an individual. Regulations at 29 
     C.F.R. 1630.2(h), (i), and (j), issued by the Equal 
     Employment Opportunity Commission under the Americans with 
     Disabilities Act (ADA), (42 U.S.C. 12101 et seq.), provide 
     guidance for these terms.
       ``(3) Persons who are `in loco parentis' include those with 
     day-to-day responsibilities to care for and financially 
     support a child, or, in the case of an employee, who had such 
     responsibility for the employee when the employee was a 
     child. A biological or legal relationship is not necessary.
       ``(e) Next of kin of a covered servicemember means the 
     nearest blood relative other than the covered servicemember's 
     spouse, parent, son, or daughter, in the following order of 
     priority: blood relatives who have been granted legal custody 
     of the covered servicemember by court decree or statutory 
     provisions, brothers and sisters, grandparents, aunts and 
     uncles, and first cousins, unless the covered servicemember 
     has specifically designated in writing another blood relative 
     as his or her nearest blood relative for purposes of military 
     caregiver leave under the FMLA. When no such designation is 
     made, and there are multiple family members with the same 
     level of relationship to the covered servicemember, all such 
     family members shall be considered the covered 
     servicemember's next of kin and may take FMLA leave to 
     provide care to the covered servicemember, either 
     consecutively or simultaneously. When such designation has 
     been made, the designated individual shall be deemed to be 
     the covered servicemember's only next of kin. See 
     825.127(d)(3).
       ``(f) Adoption means legally and permanently assuming the 
     responsibility of raising a child as one's own. The source of 
     an adopted child (e.g., whether from a licensed placement 
     agency or otherwise) is not a factor in determining 
     eligibility for FMLA leave. See 825.121 for rules governing 
     leave for adoption.

[[Page H9760]]

       ``(g) Foster care means 24-hour care for children in 
     substitution for, and away from, their parents or guardian. 
     Such placement is made by or with the agreement of the State 
     as a result of a voluntary agreement between the parent or 
     guardian that the child be removed from the home, or pursuant 
     to a judicial determination of the necessity for foster care, 
     and involves agreement between the State and foster family 
     that the foster family will take care of the child. Although 
     foster care may be with relatives of the child, State action 
     is involved in the removal of the child from parental 
     custody. See 825.121 for rules governing leave for foster 
     care.
       ``(h) Son or daughter on covered active duty or call to 
     covered active duty status means the employee's biological, 
     adopted, or foster child, stepchild, legal ward, or a child 
     for whom the employee stood in loco parentis, who is on 
     covered active duty or call to covered active duty status, 
     and who is of any age. See 825.126(a)(5).
       ``(i) Son or daughter of a covered servicemember means the 
     covered servicemember's biological, adopted, or foster child, 
     stepchild, legal ward, or a child for whom the covered 
     servicemember stood in loco parentis, and who is of any age. 
     See 825.127(d)(1).
       ``(j) Parent of a covered servicemember means a covered 
     servicemember's biological, adoptive, step, or foster father 
     or mother, or any other individual who stood in loco parentis 
     to the covered servicemember. This term does not include 
     parents `in law.' See 825.127(d)(2).
       ``(k) Documenting relationships. For purposes of 
     confirmation of family relationship, the employing office may 
     require the employee giving notice of the need for leave to 
     provide reasonable documentation or statement of family 
     relationship. This documentation may take the form of a 
     simple statement from the employee, or a child's birth 
     certificate, a court document, etc. The employing office is 
     entitled to examine documentation such as a birth 
     certificate, etc., but the employee is entitled to the return 
     of the official document submitted for this purpose.

     ``Sec. 825.123 Unable to perform the functions of the 
       position

       ``(a) Definition. An employee is unable to perform the 
     functions of the position where the health care provider 
     finds that the employee is unable to work at all or is unable 
     to perform any one of the essential functions of the 
     employee's position within the meaning of the Americans with 
     Disabilities Act (ADA), as amended and made applicable by 
     section 201(a) of the CAA (2 U.S.C. 1311(a)(3)). An employee 
     who must be absent from work to receive medical treatment for 
     a serious health condition is considered to be unable to 
     perform the essential functions of the position during the 
     absence for treatment.
       ``(b) Statement of functions. An employing office has the 
     option, in requiring certification from a health care 
     provider, to provide a statement of the essential functions 
     of the employee's position for the health care provider to 
     review. A sufficient medical certification must specify what 
     functions of the employee's position the employee is unable 
     to perform so that the employing office can then determine 
     whether the employee is unable to perform one or more 
     essential functions of the employee's position. For purposes 
     of the FMLA, the essential functions of the employee's 
     position are to be determined with reference to the position 
     the employee held at the time notice is given or leave 
     commenced, whichever is earlier. See 825.306.

     ``Sec. 825.124 Needed to care for a family member or covered 
       servicemember

       ``(a) The medical certification provision that an employee 
     is needed to care for a family member or covered 
     servicemember encompasses both physical and psychological 
     care. It includes situations where, for example, because of a 
     serious health condition, the family member is unable to care 
     for his or her own basic medical, hygienic, or nutritional 
     needs or safety, or is unable to transport himself or herself 
     to the doctor. The term also includes providing psychological 
     comfort and reassurance which would be beneficial to a child, 
     spouse or parent with a serious health condition who is 
     receiving inpatient or home care.
       ``(b) The term also includes situations where the employee 
     may be needed to substitute for others who normally care for 
     the family member or covered servicemember, or to make 
     arrangements for changes in care, such as transfer to a 
     nursing home. The employee need not be the only individual or 
     family member available to care for the family member or 
     covered servicemember.
       ``(c) An employee's intermittent leave or a reduced leave 
     schedule necessary to care for a family member or covered 
     servicemember includes not only a situation where the 
     condition of the family member or covered servicemember 
     itself is intermittent, but also where the employee is only 
     needed intermittently--such as where other care is normally 
     available, or care responsibilities are shared with another 
     member of the family or a third party. See 825.202-825.205 
     for rules governing the use of intermittent or reduced 
     schedule leave.

     ``Sec. 825.125 Definition of health care provider

       ``(a) The FMLA, as made applicable by the CAA, defines 
     health care provider as:
       ``(1) A doctor of medicine or osteopathy who is authorized 
     to practice medicine or surgery (as appropriate) by the State 
     in which the doctor practices; or
       ``(2) Any other person determined by the Office of 
     Congressional Workplace Rights to be capable of providing 
     health care services.
       ``(3) In making a determination referred to in subparagraph 
     (a)(2), and absent good cause shown to do otherwise, the 
     Office of Congressional Workplace Rights will follow any 
     determination made by the Department of Labor (under section 
     101(6)(B) of FMLA (29 U.S.C. 2611(6)(B))) that a person is 
     capable of providing health care services, provided the 
     determination by the Department of Labor was not made at the 
     request of a person who was then a covered employee.
       ``(b) Others capable of providing health care services 
     include only:
       ``(1) Podiatrists, dentists, clinical psychologists, 
     optometrists, and chiropractors (limited to treatment 
     consisting of manual manipulation of the spine to correct a 
     subluxation as demonstrated by X-ray to exist) authorized to 
     practice in the State and performing within the scope of 
     their practice as defined under State law;
       ``(2) Nurse practitioners, nurse-midwives, clinical social 
     workers, and physician assistants who are authorized to 
     practice under State law and who are performing within the 
     scope of their practice as defined under State law;
       ``(3) Christian Science Practitioners listed with the First 
     Church of Christ, Scientist in Boston, Massachusetts. Where 
     an employee or family member is receiving treatment from a 
     Christian Science practitioner, an employee may not object to 
     any requirement from an employing office that the employee or 
     family member submit to examination (though not treatment) to 
     obtain a second or third certification from a health care 
     provider other than a Christian Science practitioner except 
     as otherwise provided under applicable State or local law or 
     collective bargaining agreement;
       ``(4) Any health care provider from whom an employing 
     office or the employing office's group health plan's benefits 
     manager will accept certification of the existence of a 
     serious health condition to substantiate a claim for 
     benefits; and
       ``(5) A health care provider listed above who practices in 
     a country other than the United States, who is authorized to 
     practice in accordance with the law of that country, and who 
     is performing within the scope of his or her practice as 
     defined under such law.
       ``(c) The phrase authorized to practice in the State as 
     used in this section means that the provider must be 
     authorized to diagnose and treat physical or mental health 
     conditions.

     ``Sec. 825.126 Leave because of a qualifying exigency

       ``(a) Eligible employees may take FMLA leave for a 
     qualifying exigency while the employee's spouse, son, 
     daughter, or parent (the military member or member) is on 
     covered active duty or call to covered active duty status (or 
     has been notified of an impending call or order to covered 
     active duty).
       ``(1) Covered active duty or call to covered active duty 
     status in the case of a member of the Regular Armed Forces 
     means duty during the deployment of the member with the Armed 
     Forces to a foreign country. The active duty orders of a 
     member of the Regular components of the Armed Forces will 
     generally specify if the member is deployed to a foreign 
     country.
       ``(2) Covered active duty or call to covered active duty 
     status in the case of a member of the Reserve components of 
     the Armed Forces means duty during the deployment of the 
     member with the Armed Forces to a foreign country under a 
     Federal call or order to active duty in support of a 
     contingency operation pursuant to: section 688 of title 10 of 
     the United States Code, which authorizes ordering to active 
     duty retired members of the Regular Armed Forces and members 
     of the retired Reserve who retired after completing at least 
     20 years of active service; section 12301(a) of title 10 of 
     the United States Code, which authorizes ordering all reserve 
     component members to active duty in the case of war or 
     national emergency; section 12302 of title 10 of the United 
     States Code, which authorizes ordering any unit or unassigned 
     member of the Ready Reserve to active duty; section 12304 of 
     title 10 of the United States Code, which authorizes ordering 
     any unit or unassigned member of the Selected Reserve and 
     certain members of the Individual Ready Reserve to active 
     duty; section 12305 of title 10 of the United States Code, 
     which authorizes the suspension of promotion, retirement or 
     separation rules for certain Reserve components; section 
     12406 of title 10 of the United States Code, which authorizes 
     calling the National Guard into Federal service in certain 
     circumstances; chapter 15 of title 10 of the United States 
     Code, which authorizes calling the National Guard and State 
     military into Federal service in the case of insurrections 
     and national emergencies; or any other provision of law 
     during a war or during a national emergency declared by the 
     President or Congress so long as it is in support of a 
     contingency operation. See 10 U.S.C. 101(a)(13)(B).
       ``(A) For purposes of covered active duty or call to 
     covered active duty status, the Reserve components of the 
     Armed Forces include the Army National Guard of the United 
     States, Army Reserve, Navy Reserve, Marine Corps Reserve, Air 
     National Guard of the United States, Air Force Reserve, and 
     Coast Guard Reserve, and retired members of the Regular Armed 
     Forces or Reserves who are called up in support of a 
     contingency operation pursuant to one of the provisions of 
     law identified in paragraph (a)(2).

[[Page H9761]]

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

     ``Sec. 825.127 Leave to care for a covered servicemember with 
       a serious injury or illness (military caregiver leave)

       ``(a) Eligible employees are entitled to FMLA leave to care 
     for a covered servicemember with a serious illness or injury.
       ``(b) Covered servicemember means:
       ``(1) A current member of the Armed Forces, including a 
     member of the National Guard or Reserves, who is undergoing 
     medical treatment, recuperation, or therapy, is otherwise in 
     outpatient status; or is otherwise on the temporary 
     disability retired list, for a serious injury or illness. 
     Outpatient status means the status of a member of the Armed 
     Forces assigned to either a military medical treatment 
     facility as an outpatient or a unit established for the 
     purpose of providing command and control of members of the 
     Armed Forces receiving medical care as outpatients.
       ``(2) A covered veteran who is undergoing medical 
     treatment, recuperation or therapy for a serious injury or 
     illness. Covered veteran means an individual who was a member 
     of the Armed Forces (including a member of the National Guard 
     or Reserves), and was discharged or released under conditions 
     other than dishonorable at any time during the five-year 
     period prior to the first date the eligible employee takes 
     FMLA leave to care for the covered veteran. An eligible 
     employee must commence leave to care for a covered veteran 
     within five years of the veteran's active duty service, but 
     the single 12-month period described in paragraph (e)(1) of 
     this section may extend beyond the five-year period.
       ``(3) For an individual who was a member of the Armed 
     Forces (including a member of

[[Page H9762]]

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

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

     ``Sec. 825.200 Amount of leave

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

[[Page H9763]]

       ``(b) An employing office is permitted to choose any one of 
     the following methods for determining the 12-month period in 
     which the 12 weeks of leave entitlement described in 
     paragraph (a) of this section occurs:
       ``(1) The calendar year;
       ``(2) Any fixed 12-month leave year, such as a fiscal year 
     or a year starting on an employee's anniversary date;
       ``(3) The 12-month period measured forward from the date 
     any employee's first FMLA leave under paragraph (a) begins; 
     or
       ``(4) A `rolling' 12-month period measured backward from 
     the date an employee uses any FMLA leave as described in 
     paragraph (a).
       ``(c) Under methods in paragraphs (b)(1) and (b)(2) of this 
     section an employee would be entitled to up to 12 weeks of 
     FMLA leave at any time in the fixed 12-month period selected. 
     An employee could, therefore, take 12 weeks of leave at the 
     end of the year and 12 weeks at the beginning of the 
     following year. Under the method in paragraph (b)(3) of this 
     section, an employee would be entitled to 12 weeks of leave 
     during the year beginning on the first date FMLA leave is 
     taken; the next 12-month period would begin the first time 
     FMLA leave is taken after completion of any previous 12-month 
     period. Under the method in paragraph (b)(4) of this section, 
     the `rolling' 12-month period, each time an employee takes 
     FMLA leave the remaining leave entitlement would be any 
     balance of the 12 weeks which has not been used during the 
     immediately preceding 12 months. For example, if an employee 
     has taken eight weeks of leave during the past 12 months, an 
     additional four weeks of leave could be taken. If an employee 
     used four weeks beginning February 1, 2008, four weeks 
     beginning June 1, 2008, and four weeks beginning December 1, 
     2008, the employee would not be entitled to any additional 
     leave until February 1, 2009. However, beginning on February 
     1, 2009, the employee would again be eligible to take FMLA 
     leave, recouping the right to take the leave in the same 
     manner and amounts in which it was used in the previous year. 
     Thus, the employee would recoup (and be entitled to use) one 
     additional day of FMLA leave each day for four weeks, 
     commencing February 1, 2009. The employee would also begin to 
     recoup additional days beginning on June 1, 2009, and 
     additional days beginning on December 1, 2009. Accordingly, 
     employing offices using the rolling 12-month period may need 
     to calculate whether the employee is entitled to take FMLA 
     leave each time that leave is requested, and employees taking 
     FMLA leave on such a basis may fall in and out of FMLA 
     protection based on their FMLA usage in the prior 12 months. 
     For example, in the example above, if the employee needs six 
     weeks of leave for a serious health condition commencing 
     February 1, 2009, only the first four weeks of the leave 
     would be FMLA-protected.
       ``(d)(1) Employing offices will be allowed to choose any 
     one of the alternatives in paragraph (b) of this section for 
     the leave entitlements described in paragraph (a) of this 
     section provided the alternative chosen is applied 
     consistently and uniformly to all employees. An employing 
     office wishing to change to another alternative is required 
     to give at least 60 days' notice to all employees, and the 
     transition must take place in such a way that the employees 
     retain the full benefit of 12 weeks of leave under whichever 
     method affords the greatest benefit to the employee. Under no 
     circumstances may a new method be implemented in order to 
     avoid the CAA's FMLA leave requirements.
       ``(2) [Reserved]
       ``(e) If an employing office fails to select one of the 
     options in paragraph (b) of this section for measuring the 
     12-month period for the leave entitlements described in 
     paragraph (a), the option that provides the most beneficial 
     outcome for the employee will be used. The employing office 
     may subsequently select an option only by providing the 60-
     day notice to all employees of the option the employing 
     office intends to implement. During the running of the 60-day 
     period any other employee who needs FMLA leave may use the 
     option providing the most beneficial outcome to that 
     employee. At the conclusion of the 60-day period the 
     employing office may implement the selected option.
       ``(f) An eligible employee's FMLA leave entitlement is 
     limited to a total of 26 workweeks of leave during a single 
     12-month period to care for a covered servicemember with a 
     serious injury or illness. An employing office shall 
     determine the single 12- month period in which the 26 weeks 
     of leave entitlement described in this paragraph occurs using 
     the 12-month period measured forward from the date an 
     employee's first FMLA leave to care for the covered 
     servicemember begins. See 825.127(e)(1).
       ``(g) During the single 12-month period described in 
     paragraph (f), an eligible employee's FMLA leave entitlement 
     is limited to a combined total of 26 workweeks of FMLA leave 
     for any qualifying reason. See 825.127(e)(3).
       ``(h) For purposes of determining the amount of leave used 
     by an employee, the fact that a holiday may occur within the 
     week taken as FMLA leave has no effect; the week is counted 
     as a week of FMLA leave. However, if an employee is using 
     FMLA leave in increments of less than one week, the holiday 
     will not count against the employee's FMLA entitlement unless 
     the employee was otherwise scheduled and expected to work 
     during the holiday. Similarly, if for some reason the 
     employing office's business activity has temporarily ceased 
     and employees generally are not expected to report for work 
     for one or more weeks (e.g., a school closing two weeks for 
     the Christmas/New Year holiday or the summer vacation or an 
     employing office closing the office for repairs), the days 
     the employing office's activities have ceased do not count 
     against the employee's FMLA leave entitlement. Methods for 
     determining an employee's 12-week leave entitlement are also 
     described in 825.205.
       ``(i)(1) If employing offices jointly employ an employee, 
     and if they designate a primary employing office pursuant to 
     825.106(c), the primary employing office may choose any one 
     of the alternatives in paragraph (b) of this section for 
     measuring the 12-month period, provided that the alternative 
     chosen is applied consistently and uniformly to all employees 
     of the primary employing office including the jointly 
     employed employee.
       ``(2) If employing offices fail to designate a primary 
     employing office pursuant to 825.106(c), an employee jointly 
     employed by the employing offices may, by so notifying one of 
     the employing offices, select that employing office to be the 
     primary employing office of the employee for purposes of the 
     application of paragraphs (d) and (e) of this section.
       ``(j) If, before beginning employment with an employing 
     office, an employee had been employed by another employing 
     office, the subsequent employing office may count against the 
     employee's FMLA leave entitlement FMLA leave taken from the 
     prior employing office, so long as the prior employing office 
     properly designated the leave as FMLA under these regulations 
     or other applicable requirements.

     ``Sec. 825.201 Leave to care for a parent

       ``(a) General rule. An eligible employee is entitled to 
     FMLA leave if needed to care for the employee's parent with a 
     serious health condition. Care for parents-in-law is not 
     covered by the FMLA. See 825.122(c) for definition of parent.
       ``(b) Same employing office limitation. Spouses who are 
     eligible for FMLA leave and are employed by the same covered 
     employing office may be limited to a combined total of 12 
     weeks of leave during any 12-month period if the leave is 
     taken to care for the employee's parent with a serious health 
     condition, for the birth of the employee's son or daughter or 
     to care for the child after the birth, or for placement of a 
     son or daughter with the employee for adoption or foster care 
     or to care for the child after placement. This limitation on 
     the total weeks of leave applies to leave taken for the 
     reasons specified as long as the spouses are employed by the 
     same employing office. It would apply, for example, even 
     though the spouses are employed at two different worksites of 
     an employing office. On the other hand, if one spouse is 
     ineligible for FMLA leave, the other spouse would be entitled 
     to a full 12 weeks of FMLA leave. Where the spouses both use 
     a portion of the total 12-week FMLA leave entitlement for 
     either the birth of a child, for placement for adoption or 
     foster care, or to care for a parent, the spouses would each 
     be entitled to the difference between the amount he or she 
     has taken individually and 12 weeks for FMLA leave for other 
     purposes. For example, if each spouse took six weeks of leave 
     to care for a parent, each could use an additional six weeks 
     due to his or her own serious health condition or to care for 
     a child with a serious health condition. See also 825.127(d).

     ``Sec. 825.202 Intermittent leave or reduced leave schedule

       ``(a) Definition. FMLA leave may be taken intermittently or 
     on a reduced leave schedule under certain circumstances. 
     Intermittent leave is FMLA leave taken in separate blocks of 
     time due to a single qualifying reason. A reduced leave 
     schedule is a leave schedule that reduces an employee's usual 
     number of working hours per workweek, or hours per workday. A 
     reduced leave schedule is a change in the employee's schedule 
     for a period of time, normally from full-time to part-time.
       ``(b) Medical necessity. For intermittent leave or leave on 
     a reduced leave schedule taken because of one's own serious 
     health condition, to care for a spouse, parent, son, or 
     daughter with a serious health condition, or to care for a 
     covered servicemember with a serious injury or illness, there 
     must be a medical need for leave and it must be that such 
     medical need can be best accommodated through an intermittent 
     or reduced leave schedule. The treatment regimen and other 
     information described in the certification of a serious 
     health condition and in the certification of a serious injury 
     or illness, if required by the employing office, addresses 
     the medical necessity of intermittent leave or leave on a 
     reduced leave schedule. See 825.306, 825.310. Leave may be 
     taken intermittently or on a reduced leave schedule when 
     medically necessary for planned and/or unanticipated medical 
     treatment of a serious health condition or of a covered 
     servicemember's serious injury or illness, or for recovery 
     from treatment or recovery from a serious health condition or 
     a covered servicemember's serious injury or illness. It may 
     also be taken to provide care or psychological comfort to a 
     covered family member with a serious health condition or a 
     covered servicemember with a serious injury or illness.
       ``(1) Intermittent leave may be taken for a serious health 
     condition of a spouse, parent, son, or daughter, for the 
     employee's own serious health condition, or a serious injury 
     or

[[Page H9764]]

     illness of a covered servicemember which requires treatment 
     by a health care provider periodically, rather than for one 
     continuous period of time, and may include leave of periods 
     from an hour or more to several weeks. Examples of 
     intermittent leave would include leave taken on an occasional 
     basis for medical appointments, or leave taken several days 
     at a time spread over a period of six months, such as for 
     chemotherapy. A pregnant employee may take leave 
     intermittently for prenatal examinations or for her own 
     condition, such as for periods of severe morning sickness. An 
     example of an employee taking leave on a reduced leave 
     schedule is an employee who is recovering from a serious 
     health condition and is not strong enough to work a full-time 
     schedule.
       ``(2) Intermittent or reduced schedule leave may be taken 
     for absences where the employee or family member is 
     incapacitated or unable to perform the essential functions of 
     the position because of a chronic serious health condition or 
     a serious injury or illness of a covered servicemember, even 
     if he or she does not receive treatment by a health care 
     provider. See 825.113 and 825.127.
       ``(c) Birth or placement. When leave is taken after the 
     birth of a healthy child or placement of a healthy child for 
     adoption or foster care, an employee may take leave 
     intermittently or on a reduced leave schedule only if the 
     employing office agrees. Such a schedule reduction might 
     occur, for example, where an employee, with the employing 
     office's agreement, works part-time after the birth of a 
     child, or takes leave in several segments. The employing 
     office's agreement is not required, however, for leave during 
     which the expectant mother has a serious health condition in 
     connection with the birth of her child or if the newborn 
     child has a serious health condition. See 825.204 for rules 
     governing transfer to an alternative position that better 
     accommodates intermittent leave. See also 825.120 (pregnancy) 
     and 825.121 (adoption and foster care).
       ``(d) Qualifying exigency. Leave due to a qualifying 
     exigency may be taken on an intermittent or reduced leave 
     schedule basis.

     ``Sec. 825.203 Scheduling of intermittent or reduced schedule 
       leave

       ``Eligible employees may take FMLA leave on an intermittent 
     or reduced schedule basis when medically necessary due to the 
     serious health condition of a covered family member or the 
     employee or the serious injury or illness of a covered 
     servicemember. See 825.202. Eligible employees may also take 
     FMLA leave on an intermittent or reduced schedule basis when 
     necessary because of a qualifying exigency. If an employee 
     needs leave intermittently or on a reduced leave schedule for 
     planned medical treatment, then the employee must make a 
     reasonable effort to schedule the treatment so as not to 
     disrupt unduly the employing office's operations.

     ``Sec. 825.204 Transfer of an employee to an alternative 
       position during intermittent leave or reduced schedule 
       leave

       ``(a) Transfer or reassignment. If an employee needs 
     intermittent leave or leave on a reduced leave schedule that 
     is foreseeable based on planned medical treatment for the 
     employee, a family member, or a covered servicemember, 
     including during a period of recovery from one's own serious 
     health condition, a serious health condition of a spouse, 
     parent, son, or daughter, or a serious injury or illness of a 
     covered servicemember, or if the employing office agrees to 
     permit intermittent or reduced schedule leave for the birth 
     of a child or for placement of a child for adoption or foster 
     care, the employing office may require the employee to 
     transfer temporarily, during the period the intermittent or 
     reduced leave schedule is required, to an available 
     alternative position for which the employee is qualified and 
     which better accommodates recurring periods of leave than 
     does the employee's regular position. See 825.601 for special 
     rules applicable to instructional employees of schools.
       ``(b) Compliance. Transfer to an alternative position may 
     require compliance with any applicable collective bargaining 
     agreement and Federal law (such as the Americans with 
     Disabilities Act, as made applicable by the CAA). Transfer to 
     an alternative position may include altering an existing job 
     to better accommodate the employee's need for intermittent or 
     reduced scheduled leave.
       ``(c) Equivalent pay and benefits. The alternative position 
     must have equivalent pay and benefits. An alternative 
     position for these purposes does not have to have equivalent 
     duties. The employing office may increase the pay and 
     benefits of an existing alternative position, so as to make 
     them equivalent to the pay and benefits of the employee's 
     regular job. The employing office may also transfer the 
     employee to a part-time job with the same hourly rate of pay 
     and benefits, provided the employee is not required to take 
     more leave than is medically necessary. For example, an 
     employee desiring to take leave in increments of four hours 
     per day could be transferred to a half-time job, or could 
     remain in the employee's same job on a part-time schedule, 
     paying the same hourly rate as the employee's previous job 
     and enjoying the same benefits. The employing office may not 
     eliminate benefits which otherwise would not be provided to 
     part-time employees; however, an employing office may 
     proportionately reduce benefits such as vacation leave where 
     an employing office's normal practice is to base such 
     benefits on the number of hours worked.
       ``(d) Employing office limitations. An employing office may 
     not transfer the employee to an alternative position in order 
     to discourage the employee from taking leave or otherwise 
     work a hardship on the employee. For example, a white collar 
     employee may not be assigned to perform laborer's work; an 
     employee working the day shift may not be reassigned to the 
     graveyard shift; an employee working in the headquarters 
     facility may not be reassigned to a branch a significant 
     distance away from the employee's normal job location. Any 
     such attempt on the part of the employing office to make such 
     a transfer will be held to be contrary to the prohibited acts 
     provisions of the FMLA, as made applicable by the CAA.
       ``(e) Reinstatement of employee. When an employee who is 
     taking leave intermittently or on a reduced leave schedule 
     and has been transferred to an alternative position no longer 
     needs to continue on leave and is able to return to full-time 
     work, the employee must be placed in the same or equivalent 
     job as the job he or she left when the leave commenced. An 
     employee may not be required to take more leave than 
     necessary to address the circumstance that precipitated the 
     need for leave.

