Page 781 TITLE 29—LABOR § 2613

require such employee to transfer temporarily

to an available alternative position offered by

the employer for which the employee is qualified and that—

(A) has equivalent pay and benefits; and

(B) better accommodates recurring periods

of leave than the regular employment position of the employee.

(c) Unpaid leave permitted

Except as provided in subsection (d) of this

section, leave granted under subsection (a) may

consist of unpaid leave. Where an employee is

otherwise exempt under regulations issued by

the Secretary pursuant to section 213(a)(1) of

this title, the compliance of an employer with

this subchapter by providing unpaid leave shall

not affect the exempt status of the employee

under such section.

(d) Relationship to paid leave

(1) Unpaid leave

If an employer provides paid leave for fewer

than 12 workweeks, the additional weeks of

leave necessary to attain the 12 workweeks of

leave required under this subchapter may be

provided without compensation.

(2) Substitution of paid leave

(A) In general

An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation

leave, personal leave, or family leave of the

employee for leave provided under subparagraph (A), (B), or (C) of subsection (a)(1) of

this section for any part of the 12-week period of such leave under such subsection.

(B) Serious health condition

An eligible employee may elect, or an employer may require the employee, to substitute any of the accrued paid vacation

leave, personal leave, or medical or sick

leave of the employee for leave provided

under subparagraph (C) or (D) of subsection

(a)(1) of this section for any part of the 12-

week period of such leave under such subsection, except that nothing in this subchapter shall require an employer to provide

paid sick leave or paid medical leave in any

situation in which such employer would not

normally provide any such paid leave.

(e) Foreseeable leave

(1) Requirement of notice

In any case in which the necessity for leave

under subparagraph (A) or (B) of subsection

(a)(1) of this section is foreseeable based on an

expected birth or placement, the employee

shall provide the employer with not less than

30 days’ notice, before the date the leave is to

begin, of the employee’s intention to take

leave under such subparagraph, except that if

the date of the birth or placement requires

leave to begin in less than 30 days, the employee shall provide such notice as is practicable.

(2) Duties of employee

In any case in which the necessity for leave

under subparagraph (C) or (D) of subsection

(a)(1) of this section is foreseeable based on

planned medical treatment, the employee—

(A) shall make a reasonable effort to

schedule the treatment so as not to disrupt

unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, or parent

of the employee, as appropriate; and

(B) shall provide the employer with not

less than 30 days’ notice, before the date the

leave is to begin, of the employee’s intention

to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the

employee shall provide such notice as is

practicable.

(f) Spouses employed by same employer

In any case in which a husband and wife entitled to leave under subsection (a) of this section

are employed by the same employer, the aggregate number of workweeks of leave to which

both may be entitled may be limited to 12 workweeks during any 12-month period, if such leave

is taken—

(1) under subparagraph (A) or (B) of subsection (a)(1) of this section; or

(2) to care for a sick parent under subparagraph (C) of such subsection.

(Pub. L. 103–3, title I, §102, Feb. 5, 1993, 107 Stat.

9.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 2611, 2613, 2614,

2618 of this title; title 2 section 1312; title 3 section 412.

§ 2613. Certification

(a) In general

An employer may require that a request for

leave under subparagraph (C) or (D) of section

2612(a)(1) of this title be supported by a certification issued by the health care provider of the

eligible employee or of the son, daughter,

spouse, or parent of the employee, as appropriate. The employee shall provide, in a timely

manner, a copy of such certification to the employer.

