S. Con. Res. 51 Agreed to April 16, 1996

One Hundred Fourth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Wednesday,

the third day of January, one thousand nine hundred and ninety-six

Concurrent Resolution

Resolved by the Senate (the House of Representatives concurring), That the following regulations issued by the Office of Compliance on January 22, 1996, and applicable to employing offices

that are not employing offices of the House of Representatives

or the Senate, and to covered employees who are not employees

of the House of Representatives or the Senate, are hereby approved

as follows:

PART 825—FAMILY AND MEDICAL LEAVE

825.1 Purpose and scope.

825.2 [Reserved].

SUBPART A—WHAT IS THE FAMILY AND MEDICAL LEAVE ACT, AND TO WHOM DOES

IT APPLY UNDER THE CONGRESSIONAL ACCOUNTABILITY ACT?

825.100 What is the Family and Medical Leave Act?

825.101 What is the purpose of the FMLA?

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

825.103 How does the FMLA, as made applicable by the CAA, affect leave in

progress on, or taken before, the effective date of the CAA?

825.104 What employing offices are covered by the FMLA, as made applicable by

the CAA?

825.105 [Reserved].

825.106 How is ‘‘joint employment’’ treated under the FMLA as made applicable

by the CAA?

825.107—825.109 [Reserved].

825.110 Which employees are ‘‘eligible’’ to take FMLA leave under these regulations?

825.111 [Reserved].

825.112 Under what kinds of circumstances are employing offices required to grant

family or medical leave?

825.113 What do ‘‘spouse’’, ‘‘parent’’, and ‘‘son or daughter’’ mean for purposes of

an employee qualifying to take FMLA leave?

825.114 What is a ‘‘serious health condition’’ entitling an employee to FMLA leave?

825.115 What does it mean that ‘‘the employee is unable to perform the functions

of the position of the employee’’?

825.116 What does it mean that an employee is ‘‘needed to care for’’ a family member?

825.117 For an employee seeking intermittent FMLA leave or leave on a reduced

leave schedule, what is meant by ‘‘the medical necessity for’’ such leave?

825.118 What is a ‘‘health care provider’’?

SUBPART B—WHAT LEAVE IS AN EMPLOYEE ENTITLED TO TAKE UNDER THE FAMILY

AND MEDICAL LEAVE ACT, AS MADE APPLICABLE BY THE CONGRESSIONAL ACCOUNTABILITY ACT?

825.200 How much leave may an employee take?

825.201 If leave is taken for the birth of a child, or for placement of a child for

adoption or foster care, when must the leave be concluded?

825.202 How much leave may a husband and wife take if they are employed by

the same employing office?

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

825.204 May an employing office transfer an employee to an ‘‘alternative position’’

in order to accommodate intermittent leave or a reduced leave schedule?
S. Con. Res. 51—2

825.205 How does one determine the amount of leave used where an employee

takes leave intermittently or on a reduced leave schedule?

825.206 May an employing office deduct hourly amounts from an employee’s salary, when providing unpaid leave under FMLA, as made applicable by

the CAA, without affecting the employee’s qualification for exemption as

an executive, administrative, or professional employee, or when utilizing

the fluctuating workweek method for payment of overtime, under the

Fair Labor Standards Act?

825.207 Is FMLA leave paid or unpaid?

825.208 Under what circumstances may an employing office designate leave, paid

or unpaid, as FMLA leave and, as a result, enable leave to be counted

against the employee’s total FMLA leave entitlement?

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

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

825.211 What special health benefits maintenance rules apply to multi-employer

health plans?

825.212 What are the consequences of an employee’s failure to make timely health

plan premium payments?

825.213 May an employing office recover costs it incurred for maintaining ‘‘group

health plan’’ or other non-health benefits coverage during FMLA leave?

825.214 What are an employee’s rights on returning to work from FMLA leave?

825.215 What is an equivalent position?

825.216 Are there any limitations on an employing office’s obligation to reinstate

an employee?

825.217 What is a ‘‘key employee’’?

825.218 What does ‘‘substantial and grievous economic injury’’ mean?

825.219 What are the rights of a key employee?

825.220 How are employees protected who request leave or otherwise assert FMLA

rights?

SUBPART C—HOW DO EMPLOYEES LEARN OF THEIR RIGHTS AND OBLIGATIONS UNDER

THE FMLA, AS MADE APPLICABLE BY THE CAA, AND WHAT CAN AN EMPLOYING

OFFICE REQUIRE OF AN EMPLOYEE?

825.300 [Reserved].

825.301 What notices to employees are required of employing offices under the

FMLA as made applicable by the CAA?

825.302 What notice does an employee have to give an employing office when the

need for FMLA leave is foreseeable?

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

825.304 What recourse do employing offices have if employees fail to provide the

required notice?

825.305 When must an employee provide medical certification to support FMLA

leave?

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

825.307 What may an employing office do if it questions the adequacy of a medical

certification?

825.308 Under what circumstances may an employing office request subsequent

recertifications of medical conditions?

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

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

825.311 What happens if an employee fails to satisfy the medical certification and/

or recertification requirements?

825.312 Under what circumstances may an employing office refuse to provide

FMLA leave or reinstatement to eligible employees?

SUBPART D—WHAT ENFORCEMENT MECHANISMS DOES THE CAA PROVIDE?

825.400 What can employees do who believe that their rights under the FMLA as

made applicable by the CAA have been violated?

825.401—825.404 [Reserved].

SUBPART E—[RESERVED]

SUBPART F—WHAT SPECIAL RULES APPLY TO EMPLOYEES OF SCHOOLS?

825.600 To whom do the special rules apply?

825.601 What limitations apply to the taking of intermittent leave or leave on a

reduced leave schedule?
S. Con. Res. 51—3

825.602 What limitations apply to the taking of leave near the end of an academic

term?

825.603 Is all leave taken during ‘‘periods of a particular duration’’ counted against

the FMLA leave entitlement?

825.604 What special rules apply to restoration to ‘‘an equivalent position’’?

SUBPART G—HOW DO OTHER LAWS, EMPLOYING OFFICE PRACTICES, AND COLLECTIVE

BARGAINING AGREEMENTS AFFECT EMPLOYEE RIGHTS UNDER THE FMLA AS MADE

APPLICABLE BY THE CAA?

825.700 What if an employing office provides more generous benefits than required

by FMLA as made applicable by the CAA?

825.701 [Reserved].

825.702 How does FMLA affect anti-discrimination laws as applied by section 201

of the CAA?

SUBPART H—DEFINITIONS

825.800 Definitions.

Appendix A to Part 825—[Reserved].

Appendix B to Part 825—Certification of Physician or Practitioner.

Appendix C to Part 825—[Reserved].

Appendix D to Part 825—Prototype Notice: Employing Office Response to Employee

Request for Family and Medical Leave.

Appendix E to Part 825—[Reserved].

PART 825—FAMILY AND MEDICAL LEAVE

§ 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 § 825.800 of these regulations for that definition.) The purpose

of this part is to set forth the regulations to carry out the provisions

of section 202 of the CAA.

(b) These regulations are issued by the Board of Directors,

Office of Compliance, pursuant to sections 202(d) and 304 of the

CAA, which direct the Board to promulgate regulations implementing section 202 that are ‘‘the same as substantive regulations

promulgated by the Secretary of Labor to implement the statutory

provisions referred to in subsection (a) [of section 202 of the CAA]

except insofar as the Board may determine, for good cause

shown*** that a modification of such regulations would be more

effective for the implementation of the rights and protections under

this section’’. The regulations issued by the Board herein are on

all matters for which section 202 of the CAA requires regulations

to be issued. Specifically, it is the Board’s considered judgment,

based on the information available to it at the time of the promulgation of these regulations, that, with the exception of regulations

adopted and set forth herein, there are no other ‘‘substantive regulations promulgated by the Secretary of Labor to implement the

statutory provisions referred to in subsection (a) [of section 202

of the CAA]’’.

(c) In promulgating these regulations, the Board has made

certain technical and nomenclature changes to the regulations as

promulgated by the Secretary. Such changes are intended to make

the provisions adopted accord more naturally to situations in the

legislative branch. However, by making these changes, the Board

does not intend a substantive difference between these regulations

and those of the Secretary from which they are derived. Moreover,

such changes, in and of themselves, are not intended to constitute
S. Con. Res. 51—4

an interpretation of the regulation or of the statutory provisions

of the CAA upon which they are based.

§ 825.2 [Reserved]

SUBPART A—WHAT IS THE FAMILY AND MEDICAL LEAVE ACT, AND

TO WHOM DOES IT APPLY UNDER THE CONGRESSIONAL ACCOUNT- ABILITY ACT?

§ 825.100 What is the Family and Medical Leave Act?

(a) The Family and Medical Leave Act of 1993 (FMLA), as

made applicable by the Congressional Accountability Act (CAA),

allows ‘‘eligible’’ employees of an employing office to take job-protected, unpaid leave, or to substitute appropriate paid leave if

the employee has earned or accrued it, for up to a total of 12

workweeks in any 12 months because of the birth of a child and

to care for the newborn child, because of the placement of a child

with the employee for adoption or foster care, because the employee

is needed to care for a family member (child, spouse, or parent)

with a serious health condition, or because the employee’s own

serious health condition makes the employee unable to perform

the functions of his or her job (see § 825.306(b)(4)). In certain

cases, this leave may be taken on an intermittent basis rather

than all at once, or the employee may work a part-time schedule.

(b) An employee on FMLA leave is also entitled to have health

benefits maintained while on leave as if the employee had continued

to work instead of taking the leave. If an employee was paying

all or part of the premium payments prior to leave, the employee

would continue to pay his or her share during the leave period.

The employing office, or a disbursing or other financial office of

the House of Representatives or the Senate may recover its share

only if the employee does not return to work for a reason other

than the serious health condition of the employee or the employee’s

immediate family member, or another reason beyond the employee’s

control.

(c) An employee generally has a right to return to the same

position or an equivalent position with equivalent pay, benefits

and working conditions at the conclusion of the leave. The taking

of FMLA leave cannot result in the loss of any benefit that accrued

prior to the start of the leave.

(d) The employing office has a right to 30 days advance notice

from the employee where practicable. In addition, the employing

office may require an employee to submit certification from a health

care provider to substantiate that the leave is due to the serious

health condition of the employee or the employee’s immediate family

member. Failure to comply with these requirements may result

in a delay in the start of FMLA leave. Pursuant to a uniformly

applied policy, the employing office may also require that an

employee present a certification of fitness to return to work when

the absence was caused by the employee’s serious health condition

(see § 825.311(c)). The employing office may delay restoring the

employee to employment without such certificate relating to the

health condition which caused the employee’s absence.

§ 825.101 What is the purpose of the FMLA?

(a) FMLA is intended to allow employees to balance their

work and family life by taking reasonable unpaid leave for medical

reasons, for the birth or adoption of a child, and for the care
S. Con. Res. 51—5

of a child, spouse, or parent who has a serious health condition.

The FMLA is intended to balance the demands of the workplace

with the needs of families, to promote the stability and economic

security of families, and to promote national interests in preserving

family integrity. It was intended that the FMLA accomplish these

purposes in a manner that accommodates the legitimate interests

of employers, and in a manner consistent with the Equal Protection

Clause of the Fourteenth Amendment in minimizing the potential

for employment discrimination on the basis of sex, while promoting

equal employment opportunity for men and women.

(b) The enactment of FMLA was predicated on two fundamental

concerns, ‘‘the needs of the American workforce, and the development of high-performance organizations’’. Increasingly, America’s

children and elderly are dependent upon family members who must

spend long hours at work. When a family emergency arises, requiring workers to attend to seriously-ill children or parents, or to

newly-born or adopted infants, or even to their own serious illness,

workers need reassurance that they will not be asked to choose

between continuing their employment, and meeting their personal

and family obligations or tending to vital needs at home.

(c) The FMLA is both intended and expected to benefit employers as well as their employees. A direct correlation exists between

stability in the family and productivity in the workplace. FMLA

will encourage the development of high-performance organizations.

When workers can count on durable links to their workplace they

are able to make their own full commitments to their jobs. The

record of hearings on family and medical leave indicate the powerful

productive advantages of stable workplace relationships, and the

comparatively small costs of guaranteeing that those relationships

will not be dissolved while workers attend to pressing family health

obligations or their own serious illness.

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

(a) The rights and protection of sections 101 through 105 of

the FMLA have applied to certain Senate employees and certain

employing offices of the Senate since August 5, 1993 (see section

501 of FMLA).

(b) The rights and protection of sections 101 through 105 of

the FMLA have applied to any employee in an employment position

and any employment authority of the House of Representatives

since August 5, 1993 (see section 502 of FMLA).

(c) The rights and protections of sections 101 through 105

of the FMLA have applied to certain employing offices and covered

employees other than those referred to in paragraphs (a) and (b)

of this section for certain periods since August 5, 1993 (see, e.g.,

title V of the FMLA, sections 501 and 502).

(d) The provisions of section 202 of the CAA that apply rights

and protections of the FMLA to covered employees are effective

on January 23, 1996.

(e) The period prior to the effective date of the application

of FMLA rights and protections under the CAA must be considered

in determining employee eligibility.
S. Con. Res. 51—6

§ 825.103 How does the FMLA, as made applicable by the

CAA, affect leave in progress on, or taken before,

the effective date of the CAA?

(a) An eligible employee’s right to take FMLA leave began

on the date that the rights and protections of the FMLA first

went into effect for the employing office and employee (see

§ 825.102(a)). Any leave taken prior to the date on which the rights

and protections of the FMLA first became effective for the employing

office from which the leave was taken may not be counted for

purposes of the FMLA as made applicable by the CAA. If leave

qualifying as FMLA leave was underway prior to the effective

date of the FMLA for the employing office from which the leave

was taken and continued after the FMLA’s effective date for that

office, only that portion of leave taken on or after the FMLA’s

effective date may be counted against the employee’s leave entitlement under the FMLA, as made applicable by the CAA.

(b) If an employing office-approved leave is underway when

the application of the FMLA by the CAA takes effect, no further

notice would be required of the employee unless the employee

requests an extension of the leave. For leave which commenced

on the effective date or shortly thereafter, such notice must have

been given which was practicable, considering the foreseeability

of the need for leave and the effective date.

(c) Starting on January 23, 1996, an employee is entitled to

FMLA leave under these regulations if the reason for the leave

is qualifying under the FMLA, as made applicable by the CAA,

even if the event occasioning the need for leave (e.g., the birth

of a child) occurred before such date (so long as any other requirements are satisfied).

§ 825.104 What employing offices are covered by the FMLA,

as made applicable by the CAA?

(a) The FMLA, as made applicable by the CAA, covers all

employing offices. As used in the CAA, the term ‘‘employing office’’

means—

(1) the personal office of a Member of the House of Representatives or of a Senator;

(2) a committee of the House of Representatives or the

Senate or a joint committee;

(3) any other office headed by a person with the final

authority to appoint, hire, discharge, and set the terms, conditions, or privileges of the employment of an employee of the

House of Representatives or the Senate; or

(4) the Capitol Guide Board, the Capitol Police Board,

the Congressional Budget Office, the Office of the Architect

of the Capitol, the Office of the Attending Physician, the Office

of Compliance, and the Office of Technology Assessment.

(b) [Reserved].

(c) Separate entities will be deemed to be parts of a single

employer for purposes of the FMLA, as made applicable by the

CAA, if they meet the ‘‘integrated employer’’ test. A determination

of whether or not separate entities are an integrated employer

is not determined by the application of any single criterion, but

rather the entire relationship is to be reviewed in its totality.

Factors considered in determining whether two or more entities

are an integrated employer include:

(i) Common management;
S. Con. Res. 51—7

(ii) Interrelation between operations;

(iii) Centralized control of labor relations; and

(iv) Degree of common financial control.

§ 825.105 [Reserved]

§ 825.106 How is ‘‘joint employment’’ treated under the FMLA

as made applicable by the CAA?

(a) Where two or more employing offices exercise some control

over the work or working conditions of the employee, the employing

offices may be joint employers under FMLA, as made applicable

by the CAA. Where the employee performs work which simultaneously benefits two or more employing offices, or works for two

or more employing offices at different times during the workweek,

a joint employment relationship generally will be considered to

exist in situations such as:

(1) Where there is an arrangement between employing

offices to share an employee’s services or to interchange employees;

(2) Where one employing office acts directly or indirectly

in the interest of the other employing office in relation to

the employee; or

(3) Where the employing offices are not completely disassociated with respect to the employee’s employment and may

be deemed to share control of the employee, directly or

indirectly, because one employing office controls, is controlled

by, or is under common control with the other employing office.

(b) A determination of whether or not a joint employment

relationship exists is not determined by the application of any

single criterion, but rather the entire relationship is to be viewed

in its totality. For example, joint employment will ordinarily be

found to exist when—

(1) an employee, who is employed by an employing office

other than the personal office of a Member of the House of

Representatives or of a Senator, is under the actual direction

and control of the Member of the House of Representatives

or Senator; or

(2) two or more employing offices employ an individual

to work on common issues or other matters for both or all

of them.

(c) When employing offices employ a covered employee jointly,

they may designate one of themselves to be the primary employing

office, and the other or others to be the secondary employing

office(s). Such a designation shall be made by written notice to

the covered employee.

(d) If an employing office is designated a primary employing

office pursuant to paragraph (c) of this section, only that employing

office is responsible for giving required notices to the covered

employee, providing FMLA leave, and maintenance of health benefits. Job restoration is the primary responsibility of the primary

employing office, and the secondary employing office(s) may, subject

to the limitations in § 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 bene-
S. Con. Res. 51—8

fits are maintained, and for job restoration. The employee may

give notice of need for FMLA leave, as described in §§ 825.302

and 825.303, to whichever of these employing offices the employee

chooses. If the employee makes a written request for restoration

to one of these employing offices, that employing office shall be

primarily responsible for job restoration, and the other employing

office(s) may, subject to the limitations in § 825.216, be responsible

for accepting the employee returning from FMLA leave.

§ 825.107 [Reserved]

§ 825.108 [Reserved]

§ 825.109 [Reserved]

§ 825.110 Which employees are ‘‘eligible’’ to take FMLA leave

under these regulations?

(a) An ‘‘eligible employee’’ under these regulations means a

covered employee who has been employed in any employing office

for 12 months and for at least 1,250 hours of employment during

the previous 12 months.

(b) The 12 months an employee must have been employed

by any employing office need not be consecutive months. If an

employee worked for two or more employing offices sequentially,

the time worked will be aggregated to determine whether it equals

12 months. If an employee is maintained on the payroll for any

part of a week, including any periods of paid or unpaid leave

(sick, vacation) during which other benefits or compensation are

provided by the employer (e.g., workers’ compensation, group health

plan benefits, etc.), the week counts as a week of employment.

For purposes of determining whether intermittent/occasional/casual

employment qualifies as ‘‘at least 12 months’’, 52 weeks is deemed

to be equal to 12 months.

(c) If an employee was employed by two or more employing

offices, either sequentially or concurrently, the hours of service

will be aggregated to determine whether the minimum of 1,250

hours has been reached. Whether an employee has worked the

minimum 1,250 hours of service is determined according to the

principles established under the Fair Labor Standards Act (FLSA),

as applied by section 203 of the CAA (2 U.S.C. 1313), for determining compensable hours of work. The determining factor is the number of hours an employee has worked for one or more employing

offices. The determination is not limited by methods of 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 may be used. For this purpose, full-time teachers

(see § 825.800 for definition) of an elementary or secondary school

system, or institution of higher education, or other educational

establishment or institution are deemed to meet the 1,250 hour

test. An employing office must be able to clearly demonstrate that

such an employee did not work 1,250 hours during the previous

12 months in order to claim that the employee is not ‘‘eligible’’

for FMLA leave.

(d) The determinations of whether an employee has worked

for any employing office for at least 1,250 hours in the previous

12 months and has been employed by any employing office for

a total of at least 12 months must be made as of the date leave

commences. The ‘‘previous 12 months’’ means the 12 months imme-
S. Con. Res. 51—9

diately preceding the commencement of the leave. If an employee

notifies the employing office of need for FMLA leave before the

employee meets these eligibility criteria, the employing office must

either confirm the employee’s eligibility based upon a projection

that the employee will be eligible on the date leave would commence

or must advise the employee when the eligibility requirement is

met. If the employing office confirms eligibility at the time the

notice for leave is received, the employing office may not subsequently challenge the employee’s eligibility. In the latter case, if

the employing office does not advise the employee whether the

employee is eligible as soon as practicable (i.e., two business days

absent extenuating circumstances) after the date employee eligibility is determined, the employee will have satisfied the notice

requirements and the notice of leave is considered current and

outstanding until the employing office does advise. If the employing

office fails to advise the employee whether the employee is eligible

prior to the date the requested leave is to commence, the employee

will be deemed eligible. The employing office may not, then, deny

the leave. Where the employee does not give notice of the need

for leave more than two business days prior to commencing leave,

the employee will be deemed to be eligible if the employing office

fails to advise the employee that the employee is not eligible within

two business days of receiving the employee’s notice.

(e) The period prior to the effective date of the application

of FMLA rights and protections under the CAA must be considered

in determining employee’s eligibility.

(f) [Reserved].

§ 825.111 [Reserved]

§ 825.112 Under what kinds of circumstances are employing

offices required to grant family or medical leave?

(a) Employing offices are required to grant leave to eligible

employees:

(1) For birth of a son or daughter, and to care for the

newborn child;

(2) For placement with the employee of a son or daughter

for adoption or foster care;

(3) To care for the employee’s spouse, son, daughter, or

parent with a serious health condition; and

(4) Because of a serious health condition that makes the

employee unable to perform the functions of the employee’s

job.

(b) The right to take leave under FMLA as made applicable

by the CAA applies equally to male and female employees. A

father, as well as a mother, can take family leave for the birth,

placement for adoption or foster care of a child.

(c) Circumstances may require that FMLA leave begin before

the actual date of birth of a child. An expectant mother may

take FMLA leave pursuant to paragraph (a)(4) of this section before

the birth of the child for prenatal care or if her condition makes

her unable to work.

(d) Employing offices are required to grant FMLA leave pursuant to paragraph (a)(2) of this section before the actual placement

or adoption of a child if an absence from work is required for

the placement for adoption or foster care to proceed. For example,

the employee may be required to attend counseling sessions, appear

in court, consult with his or her attorney or the doctor(s) represent-
S. Con. Res. 51—10

ing the birth parent, or submit to a physical examination. The

source of an adopted child (e.g., whether from a licensed placement

agency or otherwise) is not a factor in determining eligibility for

leave for this purpose.

(e) Foster care is 24-hour care for children in substitution

for, and away from, their parents or guardian. Such placement

is made by or with the agreement of the State as a result of

a voluntary agreement between the parent or guardian that the

child be removed from the home, or pursuant to a judicial determination of the necessity for foster care, and involves agreement

between the State and foster family that the foster family will

take care of the child. Although foster care may be with relatives

of the child, State action is involved in the removal of the child

from parental custody.

(f) In situations where the employer/employee relationship has

been interrupted, such as an employee who has been on layoff,

the employee must be recalled or otherwise be re-employed before

being eligible for FMLA leave. Under such circumstances, an eligible

employee is immediately entitled to further FMLA leave for a

qualifying reason.

(g) FMLA leave is available for treatment for substance abuse

provided the conditions of § 825.114 are met. However, treatment

for substance abuse does not prevent an employing office from

taking employment action against an employee. The employing

office may not take action against the employee because the

employee has exercised his or her right to take FMLA leave for

treatment. However, if the employing office has an established

policy, applied in a non-discriminatory manner that has been

communicated to all employees, that provides under certain circumstances an employee may be terminated for substance abuse,

pursuant to that policy the employee may be terminated whether

or not the employee is presently taking FMLA leave. An employee

may also take FMLA leave to care for an immediate family member

who is receiving treatment for substance abuse. The employing

office may not take action against an employee who is providing

care for an immediate family member receiving treatment for substance abuse.

§ 825.113 What do ‘‘spouse’’, ‘‘parent’’, and ‘‘son or daughter’’

mean for purposes of an employee qualifying to

take FMLA leave?

(a) Spouse means a husband or wife as defined or recognized

under State law for purposes of marriage in the State where the

employee resides, including common law marriage in States where

it is recognized.

(b) Parent means a biological parent or an individual who

stands or stood in loco parentis to an employee when the employee

was a son or daughter as defined in (c) below. This term does

not include parents ‘‘in law’’.

(c) Son or daughter means a biological, adopted, or foster child,

a stepchild, a legal ward, or a child of a person standing in loco

parentis, who is either under age 18, or age 18 or older and

‘‘incapable of self-care because of a mental or physical disability’’.

(1) ‘‘Incapable of self-care’’ means that the individual

requires active assistance or supervision to provide daily selfcare in three or more of the ‘‘activities of daily living’’ (ADLs)

or ‘‘instrumental activities of daily living’’ (IADLs). Activities
S. Con. Res. 51—11

of daily living include adaptive activities such as caring appropriately for one’s grooming and hygiene, bathing, dressing and

eating. Instrumental activities of daily living include cooking,

cleaning, shopping, taking public transportation, paying bills,

maintaining a residence, using telephones and directories, using

a post office, etc.

(2) ‘‘Physical or mental disability’’ means a physical or

mental impairment that substantially limits one or more of

the major life activities of an individual. See the Americans

with Disabilities Act (ADA), as made applicable by section

201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)).

(3) Persons who are ‘‘in loco parentis’’ include those with

day-to-day responsibilities to care for and financially support

a child or, in the case of an employee, who had such responsibility for the employee when the employee was a child. A biological

or legal relationship is not necessary.

(d) For purposes of confirmation of family relationship, the

employing office may require the employee giving notice of the

need for leave to provide reasonable documentation or statement

of family relationship. This documentation may take the form of

a simple statement from the employee, or a child’s birth certificate,

a court document, etc. The employing office is entitled to examine

documentation such as a birth certificate, etc., but the employee

is entitled to the return of the official document submitted for

this purpose.

§ 825.114 What is a ‘‘serious health condition’’ entitling an

employee to FMLA leave?

(a) For purposes of FMLA, ‘‘serious health condition’’ entitling

an employee to FMLA leave means an illness, injury, impairment,

or physical or mental condition that involves:

(1) Inpatient care (i.e., an overnight stay) in a hospital,

hospice, or residential medical care facility, including any period

of incapacity (for purposes of this section, defined to mean

inability to work, attend school or perform other regular daily

activities due to the serious health condition, treatment therefor, or recovery therefrom), or any subsequent treatment in

connection with such inpatient care; or

(2) Continuing treatment by a health care provider. A

serious health condition involving continuing treatment by a

health care provider includes any one or more of the following:

(i) A period of incapacity (i.e., inability to work, attend

school or perform other regular daily activities due to the

serious health condition, treatment therefor, or recovery

therefrom) of more than three consecutive calendar days,

and any subsequent treatment or period of incapacity relating to the same condition, that also involves:

(A) Treatment two or more times by a health care

provider, by a nurse or physician’s assistant under

direct supervision of a health care provider, or by a

provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care

provider; or

(B) Treatment by a health care provider on at

least one occasion which results in a regimen of

continuing treatment under the supervision of the

health care provider.
S. Con. Res. 51—12

(ii) Any period of incapacity due to pregnancy, or for

prenatal care.

(iii) Any period of incapacity or treatment for such

incapacity due to a chronic serious health condition. A

chronic serious health condition is one which:

(A) Requires periodic visits for treatment by a

health care provider, or by a nurse or physician’s assistant under direct supervision of a health care provider;

(B) Continues over an extended period of time

(including recurring episodes of a single underlying

condition); and

(C) May cause episodic rather than a continuing

period of incapacity (e.g., asthma, diabetes, epilepsy,

etc.).

(iv) A period of incapacity which is permanent or longterm due to a condition for which treatment may not be

effective. The employee or family member must be under

the continuing supervision of, but need not be receiving

active treatment by, a health care provider. Examples

include Alzheimer’s, a severe stroke, or the terminal stages

of a disease.

(v) Any period of absence to receive multiple treatments

(including any period of recovery therefrom) by a health

care provider or by a provider of health care services under

orders of, or on referral by, a health care provider, either

for restorative surgery after an accident or other injury,

or for a condition that would likely result in a period

of incapacity of more than three consecutive calendar days

in the absence of medical intervention or treatment, such

as cancer (chemotherapy, radiation, etc.), severe arthritis

(physical therapy), kidney disease (dialysis).

(b) Treatment for purposes of paragraph (a) of this section

includes (but is not limited to) examinations to determine if a

serious health condition exists and evaluations of the condition.

Treatment does not include routine physical examinations, eye

examinations, or dental examinations. Under paragraph (a)(2)(i)(B),

a regimen of continuing treatment includes, for example, a course

of prescription medication (e.g., an antibiotic) or therapy requiring

special equipment to resolve or alleviate the health condition (e.g.,

oxygen). A regimen of continuing treatment that includes the taking

of over-the-counter medications such as aspirin, antihistamines,

or salves; or bed-rest, drinking fluids, exercise, and other similar

activities that can be initiated without a visit to a health care

provider, is not, by itself, sufficient to constitute a regimen of

continuing treatment for purposes of FMLA leave.

(c) Conditions for which cosmetic treatments are administered

(such as most treatments for acne or plastic surgery) are not ‘‘serious health conditions’’ unless inpatient hospital care is required

or unless complications develop. Ordinarily, unless complications

arise, the common cold, the flu, ear aches, upset stomach, minor

ulcers, headaches other than migraine, routine dental or orthodontia

problems, periodontal disease, etc., are examples of conditions that

do not meet the definition of a serious health condition and do

not qualify for FMLA leave. Restorative dental or plastic surgery

after an injury or removal of cancerous growths are serious health

conditions provided all the other conditions of this regulation are

met. Mental illness resulting from stress or allergies may be serious
S. Con. Res. 51—13

health conditions, but only if all the conditions of this section

are met.

(d) Substance abuse may be a serious health condition if the

conditions of this section are met. However, FMLA leave may

only be taken for treatment for substance abuse by a health care

provider or by a provider of health care services on referral by

a health care provider. On the other hand, absence because of

the employee’s use of the substance, rather than for treatment,

does not qualify for FMLA leave.

(e) Absences attributable to incapacity under paragraphs (a)(2)

(ii) or (iii) qualify for FMLA leave even though the employee or

the immediate family member does not receive treatment from

a health care provider during the absence, and even if the absence

does not last more than three days. For example, an employee

with asthma may be unable to report for work due to the onset

of an asthma attack or because the employee’s health care provider

has advised the employee to stay home when the pollen count

exceeds a certain level. An employee who is pregnant may be

unable to report to work because of severe morning sickness.

§ 825.115 What does it mean that ‘‘the employee is unable

to perform the functions of the position of the

employee’’?

An employee is ‘‘unable to perform the functions of the position’’

where the health care provider finds that the employee is unable

to work at all or is unable to perform any one of the essential

functions of the employee’s position within the meaning of the

Americans with Disabilities Act (ADA), as made applicable by section 201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)). An employee who

must be absent from work to receive medical treatment for a serious

health condition is considered to be unable to perform the essential

functions of the position during the absence for treatment. An

employing office has the option, in requiring certification from a

health care provider, to provide a statement of the essential functions of the employee’s position for the health care provider to

review. For purposes of FMLA, the essential functions of the

employee’s position are to be determined with reference to the

position the employee held at the time notice is given or leave

commenced, whichever is earlier.

§ 825.116 What does it mean that an employee is ‘‘needed

to care for’’ a family member?

(a) The medical certification provision that an employee is

‘‘needed to care for’’ a family member encompasses both physical

and psychological care. It includes situations where, for example,

because of a serious health condition, the family member is unable

to care for his or her own basic medical, hygienic, or nutritional

needs or safety, or is unable to transport himself or herself to

the doctor, etc. The term also includes providing psychological comfort and reassurance which would be beneficial to a child, spouse

or parent with a serious health condition who is receiving inpatient

or home care.

(b) The term also includes situations where the employee may

be needed to fill in for others who are caring for the family member,

or to make arrangements for changes in care, such as transfer

to a nursing home.
S. Con. Res. 51—14

(c) An employee’s intermittent leave or a reduced leave schedule

necessary to care for a family member includes not only a situation

where the family member’s condition itself is intermittent, but

also where the employee is only needed intermittently ‘‘such as

where other care is normally available, or care responsibilities

are shared with another member of the family or a third party.

§ 825.117 For an employee seeking intermittent FMLA leave

or leave on a reduced leave schedule, what is

meant by ‘‘the medical necessity for’’ such leave?

For intermittent leave or leave on a reduced leave schedule,

there must be a medical need for leave (as distinguished from

voluntary treatments and procedures) and it must be that such

medical need can be best accommodated through an intermittent

or reduced leave schedule. The treatment regimen and other

information described in the certification of a serious health condition (see § 825.306) meets the requirement for certification of the

medical necessity of intermittent leave or leave on a reduced leave

schedule. Employees needing intermittent FMLA leave or leave

on a reduced leave schedule must attempt to schedule their leave

so as not to disrupt the employing office’s operations. In addition,

an employing office may assign an employee to an alternative

position with equivalent pay and benefits that better accommodates

the employee’s intermittent or reduced leave schedule.

§ 825.118 What is a ‘‘health care provider’’?

(a)(1) The term ‘‘health care provider’’ means:

(i) A doctor of medicine or osteopathy who is authorized

to practice medicine or surgery (as appropriate) by the State

in which the doctor practices; or

(ii) Any other person determined by the Office of Compliance to be capable of providing health care services.

(2) In making a determination referred to in subparagraph

(1)(ii), and absent good cause shown to do otherwise, the Office

of Compliance will follow any determination made by the Secretary

of Labor (under section 101(6)(B) of the FMLA, 29 U.S.C. 2611(6)(B))

that a person is capable of providing health care services, provided

the Secretary’s determination was not made at the request of a

person who was then a covered employee.

(b) Others ‘‘capable of providing health care services’’ include

only:

(1) Podiatrists, dentists, clinical psychologists, optometrists,

and chiropractors (limited to treatment consisting of manual

manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State

and performing within the scope of their practice as defined

under State law;

(2) Nurse practitioners, nurse-midwives and clinical social

workers who are authorized to practice under State law and

who are performing within the scope of their practice as defined

under State law;

(3) Christian Science practitioners listed with the First

Church of Christ, Scientist in Boston, Massachusetts. Where

an employee or family member is receiving treatment from

a Christian Science practitioner, an employee may not object

to any requirement from an employing office that the employee

or family member submit to examination (though not treat-
S. Con. Res. 51—15

ment) to obtain a second or third certification from a health

care provider other than a Christian Science practitioner except

as otherwise provided under applicable State or local law or

collective bargaining agreement.

(4) Any health care provider from whom an employing

office or the employing office’s group health plan’s benefits

manager will accept certification of the existence of a serious

health condition to substantiate a claim for benefits; and

(5) A health care provider listed above who practices in

a country other than the United States, who is authorized

to practice in accordance with the law of that country, and

who is performing within the scope of his or her practice as

defined under such law.

(c) The phrase ‘‘authorized to practice in the State’’ as used

in this section means that the provider must be authorized to

diagnose and treat physical or mental health conditions without

supervision by a doctor or other health care provider.

SUBPART B—WHAT LEAVE IS AN EMPLOYEE ENTITLED TO TAKE

UNDER THE FAMILY AND MEDICAL LEAVE ACT, AS MADE APPLICA- BLE BY THE CONGRESSIONAL ACCOUNTABILITY ACT?

§ 825.200 How much leave may an employee take?

(a) An eligible employee’s FMLA leave entitlement is limited

to a total of 12 workweeks of leave during any 12-month period

for any one, or more, of the following reasons:

(1) The birth of the employee’s son or daughter, and to

care for the newborn child;

(2) The placement with the employee of a son or daughter

for adoption or foster care, and to care for the newly placed

child;

(3) To care for the employee’s spouse, son, daughter, or

parent with a serious health condition; and

(4) Because of a serious health condition that makes the

employee unable to perform one or more of the essential functions of his or her job.

(b) An employing office is permitted to choose any one of the

following methods for determining the ‘‘12-month period’’ in which

the 12 weeks of leave entitlement occurs:

(1) The calendar year;

(2) Any fixed 12-month ‘‘leave year’’, such as a fiscal year

or a year starting on an employee’s ‘‘anniversary’’ date;

(3) The 12-month period measured forward from the date

any employee’s first FMLA leave begins; or

(4) A ‘‘rolling’’ 12-month period measured backward from

the date an employee uses any FMLA leave (except that such

measure may not extend back before the date on which the

application of FMLA rights and protections first becomes effective for the employing office; see § 825.102).