     ``Sec. 825.205 Increments of fmla leave for intermittent or 
       reduced schedule leave

       ``(a) Minimum increment. (1) When an employee takes FMLA 
     leave on an intermittent or reduced leave schedule basis, the 
     employing office must account for the leave using an 
     increment no greater than the shortest period of time that 
     the employing office uses to account for use of other forms 
     of leave provided that it is not greater than one hour and 
     provided further that an employee's FMLA leave entitlement 
     may not be reduced by more than the amount of leave actually 
     taken. An employing office may not require an employee to 
     take more leave than is necessary to address the 
     circumstances that precipitated the need for the leave, 
     provided that the leave is counted using the shortest 
     increment of leave used to account for any other type of 
     leave. See also 825.205(a)(2) for the physical impossibility 
     exception, and 825.600 and 825.601 for special rules 
     applicable to employees of schools. If an employing office 
     uses different increments to account for different types of 
     leave, the employing office must account for FMLA leave in 
     the smallest increment used to account for any other type of 
     leave. For example, if an employing office accounts for the 
     use of annual leave in increments of one hour and the use of 
     sick leave in increments of one-half hour, then FMLA leave 
     use must be accounted for using increments no larger than 
     one-half hour. If an employing office accounts for use of 
     leave in varying increments at different times of the day or 
     shift, the employing office may also account for FMLA leave 
     in varying increments, provided that the increment used for 
     FMLA leave is no greater than the smallest increment used for 
     any other type of leave during the period in which the FMLA 
     leave is taken. If an employing office accounts for other 
     forms of leave use in increments greater than one hour, the 
     employing office must account for FMLA leave use in 
     increments no greater than one hour. An employing office may 
     account for FMLA leave in shorter increments than used for 
     other forms of leave. For example, an employing office that 
     accounts for other forms of leave in one hour increments may 
     account for FMLA leave in a shorter increment when the 
     employee arrives at work several minutes late, and the 
     employing office wants the employee to begin work 
     immediately. Such accounting for FMLA leave will not alter 
     the increment considered to be the shortest period used to 
     account for other forms of leave or the use of FMLA leave in 
     other circumstances. In all cases, employees may not be 
     charged FMLA leave for periods during which they are working.
       ``(2) Where it is physically impossible for an employee 
     using intermittent leave or working a reduced leave schedule 
     to commence or end work mid-way through a shift, such as 
     where a flight attendant or a railroad conductor is scheduled 
     to work aboard an airplane or train, or a laboratory employee 
     is unable to enter or leave a sealed `clean room' during a 
     certain period of time and no equivalent position is 
     available, the entire period that the employee is forced to 
     be absent is designated as FMLA leave and counts against the 
     employee's FMLA entitlement. The period of the physical 
     impossibility is limited to the period during which the 
     employing office is unable to permit the employee to work 
     prior to a period of FMLA leave or return the employee to the 
     same or equivalent position due to the physical impossibility 
     after a period of FMLA leave. See 825.214.
       ``(b) Calculation of leave. (1) When an employee takes 
     leave on an intermittent or reduced leave schedule, only the 
     amount of leave actually taken may be counted toward the 
     employee's leave entitlement. The actual workweek is the 
     basis of leave entitlement. Therefore, if an employee who 
     would otherwise work 40 hours a week takes off eight hours, 
     the employee would use one-fifth (1/5) of a week of FMLA 
     leave. Similarly, if a full-time employee who would otherwise 
     work eight-hour days works four-hour days under a reduced 
     leave schedule, the employee would use one half (1/2) week of 
     FMLA leave each week. Where an employee works a part-time 
     schedule or variable hours, the amount of FMLA leave that an 
     employee uses is determined on a pro rata or proportional 
     basis. If an employee who would otherwise work 30 hours per 
     week, but works only 20 hours a week under a reduced leave 
     schedule, the

[[Page H9765]]

     employee's 10 hours of leave would constitute one-third (1/3) 
     of a week of FMLA leave for each week the employee works the 
     reduced leave schedule. An employing office may convert these 
     fractions to their hourly equivalent so long as the 
     conversion equitably reflects the employee's total normally 
     scheduled hours. An employee does not accrue FMLA-protected 
     leave at any particular hourly rate. An eligible employee is 
     entitled to up to a total of 12 workweeks of leave, or 26 
     workweeks in the case of military caregiver leave, and the 
     total number of hours contained in those workweeks is 
     necessarily dependent on the specific hours the employee 
     would have worked but for the use of leave. See also 825.601 
     and 825.602 on special rules for schools.
       ``(2) If an employing office has made a permanent or long-
     term change in the employee's schedule (for reasons other 
     than FMLA, and prior to the notice of need for FMLA leave), 
     the hours worked under the new schedule are to be used for 
     making this calculation.
       ``(3) If an employee's schedule varies from week to week to 
     such an extent that an employing office is unable to 
     determine with any certainty how many hours the employee 
     would otherwise have worked (but for the taking of FMLA 
     leave), a weekly average of the hours worked over the 12 
     months prior to the beginning of the leave period (including 
     any hours for which the employee took leave of any type) 
     would be used for calculating the employee's leave 
     entitlement.
       ``(c) Overtime. If an employee would normally be required 
     to work overtime, but is unable to do so because of a FMLA-
     qualifying reason that limits the employee's ability to work 
     overtime, the hours which the employee would have been 
     required to work may be counted against the employee's FMLA 
     entitlement. In such a case, the employee is using 
     intermittent or reduced schedule leave. For example, if an 
     employee would normally be required to work for 48 hours in a 
     particular week, but due to a serious health condition the 
     employee is unable to work more than 40 hours that week, the 
     employee would utilize eight hours of FMLA-protected leave 
     out of the 48-hour workweek, or one-sixth (1/6) of a week of 
     FMLA leave. Voluntary overtime hours that an employee does 
     not work due to an FMLA-qualifying reason may not be counted 
     against the employee's FMLA leave entitlement.

     ``Sec. 825.206 Interaction with the FLSA, as made applicable 
       by the congressional accountability act

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

     ``Sec. 825.207 Substitution of paid leave, generally

       ``(a) Generally, FMLA leave is unpaid leave. However, under 
     the circumstances described in this section, the FMLA, as 
     made applicable by the CAA, permits an eligible employee to 
     choose to substitute accrued paid leave for unpaid FMLA 
     leave. Subject to 825.208, if an employee does not choose to 
     substitute accrued paid leave, the employing office may 
     require the employee to substitute accrued paid leave for 
     unpaid FMLA leave. The term substitute means that the paid 
     leave provided by the employing office, and accrued pursuant 
     to established policies of the employing office, will run 
     concurrently with the unpaid FMLA leave. Accordingly, the 
     employee receives pay pursuant to the employing office's 
     applicable paid leave policy during the period of otherwise 
     unpaid FMLA leave. An employee's ability to substitute 
     accrued paid leave is determined by the terms and conditions 
     of the employing office's normal leave policy. When an 
     employee chooses, or an employing office requires, 
     substitution of accrued paid leave, the employing office must 
     inform the employee that the employee must satisfy any 
     procedural requirements of the paid leave policy only in 
     connection with the receipt of such payment. See 825.300(c). 
     If an employee does not comply with the additional 
     requirements in an employing office's paid leave policy, the 
     employee is not entitled to substitute accrued paid leave, 
     but the employee remains entitled to take unpaid FMLA leave. 
     Employing offices may not discriminate against employees on 
     FMLA leave in the administration of their paid leave 
     policies.
       ``(b) If neither the employee nor the employing office 
     elects to substitute paid leave for unpaid FMLA leave under 
     the above conditions and circumstances, the employee will 
     remain entitled to all the paid leave which is earned or 
     accrued under the terms of the employing office's plan.
       ``(c) If an employee uses paid leave under circumstances 
     which do not qualify as FMLA leave, the leave will not count 
     against the employee's FMLA leave entitlement. For example, 
     paid sick leave used for a medical condition which is not a 
     serious health condition or serious injury or illness does 
     not count against the employee's FMLA leave entitlement.
       ``(d) Leave taken pursuant to a disability leave plan would 
     be considered FMLA leave for a serious health condition and 
     counted in the leave entitlement permitted under FMLA if it 
     meets the criteria set forth above in 825.112 through 
     825.115. In such cases, the employing office may designate 
     the leave as FMLA leave and count the leave against the 
     employee's FMLA leave entitlement. Because leave pursuant to 
     a disability benefit plan is not unpaid, the provision for 
     substitution of the employee's accrued paid leave is 
     inapplicable, and neither the employee nor the employing 
     office may require the substitution of paid leave. However, 
     employing offices and employees may agree to have paid leave 
     supplement the disability plan benefits, such as in the case 
     where a plan only provides replacement income for two-thirds 
     of an employee's salary.
       ``(e) The FMLA, as made applicable by the CAA, provides 
     that a serious health condition may result from injury to the 
     employee on or off the job. If the employing office 
     designates the leave as FMLA leave in accordance with 
     825.300(d), the leave counts against the employee's FMLA 
     leave entitlement. Because the workers' compensation absence 
     is not unpaid, the provision for substitution of the 
     employee's accrued paid leave is not applicable, and neither 
     the employee nor the employing office may require the 
     substitution of paid leave. However, employing offices and 
     employees may agree, to have paid leave supplement workers' 
     compensation benefits, such as in the case where workers' 
     compensation only provides replacement income for two-thirds 
     of an employee's salary. If the health care provider treating 
     the employee for the workers' compensation injury certifies 
     the employee is able to return to a light duty job but is 
     unable to return to the same or equivalent job, the employee 
     may decline the employing office's offer of a light duty job. 
     As a result, the employee may lose workers' compensation 
     payments, but is entitled to remain on unpaid FMLA leave 
     until the employee's FMLA leave entitlement is exhausted. As 
     of the date workers' compensation benefits cease, the 
     substitution provision becomes applicable and either the 
     employee may elect or the employing office

[[Page H9766]]

     may require the use of accrued paid leave. See also 
     825.210(f), 825.216(d), 825.220(d), 825.307(a) and 825.702 
     (d)(1) and (2) regarding the relationship between workers' 
     compensation absences and FMLA leave.
       ``(f) Under the FLSA, as made applicable by the CAA, an 
     employing office always has the right to cash out an 
     employee's compensatory time or to require the employee to 
     use the time. Therefore, if an employee requests and is 
     permitted to use accrued compensatory time to receive pay for 
     time taken off for an FMLA reason, or if the employing office 
     requires such use pursuant to the FLSA, the time taken may be 
     counted against the employee's FMLA leave entitlement.

     ``Sec. 825.208 Substitution of paid leave--special rule for 
       paid parental leave

       ``(a) This section applies to births or placements 
     occurring on or after October 1, 2020.
       ``(b) This section provides the basis for determining the 
     periods of unpaid leave for which paid parental leave or 
     accrued paid leave may be substituted in connection with:
       ``(1) The birth of a son or daughter, and to care for the 
     newborn child (See 825.120); or
       ``(2) The placement of a son or daughter with the employee 
     for adoption or foster care and the care of such son or 
     daughter (See 825.121);
       ``(c) Leave connected to birth or placement. For unpaid 
     leave described in paragraph (b) of this section, an employee 
     may elect to substitute--
       ``(1) Up to 12 workweeks of paid parental leave in 
     connection with the occurrence of a birth or placement, and
       ``(2) Any additional paid annual, vacation, personal, 
     family, medical, or sick leave provided by the employing 
     office to such employee.
       ``(d) Leave entitlement. Since an employee may use only 12 
     weeks of unpaid FMLA leave in any 12-month period under 
     825.200(a), any use of unpaid FMLA leave not associated with 
     paid parental leave may affect an employee's ability to use 
     the full 12 weeks of paid parental leave within a single 12-
     month period. The specific amount of paid parental leave 
     available will depend on when the employee uses various types 
     of unpaid FMLA leave relative to any 12-month period 
     established under 825.200(b).
       ``(e) Employee entitlement to substitute. (1) An employee 
     is entitled to substitute paid leave for leave without pay as 
     provided in paragraph (c) of this section.
       ``(2) An employing office may not require that an employee 
     first use all or any portion of the leave described in 
     subparagraph (c)(2) of this section before being allowed to 
     use the leave described in subparagraph (c)(1) of this 
     section.
       ``(3) An employing office may not require an employee to 
     substitute paid leave for leave without pay as described in 
     subparagraph (c)(2) of this section.
       ``(4) An employee may request to use annual, vacation, 
     personal, family, medical, or sick leave for the reasons 
     described in paragraph (b) of this section without invoking 
     family and medical leave, and, in that case, the employing 
     office exercises its normal authority with respect to 
     approving or disapproving the timing of when the leave may be 
     used. If the employing office grants the leave request, it 
     must designate whether any leave granted is FMLA leave, in 
     accordance with sections 825.300 and 825.301.
       ``(f) Notification by employee and retroactive 
     substitution. (1) An employee must notify the employing 
     office of the employee's election to substitute paid leave 
     for leave without pay under this section prior to the date 
     such paid leave commences (i.e., no retroactive 
     substitution), except as provided in paragraphs (f)(2) and 
     (f)(3) of this section, and provided such retroactive 
     substitution does not violate any applicable law or 
     regulation.
       ``(2) An employee may retroactively substitute paid leave 
     for leave without pay as permitted in paragraph (c) of this 
     section, if the substitution is made in conjunction with the 
     retroactive granting of leave without pay.
       ``(3) An employee may retroactively substitute transferred 
     (donated) annual leave for leave without pay granted under 
     this subpart.
       ``(g) Pay during leave. The pay an employee receives when 
     using paid parental leave shall be the same pay the employee 
     would receive if the employee were using annual leave.
       ``(h) Treatment of unused leave. If an employee has any 
     unused balance of paid parental leave that remains at the end 
     of the 12-month period following the birth or placement 
     involved, the entitlement to the unused leave elapses at that 
     time. No payment may be made for unused paid parental leave 
     that has expired. Paid parental leave may not be considered 
     annual leave for purposes of making a lump-sum payment for 
     annual leave or for any other purpose. The forfeiture of any 
     unused balance of paid parental leave does not impact an 
     employee's ability to use unpaid FMLA leave for other 
     qualifying reasons, if eligible pursuant to 825.110, 825.112 
     and 825.200.
       ``(i) Employing office responsibilities. An employing 
     office that has employees covered by this subpart is 
     responsible for the proper administration of 825.208, 
     including the responsibility of informing employees of their 
     entitlements and obligations.
       ``(j) Library of Congress. The OCWR will defer to 
     supplemental regulations on paid parental leave issued by the 
     Library of Congress pursuant to the authority in section 107 
     of the Family and Medical Leave Act of 1993, provided those 
     supplemental regulations are consistent with the regulations 
     in this subpart.
       ``(k) Work obligation. Paid parental leave under this 
     subpart shall apply without regard to:
       ``(1) the limitations in subparagraphs (E), (F), or (G) of 
     section 6382(d)(2) of title 5, United States Code (requiring 
     employees of executive branch agencies to agree in writing to 
     work for the executive branch agency for at least 12 months 
     after returning from leave); or
       ``(2) the limitations in 825.213 (permitting employing 
     offices to recover an amount equal to the total amount of 
     government contributions for maintaining such employee's 
     health coverage if the employee fails to return from leave).
       ``(l) Cases of employee incapacitation. (1) If an employing 
     office determines that an otherwise eligible employee who 
     could have made an election for a past leave period to 
     substitute paid parental leave (as provided in paragraph (c) 
     of this section) was physically or mentally incapable of 
     doing so during that past period, the employee may, within 5 
     workdays of the employee's return to duty status, make an 
     election to substitute paid parental leave for applicable 
     unpaid FMLA leave under paragraph (c) of this section on a 
     retroactive basis, provided such retroactive substitution 
     does not violate any applicable law or regulation. Such a 
     retroactive election shall be effective on the date that such 
     an election would have been effective if the employee had not 
     been incapacitated at the time.
       ``(2) If an employing office learns that an otherwise 
     eligible employee is physically or mentally incapable of 
     making an election to substitute paid parental leave (as 
     provided in 825.207), the employing office must, upon the 
     request of a personal representative of the employee, provide 
     conditional approval of substitution of paid parental leave 
     for applicable unpaid FMLA leave on a prospective basis. The 
     conditional approval is based on the presumption that the 
     employee would have elected to substitute paid parental leave 
     for the applicable unpaid FMLA leave. An employee may, within 
     5 workdays of the employee's return to duty status, request 
     to substitute other leave for the paid parental leave.
       ``(m) Cases of multiple children born or placed in the same 
     time period.  (1) If an employee has multiple children born 
     or placed on the same day, the multiple-child birth/placement 
     event is considered to be a single event that triggers a 
     single entitlement of up to 12 weeks of paid parental leave 
     under paragraph (d) of this section.
       ``(2) If an employee has one or more children born or 
     placed during the 12-month period following the date of an 
     earlier birth or placement of a child of the employee, the 
     provisions of this subpart shall be independently 
     administered for each birth or placement event.

     ``Sec. 825.209 Maintenance of employee benefits

       ``(a) During any FMLA leave, an employing office must 
     maintain the employee's coverage under the Federal Employees 
     Health Benefits Program or any group health plan (as defined 
     in the Internal Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) 
     on the same conditions as coverage would have been provided 
     if the employee had been continuously employed during the 
     entire leave period. All employing offices are subject to the 
     requirements of the FMLA, as made applicable by the CAA, to 
     maintain health coverage. The definition of group health plan 
     is set forth in 825.102. For purposes of FMLA, the term group 
     health plan shall not include an insurance program providing 
     health coverage under which employees purchase individual 
     policies from insurers provided that:
       ``(1) No contributions are made by the employing office;
       ``(2) Participation in the program is completely voluntary 
     for employees;
       ``(3) The sole functions of the employing office with 
     respect to the program are, without endorsing the program, to 
     permit the insurer to publicize the program to employees, to 
     collect premiums through payroll deductions and to remit them 
     to the insurer;
       ``(4) The employing office receives no consideration in the 
     form of cash or otherwise in connection with the program, 
     other than reasonable compensation, excluding any profit, for 
     administrative services actually rendered in connection with 
     payroll deduction; and
       ``(5) The premium charged with respect to such coverage 
     does not increase in the event the employment relationship 
     terminates.
       ``(b) The same group health plan benefits provided to an 
     employee prior to taking FMLA leave must be maintained during 
     the FMLA leave. For example, if family member coverage is 
     provided to an employee, family member coverage must be 
     maintained during the FMLA leave. Similarly, benefit coverage 
     during FMLA leave for medical care, surgical care, hospital 
     care, dental care, eye care, mental health counseling, 
     substance abuse treatment, etc., must be maintained during 
     leave if provided in an employing office's group health plan, 
     including a supplement to a group health plan, whether or not 
     provided through a flexible spending account or other 
     component of a cafeteria plan.
       ``(c) If an employing office provides a new health plan or 
     benefits or changes health benefits or plans while an 
     employee is on FMLA leave, the employee is entitled to the 
     new or changed plan/benefits to the same extent as if the 
     employee were not on leave.

[[Page H9767]]

     For example, if an employing office changes a group health 
     plan so that dental care becomes covered under the plan, an 
     employee on FMLA leave must be given the same opportunity as 
     other employees to receive (or obtain) the dental care 
     coverage. Any other plan changes (e.g., in coverage, 
     premiums, deductibles, etc.) which apply to all employees of 
     the workforce would also apply to an employee on FMLA leave.
       ``(d) Notice of any opportunity to change plans or benefits 
     must also be given to an employee on FMLA leave. If the group 
     health plan permits an employee to change from single to 
     family coverage upon the birth of a child or otherwise add 
     new family members, such a change in benefits must be made 
     available while an employee is on FMLA leave. If the employee 
     requests the changed coverage it must be provided by the 
     employing office.
       ``(e) An employee may choose not to retain group health 
     plan coverage during FMLA leave. However, when an employee 
     returns from leave, the employee is entitled to be reinstated 
     on the same terms as prior to taking the leave, including 
     family or dependent coverages, without any qualifying period, 
     physical examination, exclusion of pre-existing conditions, 
     etc. See 825.212(c).
       ``(f) Except as required by the Consolidated Omnibus Budget 
     Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, 
     whichever is applicable, and for key employees (as discussed 
     below), an employing office's obligation to maintain health 
     benefits during leave (and to restore the employee to the 
     same or equivalent employment) under FMLA ceases if and when 
     the employment relationship would have terminated if the 
     employee had not taken FMLA leave (e.g., if the employee's 
     position is eliminated as part of a nondiscriminatory 
     reduction in force and the employee would not have been 
     transferred to another position); an employee informs the 
     employing office of his or her intent not to return from 
     leave (including before starting the leave if the employing 
     office is so informed before the leave starts); or the 
     employee fails to return from leave or continues on leave 
     after exhausting his or her FMLA leave entitlement in the 12-
     month period.
       ``(g) If a key employee (See 825.218) does not return from 
     leave when notified by the employing office that substantial 
     or grievous economic injury will result from his or her 
     reinstatement, the employee's entitlement to group health 
     plan benefits continues unless and until the employee advises 
     the employing office that the employee does not desire 
     restoration to employment at the end of the leave period, or 
     the FMLA leave entitlement is exhausted, or reinstatement is 
     actually denied.
       ``(h) An employee's entitlement to benefits other than 
     group health benefits during a period of FMLA leave (e.g., 
     holiday pay) is to be determined by the employing office's 
     established policy for providing such benefits when the 
     employee is on other forms of leave (paid or unpaid, as 
     appropriate).

     ``Sec. 825.210 Employee payment of group health benefit 
       premiums

       ``(a) Group health plan benefits must be maintained on the 
     same basis as coverage would have been provided if the 
     employee had been continuously employed during the FMLA leave 
     period. Therefore, any share of group health plan premiums 
     which had been paid by the employee prior to FMLA leave must 
     continue to be paid by the employee during the FMLA leave 
     period. If premiums are raised or lowered, the employee would 
     be required to pay the new premium rates. Maintenance of 
     health insurance policies which are not a part of the 
     employing office's group health plan, as described in 
     825.209(a), are the sole responsibility of the employee. The 
     employee and the insurer should make necessary arrangements 
     for payment of premiums during periods of unpaid FMLA leave.
       ``(b) If the FMLA leave is substituted paid leave, the 
     employee's share of premiums must be paid by the method 
     normally used during any paid leave, presumably as a payroll 
     deduction.
       ``(c) If FMLA leave is unpaid, the employing office has a 
     number of options for obtaining payment from the employee. 
     The employing office may require that payment be made to the 
     employing office or to the insurance carrier, but no 
     additional charge may be added to the employee's premium 
     payment for administrative expenses. The employing office may 
     require employees to pay their share of premium payments in 
     any of the following ways:
       ``(1) Payment would be due at the same time as it would be 
     made if by payroll deduction;
       ``(2) Payment would be due on the same schedule as payments 
     are made under COBRA or 5 U.S.C. 8905a, whichever is 
     applicable;
       ``(3) Payment would be prepaid pursuant to a cafeteria plan 
     at the employee's option;
       ``(4) The employing office's existing rules for payment by 
     employees on leave without pay would be followed, provided 
     that such rules do not require prepayment (i.e., prior to the 
     commencement of the leave) of the premiums that will become 
     due during a period of unpaid FMLA leave or payment of higher 
     premiums than if the employee had continued to work instead 
     of taking leave; or
       ``(5) Another system voluntarily agreed to between the 
     employing office and the employee, which may include 
     prepayment of premiums (e.g., through increased payroll 
     deductions when the need for the FMLA leave is foreseeable).
       ``(d) The employing office must provide the employee with 
     advance written notice of the terms and conditions under 
     which these payments must be made. See 825.300(c).
       ``(e) An employing office may not require more of an 
     employee using unpaid FMLA leave than the employing office 
     requires of other employees on leave without pay.
       ``(f) An employee who is receiving payments as a result of 
     a workers' compensation injury must make arrangements with 
     the employing office for payment of group health plan 
     benefits when simultaneously taking FMLA leave. See 
     825.207(e).

     ``Sec. 825.211 Maintenance of benefits under multi-employer 
       health plans

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

     ``Sec. 825.212 Employee failure to pay health plan premium 
       payments

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

[[Page H9768]]

  


     ``Sec. 825.213 Employing office recovery of benefit costs

       ``(a) In addition to the circumstances discussed in 
     825.212(b), and subject to the exceptions provided in 
     825.208(k), an employing office may recover its share of 
     health plan premiums during a period of unpaid FMLA leave 
     from an employee if the employee fails to return to work 
     after the employee's FMLA leave entitlement has been 
     exhausted or expires, unless the reason the employee does not 
     return is due to:
       ``(1) The continuation, recurrence, or onset of either a 
     serious health condition of the employee or the employee's 
     family member, or a serious injury or illness of a covered 
     servicemember, which would otherwise entitle the employee to 
     leave under FMLA; or
       ``(2) Other circumstances beyond the employee's control. 
     Examples of other circumstances beyond the employee's control 
     are necessarily broad. They include such situations as where 
     a parent chooses to stay home with a newborn child who has a 
     serious health condition; an employee's spouse is 
     unexpectedly transferred to a job location more than 75 miles 
     from the employee's worksite; a relative or individual other 
     than a covered family member has a serious health condition 
     and the employee is needed to provide care; the employee is 
     laid off while on leave; or, the employee is a key employee 
     who decides not to return to work upon being notified of the 
     employing office's intention to deny restoration because of 
     substantial and grievous economic injury to the employing 
     office's operations and is not reinstated by the employing 
     office. Other circumstances beyond the employee's control 
     would not include a situation where an employee desires to 
     remain with a parent in a distant city even though the parent 
     no longer requires the employee's care, or a parent chooses 
     not to return to work to stay home with a well, newborn 
     child.
       ``(3) When an employee fails to return to work because of 
     the continuation, recurrence, or onset of either a serious 
     health condition of the employee or employee's family member, 
     or a serious injury or illness of a covered servicemember, 
     thereby precluding the employing office from recovering its 
     (share of) health benefit premium payments made on the 
     employee's behalf during a period of unpaid FMLA leave, the 
     employing office may require medical certification of the 
     employee's or the family member's serious health condition or 
     the covered servicemember's serious injury or illness. Such 
     certification is not required unless requested by the 
     employing office. The cost of the certification shall be 
     borne by the employee, and the employee is not entitled to be 
     paid for the time or travel costs spent in acquiring the 
     certification. The employee is required to provide medical 
     certification in a timely manner which, for purposes of this 
     section, is within 30 days from the date of the employing 
     office's request. For purposes of medical certification, the 
     employee may use the optional forms developed for this 
     purpose. See 825.306(b), 825.310(c)-(d) and Forms A, B, and 
     F. If the employing office requests medical certification and 
     the employee does not provide such certification in a timely 
     manner (within 30 days), or the reason for not returning to 
     work does not meet the test of other circumstances beyond the 
     employee's control, the employing office may recover 100 
     percent of the health benefit premiums it paid during the 
     period of unpaid FMLA leave.
       ``(b) Under some circumstances an employing office may 
     elect to maintain other benefits, e.g., life insurance, 
     disability insurance, etc., by paying the employee's (share 
     of) premiums during periods of unpaid FMLA leave. For 
     example, to ensure the employing office can meet its 
     responsibilities to provide equivalent benefits to the 
     employee upon return from unpaid FMLA leave, it may be 
     necessary that premiums be paid continuously to avoid a lapse 
     of coverage. If the employing office elects to maintain such 
     benefits during the leave, at the conclusion of leave, the 
     employing office is entitled to recover only the costs 
     incurred for paying the employee's share of any premiums 
     whether or not the employee returns to work.
       ``(c) An employee who returns to work for at least 30 
     calendar days is considered to have returned to work. An 
     employee who transfers directly from taking FMLA leave to 
     retirement, or who retires during the first 30 days after the 
     employee returns to work, is deemed to have returned to work.
       ``(d) When an employee elects or an employing office 
     requires paid leave to be substituted for FMLA leave, the 
     employing office may not recover its (share of) health 
     insurance or other non-health benefit premiums for any period 
     of FMLA leave covered by paid leave. Because paid leave 
     provided under a plan covering temporary disabilities 
     (including workers' compensation) is not unpaid, recovery of 
     health insurance premiums does not apply to such paid leave.
       ``(e) The amount that self-insured employing offices may 
     recover is limited to only the employing office's share of 
     allowable premiums as would be calculated under COBRA, 
     excluding the two percent fee for administrative costs.
       ``(f) When an employee fails to return to work, any health 
     and non-health benefit premiums which this section of the 
     regulations permits an employing office to recover are a debt 
     owed by the non-returning employee to the employing office. 
     The existence of this debt caused by the employee's failure 
     to return to work does not alter the employing office's 
     responsibilities for health benefit coverage and, under a 
     self-insurance plan, payment of claims incurred during the 
     period of FMLA leave. To the extent recovery is allowed, the 
     employing office may recover the costs through deduction from 
     any sums due to the employee (e.g., unpaid wages, vacation 
     pay, etc.), provided such deductions do not otherwise violate 
     applicable wage payment or other laws. Alternatively, the 
     employing office may initiate legal action against the 
     employee to recover such costs.

     ``Sec. 825.214 Employee right to reinstatement

       ``General Rule. On return from FMLA leave, an employee is 
     entitled to be returned to the same position the employee 
     held when leave commenced, or to an equivalent position with 
     equivalent benefits, pay, and other terms and conditions of 
     employment. An employee is entitled to such reinstatement 
     even if the employee has been replaced or his or her position 
     has been restructured to accommodate the employee's absence. 
     See also 825.106(e) for the obligations of employing offices 
     that are joint employers.