(b) Sufficient certification

Certification provided under subsection (a) of

this section shall be sufficient if it states—

(1) the date on which the serious health condition commenced;

(2) the probable duration of the condition;

(3) the appropriate medical facts within the

knowledge of the health care provider regarding the condition;

(4)(A) for purposes of leave under section

2612(a)(1)(C) of this title, a statement that the

eligible employee is needed to care for the son,

daughter, spouse, or parent and an estimate of

the amount of time that such employee is

needed to care for the son, daughter, spouse,

or parent; and

(B) for purposes of leave under section

2612(a)(1)(D) of this title, a statement that the

employee is unable to perform the functions of

the position of the employee;

(5) in the case of certification for intermittent leave, or leave on a reduced leave sched-
§ 2614 TITLE 29—LABOR Page 782

ule, for planned medical treatment, the dates

on which such treatment is expected to be

given and the duration of such treatment;

(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 2612(a)(1)(D) of this title, a

statement of the medical necessity for the

intermittent leave or leave on a reduced leave

schedule, and the expected duration of the

intermittent leave or reduced leave schedule;

and

(7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 2612(a)(1)(C) of this title, a

statement that the employee’s intermittent

leave or leave on a reduced leave schedule is

necessary for the care of the son, daughter,

parent, or spouse who has a serious health

condition, or will assist in their recovery, and

the expected duration and schedule of the

intermittent leave or reduced leave schedule.

(c) Second opinion

(1) In general

In any case in which the employer has reason to doubt the validity of the certification

provided under subsection (a) of this section

for leave under subparagraph (C) or (D) of section 2612(a)(1) of this title, the employer may

require, at the expense of the employer, that

the eligible employee obtain the opinion of a

second health care provider designated or approved by the employer concerning any information certified under subsection (b) of this

section for such leave.

(2) Limitation

A health care provider designated or approved under paragraph (1) shall not be employed on a regular basis by the employer.

(d) Resolution of conflicting opinions

(1) In general

In any case in which the second opinion described in subsection (c) of this section differs

from the opinion in the original certification

provided under subsection (a) of this section,

the employer may require, at the expense of

the employer, that the employee obtain the

opinion of a third health care provider designated or approved jointly by the employer

and the employee concerning the information

certified under subsection (b) of this section.

(2) Finality

The opinion of the third health care provider

concerning the information certified under

subsection (b) of this section shall be considered to be final and shall be binding on the

employer and the employee.

(e) Subsequent recertification

The employer may require that the eligible

employee obtain subsequent recertifications on

a reasonable basis.

(Pub. L. 103–3, title I, §103, Feb. 5, 1993, 107 Stat.

11.)

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 2612 of this title;

title 2 section 1312; title 3 section 412.

§ 2614. Employment and benefits protection

(a) Restoration to position

(1) In general

Except as provided in subsection (b) of this

section, any eligible employee who takes leave

under section 2612 of this title for the intended

purpose of the leave shall be entitled, on return from such leave—

(A) to be restored by the employer to the

position of employment held by the employee when the leave commenced; or

(B) to be restored to an equivalent position

with equivalent employment benefits, pay,

and other terms and conditions of employment.

(2) Loss of benefits

The taking of leave under section 2612 of this

title shall not result in the loss of any employment benefit accrued prior to the date on

which the leave commenced.

(3) Limitations

Nothing in this section shall be construed to

entitle any restored employee to—

(A) the accrual of any seniority or employment benefits during any period of leave; or

(B) any right, benefit, or position of employment other than any right, benefit, or

position to which the employee would have

been entitled had the employee not taken

the leave.

(4) Certification

As a condition of restoration under paragraph (1) for an employee who has taken leave

under section 2612(a)(1)(D) of this title, the

employer may have a uniformly applied practice or policy that requires each such employee to receive certification from the health

care provider of the employee that the employee is able to resume work, except that

nothing in this paragraph shall supersede a

valid State or local law or a collective bargaining agreement that governs the return to

work of such employees.

(5) Construction

Nothing in this subsection shall be construed to prohibit an employer from requiring

an employee on leave under section 2612 of this

title to report periodically to the employer on

the status and intention of the employee to return to work.

(b) Exemption concerning certain highly compensated employees

(1) Denial of restoration

An employer may deny restoration under

subsection (a) of this section to any eligible

employee described in paragraph (2) if—

(A) such denial is necessary to prevent

substantial and grievous economic injury to

the operations of the employer;

(B) the employer notifies the employee of

the intent of the employer to deny restoration on such basis at the time the employer

determines that such injury would occur;

and

(C) in any case in which the leave has commenced, the employee elects not to return to

employment after receiving such notice.