(c) Under methods in paragraphs (b)(1) and (b)(2) of this section

an employee would be entitled to up to 12 weeks of FMLA leave

at any time in the fixed 12-month period selected. An employee

could, therefore, take 12 weeks of leave at the end of the year

and 12 weeks at the beginning of the following year. Under the

method in paragraph (b)(3) of this section, an employee would

be entitled to 12 weeks of leave during the year beginning on

the first date FMLA leave is taken; the next 12-month period
S. Con. Res. 51—16

would begin the first time FMLA leave is taken after completion

of any previous 12-month period. Under the method in paragraph

(b)(4) of this section, the ‘‘rolling’’ 12-month period, each time an

employee takes FMLA leave the remaining leave entitlement would

be any balance of the 12 weeks which has not been used during

the immediately preceding 12 months. For example, if an employee

has taken eight weeks of leave during the past 12 months, an

additional four weeks of leave could be taken. If an employee

used four weeks beginning February 1, 1997, four weeks beginning

June 1, 1997, and four weeks beginning December 1, 1997, the

employee would not be entitled to any additional leave until February 1, 1998. However, beginning on February 1, 1998, the

employee would be entitled to four weeks of leave, on June 1

the employee would be entitled to an additional four weeks, etc.

(d)(1) Employing offices will be allowed to choose any one

of the alternatives in paragraph (b) of this section provided the

alternative chosen is applied consistently and uniformly to all

employees. An employing office wishing to change to another alternative is required to give at least 60 days notice to all employees,

and the transition must take place in such a way that the employees

retain the full benefit of 12 weeks of leave under whichever method

affords the greatest benefit to the employee. Under no circumstances

may a new method be implemented in order to avoid the CAA’s

FMLA leave requirements.

(2) [Reserved].

(e) If an employing office fails to select one of the options

in paragraph (b) of this section for measuring the 12-month period,

the option that provides the most beneficial outcome for the

employee will be used. The employing office may subsequently

select an option only by providing the 60-day notice to all employees

of the option the employing office intends to implement. During

the running of the 60-day period any other employee who needs

FMLA leave may use the option providing the most beneficial

outcome to that employee. At the conclusion of the 60-day period

the employing office may implement the selected option.

(f) For purposes of determining the amount of leave used by

an employee, the fact that a holiday may occur within the week

taken as FMLA leave has no effect; the week is counted as a

week of FMLA leave. However, if for some reason the employing

office’s activity has temporarily ceased and employees generally

are not expected to report for work for one or more weeks (e.g.,

a school closing two weeks for the Christmas/New Year holiday

or the summer vacation or an employing office closing the office

for repairs), the days the employing office’s activities have ceased

do not count against the employee’s FMLA leave entitlement. Methods for determining an employee’s 12-week leave entitlement are

also described in § 825.205.

(g)(1) If employing offices jointly employ an employee, and

if they designate a primary employer pursuant to § 825.106(c), the

primary employer may choose any one of the alternatives in paragraph (b) of this section for measuring the 12-month period, provided that the alternative chosen is applied consistently and uniformly to all employees of the primary employer including the

jointly employed employee.

(2) If employing offices fail to designate a primary employer

pursuant to § 825.106(c), an employee jointly employed by the

employing offices may, by so notifying one of the employing offices,
S. Con. Res. 51—17

select that employing office to be the primary employer of the

employee for purposes of the application of paragraphs (d) and

(e) of this section.

§ 825.201 If leave is taken for the birth of a child, or for

placement of a child for adoption or foster care,

when must the leave be concluded?

An employee’s entitlement to leave for a birth or placement

for adoption or foster care expires at the end of the 12-month

period beginning on the date of the birth or placement, unless

the employing office permits leave to be taken for a longer period.

Any such FMLA leave must be concluded within this one-year

period.

§ 825.202 How much leave may a husband and wife take

if they are employed by the same employing

office?

(a) A husband and wife who are eligible for FMLA leave and

are employed by the same employing office may be limited to

a combined total of 12 weeks of leave during any 12-month period

if the leave is taken—

(1) for birth of the employee’s son or daughter or to care

for the child after birth;

(2) for placement of a son or daughter with the employee

for adoption or foster care, or to care for the child after placement; or

(3) to care for the employee’s parent with a serious health

condition.

(b) This limitation on the total weeks of leave applies to leave

taken for the reasons specified in paragraph (a) of this section

as long as a husband and wife are employed by the ‘‘same employing

office’’. It would apply, for example, even though the spouses are

employed at two different work sites of an employing office. On

the other hand, if one spouse is ineligible for FMLA leave, the

other spouse would be entitled to a full 12 weeks of FMLA leave.

(c) Where the husband and wife both use a portion of the

total 12-week FMLA leave entitlement for one of the purposes

in paragraph (a) of this section, the husband and wife would each

be entitled to the difference between the amount he or she has

taken individually and 12 weeks for FMLA leave for a purpose

other than those contained in paragraph (a) of this section. For

example, if each spouse took 6 weeks of leave to care for a healthy,

newborn child, each could use an additional 6 weeks due to his

or her own serious health condition or to care for a child with

a serious health condition.

§ 825.203 Does FMLA leave have to be taken all at once,

or can it be taken in parts?

(a) FMLA leave may be taken ‘‘intermittently or on a reduced

leave schedule’’ under certain circumstances. Intermittent leave

is FMLA leave taken in separate blocks of time due to a single

qualifying reason. A reduced leave schedule is a leave schedule

that reduces an employee’s usual number of working hours per

workweek, or hours per workday. A reduced leave schedule is

a change in the employee’s schedule for a period of time, normally

from full-time to part-time.
S. Con. Res. 51—18

(b) When leave is taken after the birth or placement of a

child for adoption or foster care, an employee may take leave

intermittently or on a reduced leave schedule only if the employing

office agrees. Such a schedule reduction might occur, for example,

where an employee, with the employing office’s agreement, works

part-time after the birth of a child, or takes leave in several segments. The employing office’s agreement is not required, however,

for leave during which the mother has a serious health condition

in connection with the birth of her child or if the newborn child

has a serious health condition.

(c) Leave may be taken intermittently or on a reduced leave

schedule when medically necessary for planned and/or unanticipated medical treatment of a related serious health condition by

or under the supervision of a health care provider, or for recovery

from treatment or recovery from a serious health condition. It

may also be taken to provide care or psychological comfort to

an immediate family member with a serious health condition.

(1) Intermittent leave may be taken for a serious health

condition which requires treatment by a health care provider

periodically, rather than for one continuous period of time,

and may include leave of periods from an hour or more to

several weeks. Examples of intermittent leave would include

leave taken on an occasional basis for medical appointments,

or leave taken several days at a time spread over a period

of six months, such as for chemotherapy. A pregnant employee

may take leave intermittently for prenatal examinations or

for her own condition, such as for periods of severe morning

sickness. An example of an employee taking leave on a reduced

leave schedule is an employee who is recovering from a serious

health condition and is not strong enough to work a fulltime schedule.

(2) Intermittent or reduced schedule leave may be taken

for absences where the employee or family member is incapacitated or unable to perform the essential functions of the position

because of a chronic serious health condition even if he or

she does not receive treatment by a health care provider.

(d) There is no limit on the size of an increment of leave

when an employee takes intermittent leave or leave on a reduced

leave schedule. However, an employing office may limit leave increments to the shortest period of time that the employing office’s

payroll system uses to account for absences or use of leave, provided

it is one hour or less. For example, an employee might take two

hours off for a medical appointment, or might work a reduced

day of four hours over a period of several weeks while recuperating

from an illness. An employee may not be required to take more

FMLA leave than necessary to address the circumstance that

precipitated the need for the leave, except as provided in §§ 825.601

and 825.602.

§ 825.204 May an employing office transfer an employee to

an ‘‘alternative position’’ in order to accommodate intermittent leave or a reduced leave schedule?

(a) If an employee needs intermittent leave or leave on a

reduced leave schedule that is foreseeable based on planned medical

treatment for the employee or a family member, including during

a period of recovery from a serious health condition, or if the
S. Con. Res. 51—19

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) Transfer to an alternative position may require compliance

with any applicable collective bargaining agreement and any

applicable law (such as the Americans with Disabilities Act, as

made applicable by the CAA). Transfer to an alternative position

may include altering an existing job to better accommodate the

employee’s need for intermittent or reduced leave.

(c) The alternative position must have equivalent pay and benefits. An alternative position for these purposes does not have to

have equivalent duties. The employing office may increase the pay

and benefits of an existing alternative position, so as to make

them equivalent to the pay and benefits of the employee’s regular

job. The employing office may also transfer the employee to a

part-time job with the same hourly rate of pay and benefits, provided the employee is not required to take more leave than is

medically necessary. For example, an employee desiring to take

leave in increments of four hours per day could be transferred

to a half-time job, or could remain in the employee’s same job

on a part-time schedule, paying the same hourly rate as the employee’s previous job and enjoying the same benefits. The employing

office may not eliminate benefits which otherwise would not be

provided to part-time employees; however, an employing office may

proportionately reduce benefits such as vacation leave where an

employing office’s normal practice is to base such benefits on the

number of hours worked.

(d) An employing office may not transfer the employee to an

alternative position in order to discourage the employee from taking

leave or otherwise work a hardship on the employee. For example,

a white collar employee may not be assigned to perform laborer’s

work; an employee working the day shift may not be reassigned

to the graveyard shift; an employee working in the headquarters

facility may not be reassigned to a branch a significant distance

away from the employee’s normal job location. Any such attempt

on the part of the employing office to make such a transfer will

be held to be contrary to the prohibited-acts provisions of the

FMLA, as made applicable by the CAA.

(e) When an employee who is taking leave intermittently or

on a reduced leave schedule and has been transferred to an alternative position no longer needs to continue on leave and is able

to return to full-time work, the employee must be placed in the

same or equivalent job as the job he/she left when the leave commenced. An employee may not be required to take more leave

than necessary to address the circumstance that precipitated the

need for leave.
S. Con. Res. 51—20

§ 825.205 How does one determine the amount of leave used

where an employee takes leave intermittently or

on a reduced leave schedule?

(a) If an employee takes leave on an intermittent or reduced

leave schedule, only the amount of leave actually taken may be

counted toward the 12 weeks of leave to which an employee is

entitled. For example, if an employee who normally works five

days a week takes off one day, the employee would use 1⁄5 of

a week of FMLA leave. Similarly, if a full-time employee who

normally works 8-hour days works 4-hour days under a reduced

leave schedule, the employee would use 1⁄2 week of FMLA leave

each week.

(b) Where an employee normally works a part-time schedule

or variable hours, the amount of leave to which an employee is

entitled is determined on a pro rata or proportional basis by comparing the new schedule with the employee’s normal schedule. For

example, if an employee who normally works 30 hours per week

works only 20 hours a week under a reduced leave schedule, the

employee’s ten hours of leave would constitute one-third of a week

of FMLA leave for each week the employee works the reduced

leave schedule.

(c) If an employing office has made a permanent or longterm change in the employee’s schedule (for reasons other than

FMLA, and prior to the notice of need for FMLA leave), the hours

worked under the new schedule are to be used for making this

calculation.

(d) If an employee’s schedule varies from week to week, a

weekly average of the hours worked over the 12 weeks prior to

the beginning of the leave period would be used for calculating

the employee’s normal workweek.

§ 825.206 May an employing office deduct hourly amounts

from an employee’s salary, when providing

unpaid leave under FMLA, as made applicable

by the CAA, without affecting the employee’s

qualification for exemption as an executive,

administrative, or professional employee, or

when utilizing the fluctuating workweek method

for payment of overtime, under the Fair Labor

Standards Act?

(a) Leave taken under FMLA, as made applicable by the CAA,

may be unpaid. If an employee is otherwise exempt from minimum

wage and overtime requirements of the Fair Labor Standards Act

(FLSA), as made applicable by the CAA, as a salaried executive,

administrative, or professional employee (under regulations issued

by the Board, at part 541), providing unpaid FMLA-qualifying leave

to such an employee will not cause the employee to lose the FLSA

exemption. This means that under regulations currently in effect,

where an employee meets the specified duties test, is paid on

a salary basis, and is paid a salary of at least the amount specified

in the regulations, the employing office may make deductions from

the employee’s salary for any hours taken as intermittent or reduced

FMLA leave within a workweek, without affecting the exempt status

of the employee. The fact that an employing office provides FMLA

leave, whether paid or unpaid, or maintains any records regarding

FMLA leave, will not be relevant to the determination whether
S. Con. Res. 51—21

an employee is exempt within the meaning of the Board’s regulations at part 541.

(b) For an employee paid in accordance with a fluctuating

workweek method of payment for overtime, where permitted by

section 203 of the CAA (2 U.S.C. 1313), the employing office, during

the period in which intermittent or reduced schedule FMLA leave

is scheduled to be taken, may compensate an employee on an

hourly basis and pay only for the hours the employee works, including time and one-half the employee’s regular rate for overtime

hours. The change to payment on an hourly basis would include

the entire period during which the employee is taking intermittent

leave, including weeks in which no leave is taken. The hourly

rate shall be determined by dividing the employee’s weekly salary

by the employee’s normal or average schedule of hours worked

during weeks in which FMLA leave is not being taken. If an

employing office chooses to follow this exception from the fluctuating

workweek method of payment, the employing office must do so

uniformly, with respect to all employees paid on a fluctuating

workweek basis for whom FMLA leave is taken on an intermittent

or reduced leave schedule basis. If an employing office does not

elect to convert the employee’s compensation to hourly pay, no

deduction may be taken for FMLA leave absences. Once the need

for intermittent or reduced scheduled leave is over, the employee

may be restored to payment on a fluctuating workweek basis.

(c) This special exception to the ‘‘salary basis’’ requirements

of the FLSA exemption or fluctuating workweek payment requirements applies only to employees of employing offices who are eligible

for FMLA leave, and to leave which qualifies as (one of the four

types of) FMLA leave. Hourly or other deductions which are not

in accordance with the Board’s regulations at part 541 or with

a permissible fluctuating workweek method of payment for overtime

may not be taken, for example, where the employee has not worked

long enough to be eligible for FMLA leave without potentially

affecting the employee’s eligibility for exemption. Nor may deductions which are not permitted by the Board’s regulations at part

541 or by a permissible fluctuating workweek method of payment

for overtime be taken from such an employee’s salary for any

leave which does not qualify as FMLA leave, for example, deductions

from an employee’s pay for leave required under an employing

office’s policy or practice for a reason which does not qualify as

FMLA leave, e.g., leave to care for a grandparent or for a medical

condition which does not qualify as a serious health condition;

or for leave which is more generous than provided by FMLA as

made applicable by the CAA, such as leave in excess of 12 weeks

in a year. The employing office may comply with the employing

office’s own policy/practice under these circumstances and maintain

the employee’s eligibility for exemption or for the fluctuating workweek method of pay by not taking hourly deductions from the

employee’s pay, in accordance with FLSA requirements, or may

take such deductions, treating the employee as an ‘‘hourly’’ employee

and pay overtime premium pay for hours worked over 40 in a

workweek.

§ 825.207 Is FMLA leave paid or unpaid?

(a) Generally, FMLA leave is unpaid. However, under the circumstances described in this section, FMLA, as made applicable

by the CAA, permits an eligible employee to choose to substitute
S. Con. Res. 51—22

paid leave for FMLA leave. If an employee does not choose to

substitute accrued paid leave, the employing office may require

the employee to substitute accrued paid leave for FMLA leave.

(b) Where an employee has earned or accrued paid vacation,

personal or family leave, that paid leave may be substituted for

all or part of any (otherwise) unpaid FMLA leave relating to birth,

placement of a child for adoption or foster care, or care for a

spouse, child or parent who has a serious health condition. The

term ‘‘family leave’’ as used in FMLA refers to paid leave provided

by the employing office covering the particular circumstances for

which the employee seeks leave for either the birth of a child

and to care for such child, placement of a child for adoption or

foster care, or care for a spouse, child or parent with a serious

health condition. For example, if the employing office’s leave plan

allows use of family leave to care for a child but not for a parent,

the employing office is not required to allow accrued family leave

to be substituted for FMLA leave used to care for a parent.

(c) Substitution of paid accrued vacation, personal, or medical/

sick leave may be made for any (otherwise) unpaid FMLA leave

needed to care for a family member or the employee’s own serious

health condition. Substitution of paid sick/medical leave may be

elected to the extent the circumstances meet the employing office’s

usual requirements for the use of sick/medical leave. An employing

office is not required to allow substitution of paid sick or medical

leave for unpaid FMLA leave ‘‘in any situation’’ where the employing

office’s uniform policy would not normally allow such paid leave.

An employee, therefore, has a right to substitute paid medical/

sick leave to care for a seriously ill family member only if the

employing office’s leave plan allows paid leave to be used for that

purpose. Similarly, an employee does not have a right to substitute

paid medical/sick leave for a serious health condition which is

not covered by the employing office’s leave plan.

(d)(1) Disability leave for the birth of a child would be considered FMLA leave for a serious health condition and counted in

the 12 weeks of leave permitted under FMLA as made applicable

by the CAA. Because the leave pursuant to a temporary disability

benefit plan is not unpaid, the provision for substitution of paid

leave is inapplicable. However, the employing office may designate

the leave as FMLA leave and count the leave as running concurrently for purposes of both the benefit plan and the FMLA leave

entitlement. If the requirements to qualify for payments pursuant

to the employing office’s temporary disability plan are more stringent than those of FMLA as made applicable by the CAA, the

employee must meet the more stringent requirements of the plan,

or may choose not to meet the requirements of the plan and instead

receive no payments from the plan and use unpaid FMLA leave

or substitute available accrued paid leave.

(2) The FMLA as made applicable by the CAA provides that

a serious health condition may result from injury to the employee

‘‘on or off’’ the job. If the employing office designates the leave

as FMLA leave in accordance with § 825.208, the employee’s FMLA

12-week leave entitlement may run concurrently with a workers’

compensation absence when the injury is one that meets the criteria

for a serious health condition. As the workers’ compensation absence

is not unpaid leave, the provision for substitution of the employee’s

accrued paid leave is not applicable. However, if the health care

provider treating the employee for the workers’ compensation injury
S. Con. Res. 51—23

certifies the employee is able to return to a ‘‘light duty job’’ but

is unable to return to the same or equivalent job, the employee

may decline the employing office’s offer of a ‘‘light duty job’’. As

a result the employee may lose workers’ compensation payments,

but is entitled to remain on unpaid FMLA leave until the 12-

week entitlement is exhausted. As of the date workers’ compensation benefits cease, the substitution provision becomes applicable

and either the employee may elect or the employing office may

require the use of accrued paid leave. See also §§ 825.210(f),

825.216(d), 825.220(d), 825.307(a)(1) and 825.702(d) (1) and (2)

regarding the relationship between workers’ compensation absences

and FMLA leave.

(e) Paid vacation or personal leave, including leave earned

or accrued under plans allowing ‘‘paid time off’’, may be substituted,

at either the employee’s or the employing office’s option, for any

qualified FMLA leave. No limitations may be placed by the employing office on substitution of paid vacation or personal leave for

these purposes.

(f) If neither the employee nor the employing office elects to

substitute paid leave for unpaid FMLA leave under the above

conditions and circumstances, the employee will remain entitled

to all the paid leave which is earned or accrued under the terms

of the employing office’s plan.

(g) If an employee uses paid leave under circumstances which

do not qualify as FMLA leave, the leave will not count against

the 12 weeks of FMLA leave to which the employee is entitled.

For example, paid sick leave used for a medical condition which

is not a serious health condition does not count against the 12

weeks of FMLA leave entitlement.

(h) When an employee or employing office elects to substitute

paid leave (of any type) for unpaid FMLA leave under circumstances

permitted by these regulations, and the employing office’s procedural requirements for taking that kind of leave are less stringent

than the requirements of FMLA as made applicable by the CAA

(e.g., notice or certification requirements), only the less stringent

requirements may be imposed. An employee who complies with

an employing office’s less stringent leave plan requirements in

such cases may not have leave for an FMLA purpose delayed

or denied on the grounds that the employee has not complied

with stricter requirements of FMLA as made applicable by the

CAA. However, where accrued paid vacation or personal leave is

substituted for unpaid FMLA leave for a serious health condition,

an employee may be required to comply with any less stringent

medical certification requirements of the employing office’s sick

leave program. See §§ 825.302(g), 825.305(e) and 825.306(c).

(i) Compensatory time off, if any is authorized under applicable

law, is not a form of accrued paid leave that an employing office

may require the employee to substitute for unpaid FMLA leave.

The employee may request to use his/her balance of compensatory

time for an FMLA reason. If the employing office permits the

accrual of compensatory time to be used in compliance with

applicable Board regulations, the absence which is paid from the

employee’s accrued compensatory time ‘‘account’’ may not be counted

against the employee’s FMLA leave entitlement.
S. Con. Res. 51—24

§ 825.208 Under what circumstances may an employing

office designate leave, paid or unpaid, as FMLA

leave and, as a result, enable leave to be counted

against the employee’s total FMLA leave entitlement?

(a) In all circumstances, it is the employing office’s responsibility to designate leave, paid or unpaid, as FMLA-qualifying, and

to give notice of the designation to the employee as provided in

this section. In the case of intermittent leave or leave on a reduced

schedule, only one such notice is required unless the circumstances

regarding the leave have changed. The employing office’s designation decision must be based only on information received from

the employee or the employee’s spokesperson (e.g., if the employee

is incapacitated, the employee’s spouse, adult child, parent, doctor,

etc., may provide notice to the employing office of the need to

take FMLA leave). In any circumstance where the employing office

does not have sufficient information about the reason for an employee’s use of paid leave, the employing office should inquire further

of the employee or the spokesperson to ascertain whether the paid

leave is potentially FMLA-qualifying.

(1) An employee giving notice of the need for unpaid FMLA

leave must explain the reasons for the needed leave so as

to allow the employing office to determine that the leave qualifies under the FMLA, as made applicable by the CAA. If the

employee fails to explain the reasons, leave may be denied.

In many cases, in explaining the reasons for a request to

use paid leave, especially when the need for the leave was

unexpected or unforeseen, an employee will provide sufficient

information for the employing office to designate the paid leave

as FMLA leave. An employee using accrued paid leave, especially vacation or personal leave, may in some cases not spontaneously explain the reasons or their plans for using their

accrued leave.

(2) As noted in § 825.302(c), an employee giving notice

of the need for unpaid FMLA leave does not need to expressly

assert rights under the FMLA as made applicable by the CAA

or even mention the FMLA to meet his or her obligation to

provide notice, though the employee would need to state a

qualifying reason for the needed leave. An employee requesting

or notifying the employing office of an intent to use accrued

paid leave, even if for a purpose covered by FMLA, would

not need to assert such right either. However, if an employee

requesting to use paid leave for an FMLA-qualifying purpose

does not explain the reason for the leave—consistent with the

employing office’s established policy or practice—and the

employing office denies the employee’s request, the employee

will need to provide sufficient information to establish an

FMLA-qualifying reason for the needed leave so that the

employing office is aware of the employee’s entitlement (i.e.,

that the leave may not be denied) and, then, may designate

that the paid leave be appropriately counted against (substituted for) the employee’s 12-week entitlement. Similarly, an

employee using accrued paid vacation leave who seeks an extension of unpaid leave for an FMLA-qualifying purpose will need

to state the reason. If this is due to an event which occurred

during the period of paid leave, the employing office may count
S. Con. Res. 51—25

the leave used after the FMLA-qualifying event against the

employee’s 12-week entitlement.

(b)(1) Once the employing office has acquired knowledge that

the leave is being taken for an FMLA required reason, the employing office must promptly (within two business days absent extenuating circumstances) notify the employee that the paid leave is designated and will be counted as FMLA leave. If there is a dispute

between an employing office and an employee as to whether paid

leave qualifies as FMLA leave, it should be resolved through discussions between the employee and the employing office. Such discussions and the decision must be documented.

(2) The employing office’s notice to the employee that the leave

has been designated as FMLA leave may be orally or in writing.

If the notice is oral, it shall be confirmed in writing, no later

than the following payday (unless the payday is less than one

week after the oral notice, in which case the notice must be no

later than the subsequent payday). The written notice may be

in any form, including a notation on the employee’s pay stub.

(c) If the employing office requires paid leave to be substituted

for unpaid leave, or that paid leave taken under an existing leave

plan be counted as FMLA leave, this decision must be made by

the employing office within two business days of the time the

employee gives notice of the need for leave, or, where the employing

office does not initially have sufficient information to make a determination, when the employing office determines that the leave

qualifies as FMLA leave if this happens later. The employing office’s

designation must be made before the leave starts, unless the

employing office does not have sufficient information as to the

employee’s reason for taking the leave until after the leave commenced. If the employing office has the requisite knowledge to

make a determination that the paid leave is for an FMLA reason

at the time the employee either gives notice of the need for leave

or commences leave and fails to designate the leave as FMLA

leave (and so notify the employee in accordance with paragraph

(b)), the employing office may not designate leave as FMLA leave

retroactively, and may designate only prospectively as of the date

of notification to the employee of the designation. In such circumstances, the employee is subject to the full protections of the

FMLA, as made applicable by the CAA, but none of the absence

preceding the notice to the employee of the designation may be

counted against the employee’s 12-week FMLA leave entitlement.

(d) If the employing office learns that leave is for an FMLA

purpose after leave has begun, such as when an employee gives

notice of the need for an extension of the paid leave with unpaid

FMLA leave, the entire or some portion of the paid leave period

may be retroactively counted as FMLA leave, to the extent that

the leave period qualified as FMLA leave. For example, an employee

is granted two weeks paid vacation leave for a skiing trip. In

mid-week of the second week, the employee contacts the employing

office for an extension of leave as unpaid leave and advises that

at the beginning of the second week of paid vacation leave the

employee suffered a severe accident requiring hospitalization. The

employing office may notify the employee that both the extension

and the second week of paid vacation leave (from the date of

the injury) is designated as FMLA leave. On the other hand, when

the employee takes sick leave that turns into a serious health

condition (e.g., bronchitis that turns into bronchial pneumonia)
S. Con. Res. 51—26

and the employee gives notice of the need for an extension of

leave, the entire period of the serious health condition may be

counted as FMLA leave.

(e) Employing offices may not designate leave as FMLA leave

after the employee has returned to work with two exceptions:

(1) If the employee was absent for an FMLA reason and

the employing office did not learn the reason for the absence

until the employee’s return (e.g., where the employee was

absent for only a brief period), the employing office may, upon

the employee’s return to work, promptly (within two business

days of the employee’s return to work) designate the leave

retroactively with appropriate notice to the employee. If leave

is taken for an FMLA reason but the employing office was

not aware of the reason, and the employee desires that the

leave be counted as FMLA leave, the employee must notify

the employing office within two business days of returning

to work of the reason for the leave. In the absence of such

timely notification by the employee, the employee may not

subsequently assert FMLA protections for the absence.

(2) If the employing office knows the reason for the leave

but has not been able to confirm that the leave qualifies under

FMLA, or where the employing office has requested medical

certification which has not yet been received or the parties

are in the process of obtaining a second or third medical opinion,

the employing office should make a preliminary designation,

and so notify the employee, at the time leave begins, or as

soon as the reason for the leave becomes known. Upon receipt

of the requisite information from the employee or of the medical

certification which confirms the leave is for an FMLA reason,

the preliminary designation becomes final. If the medical certifications fail to confirm that the reason for the absence was

an FMLA reason, the employing office must withdraw the designation (with written notice to the employee).

(f) If, before beginning employment with an employing office,

an employee had been employed by another employing office, the

subsequent employing office may count against the employee’s

FMLA leave entitlement FMLA leave taken from the prior employing office, except that, if the FMLA leave began after the effective

date of these regulations (or if the FMLA leave was subject to

other applicable requirement under which the employing office was

to have designated the leave as FMLA leave), the prior employing

office must have properly designated the leave as FMLA under

these regulations or other applicable requirement.

§ 825.209 Is an employee entitled to benefits while using

FMLA leave?

(a) During any FMLA leave, the employing office must maintain

the employee’s coverage under the Federal Employees Health Benefits Program or any group health plan (as defined in the Internal

Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would have been provided if the employee had

been continuously employed during the entire leave period. All

employing offices are subject to the requirements of the FMLA,

as made applicable by the CAA, to maintain health coverage. The

definition of ‘‘group health plan’’ is set forth in § 825.800. For

purposes of FMLA, the term ‘‘group health plan’’ shall not include

an insurance program providing health coverage under which
S. Con. Res. 51—27

employees purchase individual policies from insurers provided

that—

(1) no contributions are made by the employing office;

(2) participation in the program is completely voluntary

for employees;

(3) the sole functions of the employing office with respect

to the program are, without endorsing the program, to permit

the insurer to publicize the program to employees, to collect

premiums through payroll deductions and to remit them to

the insurer;

(4) the employing office receives no consideration in the

form of cash or otherwise in connection with the program,

other than reasonable compensation, excluding any profit, for

administrative services actually rendered in connection with

payroll deduction; and

(5) the premium charged with respect to such coverage

does not increase in the event the employment relationship

terminates.

(b) The same group health plan benefits provided to an

employee prior to taking FMLA leave must be maintained during

the FMLA leave. For example, if family member coverage is provided to an employee, family member coverage must be maintained

during the FMLA leave. Similarly, benefit coverage during FMLA

leave for medical care, surgical care, hospital care, dental care,

eye care, mental health counseling, substance abuse treatment,

etc., must be maintained during leave if provided in an employing

office’s group health plan, including a supplement to a group health

plan, whether or not provided through a flexible spending account

or other component of a cafeteria plan.

(c) If an employing office provides a new health plan or benefits

or changes health benefits or plans while an employee is on FMLA

leave, the employee is entitled to the new or changed plan/benefits

to the same extent as if the employee were not on leave. For

example, if an employing office changes a group health plan so

that dental care becomes covered under the plan, an employee

on FMLA leave must be given the same opportunity as other

employees to receive (or obtain) the dental care coverage. Any

other plan changes (e.g., in coverage, premiums, deductibles, etc.)

which apply to all employees of the workforce would also apply

to an employee on FMLA leave.

(d) Notice of any opportunity to change plans or benefits must

also be given to an employee on FMLA leave. If the group health

plan permits an employee to change from single to family coverage

upon the birth of a child or otherwise add new family members,

such a change in benefits must be made available while an employee

is on FMLA leave. If the employee requests the changed coverage

it must be provided by the employing office.

(e) An employee may choose not to retain group health plan

coverage during FMLA leave. However, when an employee returns

from leave, the employee is entitled to be reinstated on the same

terms as prior to taking the leave, including family or dependent

coverages, without any qualifying period, physical examination,

exclusion of pre-existing conditions, etc. See § 825.212(c).

(f) Except as required by the Consolidated Omnibus Budget

Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, whichever

is applicable, and for ‘‘key’’ employees (as discussed below), an

employing office’s obligation to maintain health benefits during
S. Con. Res. 51—28

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 FMLA leave entitlement is exhausted,

or reinstatement is actually denied.

(h) An employee’s entitlement to benefits other than group

health benefits during a period of FMLA leave (e.g., holiday pay)

is to be determined by the employing office’s established policy

for providing such benefits when the employee is on other forms

of leave (paid or unpaid, as appropriate).

§ 825.210 How may employees on FMLA leave pay their share

of group health benefit premiums?

(a) Group health plan benefits must be maintained on the

same basis as coverage would have been provided if the employee

had been continuously employed during the FMLA leave period.

Therefore, any share of group health plan premiums which had

been paid by the employee prior to FMLA leave must continue

to be paid by the employee during the FMLA leave period. If

premiums are raised or lowered, the employee would be required

to pay the new premium rates. Maintenance of health insurance

policies which are not a part of the employing office’s group health

plan, as described in § 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;
S. Con. Res. 51—29

(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 § 825.301.)

(e) An employing office may not require more of an employee

using FMLA leave than the employing office requires of other

employees on ‘‘leave without pay’’.

(f) An employee who is receiving payments as a result of a

workers’ compensation injury must make arrangements with the

employing office for payment of group health plan benefits when

simultaneously taking unpaid FMLA leave. See paragraph (c) of

this section and § 825.207(d)(2).

§ 825.211 What special health benefits maintenance rules

apply to multi-employer health plans?

(a) A multi-employer health plan is a plan to which more

than one employer is required to contribute, and which is maintained pursuant to one or more collective bargaining agreements

between employee organization(s) and the employers.

(b) An employing office under a multi-employer plan must

continue to make contributions on behalf of an employee using

FMLA leave as though the employee had been continuously

employed, unless the plan contains an explicit FMLA provision

for maintaining coverage such as through pooled contributions by

all employers party to the plan.

(c) During the duration of an employee’s FMLA leave, coverage

by the group health plan, and benefits provided pursuant to the

plan, must be maintained at the level of coverage and benefits

which were applicable to the employee at the time FMLA leave

commenced.

(d) An employee using FMLA leave cannot be required to use

‘‘banked’’ hours or pay a greater premium than the employee would

have been required to pay if the employee had been continuously

employed.

(e) As provided in § 825.209(f), group health plan coverage

must be maintained for an employee on FMLA leave until:

(1) the employee’s FMLA leave entitlement is exhausted;

(2) the employing office can show that the employee would

have been laid off and the employment relationship terminated;

or

(3) the employee provides unequivocal notice of intent not

to return to work.

§ 825.212 What are the consequences of an employee’s failure

to make timely health plan premium payments?

(a)(1) In the absence of an established employing office policy

providing a longer grace period, an employing office’s obligations
S. Con. Res. 51—30

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.

§ 825.213 May an employing office recover costs it incurred

for maintaining ‘‘group health plan’’ or other nonhealth benefits coverage during FMLA leave?

(a) In addition to the circumstances discussed in § 825.212(b),

the share of health plan premiums paid by or on behalf of the

employing office during a period of unpaid FMLA leave may be

recovered from an employee if the employee fails to return to

work after the employee’s FMLA leave entitlement has been

exhausted or expires, unless the reason the employee does not

return is due to:

(1) The continuation, recurrence, or onset of a serious

health condition of the employee or the employee’s family member which would otherwise entitle the employee to leave under

FMLA;

(2) Other circumstances beyond the employee’s control.

Examples of ‘‘other circumstances beyond the employee’s control’’ are necessarily broad. They include such situations as
S. Con. Res. 51—31

where a parent chooses to stay home with a newborn child

who has a serious health condition; an employee’s spouse is

unexpectedly transferred to a job location more than 75 miles

from the employee’s worksite; a relative or individual other

than an immediate family member has a serious health condition and the employee is needed to provide care; the employee

is laid off while on leave; or, the employee is a ‘‘key employee’’

who decides not to return to work upon being notified of the

employing office’s intention to deny restoration because of

substantial and grievous economic injury to the employing

office’s operations and is not reinstated by the employing office.

Other circumstances beyond the employee’s control would not

include a situation where an employee desires to remain with

a parent in a distant city even though the parent no longer

requires the employee’s care, or a parent chooses not to return

to work to stay home with a well, newborn child; or

(3) When an employee fails to return to work because

of the continuation, recurrence, or onset of a serious health

condition, thereby precluding the employing office from recovering its (share of) health benefit premium payments made on

the employee’s behalf during a period of unpaid FMLA leave,

the employing office may require medical certification of the

employee’s or the family member’s serious health condition.

Such certification is not required unless requested by the

employing office. The employee is required to provide medical

certification in a timely manner which, for purposes of this

section, is within 30 days from the date of the employing

office’s request. For purposes of medical certification, the

employee may use the optional form developed for this purpose

(see § 825.306(a) and Appendix B of this part). If the employing

office requests medical certification and the employee does not

provide such certification in a timely manner (within 30 days),

or the reason for not returning to work does not meet the

test of other circumstances beyond the employee’s control, the

employing office may recover 100 percent of the health benefit

premiums it paid during the period of unpaid FMLA leave.

(b) Under some circumstances an employing office may elect

to maintain other benefits, e.g., life insurance, disability insurance,

etc., by paying the employee’s (share of) premiums during periods

of unpaid FMLA leave. For example, to ensure the employing office

can meet its responsibilities to provide equivalent benefits to the

employee upon return from unpaid FMLA leave, it may be necessary

that premiums be paid continuously to avoid a lapse of coverage.

If the employing office elects to maintain such benefits during

the leave, at the conclusion of leave, the employing office is entitled

to recover only the costs incurred for paying the employee’s share

of any premiums whether or not the employee returns to work.

(c) An employee who returns to work for at least 30 calendar

days is considered to have ‘‘returned’’ to work. An employee who

transfers directly from taking FMLA leave to retirement, or who

retires during the first 30 days after the employee returns to

work, is deemed to have returned to work.