     ``Sec. 825.215 Equivalent position

       ``(a) Equivalent position. An equivalent position is one 
     that is virtually identical to the employee's former position 
     in terms of pay, benefits, and working conditions, including 
     privileges, prerequisites, and status. It must involve the 
     same or substantially similar duties and responsibilities, 
     which must entail substantially equivalent skill, effort, 
     responsibility, and authority.
       ``(b) Conditions to qualify. If an employee is no longer 
     qualified for the position because of the employee's 
     inability to attend a necessary course, renew a license, 
     etc., as a result of the leave, the employee shall be given a 
     reasonable opportunity to fulfill those conditions upon 
     return to work.
       ``(c) Equivalent Pay. (1) An employee is entitled to any 
     unconditional pay increases which may have occurred during 
     the FMLA leave period, such as cost of living increases. Pay 
     increases conditioned upon seniority, length of service, or 
     work performed must be granted in accordance with the 
     employing office's policy or practice with respect to other 
     employees on an equivalent leave status for a reason that 
     does not qualify as FMLA leave. An employee is entitled to be 
     restored to a position with the same or equivalent pay 
     premiums, such as a shift differential. If an employee 
     departed from a position averaging ten hours of overtime (and 
     corresponding overtime pay) each week, an employee is 
     ordinarily entitled to such a position on return from FMLA 
     leave.
       ``(2) Equivalent pay includes any bonus or payment, whether 
     it is discretionary or non-discretionary, made to employees 
     consistent with the provisions of paragraph (c)(1) of this 
     section. However, if a bonus or other payment is based on the 
     achievement of a specified goal such as hours worked, 
     products sold or perfect attendance, and the employee has not 
     met the goal due to FMLA leave, then the payment may be 
     denied, unless otherwise paid to employees on an equivalent 
     leave status for a reason that does not qualify as FMLA 
     leave. For example, if an employee who used paid vacation 
     leave for a non-FMLA purpose would receive the payment, then 
     the employee who used paid vacation leave for an FMLA-
     protected purpose also must receive the payment.
       ``(d) Equivalent benefits. Benefits include all benefits 
     provided or made available to employees by an employing 
     office, including group life insurance, health insurance, 
     disability insurance, sick leave, annual leave, educational 
     benefits, and pensions, regardless of whether such benefits 
     are provided by a practice or written policy of an employing 
     office through an employee benefit plan.
       ``(1) At the end of an employee's FMLA leave, benefits must 
     be resumed in the same manner and at the same levels as 
     provided when the leave began, and subject to any changes in 
     benefit levels that may have taken place during the period of 
     FMLA leave affecting the entire work force, unless otherwise 
     elected by the employee. Upon return from FMLA leave, an 
     employee cannot be required to requalify for any benefits the 
     employee enjoyed before FMLA leave began (including family or 
     dependent coverages). For example, if an employee was covered 
     by a life insurance policy before taking leave but is not 
     covered or coverage lapses during the period of unpaid FMLA 
     leave, the employee cannot be required to meet any 
     qualifications, such as taking a physical examination, in 
     order to requalify for life insurance upon return from leave. 
     Accordingly, some employing offices may find it necessary to 
     modify life insurance and other benefits programs in order to 
     restore employees to equivalent benefits upon return from 
     FMLA leave, make arrangements for continued payment of costs 
     to maintain such benefits during unpaid FMLA leave, or pay 
     these costs subject to recovery from the employee on return 
     from leave. See 825.213(b).
       ``(2) An employee may, but is not entitled to, accrue any 
     additional benefits or seniority during unpaid FMLA leave. 
     Benefits accrued at the time leave began, however, (e.g., 
     paid vacation, sick or personal leave to the extent not 
     substituted for FMLA leave) must be available to an employee 
     upon return from leave.
       ``(3) If, while on unpaid FMLA leave, an employee desires 
     to continue life insurance, disability insurance, or other 
     types of benefits for which he or she typically pays, the 
     employing office is required to follow established policies 
     or practices for continuing such benefits for other instances 
     of leave without pay. If the employing office has no

[[Page H9769]]

     established policy, the employee and the employing office are 
     encouraged to agree upon arrangements before FMLA leave 
     begins.
       ``(4) With respect to pension and other retirement plans, 
     any period of unpaid FMLA leave shall not be treated as or 
     counted toward a break in service for purposes of vesting and 
     eligibility to participate. Also, if the plan requires an 
     employee to be employed on a specific date in order to be 
     credited with a year of service for vesting, contributions or 
     participation purposes, an employee on unpaid FMLA leave on 
     that date shall be deemed to have been employed on that date. 
     However, unpaid FMLA leave periods need not be treated as 
     credited service for purposes of benefit accrual, vesting and 
     eligibility to participate.
       ``(5) Employees on unpaid FMLA leave are to be treated as 
     if they continued to work for purposes of changes to benefit 
     plans. They are entitled to changes in benefits plans, except 
     those which may be dependent upon seniority or accrual during 
     the leave period, immediately upon return from leave or to 
     the same extent they would have qualified if no leave had 
     been taken. For example if the benefit plan is predicated on 
     a pre-established number of hours worked each year and the 
     employee does not have sufficient hours as a result of taking 
     unpaid FMLA leave, the benefit is lost. (In this regard, 
     825.209 addresses health benefits.)
       ``(e) Equivalent terms and conditions of employment. An 
     equivalent position must have substantially similar duties, 
     conditions, responsibilities, privileges, and status as the 
     employee's original position.
       ``(1) The employee must be reinstated to the same or a 
     geographically proximate worksite (i.e., one that does not 
     involve a significant increase in commuting time or distance) 
     from where the employee had previously been employed. If the 
     employee's original worksite has been closed, the employee is 
     entitled to the same rights as if the employee had not been 
     on leave when the worksite closed. For example, if an 
     employing office transfers all employees from a closed 
     worksite to a new worksite in a different city, the employee 
     on leave is also entitled to transfer under the same 
     conditions as if he or she had continued to be employed.
       ``(2) The employee is ordinarily entitled to return to the 
     same shift or the same or an equivalent work schedule.
       ``(3) The employee must have the same or an equivalent 
     opportunity for bonuses, and other similar discretionary and 
     non-discretionary payments.
       ``(4) FMLA does not prohibit an employing office from 
     accommodating an employee's request to be restored to a 
     different shift, schedule, or position which better suits the 
     employee's personal needs on return from leave, or to offer a 
     promotion to a better position. However, an employee cannot 
     be induced by the employing office to accept a different 
     position against the employee's wishes.
       ``(f) De minimis exception. The requirement that an 
     employee be restored to the same or equivalent job with the 
     same or equivalent pay, benefits, and terms and conditions of 
     employment does not extend to de minimis, intangible, or 
     unmeasurable aspects of the job.

     ``Sec. 825.216 Limitations on an employee's right to 
       reinstatement

       ``(a) An employee has no greater right to reinstatement or 
     to other benefits and conditions of employment than if the 
     employee had been continuously employed during the FMLA leave 
     period. An employing office must be able to show that an 
     employee would not otherwise have been employed at the time 
     reinstatement is requested in order to deny restoration to 
     employment. For example:
       ``(1) If an employee is laid off during the course of 
     taking FMLA leave and employment is terminated, the employing 
     office's responsibility to continue FMLA leave, maintain 
     group health plan benefits and restore the employee ceases at 
     the time the employee is laid off, provided the employing 
     office has no continuing obligations under a collective 
     bargaining agreement or otherwise. An employing office would 
     have the burden of proving that an employee would have been 
     laid off during the FMLA leave period and, therefore, would 
     not be entitled to restoration. Restoration to a job slated 
     for lay-off when the employee's original position is not 
     would not meet the requirements of an equivalent position.
       ``(2) If a shift has been eliminated, or overtime has been 
     decreased, an employee would not be entitled to return to 
     work that shift or the original overtime hours upon 
     restoration. However, if a position on, for example, a night 
     shift has been filled by another employee, the employee is 
     entitled to return to the same shift on which employed before 
     taking FMLA leave.
       ``(3) If an employee was hired for a specific term or only 
     to perform work on a discrete project, the employing office 
     has no obligation to restore the employee if the employment 
     term or project is over and the employing office would not 
     otherwise have continued to employ the employee. On the other 
     hand, if an employee was hired to perform work for one 
     employing office for a specific time period, and after that 
     time period has ended, the work was assigned to another 
     employing office, the successor employing office may be 
     required to restore the employee if it is a successor 
     employing office.
       ``(b) In addition to the circumstances explained above, an 
     employing office may deny job restoration to salaried 
     eligible employees (key employees, as defined in 825.217(c)), 
     if such denial is necessary to prevent substantial and 
     grievous economic injury to the operations of the employing 
     office; or may delay restoration to an employee who fails to 
     provide a fitness-for-duty certificate to return to work 
     under the conditions described in 825.312.
       ``(c) If the employee is unable to perform an essential 
     function of the position because of a physical or mental 
     condition, including the continuation of a serious health 
     condition or an injury or illness also covered by workers' 
     compensation, the employee has no right to restoration to 
     another position under the FMLA. The employing office's 
     obligations may, however, be governed by the Americans with 
     Disabilities Act (ADA), as amended and as made applicable by 
     the CAA. See 825.702.
       ``(d) An employee who fraudulently obtains FMLA leave from 
     an employing office is not protected by the job restoration 
     or maintenance of health benefits provisions of the FMLA, as 
     made applicable by the CAA.
       ``(e) If the employing office has a uniformly-applied 
     policy governing outside or supplemental employment, such a 
     policy may continue to apply to an employee while on FMLA 
     leave. An employing office which does not have such a policy 
     may not deny benefits to which an employee is entitled under 
     FMLA, as made applicable by the CAA, on this basis unless the 
     FMLA leave was fraudulently obtained as in paragraph (d) of 
     this section.

     ``Sec. 825.217 Key employee, general rule

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

     ``Sec. 825.218 Substantial and grievous economic injury

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

     ``Sec. 825.219 Rights of a key employee

       ``(a) An employing office that believes that reinstatement 
     may be denied to a key employee, must give written notice to 
     the employee at the time the employee gives notice of the 
     need for FMLA leave (or when FMLA leave commences, if 
     earlier) that he or she qualifies as a key employee. At the 
     same time, the employing office must also fully inform the 
     employee of the potential consequences with respect to 
     reinstatement and maintenance of health benefits if the 
     employing office should determine that substantial and 
     grievous economic injury to the employing office's operations 
     will result if the employee is reinstated from FMLA leave. If 
     such notice cannot be given immediately because of the need 
     to determine

[[Page H9770]]

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

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

       ``(a) The FMLA, as made applicable by the CAA, prohibits 
     interference with an employee's rights under the law, and 
     with legal proceedings or inquiries relating to an employee's 
     rights. More specifically, the law contains the following 
     employee protections:
       ``(1) An employing office is prohibited from interfering 
     with, restraining, or denying the exercise of (or attempts to 
     exercise) any rights provided by the FMLA, as made applicable 
     by the CAA.
       ``(2) An employing office is prohibited from discharging or 
     in any other way discriminating against any covered employee 
     (whether or not an eligible employee) for opposing or 
     complaining about any unlawful practice under the FMLA, as 
     made applicable by the CAA.
       ``(3) All employing offices are prohibited from discharging 
     or in any other way discriminating against any covered 
     employee (whether or not an eligible employee) because that 
     covered employee has--
       ``(A) Filed any claim, or has instituted (or caused to be 
     instituted) any proceeding under or related to the FMLA, as 
     made applicable by the CAA;
       ``(B) Given, or is about to give, any information in 
     connection with an inquiry or proceeding relating to a right 
     under the FMLA, as made applicable by the CAA;
       ``(C) Testified, or is about to testify, in any inquiry or 
     proceeding relating to a right under the FMLA, as made 
     applicable by the CAA.
       ``(b) Any violations of the FMLA, as made applicable by the 
     CAA, or of these regulations constitute interfering with, 
     restraining, or denying the exercise of rights provided by 
     the FMLA, as made applicable by the CAA. An employing office 
     may be liable for compensation and benefits lost by reason of 
     the violation, for other actual monetary losses sustained as 
     a direct result of the violation, and for appropriate 
     equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See 825.400(b). Interfering with the exercise 
     of an employee's rights would include, for example, not only 
     refusing to authorize FMLA leave, but discouraging an 
     employee from using such leave. It would also include 
     manipulation by a covered employing office to avoid 
     responsibilities under FMLA, for example:
       ``(1) [Reserved]
       ``(2) Changing the essential functions of the job in order 
     to preclude the taking of leave; or
       ``(3) Reducing hours available to work in order to avoid 
     employee eligibility.
       ``(c) The FMLA's prohibition against interference prohibits 
     an employing office from discriminating or retaliating 
     against an employee or prospective employee for having 
     exercised or attempted to exercise FMLA rights. For example, 
     if an employee on leave without pay would otherwise be 
     entitled to full benefits (other than health benefits), the 
     same benefits would be required to be provided to an employee 
     on unpaid FMLA leave. By the same token, employing offices 
     cannot use the taking of FMLA leave as a negative factor in 
     employment actions, such as hiring, promotions or 
     disciplinary actions; nor can FMLA leave be counted under no 
     fault attendance policies. See 825.215.
       ``(d) Employees cannot waive, nor may employing offices 
     induce employees to waive, their rights under FMLA. For 
     example, employees (or their collective bargaining 
     representatives) cannot trade off the right to take FMLA 
     leave against some other benefit offered by the employing 
     office. Except for settlement agreements covered by 1414 and/
     or 1415 of the Congressional Accountability Act, this does 
     not prevent the settlement or release of FMLA claims by 
     employees based on past employing office conduct without the 
     approval of the Office of Congressional Workplace Rights or a 
     court. Nor does it prevent an employee's voluntary and 
     uncoerced acceptance (not as a condition of employment) of a 
     light duty assignment while recovering from a serious health 
     condition. See 825.702(d). An employee's acceptance of such 
     light duty assignment does not constitute a waiver of the 
     employee's prospective rights, including the right to be 
     restored to the same position the employee held at the time 
     the employee's FMLA leave commenced or to an equivalent 
     position. The employee's right to restoration, however, 
     ceases at the end of the applicable 12-month FMLA leave year.
       ``(e) Covered employees, and not merely eligible employees, 
     are protected from retaliation for opposing (e.g., filing a 
     complaint about) any practice which is unlawful under the 
     FMLA, as made applicable by the CAA. They are similarly 
     protected if they oppose any practice which they reasonably 
     believe to be a violation of the FMLA, as made applicable by 
     the CAA, or regulations.

``Subpart C--Employee and Employing Office Rights and Obligations Under 
                The FMLA, As Made Applicable by the CAA

     ``Sec. 825.300 Employing office notice requirements

       ``(a)(1) If an employing office has any eligible employees 
     and has any written guidance to employees concerning employee 
     benefits or leave rights, such as in an employee handbook, 
     information concerning both entitlements and employee 
     obligations under the FMLA, as made applicable by the CAA, 
     must be included in the handbook or other document. For 
     example, if an employing office provides an employee handbook 
     to all employees that describes the employing office's 
     policies regarding leave, wages, attendance, and similar 
     matters, the handbook must incorporate information on FMLA 
     rights and responsibilities and the employing office's 
     policies regarding the FMLA, as made applicable by the CAA. 
     Informational publications describing the provisions of the 
     FMLA, as made applicable by the CAA, are available from the 
     Office of Congressional Workplace Rights and may be 
     incorporated in such employing office handbooks or written 
     policies.
       ``(2) If such an employing office does not have written 
     policies, manuals, or handbooks describing employee benefits 
     and leave provisions, the employing office shall provide 
     written guidance to an employee concerning all the employee's 
     rights and obligations under the FMLA, as made applicable by 
     the CAA. This notice shall be provided to employees each time 
     notice is given pursuant to paragraph (c), and in accordance 
     with the provisions of that paragraph. Employing offices may 
     duplicate and provide the employee a copy of the FMLA Fact 
     Sheet available from the Office of Congressional Workplace 
     Rights to provide such guidance.
       ``(b) Eligibility notice. (1) When an employee requests 
     FMLA leave, or when the employing office acquires knowledge 
     that an employee's leave may be for an FMLA-qualifying 
     reason, the employing office must notify the employee of the 
     employee's eligibility to take FMLA leave within five 
     business days, absent extenuating circumstances. See 825.110 
     for definition of an eligible employee. Employee eligibility 
     is determined (and notice must be provided) at the 
     commencement of the first instance of leave for each FMLA-
     qualifying reason in the applicable 12-month period. See 
     825.127(c) and 825.200(b). All FMLA absences for the same 
     qualifying reason are considered a single leave and employee 
     eligibility as to that reason for leave does not change 
     during the applicable 12-month period.
       ``(2) The eligibility notice must state whether the 
     employee is eligible for FMLA leave as defined in 825.110. If 
     the employee is not eligible for FMLA leave, the notice must 
     state at least one reason why the employee is not eligible, 
     including as applicable the number of months the employee has 
     been employed by the employing office and the hours of 
     service with the employing office during the 12-month period. 
     Notification of eligibility may be oral or in writing; 
     employing offices may use Form C to provide such notification 
     to employees.
       ``(3) If, at the time an employee provides notice of a 
     subsequent need for FMLA leave during the applicable 12-month 
     period due to a different FMLA-qualifying reason, and the 
     employee's eligibility status has not changed, no additional 
     eligibility notice is

[[Page H9771]]

     required. If, however, the employee's eligibility status has 
     changed (e.g., if the employee has not met the hours of 
     service requirement in the 12 months preceding the 
     commencement of leave for the subsequent qualifying reason), 
     the employing office must notify the employee of the change 
     in eligibility status within five business days, absent 
     extenuating circumstances.
       ``(c) Rights and responsibilities notice. (1) Employing 
     offices shall provide written notice detailing the specific 
     expectations and obligations of the employee and explaining 
     any consequences of a failure to meet these obligations. This 
     notice shall be provided to the employee each time the 
     eligibility notice is provided pursuant to paragraph (b) of 
     this section. If leave has already begun, the notice should 
     be mailed to the employee's address of record. Such specific 
     notice must include, as appropriate:
       ``(A) That the leave may be designated and counted against 
     the employee's annual FMLA leave entitlement if qualifying 
     (See 825.300(c) and 825.301) and the applicable 12-month 
     period for FMLA entitlement (See 825.127(c), 825.200(b), (f), 
     and (g));
       ``(B) Any requirements for the employee to furnish 
     certification of a serious health condition, serious injury 
     or illness, or qualifying exigency arising out of covered 
     active duty or call to covered active duty status, and the 
     consequences of failing to do so (See 825.305, 825.309, 
     825.310, 825.313);
       ``(C) If applicable, the employee's right to substitute 
     paid parental leave for unpaid FMLA leave for a birth or 
     placement (See 825.208) and the employee's right to 
     substitute paid leave generally, whether the employing office 
     will require the substitution of paid leave, the conditions 
     related to any substitution, and the employee's entitlement 
     to take unpaid FMLA leave if the employee does not meet the 
     conditions for paid leave (See 825.207);
       ``(D) Any requirement for the employee to make any premium 
     payments to maintain health benefits and the arrangements for 
     making such payments (See 825.210), and the possible 
     consequences of failure to make such payments on a timely 
     basis (i.e., the circumstances under which coverage may 
     lapse);
       ``(E) The employee's status as a key employee and the 
     potential consequence that restoration may be denied 
     following FMLA leave, explaining the conditions required for 
     such denial (See 825.218);
       ``(F) The employee's right to maintenance of benefits 
     during the FMLA leave and restoration to the same or an 
     equivalent job upon return from FMLA leave (See 825.214 and 
     825.604); and
       ``(G) The employee's potential liability for payment of 
     health insurance premiums paid by the employing office during 
     the employee's unpaid FMLA leave if the employee fails to 
     return to work after taking FMLA leave (See 825.213, 
     825.208(k)).
       ``(2) The notice of rights and responsibilities may include 
     other information--e.g., whether the employing office will 
     require periodic reports of the employee's status and intent 
     to return to work--but is not required to do so.
       ``(3) The notice of rights and responsibilities may be 
     accompanied by any required certification form.
       ``(4) If the specific information provided by the notice of 
     rights and responsibilities changes, the employing office 
     shall, within five business days of receipt of the employee's 
     first notice of need for leave subsequent to any change, 
     provide written notice referencing the prior notice and 
     setting forth any of the information in the notice of rights 
     and responsibilities that has changed. For example, if the 
     initial leave period was paid leave and the subsequent leave 
     period would be unpaid leave, the employing office may need 
     to give notice of the arrangements for making premium 
     payments.
       ``(5) Employing offices are also expected to responsively 
     answer questions from employees concerning their rights and 
     responsibilities under the FMLA, as made applicable under the 
     CAA.
       ``(6) A prototype notice of rights and responsibilities may 
     be obtained in Form C, or from the Office of Congressional 
     Workplace Rights. Employing offices may adapt the prototype 
     notice as appropriate to meet these notice requirements. The 
     notice of rights and responsibilities may be distributed 
     electronically so long as it otherwise meets the requirements 
     of this section.
       ``(d) Designation notice. (1) The employing office is 
     responsible in all circumstances for designating leave as 
     FMLA-qualifying, and for giving notice of the designation to 
     the employee as provided in this section. When the employing 
     office has enough information to determine whether the leave 
     is being taken for a FMLA-qualifying reason (e.g., after 
     receiving a certification), the employing office must notify 
     the employee whether the leave will be designated and will be 
     counted as FMLA leave within five business days absent 
     extenuating circumstances. Only one notice of designation is 
     required for each FMLA-qualifying reason per applicable 12-
     month period, regardless of whether the leave taken due to 
     the qualifying reason will be a continuous block of leave or 
     intermittent or reduced schedule leave. If the employing 
     office determines that the leave will not be designated as 
     FMLA-qualifying (e.g., if the leave is not for a reason 
     covered by FMLA or the FMLA leave entitlement has been 
     exhausted), the employing office must notify the employee of 
     that determination. Subject to 825.208, if the employing 
     office requires paid leave to be substituted for unpaid FMLA 
     leave, or that paid leave taken under an existing leave plan 
     be counted as FMLA leave, the employing office must inform 
     the employee of this designation at the time of designating 
     the FMLA leave.
       ``(2) If the employing office has sufficient information to 
     designate the leave as FMLA leave immediately after receiving 
     notice of the employee's need for leave, the employing office 
     may provide the employee with the designation notice at that 
     time.
       ``(3) If the employing office will require the employee to 
     present a fitness-for-duty certification to be restored to 
     employment, the employing office must provide notice of such 
     requirement with the designation notice. If the employing 
     office will require that the fitness-for-duty certification 
     address the employee's ability to perform the essential 
     functions of the employee's position, the employing office 
     must so indicate in the designation notice, and must include 
     a list of the essential functions of the employee's position. 
     See 825.312. If the employing office's handbook or other 
     written documents (if any) describing the employing office's 
     leave policies clearly provide that a fitness-for- duty 
     certification will be required in specific circumstances 
     (e.g., by stating that fitness- for-duty certification will 
     be required in all cases of back injuries for employees in a 
     certain occupation), the employing office is not required to 
     provide written notice of the requirement with the 
     designation notice, but must provide oral notice no later 
     than with the designation notice.
       ``(4) The designation notice must be in writing. A 
     prototype designation notice is contained in Form D which may 
     be obtained from the Office of Congressional Workplace 
     Rights. If the leave is not designated as FMLA leave because 
     it does not meet the requirements of the FMLA, as made 
     applicable by the CAA, the notice to the employee that the 
     leave is not designated as FMLA leave may be in the form of a 
     simple written statement. The designation notice may be 
     distributed electronically so long as it otherwise meets the 
     requirements of this section and the employing office can 
     demonstrate that the employee (who may already be on leave 
     and who may not have access to employing office-provided 
     computers) has access to the information electronically.
       ``(5) If the information provided by the employing office 
     to the employee in the designation notice changes (e.g., the 
     employee exhausts the FMLA leave entitlement), the employing 
     office shall provide, within five business days of receipt of 
     the employee's first notice of need for leave subsequent to 
     any change, written notice of the change.
       ``(6) The employing office must notify the employee of the 
     amount of leave counted against the employee's FMLA leave 
     entitlement and, if applicable, the employee's paid parental 
     leave entitlement. If the amount of leave needed is known at 
     the time the employing office designates the leave as FMLA-
     qualifying, the employing office must notify the employee of 
     the number of hours, days, or weeks that will be counted 
     against the employee's FMLA leave entitlement in the 
     designation notice. If it is not possible to provide the 
     hours, days, or weeks that will be counted against the 
     employee's FMLA leave entitlement (such as in the case of 
     unforeseeable intermittent leave), then the employing office 
     must provide notice of the amount of leave counted against 
     the employee's FMLA leave entitlement and, if applicable, 
     paid parental leave entitlement, upon the request by the 
     employee, but no more often than once in a 30-day period and 
     only if leave was taken in that period. The notice of the 
     amount of leave counted against the employee's FMLA 
     entitlement and, if applicable, paid parental leave 
     entitlement may be oral or in writing. If such notice is 
     oral, it shall be confirmed in writing no later than the 
     following payday (unless the payday is less than one week 
     after the oral notice, in which case the notice must be no 
     later than the subsequent payday). Such written notice may be 
     in any form, including a notation on the employee's pay stub.
       ``(e) Consequences of failing to provide notice. Failure to 
     follow the notice requirements set forth in this section may 
     constitute an interference with, restraint, or denial of the 
     exercise of an employee's FMLA rights. An employing office 
     may be liable for compensation and benefits lost by reason of 
     the violation, for other actual monetary losses sustained as 
     a direct result of the violation, and for appropriate 
     equitable or other relief, including employment, 
     reinstatement, promotion, or any other relief tailored to the 
     harm suffered. See 825.400(b).

     ``Sec. 825.301 Designation of FMLA leave

       ``(a) Employing office responsibilities. The employing 
     office's decision to designate leave as FMLA-qualifying must 
     be based only on information received from the employee or 
     the employee's spokesperson (e.g., if the employee is 
     incapacitated, the employee's spouse, adult child, parent, 
     doctor, etc., may provide notice to the employing office of 
     the need to take FMLA leave). In any circumstance where the 
     employing office does not have sufficient information about 
     the reason for an employee's use of leave, the employing 
     office should inquire further of the employee or the 
     spokesperson to ascertain whether leave is potentially FMLA-
     qualifying. Once the employing office has acquired knowledge 
     that the leave is being taken for a FMLA-qualifying reason, 
     the employing office must notify the employee as provided in 
     825.300(d).

[[Page H9772]]

       ``(b) Employee responsibilities. An employee giving notice 
     of the need for FMLA leave does not need to expressly assert 
     rights under the FMLA, as made applicable by the CAA, or even 
     mention the FMLA to meet his or her obligation to provide 
     notice, though the employee would need to state a qualifying 
     reason for the needed leave and otherwise satisfy the notice 
     requirements set forth in 825.302 or 825.303 depending on 
     whether the need for leave is foreseeable or unforeseeable. 
     An employee giving notice of the need for FMLA leave must 
     explain the reasons for the needed leave so as to allow the 
     employing office to determine whether the leave qualifies 
     under the FMLA, as made applicable by the CAA. If the 
     employee fails to explain the reasons, leave may be denied. 
     In many cases, in explaining the reasons for a request to use 
     leave, especially when the need for the leave was unexpected 
     or unforeseen, an employee will provide sufficient 
     information for the employing office to designate the leave 
     as FMLA leave. An employee using accrued paid leave may in 
     some cases not spontaneously explain the reasons or their 
     plans for using their accrued leave. However, if an employee 
     requesting to use paid leave for a FMLA-qualifying reason 
     does not explain the reason for the leave and the employing 
     office denies the employee's request, the employee will need 
     to provide sufficient information to establish a FMLA-
     qualifying reason for the needed leave so that the employing 
     office is aware that the leave may not be denied and may 
     designate that the paid leave be appropriately counted 
     against (substituted for) the employee's FMLA leave 
     entitlement. Similarly, an employee using accrued paid 
     vacation leave who seeks an extension of unpaid leave for a 
     FMLA-qualifying reason will need to state the reason. If this 
     is due to an event which occurred during the period of paid 
     leave, the employing office may count the leave used after 
     the FMLA-qualifying reason against the employee's FMLA leave 
     entitlement.
       ``(c) Disputes. If there is a dispute between an employing 
     office and an employee as to whether leave qualifies as FMLA 
     leave, it should be resolved through discussions between the 
     employee and the employing office. Such discussions and the 
     decision must be documented.
       ``(d) Retroactive designation. Subject to 825.208, if an 
     employing office does not designate leave as required by 
     825.300, the employing office may retroactively designate 
     leave as FMLA leave with appropriate notice to the employee 
     as required by 825.300 provided that the employing office's 
     failure to timely designate leave does not cause harm or 
     injury to the employee. In all cases where leave would 
     qualify for FMLA protections, an employing office and an 
     employee can mutually agree that leave be retroactively 
     designated as FMLA leave.
       ``(e) Remedies. If an employing office's failure to timely 
     designate leave in accordance with 825.300 causes the 
     employee to suffer harm, it may constitute an interference 
     with, restraint of, or denial of the exercise of an 
     employee's FMLA rights. An employing office may be liable for 
     compensation and benefits lost by reason of the violation, 
     for other actual monetary losses sustained as a direct result 
     of the violation, and for appropriate equitable or other 
     relief, including employment, reinstatement, promotion, or 
     any other relief tailored to the harm suffered. See 
     825.400(b). For example, if an employing office that was put 
     on notice that an employee needed FMLA leave failed to 
     designate the leave properly, but the employee's own serious 
     health condition prevented him or her from returning to work 
     during that time period regardless of the designation, an 
     employee may not be able to show that the employee suffered 
     harm as a result of the employing office's actions. However, 
     if an employee took leave to provide care for a son or 
     daughter with a serious health condition believing it would 
     not count toward his or her FMLA entitlement, and the 
     employee planned to later use that FMLA leave to provide care 
     for a spouse who would need assistance when recovering from 
     surgery planned for a later date, the employee may be able to 
     show that harm has occurred as a result of the employing 
     office's failure to designate properly. The employee might 
     establish this by showing that he or she would have arranged 
     for an alternative caregiver for the seriously-ill son or 
     daughter if the leave had been designated timely.