(d) When an employee elects or an employing office requires

paid leave to be substituted for FMLA leave, the employing office

may not recover its (share of) health insurance or other non-health

benefit premiums for any period of FMLA leave covered by paid

leave. Because paid leave provided under a plan covering temporary
S. Con. Res. 51—32

disabilities (including workers’ compensation) is not unpaid, recovery of health insurance premiums does not apply to such paid

leave.

(e) The amount that self-insured employing offices may recover

is limited to only the employing office’s share of allowable ‘‘premiums’’ as would be calculated under COBRA, excluding the 2

percent fee for administrative costs.

(f) When an employee fails to return to work, any health

and non-health benefit premiums which this section of the regulations permits an employing office to recover are a debt owed by

the non-returning employee to the employing office. The existence

of this debt caused by the employee’s failure to return to work

does not alter the employing office’s responsibilities for health benefit coverage and, under a self-insurance plan, payment of claims

incurred during the period of FMLA leave. To the extent recovery

is allowed, the employing office may recover the costs through

deduction from any sums due to the employee (e.g., unpaid wages,

vacation pay, etc.), provided such deductions do not otherwise violate applicable wage payment or other laws. Alternatively, the

employing office may initiate legal action against the employee

to recover such costs.

§ 825.214 What are an employee’s rights on returning to work

from FMLA leave?

(a) On return from FMLA leave, an employee is entitled to

be returned to the same position the employee held when leave

commenced, or to an equivalent position with equivalent benefits,

pay, and other terms and conditions of employment. An employee

is entitled to such reinstatement even if the employee has been

replaced or his or her position has been restructured to accommodate the employee’s absence. See also § 825.106(e) for the obligations

of employing offices that are joint employing offices.

(b) If the employee is unable to perform an essential function

of the position because of a physical or mental condition, including

the continuation of a serious health condition, the employee has

no right to restoration to another position under the FMLA. However, the employing office’s obligations may be governed by the

Americans with Disabilities Act (ADA), as made applicable by the

CAA. See § 825.702.

§ 825.215 What is an equivalent position?

(a) An equivalent position is one that is virtually identical

to the employee’s former position in terms of pay, benefits and

working conditions, including privileges, perquisites and status.

It must involve the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort,

responsibility, and authority.

(b) If an employee is no longer qualified for the position because

of the employee’s inability to attend a necessary course, renew

a license, fly a minimum number of hours, etc., as a result of

the leave, the employee shall be given a reasonable opportunity

to fulfill those conditions upon return to work.

(c) Equivalent Pay:

(1) An employee is entitled to any unconditional pay

increases which may have occurred during the FMLA leave

period, such as cost of living increases. Pay increases conditioned upon seniority, length of service, or work performed
S. Con. Res. 51—33

would not have to be granted unless it is the employing office’s

policy or practice to do so with respect to other employees

on ‘‘leave without pay’’. In such case, any pay increase would

be granted based on the employee’s seniority, length of service,

work performed, etc., excluding the period of unpaid FMLA

leave. An employee is entitled to be restored to a position

with the same or equivalent pay premiums, such as a shift

differential. If an employee departed from a position averaging

ten hours of overtime (and corresponding overtime pay) each

week, an employee is ordinarily entitled to such a position

on return from FMLA leave.

(2) Many employing offices pay bonuses in different forms

to employees for job-related performance such as for perfect

attendance, safety (absence of injuries or accidents on the job)

and exceeding production goals. Bonuses for perfect attendance

and safety do not require performance by the employee but

rather contemplate the absence of occurrences. To the extent

an employee who takes FMLA leave had met all the requirements for either or both of these bonuses before FMLA leave

began, the employee is entitled to continue this entitlement

upon return from FMLA leave, that is, the employee may

not be disqualified for the bonus(es) for the taking of FMLA

leave. See § 825.220 (b) and (c). A monthly production bonus,

on the other hand, does require performance by the employee.

If the employee is on FMLA leave during any part of the

period for which the bonus is computed, the employee is entitled

to the same consideration for the bonus as other employees

on paid or unpaid leave (as appropriate). See paragraph (d)(2)

of this section.

(d) Equivalent Benefits: ‘‘Benefits’’ include all benefits provided

or made available to employees by an employing office, including

group life insurance, health insurance, disability insurance, sick

leave, annual leave, educational benefits, and pensions, regardless

of whether such benefits are provided by a practice or written

policy of an employing office through an employee benefit plan.

(1) At the end of an employee’s FMLA leave, benefits must

be resumed in the same manner and at the same levels as

provided when the leave began, and subject to any changes

in benefit levels that may have taken place during the period

of FMLA leave affecting the entire workforce, unless otherwise

elected by the employee. Upon return from FMLA leave, an

employee cannot be required to requalify for any benefits the

employee enjoyed before FMLA leave began (including family

or dependent coverages). For example, if an employee was

covered by a life insurance policy before taking leave but is

not covered or coverage lapses during the period of unpaid

FMLA leave, the employee cannot be required to meet any

qualifications, such as taking a physical examination, in order

to requalify for life insurance upon return from leave. Accordingly, some employing offices may find it necessary to modify

life insurance and other benefits programs in order to restore

employees to equivalent benefits upon return from FMLA leave,

make arrangements for continued payment of costs to maintain

such benefits during unpaid FMLA leave, or pay these costs

subject to recovery from the employee on return from leave.

See § 825.213(b).
S. Con. Res. 51—34

(2) An employee may, but is not entitled to, accrue any

additional benefits or seniority during unpaid FMLA leave.

Benefits accrued at the time leave began, however (e.g., paid

vacation, sick or personal leave to the extent not substituted

for FMLA leave), must be available to an employee upon return

from leave.

(3) If, while on unpaid FMLA leave, an employee desires

to continue life insurance, disability insurance, or other types

of benefits for which he or she typically pays, the employing

office is required to follow established policies or practices for

continuing such benefits for other instances of leave without

pay. If the employing office has no established policy, the

employee and the employing office are encouraged to agree

upon arrangements before FMLA leave begins.

(4) With respect to pension and other retirement plans,

any period of unpaid FMLA leave shall not be treated as

or counted toward a break in service for purposes of vesting

and eligibility to participate. Also, if the plan requires an

employee to be employed on a specific date in order to be

credited with a year of service for vesting, contributions or

participation purposes, an employee on unpaid FMLA leave

on that date shall be deemed to have been employed on that

date. However, unpaid FMLA leave periods need not be treated

as credited service for purposes of benefit accrual, vesting and

eligibility to participate.

(5) Employees on unpaid FMLA leave are to be treated

as if they continued to work for purposes of changes to benefit

plans. They are entitled to changes in benefit 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

nondiscretionary payments.
S. Con. Res. 51—35

(4) FMLA does not prohibit an employing office from

accommodating an employee’s request to be restored to a different shift, schedule, or position which better suits the employee’s personal needs on return from leave, or to offer a promotion

to a better position. However, an employee cannot be induced

by the employing office to accept a different position against

the employee’s wishes.

(f) The requirement that an employee be restored to the same

or equivalent job with the same or equivalent pay, benefits, and

terms and conditions of employment does not extend to de minimis

or intangible, unmeasurable aspects of the job. However, restoration

to a job slated for layoff, when the employee’s original position

is not, would not meet the requirements of an equivalent position.

§ 825.216 Are there any limitations on an employing office’s

obligation to reinstate an employee?

(a) An employee has no greater right to reinstatement or to

other benefits and conditions of employment than if the employee

had been continuously employed during the FMLA leave period.

An employing office must be able to show that an employee would

not otherwise have been employed at the time reinstatement is

requested in order to deny restoration to employment. For example:

(1) If an employee is laid off during the course of taking

FMLA leave and employment is terminated, the employing

office’s responsibility to continue FMLA leave, maintain group

health plan benefits and restore the employee ceases at the

time the employee is laid off, provided the employing office

has no continuing obligations under a collective bargaining

agreement or otherwise. An employing office would have the

burden of proving that an employee would have been laid

off during the FMLA leave period and, therefore, would not

be entitled to restoration.

(2) If a shift has been eliminated, or overtime has been

decreased, an employee would not be entitled to return to

work that shift or the original overtime hours upon restoration.

However, if a position on, for example, a night shift has been

filled by another employee, the employee is entitled to return

to the same shift on which employed before taking FMLA

leave.

(b) If an employee was hired for a specific term or only to

perform work on a discrete project, the employing office has no

obligation to restore the employee if the employment term or project

is over and the employing office would not otherwise have continued

to employ the employee.

(c) In addition to the circumstances explained above, an employing office may deny job restoration to salaried eligible employees

(‘‘key employees’’, as defined in paragraph (c) of § 825.217) if such

denial is necessary to prevent substantial and grievous economic

injury to the operations of the employing office; or may delay

restoration to an employee who fails to provide a fitness-for-duty

certificate to return to work under the conditions described in

§ 825.310.

(d) If the employee has been on a workers’ compensation

absence during which FMLA leave has been taken concurrently,

and after 12 weeks of FMLA leave the employee is unable to

return to work, the employee no longer has the protections of
S. Con. Res. 51—36

FMLA and must look to the workers’ compensation statute or

ADA, as made applicable by the CAA, for any relief or protections.

§ 825.217 What is a ‘‘key employee’’?

(a) A ‘‘key employee’’ is a salaried FMLA-eligible employee

who is among the highest paid 10 percent of all the employees

employed by the employing office within 75 miles of the employee’s

worksite.

(b) The term ‘‘salaried’’ means paid on a salary basis, within

the meaning of the Board’s regulations at part 541, implementing

section 203 of the CAA (2 U.S.C. 1313) (regarding employees who

may qualify as exempt from the minimum wage and overtime

requirements of the FLSA, as made applicable by the CAA, as

executive, administrative, and professional employees).

(c) A ‘‘key employee’’ must be ‘‘among the highest paid 10

percent’’ of all the employees, both salaried and nonsalaried, 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 nondiscretionary and discretionary bonuses. Earnings

do not include incentives whose value is determined at some

future date, e.g., benefits or perquisites.

(2) The determination of whether a salaried employee is

among the highest paid 10 percent shall be made at the time

the employee gives notice of the need for leave. No more than

10 percent of the employing office’s employees within 75 miles

of the worksite may be ‘‘key employees’’.

§ 825.218 What does ‘‘substantial and grievous economic

injury’’ mean?

(a) In order to deny restoration to a key employee, an employing

office must determine that the restoration of the employee to

employment will cause ‘‘substantial and grievous economic injury’’

to the operations of the employing office, not whether the absence

of the employee will cause such substantial and grievous injury.

(b) An employing office may take into account its ability to

replace on a temporary basis (or temporarily do without) the

employee on FMLA leave. If permanent replacement is unavoidable,

the cost of then reinstating the employee can be considered in

evaluating whether substantial and grievous economic injury will

occur from restoration; in other words, the effect on the operations

of the employing office of reinstating the employee in an equivalent

position.

(c) A precise test cannot be set for the level of hardship or

injury to the employing office which must be sustained. If the

reinstatement of a ‘‘key employee’’ threatens the economic viability

of the employing office, that would constitute ‘‘substantial and grievous economic injury’’. A lesser injury which causes substantial,

long-term economic injury would also be sufficient. Minor inconveniences and costs that the employing office would experience in

the normal course would certainly not constitute ‘‘substantial and

grievous economic injury’’.
S. Con. Res. 51—37

(d) FMLA’s ‘‘substantial and grievous economic injury’’ standard

is different from and more stringent than the ‘‘undue hardship’’

test under the ADA (see, also § 825.702).

§ 825.219 What are the rights of a key employee?

(a) An employing office which believes that reinstatement may

be denied to a key employee, must give written notice to the

employee at the time the employee gives notice of the need for

FMLA leave (or when FMLA leave commences, if earlier) that

he or she qualifies as a key employee. At the same time, the

employing office must also fully inform the employee of the potential

consequences with respect to reinstatement and maintenance of

health benefits if the employing office should determine that

substantial and grievous economic injury to the employing office’s

operations will result if the employee is reinstated from FMLA

leave. If such notice cannot be given immediately because of the

need to determine whether the employee is a key employee, it

shall be given as soon as practicable after being notified of a

need for leave (or the commencement of leave, if earlier). It is

expected that in most circumstances there will be no desire that

an employee be denied restoration after FMLA leave and, therefore,

there would be no need to provide such notice. However, an employing office who fails to provide such timely notice will lose its

right to deny restoration even if substantial and grievous economic

injury will result from reinstatement.

(b) As soon as an employing office makes a good faith determination, based on the facts available, that substantial and grievous

economic injury to its operations will result if a key employee

who has given notice of the need for FMLA leave or is using

FMLA leave is reinstated, the employing office shall notify the

employee in writing of its determination, that it cannot deny FMLA

leave, and that it intends to deny restoration to employment on

completion of the FMLA leave. It is anticipated that an employing

office will ordinarily be able to give such notice prior to the employee

starting leave. The employing office must serve this notice either

in person or by certified mail. This notice must explain the basis

for the employing office’s finding that substantial and grievous

economic injury will result, and, if leave has commenced, must

provide the employee a reasonable time in which to return to

work, taking into account the circumstances, such as the length

of the leave and the urgency of the need for the employee to

return.

(c) If an employee on leave does not return to work in response

to the employing office’s notification of intent to deny restoration,

the employee continues to be entitled to maintenance of health

benefits and the employing office may not recover its cost of health

benefit premiums. A key employee’s rights under FMLA continue

unless and until either the employee gives notice that he or she

no longer wishes to return to work, or the employing office actually

denies reinstatement at the conclusion of the leave period.

(d) After notice to an employee has been given that substantial

and grievous economic injury will result if the employee is

reinstated to employment, an employee is still entitled to request

reinstatement at the end of the leave period even if the employee

did not return to work in response to the employing office’s notice.

The employing office must then again determine whether there

will be substantial and grievous economic injury from reinstate-
S. Con. Res. 51—38

ment, based on the facts at that time. If it is determined that

substantial and grievous economic injury will result, the employing

office shall notify the employee in writing (in person or by certified

mail) of the denial of restoration.

§ 825.220 How are employees protected who request leave

or otherwise assert FMLA rights?

(a) The FMLA, as made applicable by the CAA, prohibits interference with an employee’s rights under the law, and with legal

proceedings or inquiries relating to an employee’s rights. More

specifically, the law contains the following employee protections:

(1) An employing office is prohibited from interfering with,

restraining, or denying the exercise of (or attempts to exercise)

any rights provided by the FMLA as made applicable by the

CAA.

(2) An employing office is prohibited from discharging or

in any other way discriminating against any covered employee

(whether or not an eligible employee) for opposing or complaining about any unlawful practice under the FMLA as made

applicable by the CAA.

(3) All employing offices are prohibited from discharging

or in any other way discriminating against any covered

employee (whether or not an eligible employee) because that

covered employee has—

(i) Filed any charge, or has instituted (or caused to

be instituted) any proceeding under or related to the FMLA,

as made applicable by the CAA;

(ii) Given, or is about to give, any information in

connection with an inquiry or proceeding relating to a

right under the FMLA, as made applicable by the CAA;

(iii) Testified, or is about to testify, in any inquiry

or proceeding relating to a right under the FMLA, as

made applicable by the CAA.

(b) Any violations of the FMLA, as made applicable by the

CAA, or of these regulations constitute interfering with, restraining,

or denying the exercise of rights provided by the FMLA as made

applicable by the CAA. ‘‘Interfering with’’ the exercise of an employee’s rights would include, for example, not only refusing to authorize

FMLA leave, but discouraging an employee from using such leave.

It would also include manipulation by an employing office to avoid

responsibilities under FMLA, for example—

(1) [Reserved];

(2) changing the essential functions of the job in order

to preclude the taking of leave;

(3) reducing hours available to work in order to avoid

employee eligibility.

(c) An employing office is prohibited from discriminating against

employees or prospective employees who have used FMLA leave.

For example, if an employee on leave without pay would otherwise

be entitled to full benefits (other than health benefits), the same

benefits would be required to be provided to an employee on unpaid

FMLA leave. By the same token, employing offices cannot use

the taking of FMLA leave as a negative factor in employment

actions, such as hiring, promotions or disciplinary actions; nor can

FMLA leave be counted under ‘‘no fault’’ attendance policies.

(d) Employees cannot waive, nor may employing offices induce

employees to waive, their rights under FMLA. For example, employ-
S. Con. Res. 51—39

ees (or their collective bargaining representatives) cannot ‘‘trade

off’’ the right to take FMLA leave against some other benefit offered

by the employing office. This does not prevent an employee’s voluntary and uncoerced acceptance (not as a condition of employment)

of a ‘‘light duty’’ assignment while recovering from a serious health

condition (see § 825.702(d)). In such a circumstance the employee’s

right to restoration to the same or an equivalent position is available

until 12 weeks have passed within the 12-month period, including

all FMLA leave taken and the period of ‘‘light duty’’.

(e) Covered employees, and not merely eligible employees, are

protected from retaliation for opposing (e.g., file a complaint about)

any practice which is unlawful under the FMLA, as made applicable

by the CAA. They are similarly protected if they oppose any practice

which they reasonably believe to be a violation of the FMLA,

as made applicable by the CAA or regulations.

SUBPART C—HOW DO EMPLOYEES LEARN OF THEIR RIGHTS AND OBLIGATIONS UNDER THE FMLA, AS MADE APPLICABLE BY THE CAA,

AND WHAT CAN AN EMPLOYING OFFICE REQUIRE OF AN EMPLOYEE?

§ 825.300 [Reserved]

§ 825.301 What notices to employees are required of employing offices under the FMLA as made applicable

by the CAA?

(a)(1) If an employing office has any eligible employees and

has any written guidance to employees concerning employee benefits

or leave rights, such as in an employee handbook, information

concerning both entitlements and employee obligations under the

FMLA, as made applicable by the CAA, must be included in the

handbook or other document. For example, if an employing office

provides an employee handbook to all employees that describes

the employing office’s policies regarding leave, wages, attendance,

and similar matters, the handbook must incorporate information

on FMLA rights and responsibilities and the employing office’s

policies regarding the FMLA, as made applicable by the CAA.

Informational publications describing the provisions of the FMLA

as made applicable by the CAA are available from the Office of

Compliance and may be incorporated in such employing office handbooks or written policies.

(2) If such an employing office does not have written policies,

manuals, or handbooks describing employee benefits and leave

provisions, the employing office shall provide written guidance to

an employee concerning all the employee’s rights and obligations

under the FMLA as made applicable by the CAA. This notice

shall be provided to employees each time notice is given pursuant

to paragraph (b), and in accordance with the provisions of that

paragraph. Employing offices may duplicate and provide the

employee a copy of the FMLA Fact Sheet available from the Office

of Compliance to provide such guidance.

(b)(1) The employing office shall also provide the employee

with written notice detailing the specific expectations and obligations of the employee and explaining any consequences of a failure

to meet these obligations. The written notice must be provided

to the employee in a language in which the employee is literate.

Such specific notice must include, as appropriate—
S. Con. Res. 51—40

(i) that the leave will be counted against the employee’s

annual FMLA leave entitlement (see § 825.208);

(ii) any requirements for the employee to furnish medical

certification of a serious health condition and the consequences

of failing to do so (see § 825.305);

(iii) the employee’s right to substitute paid leave and

whether the employing office will require the substitution of

paid leave, and the conditions related to any substitution;

(iv) any requirement for the employee to make any premium payments to maintain health benefits and the arrangements for making such payments (see § 825.210), and the possible consequences of failure to make such payments on a

timely basis (i.e., the circumstances under which coverage may

lapse);

(v) any requirement for the employee to present a fitnessfor-duty certificate to be restored to employment (see § 825.310);

(vi) the employee’s status as a ‘‘key employee’’ and the

potential consequence that restoration may be denied following

FMLA leave, explaining the conditions required for such denial

(see § 825.218);

(vii) the employee’s right to restoration to the same or

an equivalent job upon return from leave (see §§ 825.214 and

825.604); and

(viii) the employee’s potential liability for payment of health

insurance premiums paid by the employing office during the

employee’s unpaid FMLA leave if the employee fails to return

to work after taking FMLA leave (see § 825.213).

(2) The specific notice may include other information—e.g.,

whether the employing office will require periodic reports of the

employee’s status and intent to return to work, but is not required

to do so. A prototype notice is contained in Appendix D of this

part, or may be obtained from the Office of Compliance, which

employing offices may adapt for their use to meet these specific

notice requirements.

(c) Except as provided in this subparagraph, the written notice

required by paragraph (b) (and by subparagraph (a)(2) where

applicable) must be provided to the employee no less often than

the first time in each six-month period that an employee gives

notice of the need for FMLA leave (if FMLA leave is taken during

the six-month period). The notice shall be given within a reasonable

time after notice of the need for leave is given by the employee—

within one or two business days if feasible. If leave has already

begun, the notice should be mailed to the employee’s address of

record.

(1) If the specific information provided by the notice

changes with respect to a subsequent period of FMLA leave

during the six-month period, the employing office shall, within

one or two business days of receipt of the employee’s notice

of need for leave, provide written notice referencing the prior

notice and setting forth any of the information in subparagraph

(b) which has changed. For example, if the initial leave period

were paid leave and the subsequent leave period would be

unpaid leave, the employing office may need to give notice

of the arrangements for making premium payments.

(2)(i) Except as provided in subparagraph (ii), if the employing office is requiring medical certification or a ‘‘fitness-for-
S. Con. Res. 51—41

duty’’ report, written notice of the requirement shall be given

with respect to each employee notice of a need for leave.

(ii) Subsequent written notification shall not be required

if the initial notice in the six-month period and the employing

office handbook or other written documents (if any) describing

the employing office’s leave policies, clearly provided that certification or a ‘‘fitness-for-duty’’ report would be required (e.g.,

by stating that certification would be required in all cases,

by stating that certification would be required in all cases

in which leave of more than a specified number of days is

taken, or by stating that a ‘‘fitness-for-duty’’ report would be

required in all cases for back injuries for employees in a certain

occupation). Where subsequent written notice is not required,

at least oral notice shall be provided. (See § 825.305(a).)

(d) Employing offices are also expected to responsively answer

questions from employees concerning their rights and responsibilities under the FMLA as made applicable under the CAA.

(e) Employing offices furnishing FMLA-required notices to sensory impaired individuals must also comply with all applicable

requirements under law.

(f) If an employing office fails to provide notice in accordance

with the provisions of this section, the employing office may not

take action against an employee for failure to comply with any

provision required to be set forth in the notice.

§ 825.302 What notice does an employee have to give an

employing office when the need for FMLA leave

is foreseeable?

(a) An employee must provide the employing office at least

30 days advance notice before FMLA leave is to begin if the need

for the leave is foreseeable based on an expected birth, placement

for adoption or foster care, or planned medical treatment for a

serious health condition of the employee or of a family member.

If 30 days notice is not practicable, such as because of a lack

of knowledge of approximately when leave will be required to begin,

a change in circumstances, or a medical emergency, notice must

be given as soon as practicable. For example, an employee’s health

condition may require leave to commence earlier than anticipated

before the birth of a child. Similarly, little opportunity for notice

may be given before placement for adoption. Whether the leave

is to be continuous or is to be taken intermittently or on a reduced

schedule basis, notice need only be given one time, but the employee

shall advise the employing office as soon as practicable if dates

of scheduled leave change or are extended, or were initially

unknown.

(b) ‘‘As soon as practicable’’ means as soon as both possible

and practical, taking into account all of the facts and circumstances

in the individual case. For foreseeable leave where it is not possible

to give as much as 30 days notice, ‘‘as soon as practicable’’ ordinarily

would mean at least verbal notification to the employing office

within one or two business days of when the need for leave becomes

known to the employee.

(c) An employee shall provide at least verbal notice sufficient

to make the employing office aware that the employee needs FMLAqualifying leave, and the anticipated timing and duration of the

leave. The employee need not expressly assert rights under the

FMLA as made applicable by the CAA, or even mention the FMLA,
S. Con. Res. 51—42

but may only state that leave is needed for an expected birth

or adoption, for example. The employing office should inquire further of the employee if it is necessary to have more information

about whether FMLA leave is being sought by the employee, and

obtain the necessary details of the leave to be taken. In the case

of medical conditions, the employing office may find it necessary

to inquire further to determine if the leave is because of a serious

health condition and may request medical certification to support

the need for such leave (see § 825.305).

(d) An employing office may also require an employee to comply

with the employing office’s usual and customary notice and procedural requirements for requesting leave. For example, an employing

office may require that written notice set forth the reasons for

the requested leave, the anticipated duration of the leave, and

the anticipated start of the leave. However, failure to follow such

internal employing office procedures will not permit an employing

office to disallow or delay an employee’s taking FMLA leave if

the employee gives timely verbal or other notice.

(e) When planning medical treatment, the employee must consult with the employing office and make a reasonable effort to

schedule the leave so as not to disrupt unduly the employing

office’s operations, subject to the approval of the health care provider. Employees are ordinarily expected to consult with their

employing offices prior to the scheduling of treatment in order

to work out a treatment schedule which best suits the needs of

both the employing office and the employee. If an employee who

provides notice of the need to take FMLA leave on an intermittent

basis for planned medical treatment neglects to consult with the

employing office to make a reasonable attempt to arrange the

schedule of treatments so as not to unduly disrupt the employing

office’s operations, the employing office may initiate discussions

with the employee and require the employee to attempt to make

such arrangements, subject to the approval of the health care

provider.

(f) In the case of intermittent leave or leave on a reduced

leave schedule which is medically necessary, an employee shall

advise the employing office, upon request, of the reasons why the

intermittent/reduced leave schedule is necessary and of the schedule

for treatment, if applicable. The employee and employing office

shall attempt to work out a schedule which meets the employee’s

needs without unduly disrupting the employing office’s operations,

subject to the approval of the health care provider.

(g) An employing office may waive employees’ FMLA notice

requirements. In addition, an employing office may not require

compliance with stricter FMLA notice requirements where the

provisions of a collective bargaining agreement or applicable leave

plan allow less advance notice to the employing office. For example,

if an employee (or employing office) elects to substitute paid vacation

leave for unpaid FMLA leave (see § 825.207), and the employing

office’s paid vacation leave plan imposes no prior notification

requirements for taking such vacation leave, no advance notice

may be required for the FMLA leave taken in these circumstances.

On the other hand, FMLA notice requirements would apply to

a period of unpaid FMLA leave, unless the employing office imposes

lesser notice requirements on employees taking leave without pay.
S. Con. Res. 51—43

§ 825.303 What are the requirements for an employee to furnish notice to an employing office where the need

for FMLA leave is not foreseeable?

(a) When the approximate timing of the need for leave is

not foreseeable, an employee should give notice to the employing

office of the need for FMLA leave as soon as practicable under

the facts and circumstances of the particular case. It is expected

that an employee will give notice to the employing office within

no more than one or two working days of learning of the need

for leave, except in extraordinary circumstances where such notice

is not feasible. In the case of a medical emergency requiring leave

because of an employee’s own serious health condition or to care

for a family member with a serious health condition, written

advance notice pursuant to an employing office’s internal rules

and procedures may not be required when FMLA leave is involved.

(b) The employee should provide notice to the employing office

either in person or by telephone, telegraph, facsimile (‘‘fax’’) machine

or other electronic means. Notice may be given by the employee’s

spokesperson (e.g., spouse, adult family member or other responsible

party) if the employee is unable to do so personally. The employee

need not expressly assert rights under the FMLA, as made

applicable by the CAA, or even mention the FMLA, but may only

state that leave is needed. The employing office will be expected

to obtain any additional required information through informal

means. The employee or spokesperson will be expected to provide

more information when it can readily be accomplished as a practical

matter, taking into consideration the exigencies of the situation.

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

(a) An employing office may waive employees’ FMLA notice

obligations or the employing office’s own internal rules on leave

notice requirements.

(b) If an employee fails to give 30 days notice for foreseeable

leave with no reasonable excuse for the delay, the employing office

may delay the taking of FMLA leave until at least 30 days after

the date the employee provides notice to the employing office of

the need for FMLA leave.

(c) In all cases, in order for the onset of an employee’s FMLA

leave to be delayed due to lack of required notice, it must be

clear that the employee had actual notice of the FMLA notice

requirements. This condition would be satisfied by the employing

office’s proper posting, at the worksite where the employee is

employed, of the information regarding the FMLA provided (pursuant to section 301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by the

Office of Compliance to the employing office in a manner suitable

for posting. Furthermore, the need for leave and the approximate

date leave would be taken must have been clearly foreseeable

to the employee 30 days in advance of the leave. For example,

knowledge that an employee would receive a telephone call about

the availability of a child for adoption at some unknown point

in the future would not be sufficient.

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

(a) An employing office may require that an employee’s leave

to care for the employee’s seriously ill spouse, son, daughter, or
S. Con. Res. 51—44

parent, or due to the employee’s own serious health condition that

makes the employee unable to perform one or more of the essential

functions of the employee’s position, be supported by a certification

issued by the health care provider of the employee or the employee’s

ill family member. An employing office must give notice of a requirement for medical certification each time a certification is required;

such notice must be written notice whenever required by § 825.301.

An employing office’s oral request to an employee to furnish any

subsequent medical certification is sufficient.

(b) When the leave is foreseeable and at least 30 days notice

has been provided, the employee should provide the medical certification before the leave begins. When this is not possible, the

employee must provide the requested certification to the employing

office within the time frame requested by the employing office

(which must allow at least 15 calendar days after the employing

office’s request), unless it is not practicable under the particular

circumstances to do so despite the employee’s diligent, good faith

efforts.

(c) In most cases, the employing office should request that

an employee furnish certification from a health care provider at

the time the employee gives notice of the need for leave or within

two business days thereafter, or, in the case of unforeseen leave,

within two business days after the leave commences. The employing

office may request certification at some later date if the employing

office later has reason to question the appropriateness of the leave

or its duration.

(d) At the time the employing office requests certification, the

employing office must also advise an employee of the anticipated

consequences of an employee’s failure to provide adequate certification. The employing office shall advise an employee whenever

the employing office finds a certification incomplete, and provide

the employee a reasonable opportunity to cure any such deficiency.

(e) If the employing office’s sick or medical leave plan imposes

medical certification requirements that are less stringent than the

certification requirements of these regulations, and the employee

or employing office elects to substitute paid sick, vacation, personal

or family leave for unpaid FMLA leave where authorized (see

§ 825.207), only the employing office’s less stringent sick leave certification requirements may be imposed.

§ 825.306 How much information may be required in medical

certifications of a serious health condition?

(a) The Office of Compliance has made available an optional

form (‘‘Certification of Physician or Practitioner’’) for employees’

(or their family members’) use in obtaining medical certification,

including second and third opinions, from health care providers

that meets FMLA’s certification requirements. (See Appendix B

to these regulations.) This optional form reflects certification

requirements so as to permit the health care provider to furnish

appropriate medical information within his or her knowledge.

(b) The Certification of Physician or Practitioner form is modeled closely on Form WH–380, as revised, which was developed

by the Department of Labor (see 29 C.F.R. Part 825, Appendix

B). The employing office may use the Office of Compliance’s form,

or Form WH–380, as revised, or another form containing the same

basic information; however, no additional information may be

required. In all instances the information on the form must relate
S. Con. Res. 51—45

only to the serious health condition for which the current need

for leave exists. The form identifies the health care provider and

type of medical practice (including pertinent specialization, if any),

makes maximum use of checklist entries for ease in completing

the form, and contains required entries for:

(1) A certification as to which part of the definition of

‘‘serious health condition’’ (see § 825.114), if any, applies to

the patient’s condition, and the medical facts which support

the certification, including a brief statement as to how the

medical facts meet the criteria of the definition.

(2)(i) The approximate date the serious health condition

commenced, and its probable duration, including the probable

duration of the patient’s present incapacity (defined to mean

inability to work, attend school or perform other regular daily

activities due to the serious health condition, treatment therefor, or recovery therefrom) if different.

(ii) Whether it will be necessary for the employee to take

leave intermittently or to work on a reduced leave schedule

basis (i.e., part-time) as a result of the serious health condition

(see § 825.117 and § 825.203), and if so, the probable duration

of such schedule.

(iii) If the condition is pregnancy or a chronic condition

within the meaning of § 825.114(a)(2)(iii), whether the patient

is presently incapacitated and the likely duration and frequency

of episodes of incapacity.

(3)(i)(A) If additional treatments will be required for the

condition, an estimate of the probable number of such treatments.

(B) If the patient’s incapacity will be intermittent, or will

require a reduced leave schedule, an estimate of the probable

number and interval between such treatments, actual or estimated dates of treatment if known, and period required for

recovery if any.

(ii) If any of the treatments referred to in subparagraph

(i) will be provided by another provider of health services (e.g.,

physical therapist), the nature of the treatments.

(iii) If a regimen of continuing treatment by the patient

is required under the supervision of the health care provider,

a general description of the regimen (see § 825.114(b)).

(4) If medical leave is required for the employee’s absence

from work because of the employee’s own condition (including

absences due to pregnancy or a chronic condition), whether

the employee—

(i) is unable to perform work of any kind;

(ii) is unable to perform any one or more of the essential functions of the employee’s position, including a statement of the essential functions the employee is unable

to perform (see § 825.115), based on either information

provided on a statement from the employing office of the

essential functions of the position or, if not provided, discussion with the employee about the employee’s job functions;

or

(iii) must be absent from work for treatment.

(5)(i) If leave is required to care for a family member

of the employee with a serious health condition, whether the

patient requires assistance for basic medical or personal needs

or safety, or for transportation; or if not, whether the employee’s
S. Con. Res. 51—46

presence to provide psychological comfort would be beneficial

to the patient or assist in the patient’s recovery. The employee

is required to indicate on the form the care he or she will

provide and an estimate of the time period.

(ii) If the employee’s family member will need care only

intermittently or on a reduced leave schedule basis (i.e., parttime), the probable duration of the need.

(c) If the employing office’s sick or medical leave plan requires

less information to be furnished in medical certifications than the

certification requirements of these regulations, and the employee

or employing office elects to substitute paid sick, vacation, personal

or family leave for unpaid FMLA leave where authorized (see

§ 825.207), only the employing office’s lesser sick leave certification

requirements may be imposed.

§ 825.307 What may an employing office do if it questions

the adequacy of a medical certification?

(a) If an employee submits a complete certification signed by

the health care provider, the employing office may not request

additional information from the employee’s health care provider.

However, a health care provider representing the employing office

may contact the employee’s health care provider, with the employee’s permission, for purposes of clarification and authenticity of

the medical certification.

(1) If an employee is on FMLA leave running concurrently

with a workers’ compensation absence, and the provisions of

the workers’ compensation statute permit the employing office

or the employing office’s representative to have direct contact

with the employee’s workers’ compensation health care provider, the employing office may follow the workers’ compensation provisions.

(2) An employing office that has reason to doubt the validity

of a medical certification may require the employee to obtain

a second opinion at the employing office’s expense. Pending

receipt of the second (or third) medical opinion, the employee

is provisionally entitled to the benefits of the FMLA as made

applicable by the CAA, including maintenance of group health

benefits. If the certifications do not ultimately establish the

employee’s entitlement to FMLA leave, the leave shall not

be designated as FMLA leave and may be treated as paid

or unpaid leave under the employing office’s established leave

policies. The employing office is permitted to designate the

health care provider to furnish the second opinion, but the

selected health care provider may not be employed on a regular

basis by the employing office. See also paragraphs (e) and

(f) of this section.

(b) The employing office may not regularly contract with or

otherwise regularly utilize the services of the health care provider

furnishing the second opinion unless the employing office is located

in an area where access to health care is extremely limited (e.g.,

a rural area where no more than one or two doctors practice

in the relevant specialty in the vicinity).

(c) If the opinions of the employee’s and the employing office’s

designated health care providers differ, the employing office may

require the employee to obtain certification from a third health

care provider, again at the employing office’s expense. This third

opinion shall be final and binding. The third health care provider
S. Con. Res. 51—47

must be designated or approved jointly by the employing office

and the employee. The employing office and the employee must

each act in good faith to attempt to reach agreement on whom

to select for the third opinion provider. If the employing office

does not attempt in good faith to reach agreement, the employing

office will be bound by the first certification. If the employee does

not attempt in good faith to reach agreement, the employee will

be bound by the second certification. For example, an employee

who refuses to agree to see a doctor in the specialty in question

may be failing to act in good faith. On the other hand, an employing

office that refuses to agree to any doctor on a list of specialists

in the appropriate field provided by the employee and whom the

employee has not previously consulted may be failing to act in

good faith.

(d) The employing office is required to provide the employee

with a copy of the second and third medical opinions, where

applicable, upon request by the employee. Requested copies are

to be provided within two business days unless extenuating circumstances prevent such action.

(e) If the employing office requires the employee to obtain

either a second or third opinion the employing office must reimburse

an employee or family member for any reasonable ‘‘out of pocket’’

travel expenses incurred to obtain the second and third medical

opinions. The employing office may not require the employee or

family member to travel outside normal commuting distance for

purposes of obtaining the second or third medical opinions except

in very unusual circumstances.

(f) In circumstances when the employee or a family member

is visiting in another country, or a family member resides in 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.

§ 825.308 Under what circumstances may an employing

office request subsequent recertifications of

medical conditions?

(a) For pregnancy, chronic, or permanent/long-term conditions

under continuing supervision of a health care provider (as defined

in § 825.114(a)(2) (ii), (iii) or (iv)), an employing office may request

recertification no more often than every 30 days and only in connection with an absence by the employee, unless:

(1) Circumstances described by the previous certification

have changed significantly (e.g., the duration or frequency of

absences, the severity of the condition, complications); or

(2) The employing office receives information that casts

doubt upon the employee’s stated reason for the absence.

(b)(1) If the minimum duration of the period of incapacity

specified on a certification furnished by the health care provider

is more than 30 days, the employing office may not request recertification until that minimum duration has passed unless one of the

conditions set forth in paragraph (c) (1), (2) or (3) of this section

is met.

(2) For FMLA leave taken intermittently or on a reduced leave

schedule basis, the employing office may not request recertification

in less than the minimum period specified on the certification

as necessary for such leave (including treatment) unless one of
S. Con. Res. 51—48

the conditions set forth in paragraph (c) (1), (2) or (3) of this

section is met.

(c) For circumstances not covered by paragraphs (a) or (b)

of this section, an employing office may request recertification at

any reasonable interval, but not more often than every 30 days,

unless:

(1) The employee requests an extension of leave;

(2) Circumstances described by the previous certification

have changed significantly (e.g., the duration of the illness,

the nature of the illness, complications); or

(3) The employing office receives information that casts

doubt upon the continuing validity of the certification.

(d) The employee must provide the requested recertification

to the employing office within the time frame requested by the

employing office (which must allow at least 15 calendar days after

the employing office’s request), unless it is not practicable under

the particular circumstances to do so despite the employee’s diligent,

good faith efforts.

(e) Any recertification requested by the employing office shall

be at the employee’s expense unless the employing office provides

otherwise. No second or third opinion on recertification may be

required.

§ 825.309 What notice may an employing office require

regarding an employee’s intent to return to

work?

(a) An employing office may require an employee on FMLA

leave to report periodically on the employee’s status and intent

to return to work. The employing office’s policy regarding such

reports may not be discriminatory and must take into account

all of the relevant facts and circumstances related to the individual

employee’s leave situation.

(b) If an employee gives unequivocal notice of intent not to

return to work, the employing office’s obligations under FMLA,

as made applicable by the CAA, to maintain health benefits (subject

to requirements of COBRA or 5 U.S.C. 8905a, whichever is

applicable) and to restore the employee cease. However, these

obligations continue if an employee indicates he or she may be

unable to return to work but expresses a continuing desire to

do so.

(c) It may be necessary for an employee to take more leave

than originally anticipated. Conversely, an employee may discover

after beginning leave that the circumstances have changed and

the amount of leave originally anticipated is no longer necessary.

An employee may not be required to take more 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.
S. Con. Res. 51—49

§ 825.310 Under what circumstances may an employing

office require that an employee submit a medical

certification that the employee is able (or unable)

to return to work (i.e., a ‘‘fitness-for-duty’’

report)?

(a) As a condition of restoring an employee whose FMLA leave

was occasioned by the employee’s own serious health condition

that made the employee unable to perform the employee’s job,

an employing office may have a uniformly-applied policy or practice

that requires all similarly-situated employees (i.e., same occupation,

same serious health condition) who take leave for such conditions

to obtain and present certification from the employee’s health care

provider that the employee is able to resume work.

(b) If the terms of a collective bargaining agreement govern

an employee’s return to work, those provisions shall be applied.

Similarly, requirements under the Americans with Disabilities Act

(ADA), as made applicable by the CAA, that any return-to-work

physical be job-related and consistent with business necessity apply.

For example, an attorney could not be required to submit to a

medical examination or inquiry just because her leg had been

amputated. The essential functions of an attorney’s job do not

require use of both legs; therefore such an inquiry would not be

job related. An employing office may require a warehouse laborer,

whose back impairment affects the ability to lift, to be examined

by an orthopedist, but may not require this employee to submit

to an HIV test where the test is not related to either the essential

functions of his/her job or to his/her impairment.

(c) An employing office may seek fitness-for-duty certification

only with regard to the particular health condition that caused

the employee’s need for FMLA leave. The certification itself need

only be a simple statement of an employee’s ability to return to

work. A health care provider employed by the employing office

may contact the employee’s health care provider with the employee’s

permission, for purposes of clarification of the employee’s fitness

to return to work. No additional information may be acquired,

and clarification may be requested only for the serious health

condition for which FMLA leave was taken. The employing office

may not delay the employee’s return to work while contact with

the health care provider is being made.

(d) The cost of the certification shall be borne by the employee

and the employee is not entitled to be paid for the time or travel

costs spent in acquiring the certification.

(e) The notice that employing offices are required to give to

each employee giving notice of the need for FMLA leave regarding

their FMLA rights and obligations as made applicable by the CAA

(see § 825.301) shall advise the employee if the employing office

will require fitness-for-duty certification to return to work. If the

employing office has a handbook explaining employment policies

and benefits, the handbook should explain the employing office’s

general policy regarding any requirement for fitness-for-duty certification to return to work. Specific notice shall also be given to

any employee from whom fitness-for-duty certification will be

required either at the time notice of the need for leave is given

or immediately after leave commences and the employing office

is advised of the medical circumstances requiring the leave, unless

the employee’s condition changes from one that did not previously

require certification pursuant to the employing office’s practice or
S. Con. Res. 51—50

policy. No second or third fitness-for-duty certification may be

required.

(f) An employing office may delay restoration to employment

until an employee submits a required fitness-for-duty certification

unless the employing office has failed to provide the notices required

in paragraph (e) of this section.

(g) An employing office is not entitled to certification of fitness

to return to duty when the employee takes intermittent leave as

described in § 825.203.

(h) When an employee is unable to return to work after FMLA

leave because of the continuation, recurrence, or onset of the

employee’s or family member’s serious health condition, thereby

preventing the employing office from recovering its share of health

benefit premium payments made on the employee’s behalf during

a period of unpaid FMLA leave, the employing office may require

medical certification of the employee’s or the family member’s serious health condition. (See § 825.213(a)(3).) The cost of the certification shall be borne by the employee and the employee is not

entitled to be paid for the time or travel costs spent in acquiring

the certification.

§ 825.311 What happens if an employee fails to satisfy the

medical certification and/or recertification

requirements?

(a) In the case of foreseeable leave, an employing office may

delay the taking of FMLA leave to an employee who fails to provide

timely certification after being requested by the employing office

to furnish such certification (i.e., within 15 calendar days, if practicable), until the required certification is provided.

(b) When the need for leave is not foreseeable, or in the case

of recertification, an employee must provide certification (or recertification) within the time frame requested by the employing office

(which must allow at least 15 days after the employing office’s

request) or as soon as reasonably possible under the particular

facts and circumstances. In the case of a medical emergency, it

may not be practicable for an employee to provide the required

certification within 15 calendar days. If an employee fails to provide

a medical certification within a reasonable time under the pertinent

circumstances, the employing office may delay the employee’s

continuation of FMLA leave. If the employee never produces the

certification, the leave is not FMLA leave.

(c) When requested by the employing office pursuant to a uniformly applied policy for similarly-situated employees, the employee

must provide medical certification at the time the employee seeks

reinstatement at the end of FMLA leave taken for the employee’s

serious health condition, that the employee is fit for duty and

able to return to work (see § 825.310(a)) if the employing office

has provided the required notice (see § 825.301(c)); the employing

office may delay restoration until the certification is provided. In

this situation, unless the employee provides either a fitness-forduty 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).
S. Con. Res. 51—51

§ 825.312 Under what circumstances may an employing

office refuse to provide FMLA leave or reinstatement to eligible employees?

(a) If an employee fails to give timely advance notice when

the need for FMLA leave is foreseeable, the employing office may

delay the taking of FMLA leave until 30 days after the date the

employee provides notice to the employing office of the need for

FMLA leave. (See § 825.302.)

(b) If an employee fails to provide in a timely manner a

requested medical certification to substantiate the need for FMLA

leave due to a serious health condition, an employing office may

delay continuation of FMLA leave until an employee submits the

certificate. (See §§ 825.305 and 825.311.) If the employee never

produces the certification, the leave is not FMLA leave.

(c) If an employee fails to provide a requested fitness-for-duty

certification to return to work, an employing office may delay restoration until the employee submits the certificate. (See §§ 825.310

and 825.311.)

(d) An employee has no greater right to reinstatement or to

other benefits and conditions of employment than if the employee

had been continuously employed during the FMLA leave period.

Thus, an employee’s rights to continued leave, maintenance of

health benefits, and restoration cease under FMLA, as made

applicable by the CAA, if and when the employment relationship

terminates (e.g., layoff), unless that relationship continues, for

example, by the employee remaining on paid FMLA leave. If the

employee is recalled or otherwise re-employed, an eligible employee

is immediately entitled to further FMLA leave for an FMLA-qualifying reason. An employing office must be able to show, when an

employee requests restoration, that the employee would not otherwise have been employed if leave had not been taken in order

to deny restoration to employment. (See § 825.216.)

(e) An employing office may require an employee on FMLA

leave to report periodically on the employee’s status and intention

to return to work. (See § 825.309.) If an employee unequivocally

advises the employing office either before or during the taking

of leave that the employee does not intend to return to work,

and the employment relationship is terminated, the employee’s

entitlement to continued leave, maintenance of health benefits,

and restoration ceases unless the employment relationship continues, for example, by the employee remaining on paid leave. An

employee may not be required to take more leave than necessary

to address the circumstances for which leave was taken. If the

employee is able to return to work earlier than anticipated, the

employee shall provide the employing office two business days notice

where feasible; the employing office is required to restore the

employee once such notice is given, or where such prior notice

was not feasible.

(f) An employing office may deny restoration to employment,

but not the taking of FMLA leave and the maintenance of health

benefits, to an eligible employee only under the terms of the ‘‘key

employee’’ exemption. Denial of reinstatement must be necessary

to prevent ‘‘substantial and grievous economic injury’’ to the employing office’s operations. The employing office must notify the

employee of the employee’s status as a ‘‘key employee’’ and of

the employing office’s intent to deny reinstatement on that basis

when the employing office makes these determinations. If leave
S. Con. Res. 51—52

has started, the employee must be given a reasonable opportunity

to return to work after being so notified. (See § 825.219.)

(g) An employee who fraudulently obtains FMLA leave from

an employing office is not protected by job restoration or maintenance of health benefits provisions of the FMLA as made applicable

by the CAA.

(h) If the employing office has a uniformly-applied policy

governing outside or supplemental employment, such a policy may

continue to apply to an employee while on FMLA leave. An employing office which does not have such a policy may not deny benefits

to which an employee is entitled under FMLA as made applicable

by the CAA on this basis unless the FMLA leave was fraudulently

obtained as in paragraph (g) of this section.

SUBPART D—WHAT ENFORCEMENT MECHANISMS DOES THE CAA

PROVIDE?

§ 825.400 What can employees do who believe that their

rights under the FMLA as made applicable by

the CAA have been violated?

(a) To commence a proceeding, a covered employee alleging

a violation of the rights and protections of the FMLA made

applicable by the CAA must request counseling by the Office of

Compliance not later than 180 days after the date of the alleged

violation. If a covered employee misses this deadline, the covered

employee will be unable to obtain a remedy under the CAA.

(b) The following procedures are available under title IV of

the CAA for covered employees who believe that their rights under

FMLA as made applicable by the CAA have been violated—

(1) counseling;

(2) mediation; and

(3) election of either—

(A) a formal complaint, filed with the Office of Compliance, and a hearing before a hearing officer, subject to

review by the Board of Directors of the Office of Compliance, and judicial review in the United States Court of

Appeals for the Federal Circuit; or

(B) a civil action in a district court of the United

States.

(c) Regulations of the Office of Compliance describing and

governing these procedures are found at [proposed rules can be

found at 141 Cong. Rec. S17012 (November 14, 1995)].

§ 825.401 [Reserved]

§ 825.402 [Reserved]

§ 825.403 [Reserved]

§ 825.404 [Reserved]

SUBPART E—[RESERVED]

SUBPART F—WHAT SPECIAL RULES APPLY TO EMPLOYEES OF

SCHOOLS?

§ 825.600 To whom do the special rules apply?

(a) Certain special rules apply to employees of ‘‘local educational

agencies’’, including public school boards and elementary schools
S. Con. Res. 51—53

under their jurisdiction, and private elementary and secondary

schools. The special rules do not apply to other kinds of educational

institutions, such as colleges and universities, trade schools, and

preschools.

(b) Educational institutions are covered by FMLA as made

applicable by the CAA (and these special rules). The usual requirements for employees to be ‘‘eligible’’ apply.

(c) The special rules affect the taking of intermittent leave

or leave on a reduced leave schedule, or leave near the end of

an academic term (semester), by instructional employees. ‘‘Instructional employees’’ are those whose principal function is to teach

and instruct students in a class, a small group, or an individual

setting. This term includes not only teachers, but also athletic

coaches, driving instructors, and special education assistants such

as signers for the hearing impaired. It does not include, and the

special rules do not apply to, teacher assistants or aides who do

not have as their principal job actual teaching or instructing, nor

does it include auxiliary personnel such as counselors, psychologists,

or curriculum specialists. It also does not include cafeteria workers,

maintenance workers, or bus drivers.

(d) Special rules which apply to restoration to an equivalent

position apply to all employees of local educational agencies.

§ 825.601 What limitations apply to the taking of intermittent

leave or leave on a reduced leave schedule?

(a) Leave taken for a period that ends with the school year

and begins the next semester is leave taken consecutively rather

than intermittently. The period during the summer vacation when

the employee would not have been required to report for duty

is not counted against the employee’s FMLA leave entitlement.

An instructional employee who is on FMLA leave at the end of

the school year must be provided with any benefits over the summer

vacation that employees would normally receive if they had been

working at the end of the school year.

(1) If an eligible instructional employee needs intermittent

leave or leave on a reduced leave schedule to care for a family

member, or for the employee’s own serious health condition,

which is foreseeable based on planned medical treatment, and

the employee would be on leave for more than 20 percent

of the total number of working days over the period the leave

would extend, the employing office may require the employee

to choose either to:

(i) Take leave for a period or periods of a particular

duration, not greater than the duration of the planned

treatment; or

(ii) Transfer temporarily to an available alternative

position for which the employee is qualified, which has

equivalent pay and benefits and which better accommodates recurring periods of leave than does the employee’s

regular position.

(2) These rules apply only to a leave involving more than

20 percent of the working days during the period over which

the leave extends. For example, if an instructional employee

who normally works five days each week needs to take two

days of FMLA leave per week over a period of several weeks,

the special rules would apply. Employees taking leave which

constitutes 20 percent or less of the working days during the
S. Con. Res. 51—54

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. See § 825.207(h).

§ 825.602 What limitations apply to the taking of leave near

the end of an academic term?

(a) There are also different rules for instructional employees

who begin leave more than five weeks before the end of a term,

less than five weeks before the end of a term, and less than

three weeks before the end of a term. Regular rules apply except

in circumstances when:

(1) An instructional employee begins leave more than five

weeks before the end of a term. The employing office may

require the employee to continue taking leave until the end

of the term if—

(i) the leave will last at least three weeks, and

(ii) the employee would return to work during the

three-week period before the end of the term.

(2) The employee begins leave for a purpose other than

the employee’s own serious health condition during the fiveweek period before the end of a term. The employing office

may require the employee to continue taking leave until the

end of the term if—

(i) the leave will last more than two weeks, and

(ii) the employee would return to work during the

two-week period before the end of the term.

(3) The employee begins leave for a purpose other than

the employee’s own serious health condition during the threeweek period before the end of a term, and the leave will

last more than five working days. The employing office may

require the employee to continue taking leave until the end

of the term.

(b) For purposes of these provisions, ‘‘academic term’’ means

the school semester, which typically ends near the end of the

calendar year and the end of spring each school year. In no case

may a school have more than two academic terms or semesters

each year for purposes of FMLA as made applicable by the CAA.

An example of leave falling within these provisions would be where

an employee plans two weeks of leave to care for a family member

which will begin three weeks before the end of the term. In that

situation, the employing office could require the employee to stay

out on leave until the end of the term.
S. Con. Res. 51—55

§ 825.603 Is all leave taken during ‘‘periods of a particular

duration’’ counted against the FMLA leave

entitlement?

(a) If an employee chooses to take leave for ‘‘periods of a

particular duration’’ in the case of intermittent or reduced schedule

leave, the entire period of leave taken will count as FMLA leave.

(b) In the case of an employee who is required to take leave

until the end of an academic term, only the period of leave until

the employee is ready and able to return to work shall be charged

against the employee’s FMLA leave entitlement. The employing

office has the option not to require the employee to stay on leave

until the end of the school term. Therefore, any additional leave

required by the employing office to the end of the school term

is not counted as FMLA leave; however, the employing office shall

be required to maintain the employee’s group health insurance

and restore the employee to the same or equivalent job including

other benefits at the conclusion of the leave.

§ 825.604 What special rules apply to restoration to ‘‘an

equivalent position’’?

The determination of how an employee is to be restored to

‘‘an equivalent position’’ upon return from FMLA leave will be

made on the basis of ‘‘established school board policies and practices,

private school policies and practices, and collective bargaining

agreements’’. The ‘‘established policies’’ and collective bargaining

agreements used as a basis for restoration must be in writing,

must be made known to the employee prior to the taking of FMLA

leave, and must clearly explain the employee’s restoration rights

upon return from leave. Any established policy which is used as

the basis for restoration of an employee to ‘‘an equivalent position’’

must provide substantially the same protections as provided in

the FMLA, as made applicable by the CAA, for reinstated employees. See § 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—HOW DO OTHER LAWS, EMPLOYING OFFICE PRACTICES, AND COLLECTIVE BARGAINING AGREEMENTS AFFECT EMPLOYEE

RIGHTS UNDER THE FMLA AS MADE APPLICABLE BY THE CAA?

§ 825.700 What if an employing office provides more generous benefits than required by FMLA as made

applicable by the CAA?

(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
S. Con. Res. 51—56

COBRA or 5 U.S.C. 8905a, whichever is applicable), to the additional leave period not covered by FMLA. If an employee takes

paid or unpaid leave and the employing office does not designate

the leave as FMLA leave, the leave taken does not count against

an employee’s FMLA entitlement.

(b) Nothing in the FMLA, as made applicable by the CAA,

prevents an employing office from amending existing leave and

employee benefit programs, provided they comply with FMLA as

made applicable by the CAA. However, nothing in the FMLA,

as made applicable by the CAA, is intended to discourage employing

offices from adopting or retaining more generous leave policies.

(c) [Reserved].

§ 825.701 [Reserved]

§ 825.702 How does FMLA affect anti-discrimination laws as

applied by section 201 of the CAA?

(a) Nothing in FMLA modifies or affects any applicable law

prohibiting discrimination on the basis of race, religion, color,

national origin, sex, age, or disability (e.g., title VII of the Civil

Rights Act of 1964, as amended by the Pregnancy Discrimination

Act), as made applicable by the CAA. FMLA’s legislative history

explains that FMLA is ‘‘not intended to modify or affect the

Rehabilitation Act of 1973, as amended, the regulations concerning

employment which have been promulgated pursuant to that statute,

or the Americans with Disabilities Act of 1990, or the regulations

issued under that Act. Thus, the leave provisions of the [FMLA]

are wholly distinct from the reasonable accommodation obligations

of employers covered under the [ADA] * * * or the Federal government itself. The purpose of the FMLA is to make leave available

to eligible employees and employing offices within its coverage,

and not to limit already existing rights and protection’’. S. Rep.

No. 3, 103d Cong., 1st Sess. 38 (1993). An employing office must

therefore provide leave under whichever statutory provision provides the greater rights to employees.

(b) If an employee is a qualified individual with a disability

within the meaning of the Americans with Disabilities Act (ADA),

the employing office must make reasonable accommodations, etc.,

barring undue hardship, in accordance with the ADA. At the same

time, the employing office must afford an employee his or her

FMLA rights. ADA’s ‘‘disability’’ and FMLA’s ‘‘serious health condition’’ are different concepts, and must be analyzed separately. FMLA

entitles eligible employees to 12 weeks of leave in any 12-month

period, whereas the ADA allows an indeterminate amount of leave,

barring undue hardship, as a reasonable accommodation. FMLA

requires employing offices to maintain employees’ group health

plan coverage during FMLA leave on the same conditions as coverage would have been provided if the employee had been continuously employed during the leave period, whereas ADA does not

require maintenance of health insurance unless other employees

receive health insurance during leave under the same circumstances.

(c)(1) A reasonable accommodation under the ADA might be

accomplished by providing an individual with a disability with

a part-time job with no health benefits, assuming the employing

office did not ordinarily provide health insurance for part-time

employees. However, FMLA would permit an employee to work

a reduced leave schedule until the equivalent of 12 workweeks
S. Con. Res. 51—57

of leave were used, with group health benefits maintained during

this period. FMLA permits an employing office to temporarily transfer an employee who is taking leave intermittently or on a reduced

leave schedule to an alternative position, whereas the ADA allows

an accommodation of reassignment to an equivalent, vacant position

only if the employee cannot perform the essential functions of

the employee’s present position and an accommodation is not possible in the employee’s present position, or an accommodation in

the employee’s present position would cause an undue hardship.

The examples in the following paragraphs of this section demonstrate how the two laws would interact with respect to a qualified

individual with a disability.

(2) A qualified individual with a disability who is also an

‘‘eligible employee’’ entitled to FMLA leave requests 10 weeks of

medical leave as a reasonable accommodation, which the employing

office grants because it is not an undue hardship. The employing

office advises the employee that the 10 weeks of leave is also

being designated as FMLA leave and will count towards the employee’s FMLA leave entitlement. This designation does not prevent

the parties from also treating the leave as a reasonable accommodation and reinstating the employee into the same job, as required

by the ADA, rather than an equivalent position under FMLA,

if that is the greater right available to the employee. At the same

time, the employee would be entitled under FMLA to have the

employing office maintain group health plan coverage during the

leave, as that requirement provides the greater right to the

employee.

(3) If the same employee needed to work part-time (a reduced

leave schedule) after returning to his or her same job, the employee

would still be entitled under FMLA to have group health plan

coverage maintained for the remainder of the two-week equivalent

of FMLA leave entitlement, notwithstanding an employing office

policy that part-time employees do not receive health insurance.

This employee would be entitled under the ADA to reasonable

accommodations to enable the employee to perform the essential

functions of the part-time position. In addition, because the

employee is working a part-time schedule as a reasonable accommodation, the employee would be shielded from FMLA’s provision

for temporary assignment to a different alternative position. Once

the employee has exhausted his or her remaining FMLA leave

entitlement while working the reduced (part-time) schedule, if the

employee is a qualified individual with a disability, and if the

employee is unable to return to the same full-time position at

that time, the employee might continue to work part-time as a

reasonable accommodation, barring undue hardship; the employee

would then be entitled to only those employment benefits ordinarily

provided by the employing office to part-time employees.

(4) At the end of the FMLA leave entitlement, an employing

office is required under FMLA to reinstate the employee in the

same or an equivalent position, with equivalent pay and benefits,

to that which the employee held when leave commenced. The

employing office’s FMLA obligations would be satisfied if the

employing office offered the employee an equivalent full-time position. If the employee were unable to perform the essential functions

of that equivalent position even with reasonable accommodation,

because of a disability, the ADA may require the employing office

to make a reasonable accommodation at that time by allowing
S. Con. Res. 51—58

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(d)(2).

If the employee returning from the workers’ compensation injury

is a qualified individual with a disability, he or she will have

rights under the ADA.

(e) If an employing office requires certifications of an employee’s

fitness for duty to return to work, as permitted by FMLA under

a uniform policy, it must comply with the ADA requirement that

a fitness for duty physical be job-related and consistent with business necessity.

(f) Under title VII of the Civil Rights Act of 1964, as amended

by the Pregnancy Discrimination Act, and as made applicable by

the CAA, an employing office should provide the same benefits

for women who are pregnant as the employing office provides to

other employees with short-term disabilities. Because title VII does

not require employees to be employed for a certain period of time

to be protected, an employee employed for less than 12 months

by any employing office (and, therefore, not an ‘‘eligible’’ employee

under FMLA, as made applicable by the CAA) may not be denied

maternity leave if the employing office normally provides shortterm disability benefits to employees with the same tenure who

are experiencing other short-term disabilities.

(g) For further information on Federal anti-discrimination laws

applied by section 201 of the CAA (2 U.S.C. 1311), including title

VII, the Rehabilitation Act, and the ADA, individuals are encouraged to contact the Office of Compliance.

SUBPART H—DEFINITIONS

§ 825.800 Definitions.

For purposes of this part:

ADA means the Americans With Disabilities Act (42 U.S.C.

12101 et seq.).

CAA means the Congressional Accountability Act of 1995 (Pub.

Law 104–1, 109 Stat. 3, 2 U.S.C. 1301 et seq.).
S. Con. Res. 51—59

COBRA means the continuation coverage requirements of title

X of the Consolidated Omnibus Budget Reconciliation Act of 1986

(Pub. Law 99–272, title X, section 10002; 100 Stat. 227; as amended;

29 U.S.C. 1161–1168).

Continuing treatment means: A serious health condition involving continuing treatment by a health care provider includes any

one or more of the following:

(1) A period of incapacity (i.e., inability to work, attend

school or perform other regular daily activities due to the

serious health condition, treatment therefor, or recovery therefrom) of more than three consecutive calendar days, and any

subsequent treatment or period of incapacity relating to the

same condition, that also involves:

(i) Treatment two or more times by a health care

provider, by a nurse or physician’s assistant under direct

supervision of a health care provider, or by a provider

of health care services (e.g., physical therapist) under

orders of, or on referral by, a health care provider; or

(ii) Treatment by a health care provider on at least

one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.

(2) Any period of incapacity due to pregnancy, or for prenatal care.

(3) Any period of incapacity or treatment for such incapacity

due to a chronic serious health condition. A chronic serious

health condition is one which:

(i) Requires periodic visits for treatment by a health

care provider, or by a nurse or physician’s assistant under

direct supervision of a health care provider;

(ii) Continues over an extended period of time (including recurring episodes of a single underlying condition);

and

(iii) May cause episodic rather than a continuing period

of incapacity (e.g., asthma, diabetes, epilepsy, etc.).

(4) A period of incapacity which is permanent or longterm due to a condition for which treatment may not be effective. The employee or family member must be under the

continuing supervision of, but need not be receiving active

treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

(5) Any period of absence to receive multiple treatments

(including any period of recovery therefrom) by a health care

provider or by a provider of health care services under orders

of, or on referral by, a health care provider, either for restorative surgery after an accident or other injury, or for a condition

that would likely result in a period of incapacity of more than

three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation,

etc.), severe arthritis (physical therapy), kidney disease (dialysis).

Covered employee—The term ‘‘covered employee’’, as defined

in the CAA, means any employee of—(1) the House of Representatives; (2) the Senate; (3) the Capitol Guide Service; (4) the Capitol

Police; (5) the Congressional Budget Office; (6) the Office of the

Architect of the Capitol; (7) the Office of the Attending Physician;

(8) the Office of Compliance; or (9) the Office of Technology Assessment.
S. Con. Res. 51—60

Eligible employee—The term ‘‘eligible employee’’, as defined

in the CAA, means a covered employee who has been employed

in any employing office for 12 months and for at least 1,250 hours

of employment during the previous 12 months.

Employ means to suffer or permit to work.

Employee means an employee as defined in the CAA and

includes an applicant for employment and a former employee.

Employee employed in an instructional capacity: See Teacher.

Employee of the Capitol Police—The term ‘‘employee of the

Capitol Police’’ includes any member or officer of the Capitol Police.

Employee of the House of Representatives—The term ‘‘employee

of the House of Representatives’’ includes an individual occupying

a position the pay for which is disbursed by the Clerk of the

House of Representatives, or another official designated by the

House of Representatives, or any employment position in an entity

that is paid with funds derived from the clerk-hire allowance of

the House of Representatives but not any such individual employed

by any entity listed in subparagraphs (3) through (9) under ‘‘covered

employee’’ above.

Employee of the Office of the Architect of the Capitol—The

term ‘‘employee of the Office of the Architect of the Capitol’’ includes

any employee of the Office of the Architect of the Capitol, the

Botanic Garden, or the Senate Restaurants.

Employee of the Senate—The term ‘‘employee of the Senate’’

includes any employee whose pay is disbursed by the Secretary

of the Senate, but not any such individual employed by any entity

listed in subparagraphs (3) through (9) under ‘‘covered employee’’

above.

Employing Office—The term ‘‘employing office’’, as defined in

the CAA, means—

(1) the personal office of a Member of the House of Representatives or of a Senator;

(2) a committee of the House of Representatives or the

Senate or a joint committee;

(3) any other office headed by a person with the final

authority to appoint, hire, discharge, and set the terms, conditions, or privileges of the employment of an employee of the

House of Representatives or the Senate; or

(4) the Capitol Guide Board, the Capitol Police Board,

the Congessional Budget Office, the Office of the Architect

of the Capitol, the Office of the Attending Physician, the Office

of Compliance, and the Office of Technology Assessment.

Employment benefits means all benefits provided or made available to employees by an employing office, including group life insurance, health insurance, disability insurance, sick leave, annual

leave, educational benefits, and pensions, regardless of whether

such benefits are provided by a practice or written policy of an

employing office or through an employee benefit plan. The term

does not include non-employment related obligations paid by

employees through voluntary deductions such as supplemental

insurance coverage. (See § 825.209(a)).

FLSA means the Fair Labor Standards Act (29 U.S.C. 201

et seq.).

FMLA means the Family and Medical Leave Act of 1993, Public

Law 103–3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et

seq.).
S. Con. Res. 51—61

Group health plan means the Federal Employees Health Benefits Program and any other plan of, or contributed to by, an employing office (including a self-insured plan) to provide health care

(directly or otherwise) to the employing office’s employees, former

employees, or the families of such employees or former employees.

For purposes of FMLA, as made applicable by the CAA, the term

‘‘group health plan’’ shall not include an insurance program providing health coverage under which employees purchase individual

policies from insurers provided that—

(1) no contributions are made by the employing office;

(2) participation in the program is completely voluntary

for employees;

(3) the sole functions of the employing office with respect

to the program are, without endorsing the program, to permit

the insurer to publicize the program to employees, to collect

premiums through payroll deductions and to remit them to

the insurer;

(4) the employing office receives no consideration in the

form of cash or otherwise in connection with the program,

other than reasonable compensation, excluding any profit, for

administrative services actually rendered in connection with

payroll deduction; and

(5) the premium charged with respect to such coverage

does not increase in the event the employment relationship

terminates.

Health care provider means:

(1) A doctor of medicine or osteopathy who is authorized

to practice medicine or surgery by the State in which the

doctor practices; or

(2) Podiatrists, dentists, clinical psychologists, optometrists,

and chiropractors (limited to treatment consisting of manual

manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist) authorized to practice in the State

and performing within the scope of their practice as defined

under State law; and

(3) Nurse practitioners, nurse-midwives and clinical social

workers who are authorized to practice under State law and

who are performing within the scope of their practice as defined

under State law; and

(4) Christian Science practitioners listed with the First

Church of Christ, Scientist in Boston, Massachusetts.

(5) Any health care provider from whom an employing

office or a group health plan’s benefits manager will accept

certification of the existence of a serious health condition to

substantiate a claim for benefits.

(6) A health care provider as defined above who practices

in a country other than the United States, who is licensed

to practice in accordance with the laws and regulations of

that country.

‘‘Incapable of self-care’’ means that the individual requires

active assistance or supervision to provide daily self-care in several

of the ‘‘activities of daily living’’ (ADLs) or ‘‘instrumental activities

of daily living’’ (IADLs). Activities of daily living include adaptive

activities such as caring appropriately for one’s grooming and

hygiene, bathing, dressing and eating. Instrumental activities of

daily living include cooking, cleaning, shopping, taking public
S. Con. Res. 51—62

transportation, paying bills, maintaining a residence, using telephones and directories, using a post office, etc.

Instructional employee: See Teacher.

Intermittent leave means leave taken in separate periods of

time due to a single illness or injury, rather than for one continuous

period of time, and may include leave of periods from an hour

or more to several weeks. Examples of intermittent leave would

include leave taken on an occasional basis for medical appointments,

or leave taken several days at a time spread over a period of

six months, such as for chemotherapy.

Mental disability: See Physical or mental disability.

Office of Compliance means the independent office established

in the legislative branch under section 301 of the CAA (2 U.S.C.

1381).

Parent means the biological parent of an employee or an

individual who stands or stood in loco parentis to an employee

when the employee was a child.

Physical or mental disability means a physical or mental

impairment that substantially limits one or more of the major

life activities of an individual. See the Americans with Disabilities

Act (ADA), as made applicable by section 201(a)(3) of the CAA

(2 U.S.C. 1311(a)(3)).

Reduced leave schedule means a leave schedule that reduces

the usual number of hours per workweek, or hours per workday,

of an employee.

Secretary means the Secretary of Labor or authorized representative.

Serious health condition entitling an employee to FMLA leave

means:

(1) An illness, injury, impairment, or physical or mental

condition that involves:

(i) Inpatient care (i.e., an overnight stay) in a hospital,

hospice, or residential medical care facility, including any

period of incapacity (for purposes of this section, defined

to mean inability to work, attend school or perform other

regular daily activities due to the serious health condition,

treatment therefor, or recovery therefrom), or any subsequent treatment in connection with such inpatient care;

or

(ii) Continuing treatment by a health care provider.

A serious health condition involving continuing treatment

by a health care provider includes:

(A) A period of incapacity (i.e., inability to work,

attend school or perform other regular daily activities

due to the serious health condition, treatment therefor,

or recovery therefrom) of more than three consecutive

calendar days, including any subsequent treatment or

period of incapacity relating to the same condition,

that also involves:

(1) Treatment two or more times by a health

care provider, by a nurse or physician’s assistant

under direct supervision of a health care provider,

or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by,

a health care provider; or

(2) Treatment by a health care provider on

at least one occasion which results in a regimen
S. Con. Res. 51—63

of continuing treatment under the supervision of

the health care provider.

(B) Any period of incapacity due to pregnancy,

or for prenatal care.

(C) Any period of incapacity or treatment for such

incapacity due to a chronic serious health condition.

A chronic serious health condition is one which:

(1) Requires periodic visits for treatment by

a health care provider, or by a nurse or physician’s

assistant under direct supervision of a health care

provider;

(2) Continues over an extended period of time

(including recurring episodes of a single underlying

condition); and

(3) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes,

epilepsy, etc.).

(D) A period of incapacity which is permanent

or long-term due to a condition for which treatment

may not be effective. The employee or family member

must be under the continuing supervision of, but need

not be receiving active treatment by, a health care

provider. Examples include Alzheimer’s, a severe

stroke, or the terminal stages of a disease.

(E) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by

a health care provider or by a provider of health care

services under orders of, or on referral by, a health

care provider, either for restorative surgery after an

accident or other injury, or for a condition that would

likely result in a period of incapacity of more than

three consecutive calendar days in the absence of medical intervention or treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical therapy), kidney disease (dialysis).

(2) Treatment for purposes of paragraph (1) of this definition includes (but is not limited to) examinations to determine

if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations,

eye examinations, or dental examinations. Under paragraph

(1)(ii)(A)(2) of this definition, a regimen of continuing treatment

includes, for example, a course of prescription medication (e.g.,

an antibiotic) or therapy requiring special equipment to resolve

or alleviate the health condition (e.g., oxygen). A regimen of

continuing treatment that includes the taking of over-thecounter medications such as aspirin, antihistamines, or salves;

or bed-rest, drinking fluids, exercise, and other similar activities

that can be initiated without a visit to a health care provider,

is not, by itself, sufficient to constitute a regimen of continuing

treatment for purposes of FMLA leave.

(3) Conditions for which cosmetic treatments are administered (such as most treatments for acne or plastic surgery)

are not ‘‘serious health conditions’’ unless inpatient hospital

care is required or unless complications develop. Ordinarily,

unless complications arise, the common cold, the flu, ear aches,

upset stomach, minor ulcers, headaches other than migraine,

routine dental or orthodontia problems, periodontal disease,
S. Con. Res. 51—64

etc., are examples of conditions that do not meet the definition

of a serious health condition and do not qualify for FMLA

leave. Restorative dental or plastic surgery after an injury

or removal of cancerous growths are serious health conditions

provided all the other conditions of this regulation are met.