     ``Sec. 825.302 Employee notice requirements for foreseeable 
       FMLA leave

       ``(a) Timing of notice. An employee must provide the 
     employing office at least 30 days advance notice before FMLA 
     leave is to begin if the need for the leave is foreseeable 
     based on an expected birth, placement for adoption or foster 
     care, planned medical treatment for a serious health 
     condition of the employee or of a family member, or the 
     planned medical treatment for a serious injury or illness of 
     a covered servicemember. If 30 days' notice is not 
     practicable, such as because of a lack of knowledge of 
     approximately when leave will be required to begin, a change 
     in circumstances, or a medical emergency, notice must be 
     given as soon as practicable. For example, an employee's 
     health condition may require leave to commence earlier than 
     anticipated before the birth of a child. Similarly, little 
     opportunity for notice may be given before placement for 
     adoption. For foreseeable leave due to a qualifying exigency, 
     notice must be provided as soon as practicable, regardless of 
     how far in advance such leave is foreseeable. Whether FMLA 
     leave is to be continuous or is to be taken intermittently or 
     on a reduced schedule basis, notice need only be given one 
     time, but the employee shall advise the employing office as 
     soon as practicable if dates of scheduled leave change or are 
     extended, or were initially unknown. In those cases where the 
     employee is required to provide at least 30 days' notice of 
     foreseeable leave and does not do so, the employee shall 
     explain the reasons why such notice was not practicable upon 
     a request from the employing office for such information.
       ``(b) As soon as practicable means as soon as both possible 
     and practical, taking into account all of the facts and 
     circumstances in the individual case. When an employee 
     becomes aware of a need for FMLA leave less than 30 days in 
     advance, it should be practicable for the employee to provide 
     notice of the need for leave either the same day or the next 
     business day. In all cases, however, the determination of 
     when an employee could practicably provide notice must take 
     into account the individual facts and circumstances.
       ``(c) Content of notice. An employee shall provide at least 
     verbal notice sufficient to make the employing office aware 
     that the employee needs FMLA-qualifying leave, and the 
     anticipated timing and duration of the leave. Depending on 
     the situation, such information may include that a condition 
     renders the employee unable to perform the functions of the 
     job; that the employee is pregnant or has been hospitalized 
     overnight; whether the employee or the employee's family 
     member is under the continuing care of a health care 
     provider; if the leave is due to a qualifying exigency, that 
     a military member is on covered active duty or call to 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty), and that the 
     requested leave is for one of the reasons listed in 
     825.126(b); if the leave is for a family member, that the 
     condition renders the family member unable to perform daily 
     activities, or that the family member is a covered 
     servicemember with a serious injury or illness; and the 
     anticipated duration of the absence, if known. When an 
     employee seeks leave for the first time for a FMLA-qualifying 
     reason, the employee need not expressly assert rights under 
     the FMLA, as made applicable by the CAA, or even mention the 
     FMLA. When an employee seeks leave due to a FMLA-qualifying 
     reason, for which the employing office has previously 
     provided FMLA-protected leave, the employee must specifically 
     reference the qualifying reason for leave or the need for 
     FMLA leave. In all cases, the employing office should inquire 
     further of the employee if it is necessary to have more 
     information about whether FMLA leave is being sought by the 
     employee, and obtain the necessary details of the leave to be 
     taken. In the case of medical conditions, the employing 
     office may find it necessary to inquire further to determine 
     if the leave is because of a serious health condition and may 
     request medical certification to support the need for such 
     leave. See 825.305. An employing office may also request 
     certification to support the need for leave for a qualifying 
     exigency or for military caregiver leave. See 825.309, 
     825.310. When an employee has been previously certified for 
     leave due to more than one FMLA-qualifying reason, the 
     employing office may need to inquire further to determine for 
     which qualifying reason the leave is needed. An employee has 
     an obligation to respond to an employing office's questions 
     designed to determine whether an absence is potentially FMLA-
     qualifying. Failure to respond to reasonable employing office 
     inquiries regarding the leave request may result in denial of 
     FMLA protection if the employing office is unable to 
     determine whether the leave is FMLA-qualifying.
       ``(d) Complying with the employing office policy. An 
     employing office may require an employee to comply with the 
     employing office's usual and customary notice and procedural 
     requirements for requesting leave, absent unusual 
     circumstances. For example, an employing office may require 
     that written notice set forth the reasons for the requested 
     leave, the anticipated duration of the leave, and the 
     anticipated start of the leave. An employee also may be 
     required by an employing office's policy to contact a 
     specific individual. Unusual circumstances would include 
     situations such as when an employee is unable to comply with 
     the employing office's policy that requests for leave should 
     be made by contacting a specific number because on the day 
     the employee needs to provide notice of his or her need for 
     FMLA leave there is no one to answer the call-in number and 
     the voice mail box is full. Where an employee does not comply 
     with the employing office's usual notice and procedural 
     requirements, and no unusual circumstances justify the 
     failure to comply, FMLA-protected leave may be delayed or 
     denied. However, FMLA-protected leave may not be delayed or 
     denied where the employing office's policy requires notice to 
     be given sooner than set forth in paragraph (a) of this 
     section and the employee provides timely notice as set forth 
     in paragraph (a) of this section.
       ``(e) Scheduling planned medical treatment. When planning 
     medical treatment, the employee must consult with the 
     employing office and make a reasonable effort to schedule the 
     treatment so as not to disrupt unduly the employing office's 
     operations, subject to the approval of the health care 
     provider. Employees are ordinarily expected to consult with 
     their employing offices prior to the scheduling of treatment 
     in order to work out

[[Page H9773]]

     a treatment schedule which best suits the needs of both the 
     employing office and the employee. For example, if an 
     employee who provides notice of the need to take FMLA leave 
     on an intermittent basis for planned medical treatment 
     neglects to consult with the employing office to make a 
     reasonable effort to arrange the schedule of treatments so as 
     not to unduly disrupt the employing office's operations, the 
     employing office may initiate discussions with the employee 
     and require the employee to attempt to make such 
     arrangements, subject to the approval of the health care 
     provider. See 825.203 and 825.205.
       ``(f) Intermittent leave or leave on a reduced leave 
     schedule must be medically necessary due to a serious health 
     condition or a serious injury or illness. An employee shall 
     advise the employing office, upon request, of the reasons why 
     the intermittent/reduced leave schedule is necessary and of 
     the schedule for treatment, if applicable. The employee and 
     employing office shall attempt to work out a schedule for 
     such leave that meets the employee's needs without unduly 
     disrupting the employing office's operations, subject to the 
     approval of the health care provider.
       ``(g) An employing office may waive employees' FMLA notice 
     requirements. See 825.304(e).

     ``Sec. 825.303 Employee notice requirements for unforeseeable 
       FMLA leave

       ``(a) Timing of notice. When the approximate timing of the 
     need for leave is not foreseeable, an employee must provide 
     notice to the employing office as soon as practicable under 
     the facts and circumstances of the particular case. It 
     generally should be practicable for the employee to provide 
     notice of leave that is unforeseeable within the time 
     prescribed by the employing office's usual and customary 
     notice requirements applicable to such leave. See 825.303(c). 
     Notice may be given by the employee's spokesperson (e.g., 
     spouse, adult family member, or other responsible party) if 
     the employee is unable to do so personally. For example, if 
     an employee's child has a severe asthma attack and the 
     employee takes the child to the emergency room, the employee 
     would not be required to leave his or her child in order to 
     report the absence while the child is receiving emergency 
     treatment. However, if the child's asthma attack required 
     only the use of an inhaler at home followed by a period of 
     rest, the employee would be expected to call the employing 
     office promptly after ensuring the child has used the 
     inhaler.
       ``(b) Content of notice. An employee shall provide 
     sufficient information for an employing office to reasonably 
     determine whether the FMLA may apply to the leave request. 
     Depending on the situation, such information may include that 
     a condition renders the employee unable to perform the 
     functions of the job; that the employee is pregnant or has 
     been hospitalized overnight; whether the employee or the 
     employee's family member is under the continuing care of a 
     health care provider; if the leave is due to a qualifying 
     exigency, that a military member is on covered active duty or 
     call to covered active duty status (or has been notified of 
     an impending call or order to covered active duty), that the 
     requested leave is for one of the reasons listed in 
     825.126(b), and the anticipated duration of the absence; or 
     if the leave is for a family member that the condition 
     renders the family member unable to perform daily activities 
     or that the family member is a covered servicemember with a 
     serious injury or illness; and the anticipated duration of 
     the absence, if known. When an employee seeks leave for the 
     first time for a FMLA-qualifying reason, the employee need 
     not expressly assert rights under the FMLA, as made 
     applicable by the CAA, or even mention the FMLA. When an 
     employee seeks leave due to a qualifying reason, for which 
     the employing office has previously provided the employee 
     FMLA-protected leave, the employee must specifically 
     reference either the qualifying reason for leave or the need 
     for FMLA leave. Calling in `sick' without providing more 
     information will not be considered sufficient notice to 
     trigger an employing office's obligations under the FMLA, as 
     made applicable by the CAA. The employing office will be 
     expected to obtain any additional required information 
     through informal means. An employee has an obligation to 
     respond to an employing office's questions designed to 
     determine whether an absence is potentially FMLA-qualifying. 
     Failure to respond to reasonable employing office inquiries 
     office regarding the leave request may result in denial of 
     FMLA protection if the employing office is unable to 
     determine whether the leave is FMLA-qualifying.
       ``(c) Complying with employing office policy. When the need 
     for leave is not foreseeable, an employee must comply with 
     the employing office's usual and customary notice and 
     procedural requirements for requesting leave, absent unusual 
     circumstances. For example, an employing office may require 
     employees to call a designated number or a specific 
     individual to request leave. However, if an employee requires 
     emergency medical treatment, he or she would not be required 
     to follow the call-in procedure until his or her condition is 
     stabilized and he or she has access to, and is able to use, a 
     phone. Similarly, in the case of an emergency requiring leave 
     because of a FMLA-qualifying reason, written advance notice 
     pursuant to an employing office's internal rules and 
     procedures may not be required when FMLA leave is involved. 
     If an employee does not comply with the employing office's 
     usual notice and procedural requirements, and no unusual 
     circumstances justify the failure to comply, FMLA-protected 
     leave may be delayed or denied.

     ``Sec. 825.304 Employee failure to provide notice

       ``(a) Proper notice required. In all cases, in order for 
     the onset of an employee's FMLA leave to be delayed due to 
     lack of required notice, it must be clear that the employee 
     had actual notice of the FMLA notice requirements. This 
     condition would be satisfied by the employing office's proper 
     posting, at the worksite where the employee is employed, of 
     the information regarding the FMLA provided (pursuant to 
     section 301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by the 
     Office of Congressional Workplace Rights to the employing 
     office in a manner suitable for posting.
       ``(b) Foreseeable leave--30 days. When the need for FMLA 
     leave is foreseeable at least 30 days in advance and an 
     employee fails to give timely advance notice with no 
     reasonable excuse, the employing office may delay FMLA 
     coverage until 30 days after the date the employee provides 
     notice. The need for leave and the approximate date leave 
     would be taken must have been clearly foreseeable to the 
     employee 30 days in advance of the leave. For example, 
     knowledge that an employee would receive a telephone call 
     about the availability of a child for adoption at some 
     unknown point in the future would not be sufficient to 
     establish the leave was clearly foreseeable 30 days in 
     advance.
       ``(c) Foreseeable leave--less than 30 days. When the need 
     for FMLA leave is foreseeable fewer than 30 days in advance 
     and an employee fails to give notice as soon as practicable 
     under the particular facts and circumstances, the extent to 
     which an employing office may delay FMLA coverage for leave 
     depends on the facts of the particular case. For example, if 
     an employee reasonably should have given the employing office 
     two weeks' notice but instead only provided one week's 
     notice, then the employing office may delay FMLA-protected 
     leave for one week (thus, if the employing office elects to 
     delay FMLA coverage and the employee nonetheless takes leave 
     one week after providing the notice (i.e., a week before the 
     two week notice period has been met) the leave will not be 
     FMLA-protected).
       ``(d) Unforeseeable leave. When the need for FMLA leave is 
     unforeseeable and an employee fails to give notice in 
     accordance with 825.303, the extent to which an employing 
     office may delay FMLA coverage for leave depends on the facts 
     of the particular case. For example, if it would have been 
     practicable for an employee to have given the employing 
     office notice of the need for leave very soon after the need 
     arises consistent with the employing office's policy, but 
     instead the employee provided notice two days after the leave 
     began, then the employing office may delay FMLA coverage of 
     the leave by two days.
       ``(e) Waiver of notice. An employing office may waive 
     employees' FMLA notice obligations or the employing office's 
     own internal rules on leave notice requirements. If an 
     employing office does not waive the employee's obligations 
     under its internal leave rules, the employing office may take 
     appropriate action under its internal rules and procedures 
     for failure to follow its usual and customary notification 
     rules, absent unusual circumstances, as long as the actions 
     are taken in a manner that does not discriminate against 
     employees taking FMLA leave and the rules are not 
     inconsistent with 825.303(a).

     ``Sec. 825.305 Certification, general rule

       ``(a) General. An employing office may require that an 
     employee's leave to care for the employee's covered family 
     member with a serious health condition, or due to the 
     employee's own serious health condition that makes the 
     employee unable to perform one or more of the essential 
     functions of the employee's position, be supported by a 
     certification issued by the health care provider of the 
     employee or the employee's family member. An employing office 
     may also require that an employee's leave because of a 
     qualifying exigency or to care for a covered servicemember 
     with a serious injury or illness be supported by a 
     certification, as described in 825.309 and 825.310, 
     respectively. An employing office must give notice of a 
     requirement for certification each time a certification is 
     required; such notice must be written notice whenever 
     required by 825.300(c). An employing office's oral request to 
     an employee to furnish any subsequent certification is 
     sufficient.
       ``(b) Timing. In most cases, the employing office should 
     request that an employee furnish certification at the time 
     the employee gives notice of the need for leave or within 
     five business days thereafter, or, in the case of unforeseen 
     leave, within five business days after the leave commences. 
     The employing office may request certification at some later 
     date if the employing office later has reason to question the 
     appropriateness of the leave or its duration. The employee 
     must provide the requested certification to the employing 
     office within 15 calendar days after the employing office's 
     request, unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts or the employing office provides more than 15 
     calendar days to return the requested certification.
       ``(c) Complete and sufficient certification. The employee 
     must provide a complete and sufficient certification to the 
     employing office if

[[Page H9774]]

     required by the employing office in accordance with 825.306, 
     825.309, and 825.310. The employing office shall advise an 
     employee whenever the employing office finds a certification 
     incomplete or insufficient, and shall state in writing what 
     additional information is necessary to make the certification 
     complete and sufficient. A certification is considered 
     incomplete if the employing office receives a certification, 
     but one or more of the applicable entries have not been 
     completed. A certification is considered insufficient if the 
     employing office receives a complete certification, but the 
     information provided is vague, ambiguous, or non-responsive. 
     The employing office must provide the employee with seven 
     calendar days (unless not practicable under the particular 
     circumstances despite the employee's diligent good faith 
     efforts) to cure any such deficiency. If the deficiencies 
     specified by the employing office are not cured in the 
     resubmitted certification, the employing office may deny the 
     taking of FMLA leave, in accordance with 825.313. A 
     certification that is not returned to the employing office is 
     not considered incomplete or insufficient, but constitutes a 
     failure to provide certification.
       ``(d) Consequences. At the time the employing office 
     requests certification, the employing office must also advise 
     an employee of the anticipated consequences of an employee's 
     failure to provide adequate certification. If the employee 
     fails to provide the employing office with a complete and 
     sufficient certification, despite the opportunity to cure the 
     certification as provided in paragraph (c) of this section, 
     or fails to provide any certification, the employing office 
     may deny the taking of FMLA leave, in accordance with 
     825.313. It is the employee's responsibility either to 
     furnish a complete and sufficient certification or to furnish 
     the health care provider providing the certification with any 
     necessary authorization from the employee or the employee's 
     family member in order for the health care provider to 
     release a complete and sufficient certification to the 
     employing office to support the employee's FMLA request. This 
     provision will apply in any case where an employing office 
     requests a certification permitted by these regulations, 
     whether it is the initial certification, a recertification, a 
     second or third opinion, or a fitness-for-duty certificate, 
     including any clarifications necessary to determine if such 
     certifications are authentic and sufficient. See 825.306, 
     825.307, 825.308, and 825.312. (e) Annual medical 
     certification. Where the employee's need for leave due to the 
     employee's own serious health condition, or the serious 
     health condition of the employee's covered family member, 
     lasts beyond a single leave year (as defined in 825.200), the 
     employing office may require the employee to provide a new 
     medical certification in each subsequent leave year. Such new 
     medical certifications are subject to the provisions for 
     authentication and clarification set forth in 825.307, 
     including second and third opinions.

     ``Sec. 825.306 Content of medical certification for leave 
       taken because of an employee's own serious health condition 
       or the serious health condition of a family member

       ``(a) Required information. When leave is taken because of 
     an employee's own serious health condition, or the serious 
     health condition of a family member, an employing office may 
     require an employee to obtain a medical certification from a 
     health care provider that sets forth the following 
     information:
       ``(1) The name, address, telephone number, and fax number 
     of the health care provider and type of medical practice/
     specialization;
       ``(2) The approximate date on which the serious health 
     condition commenced, and its probable duration;
       ``(4) If the employee is the patient, information 
     sufficient to establish that the employee cannot perform the 
     essential functions of the employee's job as well as the 
     nature of any other work restrictions, and the likely 
     duration of such inability (See 825.123(b));
       ``(5) If the patient is a covered family member with a 
     serious health condition, information sufficient to establish 
     that the family member is in need of care, as described in 
     825.124, and an estimate of the frequency and duration of the 
     leave required to care for the family member;
       ``(6) If an employee requests leave on an intermittent or 
     reduced schedule basis for planned medical treatment of the 
     employee's or a covered family member's serious health 
     condition, information sufficient to establish the medical 
     necessity for such intermittent or reduced schedule leave and 
     an estimate of the dates and duration of such treatments and 
     any periods of recovery;
       ``(7) If an employee requests leave on an intermittent or 
     reduced schedule basis for the employee's serious health 
     condition, including pregnancy, that may result in 
     unforeseeable episodes of incapacity, information sufficient 
     to establish the medical necessity for such intermittent or 
     reduced schedule leave and an estimate of the frequency and 
     duration of the episodes of incapacity; and
       ``(8) If an employee requests leave on an intermittent or 
     reduced schedule basis to care for a covered family member 
     with a serious health condition, a statement that such leave 
     is medically necessary to care for the family member, as 
     described in 825.124 and 825.203(b), which can include 
     assisting in the family member's recovery, and an estimate of 
     the frequency and duration of the required leave.
       ``(b) The Office of Congressional Workplace Rights has 
     developed two optional forms (Form A and Form B) for use in 
     obtaining medical certification, including second and third 
     opinions, from health care providers that meets FMLA's 
     certification requirements, as made applicable by the CAA. 
     (See Forms A and B.) Optional Form A is for use when the 
     employee's need for leave is due to the employee's own 
     serious health condition. Optional Form B is for use when the 
     employee needs leave to care for a family member with a 
     serious health condition. These optional forms reflect 
     certification requirements so as to permit the health care 
     provider to furnish appropriate medical information. Forms A 
     and B are modeled closely on Form WH-380E and Form WH-380F, 
     as revised, which were developed by the Department of Labor 
     (See 29 C.F.R. Part 825). The employing office may use the 
     Office of Congressional Workplace Rights's forms, or Form WH-
     380E and Form WH-380F, as revised, or another form containing 
     the same basic information; however, no information may be 
     required beyond that specified in 825.306, 825.307, and 
     825.308. In all instances the information on the form must 
     relate only to the serious health condition for which the 
     current need for leave exists.
       ``(c) If an employee is on FMLA leave running concurrently 
     with a workers' compensation absence, and the provisions of 
     the workers' compensation statute permit the employing office 
     or the employing office's representative to request 
     additional information from the employee's workers' 
     compensation health care provider, the FMLA does not prevent 
     the employing office from following the applicable workers' 
     compensation provisions and information received under those 
     provisions may be considered in determining the employee's 
     entitlement to FMLA-protected leave. Similarly, an employing 
     office may request additional information in accordance with 
     a paid leave policy or disability plan that requires greater 
     information to qualify for payments or benefits, provided 
     that the employing office informs the employee that the 
     additional information only needs to be provided in 
     connection with receipt of such payments or benefits. Any 
     information received pursuant to such policy or plan may be 
     considered in determining the employee's entitlement to FMLA-
     protected leave. If the employee fails to provide the 
     information required for receipt of such payments or 
     benefits, such failure will not affect the employee's 
     entitlement to take unpaid FMLA leave. See 825.207(a).
       ``(d) If an employee's serious health condition may also be 
     a disability within the meaning of the Americans with 
     Disabilities Act (ADA), as amended and as made applicable by 
     the CAA, the FMLA does not prevent the employing office from 
     following the procedures for requesting medical information 
     under the ADA. Any information received pursuant to these 
     procedures may be considered in determining the employee's 
     entitlement to FMLA-protected leave.
       ``(e) While an employee may choose to comply with the 
     certification requirement by providing the employing office 
     with an authorization, release, or waiver allowing the 
     employing office to communicate directly with the health care 
     provider of the employee or his or her covered family member, 
     the employee may not be required to provide such an 
     authorization, release, or waiver. In all instances in which 
     certification is requested, it is the employee's 
     responsibility to provide the employing office with complete 
     and sufficient certification and failure to do so may result 
     in the denial of FMLA leave. See 825.305(d).

     ``Sec. 825.307 Authentication and clarification of medical 
       certification for leave taken because of an employee's own 
       serious health condition or the serious health condition of 
       a family member; second and third opinions

       ``(a) Clarification and authentication. (1) If an employee 
     submits a complete and sufficient certification signed by the 
     health care provider, the employing office may not request 
     additional information from the health care provider. 
     However, the employing office may contact the health care 
     provider for purposes of clarification and authentication of 
     the medical certification (whether initial certification or 
     recertification) after the employing office has given the 
     employee an opportunity to cure any deficiencies as set forth 
     in 825.305(c). To make such contact, the employing office 
     must use a health care provider, a human resources 
     professional, a leave administrator, or a management 
     official. An employee's direct supervisor may not contact the 
     employee's health care provider, unless the direct supervisor 
     is also the only individual in the employing office 
     designated to process FMLA requests and the direct supervisor 
     receives specific authorization from the employee to contact 
     the employee's health care provider. For purposes of these 
     regulations, authentication means providing the health care 
     provider with a copy of the certification and requesting 
     verification that the information contained on the 
     certification form was completed and/ or authorized by the 
     health care provider who signed the document; no additional 
     medical information may be requested.
       ``(2) Clarification means contacting the health care 
     provider to understand the handwriting on the medical 
     certification or to understand the meaning of a response. 
     Employing offices may not ask health care providers

[[Page H9775]]

     for additional information beyond that required by the 
     certification form. The requirements of the Health Insurance 
     Portability and Accountability Act (HIPAA) Privacy Rule, (See 
     45 C.F.R. parts 160 and 164), which governs the privacy of 
     individually-identifiable health information created or held 
     by HIPAA-covered entities, must be satisfied when 
     individually-identifiable health information of an employee 
     is shared with an employing office by a HIPAA-covered health 
     care provider. If an employee chooses not to provide the 
     employing office with authorization allowing the employing 
     office to clarify the certification with the health care 
     provider, and does not otherwise clarify the certification, 
     the employing office may deny the taking of FMLA leave if the 
     certification is unclear. See 825.305(d). It is the 
     employee's responsibility to provide the employing office 
     with a complete and sufficient certification and to clarify 
     the certification if necessary.
       ``(b) Second Opinion. (1) An employing office that has 
     reason to doubt the validity of a medical certification may 
     require the employee to obtain a second opinion at the 
     employing office's expense. Pending receipt of the second (or 
     third) medical opinion, the employee is provisionally 
     entitled to the benefits of the FMLA, as made applicable by 
     the CAA, including maintenance of group health benefits. If 
     the certifications do not ultimately establish the employee's 
     entitlement to FMLA leave, the leave shall not be designated 
     as FMLA leave and may be treated as paid or unpaid leave 
     under the employing office's established leave policies. In 
     addition, the consequences set forth in 825.305(d) will apply 
     if the employee or the employee's family member fails to 
     authorize his or her health care provider to release all 
     relevant medical information pertaining to the serious health 
     condition at issue if requested by the health care provider 
     designated to provide a second opinion in order to render a 
     sufficient and complete second opinion.
       ``(2) The employing office is permitted to designate the 
     health care provider to furnish the second opinion, but the 
     selected health care provider may not be employed on a 
     regular basis by the employing office. The employing office 
     may not regularly contract with or otherwise regularly 
     utilize the services of the health care provider furnishing 
     the second opinion unless the employing office is located in 
     an area where access to health care is extremely limited 
     (e.g., a rural area where no more than one or two doctors 
     practice in the relevant specialty in the vicinity).
       ``(c) Third opinion. If the opinions of the employee's and 
     the employing office's designated health care providers 
     differ, the employing office may require the employee to 
     obtain certification from a third health care provider, again 
     at the employing office's expense. This third opinion shall 
     be final and binding. The third health care provider must be 
     designated or approved jointly by the employing office and 
     the employee. The employing office and the employee must each 
     act in good faith to attempt to reach agreement on whom to 
     select for the third opinion provider. If the employing 
     office does not attempt in good faith to reach agreement, the 
     employing office will be bound by the first certification. If 
     the employee does not attempt in good faith to reach 
     agreement, the employee will be bound by the second 
     certification. For example, an employee who refuses to agree 
     to see a doctor in the specialty in question may be failing 
     to act in good faith. On the other hand, an employing office 
     that refuses to agree to any doctor on a list of specialists 
     in the appropriate field provided by the employee and whom 
     the employee has not previously consulted may be failing to 
     act in good faith. In addition, the consequences set forth in 
     825.305(d) will apply if the employee or the employee's 
     family member fails to authorize his or her health care 
     provider to release all relevant medical information 
     pertaining to the serious health condition at issue if 
     requested by the health care provider designated to provide a 
     third opinion in order to render a sufficient and complete 
     third opinion.
       ``(d) Copies of opinions. The employing office is required 
     to provide the employee with a copy of the second and third 
     medical opinions, where applicable, upon request by the 
     employee. Requested copies are to be provided within five 
     business days unless extenuating circumstances prevent such 
     action.
       ``(e) Travel expenses. If the employing office requires the 
     employee to obtain either a second or third opinion the 
     employing office must reimburse an employee or family member 
     for any reasonable `out of pocket' travel expenses incurred 
     to obtain the second and third medical opinions. The 
     employing office may not require the employee or family 
     member to travel outside normal commuting distance for 
     purposes of obtaining the second or third medical opinions 
     except in very unusual circumstances.
       ``(f) Medical certification abroad. In circumstances in 
     which the employee or a family member is visiting in another 
     country, or a family member resides in another country, and a 
     serious health condition develops, the employing office shall 
     accept a medical certification as well as second and third 
     opinions from a health care provider who practices in that 
     country. Where a certification by a foreign health care 
     provider is in a language other than English, the employee 
     must provide the employing office with a written translation 
     of the certification upon request.

     ``Sec. 825.308 Recertifications for leave taken because of an 
       employee's own serious health condition or the serious 
       health condition of a family member

       ``(a) 30-day rule. An employing office may request 
     recertification no more often than every 30 days and only in 
     connection with an absence by the employee, unless paragraphs 
     (b) or (c) of this section apply.
       ``(b) More than 30 days. If the medical certification 
     indicates that the minimum duration of the condition is more 
     than 30 days, an employing office must wait until that 
     minimum duration expires before requesting a recertification, 
     unless paragraph (c) of this section applies. For example, if 
     the medical certification states that an employee will be 
     unable to work, whether continuously or on an intermittent 
     basis, for 40 days, the employing office must wait 40 days 
     before requesting a recertification. In all cases, an 
     employing office may request a recertification of a medical 
     condition every six months in connection with an absence by 
     the employee. Accordingly, even if the medical certification 
     indicates that the employee will need intermittent or reduced 
     schedule leave for a period in excess of six months (e.g., 
     for a lifetime condition), the employing office would be 
     permitted to request recertification every six months in 
     connection with an absence.
       ``(c) Less than 30 days. An employing office may request 
     recertification in less than 30 days if:
       ``(1) The employee requests an extension of leave;
       ``(2) Circumstances described by the previous certification 
     have changed significantly (e.g., the duration or frequency 
     of the absence, the nature or severity of the illness, 
     complications). For example, if a medical certification 
     stated that an employee would need leave for one to two days 
     when the employee suffered a migraine headache and the 
     employee's absences for his or her last two migraines lasted 
     four days each, then the increased duration of absence might 
     constitute a significant change in circumstances allowing the 
     employing office to request a recertification in less than 30 
     days. Likewise, if an employee had a pattern of using 
     unscheduled FMLA leave for migraines in conjunction with his 
     or her scheduled days off, then the timing of the absences 
     also might constitute a significant change in circumstances 
     sufficient for an employing office to request a 
     recertification more frequently than every 30 days; or
       ``(3) The employing office receives information that casts 
     doubt upon the employee's stated reason for the absence or 
     the continuing validity of the certification. For example, if 
     an employee is on FMLA leave for four weeks due to the 
     employee's knee surgery, including recuperation, and the 
     employee plays in company softball league games during the 
     employee's third week of FMLA leave, such information might 
     be sufficient to cast doubt upon the continuing validity of 
     the certification allowing the employing office to request a 
     recertification in less than 30 days.
       ``(d) Timing. The employee must provide the requested 
     recertification to the employing office within the time frame 
     requested by the employing office (which must allow at least 
     15 calendar days after the employing office's request), 
     unless it is not practicable under the particular 
     circumstances to do so despite the employee's diligent, good 
     faith efforts.
       ``(e) Content. The employing office may ask for the same 
     information when obtaining recertification as that permitted 
     for the original certification as set forth in 825.306. The 
     employee has the same obligations to participate and 
     cooperate (including providing a complete and sufficient 
     certification or adequate authorization to the health care 
     provider) in the recertification process as in the initial 
     certification process. See 825.305(d). As part of the 
     information allowed to be obtained on recertification for 
     leave taken because of a serious health condition, the 
     employing office may provide the health care provider with a 
     record of the employee's absence pattern and ask the health 
     care provider if the serious health condition and need for 
     leave is consistent with such a pattern.
       ``(f) Any recertification requested by the employing office 
     shall be at the employee's expense unless the employing 
     office provides otherwise. No second or third opinion on 
     recertification may be required.