Mental illness resulting from stress or allergies may be serious

health conditions, but only if all the conditions of this section

are met.

(4) Substance abuse may be a serious health condition

if the conditions of this section are met. However, FMLA leave

may only be taken for treatment for substance abuse by a

health care provider or by a provider of health care services

on referral by a health care provider. On the other hand,

absence because of the employee’s use of the substance, rather

than for treatment, does not qualify for FMLA leave.

(5) Absences attributable to incapacity under paragraphs

(1)(ii) (B) or (C) of this definition qualify for FMLA leave

even though the employee or the immediate family member

does not receive treatment from a health care provider during

the absence, and even if the absence does not last more than

three days. For example, an employee with asthma may be

unable to report for work due to the onset of an asthma attack

or because the employee’s health care provider has advised

the employee to stay home when the pollen count exceeds

a certain level. An employee who is pregnant may be unable

to report to work because of severe morning sickness.

Son or daughter means a biological, adopted, or foster child,

a stepchild, a legal ward, or a child of a person standing in loco

parentis, who is under 18 years of age or 18 years of age or

older and incapable of self-care because of a mental or physical

disability.

Spouse means a husband or wife as defined or recognized

under State law for purposes of marriage in the State where the

employee resides, including common law marriage in States where

it is recognized.

State means any State of the United States or the District

of Columbia or any Territory or possession of the United States.

Teacher (or employee employed in an instructional capacity,

or instructional employee) means an employee employed principally

in an instructional capacity by an educational agency or school

whose principal function is to teach and instruct students in a

class, a small group, or an individual setting, and includes athletic

coaches, driving instructors, and special education assistants such

as signers for the hearing impaired. The term does not include

teacher assistants or aides who do not have as their principal

function actual teaching or instructing, nor auxiliary personnel

such as counselors, psychologists, curriculum specialists, cafeteria

workers, maintenance workers, bus drivers, or other primarily noninstructional employees.
S. Con. Res. 51—65

APPENDIX A TO PART 825—[RESERVED]

APPENDIX B TO PART 825—CERTIFICATION OF PHYSICIAN OR

PRACTITIONER

CERTIFICATION OF HEALTH CARE PROVIDER

(FAMILY AND MEDICAL LEAVE ACT OF 1993 AS MADE APPLICABLE BY THE

CONGRESSIONAL ACCOUNTABILITY ACT OF 1995)

1. Employee’s Name:

2. Patient’s Name (if different from employee):

3. The attached sheet describes what is meant by a ‘‘serious health condition’’ under

the Family and Medical Leave Act as made applicable by the Congressional Accountability Act. Does the patient’s condition 1 qualify under any of the categories

described? If so, please check the applicable category.

(1) llll

(2) llll

(3) llll

(4) llll

(5) llll

(6) llll, or

None of the above llll

4. Describe the medical facts which support your certification, including a brief

statement as to how the medical facts meet the criteria of one of these categories:

5.a. State the approximate date the condition commenced, and the probable duration

of the condition (and also the probable duration of the patient’s present incapacity 2

if different):

b. Will it be necessary for the employee to take work only intermittently or to work

on a less than full schedule as a result of the condition (including for treatment described in Item 6 below)? llll

If yes, give probable duration:

c. If the condition is a chronic condition (condition #4) or pregnancy, state whether

the patient is presently incapacitated 2 and the likely duration and frequency of episodes of incapacity 2:

6.a. If additional treatments will be required for the condition, provide an estimate

of the probable number of such treatments:

If the patient will be absent from work or other daily activities because of treatment on an intermittent or part-time basis, also provide an estimate of the probable

number and interval between such treatments, actual or estimated dates of treatment if known, and period required for recovery if any:

b. If any of these treatments will be provided by another provider of health services

(e.g., physical therapist), please state the nature of the treatments:

c. If a regimen of continuing treatment by the patient is required under your supervision, provide a general description of such regimen (e.g., prescription drugs, physical therapy requiring special equipment):

7.a. If medical leave is required for the employee’s absence from work because of

the employee’s own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? llll

b. If able to perform some work, is the employee unable to perform any one or more

of the essential functions of the employee’s job (the employee or the employer should

supply you with information about the essential job functions)? llll If yes,

please list the essential functions the employee is unable to perform: llll

c. If neither a. nor b. applies, is it necessary for the employee to be absent from

work for treatment? llll

8.a. If leave is required to care for a family member of the employee with a serious

health condition, does the patient require assistance for basic medical or personal

needs or safety, or for transportation? llll
S. Con. Res. 51—66

b. If no, would the employee’s presence to provide psychological comfort be beneficial

to the patient or assist in the patient’s recovery? llll

c. If the patient will need care only intermittently or on a part-time basis, please

indicate the probable duration of this need:

(Signature of Health Care Provider)

(Type of Practice)

(Address)

(Telephone number)

To be completed by the employee needing family leave to care for a family member:

State the care you will provide and an estimate of the period during which care

will be provided, including a schedule if leave is to be taken intermittently or if it

will be necessary for you to work less than a full schedule:

(Employee signature)

(Date)

A ‘‘Serious Health Condition’’ means an illness, injury, impairment, or physical or

mental condition that involves one of the following:

1. Hospital Care.—Inpatient care (i.e., an overnight stay) in a hospital, hospice, or

residential medical care facility, including any period of incapacity 1 or subsequent

treatment in connection with or consequent to such inpatient care.

2. Absence Plus Treatment.—A period of incapacity 2 of more than three consecutive

calendar days (including any subsequent treatment or period of incapacity 2 relating

to the same condition), that also involves:

(1) Treatment 3 two or more times by a health care provider, by a nurse or physician’s assistant under direct supervision of a health care provider, or by a provider

of health care services (e.g., physical therapist) under orders of, or on referral by,

a health care provider; or

(2) Treatment by a health care provider on at least one occasion which results

in a regimen of continuing treatment 4 under the supervision of the health care provider.

3. Pregnancy.—Any period of incapacity due to pregnancy, or for prenatal care.

4. Chronic Conditions Requiring Treatments.—A chronic condition which:

(1) Requires periodic visits for treatment by a health care provider, or by a

nurse or physician’s assistant under direct supervision of a health care provider;

(2) Continues over an extended period of time (including recurring episodes of

a single underlying condition); and

(3) May cause episodic rather than a continuing period of incapacity 2 (e.g., asthma, diabetes, epilepsy, etc.).

5. Permanent/Long-term Conditions Requiring Supervision.—A period of incapacity 2

which is permanent or long-term due to a condition for which treatment may not

be effective. The employee or family member must be under the continuing supervision of, but need not be receiving active treatment by, a health care provider. Examples include Alzheimer’s, a severe stroke, or the terminal stages of a disease.

6. Multiple Treatments (Non-Chronic Conditions).—Any period of absence to receive

multiple treatments (including any period of recovery therefrom) by a health care

provider or by a provider of health care services under orders of, or on referral by,

a health care provider, either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity 2 of more

than three consecutive calendar days in the absence of medical intervention or

treatment, such as cancer (chemotherapy, radiation, etc.), severe arthritis (physical

therapy), kidney disease (dialysis).
S. Con. Res. 51—67

FOOTNOTES

1 Here and elsewhere on this form, the information sought relates only to the condition for

which the employee is taking FMLA leave. 2 ‘‘Incapacity’’, for purposes of FMLA as make applicable by the CAA, is defined to mean inability to work, attend school or perform other regular daily activities due to the serious health

condition, treatment therefore, or recovery therefrom. 3 Treatment includes examinations to determine if a serious health condition exists and evaluations of the condition. Treatment does not include routine physical examinations, eye examinations, or dental examinations. 4 A regimen of continuing treatment includes, for example, a course of prescription medication

(e.g., an antibiotic) or therapy requiring special equipment to resolve or alleviate the health condition. A regimen of treatment does not include the taking of over-the-counter medications such

as aspirin, antihistamines, or salves; or bed-rest, drinking fluids, exercise, and other similar activities that can be initiated without a visit to a health care provider.

APPENDIX C TO PART 825—[RESERVED]

APPENDIX D TO PART 825—PROTOTYPE NOTICE: EMPLOYING OFFICE

RESPONSE TO EMPLOYEE REQUEST FOR FAMILY AND MEDICAL LEAVE

EMPLOYING OFFICE RESPONSE TO EMPLOYEE REQUEST FOR FAMILY OR MEDICAL

LEAVE

(OPTIONAL USE FORM—SEE § 825.301(B)(1) OF THE REGULATIONS OF THE OFFICE OF

COMPLIANCE)

(FAMILY AND MEDICAL LEAVE ACT OF 1993, AS MADE APPLICABLE BY THE

CONGRESSIONAL ACCOUNTABILITY ACT OF 1995)

(Date)

To:llllllllll

(Employee’s name)

From:llllllllll

(Name of appropriate employing office representative)

Subject: Request for Family/Medical Leave

Onllll, (date) you notified us of your need to take family/medical leave due

to:

(Date)

The birth of your child, or the placement of a child with you for adoption or

foster care; or

A serious health condition that makes you unable to perform the essential functions of your job; or

A serious health condition affecting your spouse, child, parent, for which you

are needed to provide care.

You notified us that you need this leave beginning on llll(date) and that you

expect leave to continue until on or aboutllll (date).

Except as explained below, you have a right under the FMLA, as made applicable

by the CAA, for up to 12 weeks of unpaid leave in a 12-month period for the reasons

listed above. Also, your health benefits must be maintained during any period of unpaid leave under the same conditions as if you continued to work, and you must

be reinstated to the same or an equivalent job with the same pay, benefits, and

terms and conditions of employment on your return from leave. If you do not return

to work following FMLA leave for a reason other than: (1) the continuation, recurrence, or onset of a serious health condition which would entitle you to FMLA leave;

or (2) other circumstances beyond your control, you may be required to reimburse

us for our share of health insurance premiums paid on your behalf during your

FMLA leave.

This is to inform you that: (check appropriate boxes; explain where indicated)

1. You are b eligible b not eligible for leave under the FMLA as made applicable by the CAA.

2. The requested leave b will b will not be counted against your annual FMLA

leave entitlement.

3. You b will b will not be required to furnish medical certification of a serious

health condition. If required, you must furnish certification byllll (insert date)
S. Con. Res. 51—68

(must be at least 15 days after you are notified of this requirement) or we may delay

the commencement of your leave until the certification is submitted.

4. You may elect to substitute accrued paid leave for unpaid FMLA leave. We b

will b will not require that you substitute accrued paid leave for unpaid FMLA

leave. If paid leave will be used the following conditions will apply: (Explain)

5(a). If you normally pay a portion of the premiums for your health insurance, these

payments will continue during the period of FMLA leave. Arrangements for payment have been discussed with you and it is agreed that you will make premium

payments as follows: (Set forth dates, e.g., the 10th of each month, or pay periods,

etc. that specifically cover the agreement with the employee.).

(b). You have a minimum 30-day (or, indicate longer period, if applicable) grace period in which to make premium payments. If payment is not made timely, your

group health insurance may be cancelled: Provided, That we notify you in writing

at least 15 days before the date that your health coverage will lapse, or, at our option, we may pay your share of the premiums during FMLA leave, and recover these

payments from you upon your return to work. We b will b will not pay your

share of health insurance premiums while you are on leave.

(c). We b will b will not do the same with other benefits (e.g., life insurance,

disability insurance, etc.) while you are on FMLA leave. If we do pay your premiums

for other benefits, when you return from leave you b will b will not be expected

to reimburse us for the payments made on your behalf.

6. You b will b will not be required to present a fitness-for-duty certificate

prior to being restored to employment. If such certification is required but not received, your return to work may be delayed until the certification is provided.

7(a). You b are b are not a ‘‘key employee’’ as described in § 825.218 of the Office of Compliance’s FMLA regulations. If you are a ‘‘key employee’’, restoration to

employment may be denied following FMLA leave on the grounds that such restoration will cause substantial and grievous economic injury to us.

(b). We b have b have not determined that restoring you to employment at the

conclusion of FMLA leave will cause substantial and grievous economic harm to us.

(Explain (a) and/or (b) below. See § 825.219 of the Office of Compliance’s FMLA regulations.)

8. While on leave, you b will b will not be required to furnish us with periodic

reports every llll (indicate interval of periodic reports, as appropriate for the

particular leave situation) of your status and intent to return to work (see § 825.309

of the Office of Compliance’s FMLA regulations). If the circumstances of your leave

change and you are able to return to work earlier than the date indicated on the

reverse side of this form, you b will b will not be required to notify us at least

two work days prior to the date you intend to report for work.

9. You b will b will not be required to furnish recertification relating to a serious health condition. (Explain below, if necessary, including the interval between

certifications as prescribed in § 825.308 of the Office of Compliance’s FMLA regulations.)

Subtitle C—Regulations Relating to the

Employing Offices Other Than Those of

the Senate and the House of Representatives—C Series

CHAPTER III—REGULATIONS RELATING TO THE

RIGHTS AND PROTECTIONS UNDER THE FAIR LABOR

STANDARDS ACT OF 1938

PART C501—GENERAL PROVISIONS

Sec.

C501.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

C501.101 Purpose and scope.

C501.102 Definitions.

C501.103 Coverage.
S. Con. Res. 51—69

C501.104 Administrative authority.

C501.105 Effect of Interpretations of the Labor Department.

C501.106 Application of the Portal-to-Portal Act of 1947.

C501.107 [Reserved].

§ C501.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the parts of the Secretary of Labor

Regulations at Title 29 of the Code of Federal Regulations under

the FLSA with the corresponding parts of the Office of Compliance

(OC) Regulations under section 203 of the CAA:

Secretary of Labor regulations OC regulations

Part 531 Wage payments under the Fair Labor Standards Act of

1938 ..................................................................................................... Part C531

Part 541 Defining and delimiting the terms ‘‘bona fide executive’’,

‘‘administrative’’, and ‘‘professional’’ employees .............................. Part C541

Part 547 Requirements of a ‘‘Bona fide thrift or savings plan’’ ........ Part C547

Part 553 Application of the FLSA to employees of public agencies Part C553

Part 570 Child labor ............................................................................. Part C570

SUBPART A—MATTERS OF GENERAL APPLICABILITY

§ C501.101 Purpose and scope

(a) Section 203 of the Congressional Accountability Act (CAA)

provides that the rights and protections of subsections (a)(1) and

(d) of section 6, section 7, and section 12(c) of the Fair Labor

Standards Act of 1938 (FLSA) (29 U.S.C. §§ 206(a)(1) and (d), 207,

212(c)) shall apply to covered employees of the legislative branch

of the Federal Government. Section 301 of the CAA creates the

Office of Compliance as an independent office in the legislative

branch for enforcing the rights and protections of the FLSA, as

applied by the CAA.

(b) The FLSA as applied by the CAA provides for minimum

standards for both wages and overtime entitlements, and delineates

administrative procedures by which covered worktime must be compensated. Included also in the FLSA are provisions related to child

labor, equal pay, and portal-to-portal activities. In addition, the

FLSA exempts specified employees or groups of employees from

the application of certain of its provisions.

(c) This chapter contains the substantive regulations with

respect to the FLSA that the Board of Directors of the Office

of Compliance has adopted pursuant to sections 203(c) and 304

of the CAA, which requires that the Board promulgate regulations

that are ‘‘the same as substantive regulations promulgated by the

Secretary of Labor to implement the statutory provisions referred

to in subsection (a) [of § 203 of the CAA] except insofar as the

Board may determine, for good cause shown*** that a modification of such regulations would be more effective for the implementation of the rights and protections under this section’’.

(d) These regulations are issued by the Board of Directors,

Office of Compliance, pursuant to sections 203(c) and 304 of the

CAA, which directs the Board to promulgate regulations implementing section 203 that are ‘‘the same as substantive regulations

promulgated by the Secretary of Labor to implement the statutory

provisions referred to in subsection (a) [of section 203 of the CAA]

except insofar as the Board may determine, for good cause

shown*** that a modification of such regulations would be more
S. Con. Res. 51—70

effective for the implementation of the rights and protections under

this section’’. The regulations issued by the Board herein are on

all matters for which section 203 of the CAA requires regulations

to be issued. Specifically, it is the Board’s considered judgment,

based on the information available to it at the time of the promulgation of these regulations, that, with the exception of regulations

adopted and set forth herein, there are no other ‘‘substantive regulations promulgated by the Secretary of Labor to implement the

statutory provisions referred to in subsection (a) [of section 203

of the CAA]’’.

(e) In promulgating these regulations, the Board has made

certain technical and nomenclature changes to the regulations as

promulgated by the Secretary. Such changes are intended to make

the provisions adopted accord more naturally to situations in the

legislative branch. However, by making these changes, the Board

does not intend a substantive difference between these regulations

and those of the Secretary from which they are derived. Moreover,

such changes, in and of themselves, are not intended to constitute

an interpretation of the regulation or of the statutory provisions

of the CAA upon which they are based.

§ C501.102 Definitions

For purposes of this chapter:

(a) ‘‘CAA’’ means the Congressional Accountability Act of 1995

(P.L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438).

(b) ‘‘FLSA’’ or ‘‘Act’’ means the Fair Labor Standards Act of

1938, as amended (29 U.S.C. § 201 et seq.), as applied by section

203 of the CAA to covered employees and employing offices.

(c) ‘‘Covered employee’’ means any employee, including an

applicant for employment and a former employee, of the (1) the

Capitol Guide Service; (2) the Capitol Police; (3) the Congressional

Budget Office; (4) the Office of the Architect of the Capitol; (5)

the Office of the Attending Physician; (6) the Office of Compliance;

or (7) the Office of Technology Assessment, but shall not include

an intern.

(d)(1) ‘‘Employee of the Office of the Architect of the Capitol’’

includes any employee of the Architect of the Capitol, the Botanic

Garden, or the Senate Restaurants;

(2) ‘‘Employee of the Capitol Police’’ includes any member or

officer of the Capitol Police.

(e) ‘‘Employing office’’ and ‘‘employer’’ mean (1) the Capitol

Guide Service; (2) the Capitol Police; (3) the Congressional Budget

Office; (4) the Office of the Architect of the Capitol; (5) the Office

of the Attending Physician; (6) the Office of Compliance; or (7)

the Office of Technology Assessment.

(f) ‘‘Board’’ means the Board of Directors of the Office of Compliance.

(g) ‘‘Office’’ means the Office of Compliance.

(h) ‘‘Intern’’ is an individual who (a) is performing services

in an employing office as part of a demonstrated educational plan,

and (b) is appointed on a temporary basis for a period not to

exceed 12 months: Provided, That if an intern is appointed for

a period shorter than 12 months, the intern may be reappointed

for additional periods as long as the total length of the internship

does not exceed 12 months: Provided further, That the defintion

of ‘‘intern’’ does not include volunteers, fellows or pages.
S. Con. Res. 51—71

§ C501.103 Coverage

The coverage of section 203 of the CAA extends to any covered

employee of an employing office without regard to whether the

covered employee is engaged in commerce or the production of

goods for interstate commerce and without regard to size, number

of employees, amount of business transacted, or other measure.

§ C501.104 Administrative authority

(a) The Office of Compliance is authorized to administer the

provisions of section 203 of the Act with respect to any covered

employee or covered employer.

(b) The Board is authorized to promulgate substantive regulations in accordance with the provisions of sections 203(c) and 304

of the CAA.

§ C501.105 Effect of interpretations of the Department of

Labor

(a) In administering the FLSA, the Wage and Hour Division

of the Department of Labor has issued not only substantive regulations but also interpretative bulletins. Substantive regulations represent an exercise of statutorily-delegated lawmaking authority

from the legislative branch to an administrative agency. Generally,

they are proposed in accordance with the notice-and-comment procedures of the Administrative Procedure Act (APA), 5 U.S.C. § 553.

Once promulgated, such regulations are considered to have the

force and effect of law, unless set aside upon judicial review as

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law. See Batterton v. Francis, 432 U.S. 416, 425

n.9 (1977). See also 29 C.F.R. § 790.17(b) (1994). Unlike substantive

regulations, interpretative statements, including bulletins and other

releases of the Wage and Hour Division, are not issued pursuant

to the provisions of the APA and may not have the force and

effect of law. Rather, they may only constitute official interpretations of the Department of Labor with respect to the meaning

and application of the minimum wage, maximum hour, and overtime

pay requirements of the FLSA. See 29 C.F.R. § 790.17(c) (citing

Final Report of the Attorney General’s Committee on Administrative

Procedure, Senate Document No. 8, 77th Cong., 1st Sess., at p.

27 (1941)). The purpose of such statements is to make available

in one place the interpretations of the FLSA which will guide

the Secretary of Labor and the Wage and Hour Administrator

in the performance of their duties unless and until they are otherwise directed by authoritative decisions of the courts or conclude,

upon reexamination of an interpretation, that it is incorrect. The

Supreme Court has observed: ‘‘[T]he rulings, interpretations and

opinions of the Administrator under this Act, while not controlling

upon the courts by reason of their authority, do constitute a body

of experience and informed judgment to which courts and litigants

may properly resort for guidance. The weight of such a judgment

in a particular case will depend upon the thoroughness evident

in the consideration, the validity of its reasoning, its consistency

with earlier and later pronouncements, and all those factors which

give it power to persuade, if lacking power to control.’’. Skidmore

v. Swift, 323 U.S. 134, 140 (1944).

(b) Section 203(c) of the CAA provides that the substantive

regulations implementing section 203 of the CAA shall be ‘‘the

same as substantive regulations promulgated by the Secretary of
S. Con. Res. 51—72

Labor’’ except where the Board finds, for good cause shown, that

a modification would more effectively implement the rights and

protections established by the FLSA. Thus, the CAA by its terms

does not mandate that the Board adopt the interpretative statements of the Department of Labor or its Wage and Hour Division.

The Board is thus not adopting such statements as part of its

substantive regulations.

§ C501.106 Application of the Portal-to-Portal Act of 1947

(a) Consistent with section 225 of the CAA, the Portal-toPortal Act (PPA), 29 U.S.C. § § 216 and 251 et seq., is applicable

in defining and delimiting the rights and protections of the FLSA

that are prescribed by the CAA. Section 10 of the PPA, 29 U.S.C.

§ 259, provides in pertinent part: ‘‘[N]o employer shall be subject

to any liability or punishment for or on account of the failure

of the employer to pay minimum wages or overtime compensation

under the Fair Labor Standards Act of 1938, as amended, * * * if

he pleads and proves that the act or omission complained of was

in good faith in conformity with and reliance on any written

administrative regulation, order, ruling, approval or interpretation

of [the Administrator of the Wage and Hour Division of the Department of Labor] * * * or any administrative practice or enforcement

policy of such agency with respect to the class of employers to

which he belonged. Such a defense, if established shall be a bar

to the action or proceeding, notwithstanding that after such act

or omission, such administrative regulation, order, ruling, approval,

interpretation, practice or enforcement policy is modified or

rescinded or is determined by judicial authority to be invalid or

of no legal effect.’’.

(b) In defending any action or proceeding based on any act

or omission arising out of section 203 of the CAA, an employing

office may satisfy the standards set forth in subsection (a) by

pleading and proving good faith reliance upon any written administrative regulation, order, ruling, approval or interpretation, of the

Administrator of the Wage and Hour Division of the Department

of Labor: Provided, That such regulation, order, ruling, approval

or interpretation had not been superseded at the time of reliance

by any regulation, order, decision, or ruling of the Board or the

courts.

§ C501.107 [Reserved]

PART C531—WAGE PAYMENTS UNDER THE FAIR LABOR

STANDARDS ACT OF 1938

SUBPART A—PRELIMINARY MATTERS

Sec.

C531.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

C531.1 Definitions.

C531.2 Purpose and scope.

SUBPART B—DETERMINATIONS OF ‘‘REASONABLE COST’’ AND ‘‘FAIR VALUE’’; EFFECTS

OF COLLECTIVE BARGAINING AGREEMENTS

C531.3 General determinations of ‘‘reasonable cost’’.

C531.6 Effects of collective bargaining agreements.
S. Con. Res. 51—73

SUBPART A—PRELIMINARY MATTERS

§ C531.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the sections of the Secretary of Labor

Regulations at Title 29 of the Code of Federal Regulations under

the FLSA with the corresponding sections of the Office of Compliance (OC) Regulations under section 203 of the CAA:

Secretary of Labor regulations OC regulations

531.1 Definitions ................................................................................... C531.1

531.2 Purpose and scope ...................................................................... C531.2

531.3 General determinations of ‘‘reasonable cost’’ ............................ C531.3

531.6 Effects of collective bargaining agreements ............................. C531.6

§ C531.1 Definitions

(a) ‘‘Administrator’’ means the Administrator of the Wage and

Hour Division or his authorized representative. The Secretary of

Labor has delegated to the Administrator the functions vested

in him under section 3(m) of the Act.

(b) ‘‘Act’’ means the Fair Labor Standards Act of 1938, as

amended.

§ C531.2 Purpose and scope

(a) Section 3(m) of the Act defines the term ‘‘wage’’ to include

the ‘‘reasonable cost’’, as determined by the Secretary of Labor,

to an employer of furnishing any employee with board, lodging,

or other facilities, if such board, lodging, or other facilities are

customarily furnished by the employer to his employees. In addition,

section 3(m) gives the Secretary authority to determine the ‘‘fair

value’’ of such facilities on the basis of average cost to the employer

or to groups of employers similarly situated, on average value

to groups of employees, or other appropriate measures of ‘‘fair

value’’. Whenever so determined and when applicable and pertinent,

the ‘‘fair value’’ of the facilities involved shall be includable as

part of ‘‘wages’’ instead of the actual measure of the costs of those

facilities. The section provides, however, that the cost of board,

lodging, or other facilities shall not be included as part of ‘‘wages’’

if excluded therefrom by a bona fide collective bargaining agreement. Section 3(m) also provides a method for determining the

wage of a tipped employee.

(b) This part 531 contains any determinations made as to

the ‘‘reasonable cost’’ and ‘‘fair value’’ of board, lodging, or other

facilities having general application.

SUBPART B—DETERMINATIONS OF ‘‘REASONABLE COST’’ AND ‘‘FAIR

VALUE’’; EFFECTS OF COLLECTIVE BARGAINING AGREEMENTS

§ C531.3 General determinations of ‘‘reasonable cost’’

(a) The term ‘‘reasonable cost’’ as used in section 3(m) of the

Act is hereby determined to be not more than the actual cost

to the employer of the board, lodging, or other facilities customarily

furnished by him to his employees.

(b) Reasonable cost does not include a profit to the employer

or to any affiliated person.

(c) The reasonable cost to the employer of furnishing the

employee with board, lodging, or other facilities (including housing)
S. Con. Res. 51—74

is the cost of operation and maintenance including adequate depreciation plus a reasonable allowance (not more than 51⁄2 percent)

for interest on the depreciated amount of capital invested by the

employer: Provided, That if the total so computed is more than

the fair rental value (or the fair price of the commodities or facilities

offered for sale), the fair rental value (or the fair price of the

commodities or facilities offered for sale) shall be the reasonable

cost. The cost of operation and maintenance, the rate of depreciation, and the depreciated amount of capital invested by the employer

shall be those arrived at under good accounting practices. As used

in this paragraph, the term ‘‘good accounting practices’’ does not

include accounting practices which have been rejected by the

Internal Revenue Service for tax purposes, and the term ‘‘depreciation’’ includes obsolescence.

(d)(1) The cost of furnishing ‘‘facilities’’ found by the Administrator to be primarily for the benefit or convenience of the employer

will not be recognized as reasonable and may not therefore be

included in computing wages.

(2) The following is a list of facilities found by the Administrator

to be primarily for the benefit of convenience of the employer.

The list is intended to be illustrative rather than exclusive: (i)

Tools of the trade and other materials and services incidental

to carrying on the employer’s business; (ii) the cost of any construction by and for the employer; (iii) the cost of uniforms and of

their laundering, where the nature of the business requires the

employee to wear a uniform.

§ C531.6 Effects of collective bargaining agreements

(a) The cost of board, lodging, or other facilities shall not

be included as part of the wage paid to any employee to the

extent it is excluded therefrom under the terms of a bona fide

collective bargaining agreement applicable to the particular

employee.

(b) A collective bargaining agreement shall be deemed to be

‘‘bona fide’’ when pursuant to the provisions of section 7(b)(1) or

7(b)(2) of the FLSA it is made with the certified representative

of the employees under the provisions of the CAA.

PART C541—DEFINING AND DELIMITING THE TERMS ‘‘BONA

FIDE EXECUTIVE’’, ‘‘ADMINISTRATIVE’’, OR ‘‘PROFESSIONAL’’ CAPACITY (INCLUDING ANY EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL OR TEACHER IN SECONDARY SCHOOL)

SUBPART A—GENERAL REGULATIONS

Sec.

C541.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

C541.01 Application of the exemptions of section 13(a)(1) of the FLSA.

C541.1 Executive.

C541.2 Administrative.

C541.3 Professional.

C541.5b Equal pay provisions of section 6(d) of the FLSA as applied by the CAA

extend to executive, administrative, and professional employees.

C541.5d Special provisions applicable to employees of public agencies.
S. Con. Res. 51—75

SUBPART A—GENERAL REGULATIONS

§ C541.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the sections of the Secretary of Labor

Regulations at Title 29 of the Code of Federal Regulations under

the FLSA with the corresponding sections of the Office of Compliance (OC) Regulations under section 203 of the CAA:

Secretary of Labor Regulations OC Regulations

541.1 Executive ..................................................................................... C541.1

541.2 Administrative ............................................................................ C541.2

541.3 Professional ................................................................................. C541.3

541.5b Equal pay provisions of section 6(d) of the FLSA apply to

executive, administrative, and professional employees. ................. C541.5b

541.5d Special provisions applicable to employees of public agencies ....................................................................................................... C541.5d

§ C541.01 Application of the exemptions of section 13(a)(1)

of the FLSA

(a) Section 13(a)(1) of the FLSA, which provides certain exemptions for employees employed in a bona fide executive, administrative, or professional capacity (including any employee employed

in the capacity of academic administrative personnel or teacher

in a secondary school), applies to covered employees by virtue

of section 225(f)(1) of the CAA.

(b) The substantive regulations set forth in this part are

promulgated under the authority of sections 203(c) and 304 of

the CAA, which require that such regulations be the same as

the substantive regulations promulgated by the Secretary of Labor

except where the Board determines for good cause shown that

modifications would be more effective for the implementation of

the rights and protections under section 203.

§ C541.1 Executive

The term ‘‘employee employed in a bona fide execu

tive * * * capacity’’ in section 13(a)(1) of the FLSA as applied

by the CAA shall mean any employee:

(a) Whose primary duty consists of the management of an

employing office in which he is employed or of a customarily recognized department or subdivision thereof; and

(b) Who customarily and regularly directs the work of two

or more other employees therein; and

(c) Who has the authority to hire or fire other employees

or whose suggestions and recommendations as to the hiring or

firing and as to the advancement and promotion or any other

change of status of other employees will be given particular weight;

and

(d) Who customarily and regularly exercises discretionary powers; and

(e) Who does not devote more than 20 percent, or, in the

case of an employee of a retail or service establishment who does

not devote as much as 40 percent, of his hours of work in the

workweek to activities which are not directly and closely related

to the performance of the work described in paragraphs (a) through

(d) of this section: Provided, That this paragraph shall not apply
S. Con. Res. 51—76

in the case of an employee who is in sole charge of an independent

establishment or a physically separated branch establishment; and

(f) Who is compensated for his services on a salary basis at

a rate of not less than $155 per week, exclusive of board, lodging

or other facilities: Provided, That an employee who is compensated

on a salary basis at a rate of not less than $250 per week, exclusive

of board, lodging or other facilities, and whose primary duty consists

of the management of the employing office in which the employee

is employed or of a customarily recognized department or subdivision thereof, and includes the customary and regular direction

of the work of two or more other employees therein, shall be

deemed to meet all the requirements of this section.

§ C541.2 Administrative

The term ‘‘employee employed in a bona fide*** admin

istrative*** capacity’’ in section 13(a)(1) of the FLSA as applied

by the CAA shall mean any employee:

(a) Whose primary duty consists of either:

(1) The performance of office or nonmanual work directly

related to management policies or general operations of his

employer or his employer’s customers, or

(2) The performance of functions in the administration

of a school system, or educational establishment or institution,

or of a department or subdivision thereof, in work directly

related to the academic instruction or training carried on

therein; and

(b) Who customarily and regularly exercises discretion and

independent judgment; and

(c)(1) Who regularly and directly assists the head of an employing office, or an employee employed in a bona fide executive or

administrative capacity (as such terms are defined in the regulations of this subpart), or

(2) Who performs under only general supervision work along

specialized or technical lines requiring special training, experience,

or knowledge, or

(3) Who executes under only general supervision special assignments and tasks; and

(d) Who does not devote more than 20 percent, or, in the

case of an employee of a retail or service establishment who does

not devote as much as 40 percent, of his hours worked in the

workweek to activities which are not directly and closely related

to the performance of the work described in paragraphs (a) through

(c) of this section; and

(e)(1) Who is compensated for his services on a salary or fee basis at a rate of not less than $155 per week, exclusive of board,

lodging or other facilities, or

(2) Who, in the case of academic administrative personnel,

is compensated for services as required by paragraph (e)(1) of this

section, or on a salary basis which is at least equal to the entrance

salary for teachers in the school system, educational establishment

or institution by which employed: Provided, That an employee who

is compensated on a salary or fee basis at a rate of not less

than $250 per week, exclusive of board, lodging or other facilities,

and whose primary duty consists of the performance of work

described in paragraph (a) of this section, which includes work

requiring the exercise of discretion and independent judgment, shall

be deemed to meet all the requirements of this section.
S. Con. Res. 51—77

§ C541.3 Professional

The term ‘‘employee employed in a bona fide*** professional

capacity’’ in section 13(a)(1) of the FLSA as applied by the CAA

shall mean any employee:

(a) Whose primary duty consists of the performance of:

(1) Work requiring knowledge of an advance type in a

field of science or learning customarily acquired by a prolonged

course of specialized intellectual instruction and study, as

distinguished from a general academic education and from an

apprenticeship, and from training in the performance of routine

mental, manual, or physical processes, or

(2) Work that is original and creative in character in a

recognized field of artistic endeavor (as opposed to work which

can be produced by a person endowed with general manual

or intellectual ability and training), and the result of which

depends primarily on the invention, imagination, or talent of

the employee, or

(3) Teaching, tutoring, instructing, or lecturing in the activity of imparting knowledge and who is employed and engaged

in this activity as a teacher in a school system, educational

establishment or institution by which employed, or

(4) Work that requires theoretical and practical application

of highly-specialized knowledge in computer systems analysis,

programming, and software engineering, and who is employed

and engaged in these activities as a computer systems analyst,

computer programmer, software engineer, or other similarly

skilled worker in the computer software field; and

(b) Whose work requires the consistent exercise of discretion

and judgment in its performance; and

(c) Whose work is predominantly intellectual and varied in

character (as opposed to routine mental, manual, mechanical, or

physical work) and is of such character that the output produced

or the result accomplished cannot be standardized in relation to

a given period of time; and

(d) Who does not devote more than 20 percent of his hours

worked in the workweek to activities which are not an essential

part of and necessarily incident to the work described in paragraphs

(a) through (c) of this section; and

(e) Who is compensated for services on a salary or fee basis at a rate of not less than $170 per week, exclusive of board,

lodging or other facilities: Provided, That this paragraph shall not

apply in the case of an employee who is the holder of a valid

license or certificate permitting the practice of law or medicine

or any of their branches and who is actually engaged in the practice

thereof, nor in the case of an employee who is the holder of the

requisite academic degree for the general practice of medicine and

is engaged in an internship or resident program pursuant to the

practice of medicine or any of its branches, nor in the case of

an employee employed and engaged as a teacher as provided in

paragraph (a)(3) of this section: Provided further, That an employee

who is compensated on a salary or fee basis at a rate of not

less than $250 per week, exclusive of board, lodging or other facilities, and whose primary duty consists of the performance either

of work described in paragraph (a) (1), (3), or (4) of this section,

which includes work requiring the consistent exercise of discretion

and judgment, or of work requiring invention, imagination, or talent

in a recognized field of artistic endeavor, shall be deemed to meet
S. Con. Res. 51—78

all of the requirements of this section: Provided further, That the

salary or fee requirements of this paragraph shall not apply to

an employee engaged in computer-related work within the scope

of paragraph (a)(4) of this section and who is compensated on

an hourly basis at a rate in excess of 61⁄2 times the minimum

wage provided by section 6 of the FLSA as applied by the CAA.

§ C541.5b Equal pay provisions of section 6(d) of the FLSA

as applied by the CAA extend to executive,

administrative, and professional employees

The FLSA, as amended and as applied by the CAA, includes

within the protection of the equal pay provisions those employees

exempt from the minimum wage and overtime pay provisions as

bona fide executive, administrative, and professional employees

(including any employee employed in the capacity of academic

administrative personnel or teacher in elementary or secondary

schools) under section 13(a)(1) of the FLSA. Thus, for example,

where an exempt administrative employee and another employee

of the employing office are performing substantially ‘‘equal work’’,

the sex discrimination prohibitions of section 6(d) are applicable

with respect to any wage differential between those two employees.

§ C541.5d Special provisions applicable to employees of public agencies

(a) An employee of a public agency who otherwise meets the

requirement of being paid on a salary basis shall not be disqualified

from exemption under section C541.1, C541.2, or C541.3 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 workday when accrued leave is not used by an employee

because—(1) permission for its use has not been sought or has

been sought and denied; (2) accrued leave has been exhausted;

or (3) the employee chooses to use leave without pay.

(b) Deductions from the pay 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.

PART C547—REQUIREMENTS OF A ‘‘BONA FIDE THRIFT OR

SAVINGS PLAN’’

Sec.

C547.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance. C547.0 Scope and effect of part.

C547.1 Essential requirements of qualifications.

C547.2 Disqualifying provisions.

§ C547.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the sections of the Secretary of Labor

Regulations under the FLSA with the corresponding sections of
S. Con. Res. 51—79

the Office of Compliance (OC) Regulations under section 203 of

the CAA:

Secretary of Labor regulations OC regulations

547.0 Scope and effect of part .............................................................. C547.0

547.1 Essential requirements of qualifications .................................. C547.1

547.2 Disqualifying provisions ............................................................. C547.2

§ C547.0 Scope and effect of part

(a) The regulations in this part set forth the requirements

of a ‘‘bona fide thrift or savings plan’’ under section 7(e)(3)(b)

of the Fair Labor Standards Act of 1938, as amended (FLSA),

as applied by the CAA. In determining the total remuneration

for employment which section 7(e) of the FLSA requires to be

included in the regular rate at which an employee is employed,

it is not necessary to include any sums paid to or on behalf of

such employee, in recognition of services performed by him during

a given period, which are paid pursuant to a bona fide thrift

or savings plan meeting the requirements set forth herein. In the

formulation of these regulations due regard has been given to

the factors and standards set forth in section 7(e)(3)(b) of the

Act.

(b) Where a thrift or savings plan is combined in a single

program (whether in one or more documents) with a plan or trust

for providing old age, retirement, life, accident or health insurance

or similar benefits for employees, contributions made by the

employer pursuant to such thrift or savings plan may be excluded

from the regular rate if the plan meets the requirements of the

regulation in this part and the contributions made for the other

purposes may be excluded from the regular rate if they meet the

tests set forth in regulations.

§ C547.1 Essential requirements for qualifications

(a) A ‘‘bona fide thrift or savings plan’’ for the purpose of

section 7(e)(3)(b) of the FLSA as applied by the CAA is required

to meet all the standards set forth in paragraphs (b) through

(f) of this section and must not contain the disqualifying provisions

set forth in § 547.2.

(b) The thrift or savings plan constitutes a definite program

or arrangement in writing, adopted by the employer or by contract

as a result of collective bargaining and communicated or made

available to the employees, which is established and maintained,

in good faith, for the purpose of encouraging voluntary thrift or

savings by employees by providing an incentive to employees to

accumulate regularly and retain cash savings for a reasonable

period of time or to save through the regular purchase of public

or private securities.

(c) The plan specifically shall set forth the category or categories

of employees participating and the basis of their eligibility. Eligibility may not be based on such factors as hours of work, production,

or efficiency of the employees: Provided, however, That hours of

work may be used to determine eligibility of part-time or casual

employees.

(d) The amount any employee may save under the plan shall

be specified in the plan or determined in accordance with a definite

formula specified in the plan, which formula may be based on

one or more factors such as the straight-time earnings or total

earnings, base rate of pay, or length of service of the employee.
S. Con. Res. 51—80

(e) The employer’s total contribution in any year may not exceed

15 percent of the participating employees’ total earnings during

that year. In addition, the employer’s total contribution in any

year may not exceed the total amount saved or invested by the

participating employees during that year.

(f) The employer’s contributions shall be apportioned among

the individual employees in accordance with a definite formula

or method of calculation specified in the plan, which formula or

method of calculation is based on the amount saved or the length

of time the individual employee retains his savings or investment

in the plan: Provided, That no employee’s share determined in

accordance with the plan may be diminished because of any other

remuneration received by him.

§ C547.2 Disqualifying provisions

(a) No employee’s participation in the plan shall be on other

than a voluntary basis.

(b) No employee’s wages or salary shall be dependent upon

or influenced by the existence of such thrift or savings plan or

the employer’s contributions thereto.

(c) The amounts any employee may save under the plan, or

the amounts paid by the employer under the plan may not be

based upon the employee’s hours of work, production or efficiency.

PART C553—OVERTIME COMPENSATION: PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW ENFORCEMENT

AND FIRE PROTECTION; OVERTIME AND COMPENSATORY

TIME OFF FOR EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY DEPENDS UPON THE SCHEDULE OF THE HOUSE

INTRODUCTION

Sec.

C553.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance. C553.1 Definitions.

C553.2 Purpose and scope.

SUBPART C—PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW ENFORCEMENT

AND FIRE PROTECTION

C553.201 Statutory provisions: section 7(k).

C553.202 Limitations.

C553.211 Law enforcement activities.

C553.212 Twenty percent limitation on nonexempt work.

C553.213 Public agency employees engaged in both fire protection and law enforcement activities.

C553.214 Trainees.

C553.215 Ambulance and rescue service employees.

C553.216 Other exemptions.

C553.220 ‘‘Tour of duty’’ defined.

C553.221 Compensable hours of work.

C553.222 Sleep time.

C553.223 Meal time.

C553.224 ‘‘Work period’’ defined.

C553.225 Early relief.

C553.226 Training time.

C553.227 Outside employment.

C553.230 Maximum hours standards for work periods of 7 to 28 days—section 7(k).

C553.231 Compensatory time off.

C553.232 Overtime pay requirements.

C553.233 ‘‘Regular rate’’ defined.

SUBPART D—COMPENSATORY TIME OFF FOR OVERTIME EARNED BY EMPLOYEES

WHOSE WORK SCHEDULE DIRECTLY DEPENDS UPON THE SCHEDULE OF THE HOUSE

C553.301 Definition of ‘‘directly depends’’.
S. Con. Res. 51—81

C553.302 Overtime compensation and compensatory time off for an employee whose

work schedule directly depends upon the schedule of the House.

C553.303 Using compensatory time off.

C553.304 Payment of overtime compensation for accrued compensatory time off as

of termination of service.

INTRODUCTION

§ C553.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the sections of the Secretary of Labor

Regulations under the FLSA with the corresponding sections of

the Office of Compliance (OC) Regulations under section 203 of

the CAA:

Secretary of Labor regulations OC regulations

553.1 Definitions ................................................................................... C553.1

553.2 Purpose and scope ...................................................................... C553.2

553.201 Statutory provisions: section 7(k) .......................................... C553.201

553.202 Limitations .............................................................................. C553.202

553.211 Law enforcement activities .................................................... C553.211

553.212 Twenty percent limitation on nonexempt work ................... C553.212

553.213 Public agency employees engaged in both fire protection

and law enforcement activities ......................................................... C553.213

553.214 Trainees ................................................................................... C553.214

553.215 Ambulance and rescue service employees ............................ C553.215

553.216 Other exemptions .................................................................... C553.216

553.220 ‘‘Tour of duty’’ defined ............................................................ C553.220

553.221 Compensable hours of work ................................................... C553.221

553.222 Sleep time ................................................................................ C553.222

553.223 Meal time ................................................................................ C553.223

553.224 ‘‘Work period’’ defined ............................................................ C553.224

553.225 Early relief .............................................................................. C553.225

553.226 Training time .......................................................................... C553.226

553.227 Outside employment ............................................................... C553.227

553.230 Maximum hours standards for work periods of 7 to 28

days—section 7(k) .............................................................................. C553.230

553.231 Compensatory time off ........................................................... C553.231

553.232 Overtime pay requirements ................................................... C553.232

553.233 ‘‘Regular rate’’ defined ............................................................ C553.233

INTRODUCTION

§ C553.1 Definitions

(a) ‘‘Act’’ or ‘‘FLSA’’ means the Fair Labor Standards Act of

1938, as amended (52 Stat. 1060, as amended; 29 U.S.C. 201–

219), as applied by the CAA.

(b) ‘‘1985 Amendments’’ means the Fair Labor Standards

Amendments of 1985 (Pub. L. 99–150).

(c) ‘‘Public agency’’ means an employing office as the term

is defined in § 501.102 of this chapter, including the Capitol Police.

(d) Section 7(k) means the provisions of § 7(k) of the FLSA

as applied to covered employees and employing offices by § 203

of the CAA.

§ C553.2 Purpose and scope

The purpose of part C553 is to adopt with appropriate modifications the regulations of the Secretary of Labor to carry out those

provisions of the FLSA relating to public agency employees as

they are applied to covered employees and employing offices of

the CAA. In particular, these regulations apply section 7(k) as
S. Con. Res. 51—82

it relates to fire protection and law enforcement employees of public

agencies.

SUBPART C—PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW

ENFORCEMENT AND FIRE PROTECTION

§ C553.201 Statutory provisions: section 7(k)

Section 7(k) of the Act provides a partial overtime pay exemption for fire protection and law enforcement personnel (including

security personnel in correctional institutions) who are employed

by public agencies on a work period basis. This section of the

Act formerly permitted public agencies to pay overtime compensation to such employees in work periods of 28 consecutive days

only after 216 hours of work. As further set forth in § C553.230

of this part, the 216-hour standard has been replaced, pursuant

to the study mandated by the statute, by 212 hours for fire protection employees and 171 hours for law enforcement employees. In

the case of such employees who have a work period of at least

7 but less than 28 consecutive days, overtime compensation is

required when the ratio of the number of hours worked to the

number of days in the work period exceeds the ratio of 212 (or

171) hours to 28 days.

§ C553.202 Limitations

The application of § 7(k), by its terms, is limited to public

agencies, and does not apply to any private organization engaged

in furnishing fire protection or law enforcement services. This is

so even if the services are provided under contract with a public

agency.

EXEMPTION REQUIREMENTS

§ C553.211 Law enforcement activities

(a) As used in § 7(k) of the Act, the term ‘‘any

employee * * * in law enforcement activities’’ refers to any

employee (1) who is a uniformed or plainclothed member of a

body of officers and subordinates who are empowered by law to

enforce laws designed to maintain public peace and order and

to protect both life and property from accidental or willful injury,

and to prevent and detect crimes, (2) who has the power to arrest,

and (3) who is presently undergoing or has undergone or will

undergo on-the-job training and/or a course of instruction and study

which typically includes physical training, self-defense, firearm proficiency, criminal and civil law principles, investigative and law

enforcement techniques, community relations, medical aid and ethics.

(b) Employees who meet these tests are considered to be

engaged in law enforcement activities regardless of their rank,

or of their status as ‘‘trainee’’, ‘‘probationary’’, or ‘‘permanent’’, and

regardless of their assignment to duties incidental to the performance of their law enforcement activities such as equipment maintenance, and lecturing, or to support activities of the type described

in paragraph (g) of this section, whether or not such assignment

is for training or familiarization purposes, or for reasons of illness,

injury or infirmity. The term would also include rescue and ambulance service personnel if such personnel form an integral part
S. Con. Res. 51—83

of the public agency’s law enforcement activities. See section

C553.215.

(c) Typically, employees engaged in law enforcement activities

include police who are regularly employed and paid as such. Other

agency employees with duties not specifically mentioned may,

depending upon the particular facts and pertinent statutory provisions in that jurisdiction, meet the three tests described above.

If so, they will also qualify as law enforcement officers. Such employees might include, for example, any law enforcement employee

within the legislative branch concerned with keeping public peace

and order and protecting life and property.

(d) Employees who do not meet each of the three tests described

above are not engaged in ‘‘law enforcement activities’’ as that term

is used in section 7(k). Employees who normally would not meet

each of these tests include:

(1) Building inspectors (other than those defined in section

C553.213(a)),

(2) Health inspectors,

(3) Sanitarians,

(4) Civilian traffic employees who direct vehicular and

pedestrian traffic at specified intersections or other control

points,

(5) Civilian parking checkers who patrol assigned areas

for the purpose of discovering parking violations and issuing

appropriate warnings or appearance notices,

(6) Wage and hour compliance officers,

(7) Equal employment opportunity compliance officers, and

(8) Building guards whose primary duty is to protect the

lives and property of persons within the limited area of the

building.

(e) The term ‘‘any employee in law enforcement activities’’ also

includes, by express reference, ‘‘security personnel in correctional

institutions’’. Typically, such facilities may include precinct house

lockups. Employees of correctional institutions who qualify as security personnel for purposes of the section 7(k) exemption are those

who have responsibility for controlling and maintaining custody

of inmates and of safeguarding them from other inmates or for

supervising such functions, regardless of whether their duties are

performed inside the correctional institution or outside the institution. These employees are considered to be engaged in law enforcement activities regardless of their rank or of their status as

‘‘trainee’’, ‘‘probationary’’, or ‘‘permanent’’, and regardless of their

assignment to duties incidental to the performance of their law

enforcement activities, or to support activities of the type described

in paragraph (f) of this section, whether or not such assignment

is for training or familiarization purposes or for reasons of illness,

injury or infirmity.

(f) Not included in the term ‘‘employee in law enforcement

activities’’ are the so-called ‘‘civilian’’ employees of law enforcement

agencies or correctional institutions who engage in such support

activities as those performed by dispatcher, radio operators, apparatus and equipment maintenance and repair workers, janitors, clerks

and stenographers. Nor does the term include employees in correctional institutions who engage in building repair and maintenance,

culinary services, teaching, or in psychological, medical and paramedical services. This is so even though such employees may,
S. Con. Res. 51—84

when assigned to correctional institutions, come into regular contact

with the inmates in the performance of their duties.

§ C553.212 Twenty percent limitation on nonexempt work

(a) Employees engaged in fire protection or law enforcement

activities as described in sections C553.210 and C553.211, may

also engage in some nonexempt work which is not performed as

an incident to or in conjunction with their fire protection or law

enforcement activities. For example, firefighters who work for forest

conservation agencies may, during slack times, plant trees and

perform other conservation activities unrelated to their firefighting

duties. The performance of such nonexempt work will not defeat

the § 7(k) exemption unless it exceeds 20 percent of the total hours

worked by that employee during the workweek or applicable work

period. A person who spends more than 20 percent of his/her working time in nonexempt activities is not considered to be an employee

engaged in fire protection or law enforcement activities for purposes

of this part.

(b) Public agency fire protection and law enforcement personnel

may, at their own option, undertake employment for the same

employer on an occasional or sporadic and part-time basis in a

different capacity from their regular employment. The performance

of such work does not affect the application of the § 7(k) exemption

with respect to the regular employment. In addition, the hours

of work in the different capacity need not be counted as hours

worked for overtime purposes on the regular job, nor are such

hours counted in determining the 20 percent tolerance for nonexempt work discussed in paragraph (a) of this section.

§ C553.213 Public agency employees engaged in both fire

protection and law enforcement activities

(a) Some public agencies have employees (often called ‘‘public

safety officers’’) who engage in both fire protection and law enforcement activities, depending on the agency needs at the time. This

dual assignment would not defeat the section 7(k) exemption, provided that each of the activities performed meets the appropriate

tests set forth in sections C553.210 and C553.211. This is so regardless of how the employee’s time is divided between the two activities.

However, all time spent in nonexempt activities by public safety

officers within the work period, whether performed in connection

with fire protection or law enforcement functions, or with neither,

must be combined for purposes of the 20 percent limitation on

nonexempt work discussed in section C553.212.

(b) As specified in section C553.230, the maximum hours standards under section 7(k) are different for employees engaged in

fire protection and for employees engaged in law enforcement. For

those employees who perform both fire protection and law enforcement activities, the applicable standard is the one which applies

to the activity in which the employee spends the majority of work

time during the work period.

§ C553.214 Trainees

The attendance at a bona fide fire or police academy or other

training facility, when required by the employing agency, constitutes engagement in activities under section 7(k) only when

the employee meets all the applicable tests described in section

C553.210 or section C553.211 (except for the power of arrest for
S. Con. Res. 51—85

law enforcement personnel), as the case may be. If the applicable

tests are met, then basic training or advanced training is considered

incidental to, and part of, the employee’s fire protection or law

enforcement activities.

§ C553.215 Ambulance and rescue service employees

Ambulance and rescue service employees of a public agency

other than a fire protection or law enforcement agency may be

treated as employees engaged in fire protection or law enforcement

activities of the type contemplated by § 7(k) if their services are

substantially related to firefighting or law enforcement activities

in that (1) the ambulance and rescue service employees have

received training in the rescue of fire, crime, and accident victims

or firefighters or law enforcement personnel injured in the performance of their respective duties, and (2) the ambulance and rescue

service employees are regularly dispatched to fires, crime scenes,

riots, natural disasters and accidents. As provided in section

C553.213(b), where employees perform both fire protection and

law enforcement activities, the applicable standard is the one which

applies to the activity in which the employee spends the majority

of work time during the work period.

§ C553.216 Other exemptions

Although the 1974 Amendments to the FLSA as applied by

the CAA provide special exemptions for employees of public agencies

engaged in fire protection and law enforcement activities, such

workers may also be subject to other exemptions in the Act, and

public agencies may claim such other applicable exemptions in

lieu of § 7(k). For example, section 13(a)(1) as applied by the CAA

provides a complete minimum wage and overtime pay exemption

for any employee employed in a bona fide executive, administrative,

or professional capacity, as those terms are defined and delimited

in part C541. The section 13(a)(1) exemption can be claimed for

any fire protection or law enforcement employee who meets all

of the tests specified in part C541 relating to duties, responsibilities,

and salary. Thus, high ranking police officials who are engaged

in law enforcement activities, may also, depending on the facts,

qualify for the section 13(a)(1) exemption as ‘‘executive’’ employees.

Similarly, certain criminal investigative agents may qualify as

‘‘administrative’’ employees under section 13(a)(1).

TOUR OF DUTY AND COMPENSABLE HOURS OF WORK RULES

§ C553.220 ‘‘Tour of duty’’ defined

(a) The term ‘‘tour of duty’’ is a unique concept applicable

only to employees for whom the section 7(k) exemption is claimed.

This term, as used in section 7(k), means the period of time during

which an employee is considered to be on duty for purposes of

determining compensable hours. It may be a scheduled or unscheduled period. Such periods include ‘‘shifts’’ assigned to employees

often days in advance of the performance of the work. Scheduled

periods also include time spent in work outside the ‘‘shift’’ which

the public agency employer assigns. For example, a police officer

may be assigned to crowd control during a parade or other special

event outside of his or her shift.

(b) Unscheduled periods include time spent in court by police

officers, time spent handling emergency situations, and time spent
S. Con. Res. 51—86

working after a shift to complete an assignment. Such time must

be included in the compensable tour of duty even though the specific

work performed may not have been assigned in advance.

(c) The tour of duty does not include time spent working for

a separate and independent employer in certain types of special

details as provided in section C553.227.

§ C553.221 Compensable hours of work

(a) The rules under the FLSA as applied by the CAA on

compensable hours of work are applicable to employees for whom

the section 7(k) exemption is claimed. Special rules for sleep time

(section C553.222) apply to both law enforcement and firefighting

employees for whom the section 7(k) exemption is claimed. Also,

special rules for meal time apply in the case of firefighters (section

C553.223).

(b) Compensable hours of work generally include all of the

time during which an employee is on duty on the employer’s premises or at a prescribed workplace, as well as all other time during

which the employee is suffered or permitted to work for the

employer. Such time includes all pre-shift and post-shift activities

which are an integral part of the employee’s principal activity

or which are closely related to the performance of the principal

activity, such as attending roll call, writing up and completing

tickets or reports, and washing and re-racking fire hoses.

(c) Time spent away from the employer’s premises under conditions that are so circumscribed that they restrict the employee

from effectively using the time for personal pursuits also constitutes

compensable hours of work. For example, where a police station

must be evacuated because of an electrical failure and the employees

are expected to remain in the vicinity and return to work after

the emergency has passed, the entire time spent away from the

premises is compensable. The employees in this example cannot

use the time for their personal pursuits.

(d) An employee who is not required to remain on the employer’s

premises but is merely required to leave word at home or with

company officials where he or she may be reached is not working

while on call. Time spent at home on call may or may not be

compensable depending on whether the restrictions placed on the

employee preclude using the time for personal pursuits. Where,

for example, a firefighter has returned home after the shift, with

the understanding that he or she is expected to return to work

in the event of an emergency in the night, such time spent at

home is normally not compensable. On the other hand, where

the conditions placed on the employee’s activities are so restrictive

that the employee cannot use the time effectively for personal

pursuits, such time spent on call is compensable.

(e) Normal home to work travel is not compensable, even where

the employee is expected to report to work at a location away

from the location of the employer’s premises.

(f) A police officer, who has completed his or her tour of duty

and who is given a patrol car to drive home and use on personal

business, is not working during the travel time even where the

radio must be left on so that the officer can respond to emergency

calls. Of course, the time spent in responding to such calls is

compensable.
S. Con. Res. 51—87

§ C553.222 Sleep time

(a) Where a public agency elects to pay overtime compensation

to firefighters and/or law enforcement personnel in accordance with

section 7(a)(1) of the Act, the public agency may exclude sleep

time from hours worked if all the conditions for the exclusion

of such time are met.

(b) Where the employer has elected to use the section 7(k)

exemption, sleep time cannot be excluded from the compensable

hours of work where—

(1) the employee is on a tour of duty of less than 24

hours, and

(2) the employee is on a tour of duty of exactly 24 hours.

(c) Sleep time can be excluded from compensable hours of

work, however, in the case of police officers or firefighters who

are on a tour of duty of more than 24 hours, but only if there

is an expressed or implied agreement between the employer and

the employees to exclude such time. In the absence of such an

agreement, the sleep time is compensable. In no event shall the

time excluded as sleep time exceed 8 hours in a 24-hour period.

If the sleep time is interrupted by a call to duty, the interruption

must be counted as hours worked. If the sleep period is interrupted

to such an extent that the employee cannot get a reasonable night’s

sleep (which, for enforcement purposes means at least 5 hours),

the entire time must be counted as hours of work.

§ C553.223 Meal time

(a) If a public agency elects to pay overtime compensation

to firefighters and law enforcement personnel in accordance with

section 7(a)(1) of the Act, the public agency may exclude meal

time from hours worked if all the statutory tests for the exclusion

of such time are met.

(b) If a public agency elects to use the section 7(k) exemption,

the public agency may, in the case of law enforcement personnel,

exclude meal time from hours worked on tours of duty of 24 hours

or less: Provided, That the employee is completely relieved from

duty during the meal period, and all the other statutory tests

for the exclusion of such time are met. On the other hand, where

law enforcement personnel are required to remain on call in barracks or similar quarters, or are engaged in extended surveillance

activities (e.g., stakeouts), they are not considered to be completely

relieved from duty, and any such meal periods would be compensable.

(c) With respect to firefighters employed under section 7(k),

who are confined to a duty station, the legislative history of the

Act indicates congressional intent to mandate a departure from

the usual FLSA ‘‘hours of work’’ rules and adoption of an overtime

standard keyed to the unique concept of ‘‘tour of duty’’ under which

firefighters are employed. Where the public agency elects to use

the section 7(k) exemption for firefighters, meal time cannot be

excluded from the compensable hours of work where (1) the firefighter is on a tour of duty of less than 24 hours, and (2) where

the firefighter is on a tour of duty of exactly 24 hours.

(d) In the case of police officers or firefighters who are on

a tour of duty of more than 24 hours, meal time may be excluded

from compensable hours of work provided that the statutory tests

for exclusion of such hours are met.
S. Con. Res. 51—88

§ C553.224 ‘‘Work period’’ defined

(a) As used in section 7(k), the term ‘‘work period’’ refers

to any established and regularly recurring period of work which,

under the terms of the Act and legislative history, cannot be less

than 7 consecutive days nor more than 28 consecutive days. Except

for this limitation, the work period can be of any length, and

it need not coincide with the duty cycle or pay period or with

a particular day of the week or hour of the day. Once the beginning

and ending time of an employee’s work period is established, however, it remains fixed regardless of how many hours are worked

within the period. The beginning and ending of the work period

may be changed: Provided, That the change is intended to be

permanent and is not designed to evade the overtime compensation

requirements of the Act.

(b) An employer may have one work period applicable to all

employees, or different work periods for different employees or

groups of employees.

§ C553.225 Early relief

It is a common practice among employees engaged in fire protection activities to relieve employees on the previous shift prior to

the scheduled starting time. Such early relief time may occur pursuant to employee agreement, either expressed or implied. This practice will not have the effect of increasing the number of compensable

hours of work for employees employed under section 7(k) where

it is voluntary on the part of the employees and does not result,

over a period of time, in their failure to receive proper compensation

for all hours actually worked. On the other hand, if the practice

is required by the employer, the time involved must be added

to the employee’s tour of duty and treated as compensable hours

of work.

§ C553.226 Training time

(a) The general rules for determining the compensability of

training time under the FLSA apply to employees engaged in law

enforcement or fire protection activities.

(b) While time spent in attending training required by an

employer is normally considered compensable hours of work, following are situations where time spent by employees in required training is considered to be noncompensable:

(1) Attendance outside of regular working hours at specialized or follow-up training, which is required by law for certification of public and private sector employees within a particular

governmental jurisdiction (e.g., certification of public and private emergency rescue workers), does not constitute compensable hours of work for public employees within that jurisdiction

and subordinate jurisdictions.

(2) Attendance outside of regular working hours at specialized or follow-up training, which is required for certification

of employees of a governmental jurisdiction by law of a higher

level of government, does not constitute compensable hours

of work.

(3) Time spent in the training described in paragraphs

(b) (1) or (2) of this section is not compensable, even if all

or part of the costs of the training is borne by the employer.

(c) Police officers or firefighters, who are in attendance at

a police or fire academy or other training facility, are not considered
S. Con. Res. 51—89

to be on duty during those times when they are not in class

or at a training session, if they are free to use such time for

personal pursuits. Such free time is not compensable.

§ C553.227 Outside employment

(a) Section 7(p)(1) makes special provision for fire protection

and law enforcement employees of public agencies who, at their

own option, perform special duty work in fire protection, law

enforcement or related activities for a separate and independent

employer (public or private) during their off-duty hours. The hours

of work for the separate and independent employer are not combined

with the hours worked for the primary public agency employer

for purposes of overtime compensation.

(b) Section 7(p)(1) applies to such outside employment provided

(1) the special detail work is performed solely at the employee’s

option, and (2) the two employers are in fact separate and independent.

(c) Whether two employers are, in fact, separate and independent can only be determined on a case-by-case basis.

(d) The primary employer may facilitate the employment or

affect the conditions of employment of such employees. For example,

a police department may maintain a roster of officers who wish

to perform such work. The department may also select the officers

for special details from a list of those wishing to participate, negotiate their pay, and retain a fee for administrative expenses. The

department may require that the separate and independent

employer pay the fee for such services directly to the department,

and establish procedures for the officers to receive their pay for

the special details through the agency’s payroll system. Finally,

the department may require that the officers observe their normal

standards of conduct during such details and take disciplinary

action against those who fail to do so.

(e) Section 7(p)(1) applies to special details even where a State

law or local ordinance requires that such work be performed and

that only law enforcement or fire protection employees of a public

agency in the same jurisdiction perform the work. For example,

a city ordinance may require the presence of city police officers

at a convention center during concerts or sports events. If the

officers perform such work at their own option, the hours of work

need not be combined with the hours of work for their primary

employer in computing overtime compensation.

(f) The principles in paragraphs (d) and (e) of this section

with respect to special details of public agency fire protection and

law enforcement employees under section 7(p)(1) are exceptions

to the usual rules on joint employment set forth in part 791 of

this title.

(g) Where an employee is directed by the public agency to

perform work for a second employer, section 7(p)(1) does not apply.

Thus, assignments of police officers outside of their normal work

hours to perform crowd control at a parade, where the assignments

are not solely at the option of the officers, would not qualify as

special details subject to this exception. This would be true even

if the parade organizers reimburse the public agency for providing

such services.

(h) Section 7(p)(1) does not prevent a public agency from

prohibiting or restricting outside employment by its employees.
S. Con. Res. 51—90

OVERTIME COMPENSATION RULES

§ C553.230 Maximum hours standards for work periods of

7 to 28 days—section 7(k)

(a) For those employees engaged in fire protection activities

who have a work period of at least 7 but less than 28 consecutive

days, no overtime compensation is required under section 7(k) until

the number of hours worked exceeds the number of hours which

bears the same relationship to 212 as the number of days in

the work period bears to 28.

(b) For those employees engaged in law enforcement activities

(including security personnel in correctional institutions) who have

a work period of at least 7 but less than 28 consecutive days,

no overtime compensation is required under section 7(k) until the

number of hours worked exceeds the number of hours which bears

the same relationship to 171 as the number of days in the work

period bears to 28.

(c) The ratio of 212 hours to 28 days for employees engaged

in fire protection activities is 7.57 hours per day (rounded) and

the ratio of 171 hours to 28 days for employees engaged in law

enforcement activities is 6.11 hours per day (rounded). Accordingly,

overtime compensation (in premium pay or compensatory time)

is required for all hours worked in excess of the following maximum

hours standards (rounded to the nearest whole hour):

MAXIMUM HOURS STANDARDS

Work period (days) Fire protection

Law enforcement

28 ......................................................................................... 212 171

27 ......................................................................................... 204 165

26 ......................................................................................... 197 159

25 ......................................................................................... 189 153

24 ......................................................................................... 182 147

23 ......................................................................................... 174 141

22 ......................................................................................... 167 134

21 ......................................................................................... 159 128

20 ......................................................................................... 151 122

19 ......................................................................................... 144 116

18 ......................................................................................... 136 110

17 ......................................................................................... 129 104

16 ......................................................................................... 121 98

15 ......................................................................................... 114 92

14 ......................................................................................... 106 86

13 ......................................................................................... 98 79

12 ......................................................................................... 91 73

11 ......................................................................................... 83 67

10 ......................................................................................... 76 61

9 ........................................................................................... 68 55

8 ........................................................................................... 61 49

7 ........................................................................................... 53 43

§ C553.231 Compensatory time off

(a) Law enforcement and fire protection employees who are

subject to the section 7(k) exemption may receive compensatory

time off in lieu of overtime pay for hours worked in excess of

the maximum for their work period as set forth in section C553.230.

(b) Section 7(k) permits public agencies to balance the hours

of work over an entire work period for law enforcement and fire

protection employees. For example, if a firefighter’s work period

is 28 consecutive days, and he or she works 80 hours in each
S. Con. Res. 51—91

of the first two weeks, but only 52 hours in the third week, and

does not work in the fourth week, no overtime compensation (in

cash wages or compensatory time) would be required since the

total hours worked do not exceed 212 for the work period. If the

same firefighter had a work period of only 14 days, overtime compensation or compensatory time off would be due for 54 hours

(160 minus 106 hours) in the first 14 day work period.

§ C553.232 Overtime pay requirements

If a public agency pays employees subject to section 7(k) for

overtime hours worked in cash wages rather than compensatory

time off, such wages must be paid at one and one-half times the

employees’ regular rates of pay.

§ C553.233 ‘‘Regular rate’’ defined

The statutory rules for computing an employee’s ‘‘regular rate’’,

for purposes of the Act’s overtime pay requirements are applicable

to employees or whom the section 7(k) exemption is claimed when

overtime compensation is provided in cash wages.

SUBPART D—COMPENSATORY TIME-OFF FOR OVERTIME EARNED BY

EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY DEPENDS UPON

THE SCHEDULE OF THE HOUSE AND THE SENATE

§ C553.301 Definition of ‘‘directly depends’’

For the purposes of this Part, a covered employee’s work schedule ‘‘directly depends’’ on the schedule of the House of Representatives and the Senate only if the eligible employee performs work

that directly supports the conduct of legislative or other business

in the chamber and works hours that regularly change in response

to the schedule of the House and the Senate.

§ C553.302 Overtime compensation and compensatory time

off for an employee whose work schedule directly

depends upon the schedule of the House and Senate

No employing office shall be deemed to have violated section

203(a)(1) of the CAA, which applies the protections of section 7(a)

of the Fair Labor Standards Act (‘‘FLSA’’) to covered employees

and employing office, by employing any employee for a workweek

in excess of the maximum workweek applicable to such employee

under section 7(a) of the FLSA where the employee’s work schedule

directly depends on the schedule of the House of Representatives

or the Senate within the meaning of § C553.301, and: (a) the

employee is compensated at the rate of time-and-a-half in pay

for all hours in excess of 40 and up to 60 hours in a workweek,

and (b) the employee is compensated at the rate of time-anda-half in either pay or in time off for all hours in excess of 60

hours in a workweek.

§ C553.303 Using compensatory time off

An employee who has accrued compensatory time off under

§ C553.302 upon his or her request, shall be permitted by the

employing office to use such time within a reasonable period after

making the request, unless the employing office makes a bona

fide determination that the needs of the operations of the office

do not allow the taking of compensatory time off at the time
S. Con. Res. 51—92

of the request. An employee may renew the request at a subsequent

time. An employing office may also, upon reasonable notice, require

an employee to use accrued compensatory time-off.

§ C553.304 Payment of overtime compensation for accrued

compensatory time off as of termination of service

An employee who has accrued compensatory time authorized

by this regulation shall, upon termination of employment, be paid

for the unused compensatory time at the rate earned by the

employee at the time the employee receives such payment.

PART C570—CHILD LABOR REGULATIONS

SUBPART A—GENERAL

Sec.

C570.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance. C570.1 Definitions.

C570.2 Minimum age standards.

SUBPART B [RESERVED]

SUBPART C—EMPLOYMENT OF MINORS BETWEEN 14 AND 16 YEARS OF AGE (CHILD

LABOR REG. 3)

C570.31 Determination.

C570.32 Effect of this subpart.

C570.33 Occupations.

C570.35 Periods and conditions of employment.

SUBPART D [RESERVED]

SUBPART E—OCCUPATIONS PARTICULARLY HAZARDOUS FOR THE EMPLOYMENT OF MINORS BETWEEN 16 AND 18 YEARS OF AGE OR DETRIMENTAL TO THEIR HEALTH OR

WELL-BEING

C570.50 General.

C570.51 Occupations in or about plants or establishments manufacturing or storing

explosives or articles containing explosive components (Order 1). C570.52 Occupations of motor-vehicle driver and outside helper (Order 2).

C570.55 Occupations involved in the operation of power-driven woodworking machines (Order 5).

C570.58 Occupations involved in the operation of power-driven hoisting apparatus

(Order 7).

C570.59 Occupations involved in the operations of power-driven metal forming,

punching, and shearing machines (Order 8). C570.62 Occupations involved in the operation of bakery machines (Order 11).

C570.63 Occupations involved in the operation of paper-products machines (Order

12).

C570.65 Occupations involved in the operations of circular saws, band saws, and

guillotine shears (Order 14). C570.66 Occupations involved in wrecking and demolition operations (Order 15).

C570.67 Occupations in roofing operations (Order 16).

C570.68 Occupations in excavation operations (Order 17).

SUBPART A—GENERAL

§ C570.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance

The following table lists the sections of the Secretary of Labor

Regulations under the FLSA with the corresponding sections of

the Office of Compliance Regulations under section 202 of the

CAA:

Secretary of Labor regulations OC regulations

570.1 Definitions ................................................................................... C570.1
S. Con. Res. 51—93

Secretary of Labor regulations OC regulations

570.2 Minimum age standards ............................................................ C570.2

570.31 Determinations ......................................................................... C570.31

570.32 Effect of this subpart ................................................................ C570.32

570.33 Occupations ............................................................................... C570.33

570.35 Periods and conditions of employment .................................... C570.35

570.50 General ...................................................................................... C570.50

570.51 Occupations in or about plants or establishments manufacturing or storing explosives or articles containing explosive components (Order 1) ............................................................................... C570.51

570.52 Occupations of motor-vehicle driver and outside helper

(Order 2) ............................................................................................. C570.52

570.55 Occupations involved in the operation of power-driven

woodworking machines (Order 5) ..................................................... C570.55

570.58 Occupations involved in the operation of power-driven

hoisting apparatus (Order 7) ............................................................. C570.58

570.59 Occupations involved in the operations of power-driven

metal forming, punching, and shearing machines (Order 8) .......... C570.59

570.62 Occupations involved in the operation of bakery machines

(Order 11) ........................................................................................... C570.62

570.63 Occupations involved in the operation of paper-products

machines (Order 12) .......................................................................... C570.63

570.65 Occupations involved in the operations of circular saws,

band saws, and guillotine shears (Order 14) ................................... C570.65

570.66 Occupations involved in wrecking and demolition operations (Order 15) ................................................................................ C570.66

570.67 Occupations in roofing operations (Order 16) ........................ C570.67

570.68 Occupations in excavation operations (Order 17) .................. C570.68

§ C570.1 Definitions

As used in this part:

(a) ‘‘Act’’ means the Fair Labor Standards Act of 1938, as

amended (52 Stat. 1060, as amended; 29 U.S.C. 201–219).