     ``Sec. 825.309 Certification for leave taken because of a 
       qualifying exigency

       ``(a) Active Duty Orders. The first time an employee 
     requests leave because of a qualifying exigency arising out 
     of the covered active duty or call to covered active duty 
     status (or notification of an impending call or order to 
     covered active duty) of a military member (See 825.126(a)), 
     an employing office may require the employee to provide a 
     copy of the military member's active duty orders or other 
     documentation issued by the military which indicates that the 
     military member is on covered active duty or call to covered 
     active duty status, and the dates of the military member's 
     covered active duty service. This information need only be 
     provided to the employing office once. A copy of new active 
     duty orders or other documentation issued by the military may 
     be required by the employing office if the need for leave 
     because of a qualifying exigency arises out of a different 
     covered active duty or call to covered active duty status (or 
     notification of an

[[Page H9776]]

     impending call or order to covered active duty) of the same 
     or a different military member;
       ``(b) Required information. An employing office may require 
     that leave for any qualifying exigency specified in 825.126 
     be supported by a certification from the employee that sets 
     forth the following information:
       ``(1) A statement or description, signed by the employee, 
     of appropriate facts regarding the qualifying exigency for 
     which FMLA leave is requested. The facts must be sufficient 
     to support the need for leave. Such facts should include 
     information on the type of qualifying exigency for which 
     leave is requested and any available written documentation 
     which supports the request for leave; such documentation, for 
     example, may include a copy of a meeting announcement for 
     informational briefings sponsored by the military, a document 
     confirming an appointment with a counselor or school 
     official, or a copy of a bill for services for the handling 
     of legal or financial affairs;
       ``(2) The approximate date on which the qualifying exigency 
     commenced or will commence;
       ``(3) If an employee requests leave because of a qualifying 
     exigency for a single, continuous period of time, the 
     beginning and end dates for such absence;
       ``(4) If an employee requests leave because of a qualifying 
     exigency on an intermittent or reduced schedule basis, an 
     estimate of the frequency and duration of the qualifying 
     exigency;
       ``(5) If the qualifying exigency involves meeting with a 
     third party, appropriate contact information for the 
     individual or entity with whom the employee is meeting (such 
     as the name, title, organization, address, telephone number, 
     fax number, and email address) and a brief description of the 
     purpose of the meeting; and
       ``(6) If the qualifying exigency involves Rest and 
     Recuperation leave, a copy of the military member's Rest and 
     Recuperation orders, or other documentation issued by the 
     military which indicates that the military member has been 
     granted Rest and Recuperation leave, and the dates of the 
     military member's Rest and Recuperation leave.
       ``(c) The Office of Congressional Workplace Rights has 
     developed an optional form (Form E) for employees' use in 
     obtaining a certification that meets FMLA's certification 
     requirements. This optional form reflects certification 
     requirements so as to permit the employee to furnish 
     appropriate information to support his or her request for 
     leave because of a qualifying exigency. Form E, or Form WH-
     384 (developed by the Department of Labor), or another form 
     containing the same basic information, may be used by the 
     employing office; however, no information may be required 
     beyond that specified in this section.
       ``(d) Verification. If an employee submits a complete and 
     sufficient certification to support his or her request for 
     leave because of a qualifying exigency, the employing office 
     may not request additional information from the employee. 
     However, if the qualifying exigency involves meeting with a 
     third party, the employing office may contact the individual 
     or entity with whom the employee is meeting for purposes of 
     verifying a meeting or appointment schedule and the nature of 
     the meeting between the employee and the specified individual 
     or entity. The employee's permission is not required in order 
     to verify meetings or appointments with third parties, but no 
     additional information may be requested by the employing 
     office. An employing office also may contact an appropriate 
     unit of the Department of Defense to request verification 
     that a military member is on covered active duty or call to 
     covered active duty status (or has been notified of an 
     impending call or order to covered active duty); no 
     additional information may be requested and the employee's 
     permission is not required.

     ``Sec. 825.310 Certification for leave taken to care for a 
       covered servicemember (military caregiver leave)

       ``(a) Required information from health care provider. When 
     leave is taken to care for a covered servicemember with a 
     serious injury or illness, an employing office may require an 
     employee to obtain a certification completed by an authorized 
     health care provider of the covered servicemember. For 
     purposes of leave taken to care for a covered servicemember, 
     any one of the following health care providers may complete 
     such a certification:
       ``(1) A United States Department of Defense (`DOD') health 
     care provider;
       ``(2) A United States Department of Veterans Affairs (`VA') 
     health care provider;
       ``(3) A DOD TRICARE network authorized private health care 
     provider;
       ``(4) A DOD non-network TRICARE authorized private health 
     care provider; or
       ``(5) Any health care provider as defined in 825.125.
       ``(b) If the authorized health care provider is unable to 
     make certain military-related determinations outlined below, 
     the authorized health care provider may rely on 
     determinations from an authorized DOD representative (such as 
     a DOD recovery care coordinator) or an authorized VA 
     representative. An employing office may request that the 
     health care provider provide the following information:
       ``(1) The name, address, and appropriate contact 
     information (telephone number, fax number, and/or email 
     address) of the health care provider, the type of medical 
     practice, the medical specialty, and whether the health care 
     provider is one of the following:
       ``(A) A DOD health care provider;
       ``(B) A VA health care provider;
       ``(C) A DOD TRICARE network authorized private health care 
     provider;
       ``(D) A DOD non-network TRICARE authorized private health 
     care provider; or
       ``(E) A health care provider as defined in 825.125.
       ``(2) Whether the covered servicemember's injury or illness 
     was incurred in the line of duty on active duty or, if not, 
     whether the covered servicemember's injury or illness existed 
     before the beginning of the servicemember's active duty and 
     was aggravated by service in the line of duty on active duty;
       ``(3) The approximate date on which the serious injury or 
     illness commenced, or was aggravated, and its probable 
     duration;
       ``(4) A statement or description of appropriate medical 
     facts regarding the covered servicemember's health condition 
     for which FMLA leave is requested. The medical facts must be 
     sufficient to support the need for leave.
       ``(A) In the case of a current member of the Armed Forces, 
     such medical facts must include information on whether the 
     injury or illness may render the covered servicemember 
     medically unfit to perform the duties of the servicemember's 
     office, grade, rank, or rating and whether the member is 
     receiving medical treatment, recuperation, or therapy;
       ``(B) In the case of a covered veteran, such medical facts 
     must include:
       ``(i) Information on whether the veteran is receiving 
     medical treatment, recuperation, or therapy for an injury or 
     illness that is the continuation of an injury or illness that 
     was incurred or aggravated when the covered veteran was a 
     member of the Armed Forces and rendered the servicemember 
     medically unfit to perform the duties of the servicemember's 
     office, grade, rank, or rating; or
       ``(ii) Information on whether the veteran is receiving 
     medical treatment, recuperation, or therapy for an injury or 
     illness that is a physical or mental condition for which the 
     covered veteran has received a U.S. Department of Veterans 
     Affairs Service-Related Disability Rating (VASRD) of 50 
     percent or greater, and that such VASRD rating is based, in 
     whole or in part, on the condition precipitating the need for 
     military caregiver leave; or
       ``(iii) Information on whether the veteran is receiving 
     medical treatment, recuperation, or therapy for an injury or 
     illness that is a physical or mental condition that 
     substantially impairs the covered veteran's ability to secure 
     or follow a substantially gainful occupation by reason of a 
     disability or disabilities related to military service, or 
     would do so absent treatment; or
       ``(iv) Documentation of enrollment in the Department of 
     Veterans Affairs Program of Comprehensive Assistance for 
     Family Caregivers.
       ``(5) Information sufficient to establish that the covered 
     servicemember is in need of care, as described in 825.124, 
     and whether the covered servicemember will need care for a 
     single continuous period of time, including any time for 
     treatment and recovery, and an estimate as to the beginning 
     and ending dates for this period of time;
       ``(6) If an employee requests leave on an intermittent or 
     reduced schedule basis for planned medical treatment 
     appointments for the covered servicemember, whether there is 
     a medical necessity for the covered servicemember to have 
     such periodic care and an estimate of the treatment schedule 
     of such appointments;
       ``(7) If an employee requests leave on an intermittent or 
     reduced schedule basis to care for a covered servicemember 
     other than for planned medical treatment (e.g., episodic 
     flare-ups of a medical condition), whether there is a medical 
     necessity for the covered servicemember to have such periodic 
     care, which can include assisting in the covered 
     servicemember's recovery, and an estimate of the frequency 
     and duration of the periodic care.
       ``(c) Required information from employee and/ or covered 
     servicemember. In addition to the information that may be 
     requested under 825.310(b), an employing office may also 
     request that such certification set forth the following 
     information provided by an employee and/or covered 
     servicemember:
       ``(1) The name and address of the employing office of the 
     employee requesting leave to care for a covered 
     servicemember, the name of the employee requesting such 
     leave, and the name of the covered servicemember for whom the 
     employee is requesting leave to care;
       ``(2) The relationship of the employee to the covered 
     servicemember for whom the employee is requesting leave to 
     care;
       ``(3) Whether the covered servicemember is a current member 
     of the Armed Forces, the National Guard or Reserves, and the 
     covered servicemember's military branch, rank, and current 
     unit assignment;
       ``(4) Whether the covered servicemember is assigned to a 
     military medical facility as an outpatient or to a unit 
     established for the purpose of providing command and control 
     of members of the Armed Forces receiving medical care as 
     outpatients (such as a medical hold or warrior transition 
     unit), and the name of the medical treatment facility or 
     unit;
       ``(5) Whether the covered servicemember is on the temporary 
     disability retired list;
       ``(6) Whether the covered servicemember is a veteran, the 
     date of separation from military service, and whether the 
     separation was

[[Page H9777]]

     other than dishonorable. The employing office may require the 
     employee to provide documentation issued by the military 
     which indicates that the covered servicemember is a veteran, 
     the date of separation, and that the separation is other than 
     dishonorable. Where an employing office requires such 
     documentation, an employee may provide a copy of the 
     veteran's Certificate of Release or Discharge from Active 
     Duty issued by the U.S. Department of Defense (DD Form 214) 
     or other proof of veteran status. See 825.127(c)(2).
       ``(7) A description of the care to be provided to the 
     covered servicemember and an estimate of the leave needed to 
     provide the care.
       ``(d) The Office of Congressional Workplace Rights has 
     developed an optional form (Form F) for employees' use in 
     obtaining certification that meets FMLA's certification 
     requirements. This optional form reflects certification 
     requirements so as to permit the employee to furnish 
     appropriate information to support his or her request for 
     leave to care for a covered servicemember with a serious 
     injury or illness. Form F, or Form WH-385 (developed by the 
     Department of Labor), or another form containing the same 
     basic information, may be used by the employing office; 
     however, no information may be required beyond that specified 
     in this section. In all instances the information on the 
     certification must relate only to the serious injury or 
     illness for which the current need for leave exists. An 
     employing office may seek authentication and/or clarification 
     of the certification under 825.307. Second and third opinions 
     under 825.307 are not permitted for leave to care for a 
     covered servicemember when the certification has been 
     completed by one of the types of healthcare providers 
     identified in section 825.310(a)(1-4). However, second and 
     third opinions under 825.307 are permitted when the 
     certification has been completed by a health care provider as 
     defined in 825.125 that is not one of the types identified in 
     825.310(a)(1)-(4). Additionally, recertifications under 
     825.308 are not permitted for leave to care for a covered 
     servicemember. An employing office may require an employee to 
     provide confirmation of covered family relationship to the 
     seriously injured or ill servicemember pursuant to 825.122(k) 
     of the FMLA.
       ``(e) An employing office requiring an employee to submit a 
     certification for leave to care for a covered servicemember 
     must accept as sufficient certification, in lieu of the 
     Office of Congressional Workplace Rights's optional 
     certification form (Form F) or an employing office's own 
     certification form, invitational travel orders (ITOs) or 
     invitational travel authorizations (ITAs) issued to any 
     family member to join an injured or ill servicemember at his 
     or her bedside. An ITO or ITA is sufficient certification for 
     the duration of time specified in the ITO or ITA. During that 
     time period, an eligible employee may take leave to care for 
     the covered servicemember in a continuous block of time or on 
     an intermittent basis. An eligible employee who provides an 
     ITO or ITA to support his or her request for leave may not be 
     required to provide any additional or separate certification 
     that leave taken on an intermittent basis during the period 
     of time specified in the ITO or ITA is medically necessary. 
     An ITO or ITA is sufficient certification for an employee 
     entitled to take FMLA leave to care for a covered 
     servicemember regardless of whether the employee is named in 
     the order or authorization.
       ``(1) If an employee will need leave to care for a covered 
     servicemember beyond the expiration date specified in an ITO 
     or ITA, an employing office may request that the employee 
     have one of the authorized health care providers listed under 
     825.310(a) complete the Office of Congressional Workplace 
     Rights optional certification form (Form F) or an employing 
     office's own form, as requisite certification for the 
     remainder of the employee's necessary leave period.
       ``(2) An employing office may seek authentication and 
     clarification of the ITO or ITA under 825.307. An employing 
     office may not utilize the second or third opinion process 
     outlined in 825.307 or the recertification process under 
     825.308 during the period of time in which leave is supported 
     by an ITO or ITA.
       ``(3) An employing office may require an employee to 
     provide confirmation of covered family relationship to the 
     seriously injured or ill servicemember pursuant to 825.122(k) 
     when an employee supports his or her request for FMLA leave 
     with a copy of an ITO or ITA.
       ``(f) An employing office requiring an employee to submit a 
     certification for leave to care for a covered servicemember 
     must accept as sufficient certification of the 
     servicemember's serious injury or illness documentation 
     indicating the servicemember's enrollment in the Department 
     of Veterans Affairs Program of Comprehensive Assistance for 
     Family Caregivers. Such documentation is sufficient 
     certification of the servicemember's serious injury or 
     illness to support the employee's request for military 
     caregiver leave regardless of whether the employee is the 
     named caregiver in the enrollment documentation.
       ``(1) An employing office may seek authentication and 
     clarification of the documentation indicating the 
     servicemember's enrollment in the Department of Veterans 
     Affairs Program of Comprehensive Assistance for Family 
     Caregivers under 825.307. An employing office may not utilize 
     the second or third opinion process outlined in 825.307 or 
     the recertification process under 825.308 when the 
     servicemember's serious injury or illness is shown by 
     documentation of enrollment in this program.
       ``(2) An employing office may require an employee to 
     provide confirmation of covered family relationship to the 
     seriously injured or ill servicemember pursuant to 825.122(k) 
     when an employee supports his or her request for FMLA leave 
     with a copy of such enrollment documentation. An employing 
     office may also require an employee to provide documentation, 
     such as a veteran's Form DD-214, showing that the discharge 
     was other than dishonorable and the date of the veteran's 
     discharge.
       ``(g) Where medical certification is requested by an 
     employing office, an employee may not be held liable for 
     administrative delays in the issuance of military documents, 
     despite the employee's diligent, good-faith efforts to obtain 
     such documents. See 825.305(b). In all instances in which 
     certification is requested, it is the employee's 
     responsibility to provide the employing office with complete 
     and sufficient certification and failure to do so may result 
     in the denial of FMLA leave. See 825.305(d).

     ``Sec. 825.311 Intent to return to work

       ``(a) An employing office may require an employee on FMLA 
     leave to report periodically on the employee's status and 
     intent to return to work. The employing office's policy 
     regarding such reports may not be discriminatory and must 
     take into account all of the relevant facts and circumstances 
     related to the individual employee's leave situation.
       ``(b) If an employee gives unequivocal notice of intent not 
     to return to work, the employing office's obligations under 
     FMLA, as made applicable by the CAA, to maintain health 
     benefits (subject to COBRA requirements) and to restore the 
     employee cease. However, these obligations continue if an 
     employee indicates he or she may be unable to return to work 
     but expresses a continuing desire to do so.
       ``(c) It may be necessary for an employee to take more 
     leave than originally anticipated. Conversely, an employee 
     may discover after beginning leave that the circumstances 
     have changed and the amount of leave originally anticipated 
     is no longer necessary. An employee may not be required to 
     take more FMLA leave than necessary to resolve the 
     circumstance that precipitated the need for leave. In both of 
     these situations, the employing office may require that the 
     employee provide the employing office reasonable notice 
     (i.e., within two business days) of the changed circumstances 
     where foreseeable. The employing office may also obtain 
     information on such changed circumstances through requested 
     status reports.

     ``Sec. 825.312 Fitness-for-duty certification

       ``(a) As a condition of restoring an employee whose FMLA 
     leave was occasioned by the employee's own serious health 
     condition that made the employee unable to perform the 
     employee's job, an employing office may have a uniformly-
     applied policy or practice that requires all similarly-
     situated employees (i.e., same occupation, same serious 
     health condition) who take leave for such conditions to 
     obtain and present certification from the employee's health 
     care provider that the employee is able to resume work. The 
     employee has the same obligations to participate and 
     cooperate (including providing a complete and sufficient 
     certification or providing sufficient authorization to the 
     health care provider to provide the information directly to 
     the employing office) in the fitness-for-duty certification 
     process as in the initial certification process. See 
     825.305(d).
       ``(b) An employing office may seek a fitness-for-duty 
     certification only with regard to the particular health 
     condition that caused the employee's need for FMLA leave. The 
     certification from the employee's health care provider must 
     certify that the employee is able to resume work. 
     Additionally, an employing office may require that the 
     certification specifically address the employee's ability to 
     perform the essential functions of the employee's job. In 
     order to require such a certification, an employing office 
     must provide an employee with a list of the essential 
     functions of the employee's job no later than with the 
     designation notice required by 825.300(d), and must indicate 
     in the designation notice that the certification must address 
     the employee's ability to perform those essential functions. 
     If the employing office satisfies these requirements, the 
     employee's health care provider must certify that the 
     employee can perform the identified essential functions of 
     his or her job. Following the procedures set forth in 
     825.307(a), the employing office may contact the employee's 
     health care provider for purposes of clarifying and 
     authenticating the fitness-for-duty certification. 
     Clarification may be requested only for the serious health 
     condition for which FMLA leave was taken. The employing 
     office may not delay the employee's return to work while 
     contact with the health care provider is being made. No 
     second or third opinions on a fitness-for-duty certification 
     may be required.
       ``(c) The cost of the certification shall be borne by the 
     employee, and the employee is not entitled to be paid for the 
     time or travel costs spent in acquiring the certification.
       ``(d) The designation notice required in 825.300(d) shall 
     advise the employee if the employing office will require a 
     fitness-for-duty certification to return to work and

[[Page H9778]]

     whether that fitness-for-duty certification must address the 
     employee's ability to perform the essential functions of the 
     employee's job.
       ``(e) An employing office may delay restoration to 
     employment until an employee submits a required fitness-for-
     duty certification unless the employing office has failed to 
     provide the notice required in paragraph (d) of this section. 
     If an employing office provides the notice required, an 
     employee who does not provide a fitness-for-duty 
     certification or request additional FMLA leave is no longer 
     entitled to reinstatement under the FMLA. See 825.313(d).
       ``(f) An employing office is not entitled to a 
     certification of fitness to return to duty for each absence 
     taken on an intermittent or reduced leave schedule. However, 
     an employing office is entitled to a certification of fitness 
     to return to duty for such absences up to once every 30 days 
     if reasonable safety concerns exist regarding the employee's 
     ability to perform his or her duties, based on the serious 
     health condition for which the employee took such leave. If 
     an employing office chooses to require a fitness-for-duty 
     certification under such circumstances, the employing office 
     shall inform the employee at the same time it issues the 
     designation notice that for each subsequent instance of 
     intermittent or reduced schedule leave, the employee will be 
     required to submit a fitness-for-duty certification unless 
     one has already been submitted within the past 30 days. 
     Alternatively, an employing office can set a different 
     interval for requiring a fitness-for-duty certification as 
     long as it does not exceed once every 30 days and as long as 
     the employing office advises the employee of the requirement 
     in advance of the employee taking the intermittent or reduced 
     schedule leave. The employing office may not terminate the 
     employment of the employee while awaiting such a 
     certification of fitness to return to duty for an 
     intermittent or reduced schedule leave absence. Reasonable 
     safety concerns means a reasonable belief of significant risk 
     of harm to the individual employee or others. In determining 
     whether reasonable safety concerns exist, an employing office 
     should consider the nature and severity of the potential harm 
     and the likelihood that potential harm will occur.
       ``(g) If the terms of a collective bargaining agreement 
     govern an employee's return to work, those provisions shall 
     be applied.
       ``(h) Requirements under the Americans with Disabilities 
     Act (ADA), as amended and as made applicable by the CAA, 
     apply. After an employee returns from FMLA leave, the ADA 
     requires any medical examination at an employing office's 
     expense by the employing office's health care provider be 
     job-related and consistent with business necessity. For 
     example, an attorney could not be required to submit to a 
     medical examination or inquiry just because her leg had been 
     amputated. The essential functions of an attorney's job do 
     not require use of both legs; therefore such an inquiry would 
     not be job related. An employing office may require a 
     warehouse laborer, whose back impairment affects the ability 
     to lift, to be examined by an orthopedist, but may not 
     require this employee to submit to an HIV test where the test 
     is not related to either the essential functions of his or 
     her job or to his/her impairment. If an employee's serious 
     health condition may also be a disability within the meaning 
     of the ADA, as made applicable by the CAA, the FMLA does not 
     prevent the employing office from following the procedures 
     for requesting medical information under the ADA.

     ``Sec. 825.313 Failure to provide certification

       ``(a) Foreseeable leave. In the case of foreseeable leave, 
     if an employee fails to provide certification in a timely 
     manner as required by 825.305, then an employing office may 
     deny FMLA coverage until the required certification is 
     provided. For example, if an employee has 15 days to provide 
     a certification and does not provide the certification for 45 
     days without sufficient reason for the delay, the employing 
     office can deny FMLA protections for the 30-day period 
     following the expiration of the 15-day time period, if the 
     employee takes leave during such period.
       ``(b) Unforeseeable leave. In the case of unforeseeable 
     leave, an employing office may deny FMLA coverage for the 
     requested leave if the employee fails to provide a 
     certification within 15 calendar days from receipt of the 
     request for certification unless not practicable due to 
     extenuating circumstances. For example, in the case of a 
     medical emergency, it may not be practicable for an employee 
     to provide the required certification within 15 calendar 
     days. Absent such extenuating circumstances, if the employee 
     fails to timely return the certification, the employing 
     office can deny FMLA protections for the leave following the 
     expiration of the 15-day time period until a sufficient 
     certification is provided. If the employee never produces the 
     certification, the leave is not FMLA leave.
       ``(c) Recertification. An employee must provide 
     recertification within the time requested by the employing 
     office (which must allow at least 15 calendar days after the 
     request) or as soon as practicable under the particular facts 
     and circumstances. If an employee fails to provide a 
     recertification within a reasonable time under the particular 
     facts and circumstances, then the employing office may deny 
     continuation of the FMLA leave protections until the employee 
     produces a sufficient recertification. If the employee never 
     produces the recertification, the leave is not FMLA leave. 
     Recertification does not apply to leave taken for a 
     qualifying exigency or to care for a covered servicemember.
       ``(d) Fitness-for-duty certification. When requested by the 
     employing office pursuant to a uniformly applied policy for 
     similarly-situated employees, the employee must provide 
     medical certification, at the time the employee seeks 
     reinstatement at the end of FMLA leave taken for the 
     employee's serious health condition, that the employee is fit 
     for duty and able to return to work (see 825.312(a)) if the 
     employing office has provided the required notice (see 
     825.300(e)); the employing office may delay restoration until 
     the certification is provided. Unless the employee provides 
     either a fitness-for-duty certification or a new medical 
     certification for a serious health condition at the time FMLA 
     leave is concluded, the employee may be terminated. See also 
     825.213(a)(3).

                  ``Subpart D--Administrative Process

     ``Sec. 825.400 Administrative process, general rules

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

 ``Sec. 825.401 [Reserved]

     ``Sec. 825.402 [Reserved]

     ``Sec. 825.403 [Reserved]

     ``Sec. 825.404 [Reserved]

                        ``Subpart E--[Reserved]

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

     ``Sec. 825.600 Special rules for school employees, 
       definitions

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

     ``Sec. 825.601 Special rules for school employees, 
       limitations on intermittent leave

       ``(a) Leave taken for a period that ends with the school 
     year and begins the next semester is leave taken 
     consecutively rather

[[Page H9779]]

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

     ``Sec. 825.602 Special rules for school employees, 
       limitations on leave near the end of an academic term

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

     ``Sec. 825.603 Special rules for school employees, duration 
       of FMLA leave

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

     ``Sec. 825.604 Special rules for school employees, 
       restoration to an equivalent position

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

  ``Subpart G--Effect of Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements on Employee Rights Under the FMLA, As 
                       Made Applicable By the CAA

     ``Sec. 825.700 Interaction with employing office's policies

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

     ``Sec. 825.701 [Reserved]

     ``Sec. 825.702 Interaction with anti-discrimination laws, as 
       applied by section 201 of the CAA

       ``(a) Nothing in the FMLA modifies or affects any 
     applicable law prohibiting discrimination on the basis of 
     race, religion, color, national origin, sex, age, or 
     disability (e.g., title VII of the Civil Rights Act of 1964, 
     as amended by the Pregnancy Discrimination Act and as made 
     applicable by the CAA). FMLA's legislative history explains 
     that FMLA is `not intended to modify or affect the 
     Rehabilitation Act of 1973, as amended, the regulations 
     concerning employment which have been promulgated pursuant to 
     that statute, or the Americans with Disabilities Act of 1990 
     [as amended] or the regulations issued under that act. Thus, 
     the leave provisions of the [FMLA] are wholly distinct from 
     the reasonable accommodation obligations of employers covered 
     under the [ADA] . . . or the Federal government itself. The 
     purpose of the FMLA, as applied by the CAA, is to make leave 
     available to eligible employees and [employing offices] 
     within its coverage, and not to limit already existing rights 
     and protection.' S. Rep. No. 3, 103d Cong., 1st Sess. 38 
     (1993). An employing office must therefore provide leave 
     under whichever statutory provision provides the greater 
     rights to employees. When an employer violates both FMLA and 
     a discrimination law, an employee may be able to recover 
     under either or both statutes (double relief may not be 
     awarded for the same loss; when remedies coincide a claimant 
     may be allowed to utilize whichever avenue of relief is 
     desired. Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 
     445 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086 (1978).
       ``(b) If an employee is a qualified individual with a 
     disability within the meaning of the Americans with 
     Disabilities Act (ADA), as made applicable by the CAA, the 
     employing office must make reasonable accommodations, etc., 
     barring undue hardship, in accordance with the ADA. At the 
     same time, the employing office must afford an employee his 
     or her FMLA rights, as made applicable by the CAA. ADA's 
     `disability'

[[Page H9780]]

     and FMLA's `serious health condition' are different concepts, 
     and must be analyzed separately. FMLA entitles eligible 
     employees to 12 weeks of leave in any 12-month period due to 
     their own serious health condition, whereas the ADA allows an 
     indeterminate amount of leave, barring undue hardship, as a 
     reasonable accommodation. FMLA requires employing offices to 
     maintain employees' group health plan coverage during FMLA 
     leave on the same conditions as coverage would have been 
     provided if the employee had been continuously employed 
     during the leave period, whereas ADA does not require 
     maintenance of health insurance unless other employees 
     receive health insurance during leave under the same 
     circumstances.
       ``(c)(1) A reasonable accommodation under the ADA might be 
     accomplished by providing an individual with a disability 
     with a part-time job with no health benefits, assuming the 
     employing office did not ordinarily provide health insurance 
     for part-time employees. However, FMLA would permit an 
     employee to work a reduced leave schedule until the 
     equivalent of 12 workweeks of leave were used, with group 
     health benefits maintained during this period. FMLA permits 
     an employing office to temporarily transfer an employee who 
     is taking leave intermittently or on a reduced leave schedule 
     to an alternative position, whereas the ADA allows an 
     accommodation of reassignment to an equivalent, vacant 
     position only if the employee cannot perform the essential 
     functions of the employee's present position and an 
     accommodation is not possible in the employee's present 
     position, or an accommodation in the employee's present 
     position would cause an undue hardship. The examples in the 
     following paragraphs of this section demonstrate how the two 
     laws would interact with respect to a qualified individual 
     with a disability.
       ``(2) A qualified individual with a disability who is also 
     an eligible employee entitled to FMLA leave requests 10 weeks 
     of medical leave as a reasonable accommodation, which the 
     employing office grants because it is not an undue hardship. 
     The employing office advises the employee that the 10 weeks 
     of leave is also being designated as FMLA leave and will 
     count towards the employee's FMLA leave entitlement. This 
     designation does not prevent the parties from also treating 
     the leave as a reasonable accommodation and reinstating the 
     employee into the same job, as required by the ADA, rather 
     than an equivalent position under FMLA, if that is the 
     greater right available to the employee. At the same time, 
     the employee would be entitled under FMLA to have the 
     employing office maintain group health plan coverage during 
     the leave, as that requirement provides the greater right to 
     the employee.
       ``(3) If the same employee needed to work part-time (a 
     reduced leave schedule) after returning to his or her same 
     job, the employee would still be entitled under FMLA to have 
     group health plan coverage maintained for the remainder of 
     the two-week equivalent of FMLA leave entitlement, 
     notwithstanding an employing office policy that part-time 
     employees do not receive health insurance. This employee 
     would be entitled under the ADA to reasonable accommodations 
     to enable the employee to perform the essential functions of 
     the part-time position. In addition, because the employee is 
     working a part-time schedule as a reasonable accommodation, 
     the FMLA's provision for temporary assignment to a different 
     alternative position would not apply. Once the employee has 
     exhausted his or her remaining FMLA leave entitlement while 
     working the reduced (part-time) schedule, if the employee is 
     a qualified individual with a disability, and if the employee 
     is unable to return to the same full-time position at that 
     time, the employee might continue to work part-time as a 
     reasonable accommodation, barring undue hardship; the 
     employee would then be entitled to only those employment 
     benefits ordinarily provided by the employing office to part-
     time employees.
       ``(4) At the end of the FMLA leave entitlement, an 
     employing office is required under FMLA to reinstate the 
     employee in the same or an equivalent position, with 
     equivalent pay and benefits, to that which the employee held 
     when leave commenced. The employing office's FMLA obligations 
     would be satisfied if the employing office offered the 
     employee an equivalent full-time position. If the employee 
     were unable to perform the essential functions of that 
     equivalent position even with reasonable accommodation, 
     because of a disability, the ADA may require the employing 
     office to make a reasonable accommodation at that time by 
     allowing the employee to work part-time or by reassigning the 
     employee to a vacant position, barring undue hardship.
       ``(d)(1) If FMLA entitles an employee to leave, an 
     employing office may not, in lieu of FMLA leave entitlement, 
     require an employee to take a job with a reasonable 
     accommodation. However, ADA may require that an employing 
     office offer an employee the opportunity to take such a 
     position. An employing office may not change the essential 
     functions of the job in order to deny FMLA leave. See 
     825.220(b).
       ``(2) An employee may be on a workers' compensation absence 
     due to an on-the-job injury or illness which also qualifies 
     as a serious health condition under FMLA. The workers' 
     compensation absence and FMLA leave may run concurrently 
     (subject to proper notice and designation by the employing 
     office). At some point the health care provider providing 
     medical care pursuant to the workers' compensation injury may 
     certify the employee is able to return to work in a light 
     duty position. If the employing office offers such a 
     position, the employee is permitted but not required to 
     accept the position. See 825.220(d). As a result, the 
     employee may no longer qualify for payments from the workers' 
     compensation benefit plan, but the employee is entitled to 
     continue on unpaid FMLA leave either until the employee is 
     able to return to the same or equivalent job the employee 
     left or until the 12-week FMLA leave entitlement is 
     exhausted. See 825.207(e). If the employee returning from the 
     workers' compensation injury is a qualified individual with a 
     disability, he or she will have rights under the ADA, as made 
     applicable by the CAA.
       ``(e) If an employing office requires certifications of an 
     employee's fitness for duty to return to work, as permitted 
     by FMLA under a uniform policy, it must comply with the ADA 
     requirement that a fitness for duty physical be job-related 
     and consistent with business necessity.
       ``(f) Under Title VII of the Civil Rights Act of 1964, as 
     amended by the Pregnancy Discrimination Act, and as made 
     applicable by the CAA, an employing office should provide the 
     same benefits for women who are pregnant as the employing 
     office provides to other employees with short-term 
     disabilities. Because Title VII does not require employees to 
     be employed for a certain period of time to be protected, an 
     employee employed for less than 12 months by the employing 
     office may not be denied maternity leave if the employing 
     office normally provides short-term disability benefits to 
     employees with the same tenure who are experiencing other 
     short-term disabilities.
       ``(g) Under the Uniformed Services Employment and 
     Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 4301, et 
     seq., veterans are entitled to receive all rights and 
     benefits of employment that they would have obtained if they 
     had been continuously employed. Therefore, under USERRA, a 
     returning servicemember would be eligible for FMLA leave if 
     the months and hours that he or she would have worked for the 
     civilian employing office during the period of absence due to 
     or necessitated by USERRA-covered service, combined with the 
     months employed and the hours actually worked, meet the FMLA 
     eligibility threshold of 12 months of employment and the 
     hours of service requirement. See 825.110(b)(2)(i) and (c)(2) 
     and 825.802(c).
       ``(h) For further information on Federal antidiscrimination 
     laws applied by section 201 of the CAA (2 U.S.C. 1311), 
     including Title VII, the Rehabilitation Act, and the ADA, 
     individuals are encouraged to contact the Office of 
     Congressional Workplace Rights.

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

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

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

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

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

     ``Sec. 541.0 Introductory statement

       ``(a) Section 13(a)(1) of the Fair Labor Standards Act, as 
     amended, provides an exemption from the Act's minimum wage 
     and overtime requirements for any employee employed in a bona 
     fide executive, administrative, or professional capacity 
     (including any employee employed in the capacity of academic 
     administrative personnel or teacher in elementary or 
     secondary schools)[, or in the capacity of an outside sales 
     employee, as such terms are defined and delimited from time 
     to time by regulations of the Secretary, subject to the 
     provisions of the Administrative Procedure Act.]<< and 
     applies to covered employees by virtue of section 225(e)(1) 
     of the CAA, as amended, 2 U.S.C. 1361(e)(1).>> Section 
     13(a)(17) of the Act provides an exemption from the minimum 
     wage and overtime requirements for computer systems analysts, 
     computer programmers, software engineers, and other similarly 
     skilled computer employees << and applies to covered 
     employees by virtue of section 225(e)(1) of the CAA, as 
     amended, 2 U.S.C. 1361(e)(1)>>.
       ``(b) The requirements for these exemptions are contained 
     in this part as follows: executive employees, subpart B; 
     administrative employees, subpart C; professional employees, 
     subpart D; computer employees, subpart E[; outside sales 
     employees, subpart F]. Subpart G contains regulations 
     regarding salary requirements applicable to most of the 
     exemptions, including salary levels

[[Page H9781]]

     and the salary basis test. Subpart G also contains a 
     provision for exempting certain highly compensated employees. 
     Subpart H contains definitions and other miscellaneous 
     provisions applicable to all or several of the exemptions.
       ``(c) Effective July 1, 1972, the Fair Labor Standards Act 
     was amended to include within the protection of the equal pay 
     provisions those employees exempt from the minimum wage and 
     overtime pay provisions as bona fide executive, 
     administrative, and professional employees (including any 
     employee employed in the capacity of academic administrative 
     personnel or teacher in elementary or secondary schools)[, or 
     in the capacity of an outside sales employee under section 
     13(a)(1) of the Act]. The equal pay provisions in section 
     6(d) of the Fair Labor Standards Act are administered and 
     enforced by the [United States Equal Employment Opportunity 
     Commission]<>.

     ``Sec. 541.1 Terms used in regulations

       ``Act means the Fair Labor Standards Act of 1938, as 
     amended. [Administrator means the Administrator of the Wage 
     and Hour Division, United States Department of Labor. The 
     Secretary of Labor has delegated to the Administrator the 
     functions vested in the Secretary under sections 13(a)(1) and 
     13(a)(17) of the Fair Labor Standards Act.] <>

     ``Sec. 541.2 Job titles insufficient

       ``A job title alone is insufficient to establish the exempt 
     status of an employee. The exempt or nonexempt status of any 
     particular employee must be determined on the basis of 
     whether the employee's salary and duties meet the 
     requirements of the regulations in this part.

     ``Sec. 541.3 Scope of the section 13(a)(1) exemptions

       ``(a) The section 13(a)(1) exemptions and the regulations 
     in this part do not apply to manual laborers or other `blue 
     collar' workers who perform work involving repetitive 
     operations with their hands, physical skill and energy. Such 
     nonexempt `blue collar' employees gain the skills and 
     knowledge required for performance of their routine manual 
     and physical work through apprenticeships and on-the-job 
     training, not through the prolonged course of specialized 
     intellectual instruction required for exempt learned 
     professional employees such as medical doctors, architects 
     and archeologists. Thus, for example, non-management 
     production-line employees and non-management employees in 
     maintenance, construction and similar occupations such as 
     carpenters, electricians, mechanics, plumbers, iron workers, 
     craftsmen, operating engineers, longshoremen, construction 
     workers and laborers are entitled to minimum wage and 
     overtime premium pay under the Fair Labor Standards Act, and 
     are not exempt under the regulations in this part no matter 
     how highly paid they might be.
       ``(b)(1) The section 13(a)(1) exemptions and the 
     regulations in this part also do not apply to police 
     officers, detectives, [deputy sheriffs, state troopers, 
     highway patrol officers,] investigators, inspectors, 
     [correctional officers, parole or probation officers,] park 
     rangers, fire fighters, paramedics, emergency medical 
     technicians, ambulance personnel, rescue workers, hazardous 
     materials workers and similar employees, regardless of rank 
     or pay level, who perform work such as preventing, 
     controlling or extinguishing fires of any type; rescuing 
     fire, crime or accident victims; preventing or detecting 
     crimes; conducting investigations or inspections for 
     violations of law; performing surveillance; pursuing, 
     restraining and apprehending suspects; detaining or 
     supervising suspected and convicted criminals, including 
     those on probation or parole; interviewing witnesses; 
     interrogating and fingerprinting suspects; preparing 
     investigative reports; or other similar work.
       ``(2) Such employees do not qualify as exempt executive 
     employees because their primary duty is not management of the 
     [enterprise] <> in which the employee is 
     employed or a customarily recognized department or 
     subdivision thereof as required under Sec. 541.100. Thus, for 
     example, a police officer or fire fighter whose primary duty 
     is to investigate crimes or fight fires is not exempt under 
     section 13(a)(1) of the Act merely because the police officer 
     or fire fighter also directs the work of other employees in 
     the conduct of an investigation or fighting a fire.
       ``(3) Such employees do not qualify as exempt 
     administrative employees because their primary duty is not 
     the performance of work directly related to the management or 
     general business operations of the employer or the employer's 
     customers<<, constituents or stakeholders>> as required under 
     Sec. 541.200.
       ``(4) Such employees do not qualify as exempt professionals 
     because their primary duty is not the performance of work 
     requiring knowledge of an advanced type in a field of science 
     or learning customarily acquired by a prolonged course of 
     specialized intellectual instruction or the performance of 
     work requiring invention, imagination, originality or talent 
     in a recognized field of artistic or creative endeavor as 
     required under Sec. 541.300. Although some police officers, 
     fire fighters, paramedics, emergency medical technicians and 
     similar employees have college degrees, a specialized 
     academic degree is not a standard prerequisite for employment 
     in such occupations.

     ``Sec. 541.4 Other laws and collective bargaining agreements

       ``The Fair Labor Standards Act provides minimum standards 
     that may be exceeded, but cannot be waived or reduced. 
     Employers must comply, for example, with any Federal[, State 
     or municipal] laws, regulations or ordinances establishing a 
     higher minimum wage or lower maximum workweek than those 
     established under the Act. Similarly, employers, on their own 
     initiative or under a collective bargaining agreement with a 
     labor union, are not precluded by the Act from providing a 
     wage higher than the statutory minimum, a shorter workweek 
     than the statutory maximum, or a higher overtime premium 
     (double time, for example) than provided by the Act. While 
     collective bargaining agreements cannot waive or reduce the 
     Act's protections, nothing in the Act or the regulations in 
     this part relieves employers from their contractual 
     obligations under collective bargaining agreements.

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

     ``Sec. 541.100 General rule for executive employees

       ``(a) The term `employee employed in a bona fide executive 
     capacity' in section 13(a)(1) of the Act shall mean any 
     employee:
       ``(1) Compensated on a salary basis pursuant to 
     Sec. 541.600 at a rate of not less than $684 per week [(or 
     $455 per week if employed in the Commonwealth of the Northern 
     Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin 
     Islands by employers other than the Federal government, or 
     $380 per week if employed in American Samoa by employers 
     other than the Federal government)], exclusive of board, 
     lodging or other facilities;
       ``(2) Whose primary duty is management of the [enterprise] 
     <> in which the employee is employed or of 
     a customarily recognized department or subdivision thereof;
       ``(3) Who customarily and regularly directs the work of two 
     or more other employees; and
       ``(4) Who has the authority to hire or fire other employees 
     or whose suggestions and recommendations as to the hiring, 
     firing, advancement, promotion or any other change of status 
     of other employees are given particular weight.
       ``(b) The phrase `salary basis' is defined at Sec. 541.602; 
     `board, lodging or other facilities' is defined at 
     Sec. 541.606; `primary duty' is defined at Sec. 541.700; and 
     `customarily and regularly' is defined at Sec. 541.701.

     [``Sec. 541.101 Business owner

       ``The term `employee employed in a bona fide executive 
     capacity' in section 13(a)(1) of the Act also includes any 
     employee who owns at least a bona fide 20-percent equity 
     interest in the enterprise in which the employee is employed, 
     regardless of whether the business is a corporate or other 
     type of organization, and who is actively engaged in its 
     management. The term `management' is defined in Sec. 541.102. 
     The requirements of Subpart G (salary requirements) of this 
     part do not apply to the business owners described in this 
     section.]

     ``Sec. 541.102 Management

       ``Generally, `management' includes, but is not limited to, 
     activities such as interviewing, selecting, and training of 
     employees; setting and adjusting their rates of pay and hours 
     of work; directing the work of employees; maintaining 
     production or sales records for use in supervision or 
     control; appraising employees' productivity and efficiency 
     for the purpose of recommending promotions or other changes 
     in status; handling employee complaints and grievances; 
     disciplining employees; planning the work; determining the 
     techniques to be used; apportioning the work among the 
     employees; determining the type of materials, supplies, 
     machinery, equipment or tools to be used or merchandise to be 
     bought, stocked and sold; controlling the flow and 
     distribution of materials or merchandise and supplies; 
     providing for the safety and security of the employees or the 
     property; planning and controlling the budget; and monitoring 
     or implementing legal compliance measures.

     ``Sec. 541.103 Department or subdivision

       ``(a) The phrase `a customarily recognized department or 
     subdivision' is intended to distinguish between a mere 
     collection of employees assigned from time to time to a 
     specific job or series of jobs and a unit with permanent 
     status and function. A customarily recognized department or 
     subdivision must have a permanent status and a continuing 
     function. For example, a large employer's human resources 
     department might have subdivisions for labor relations, 
     pensions and other benefits, equal employment opportunity, 
     and personnel management, each of which has a permanent 
     status and function.
       ``(b) When an [enterprise] <> has more 
     than one [establishment] <>, the employee in charge 
     of each [establishment] <> may be considered in 
     charge of a recognized subdivision of the [enterprise] 
     <>.

[[Page H9782]]

       ``(c) A recognized department or subdivision need not be 
     physically within the employer's establishment and may move 
     from place to place. The mere fact that the employee works in 
     more than one location does not invalidate the exemption if 
     other factors show that the employee is actually in charge of 
     a recognized unit with a continuing function in the 
     organization.
       ``(d) Continuity of the same subordinate personnel is not 
     essential to the existence of a recognized unit with a 
     continuing function. An otherwise exempt employee will not 
     lose the exemption merely because the employee draws and 
     supervises workers from a pool or supervises a team of 
     workers drawn from other recognized units, if other factors 
     are present that indicate that the employee is in charge of a 
     recognized unit with a continuing function.

     ``Sec. 541.104 Two or more other employees

       ``(a) To qualify as an exempt executive under Sec. 541.100, 
     the employee must customarily and regularly direct the work 
     of two or more other employees. The phrase `two or more other 
     employees' means two full-time employees or their equivalent. 
     One full-time and two half-time employees, for example, are 
     equivalent to two full-time employees. Four half-time 
     employees are also equivalent.
       ``(b) The supervision can be distributed among two, three 
     or more employees, but each such employee must customarily 
     and regularly direct the work of two or more other full-time 
     employees or the equivalent. Thus, for example, a department 
     with five full-time nonexempt workers may have up to two 
     exempt supervisors if each such supervisor customarily and 
     regularly directs the work of two of those workers.
       ``(c) An employee who merely assists the manager of a 
     particular department and supervises two or more employees 
     only in the actual manager's absence does not meet this 
     requirement.
       ``(d) Hours worked by an employee cannot be credited more 
     than once for different executives. Thus, a shared 
     responsibility for the supervision of the same two employees 
     in the same department does not satisfy this requirement. 
     However, a full-time employee who works four hours for one 
     supervisor and four hours for a different supervisor, for 
     example, can be credited as a half-time employee for both 
     supervisors.

     ``Sec. 541.105 Particular weight

       ``To determine whether an employee's suggestions and 
     recommendations are given `particular weight,' factors to be 
     considered include, but are not limited to, whether it is 
     part of the employee's job duties to make such suggestions 
     and recommendations; the frequency with which such 
     suggestions and recommendations are made or requested; and 
     the frequency with which the employee's suggestions and 
     recommendations are relied upon. Generally, an executive's 
     suggestions and recommendations must pertain to employees 
     whom the executive customarily and regularly directs. It does 
     not include an occasional suggestion with regard to the 
     change in status of a co-worker. An employee's suggestions 
     and recommendations may still be deemed to have `particular 
     weight' even if a higher level manager's recommendation has 
     more importance and even if the employee does not have 
     authority to make the ultimate decision as to the employee's 
     change in status.

     ``Sec. 541.106 Concurrent duties

       ``(a) Concurrent performance of exempt and nonexempt work 
     does not disqualify an employee from the executive exemption 
     if the requirements of Sec. 541.100 are otherwise met. 
     Whether an employee meets the requirements of Sec. 541.100 
     when the employee performs concurrent duties is determined on 
     a case-by-case basis and based on the factors set forth in 
     Sec. 541.700. Generally, exempt executives make the decision 
     regarding when to perform nonexempt duties and remain 
     responsible for the success or failure of business operations 
     under their management while performing the nonexempt work. 
     In contrast, the nonexempt employee generally is directed by 
     a supervisor to perform the exempt work or performs the 
     exempt work for defined time periods. An employee whose 
     primary duty is ordinary production work or routine, 
     recurrent or repetitive tasks cannot qualify for exemption as 
     an executive.
       ``(b) For example, an assistant manager in a retail 
     establishment may perform work such as serving customers, 
     cooking food, stocking shelves and cleaning the 
     establishment, but performance of such nonexempt work does 
     not preclude the exemption if the assistant manager's primary 
     duty is management. An assistant manager can supervise 
     employees and serve customers at the same time without losing 
     the exemption. An exempt employee can also simultaneously 
     direct the work of other employees and stock shelves.
       ``(c) In contrast, a relief supervisor or working 
     supervisor whose primary duty is performing nonexempt work on 
     the production line in a manufacturing plant does not become 
     exempt merely because the nonexempt production line employee 
     occasionally has some responsibility for directing the work 
     of other nonexempt production line employees when, for 
     example, the exempt supervisor is unavailable. Similarly, an 
     employee whose primary duty is to work as an electrician is 
     not an exempt executive even if the employee also directs the 
     work of other employees on the job site, orders parts and 
     materials for the job, and handles requests from the prime 
     contractor.

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

     ``Sec. 541.200 General rule for administrative employees

       ``(a) The term `employee employed in a bona fide 
     administrative capacity' in section 13(a)(1) of the Act shall 
     mean any employee:
       ``(1) Compensated on a salary or fee basis pursuant to 
     Sec. 541.600 at a rate of not less than $684 per week [(or 
     $455 per week if employed in the Commonwealth of the Northern 
     Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin 
     Islands by employers other than the Federal government, or 
     $380 per week if employed in American Samoa by employers 
     other than the Federal government)], exclusive of board, 
     lodging or other facilities;
       ``(2) Whose primary duty is the performance of office or 
     non-manual work directly related to the management or general 
     business operations of the employer or the employer's 
     customers<<, constituents or stakeholders>>; and
       ``(3) Whose primary duty includes the exercise of 
     discretion and independent judgment with respect to matters 
     of significance.
       ``(b) The term `salary basis' is defined at Sec. 541.602; 
     `fee basis' is defined at Sec. 541.605; `board, lodging or 
     other facilities' is defined at Sec. 541.606; and `primary 
     duty' is defined at Sec. 541.700.

     ``Sec. 541.201 Directly related to management or general 
       business operations

       ``(a) To qualify for the administrative exemption, an 
     employee's primary duty must be the performance of work 
     directly related to the management or general business 
     operations of the employer or the employer's customers<<, 
     constituents or stakeholders>>. The phrase `directly related 
     to the management or general business operations' refers to 
     the type of work performed by the employee. To meet this 
     requirement, an employee must perform work directly related 
     to assisting with the running or servicing of the [business] 
     <>, as distinguished, for example, from 
     working on a manufacturing production line or selling a 
     product in a retail or service establishment.
       ``(b) Work directly related to management or general 
     business operations includes, but is not limited to, work in 
     functional areas such as tax; finance; accounting; budgeting; 
     auditing; insurance; quality control; purchasing; 
     procurement; advertising; marketing; research; safety and 
     health; personnel management; human resources; employee 
     benefits; labor relations; public relations, government 
     relations; computer network, internet and database 
     administration; legal and regulatory compliance; and similar 
     activities. Some of these activities may be performed by 
     employees who also would qualify for another exemption.
       ``(c) An employee may qualify for the administrative 
     exemption if the employee's primary duty is the performance 
     of work directly related to the management or general 
     business operations of the employer's customers<<, 
     constituents and/or stakeholders>>. Thus, for example, 
     employees acting as advisers or consultants to their 
     employer's [clients or] customer<<, constituents or 
     stakeholders>> (as tax experts or financial consultants, for 
     example) may be exempt.

     ``Sec. 541.202 Discretion and independent judgment

       ``(a) To qualify for the administrative exemption, an 
     employee's primary duty must include the exercise of 
     discretion and independent judgment with respect to matters 
     of significance. In general, the exercise of discretion and 
     independent judgment involves the comparison and the 
     evaluation of possible courses of conduct, and acting or 
     making a decision after the various possibilities have been 
     considered. The term `matters of significance' refers to the 
     level of importance or consequence of the work performed.
       ``(b) The phrase `discretion and independent judgment' must 
     be applied in the light of all the facts involved in the 
     particular employment situation in which the question arises. 
     Factors to consider when determining whether an employee 
     exercises discretion and independent judgment with respect to 
     matters of significance include, but are not limited to: 
     whether the employee has authority to formulate, affect, 
     interpret, or implement management policies or operating 
     practices; whether the employee carries out major assignments 
     in conducting the operations of the [business] <>; whether the employee performs work that affects 
     business operations <>to a 
     substantial degree, even if the employee's assignments are 
     related to operation of a particular segment of the 
     [business] <>; whether the employee has 
     authority to commit the employer in matters that have 
     significant financial impact; whether the employee has 
     authority to waive or deviate from established policies and 
     procedures without prior approval; whether the employee has 
     authority to negotiate and bind the [company]<> on significant matters; whether the employee 
     provides consultation or expert advice to management; whether 
     the employee is involved in planning longer short-term 
     [business] <> objectives; whether the 
     employee investigates and resolves matters of significance on 
     behalf of management; and whether the employee represents the 
     [company]<>

[[Page H9783]]

     in handling complaints, arbitrating disputes or resolving 
     grievances.
       ``(c) The exercise of discretion and independent judgment 
     implies that the employee has authority to make an 
     independent choice, free from immediate direction or 
     supervision. However, employees can exercise discretion and 
     independent judgment even if their decisions or 
     recommendations are reviewed at a higher level. Thus, the 
     term `discretion and independent judgment' does not require 
     that the decisions made by an employee have a finality that 
     goes with unlimited authority and a complete absence of 
     review. The decisions made as a result of the exercise of 
     discretion and independent judgment may consist of 
     recommendations for action rather than the actual taking of 
     action. The fact that an employee's decision may be subject 
     to review and that upon occasion the decisions are revised or 
     reversed after review does not mean that the employee is not 
     exercising discretion and independent judgment. For example, 
     the policies formulated by the [credit] manager of a<> 
     [large corporation]<> may be subject to 
     review by higher [company]<> officials who 
     may approve or disapprove these policies. The [management 
     consultant] <> who has made a study of 
     the operations of a [business] <> and who has 
     drawn a proposed change in organization may have the plan 
     reviewed or revised by superiors before it is [submitted to 
     the client]<>.
       ``(d) An employer's volume of [business] <> may make 
     it necessary to employ a number of employees to perform the 
     same or similar work. The fact that many employees perform 
     identical work or work of the same relative importance does 
     not mean that the work of each such employee does not involve 
     the exercise of discretion and independent judgment with 
     respect to matters of significance.
       ``(e) The exercise of discretion and independent judgment 
     must be more than the use of skill in applying well-
     established techniques, procedures or specific standards 
     described in manuals or other sources. See also Sec. 541.704 
     regarding use of manuals. The exercise of discretion and 
     independent judgment also does not include clerical or 
     secretarial work, recording or tabulating data, or performing 
     other mechanical, repetitive, recurrent or routine work. An 
     employee who simply tabulates data is not exempt, even if 
     labeled as a `statistician.'
       ``(f) An employee does not exercise discretion and 
     independent judgment with respect to matters of significance 
     merely because the employer will experience financial losses 
     if the employee fails to perform the job properly. For 
     example, a messenger who is entrusted with carrying large 
     sums of money does not exercise discretion and independent 
     judgment with respect to matters of significance even though 
     serious consequences may flow from the employee's neglect. 
     Similarly, an employee who operates very expensive equipment 
     does not exercise discretion and independent judgment with 
     respect to matters of significance merely because improper 
     performance of the employee's duties may cause serious 
     financial loss to the employer.

     ``Sec. 541.203 Administrative exemption examples

       ``(a) [Insurance claims adjusters]<> generally meet the duties requirements 
     for the administrative exemption[, whether they work for an 
     insurance company or other type of company,] if their duties 
     include activities such as interviewing [insureds,] witnesses 
     [and physicians]; inspecting property damage; reviewing 
     factual information to prepare damage estimates; evaluating 
     and making recommendations regarding coverage of claims; 
     determining liability and total value of a claim; negotiating 
     settlements; and making recommendations regarding litigation.
       ``(b) Employees in [the] financial services [industry] 
     generally meet the duties requirements for the administrative 
     exemption if their duties include work such as collecting and 
     analyzing information regarding the customer's income, 
     assets, investments or debts; determining which financial 
     products best meet the customer's needs and financial 
     circumstances; advising the customer regarding the advantages 
     and disadvantages of different financial products; and 
     marketing, servicing or promoting the employer's financial 
     products. However, an employee whose primary duty is selling 
     financial products does not qualify for the administrative 
     exemption.
       ``(c) An employee who leads a team of other employees 
     assigned to complete major projects for the employer (such as 
     [purchasing, selling or closing all or part of the business,] 
     negotiating a real estate transaction or a collective 
     bargaining agreement, or designing and implementing 
     productivity improvements) generally meets the duties 
     requirements for the administrative exemption, even if the 
     employee does not have direct supervisory responsibility over 
     the other employees on the team.
       ``(d) An executive assistant or administrative assistant to 
     a [business owner or senior executive of a large 
     business]<> generally meets the duties requirements for the 
     administrative exemption if such employee, without specific 
     instructions or prescribed procedures, has been delegated 
     authority regarding matters of significance.
       ``(e) Human resources managers who formulate, interpret or 
     implement employment policies and management consultants who 
     study the operations of a [business] <> and 
     propose changes in organization generally meet the duties 
     requirements for the administrative exemption. However, 
     personnel clerks who `screen' applicants to obtain data 
     regarding their minimum qualifications and fitness for 
     employment generally do not meet the duties requirements for 
     the administrative exemption. Such personnel clerks typically 
     will reject all applicants who do not meet minimum standards 
     for the particular job or for employment by the [company] 
     <>. The minimum standards are usually set 
     by the exempt human resources manager or other [company] 
     <> officials, and the decision to hire from 
     the group of qualified applicants who do meet the minimum 
     standards is similarly made by the exempt human resources 
     manager or other [company] <> officials. 
     Thus, when the interviewing and screening functions are 
     performed by the human resources manager or personnel manager 
     who makes the hiring decision or makes recommendations for 
     hiring from the pool of qualified applicants, such duties 
     constitute exempt work, even though routine, because this 
     work is directly and closely related to the employee's exempt 
     functions.
       ``(f) Purchasing agents with authority to bind the 
     [company] <> on significant purchases 
     generally meet the duties requirements for the administrative 
     exemption even if they must consult with top management 
     officials when making a purchase commitment for [raw] 
     materials in excess of the contemplated [plant] needs.
       ``(g) Ordinary inspection work generally does not meet the 
     duties requirements for the administrative exemption. 
     Inspectors normally perform specialized work along 
     standardized lines involving well-established techniques and 
     procedures which may have been catalogued and described in 
     manuals or other sources. Such inspectors rely on techniques 
     and skills acquired by special training or experience. They 
     have some leeway in the performance of their work but only 
     within closely prescribed limits.
       ``(h) Employees usually called examiners or graders, such 
     as employees that grade lumber, generally do not meet the 
     duties requirements for the administrative exemption. Such 
     employees usually perform work involving the comparison of 
     products with established standards which are frequently 
     catalogued. Often, after continued reference to the written 
     standards, or through experience, the employee acquires 
     sufficient knowledge so that reference to written standards 
     is unnecessary. The substitution of the employee's memory for 
     a manual of standards does not convert the character of the 
     work performed to exempt work requiring the exercise of 
     discretion and independent judgment.
       ``(i) [Comparison shopping performed by an employee of a 
     retail store who merely reports to the buyer the prices at a 
     competitor's store does not qualify for the administrative 
     exemption. However, the buyer who evaluates such reports on 
     competitor prices to set the employer's prices generally 
     meets the duties requirements for the administrative 
     exemption.]<>
       ``(j) [Public sector i]<>nspectors or investigators of 
     various types, such as fire prevention or safety, building or 
     construction, health or sanitation, environmental or soils 
     specialists and similar employees, generally do not meet the 
     duties requirements for the administrative exemption because 
     their work typically does not involve work directly related 
     to the management or general business operations of the 
     employer. Such employees also do not qualify for the 
     administrative exemption because their work involves the use 
     of skills and technical abilities in gathering factual 
     information, applying known standards or prescribed 
     procedures, determining which procedure to follow, or 
     determining whether prescribed standards or criteria are met.

     ``Sec. 541.204 Educational establishments

       ``(a) The term `employee employed in a bona fide 
     administrative capacity' in section 13(a)(1) of the Act also 
     includes employees:
       ``(1) Compensated on a salary or fee basis at a rate of not 
     less than $684 per week [(or $455 per week if employed in the 
     Commonwealth of the Northern Mariana Islands, Guam, Puerto 
     Rico, or the U.S. Virgin Islands by employers other than the 
     Federal government, or $380 per week if employed in American 
     Samoa by employers other than the Federal government)], 
     exclusive of board, lodging, or other facilities; or on a 
     salary basis which is at least equal to the entrance salary 
     for teachers in the educational establishment by which 
     employed; and
       ``(2) Whose primary duty is performing administrative 
     functions directly related to academic instruction or 
     training in an educational establishment or department or 
     subdivision thereof.
       ``(b) The term `educational establishment' means an 
     elementary or secondary school system, an institution of 
     higher education or other educational institution. Sections 
     3(v) and 3(w) of the Act define elementary and secondary 
     schools as those day or residential schools that provide 
     elementary or secondary education, as determined under State 
     law. Under the laws of most States, such education includes 
     the curriculums in grades 1 through 12; under many it 
     includes also the introductory programs in kindergarten.