(b) ‘‘Oppressive child labor’’ means employment of a minor

in an occupation for which he does not meet the minimum age

standards of the Act, as set forth in section 570.2 of this subpart.

(c) ‘‘Oppressive child labor age’’ means an age below the minimum age established under the Act for the occupation in which

a minor is employed or in which his employment is contemplated.

(d) [Reserved].

(e) [Reserved].

(f) ‘‘Secretary’’ or ‘‘Secretary of Labor’’ means the Secretary

of Labor, United States Department of Labor, or his authorized

representative.

(g) ‘‘Wage and Hour Division’’ means the Wage and Hour Division, Employment Standards Administration, United States Department of Labor.

(h) ‘‘Administrator’’ means the Administrator of the Wage and

Hour Division or his authorized representative.

§ C570.2 Minimum age standards

(a) ALL OCCUPATIONS EXCEPT IN AGRICULTURE.—(1) The Act,

in section 3(1), sets a general 16-year minimum age which applies

to all employment subject to its child labor provisions in any occupation other than in agriculture, with the following exceptions:

(i) The Act authorizes the Secretary of Labor to provide

by regulation or by order that the employment of employees

between the ages of 14 and 16 years in occupations other

than manufacturing and mining shall not be deemed to constitute oppressive child labor, if and to the extent that the

Secretary of Labor determines that such employment is confined to periods which will not interfere with their schooling
S. Con. Res. 51—94

and to conditions which will not interfere with their health

and well-being (see subpart C of this part); and

(ii) The Act sets an 18-year minimum age with respect

to employment in any occupation found and declared by the

Secretary of Labor to be particularly hazardous for the employment of minors of such age or detrimental to their health

or well-being.

(2) The Act exempts from its minimum age requirements the

employment by a parent of his own child, or by a person standing

in place of a parent of a child in his custody, except in occupations

to which the 18-year age minimum applies and in manufacturing

and mining occupations.

SUBPART B [RESERVED]

SUBPART C—EMPLOYMENT OF MINORS BETWEEN 14 AND 16 YEARS

OF AGE (CHILD LABOR REG. 3)

§ C570.31 Determination

The employment of minors between 14 and 16 years of age

in the occupations, for the periods, and under the conditions hereafter specified does not interfere with their schooling or with their

health and well-being and shall not be deemed to be oppressive

child labor.

§ C570.32 Effect of this subpart

In all occupations covered by this subpart the employment

(including suffering or permitting to work) by an employer of minor

employees between 14 and 16 years of age for the periods and

under the conditions specified in § 570.35 shall not be deemed

to be oppressive child labor within the meaning of the Fair Labor

Standards Act of 1938.

§ C570.33 Occupations

This subpart shall apply to all occupations other than the

following:

(a) Manufacturing, mining, or processing occupations, including

occupations requiring the performance of any duties in work rooms

or work places where goods are manufactured, mined, or otherwise

processed;

(b) Occupations which involve the operation or tending of hoisting apparatus or of any power-driven machinery other than office

machines;

(c) The operation of motor vehicles or service as helpers on

such vehicles;

(d) Public messenger service;

(e) Occupations which the Secretary of Labor may, pursuant

to section 3(1) of the Fair Labor Standards Act and Reorganization

Plan No. 2, issued pursuant to the Reorganization Act of 1945,

find and declare to be hazardous for the employment of minors

between 16 and 18 years of age or detrimental to their health

or well-being;

(f) Occupations in connection with:

(1) Transportation of persons or property by rail, highway,

air, water, pipeline, or other means;

(2) Warehousing and storage;

(3) Communications and public utilities;
S. Con. Res. 51—95

(4) Construction (including demolition and repair); except

such office (including ticket office) work, or sales work, in

connection with paragraphs (f) (1), (2), (3), and (4) of this

section, as does not involve the performance of any duties

on trains, motor vehicles, aircraft, vessels, or other media of

transportation or at the actual site of construction operations.

§ C570.35 Periods and conditions of employment

(a) Except as provided in paragraph (b) of this section, employment in any of the occupations to which this subpart is applicable

shall be confined to the following periods:

(1) Outside school hours;

(2) Not more than 40 hours in any 1 week when school

is not in session;

(3) Not more than 18 hours in any 1 week when school

is in session;

(4) Not more than 8 hours in any 1 day when school

is not in session;

(5) Not more than 3 hours in any 1 day when school

is in session;

6) Between 7 a.m. and 7 p.m. in any 1 day, except during

the summer (June 1 through Labor Day) when the evening

hour will be 9 p.m.

SUBPART D [RESERVED]

SUBPART E—OCCUPATIONS PARTICULARLY HAZARDOUS FOR THE EMPLOYMENT OF MINORS BETWEEN 16 AND 18 YEARS OF AGE OR

DETRIMENTAL TO THEIR HEALTH OR WELL-BEING

§ C570.50 General

(a) HIGHER STANDARDS.—Nothing in this subpart shall authorize non-compliance with any Federal law or regulation establishing

a higher standard. If more than one standard within this subpart

applies to a single activity the higher standard shall be applicable.

(b) APPRENTICES.—Some sections in this subpart contain an

exemption for the employment of apprentices. Such an exemption

shall apply only when: (1) The apprentice is employed in a craft

recognized as an apprenticeable trade; (2) the work of the apprentice

in the occupations declared particularly hazardous is incidental

to his training; (3) such work is intermittent and for short periods

of time and is under the direct and close supervision of a journeyman as a necessary part of such apprentice training; and (4) the

apprentice is registered by the Executive Director of the Office

of Compliance as employed in accordance with the standards established by the Bureau of Apprenticeship and Training of the United

States Department of Labor.

(c) STUDENT-LEARNERS.—Some sections in this subpart contain

an exemption for the employment of student-learners. Such an

exemption shall apply when:

(1) The student-learner is enrolled in a course of study

and training in a cooperative vocational training program under

a recognized State or local educational authority or in a course

of study in a substantially similar program conducted by a

private school; and

(2) Such student-learner is employed under a written agreement which provides:
S. Con. Res. 51—96

(i) That the work of the student-learner in the occupations declared particularly hazardous shall be incidental

to his training;

(ii) That such work shall be intermittent and for short

periods of time, and under the direct and close supervision

of a qualified and experienced person;

(iii) That safety instructions shall be given by the

school and correlated by the employer with on-the-job training; and

(iv) That a schedule of organized and progressive work

processes to be performed on the job shall have been prepared. Each such written agreement shall contain the name

of student-learner, and shall be signed by the employer

and the school coordinator or principal. Copies of each

agreement shall be kept on file by both the school and

the employer. This exemption for the employment of student-learners may be revoked in any individual situation

where it is found that reasonable precautions have not

been observed for the safety of minors employed thereunder. A high school graduate may be employed in an

occupation in which he has completed training as provided

in this paragraph as a student-learner, even though he

is not yet 18 years of age.

§ C570.51 Occupations in or about plants or establishments

manufacturing or storing explosives or articles

containing explosive components (Order 1)

(a) FINDING AND DECLARATION OF FACT.—The following occupations in or about plants or establishments manufacturing or storing

explosives or articles containing explosive components are particularly hazardous for minors between 16 and 18 years of age or

detrimental to their health or well-being:

(1) All occupations in or about any plant or establishment

(other than retail establishments or plants or establishments

of the type described in paragraph (a)(2) of this section) manufacturing or storing explosives or articles containing explosive

components except where the occupation is performed in a

‘‘nonexplosives area’’ as defined in paragraph (b)(3) of this

section.

(2) The following occupations in or about any plant or

establishment manufacturing or storing small-arms ammunition not exceeding .60 caliber in size, shotgun shells, or blasting

caps when manufactured or stored in conjunction with the

manufacture of small-arms ammunition:

(i) All occupations involved in the manufacturing, mixing, transporting, or handling of explosive compounds in

the manufacture of small-arms ammunition and all other

occupations requiring the performance of any duties in

the explosives area in which explosive compounds are

manufactured or mixed.

(ii) All occupations involved in the manufacturing,

transporting, or handling of primers and all other occupations requiring the performance of any duties in the same

building in which primers are manufactured.

(iii) All occupations involved in the priming of cartridges and all other occupations requiring the performance
S. Con. Res. 51—97

of any duties in the same workroom in which rim-fire

cartridges are primed.

(iv) All occupations involved in the plate loading of

cartridges and in the operation of automatic loading

machines.

(v) All occupations involved in the loading, inspecting,

packing, shipping and storage of blasting caps.

(b) DEFINITIONS.—For the purpose of this section:

(1) The term ‘‘plant or establishment manufacturing or

storing explosives or articles containing explosive component’’

means the land with all the buildings and other structures

thereon used in connection with the manufacturing or processing or storing of explosives or articles containing explosive

components.

(2) The terms ‘‘explosives’’ and ‘‘articles containing explosive components’’ mean and include ammunition, black powder,

blasting caps, fireworks, high explosives, primers, smokeless

powder, and all goods classified and defined as explosives by

the Interstate Commerce Commission in regulations for the

transportation of explosives and other dangerous substances

by common carriers (49 CFR parts 71 to 78) issued pursuant

to the Act of June 25, 1948 (62 Stat. 739; 18 U.S.C. 835).

(3) An area meeting all of the criteria in paragraphs (b)(3)

(i) through (iv) of this section shall be deemed a ‘‘nonexplosives

area’’:

(i) None of the work performed in the area involves

the handling or use of explosives;

(ii) The area is separated from the explosives area

by a distance not less than that prescribed in the American

Table of Distances for the protection of inhabited buildings;

(iii) The area is separated from the explosives area

by a fence or is otherwise located so that it constitutes

a definite designated area; and

(iv) Satisfactory controls have been established to prevent employees under 18 years of age within the area

from entering any area in or about the plant which does

not meet criteria of paragraphs (b)(3) (i) through (iii) of

this section.

§ C570.52 Occupations of motor-vehicle driver and outside

helper (Order 2)

(a) FINDINGS AND DECLARATION OF FACT.—Except as provided

in paragraph (b) of this section, the occupations of motor-vehicle

driver and outside helper on any public road, highway, in or about

any mine (including open pit mine or quarry), place where logging

or sawmill operations are in progress, or in any excavation of

the type identified in § C570.68(a) are particularly hazardous for

the employment of minors between 16 and 18 years of age.

(b) EXEMPTION.—The findings and declaration in paragraph

(a) of this section shall not apply to the operation of automobiles

or trucks not exceeding 6,000 pounds gross vehicle weight if such

driving is restricted to daylight hours: Provided, That such operation is only occasional and incidental to the minor’s employment;

that the minor holds a State license valid for the type of driving

involved in the job performed and has completed a State approved

driver education course: Provided further, That the vehicle is

equipped with a seat belt or similar restraining device for the
S. Con. Res. 51—98

driver and for each helper, and the employer has instructed each

minor that such belts or other devices must be used. This paragraph

shall not be applicable to any occupation of motor-vehicle driver

which involves the towing of vehicles.

(c) DEFINITIONS.—For the purpose of this section:

(1) The term ‘‘motor vehicle’’ shall mean any automobile,

truck, truck-tractor, trailer, semitrailer, motorcycle, or similar

vehicle propelled or drawn by mechanical power and designed

for use as a means of transportation but shall not include

any vehicle operated exclusively on rails.

(2) The term ‘‘driver’’ shall mean any individual who, in

the course of employment, drives a motor vehicle at any time.

(3) The term ‘‘outside helper’’ shall mean any individual,

other than a driver, whose work includes riding on a motor

vehicle outside the cab for the purpose of assisting in transporting or delivering goods.

(4) The term ‘‘gross vehicle weight’’ includes the truck

chassis with lubricants, water and a full tank or tanks of

fuel, plus the weight of the cab or driver’s compartment, body

and special chassis and body equipment, and payload.

§ C570.55 Occupations involved in the operation of powerdriven woodworking machines (Order 5)

(a) FINDING AND DECLARATION OF FACT.—The following occupations involved in the operation of power-driven wood-working

machines are particularly hazardous for minors between 16 and

18 years of age:

(1) The occupation of operating power-driven woodworking

machines, including supervising or controlling the operation

of such machines, feeding material into such machines, and

helping the operator to feed material into such machines but

not including the placing of material on a moving chain or

in a hopper or slide for automatic feeding.

(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning power-driven woodworking machines.

(3) The occupations of off-bearing from circular saws and

from guillotine-action veneer clippers.

(b) DEFINITIONS.—As used in this section:

(1) The term ‘‘power-driven woodworking machines’’ shall

mean all fixed or portable machines or tools driven by power

and used or designed for cutting, shaping, forming, surfacing,

nailing, stapling, wire stitching, fastening, or otherwise assembling, pressing, or printing wood or veneer.

(2) The term ‘‘off-bearing’’ shall mean the removal of material or refuse directly from a saw table or from the point

of operation. Operations not considered as off-bearing within

the intent of this section include: (i) The removal of material

or refuse from a circular saw or guillotine-action veneer clipper

where the material or refuse has been conveyed away from

the saw table or point of operation by a gravity chute or

by some mechanical means such as a moving belt or expulsion

roller, and (ii) the following operations when they do not involve

the removal of material or refuse directly from a saw table

or from the point of operation: The carrying, moving, or

transporting of materials from one machine to another or from

one part of a plant to another; the piling, stacking, or arranging
S. Con. Res. 51—99

of materials for feeding into a machine by another person;

and the sorting, tying, bundling, or loading of materials.

(c) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section 570.50 (b) and (c).

§ C570.58 Occupations involved in the operation of powerdriven hoisting apparatus (Order 7)

(a) FINDING AND DECLARATION OF FACT.—The following occupations involved in the operation of power-driven hoisting apparatus

are particularly hazardous for minors between 16 and 18 years

of age:

(1) Work of operating an elevator, crane, derrick, hoist,

or high-lift truck, except operating an unattended automatic

operation passenger elevator or an electric or air-operated hoist

not exceeding one ton capacity.

(2) Work which involves riding on a manlift or on a freight

elevator, except a freight elevator operated by an assigned

operator.

(3) Work of assisting in the operation of a crane, derrick,

or hoist performed by crane hookers, crane chasers, hookerson, riggers, rigger helpers, and like occupations.

(b) DEFINITIONS.—As used in this section:

(1) The term ‘‘elevator’’ shall mean any power-driven hoisting or lowering mechanism equipped with a car or platform

which moves in guides in a substantially vertical direction.

The term shall include both passenger and freight elevators

(including portable elevators or tiering machines), but shall

not include dumbwaiters.

(2) The term ‘‘crane’’ shall mean a power-driven machine

for lifting and lowering a load and moving it horizontally,

in which the hoisting mechanism is an integral part of the

machine. The term shall include all types of cranes, such as

cantilever gantry, crawler, gantry, hammerhead, ingot-pouring,

jib, locomotive, motor-truck, overhead traveling, pillar jib, pintle, portal, semi-gantry, semi-portal, storage bridge, tower,

walking jib, and wall cranes.

(3) The term ‘‘derrick’’ shall mean a power-driven apparatus

consisting of a mast or equivalent members held at the top

by guys or braces, with or without a boom, for use with a

hoisting mechanism or operating ropes. The term shall include

all types of derricks, such as A-frame, breast, Chicago boom,

gin-pole, guy and stiff-leg derrick.

(4) The term ‘‘hoist’’ shall mean a power-driven apparatus

for raising or lowering a load by the application of a pulling

force that does not include a car or platform running in guides.

The term shall include all types of hoists, such as base mounted

electric, clevis suspension, hook suspension, monorail, overhead

electric, simple drum and trolley suspension hoists.

(5) The term ‘‘high-lift’’ truck shall mean a power-driven

industrial type of truck used for lateral transportation that

is equipped with a power-operated lifting device usually in

the form of a fork or platform capable of tiering loaded pallets

or skids one above the other. Instead of a fork or platform,

the lifting device may consist of a ram, scoop, shovel, crane,

revolving fork, or other attachments for handling specific loads.

The term shall mean and include highlift trucks known under
S. Con. Res. 51—100

such names as fork lifts, fork trucks, fork-lift trucks, tiering

trucks, or stacking trucks, but shall not mean low-lift trucks

or low-lift platform trucks that are designed for the transportation of but not the tiering of material.

(6) The term ‘‘manlift’’ shall mean a device intended for

the conveyance of persons which consists of platforms or brackets mounted on, or attached to, an endless belt, cable, chain

or similar method of suspension; such belt, cable or chain

operating in a substantially vertical direction and being supported by and driven through pulleys, sheaves or sprockets

at the top and bottom.

(c) EXCEPTION.—(1) This section shall not prohibit the operation

of an automatic elevator and an automatic signal operation elevator:

Provided, That the exposed portion of the car interior (exclusive

of vents and other necessary small openings), the car door, and

the hoistway doors are constructed of solid surfaces without any

opening through which a part of the body may extend; all hoistway

openings at floor level have doors which are interlocked with the

car door so as to prevent the car from starting until all such

doors are closed and locked; the elevator (other than hydraulic

elevators) is equipped with a device which will stop and hold the

car in case of overspeed or if the cable slackens or breaks; and

the elevator is equipped with upper and lower travel limit devices

which will normally bring the car to rest at either terminal and

a final limit switch which will prevent the movement in either

direction and will open in case of excessive over travel by the

car.

(2) For the purpose of this exception the term ‘‘automatic

elevator’’ shall mean a passenger elevator, a freight elevator, or

a combination passenger-freight elevator, the operation of which

is controlled by pushbuttons in such a manner that the starting,

going to the landing selected, leveling and holding, and the opening

and closing of the car and hoistway doors are entirely automatic.

(3) For the purpose of this exception, the term ‘‘automatic

signal operation elevator’’ shall mean an elevator which is started

in response to the operation of a switch (such as a lever or pushbutton) in the car which when operated by the operator actuates

a starting device that automatically closes the car and hoistway

doors from this point on, the movement of the car to the landing

selected, leveling and holding when it gets there, and the opening

of the car and hoistway doors are entirely automatic.

§ C570.59 Occupations involved in the operations of powerdriven metal forming, punching, and shearing

machines (Order 8)

(a) FINDING AND DECLARATION OF FACT.—The following occupations are particularly hazardous for the employment of minors

between 16 and 18 years of age:

(1) The occupations of operator of or helper on the following

power-driven metal forming, punching, and shearing machines:

(i) All rolling machines, such as beading, straightening,

corrugating, flanging, or bending rolls; and hot or cold

rolling mills.

(ii) All pressing or punching machines, such as punch

presses except those provided with full automatic feed and

ejection and with a fixed barrier guard to prevent the
S. Con. Res. 51—101

hands or fingers of the operator from entering the area

between the dies; power presses; and plate punches.

(iii) All bending machines, such as apron brakes and

press brakes.

(iv) All hammering machines, such as drop hammers

and power hammers.

(v) All shearing machines, such as guillotine or squaring shears; alligator shears; and rotary shears.

(2) The occupations of setting up, adjusting, repairing, oiling, or cleaning these machines including those with automatic

feed and ejection.

(b) DEFINITIONS.—(1) The term ‘‘operator’’ shall mean a person

who operates a machine covered by this section by performing

such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.

(2) The term ‘‘helper’’ shall mean a person who assists in

the operation of a machine covered by this section by helping

place materials into or remove them from the machine.

(3) The term ‘‘forming, punching, and shearing machines’’ shall

mean power-driven metal-working machines, other than machine

tools, which change the shape of or cut metal by means of tools,

such as dies, rolls, or knives which are mounted on rams, plungers,

or other moving parts. Types of forming, punching, and shearing

machines enumerated in this section are the machines to which

the designation is by custom applied.

(c) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section 570.50 (b) and (c).

§ C570.62 Occupations involved in the operation of bakery

machines (Order 11)

The following occupations involved in the operation of powerdriven bakery machines are particularly hazardous for the employment of minors between 16 and 18 years of age:

(1) The occupations of operating, assisting to operate, or

setting up, adjusting, repairing, oiling, or cleaning any horizontal or vertical dough mixer; batter mixer; bread dividing,

rounding, or molding machine; dough brake; dough sheeter;

combination bread slicing and wrapping machine; or cake cutting band saw.

(2) The occupation of setting up or adjusting a cookie

or cracker machine.

§ C570.63 Occupations involved in the operation of paperproducts machines (Order 12)

(a) FINDINGS AND DECLARATION OF FACT.—The following

occupations are particularly hazardous for the employment of

minors between 16 and 18 years of age:

(1) The occupations of operation or assisting to operate

any of the following power-driven paper products machines:

(i) Arm-type wire stitcher or stapler, circular or band

saw, corner cutter or mitering machine, corrugating and

single-or-double-facing machine, envelope die-cutting press,

guillotine paper cutter or shear, horizontal bar scorer, laminating or combining machine, sheeting machine, scrappaper baler, or vertical slotter.
S. Con. Res. 51—102

(ii) Platen die-cutting press, platen printing press, or

punch press which involves hand feeding of the machine.

(2) The occupations of setting-up, adjusting, repairing, oiling, or cleaning these machines including those which do not

involve hand feeding.

(b) DEFINITIONS.—(1) The term ‘‘operating or assisting to operate’’ shall mean all work which involves starting or stopping a

machine covered by this section, placing or removing materials

into or from the machine, or any other work directly involved

in operating the machine. The term does not include the stacking

of materials by an employee in an area nearby or adjacent to

the machine where such employee does not place the materials

into the machine.

(2) The term ‘‘paper products machine’’ shall mean all powerdriven machines used in:

(i) The remanufacture or conversion of paper or pulp into

a finished product, including the preparation of such materials

for re-cycling; or

(ii) The preparation of such materials for disposal. The

term applies to such machines whether they are used in

establishments that manufacture converted paper or pulp products, or in any other type of manufacturing or nonmanufacturing establishment.

(c) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section 570.50 (b) and (c).

§ C570.65 Occupations involved in the operations of circular

saws, band saws, and guillotine shears (Order

14)

(a) FINDINGS AND DECLARATION OF FACT.—The following

occupations are particularly hazardous for the employment of

minors between 16 and 18 years of age:

(1) The occupations of operator of or helper on the following

power-driven fixed or portable machines except machines

equipped with full automatic feed and ejection:

(i) Circular saws.

(ii) Band saws.

(iii) Guillotine shears.

(2) The occupations of setting-up, adjusting, repairing, oiling, or cleaning circular saws, band saws, and guillotine shears.

(b) DEFINITIONS.—(1) The term ‘‘operator’’ shall mean a person

who operates a machine covered by this section by performing

such functions as starting or stopping the machine, placing materials into or removing them from the machine, or any other functions directly involved in operation of the machine.

(2) The term ‘‘helper’’ shall mean a person who assists in

the operation of a machine covered by this section by helping

place materials into or remove them from the machine.

(3) The term ‘‘machines equipped with full automatic feed and

ejection’’ shall mean machines covered by this Order which are

equipped with devices for full automatic feeding and ejection and

with a fixed barrier guard to prevent completely the operator or

helper from placing any part of his body in the point-of-operation

area.

(4) The term ‘‘circular saw’’ shall mean a machine equipped

with a thin steel disc having a continuous series of notches or
S. Con. Res. 51—103

teeth on the periphery, mounted on shafting, and used for sawing

materials.

(5) The term ‘‘band saw’’ shall mean a machine equipped with

an endless steel band having a continuous series of notches or

teeth, running over wheels or pulleys, and used for sawing materials.

(6) The term ‘‘guillotine shear’’ shall mean a machine equipped

with a movable blade operated vertically and used to shear materials. The term shall not include other types of shearing machines,

using a different form of shearing action, such as alligator shears

or circular shears.

(c) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section 570.50 (b) and (c).

§ C570.66 Occupations involved in wrecking and demolition

operations (Order 15)

(a) FINDING AND DECLARATION OF FACT.—All occupations in

wrecking and demolition operations are particularly hazardous for

the employment of minors between 16 and 18 years of age and

detrimental to their health and well-being.

(b) DEFINITION.—The term ‘‘wrecking and demolition operations’’ shall mean all work, including clean-up and salvage work,

performed at the site of the total or partial razing, demolishing,

or dismantling of a building, bridge, steeple, tower, chimney, other

structure.

§ C570.67 Occupations in roofing operations (Order 16)

(a) FINDING AND DECLARATION OF FACT.—All occupations in

roofing operations are particularly hazardous for the employment

of minors between 16 and 18 years of age or detrimental to their

health.

(b) DEFINITION OF ROOFING OPERATIONS.—The term ‘‘roofing

operations’’ shall mean all work performed in connection with the

application of weatherproofing materials and substances (such as

tar or pitch, asphalt prepared paper, tile, slate, metal, translucent

materials, and shingles of asbestos, asphalt or wood) to roofs of

buildings or other structures. The term shall also include all work

performed in connection with: (1) The installation of roofs, including

related metal work such as flashing and (2) alterations, additions,

maintenance, and repair, including painting and coating, of existing

roofs. The term shall not include gutter and downspout work; the

construction of the sheathing or base of roofs; or the installation

of television antennas, air conditioners, exhaust and ventilating

equipment, or similar appliances attached to roofs.

(c) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section 570.50 (b) and (c).

§ C570.68 Occupations in excavation operations (Order 17)

(a) FINDING AND DECLARATION OF FACT.—The following occupations in excavation operations are particularly hazardous for the

employment of persons between 16 and 18 years of age: (1) Excavating, working in, or backfilling (refilling) trenches, except (i) manually excavating or manually backfilling trenches that do not exceed

four feet in depth at any point, or (ii) working in trenches that

do not exceed four feet in depth at any point. (2) Excavating
S. Con. Res. 51—104

for buildings or other structures or working in such excavations,

except: (i) Manually excavating to a depth not exceeding four feet

below any ground surface adjoining the excavation, or (ii) working

in an excavation not exceeding such depth, or (iii) working in

an excavation where the side walls are shored or sloped to the

angle of repose. (3) Working within tunnels prior to the completion

of all driving and shoring operations. (4) Working within shafts

prior to the completion of all sinking and shoring operations.

(b) EXEMPTIONS.—This section shall not apply to the employment of apprentices or student-learners under the conditions prescribed in section C570.50 (b) and (c).

EXCLUSION FOR EMPLOYEES OF THE CAPITOL POLICE

None of the limitations on the use of lie detector tests by

employing offices set forth in section 204 of the CAA apply to

the Capitol Police. This exclusion from the limitations of section

204 of the CAA applies only with respect to Capitol Police employees. Except as otherwise provided by law or these regulations,

this exclusion does not extend to contractors or nongovernmental

agents of the Capitol Police; nor does it extend to the Capitol

Police with respect to employees of a private employer or an otherwise covered employing office with which the Capitol Police has

a contractual or other business relationship.

APPLICATION OF RIGHTS AND PROTECTIONS OF THE

EMPLOYEE POLYGRAPH PROTECTION ACT OF 1988

SUBPART A—GENERAL

Sec.

1.1 Purpose and scope.

1.2 Definitions.

1.3 Coverage.

1.4 Prohibitions on lie detector use.

1.5 Effect on other laws or agreements.

1.6 Notice of protection.

1.7 Authority of the Board.

1.8 Employment relationship.

SUBPART B—EXEMPTIONS

1.10 Exclusion for employees of the Capitol Police. [Reserved].

1.11 Exemption for national defense and security.

1.12 Exemption for employing offices conducting investigations of economic loss or

injury.

1.13 Exemption for employing offices authorized to manufacture, distribute, or dispense controlled substances.

SUBPART C—RESTRICTIONS ON POLYGRAPH USAGE UNDER EXEMPTIONS

1.20 Adverse employment action under ongoing investigation exemption.

1.21 Adverse employment action under controlled substance exemption.

1.22 Rights of examinee—general.

1.23 Rights of examinee—pretest phase.

1.24 Rights of examinee—actual testing phase.

1.25 Rights of examinee—post-test phase.

1.26 Qualifications of and requirements for examiners.

SUBPART D—RECORDKEEPING AND DISCLOSURE REQUIREMENTS

1.30 Records to be preserved for 3 years.

1.35 Disclosure of test information.

SUBPART E—[RESERVED]

1.40 [Reserved].

Appendix A—Notice to Examinee.

Authority: Pub. L. 104–1, 109 Stat. 3, 2 U.S.C. 1314(c).
S. Con. Res. 51—105

SUBPART A—GENERAL

SEC. 1.1 PURPOSE AND SCOPE.

Enacted into law on January 23, 1995, the Congressional

Accountability Act (‘‘CAA’’) directly applies the rights and protections of eleven Federal labor and employment law statutes to covered employees and employing offices within the legislative branch.

Section 204(a) of the CAA, 2 U.S.C. § 1314(a) provides that no

employing office may require any covered employee (including a

covered employee who does not work in that employing office)

to take a lie detector test where such test would be prohibited

if required by an employer under paragraphs (1), (2) or (3) of

section 3 of the Employee Polygraph Protection Act of 1988 (EPPA),

29 U.S.C. § 2002 (1), (2) or (3). The purpose of this Part is to

set forth the regulations to carry out the provisions of section

204 of the CAA.

Subpart A contains the provisions generally applicable to covered employers, including the requirements relating to the prohibitions on lie detector use. Subpart B sets forth rules regarding

the statutory exemptions from application of section 204 of the

CAA. Subpart C sets forth the restrictions on polygraph usage

under such exemptions. Subpart D sets forth the rules on recordkeeping and the disclosure of polygraph test information.

SEC. 1.2 DEFINITIONS.

For purposes of this part:

(a) ‘‘Act’’ or ‘‘CAA’’ means the Congressional Accountability

Act of 1995 (P.L. 104–1, 109 Stat. 3, 2 U.S.C. §§ 1301–1438).

(b) ‘‘EPPA’’ means the Employee Polygraph Protection Act of

1988 (Pub. L. 100–347, 102 Stat. 646, 29 U.S.C. §§ 2001–2009)

as applied to covered employees and employing offices by section

204 of the CAA.

(c) The term ‘‘covered employee’’ means any employee of (1)

the House of Representatives; (2) the Senate; (3) the Capitol Guide

Service; (4) the Congressional Budget Office; (5) the Office of the

Architect of the Capitol; (6) the Office of the Attending Physician;

(7) the Office of Compliance; or (8) the Office of Technology Assessment.

(d) The term ‘‘employee’’ includes an applicant for employment

and a former employee.

(e) The term ‘‘employee of the Office of the Architect of the

Capitol’’ includes any employee of the Office of the Architect of

the Capitol, the Botanic Gardens, or the Senate Restaurants.

(f) The term ‘‘employee of the Capitol Police’’ includes any

member or officer of the Capitol Police.

(g) The term ‘‘employee of the House of Representatives’’

includes an individual occupying a position the pay for which is

disbursed by the Clerk of the House of Representatives, or another

official designated by the House of Representatives, or any employment position in an entity that is paid with funds derived from

the clerk-hire allowance of the House of Representatives but not

any such individual employed by any entity listed in subparagraphs

(3) through (8) of paragraph (c) above.

(h) The term ‘‘employee of the Senate’’ includes any employee

whose pay is disbursed by the Secretary of the Senate, but not

any such individual employed by any entity listed in subparagraphs

(3) through (8) of paragraph (c) above.
S. Con. Res. 51—106

(i) The term ‘‘employing office’’ means (1) the personal office

of a Member of the House of Representatives or of a Senator;

(2) a committee of the House of Representatives or the Senate

or a joint committee; (3) any other office headed by a person

with the final authority to appoint, hire, discharge, and set the

terms, conditions, or privileges of the employment of an employee

of the House of Representatives or the Senate; or (4) the Capitol

Guide Board, the Congressional Budget Office, the Office of the

Architect of the Capitol, the Office of the Attending Physician,

the Office of Compliance, and the Office of Technology Assessment.

The term ‘‘employing office’’ includes any person acting directly

or indirectly in the interest of an employing office in relation to

an employee or prospective employee. A polygraph examiner either

employed for or whose services are retained for the sole purpose

of administering polygraph tests ordinarily would not be deemed

an employing office with respect to the examinees. Any reference

to ‘‘employer’’ in these regulations includes employing offices.

(j)(1) The term ‘‘lie detector’’ means a polygraph, deceptograph,

voice stress analyzer, psychological stress evaluator, or any other

similar device (whether mechanical or electrical) that is used, or

the results of which are used, for the purpose of rendering a

diagnostic opinion regarding the honesty or dishonesty of an individual. Voice stress analyzers, or psychological stress evaluators,

include any systems that utilize voice stress analysis, whether

or not an opinion on honesty or dishonesty is specifically rendered.

(2) The term ‘‘lie detector’’ does not include medical tests used

to determine the presence or absence of controlled substances or

alcohol in bodily fluids. Also not included in the definition of lie

detector are written or oral tests commonly referred to as ‘‘honesty’’

or ‘‘paper and pencil’’ tests, machine-scored or otherwise; and

graphology tests commonly referred to as handwriting tests.

(k) The term ‘‘polygraph’’ means an instrument that—

(1) records continuously, visually, permanently, and

simultaneously changes in cardiovascular, respiratory, and

electrodermal patterns as minimum instrumentation standards;

and

(2) is used, or the results of which are used, for the purpose

of rendering a diagnostic opinion regarding the honesty or

dishonesty of an individual.

(l) ‘‘Board’’ means the Board of Directors of the Office of Compliance.

(m) ‘‘Office’’ means the Office of Compliance.

SEC. 1.3 COVERAGE.

The coverage of section 204 of the Act extends to any ‘‘covered

employee’’ or ‘‘covered employing office’’ without regard to the number of employees or the employing office’s effect on interstate commerce.

SEC. 1.4 PROHIBITIONS ON LIE DETECTOR USE.

(a) Section 204 of the CAA provides that, subject to the exemptions of the EPPA incorporated into the CAA under section 225(f)

of the CAA, as set forth in section 1.10 through 1.12 of this Part,

employing offices are prohibited from:

(1) Requiring, requesting, suggesting or causing, directly

or indirectly, any covered employee or prospective employee

to take or submit to a lie detector test;
S. Con. Res. 51—107

(2) Using, accepting, or inquiring about the results of a

lie detector test of any covered employee or prospective

employee; and

(3) Discharging, disciplining, discriminating against, denying employment or promotion, or threatening any covered

employee or prospective employee to take such action for refusal

or failure to take or submit to such test, or on the basis

of the results of a test.

The above prohibitions apply irrespective of whether the covered employee referred to in paragraph (1), (2) or (3), above, works

in that employing office.

(b) An employing office that reports a theft or other incident

involving economic loss to police or other law enforcement authorities is not engaged in conduct subject to the prohibitions under

paragraph (a) of this section if, during the normal course of a

subsequent investigation, such authorities deem it necessary to

administer a polygraph test to a covered employee(s) suspected

of involvement in the reported incident. Employing offices that

cooperate with police authorities during the course of their investigations into criminal misconduct are likewise not deemed engaged

in prohibitive conduct: Provided, That such cooperation is passive

in nature. For example, it is not uncommon for police authorities

to request employees suspected of theft or criminal activity to

submit to a polygraph test during the employee’s tour of duty

since, as a general rule, suspect employees are often difficult to

locate away from their place of employment. Allowing a test on

the employing office’s premises, releasing a covered employee during

working hours to take a test at police headquarters, and other

similar types of cooperation at the request of the police authorities

would not be construed as ‘‘requiring, requesting, suggesting, or

causing, directly or indirectly, any covered employee * * * to take

or submit to a lie detector test’’. Cooperation of this type must

be distinguished from actual participation in the testing of employees suspected of wrongdoing, either through the administration

of a test by the employing office at the request or direction of

police authorities, or through reimbursement by the employing office

of tests administered by police authorities to employees. In some

communities, it may be a practice of police authorities to request

testing by employing offices of employees before a police investigation is initiated on a reported incident. In other communities, police

examiners are available to covered employing offices, on a cost

reimbursement basis, to conduct tests on employees suspected by

an employing office of wrongdoing. All such conduct on the part

of employing offices is deemed within the prohibitions of section

204 of the CAA.