[[Page H9784]]

     Such education in some States may also include nursery school 
     programs in elementary education and junior college 
     curriculums in secondary education. The term `other 
     educational establishment' includes special schools for 
     mentally or physically disabled or gifted children, 
     regardless of any classification of such schools as 
     elementary, secondary or higher. Factors relevant in 
     determining whether post-secondary career programs are 
     educational institutions include whether the school is 
     licensed by a state agency responsible for the state's 
     educational system or accredited by a nationally recognized 
     accrediting organization for career schools. Also, for 
     purposes of the exemption, no distinction is drawn between 
     public and private schools, or between those operated for 
     profit and those that are not for profit.
       ``(c) The phrase `performing administrative functions 
     directly related to academic instruction or training' means 
     work related to the academic operations and functions in a 
     school rather than to administration along the lines of 
     general business operations. Such academic administrative 
     functions include operations directly in the field of 
     education. Jobs relating to areas outside the educational 
     field are not within the definition of academic 
     administration.
       ``(1) Employees engaged in academic administrative 
     functions include: the superintendent or other head of an 
     elementary or secondary school system, and any assistants, 
     responsible for administration of such matters as curriculum, 
     quality and methods of instructing, measuring and testing the 
     learning potential and achievement of students, establishing 
     and maintaining academic and grading standards, and other 
     aspects of the teaching program; the principal and any vice-
     principals responsible for the operation of an elementary or 
     secondary school; department heads in institutions of higher 
     education responsible for the administration of the 
     mathematics department, the English department, the foreign 
     language department, etc.; academic counselors who perform 
     work such as administering school testing programs, assisting 
     students with academic problems and advising students 
     concerning degree requirements; and other employees with 
     similar responsibilities.
       ``(2) Jobs relating to building management and maintenance, 
     jobs relating to the health of the students, and academic 
     staff such as social workers, psychologists, lunch room 
     managers or dietitians do not perform academic administrative 
     functions. Although such work is not considered academic 
     administration, such employees may qualify for exemption 
     under Sec. 541.200 or under other sections of this part, 
     provided the requirements for such exemptions are met.

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

     ``Sec. 541.300 General rule for professional employees

       ``(a) The term `employee employed in a bona fide 
     professional capacity' in section 13(a)(1) of the Act shall 
     mean any employee:
       ``(1) Compensated on a salary or fee basis pursuant to 
     Sec. 541.600 at a rate of not less than $684 per week [(or 
     $455 per week if employed in the Commonwealth of the Northern 
     Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin 
     Islands by employers other than the Federal government, or 
     $380 per week if employed in American Samoa by employers 
     other than the Federal government)], exclusive of board, 
     lodging or other facilities; and
       ``(2) Whose primary duty is the performance of work:
       ``(i) Requiring knowledge of an advanced type in a field of 
     science or learning customarily acquired by a prolonged 
     course of specialized intellectual instruction; or
       ``(ii) Requiring invention, imagination, originality or 
     talent in a recognized field of artistic or creative 
     endeavor.
       ``(b) The term `salary basis' is defined at Sec. 541.602; 
     `fee basis' is defined at Sec. 541.605; `board, lodging or 
     other facilities' is defined at Sec. 541.606; and `primary 
     duty' is defined at Sec. 541.700.

     ``Sec. 541.301 Learned professionals

       ``(a) To qualify for the learned professional exemption, an 
     employee's primary duty must be the performance of work 
     requiring advanced knowledge in a field of science or 
     learning customarily acquired by a prolonged course of 
     specialized intellectual instruction. This primary duty test 
     includes three elements:
       ``(1) The employee must perform work requiring advanced 
     knowledge;
       ``(2) The advanced knowledge must be in a field of science 
     or learning; and
       ``(3) The advanced knowledge must be customarily acquired 
     by a prolonged course of specialized intellectual 
     instruction.
       ``(b) The phrase `work requiring advanced knowledge' means 
     work which is predominantly intellectual in character, and 
     which includes work requiring the consistent exercise of 
     discretion and judgment, as distinguished from performance of 
     routine mental, manual, mechanical or physical work. An 
     employee who performs work requiring advanced knowledge 
     generally uses the advanced knowledge to analyze, interpret 
     or make deductions from varying facts or circumstances. 
     Advanced knowledge cannot be attained at the high school 
     level.
       ``(c) The phrase `field of science or learning' includes 
     the traditional professions of law, medicine, theology, 
     accounting, actuarial computation, engineering, architecture, 
     teaching, various types of physical, chemical and biological 
     sciences, pharmacy and other similar occupations that have a 
     recognized professional status as distinguished from the 
     mechanical arts or skilled trades where in some instances the 
     knowledge is of a fairly advanced type, but is not in a field 
     of science or learning.
       ``(d) The phrase `customarily acquired by a prolonged 
     course of specialized intellectual instruction' restricts the 
     exemption to professions where specialized academic training 
     is a standard prerequisite for entrance into the profession. 
     The best prima facie evidence that an employee meets this 
     requirement is possession of the appropriate academic degree. 
     However, the word `customarily' means that the exemption is 
     also available to employees in such professions who have 
     substantially the same knowledge level and perform 
     substantially the same work as the degreed employees, but who 
     attained the advanced knowledge through a combination of work 
     experience and intellectual instruction. Thus, for example, 
     the learned professional exemption is available to the 
     occasional lawyer who has not gone to law school, or the 
     occasional chemist who is not the possessor of a degree in 
     chemistry. However, the learned professional exemption is not 
     available for occupations that customarily may be performed 
     with only the general knowledge acquired by an academic 
     degree in any field, with knowledge acquired through an 
     apprenticeship, or with training in the performance of 
     routine mental, manual, mechanical or physical processes. The 
     learned professional exemption also does not apply to 
     occupations in which most employees have acquired their skill 
     by experience rather than by advanced specialized 
     intellectual instruction.
       ``(e)(1) Registered or certified medical technologists. 
     Registered or certified medical technologists who have 
     successfully completed three academic years of pre-
     professional study in an accredited college or university 
     plus a fourth year of professional course work in a school of 
     medical technology approved by the Council of Medical 
     Education of the American Medical Association generally meet 
     the duties requirements for the learned professional 
     exemption.
       ``(2) Nurses. Registered nurses who are registered by the 
     appropriate State examining board generally meet the duties 
     requirements for the learned professional exemption. Licensed 
     practical nurses and other similar health care employees, 
     however, generally do not qualify as exempt learned 
     professionals because possession of a specialized advanced 
     academic degree is not a standard prerequisite for entry into 
     such occupations.
       ``(3) Dental hygienists. Dental hygienists who have 
     successfully completed four academic years of pre-
     professional and professional study in an accredited college 
     or university approved by the Commission on Accreditation of 
     Dental and Dental Auxiliary Educational Programs of the 
     American Dental Association generally meet the duties 
     requirements for the learned professional exemption.
       ``(4) Physician assistants. Physician assistants who have 
     successfully completed four academic years of pre-
     professional and professional study, including graduation 
     from a physician assistant program accredited by the 
     Accreditation Review Commission on Education for the 
     Physician Assistant, and who are certified by the National 
     Commission on Certification of Physician Assistants generally 
     meet the duties requirements for the learned professional 
     exemption.
       ``(5) Accountants. Certified public accountants generally 
     meet the duties requirements for the learned professional 
     exemption. In addition, many other accountants who are not 
     certified public accountants but perform similar job duties 
     may qualify as exempt learned professionals. However, 
     accounting clerks, bookkeepers and other employees who 
     normally perform a great deal of routine work generally will 
     not qualify as exempt professionals.
       ``(6) Chefs. Chefs, such as executive chefs and sous chefs, 
     who have attained a four-year specialized academic degree in 
     a culinary arts program, generally meet the duties 
     requirements for the learned professional exemption. The 
     learned professional exemption is not available to cooks who 
     perform predominantly routine mental, manual, mechanical or 
     physical work.
       ``(7) Paralegals. Paralegals and legal assistants generally 
     do not qualify as exempt learned professionals because an 
     advanced specialized academic degree is not a standard 
     prerequisite for entry into the field. Although many 
     paralegals possess general four-year advanced degrees, most 
     specialized paralegal programs are two-year associate degree 
     programs from a community college or equivalent institution. 
     However, the learned professional exemption is available for 
     paralegals who possess advanced specialized degrees in other 
     professional fields and apply advanced knowledge in that 
     field in the performance of their duties. For example, if a 
     law firm hires an engineer as a paralegal to provide expert 
     advice on product liability cases or to assist on patent 
     matters, that engineer would qualify for exemption.
       ``(8) Athletic trainers. Athletic trainers who have 
     successfully completed four academic years of pre-
     professional and professional study in a specialized 
     curriculum accredited by the Commission on Accreditation of 
     Allied Health Education Programs and who are certified by the 
     Board of Certification of the National Athletic Trainers 
     Association Board of Certification generally meet the duties 
     requirements for the learned professional exemption.

[[Page H9785]]

       [``(9) Funeral directors or embalmers. Licensed funeral 
     directors and embalmers who are licensed by and working in a 
     state that requires successful completion of four academic 
     years of pre-professional and professional study, including 
     graduation from a college of mortuary science accredited by 
     the American Board of Funeral Service Education, generally 
     meet the duties requirements for the learned professional 
     exemption.]
       ``(f) The areas in which the professional exemption may be 
     available are expanding. As knowledge is developed, academic 
     training is broadened and specialized degrees are offered in 
     new and diverse fields, thus creating new specialists in 
     particular fields of science or learning. When an advanced 
     specialized degree has become a standard requirement for a 
     particular occupation, that occupation may have acquired the 
     characteristics of a learned profession. Accrediting and 
     certifying organizations similar to those listed in 
     paragraphs (e)(1), (e)(3), (e)(4) and (e)(8) of this section 
     also may be created in the future. Such organizations may 
     develop similar specialized curriculums and certification 
     programs which, if a standard requirement for a particular 
     occupation, may indicate that the occupation has acquired the 
     characteristics of a learned profession.

     ``Sec. 541.302 Creative professionals

       ``(a) To qualify for the creative professional exemption, 
     an employee's primary duty must be the performance of work 
     requiring invention, imagination, originality or talent in a 
     recognized field of artistic or creative endeavor as opposed 
     to routine mental, manual, mechanical or physical work. The 
     exemption does not apply to work which can be produced by a 
     person with general manual or intellectual ability and 
     training.
       ``(b) To qualify for exemption as a creative professional, 
     the work performed must be `in a recognized field of artistic 
     or creative endeavor.' This includes such fields as music, 
     writing, acting and the graphic arts.
       ``(c) The requirement of `invention, imagination, 
     originality or talent' distinguishes the creative professions 
     from work that primarily depends on intelligence, diligence 
     and accuracy. The duties of employees vary widely, and 
     exemption as a creative professional depends on the extent of 
     the invention, imagination, originality or talent exercised 
     by the employee. Determination of exempt creative 
     professional status, therefore, must be made on a case-by-
     case basis. This requirement generally is met by actors, 
     musicians, composers, conductors, and soloists; painters who 
     at most are given the subject matter of their painting; 
     cartoonists who are merely told the title or underlying 
     concept of a cartoon and must rely on their own creative 
     ability to express the concept; essayists, novelists, short-
     story writers and screen-play writers who choose their own 
     subjects and hand in a finished piece of work to their 
     employers (the majority of such persons are, of course, not 
     employees but self-employed); and persons holding the more 
     responsible writing positions in advertising agencies. This 
     requirement generally is not met by a person who is employed 
     as a copyist, as an `animator' of motion-picture cartoons, or 
     as a retoucher of photographs, since such work is not 
     properly described as creative in character.
       ``(d) Journalists may satisfy the duties requirements for 
     the creative professional exemption if their primary duty is 
     work requiring invention, imagination, originality or talent, 
     as opposed to work which depends primarily on intelligence, 
     diligence and accuracy. Employees of newspapers, magazines, 
     television and other media are not exempt creative 
     professionals if they only collect, organize and record 
     information that is routine or already public, or if they do 
     not contribute a unique interpretation or analysis to a news 
     product. Thus, for example, newspaper reporters who merely 
     rewrite press releases or who write standard recounts of 
     public information by gathering facts on routine community 
     events are not exempt creative professionals. Reporters also 
     do not qualify as exempt creative professionals if their work 
     product is subject to substantial control by the employer. 
     However, journalists may qualify as exempt creative 
     professionals if their primary duty is performing on the air 
     in radio, television or other electronic media; conducting 
     investigative interviews; analyzing or interpreting public 
     events; writing editorials, opinion columns or other 
     commentary; or acting as a narrator or commentator.

     ``Sec. 541.303 Teachers

       ``(a) The term `employee employed in a bona fide 
     professional capacity' in section 13(a)(1) of the Act also 
     means any employee with a primary duty of teaching, tutoring, 
     instructing or lecturing in the activity of imparting 
     knowledge and who is employed and engaged in this activity as 
     a teacher in an educational establishment by which the 
     employee is employed. The term `educational establishment' is 
     defined in Sec. 541.204(b).
       ``(b) Exempt teachers include, but are not limited to: 
     Regular academic teachers; teachers of kindergarten or 
     nursery school pupils; teachers of gifted or disabled 
     children; teachers of skilled and semi-skilled trades and 
     occupations; teachers engaged in automobile driving 
     instruction; aircraft flight instructors; home economics 
     teachers; and vocal or instrumental music instructors. Those 
     faculty members who are engaged as teachers but also spend a 
     considerable amount of their time in extracurricular 
     activities such as coaching athletic teams or acting as 
     moderators or advisors in such areas as drama, speech, debate 
     or journalism are engaged in teaching. Such activities are a 
     recognized part of the schools' responsibility in 
     contributing to the educational development of the student.
       ``(c) The possession of an elementary or secondary 
     teacher's certificate provides a clear means of identifying 
     the individuals contemplated as being within the scope of the 
     exemption for teaching professionals. Teachers who possess a 
     teaching certificate qualify for the exemption regardless of 
     the terminology (e.g., permanent, conditional, standard, 
     provisional, temporary, emergency, or unlimited) used by the 
     State to refer to different kinds of certificates. However, 
     private schools and public schools are not uniform in 
     requiring a certificate for employment as an elementary or 
     secondary school teacher, and a teacher's certificate is not 
     generally necessary for employment in institutions of higher 
     education or other educational establishments. Therefore, a 
     teacher who is not certified may be considered for exemption, 
     provided that such individual is employed as a teacher by the 
     employing school or school system.
       ``(d) The requirements of Sec. 541.300 and Subpart G 
     (salary requirements) of this part do not apply to the 
     teaching professionals described in this section.

     ``Sec. 541.304 Practice of law or medicine

       ``(a) The term `employee employed in a bona fide 
     professional capacity' in section 13(a)(1) of the Act also 
     shall mean:
       ``(1) Any employee who is the holder of a valid license or 
     certificate permitting the practice of law or medicine or any 
     of their branches and is actually engaged in the practice 
     thereof; and
       ``(2) Any employee who is the holder of the requisite 
     academic degree for the general practice of medicine and is 
     engaged in an internship or resident program pursuant to the 
     practice of the profession.
       ``(b) In the case of medicine, the exemption applies to 
     physicians and other practitioners licensed and practicing in 
     the field of medical science and healing or any of the 
     medical specialties practiced by physicians or practitioners. 
     The term `physicians' includes medical doctors including 
     general practitioners and specialists, osteopathic physicians 
     (doctors of osteopathy), podiatrists, dentists (doctors of 
     dental medicine), and optometrists (doctors of optometry or 
     bachelors of science in optometry).
       ``(c) Employees engaged in internship or resident programs, 
     whether or not licensed to practice prior to commencement of 
     the program, qualify as exempt professionals if they enter 
     such internship or resident programs after the earning of the 
     appropriate degree required for the general practice of their 
     profession.
       ``(d) The requirements of Sec. 541.300 and subpart G 
     (salary requirements) of this part do not apply to the 
     employees described in this section.

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

     ``Sec. 541.400 General rule for computer employees

       ``(a) Computer systems analysts, computer programmers, 
     software engineers or other similarly skilled workers in the 
     computer field are eligible for exemption as professionals 
     under section 13(a)(1) of the Act and under section 13(a)(17) 
     of the Act. Because job titles vary widely and change quickly 
     in the computer industry, job titles are not determinative of 
     the applicability of this exemption.
       ``(b) The section 13(a)(1)exemption applies to any computer 
     employee who is compensated on a salary or fee basis at a 
     rate of not less than $684 per week [(or $455 per week if 
     employed in the Commonwealth of the Northern Mariana Islands, 
     Guam, Puerto Rico, or the U.S. Virgin Islands by employers 
     other than the Federal government, or $380 per week if 
     employed in American Samoa by employers other than the 
     Federal government)], exclusive of board, lodging, or other 
     facilities.
       ``The section 13(a)(17) exemption applies to any computer 
     employee compensated on an hourly basis at a rate of not less 
     than $27.63 an hour. In addition, under either section 
     13(a)(1) or section 13(a)(17) of the Act, the exemptions 
     apply only to computer employees whose primary duty consists 
     of:
       ``(1) The application of systems analysis techniques and 
     procedures, including consulting with users, to determine 
     hardware, software or system functional specifications;
       ``(2) The design, development, documentation, analysis, 
     creation, testing or modification of computer systems or 
     programs, including prototypes, based on and related to user 
     or system design specifications;
       ``(3) The design, documentation, testing, creation or 
     modification of computer programs related to machine 
     operating systems; or
       ``(4) A combination of the aforementioned duties, the 
     performance of which requires the same level of skills.
       ``(c) The term `salary basis' is defined at Sec. 541.602; 
     `fee basis' is defined at Sec. 541.605; `board, lodging or 
     other facilities' is defined at Sec. 541.606; and `primary 
     duty' is defined at Sec. 541.700.

     ``Sec. 541.401 Computer manufacture and repair

       ``The exemption for employees in computer occupations does 
     not include employees engaged in the manufacture or repair of 
     computer hardware and related equipment. Employees whose work 
     is highly dependent

[[Page H9786]]

     upon, or facilitated by, the use of computers and computer 
     software programs (e.g., engineers, drafters and others 
     skilled in computer-aided design software), but who are not 
     primarily engaged in computer systems analysis and 
     programming or other similarly skilled computer-related 
     occupations identified in Sec. 541.400(b), are also not 
     exempt computer professionals.

     ``Sec. 541.402 Executive and administrative computer 
       employees

       ``Computer employees within the scope of this exemption, as 
     well as those employees not within its scope, may also have 
     executive and administrative duties which qualify the 
     employees for exemption under subpart B or subpart C of this 
     part. For example, systems analysts and computer programmers 
     generally meet the duties requirements for the administrative 
     exemption if their primary duty includes work such as 
     planning, scheduling, and coordinating activities required to 
     develop systems to solve complex business, scientific or 
     engineering problems of the employer or the employer's 
     customers<<, constituents or stakeholders>>. Similarly, a 
     senior or lead computer programmer who manages the work of 
     two or more other programmers in a customarily recognized 
     department or subdivision of the employer, and whose 
     recommendations as to the hiring, firing, advancement, 
     promotion or other change of status of the other programmers 
     are given particular weight, generally meets the duties 
     requirements for the executive exemption.

                       ``Subpart F--<>

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

     [``Sec. 541.500 General rule for outside sales employees

       [``(a) The term `employee employed in the capacity of 
     outside salesman' in section 13(a)(1) of the Act shall mean 
     any employee:]
       [``(1) Whose primary duty is:]
       [``(i) making sales within the meaning of section 3(k) of 
     the Act, or]
       [``(ii) obtaining orders or contracts for services or for 
     the use of facilities for which a consideration will be paid 
     by the client or customer; and]
       [``(2) Who is customarily and regularly engaged away from 
     the employer's place or places of business in performing such 
     primary duty.]
       [``(b) The term `primary duty' is defined at Sec. 541.700. 
     In determining the primary duty of an outside sales employee, 
     work performed incidental to and in conjunction with the 
     employee's own outside sales or solicitations, including 
     incidental deliveries and collections, shall be regarded as 
     exempt outside sales work. Other work that furthers the 
     employee's sales efforts also shall be regarded as exempt 
     work including, for example, writing sales reports, updating 
     or revising the employee's sales or display catalogue, 
     planning itineraries and attending sales conferences.]
       [``(c) The requirements of subpart G (salary requirements) 
     of this part do not apply to the outside sales employees 
     described in this section.]

     [``Sec. 541.501 Making sales or obtaining orders

       [``(a) Section 541.500 requires that the employee be 
     engaged in:]
       [``(1) Making sales within the meaning of section 3(k) of 
     the Act, or]
       [``(2) Obtaining orders or contracts for services or for 
     the use of facilities.]
       [``(b) Sales within the meaning of section 3(k) of the Act 
     include the transfer of title to tangible property, and in 
     certain cases, of tangible and valuable evidences of 
     intangible property. Section 3(k) of the Act states that 
     `sale' or `sell' includes any sale, exchange, contract to 
     sell, consignment for sale, shipment for sale, or other 
     disposition.]
       [``(c) Exempt outside sales work includes not only the 
     sales of commodities, but also `obtaining orders or contracts 
     for services or for the use of facilities for which a 
     consideration will be paid by the client or customer.' 
     Obtaining orders for `the use of facilities' includes the 
     selling of time on radio or television, the solicitation of 
     advertising for newspapers and other periodicals, and the 
     solicitation of freight for railroads and other 
     transportation agencies.]
       [``(d) The word `services' extends the outside sales 
     exemption to employees who sell or take orders for a service, 
     which may be performed for the customer by someone other than 
     the person taking the order.]

     [``Sec. 541.502 Away from employer's place of business

       ``An outside sales employee must be customarily and 
     regularly engaged `away from the employer's place or places 
     of business.' The outside sales employee is an employee who 
     makes sales at the customer's place of business or, if 
     selling door-to-door, at the customer's home. Outside sales 
     does not include sales made by mail, telephone or the 
     Internet unless such contact is used merely as an adjunct to 
     personal calls. Thus, any fixed site, whether home or office, 
     used by a salesperson as a headquarters or for telephonic 
     solicitation of sales is considered one of the employer's 
     places of business, even though the employer is not in any 
     formal sense the owner or tenant of the property. However, an 
     outside sales employee does not lose the exemption by 
     displaying samples in hotel sample rooms during trips from 
     city to city; these sample rooms should not be considered as 
     the employer's places of business. Similarly, an outside 
     sales employee does not lose the exemption by displaying the 
     employer's products at a trade show. If selling actually 
     occurs, rather than just sales promotion, trade shows of 
     short duration (i.e., one or two weeks) should not be 
     considered as the employer's place of business.]

     [``Sec. 541.503 Promotion work

       [``(a) Promotion work is one type of activity often 
     performed by persons who make sales, which may or may not be 
     exempt outside sales work, depending upon the circumstances 
     under which it is performed. Promotional work that is 
     actually performed incidental to and in conjunction with an 
     employee's own outside sales or solicitations is exempt work. 
     On the other hand, promotional work that is incidental to 
     sales made, or to be made, by someone else is not exempt 
     outside sales work. An employee who does not satisfy the 
     requirements of this subpart may still qualify as an exempt 
     employee under other subparts of this rule.]
       [``(b) A manufacturer's representative, for example, may 
     perform various types of promotional activities such as 
     putting up displays and posters, removing damaged or spoiled 
     stock from the merchant's shelves or rearranging the 
     merchandise. Such an employee can be considered an exempt 
     outside sales employee if the employee's primary duty is 
     making sales or contracts. Promotion activities directed 
     toward consummation of the employee's own sales are exempt. 
     Promotional activities designed to stimulate sales that will 
     be made by someone else are not exempt outside sales work.]
       [``(c) Another example is a company representative who 
     visits chain stores, arranges the merchandise on shelves, 
     replenishes stock by replacing old with new merchandise, sets 
     up displays and consults with the store manager when 
     inventory runs low, but does not obtain a commitment for 
     additional purchases. The arrangement of merchandise on the 
     shelves or the replenishing of stock is not exempt work 
     unless it is incidental to and in conjunction with the 
     employee's own outside sales. Because the employee in this 
     instance does not consummate the sale nor direct efforts 
     toward the consummation of a sale, the work is not exempt 
     outside sales work.]

     [``Sec. 541.504 Drivers who sell

       [``(a) Drivers who deliver products and also sell such 
     products may qualify as exempt outside sales employees only 
     if the employee has a primary duty of making sales. In 
     determining the primary duty of drivers who sell, work 
     performed incidental to and in conjunction with the 
     employee's own outside sales or solicitations, including 
     loading, driving or delivering products, shall be regarded as 
     exempt outside sales work.]
       [``(b) Several factors should be considered in determining 
     if a driver has a primary duty of making sales, including, 
     but not limited to: a comparison of the driver's duties with 
     those of other employees engaged as truck drivers and as 
     salespersons; possession of a selling or solicitor's license 
     when such license is required by law or ordinances; presence 
     or absence of customary or contractual arrangements 
     concerning amounts of products to be delivered; description 
     of the employee's occupation in collective bargaining 
     agreements; the employer's specifications as to 
     qualifications for hiring; sales training; attendance at 
     sales conferences; method of payment; and proportion of 
     earnings directly attributable to sales.]
       [``(c) Drivers who may qualify as exempt outside sales 
     employees include:]
       [``(1) A driver who provides the only sales contact between 
     the employer and the customers visited, who calls on 
     customers and takes orders for products, who delivers 
     products from stock in the employee's vehicle or procures and 
     delivers the product to the customer on a later trip, and who 
     receives compensation commensurate with the volume of 
     products sold.]
       [``(2) A driver who obtains or solicits orders for the 
     employer's products from persons who have authority to commit 
     the customer for purchases.]
       [``(3) A driver who calls on new prospects for customers 
     along the employee's route and attempts to convince them of 
     the desirability of accepting regular delivery of goods.]
       [``(4) A driver who calls on established customers along 
     the route and persuades regular customers to accept delivery 
     of increased amounts of goods or of new products, even though 
     the initial sale or agreement for delivery was made by 
     someone else.]
       [``(d) Drivers who generally would not qualify as exempt 
     outside sales employees include:]
       [``(1) A route driver whose primary duty is to transport 
     products sold by the employer through vending machines and to 
     keep such machines stocked, in good operating condition, and 
     in good locations.]
       [``(2) A driver who often calls on established customers 
     day after day or week after week, delivering a quantity of 
     the employer's products at each call when the sale was not 
     significantly affected by solicitations of the customer by 
     the delivering driver or the amount of the sale is determined 
     by the volume of the customer's sales since the previous 
     delivery.]
       [``(3) A driver primarily engaged in making deliveries to 
     customers and performing activities intended to promote sales 
     by customers (including placing point-of-sale and other 
     advertising materials, price stamping commodities, arranging 
     merchandise on shelves, in coolers or in cabinets, rotating 
     stock according to date, and cleaning and otherwise servicing 
     display cases), unless

[[Page H9787]]

     such work is in furtherance of the driver's own sales 
     efforts.]

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

     ``Sec. 541.600 Amount of salary required

       ``(a) To qualify as an exempt executive, administrative or 
     professional employee under section 13(a)(1) of the Act, an 
     employee must be compensated on a salary basis at a rate of 
     not less than $684 per week [(or $455 per week if employed in 
     the Commonwealth of the Northern Mariana Islands, Guam, 
     Puerto Rico, or the U.S. Virgin Islands by employers other 
     than the Federal Government, or $380 per week if employed in 
     American Samoa by employers other than the Federal 
     Government)], exclusive of board, lodging or other 
     facilities. Administrative and professional employees may 
     also be paid on a fee basis, as defined in Sec. 541.605.
       ``(b) The required amount of compensation per week may be 
     translated into equivalent amounts for periods longer than 
     one week. For example, the $684-per-week requirement will be 
     met if the employee is compensated biweekly on a salary basis 
     of not less than $1,368, semimonthly on a salary basis of not 
     less than $1,482, or monthly on a salary basis of not less 
     than $2,964. However, the shortest period of payment that 
     will meet this compensation requirement is one week.
       ``(c) In the case of academic administrative employees, the 
     compensation requirement also may be met by compensation on a 
     salary basis at a rate at least equal to the entrance salary 
     for teachers in the educational establishment by which the 
     employee is employed, as provided in Sec. 541.204(a)(1).
       ``(d) In the case of computer employees, the compensation 
     requirement also may be met by compensation on an hourly 
     basis at a rate not less than $27.63 an hour, as provided in 
     Sec. 541.400(b).
       ``(e) In the case of professional employees, the 
     compensation requirements in this section shall not apply to 
     employees engaged as teachers (see Sec. 541.303); employees 
     who hold a valid license or certificate permitting the 
     practice of law or medicine or any of their branches and are 
     actually engaged in the practice thereof (see Sec. 541.304); 
     or to employees who hold the requisite academic degree for 
     the general practice of medicine and are engaged in an 
     internship or resident program pursuant to the practice of 
     the profession (see Sec. 541.304). In the case of medical 
     occupations, the exception from the salary or fee requirement 
     does not apply to pharmacists, nurses, therapists, 
     technologists, sanitarians, dietitians, social workers, 
     psychologists, psychometrists, or other professions which 
     service the medical profession.

     ``Sec. 541.601 Highly compensated employees

       ``(a)(1) Beginning on [January 1, 2020]<>, an employee with total 
     annual compensation of at least $107,432 is deemed exempt 
     under section 13(a)(1) of the Act if the employee customarily 
     and regularly performs any one or more of the exempt duties 
     or responsibilities of an executive, administrative or 
     professional employee as identified in subparts B, C or D of 
     this part.
       ``(2) Where the annual period covers periods both prior to 
     and after [January 1, 2020]<>, the amount of total annual 
     compensation due will be determined on a proportional basis.
       ``(b)(1) `Total annual compensation' must include at least 
     $684 per week paid on a salary or fee basis as set forth in 
     Sec. 541.602 and 541.605, except that Sec. 541.602(a)(3) 
     shall not apply to highly compensated employees. Total annual 
     compensation may also include commissions, nondiscretionary 
     bonuses and other nondiscretionary compensation earned during 
     a 52-week period. Total annual compensation does not include 
     board, lodging and other facilities as defined in 
     Sec. 541.606, and does not include payments for medical 
     insurance, payments for life insurance, contributions to 
     retirement plans and the cost of other fringe benefits.
       ``(2) If an employee's total annual compensation does not 
     total at least the amount specified in the applicable 
     subsection of paragraph (a) by the last pay period of the 52-
     week period, the employer may, during the last pay period or 
     within one month after the end of the 52-week period, make 
     one final payment sufficient to achieve the required level. 
     For example, for a 52-week period [beginning January 1, 
     2020], an employee may earn $90,000 in base salary, and the 
     employer may anticipate [based upon past sales] that the 
     employee also will earn $17,432 in [commissions]<>. However, [due to poor sales] in the final quarter 
     of the year, the employee actually only earns $12,000 in 
     [commissions]<>. In this situation, the 
     employer may within one month after the end of the year make 
     a payment of at least $5,432 to the employee. Any such final 
     payment made after the end of the 52-week period may count 
     only toward the prior year's total annual compensation and 
     not toward the total annual compensation in the year it was 
     paid. If the employer fails to make such a payment, the 
     employee does not qualify as a highly compensated employee, 
     but may still qualify as exempt under subparts B, C, or D of 
     this part.
       ``(3) An employee who does not work a full year for the 
     employer, either because the employee is newly hired after 
     the beginning of the year or ends the employment before the 
     end of the year, may qualify for exemption under this section 
     if the employee receives a pro rata portion of the minimum 
     amount established in paragraph (a) of this section, based 
     upon the number of weeks that the employee will be or has 
     been employed. An employer may make one final payment as 
     under paragraph (b)(2) of this section within one month after 
     the end of employment.
       ``(4) The employer may utilize any 52-week period as the 
     year, such as a calendar year, a fiscal year, or an 
     anniversary of hire year. If the employer does not identify 
     some other year period in advance, the calendar year will 
     apply.
       ``(c) A high level of compensation is a strong indicator of 
     an employee's exempt status, thus eliminating the need for a 
     detailed analysis of the employee's job duties. Thus, a 
     highly compensated employee will qualify for exemption if the 
     employee customarily and regularly performs any one or more 
     of the exempt duties or responsibilities of an executive, 
     administrative or professional employee identified in 
     subparts B, C or D of this part. An employee may qualify as a 
     highly compensated executive employee, for example, if the 
     employee customarily and regularly directs the work of two or 
     more other employees, even though the employee does not meet 
     all of the other requirements for the executive exemption 
     under Sec. 541.100.
       ``(d) This section applies only to employees whose primary 
     duty includes performing office or non-manual work. Thus, for 
     example, non-management production-line workers and non-
     management employees in maintenance, construction and similar 
     occupations such as carpenters, electricians, mechanics, 
     plumbers, iron workers, craftsmen, operating engineers, 
     longshoremen, construction workers, laborers and other 
     employees who perform work involving repetitive operations 
     with their hands, physical skill and energy are not exempt 
     under this section no matter how highly paid they might be.

     ``Sec. 541.602 Salary basis

       ``(a) General rule. An employee will be considered to be 
     paid on a `salary basis' within the meaning of this part if 
     the employee regularly receives each pay period on a weekly, 
     or less frequent basis, a predetermined amount constituting 
     all or part of the employee's compensation, which amount is 
     not subject to reduction because of variations in the quality 
     or quantity of the work performed.
       ``(1) Subject to the exceptions provided in paragraph (b) 
     of this section, an exempt employee must receive the full 
     salary for any week in which the employee performs any work 
     without regard to the number of days or hours worked. Exempt 
     employees need not be paid for any workweek in which they 
     perform no work.
       ``(2) An employee is not paid on a salary basis if 
     deductions from the employee's predetermined compensation are 
     made for absences occasioned by the employer or by the 
     operating requirements of the [business] <>. If the employee is ready, willing and able to work, 
     deductions may not be made for time when work is not 
     available.
       ``(3) Up to ten percent of the salary amount required by 
     Sec. 541.600(a) may be satisfied by the payment of 
     nondiscretionary bonuses, incentives and commissions, that 
     are paid annually or more frequently. The employer may 
     utilize any 52-week period as the year, such as a calendar 
     year, a fiscal year, or an anniversary of hire year. If the 
     employer does not identify some other year period in advance, 
     the calendar year will apply. This provision does not apply 
     to highly compensated employees under Sec. 541.601.
       ``(i) If by the last pay period of the 52-week period the 
     sum of the employee's weekly salary plus nondiscretionary 
     bonus, incentive, and commission payments received is less 
     than 52 times the weekly salary amount required by 
     Sec. 541.600(a), the employer may make one final payment 
     sufficient to achieve the required level no later than the 
     next pay period after the end of the year. Any such final 
     payment made after the end of the 52-week period may count 
     only toward the prior year's salary amount and not toward the 
     salary amount in the year it was paid.
       ``(ii) An employee who does not work a full 52-week period 
     for the employer, either because the employee is newly hired 
     after the beginning of this period or ends the employment 
     before the end of this period, may qualify for exemption if 
     the employee receives a pro rata portion of the minimum 
     amount established in paragraph (a)(3) of this section, based 
     upon the number of weeks that the employee will be or has 
     been employed. An employer may make one final payment as 
     under paragraph (a)(3)(i) of this section within one pay 
     period after the end of employment.
       ``(b) Exceptions. The prohibition against deductions from 
     pay in the salary basis requirement is subject to the 
     following exceptions:
       ``(1) Deductions from pay may be made when an exempt 
     employee is absent from work for one or more full days for 
     personal reasons, other than sickness or disability. Thus, if 
     an employee is absent for two full days to handle personal 
     affairs, the employee's salaried status will not be affected 
     if deductions are made from the salary for two full-day 
     absences. However, if an exempt employee is absent for one 
     and a half days for personal reasons, the employer can deduct 
     only for the one full-day absence.
       ``(2) Deductions from pay may be made for absences of one 
     or more full days occasioned

[[Page H9788]]

     by sickness or disability (including work-related accidents) 
     if the deduction is made in accordance with a bona fide plan, 
     policy or practice of providing compensation for loss of 
     salary occasioned by such sickness or disability. The 
     employer is not required to pay any portion of the employee's 
     salary for full-day absences for which the employee receives 
     compensation under the plan, policy or practice. Deductions 
     for such full-day absences also may be made before the 
     employee has qualified under the plan, policy or practice, 
     and after the employee has exhausted the leave allowance 
     thereunder. Thus, for example, if an employer maintains a 
     short-term disability insurance plan providing salary 
     replacement for 12 weeks starting on the fourth day of 
     absence, the employer may make deductions from pay for the 
     three days of absence before the employee qualifies for 
     benefits under the plan; for the twelve weeks in which the 
     employee receives salary replacement benefits under the plan; 
     and for absences after the employee has exhausted the 12 
     weeks of salary replacement benefits. [Similarly, an employer 
     may make deductions from pay for absences of one or more full 
     days if salary replacement benefits are provided under a 
     State disability insurance law or under a State workers' 
     compensation law.]
       ``(3) While an employer cannot make deductions from pay for 
     absences of an exempt employee occasioned by jury duty, 
     attendance as a witness or temporary military leave, the 
     employer can offset any amounts received by an employee as 
     jury fees, witness fees or military pay for a particular week 
     against the salary due for that particular week without loss 
     of the exemption.
       ``(4) Deductions from pay of exempt employees may be made 
     for penalties imposed in good faith for infractions of safety 
     rules of major significance. Safety rules of major 
     significance include those relating to the prevention of 
     serious danger in the workplace or to other employees, such 
     as rules prohibiting smoking in explosive plants, oil 
     refineries and coal mines.
       ``(5) Deductions from pay of exempt employees may be made 
     for unpaid disciplinary suspensions of one or more full days 
     imposed in good faith for infractions of workplace conduct 
     rules. Such suspensions must be imposed pursuant to a written 
     policy applicable to all employees. Thus, for example, an 
     employer may suspend an exempt employee without pay for three 
     days for violating a generally applicable written policy 
     prohibiting sexual harassment. Similarly, an employer may 
     suspend an exempt employee without pay for twelve days for 
     violating a generally applicable written policy prohibiting 
     workplace violence.
       ``(6) An employer is not required to pay the full salary in 
     the initial or terminal week of employment. Rather, an 
     employer may pay a proportionate part of an employee's full 
     salary for the time actually worked in the first and last 
     week of employment. In such weeks, the payment of an hourly 
     or daily equivalent of the employee's full salary for the 
     time actually worked will meet the requirement. However, 
     employees are not paid on a salary basis within the meaning 
     of these regulations if they are employed occasionally for a 
     few days, and the employer pays them a proportionate part of 
     the weekly salary when so employed.
       ``(7) An employer is not required to pay the full salary 
     for weeks in which an exempt employee takes unpaid leave 
     under the Family and Medical Leave Act. Rather, when an 
     exempt employee takes unpaid leave under the Family and 
     Medical Leave Act, an employer may pay a proportionate part 
     of the full salary for time actually worked. For example, if 
     an employee who normally works 40 hours per week uses four 
     hours of unpaid leave under the Family and Medical Leave Act, 
     the employer could deduct 10 percent of the employee's normal 
     salary that week.
       ``(c) When calculating the amount of a deduction from pay 
     allowed under paragraph (b) of this section, the employer may 
     use the hourly or daily equivalent of the employee's full 
     weekly salary or any other amount proportional to the time 
     actually missed by the employee. A deduction from pay as a 
     penalty for violations of major safety rules under paragraph 
     (b)(4) of this section may be made in any amount.

     ``Sec. 541.603 Effect of improper deductions from salary

       ``(a) An employer who makes improper deductions from salary 
     shall lose the exemption if the facts demonstrate that the 
     employer did not intend to pay employees on a salary basis. 
     An actual practice of making improper deductions demonstrates 
     that the employer did not intend to pay employees on a salary 
     basis. The factors to consider when determining whether an 
     employer has an actual practice of making improper deductions 
     include, but are not limited to: the number of improper 
     deductions, particularly as compared to the number of 
     employee infractions warranting discipline; the time period 
     during which the employer made improper deductions; the 
     number and geographic location of employees whose salary was 
     improperly reduced; the number and geographic location of 
     managers responsible for taking the improper deductions; and 
     whether the employer has a clearly communicated policy 
     permitting or prohibiting improper deductions.
       ``(b) If the facts demonstrate that the employer has an 
     actual practice of making improper deductions, the exemption 
     is lost during the time period in which the improper 
     deductions were made for employees in the same job 
     classification working for the same managers responsible for 
     the actual improper deductions. Employees in different job 
     classifications or who work for different managers do not 
     lose their status as exempt employees. Thus, for example, if 
     a manager [at a company facility] routinely docks the pay of 
     engineers at that facility for partial-day personal absences, 
     then all engineers at that facility whose pay could have been 
     improperly docked by the manager would lose the exemption; 
     engineers at other facilities or working for other managers, 
     however, would remain exempt.
       ``(c) Improper deductions that are either isolated or 
     inadvertent will not result in loss of the exemption for any 
     employees subject to such improper deductions, if the 
     employer reimburses the employees for such improper 
     deductions.
       ``(d) If an employer has a clearly communicated policy that 
     prohibits the improper pay deductions specified in 
     Sec. 541.602(a) and includes a complaint mechanism, 
     reimburses employees for any improper deductions and makes a 
     good faith commitment to comply in the future, such employer 
     will not lose the exemption for any employees unless the 
     employer willfully violates the policy by continuing to make 
     improper deductions after receiving employee complaints. If 
     an employer fails to reimburse employees for any improper 
     deductions or continues to make improper deductions after 
     receiving employee complaints, the exemption is lost during 
     the time period in which the improper deductions were made 
     for employees in the same job classification working for the 
     same managers responsible for the actual improper deductions. 
     The best evidence of a clearly communicated policy is a 
     written policy that was distributed to employees prior to the 
     improper pay deductions by, for example, providing a copy of 
     the policy to employees at the time of hire, publishing the 
     policy in an employee handbook or publishing the policy on 
     the employer's Intranet.
       ``(e) This section shall not be construed in an unduly 
     technical manner so as to defeat the exemption.

     ``Sec. 541.604 Minimum guarantee plus extras

       ``(a) An employer may provide an exempt employee with 
     additional compensation without losing the exemption or 
     violating the salary basis requirement, if the employment 
     arrangement also includes a guarantee of at least the minimum 
     weekly-required amount paid on a salary basis. Thus, for 
     example, an exempt employee guaranteed at least $684 each 
     week paid on a salary basis may also receive additional 
     compensation of a one percent commission on sales. An exempt 
     employee also may receive a percentage of the sales or 
     profits of the employer if the employment arrangement also 
     includes a guarantee of at least $684 each week paid on a 
     salary basis. Similarly, the exemption is not lost if an 
     exempt employee who is guaranteed at least $684 each week 
     paid on a salary basis also receives additional compensation 
     based on hours worked for work beyond the normal workweek. 
     Such additional compensation may be paid on any basis (e.g., 
     flat sum, bonus payment, straight-time hourly amount, time 
     and one-half or any other basis), and may include paid time 
     off.
       ``(b) An exempt employee's earnings may be computed on an 
     hourly, a daily or a shift basis, without losing the 
     exemption or violating the salary basis requirement, if the 
     employment arrangement also includes a guarantee of at least 
     the minimum weekly required amount paid on a salary basis 
     regardless of the number of hours, days or shifts worked, and 
     a reasonable relationship exists between the guaranteed 
     amount and the amount actually earned. The reasonable 
     relationship test will be met if the weekly guarantee is 
     roughly equivalent to the employee's usual earnings at the 
     assigned hourly, daily or shift rate for the employee's 
     normal scheduled workweek. Thus, for example, an exempt 
     employee guaranteed compensation of at least $725 for any 
     week in which the employee performs any work, and who 
     normally works four or five shifts each week, may be paid 
     $210 per shift without violating the $684-per-week salary 
     basis requirement. The reasonable relationship requirement 
     applies only if the employee's pay is computed on an hourly, 
     daily or shift basis. It does not apply, for example, to an 
     exempt store manager paid a guaranteed salary per week that 
     exceeds the current salary level who also receives a 
     commission of one-half percent of all sales in the store or 
     five percent of the store's profits, which in some weeks may 
     total as much as, or even more than, the guaranteed salary.

     ``Sec. 541.605 Fee basis

       ``(a) Administrative and professional employees may be paid 
     on a fee basis, rather than on a salary basis. An employee 
     will be considered to be paid on a `fee basis' within the 
     meaning of these regulations if the employee is paid an 
     agreed sum for a single job regardless of the time required 
     for its completion. These payments resemble piecework 
     payments with the important distinction that generally a 
     `fee' is paid for the kind of job that is unique rather than 
     for a series of jobs repeated an indefinite number of times 
     and for which payment on an identical basis is made over and 
     over again. Payments based on the number of hours or days 
     worked and not on the accomplishment of a given single task 
     are not considered payments on a fee basis.

[[Page H9789]]

       ``(b) To determine whether the fee payment meets the 
     minimum amount of salary required for exemption under these 
     regulations, the amount paid to the employee will be tested 
     by determining the time worked on the job and whether the fee 
     payment is at a rate that would amount to at least the 
     minimum salary per week, as required by Sec. 541.600(a) and 
     541.602(a), if the employee worked 40 hours. Thus, an artist 
     paid $350 for a picture that took 20 hours to complete meets 
     the $684 minimum salary requirement for exemption since 
     earnings at this rate would yield the artist $700 if 40 hours 
     were worked.

     ``Sec. 541.606 Board, lodging or other facilities

       ``(a) To qualify for exemption under section 13(a)(1) of 
     the Act, an employee must earn the minimum salary amount set 
     forth in Sec. 541.600, `exclusive of board, lodging or other 
     facilities.' The phrase `exclusive of board, lodging or other 
     facilities' means `free and clear' or independent of any 
     claimed credit for non-cash items of value that an employer 
     may provide to an employee. Thus, the costs incurred by an 
     employer to provide an employee with board, lodging or other 
     facilities may not count towards the minimum salary amount 
     required for exemption under this part 541. Such separate 
     transactions are not prohibited between employers and their 
     exempt employees, but the costs to employers associated with 
     such transactions may not be considered when determining if 
     an employee has received the full required minimum salary 
     payment.
       ``(b) Regulations defining what constitutes `board, 
     lodging, or other facilities' are contained in 29 CFR part 
     531. As described in 29 CFR 531.32, the term `other 
     facilities' refers to items similar to board and lodging, 
     such as meals furnished at company restaurants or cafeterias 
     or by hospitals, hotels, or restaurants to their employees; 
     meals, dormitory rooms, and tuition furnished by a college to 
     its student employees; merchandise furnished at company 
     stores or commissaries, including articles of food, clothing, 
     and household effects; housing furnished for dwelling 
     purposes; and transportation furnished to employees for 
     ordinary commuting between their homes and work.

     [``Sec. 541.607 Reserved by 85 FR 34970 Effective: June 8, 
       2020 <<541.607 - Reserved.>>

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

     ``Sec. 541.700 Primary duty

       ``(a) To qualify for exemption under this part, an 
     employee's `primary duty' must be the performance of exempt 
     work. The term `primary duty' means the principal, main, 
     major or most important duty that the employee performs. 
     Determination of an employee's primary duty must be based on 
     all the facts in a particular case, with the major emphasis 
     on the character of the employee's job as a whole. Factors to 
     consider when determining the primary duty of an employee 
     include, but are not limited to, the relative importance of 
     the exempt duties as compared with other types of duties; the 
     amount of time spent performing exempt work; the employee's 
     relative freedom from direct supervision; and the 
     relationship between the employee's salary and the wages paid 
     to other employees for the kind of nonexempt work performed 
     by the employee.
       ``(b) The amount of time spent performing exempt work can 
     be a useful guide in determining whether exempt work is the 
     primary duty of an employee. Thus, employees who spend more 
     than 50 percent of their time performing exempt work will 
     generally satisfy the primary duty requirement. Time alone, 
     however, is not the sole test, and nothing in this section 
     requires that exempt employees spend more than 50 percent of 
     their time performing exempt work. Employees who do not spend 
     more than 50 percent of their time performing exempt duties 
     may nonetheless meet the primary duty requirement if the 
     other factors support such a conclusion.
       ``(c) Thus, for example, assistant managers in a retail 
     establishment who perform exempt executive work such as 
     supervising and directing the work of other employees, 
     ordering merchandise, managing the budget and authorizing 
     payment of bills may have management as their primary duty 
     even if the assistant managers spend more than 50 percent of 
     the time performing nonexempt work such as running the cash 
     register. However, if such assistant managers are closely 
     supervised and earn little more than the nonexempt employees, 
     the assistant managers generally would not satisfy the 
     primary duty requirement.

     ``Sec. 541.701 Customarily and regularly

       ``The phrase `customarily and regularly' means a frequency 
     that must be greater than occasional but which, of course, 
     may be less than constant. Tasks or work performed 
     `customarily and regularly' includes work normally and 
     recurrently performed every workweek; it does not include 
     isolated or one-time tasks.

     ``Sec. 541.702 Exempt and nonexempt work

       ``The term `exempt work' means all work described in 
     Sec. 541.100, 541.101, 541.200, 541.300, 541.301, 541.302, 
     541.303, 541.304, <> 541.400 [and 541.500], and the 
     activities directly and closely related to such work. All 
     other work is considered `nonexempt.'

     ``Sec. 541.703 Directly and closely related

       ``(a) Work that is `directly and closely related' to the 
     performance of exempt work is also considered exempt work. 
     The phrase `directly and closely related' means tasks that 
     are related to exempt duties and that contribute to or 
     facilitate performance of exempt work. Thus, `directly and 
     closely related' work may include physical tasks and menial 
     tasks that arise out of exempt duties, and the routine work 
     without which the exempt employee's exempt work cannot be 
     performed properly. Work `directly and closely related' to 
     the performance of exempt duties may also include 
     recordkeeping; monitoring and adjusting machinery; taking 
     notes; using the computer to create documents or 
     presentations; opening the mail for the purpose of reading it 
     and making decisions; and using a photocopier or fax machine. 
     Work is not `directly and closely related' if the work is 
     remotely related or completely unrelated to exempt duties.
       ``(b) The following examples further illustrate the type of 
     work that is and is not normally considered as directly and 
     closely related to exempt work:
       ``(1) Keeping time, production or sales records for 
     subordinates is work directly and closely related to an 
     exempt executive's function of managing a department and 
     supervising employees.
       ``(2) The distribution of materials, merchandise or 
     supplies to maintain control of the flow of and expenditures 
     for such items is directly and closely related to the 
     performance of exempt duties.
       ``(3) A supervisor who spot checks and examines the work of 
     subordinates to determine whether they are performing their 
     duties properly, and whether the product is satisfactory, is 
     performing work which is directly and closely related to 
     managerial and supervisory functions, so long as the checking 
     is distinguishable from the work ordinarily performed by a 
     nonexempt inspector.
       ``(4) A supervisor who sets up a machine may be engaged in 
     exempt work, depending upon the nature of the industry and 
     the operation. In some cases the setup work, or adjustment of 
     the machine for a particular job, is typically performed by 
     the same employees who operate the machine. Such setup work 
     is part of the production operation and is not exempt. In 
     other cases, the setting up of the work is a highly skilled 
     operation which the ordinary production worker or machine 
     tender typically does not perform. In large plants, non-
     supervisors may perform such work. However, particularly in 
     small plants, such work may be a regular duty of the 
     executive and is directly and closely related to the 
     executive's responsibility for the work performance of 
     subordinates and for the adequacy of the final product. Under 
     such circumstances, it is exempt work.
       ``(5) A department manager in a retail or service 
     establishment who walks about the sales floor observing the 
     work of sales personnel under the employee's supervision to 
     determine the effectiveness of their sales techniques, checks 
     on the quality of customer service being given, or observes 
     customer preferences is performing work which is directly and 
     closely related to managerial and supervisory functions.
       ``(6) A business consultant may take extensive notes 
     recording the flow of work and materials through the office 
     or plant of the client; after returning to the office of the 
     employer, the consultant may personally use the computer to 
     type a report and create a proposed table of organization. 
     Standing alone, or separated from the primary duty, such 
     note-taking and typing would be routine in nature. However, 
     because this work is necessary for analyzing the data and 
     making recommendations, the work is directly and closely 
     related to exempt work. While it is possible to assign note-
     taking and typing to nonexempt employees, and in fact it is 
     frequently the practice to do so, delegating such routine 
     tasks is not required as a condition of exemption.
       ``(7) A [credit] manager who makes and administers the 
     [credit]<> policy of the [employer]<>, establishes [credit]<> limits for 
     [customers]<>, <> authorizes [the 
     shipment of orders on credit, and makes decisions on whether 
     to exceed credit limits]<> would be performing 
     work exempt under Sec. 541.200. Work that is directly and 
     closely related to these exempt duties may include checking 
     the status of accounts to determine whether the credit limit 
     would be exceeded by the shipment of a new order, removing 
     credit reports from the files for analysis, and writing 
     letters giving credit data and experience to other employers 
     or credit agencies.
       ``(8) A traffic manager in charge of planning a company's 
     transportation, including the most economical and quickest 
     routes for shipping merchandise to and from the plant, 
     contracting for common-carrier and other transportation 
     facilities, negotiating with carriers for adjustments for 
     damages to merchandise, and making the necessary 
     rearrangements resulting from delays, damages or 
     irregularities in transit, is performing exempt work. If the 
     employee also spends part of the day taking telephone orders 
     for local deliveries, such order-taking is a routine function 
     and is not directly and closely related to the exempt work.
       ``(9) An example of work directly and closely related to 
     exempt professional duties is a chemist performing menial 
     tasks such as cleaning a test tube in the middle of an 
     original experiment, even though such menial tasks can be 
     assigned to laboratory assistants.
       ``(10) A teacher performs work directly and closely related 
     to exempt duties when, while taking students on a field trip, 
     the teacher

[[Page H9790]]

     drives a school van or monitors the students' behavior in a 
     restaurant.

     ``Sec. 541.704 Use of manuals

       ``The use of manuals, guidelines or other established 
     procedures containing or relating to highly technical, 
     scientific, legal, financial or other similarly complex 
     matters that can be understood or interpreted only by those 
     with advanced or specialized knowledge or skills does not 
     preclude exemption under section 13(a)(1) of the Act or the 
     regulations in this part. Such manuals and procedures provide 
     guidance in addressing difficult or novel circumstances and 
     thus use of such reference material would not affect an 
     employee's exempt status. The section 13(a)(1) exemptions are 
     not available, however, for employees who simply apply well-
     established techniques or procedures described in manuals or 
     other sources within closely prescribed limits to determine 
     the correct response to an inquiry or set of circumstances.

     ``Sec. 541.705 Trainees

       ``The executive, administrative, professional, [outside 
     sales] and computer employee exemptions do not apply to 
     employees training for employment in an executive, 
     administrative, professional, [outside sales] or computer 
     employee capacity who are not actually performing the duties 
     of an executive, administrative, professional, [outside 
     sales] or computer employee.

     ``Sec. 541.706 Emergencies

       ``(a) An exempt employee will not lose the exemption by 
     performing work of a normally nonexempt nature because of the 
     existence of an emergency. Thus, when emergencies arise that 
     threaten the safety of employees, a cessation of operations 
     or serious damage to the employer's property, any work 
     performed in an effort to prevent such results is considered 
     exempt work.
       ``(b) An `emergency' does not include occurrences that are 
     not beyond control or for which the employer can reasonably 
     provide in the normal course of business. Emergencies 
     generally occur only rarely, and are events that the employer 
     cannot reasonably anticipate.
       ``(c) The following examples illustrate the distinction 
     between emergency work considered exempt work and routine 
     work that is not exempt work:
       ``(1) [A mine superintendent who pitches in after an 
     explosion and digs out workers who are trapped in the mine is 
     still a bona fide executive.]<>
       ``(2) Assisting nonexempt employees with their work during 
     periods of heavy workload or to handle rush orders is not 
     exempt work.
       ``(3) Replacing a nonexempt employee during the first day 
     or partial day of an illness may be considered exempt 
     emergency work depending on factors such as the size of the 
     [establishment]<> and of the executive's 
     department, the nature of the [industry]<>, the consequences that would flow from 
     the failure to replace the ailing employee immediately, and 
     the feasibility of filling the employee's place promptly.
       ``(4) Regular repair and cleaning of equipment is not 
     emergency work, even when necessary to prevent fire or 
     explosion; however, repairing equipment may be emergency work 
     if the breakdown of or damage to the equipment was caused by 
     accident or carelessness that the employer could not 
     reasonably anticipate.

     ``Sec. 541.707 Occasional tasks

       ``Occasional, infrequently recurring tasks that cannot 
     practicably be performed by nonexempt employees, but are the 
     means for an exempt employee to properly carry out exempt 
     functions and responsibilities, are considered exempt work. 
     The following factors should be considered in determining 
     whether such work is exempt work: Whether the same work is 
     performed by any of the exempt employee's subordinates; 
     practicability of delegating the work to a nonexempt 
     employee; whether the exempt employee performs the task 
     frequently or occasionally; and existence of an industry 
     practice for the exempt employee to perform the task.

     ``Sec. 541.708 Combination exemptions

       ``Employees who perform a combination of exempt duties as 
     set forth in the regulations in this part for executive, 
     administrative, professional, [outside sales] and computer 
     employees may qualify for exemption. Thus, for example, an 
     employee whose primary duty involves a combination of exempt 
     administrative and exempt executive work may qualify for 
     exemption. In other words, work that is exempt under one 
     section of this part will not defeat the exemption under any 
     other section.

     [``Sec. 541.709 Motion picture producing industry

       [``The requirement that the employee be paid `on a salary 
     basis' does not apply to an employee in the motion picture 
     producing industry who is compensated at a base rate of at 
     least $1,043 per week (exclusive of board, lodging, or other 
     facilities). Thus, an employee in this industry who is 
     otherwise exempt under subparts B, C, or D of this part, and 
     who is employed at a base rate of at least the applicable 
     current minimum amount a week is exempt if paid a 
     proportionate amount (based on a week of not more than 6 
     days) for any week in which the employee does not work a full 
     workweek for any reason. Moreover, an otherwise exempt 
     employee in this industry qualifies for exemption if the 
     employee is employed at a daily rate under the following 
     circumstances:]
       [``(a) The employee is in a job category for which a weekly 
     base rate is not provided and the daily base rate would yield 
     at least the minimum weekly amount if 6 days were worked; or]
       [``(b) The employee is in a job category having the minimum 
     weekly base rate and the daily base rate is at least one-
     sixth of such weekly base rate.]

     ``Sec. 541.709 <>

     ``Sec. 541.710 [Employees of public agencies]<>

       ``(a) An employee [of a public agency] who otherwise meets 
     the salary basis requirements of Sec. 541.602 shall not be 
     disqualified from exemption under Sec. 541.100, 541.200, 
     541.300 or 541.400 on the basis that such employee is paid 
     according to a pay system established by statute, ordinance 
     or regulation, or by a policy or practice established 
     pursuant to principles of public accountability, under which 
     the employee accrues personal leave and sick leave and which 
     requires the [public agency] employee's pay to be reduced or 
     such employee to be placed on leave without pay for absences 
     for personal reasons or because of illness or injury of less 
     than one work-day when accrued leave is not used by an 
     employee because:
       ``(1) Permission for its use has not been sought or has 
     been sought and denied;
       ``(2) Accrued leave has been exhausted; or
       ``(3) The employee chooses to use leave without pay.
       ``(b) Deductions from the pay of an employee [of a public 
     agency] for absences due to a budget-required furlough shall 
     not disqualify the employee from being paid on a salary basis 
     except in the workweek in which the furlough occurs and for 
     which the employee's pay is accordingly reduced.''.

     

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