(c) The receipt by an employing office of information from

a polygraph test administered by police authorities pursuant to

an investigation is prohibited by section 3(2) of the EPPA. (See

paragraph (a)(2) of this section.)

(d) The simulated use of a polygraph instrument so as to

lead an individual to believe that an actual test is being or may

be performed (e.g., to elicit confessions or admissions of guilt) constitutes conduct prohibited by paragraph (a) of this section. Such

use includes the connection of a covered employee or prospective

employee to the instrument without any intention of a diagnostic

purpose, the placement of the instrument in a room used for interrogation unconnected to the covered employee or prospective
S. Con. Res. 51—108

employee, or the mere suggestion that the instrument may be

used during the course of the interview.

(e) The Capitol Police may not require a covered employee

not employed by the Capitol Police to take a lie detector test

(on its own initiative or at the request of another employing office)

except where the Capitol Police administers such lie detector test

as part of an ‘‘ongoing investigation’’ by the Capitol Police. For

the purpose of this subsection, the definition of ‘‘ongoing investigation’’ contained in section 1.12(b) shall apply.

SEC. 1.5 EFFECT ON OTHER LAWS OR AGREEMENTS.

(a) Section 204 of the CAA does not preempt any otherwise

applicable provision of Federal law or any rule or regulation of

the House or Senate or any negotiated collective bargaining agreement that prohibits lie detector tests or is more restrictive with

respect to the use of lie detector tests.

(b)(1) This provision applies to all aspects of the use of lie

detector tests, including procedural safeguards, the use of test

results, the rights and remedies provided examinees, and the rights,

remedies, and responsibilities of examiners and employing offices.

(2) For example, a collective bargaining agreement that provides

greater protection to an examinee would apply in addition to the

protection provided in section 204 of the CAA.

SEC. 1.6 NOTICE OF PROTECTION.

Pursuant to section 301(h) of the CAA, the Office shall prepare,

in a manner suitable for posting, a notice explaining the provisions

of section 204 of the CAA. Copies of such notice may be obtained

from the Office of Compliance.

SEC. 1.7 AUTHORITY OF THE BOARD.

Pursuant to sections 204 and 304 of the CAA, the Board is

authorized to issue regulations to implement the rights and protections of the EPPA. Section 204(c) directs the Board to promulgate

regulations implementing section 204 that are ‘‘the same as substantive regulations promulgated by the Secretary of Labor to implement the statutory provisions referred to in subsections (a) and

(b) [of section 204 of the CAA] except insofar as the Board may

determine, for good cause shown*** that a modification of such

regulations would be more effective for the implementation of the

rights and protections under this section’’. The regulations issued

by the Board herein are on all matters for which section 204

of the CAA requires a regulation to be issued. Specifically, it is

the Board’s considered judgment, based on the information available

to it at the time of promulgation of these regulations, that, with

the exception of the regulations adopted and set forth herein, there

are no other ‘‘substantive regulations promulgated by the Secretary

of Labor to implement the statutory provisions referred to in subsections (a) and (b) [of section 204 of the CAA]’’.

In promulgating these regulations, the Board has made certain

technical and nomenclature changes to the regulations as promulgated by the Secretary. Such changes are intended to make the

provisions adopted accord more naturally to situations in the legislative branch. However, by making these changes, the Board does

not intend a substantive difference between these regulations and

those of the Secretary from which they are derived. Moreover such

changes, in and of themselves, are not intended to constitute an
S. Con. Res. 51—109

interpretation of the regulation or of the statutory provisions of

the CAA upon which they are based.

SEC. 1.8 EMPLOYMENT RELATIONSHIP.

Subject to the exemptions incorporated into the CAA by section

225(f), section 204 applies the prohibitions on the use of lie detectors

by employing offices with respect to covered employees irrespective

of whether a covered employee works in that employing office.

Sections 101 (3), (4) and 204 of the CAA also apply EPPA prohibitions against discrimination to applicants for employment and

former employees of a covered employing office. For example, an

employee may quit rather than take a lie detector test. The employing office cannot discriminate or threaten to discriminate in any

manner against that person (such as by providing bad references

in the future) because of that person’s refusal to be tested. Similarly,

an employing office cannot discriminate or threaten to discriminate

in any manner against that person because that person files a

complaint, institutes a proceeding, testifies in a proceeding, or exercises any right under section 204 of the CAA. (See section 207

of the CAA.)

SUBPART B—EXEMPTIONS

SEC. 1.10 EXCLUSION FOR EMPLOYEES OF THE CAPITOL POLICE

[RESERVED].

SEC. 1.11 EXEMPTION FOR NATIONAL DEFENSE AND SECURITY.

(a) The exemptions allowing for the administration of lie detector tests in the following paragraphs (b) through (e) of this section

apply only to the Federal Government; they do not allow covered

employing offices to administer such tests. For the purposes of

this section, the term ‘‘Federal Government’’ means any agency

or entity within the Federal Government authorized to administer

polygraph examinations which is otherwise exempt from coverage

under section 7(a) of the EPPA, 29 U.S.C. § 2006(a).

(b) Section 7(b)(1) of the EPPA, incorporated into the CAA

under section 225(f) of the CAA, provides that nothing in the

EPPA shall be construed to prohibit the administration of any

lie detector test by the Federal Government, in the performance

of any counterintelligence function, to any expert, consultant, or

employee of any contractor under contract with the Department

of Defense; or with the Department of Energy, in connection with

the atomic energy defense activities of such Department.

(c) Section 7(b)(2)(A) of the EPPA, incorporated into the CAA

under section 225(f) of the CAA, provides that nothing in the

EPPA shall be construed to prohibit the administration of any

lie detector test by the Federal Government, in the performance

of any intelligence or counterintelligence function of the National

Security Agency, the Defense Intelligence Agency, or the Central

Intelligence Agency, to any individual employed by, assigned to,

or detailed to any such agency; or any expert or consultant under

contract to any such agency; or any employee of a contractor to

such agency; or any individual applying for a position in any such

agency; or any individual assigned to a space where sensitive

cryptologic information is produced, processed, or stored for any

such agency.

(d) Section 7(b)(2)(B) of the EPPA, incorporated into the CAA

under section 225(f) of the CAA, provides that nothing in the
S. Con. Res. 51—110

EPPA shall be construed to prohibit the administration of any

lie detector test by the Federal Government, in the performance

of any intelligence or counterintelligence function, to any covered

employee whose duties involve access to information that has been

classified at the level of top secret or designated as being within

a special access program under section 4.2(a) of Executive Order

12356 (or a successor Executive order).

(c) Counterintelligence for purposes of the above paragraphs

means information gathered and activities conducted to protect

against espionage and other clandestine intelligence activities, sabotage, terrorist activities, or assassinations conducted for or on behalf

of foreign governments, or foreign or domestic organizations or

persons.

(d) Lie detector tests of persons described in the above paragraphs will be administered in accordance with applicable Department of Defense directives and regulations, or other regulations

and directives governing the use of such tests by the United States

Government, as applicable.

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

(a) Section 7(d) of the EPPA, incorporated into the CAA under

section 225(f) of the CAA, provides a limited exemption from the

general prohibition on lie detector use for employers conducting

ongoing investigations of economic loss or injury to the employer’s

business. An employing office may request an employee, subject

to the conditions set forth in sections 8 and 10 of the EPPA and

sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 of this part,

to submit to a polygraph test, but no other type of lie detector

test, only if—

(1) The test is administered in connection with an ongoing

investigation involving economic loss or injury to the employing

office’s operations, such as theft, embezzlement, misappropriation or an act of unlawful industrial espionage or sabotage;

(2) The employee had access to the property that is the

subject of the investigation;

(3) The employing office has a reasonable suspicion that

the employee was involved in the incident or activity under

investigation;

(4) The employing office provides the examinee with a

statement, in a language understood by the examinee, prior

to the test which fully explains with particularity the specific

incident or activity being investigated and the basis for testing

particular employees and which contains, at a minimum:

(i) An identification with particularity of the specific

economic loss or injury to the operations of the employing

office;

(ii) A description of the employee’s access to the property that is the subject of the investigation;

(iii) A description in detail of the basis of the employing

office’s reasonable suspicion that the employee was involved

in the incident or activity under investigation; and

(iv) Signature of a person (other than a polygraph

examiner) authorized to legally bind the employing office;

and
S. Con. Res. 51—111

(5) The employing office retains a copy of the statement

and proof of service described in paragraph (a)(4) of this section

for at least 3 years.

(b) For the exemption to apply, the condition of an ‘‘ongoing

investigation’’ must be met. As used in section 7(d) of the EPPA,

the ongoing investigation must be of a specific incident or activity.

Thus, for example, an employing office may not request that an

employee or employees submit to a polygraph test in an effort

to determine whether or not any thefts have occurred. Such random

testing by an employing office is precluded by the EPPA. Further,

because the exemption is limited to a specific incident or activity,

an employing office is precluded from using the exemption in situations where the so-called ‘‘ongoing investigation’’ is continuous.

For example, the fact that items are frequently missing would

not be a sufficient basis, standing alone, for administering a polygraph test. Even if the employing office can establish that unusually

high amounts of property are missing in a given month, this,

in and of itself, would not be a sufficient basis to meet the specific

incident requirement. On the other hand, polygraph testing in

response to missing property would be permitted where additional

evidence is obtained through subsequent investigation of specific

items missing through intentional wrongdoing, and a reasonable

suspicion that the employee to be polygraphed was involved in

the incident under investigation. Administering a polygraph test

in circumstances where the missing property is merely unspecified,

statistical shortages, without identification of a specific incident

or activity that produced the missing property and a ‘‘reasonable

suspicion that the employee was involved’’, would amount to little

more than a fishing expedition and is prohibited by the EPPA

as applied to covered employees and employing offices by the CAA.

(c)(1)(i) The terms economic loss or injury to the employing

office’s operations include both direct and indirect economic loss

or injury.

(ii) Direct loss or injury includes losses or injuries resulting

from theft, embezzlement, misappropriation, espionage or sabotage.

These examples, cited in the EPPA, are intended to be illustrative

and not exhaustive. Another specific incident which would constitute

direct economic loss or injury is the misappropriation of confidential

or trade secret information.

(iii) Indirect loss or injury includes the use of an employing

office’s operations to commit a crime, such as check-kiting or money

laundering. In such cases, the ongoing investigation must be limited

to criminal activity that has already occurred, and to use of the

employing office’s operations (and not simply the use of the premises) for such activity. For example, the use of an employing office’s

vehicles, warehouses, computers or equipment to smuggle or facilitate the importing of illegal substances constitutes an indirect loss

or injury to the employing office’s business operations. Conversely,

the mere fact that an illegal act occurs on the employing office’s

premises (such as a drug transaction that takes place in the employing office’s parking lot or rest room) does not constitute an indirect

economic loss or injury to the employing office.

(iv) Indirect loss or injury also includes theft or injury to

property of another for which the employing office exercises fiduciary, managerial or security responsibility, or where the office

has custody of the property (but not property of other offices to

which the employees have access by virtue of the employment
S. Con. Res. 51—112

relationship). For example, if a maintenance employee of the manager of an apartment building steals jewelry from a tenant’s apartment, the theft results in an indirect economic loss or injury to

the employer because of the manager’s management responsibility

with respect to the tenant’s apartment. A messenger on a delivery

of confidential business reports for a client firm who steals the

reports causes an indirect economic loss or injury to the messenger

service because the messenger service is custodian of the client

firm’s reports, and therefore is responsible for their security. Similarly, the theft of property protected by a security service employer

is considered an economic loss or injury to that employer.

(v) A theft or injury to a client firm does not constitute an

indirect loss or injury to an employing office unless that employing

office has custody of, or management, or security responsibility

for, the property of the client that was lost or stolen or injured.

For example, a cleaning contractor has no responsibility for the

money at a client bank. If money is stolen from the bank by

one of the cleaning contractor’s employees, the cleaning contractor

does not suffer an indirect loss or injury.

(vi) Indirect loss or injury does not include loss or injury which

is merely threatened or potential, e.g., a threatened or potential

loss of an advantageous business relationship.

(2) Economic losses or injuries which are the result of unintentional or lawful conduct would not serve as a basis for the administration of a polygraph test. Thus, apparently unintentional losses

or injuries stemming from truck, car, workplace, or other similar

type accidents or routine inventory or cash register shortages would

not meet the economic loss or injury requirement. Any economic

loss incident to lawful union or employee activity also would not

satisfy this requirement.

(3) It is the operations of the employing office which must

suffer the economic loss or injury. Thus, a theft committed by

one employee against another employee of the same employing

office would not satisfy the requirement.

(d) While nothing in the EPPA as applied by the CAA prohibits

the use of medical tests to determine the presence of controlled

substances or alcohol in bodily fluids, the section 7(d) exemption

of the EPPA does not permit the use of a polygraph test to learn

whether an employee has used drugs or alcohol, even where such

possible use may have contributed to an economic loss to the

employing office (e.g., an accident involving an employing office’s

vehicle).

(e) Section 7(d)(2) of the EPPA provides that, as a condition

for the use of the exemption, the employee must have had access

to the property that is the subject of the investigation.

(1) The word access, as used in section 7(d)(2), refers to

the opportunity which an employee had to cause, or to aid

or abet in causing, the specific economic loss or injury under

investigation. The term ‘‘access’’, thus, includes more than

direct or physical contact during the course of employment.

For example, as a general matter, all employees working in

or with authority to enter a property storage area have ‘‘access’’

to unsecured property in the area. All employees with the

combination to a safe have ‘‘access’’ to the property in a locked

safe. Employees also have ‘‘access’’ who have the ability to

divert possession or otherwise affect the disposition of the property that is the subject of investigation. For example, a book-
S. Con. Res. 51—113

keeper in a jewelry store with access to inventory records

may aid or abet a clerk who steals an expensive watch by

removing the watch from the employing office’s inventory

records. In such a situation, it is clear that the bookkeeper

effectively has ‘‘access’’ to the property that is the subject of

the investigation.

(2) As used in section 7(d)(2), property refers to specifically

identifiable property, but also includes such things of value

as security codes and computer data, and proprietary, financial

or technical information, such as trade secrets, which by its

availability to competitors or others would cause economic harm

to the employing office.

(f)(1) As used in section 7(d)(3), the term reasonable suspicion

refers to an observable, articulable basis in fact which indicates

that a particular employee was involved in, or responsible for,

an economic loss. Access in the sense of possible or potential opportunity, standing alone, does not constitute a basis for ‘‘reasonable

suspicion’’. Information from a co-worker, or an employee’s behavior,

demeanor, or conduct may be factors in the basis for reasonable

suspicion. Likewise, inconsistencies between facts, claims, or statements that surface during an investigation can serve as a sufficient

basis for reasonable suspicion. While access or opportunity, standing

alone, does not constitute a basis for reasonable suspicion, the

totality of circumstances surrounding the access or opportunity

(such as its unauthorized or unusual nature or the fact that access

was limited to a single individual) may constitute a factor in determining whether there is a reasonable suspicion.

(2) For example, in an investigation of a theft of an expensive

piece of jewelry, an employee authorized to open the establishment’s

safe no earlier than 9 a.m., in order to place the jewelry in a

window display case, is observed opening the safe at 7:30 a.m.

In such a situation, the opening of the safe by the employee one

and one-half hours prior to the specified time may serve as the

basis for reasonable suspicion. On the other hand, in the example

given, if the employee is asked to bring the piece of jewelry to

his or her office at 7:30 a.m., and the employee then opened the

safe and reported the jewelry missing, such access, standing alone,

would not constitute a basis for reasonable suspicion that the

employee was involved in the incident unless access to the safe

was limited solely to the employee. If no one other than the

employee possessed the combination to the safe, and all other

possible explanations for the loss are ruled out, such as a breakin, a basis for reasonable suspicion may be formulated based on

sole access by one employee.

(3) The employing office has the burden of establishing that

the specific individual or individuals to be tested are ‘‘reasonably

suspected’’ of involvement in the specific economic loss or injury

for the requirement in section 7(d)(3) of the EPPA to be met.

(g)(1) As discussed in paragraph (a)(4) of this section, section

7(d)(4) of the EPPA sets forth what information, at a minimum,

must be provided to an employee if the employing office wishes

to claim the exemption.

(2) The statement required under paragraph (a)(4) of this section must be received by the employee at least 48 hours, excluding

weekend days and holidays, prior to the time of the examination.

The statement must set forth the time and date of receipt by

the employee and be verified by the employee’s signature. This
S. Con. Res. 51—114

will provide the employee with adequate pre-test notice of the

specific incident or activity being investigated and afford the

employee sufficient time prior to the test to obtain and consult

with legal counsel or an employee representative.

(3) The statement to be provided to the employee must set

forth with particularity the specific incident or activity being investigated and the basis for testing particular employees. Section

7(d)(4)(A) of the EPPA requires specificity beyond the mere assertion

of general statements regarding economic loss, employee access,

and reasonable suspicion. For example, an employing office’s assertion that an expensive watch was stolen, and that the employee

had access to the watch and is therefore a suspect, would not

meet the ‘‘with particularity’’ criterion. If the basis for an employing

office’s requesting an employee (or employees) to take a polygraph

test is not articulated with particularity, and reduced to writing,

then the standard is not met. The identity of a co-worker or other

individual providing information used to establish reasonable suspicion need not be revealed in the statement.

(4) It is further required that the statement provided to the

examinee be signed by the employing office, or an employee or

other representative of the employing office with authority to legally

bind the employing office. The person signing the statement must

not be a polygraph examiner unless the examiner is acting solely

in the capacity of an employing office with respect to his or her

own employees and does not conduct the examination. The standard

would not be met, and the exemption would not apply if the person

signing the statement is not authorized to legally bind the employing office.

(h) Polygraph tests administered pursuant to this exemption

are subject to the limitations set forth in sections 8 and 10 of

the EPPA, as discussed in sections 1.20, 1.22, 1.23, 1.24, 1.25,

1.26, and 1.35 of this part. As provided in these sections, the

exemption will apply only if certain requirements are met. Failure

to satisfy any of the specified requirements nullifies the statutory

authority for polygraph test administration and may subject the

employing office to remedial actions, as provided for in section

6(c) of the EPPA.

SEC. 1.13 EXEMPTION OF EMPLOYING OFFICES AUTHORIZED TO

MANUFACTURE, DISTRIBUTE, OR DISPENSE CONTROLLED SUBSTANCES.

(a) Section 7(f) of the EPPA, incorporated into the CAA by

section 225(f) of the CAA, provides an exemption from the EPPA’s

general prohibition regarding the use of polygraph tests for employers authorized to manufacture, distribute, or dispense a controlled

substance listed in schedule I, II, III, or IV of section 202 of

the Controlled Substances Act (21 U.S.C. § 812). This exemption

permits the administration of polygraph tests, subject to the conditions set forth in sections 8 and 10 of the EPPA and sections

1.21, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 of this part, to:

(1) A prospective employee who would have direct access

to the manufacture, storage, distribution, or sale of any such

controlled substance; or

(2) A current employee if the following conditions are met:

(i) The test is administered in connection with an

ongoing investigation of criminal or other misconduct

involving, or potentially involving, loss or injury to the
S. Con. Res. 51—115

manufacture, distribution, or dispensing of any such controlled substance by such employing office; and

(ii) The employee had access to the person or property

that is the subject of the investigation.

(b)(1) The terms ‘‘manufacture’’, ‘‘distribute’’, ‘‘distribution’’,

‘‘dispense’’, ‘‘storage’’, and ‘‘sale’’, for the purposes of this exemption,

are construed within the meaning of the Controlled Substances

Act (21 U.S.C. § 812 et seq.), as administered by the Drug Enforcement Administration (DEA), United States Department of Justice.

(2) The exemption in section 7(f) of the EPPA applies only

to employing offices that are authorized by DEA to manufacture,

distribute, or dispense a controlled substance. Section 202 of the

Controlled Substances Act (21 U.S.C. § 812) requires every person

who manufactures, distributes, or dispenses any controlled substance to register with the Attorney General (i.e., with DEA). Common or contract carriers and warehouses whose possession of the

controlled substance is in the usual course of their business or

employment are not required to register. Truck drivers and warehouse employees of the persons or entities registered with DEA

and authorized to manufacture, distribute, or dispense controlled

substances, are within the scope of the exemption where they have

direct access or access to the controlled substances, as discussed

below.

(c) In order for a polygraph examination to be performed, section

7(f) of the Act requires that a prospective employee have ‘‘direct

access’’ to the controlled substance(s) manufactured, dispensed, or

distributed by the employing office. Where a current employee

is to be tested as a part of an ongoing investigation, section 7(f)

requires that the employee have ‘‘access’’ to the person or property

that is the subject of the investigation.

(1) A prospective employee would have ‘‘direct access’’ if

the position being applied for has responsibilities which include

contact with or which affect the disposition of a controlled

substance, including participation in the process of obtaining,

dispensing, or otherwise distributing a controlled substance.

This includes contact or direct involvement in the manufacture,

storage, testing, distribution, sale or dispensing of a controlled

substance and may include, for example, packaging, repackaging, ordering, licensing, shipping, receiving, taking inventory,

providing security, prescribing, and handling of a controlled

substance. A prospective employee would have ‘‘direct access’’

if the described job duties would give such person access to

the products in question, whether such employee would be

in physical proximity to controlled substances or engaged in

activity which would permit the employee to divert such substances to his or her possession.

(2) A current employee would have ‘‘access’’ within the

meaning of section 7(f) if the employee had access to the specific

person or property which is the subject of the on-going investigation, as discussed in section 1.12(e) of this part. Thus,

to test a current employee, the employee need not have had

‘‘direct’’ access to the controlled substance, but may have had

only infrequent, random, or opportunistic access. Such access

would be sufficient to test the employee if the employee could

have caused, or could have aided or abetted in causing, the

loss of the specific property which is the subject of the investigation. For example, a maintenance worker in a drug warehouse,
S. Con. Res. 51—116

whose job duties include the cleaning of areas where the controlled substances which are the subject of the investigation

were present, but whose job duties do not include the handling

of controlled substances, would be deemed to have ‘‘access’’,

but normally not ‘‘direct access’’, to the controlled substances.

On the other hand, a drug warehouse truck loader, whose

job duties include the handling of outgoing shipment orders

which contain controlled substances, would have ‘‘direct access’’

to such controlled substances. A pharmacy department in a

supermarket is another common situation which is useful in

illustrating the distinction between ‘‘direct access’’ and ‘‘access’’.

Store personnel receiving pharmaceutical orders, i.e., the pharmacist, pharmacy intern, and other such employees working

in the pharmacy department, would ordinarily have ‘‘direct

access’’ to controlled substances. Other store personnel whose

job duties and responsibilities do not include the handling

of controlled substances but who had occasion to enter the

pharmacy department where the controlled substances which

are the subject of the investigation were stored, such as maintenance personnel or pharmacy cashiers, would have ‘‘access’’.

Certain other store personnel whose job duties do not permit

or require entrance into the pharmacy department for any

reason, such as produce or meat clerks, checkout cashiers,

or baggers, would not ordinarily have ‘‘access’’. However, any

current employee, regardless of described job duties, may be

polygraphed if the employing office’s investigation of criminal

or other misconduct discloses that such employee in fact took

action to obtain ‘‘access’’ to the person or property that is

the subject of the investigation—e.g., by actually entering the

drug storage area in violation of company rules. In the case

of ‘‘direct access’’, the prospective employee’s access to controlled

substances would be as a part of the manufacturing, dispensing

or distribution process, while a current employee’s ‘‘access’’

to the controlled substances which are the subject of the investigation need only be opportunistic.

(d) The term ‘‘prospective employee’’, for the purposes of this

section, includes a current employee who presently holds a position

which does not entail direct access to controlled substances, and

therefore is outside the scope of the exemption’s provisions for

preemployment polygraph testing, provided the employee has

applied for and is being considered for transfer or promotion to

another position which entails such direct access. For example,

an office secretary may apply for promotion to a position in the

vault or cage areas of a drug warehouse, where controlled substances are kept. In such a situation, the current employee would

be deemed a ‘‘prospective employee’’ for the purposes of this exemption, and thus could be subject to preemployment polygraph screening, prior to such a change in position. However, any adverse

action which is based in part on a polygraph test against a current

employee who is considered a ‘‘prospective employee’’ for purposes

of this section may be taken only with respect to the prospective

position and may not affect the employee’s employment in the

current position.

(e) Section 7(f) of the EPPA, as applied by the CAA, makes

no specific reference to a requirement that employing offices provide

current employees with a written statement prior to polygraph

testing. Thus, employing offices to whom this exemption is available
S. Con. Res. 51—117

are not required to furnish a written statement such as that specified in section 7(d) of the EPPA and section 1.12(a)(4) of this

part.

(f) For the section 7(f) exemption to apply, the polygraph testing

of current employees must be administered in connection with

an ongoing investigation of criminal or other misconduct involving,

or potentially involving, loss or injury to the manufacture, distribution, or dispensing of any such controlled substance by such employing office.

(1) Current employees may only be administered polygraph

tests in connection with an ongoing investigation of criminal

or other misconduct, relating to a specific incident or activity,

or potential incident or activity. Thus, an employing office

is precluded from using the exemption in connection with

continuing investigations or on a random basis to determine

if thefts are occurring. However, unlike the exemption in section

7(d) of the EPPA for employing offices conducting ongoing investigations of economic loss or injury, the section 7(f) exemption

includes ongoing investigations of misconduct involving potential drug losses. Nor does the latter exemption include the

requirement for ‘‘reasonable suspicion’’ contained in the section

7(d) exemption. Thus, a drug store operator is permitted to

polygraph all current employees who have access to a controlled

substance stolen from the inventory, or where there is evidence

that such a theft is planned. Polygraph testing based on an

inventory shortage of the drug during a particular accounting

period would not be permitted unless there is extrinsic evidence

of misconduct.

(2) In addition, the test must be administered in connection

with loss or injury, or potential loss or injury, to the manufacture, distribution, or dispensing of a controlled substance.

(i) Retail drugstores and wholesale drug warehouses

typically carry inventory of so-called health and beauty

aids, cosmetics, over-the-counter drugs, and a variety of

other similar products, in addition to their product lines

of controlled drugs. The noncontrolled products usually constitute the majority of such firms’ sales volumes. An economic loss or injury related to such noncontrolled substances would not constitute a basis of applicability of

the section 7(f) exemption. For example, an investigation

into the theft of a gross of cosmetic products could not

be a basis for polygraph testing under section 7(f), but

the theft of a container of valium could be.

(ii) Polygraph testing, with respect to an ongoing investigation concerning products other than controlled substances might be initiated under section 7(d) of the EPPA

and section 1.12 of this part. However, the exemption in

section 7(f) of the EPPA and this section is limited solely

to losses or injury associated with controlled substances.

(g) Polygraph tests administered pursuant to this exemption

are subject to the limitations set forth in sections 8 and 10 of

the EPPA, as discussed in sections 1.21, 1.22, 1.23, 1.24, 1.25,

1.26, and 1.35 of this part. As provided in these sections, the

exemption will apply only if certain requirements are met. Failure

to satisfy any of the specified requirements nullifies the statutory

authority for polygraph test administration and may subject the

employing office to the remedies authorized in section 204 of the
S. Con. Res. 51—118

CAA. The administration of such tests is also subject to collective

bargaining agreements, which may either prohibit lie detector tests,

or contain more restrictive provisions with respect to polygraph

testing.

SUBPART C—RESTRICTIONS ON POLYGRAPH USAGE UNDER

EXEMPTIONS

SEC. 1.20 ADVERSE EMPLOYMENT ACTION UNDER ONGOING INVESTIGATION EXEMPTION.

(a) Section 8(a)(1) of the EPPA provides that the limited exemption in section 7(d) of the EPPA and section 1.12 of this part

for ongoing investigations shall not apply if an employing office

discharges, disciplines, denies employment or promotion or otherwise discriminates in any manner against a current employee based

upon the analysis of a polygraph test chart or the refusal to take

a polygraph test, without additional supporting evidence.

(b) ‘‘Additional supporting evidence’’, for purposes of section

8(a) of the EPPA, includes, but is not limited to, the following:

(1)(i) Evidence indicating that the employee had access

to the missing or damaged property that is the subject of

an ongoing investigation; and

(ii) Evidence leading to the employing office’s reasonable

suspicion that the employee was involved in the incident or

activity under investigation; or

(2) Admissions or statements made by an employee before,

during or following a polygraph examination.

(c) Analysis of a polygraph test chart or refusal to take a

polygraph test may not serve as a basis for adverse employment

action, even with additional supporting evidence, unless the employing office observes all the requirements of sections 7(d) and 8(b)

of the EPPA, as applied by the CAA and described in sections

1.12, 1.22, 1.23, 1.24 and 1.25 of this part.

SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED SUBSTANCE EXEMPTION.

(a) Section 8(a)(2) of the EPPA provides that the controlled

substance exemption in section 7(f) of the EPPA and section 1.13

of this part shall not apply if an employing office discharges, disciplines, denies employment or promotion, or otherwise discriminates in any manner against a current employee or prospective

employee based solely on the analysis of a polygraph test chart

or the refusal to take a polygraph test.

(b) Analysis of a polygraph test chart or refusal to take a

polygraph test may serve as one basis for adverse employment

actions of the type described in paragraph (a) of this section: Provided, That the adverse action was also based on another bona

fide reason, with supporting evidence therefor. For example, traditional factors such as prior employment experience, education, job

performance, etc. may be used as a basis for employment decisions.

Employment decisions based on admissions or statements made

by an employee or prospective employee before, during or following

a polygraph examination may, likewise, serve as a basis for such

decisions.

(c) Analysis of a polygraph test chart or the refusal to take

a polygraph test may not serve as a basis for adverse employment

action, even with another legitimate basis for such action, unless
S. Con. Res. 51—119

the employing office observes all the requirements of section 7(f)

of the EPPA, as appropriate, and section 8(b) of the EPPA, as

described in sections 1.13, 1.22, 1.23, 1.24 and 1.25 of this part.

SEC. 1.22 RIGHTS OF EXAMINEE—GENERAL.

(a) Pursuant to section 8(b) of the EPPA, the limited exemption

in section 7(d) of the EPPA for ongoing investigations (described

in sections 1.12 and 1.13 of this part) shall not apply unless all

of the requirements set forth in this section and sections 1.23

through 1.25 of this part are met.

(b) During all phases of the polygraph testing the person being

examined has the following rights:

(1) The examinee may terminate the test at any time.

(2) The examinee may not be asked any questions in a

degrading or unnecessarily intrusive manner.

(3) The examinee may not be asked any questions dealing

with:

(i) Religious beliefs or affiliations;

(ii) Beliefs or opinions regarding racial matters;

(iii) Political beliefs or affiliations;

(iv) Sexual preferences or behavior; or

(v) Beliefs, affiliations, opinions, or lawful activities

concerning unions or labor organizations.

(4) The examinee may not be subjected to a test when

there is sufficient written evidence by a physician that the

examinee is suffering from any medical or psychological condition or undergoing any treatment that might cause abnormal

responses during the actual testing phase. ‘‘Sufficient written

evidence’’ shall constitute, at a minimum, a statement by a

physician specifically describing the examinee’s medical or

psychological condition or treatment and the basis for the physician’s opinion that the condition or treatment might result

in such abnormal responses.

(5) An employee or prospective employee who exercises

the right to terminate the test, or who for medical reasons

with sufficient supporting evidence is not administered the

test, shall be subject to adverse employment action only on

the same basis as one who refuses to take a polygraph test,

as described in sections 1.20 and 1.21 of this part.

(c) Any polygraph examination shall consist of one or more

pretest phases, actual testing phases, and post-test phases, which

must be conducted in accordance with the rights of examinees

described in sections 1.23 through 1.25 of this part.

SEC. 1.23 RIGHTS OF EXAMINEE—PRETEST PHASE.

(a) The pretest phase consists of the questioning and other

preparation of the prospective examinee before the actual use of

the polygraph instrument. During the initial pretest phase, the

examinee must be:

(1) Provided with written notice, in a language understood

by the examinee, as to when and where the examination will

take place and that the examinee has the right to consult

with counsel or an employee representative before each phase

of the test. Such notice shall be received by the examinee

at least 48 hours, excluding weekend days and holidays, before

the time of the examination, except that a prospective employee

may, at the employee’s option, give written consent to administration of a test anytime within 48 hours but no earlier than
S. Con. Res. 51—120

24 hours after receipt of the written notice. The written notice

or proof of service must set forth the time and date of receipt

by the employee or prospective employee and be verified by

his or her signature. The purpose of this requirement is to

provide a sufficient opportunity prior to the examination for

the examinee to consult with counsel or an employee representative. Provision shall also be made for a convenient place on

the premises where the examination will take place at which

the examinee may consult privately with an attorney or an

employee representative before each phase of the test. The

attorney or representative may be excluded from the room

where the examination is administered during the actual testing phase.

(2) Informed orally and in writing of the nature and

characteristics of the polygraph instrument and examination,

including an explanation of the physical operation of the polygraph instrument and the procedure used during the examination.

(3) Provided with a written notice prior to the testing

phase, in a language understood by the examinee, which shall

be read to and signed by the examinee. Use of Appendix A

to this part, if properly completed, will constitute compliance

with the contents of the notice requirement of this paragraph.

If a format other than in Appendix A is used, it must contain

at least the following information:

(i) Whether or not the polygraph examination area

contains a two-way mirror, a camera, or other device

through which the examinee may be observed;

(ii) Whether or not any other device, such as those

used in conversation or recording will be used during the

examination;

(iii) That both the examinee and the employing office

have the right, with the other’s knowledge, to make a

recording of the entire examination;

(iv) That the examinee has the right to terminate

the test at any time;

(v) That the examinee has the right, and will be given

the opportunity, to review all questions to be asked during

the test;

(vi) That the examinee may not be asked questions

in a manner which degrades, or needlessly intrudes;

(vii) That the examinee may not be asked any questions

concerning religious beliefs or opinions; beliefs regarding

racial matters; political beliefs or affiliations; matters relating to sexual behavior; beliefs, affiliations, opinions, or

lawful activities regarding unions or labor organizations;

(viii) That the test may not be conducted if there

is sufficient written evidence by a physician that the examinee is suffering from a medical or psychological condition

or undergoing treatment that might cause abnormal

responses during the examination;

(ix) That the test is not and cannot be required as

a condition of employment;

(x) That the employing office may not discharge, dismiss, discipline, deny employment or promotion, or otherwise discriminate against the examinee based on the analysis of a polygraph test, or based on the examinee’s refusal
S. Con. Res. 51—121

to take such a test, without additional evidence which

would support such action;

(xi)(A) In connection with an ongoing investigation,

that the additional evidence required for the employing

office to take adverse action against the examinee, including termination, may be evidence that the examinee had

access to the property that is the subject of the investigation, together with evidence supporting the employing

office’s reasonable suspicion that the examinee was

involved in the incident or activity under investigation;

(B) That any statement made by the examinee before

or during the test may serve as additional supporting evidence for an adverse employment action, as described in

paragraph (a)(3)(x) of this section, and that any admission

of criminal conduct by the examinee may be transmitted

to an appropriate Government law enforcement agency;

(xii) That information acquired from a polygraph test

may be disclosed by the examiner or by the employing

office only:

(A) To the examinee or any other person specifically designated in writing by the examinee to receive

such information;

(B) To the employing office that requested the

test;

(C) To a court, governmental agency, arbitrator,

or mediator pursuant to a court order;

(D) By the employing office, to an appropriate

governmental agency without a court order where, and

only insofar as, the information disclosed is an admission of criminal conduct;

(xiii) That if any of the examinee’s rights or protections

under the law are violated, the examinee has the right

to take action against the employing office under sections

401–404 of the CAA. Employing offices that violate this

law are liable to the affected examinee, who may recover

such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, and

promotion, payment of lost wages and benefits, and reasonable costs, including attorney’s fees;

(xiv) That the examinee has the right to obtain and

consult with legal counsel or other representative before

each phase of the test, although the legal counsel or representative may be excluded from the room where the

test is administered during the actual testing phase.

(xv) That the employee’s rights under the CAA may

not be waived, either voluntarily or involuntarily, by contract or otherwise, except as part of a written settlement

to a pending action or complaint under the CAA, agreed

to and signed by the parties.

(b) During the initial or any subsequent pretest phases, the

examinee must be given the opportunity, prior to the actual testing

phase, to review all questions in writing that the examiner will

ask during each testing phase. Such questions may be presented

at any point in time prior to the testing phase.
S. Con. Res. 51—122

SEC. 1.24 RIGHTS OF EXAMINEE—ACTUAL TESTING PHASE.

(a) The actual testing phase refers to that time during which

the examiner administers the examination by using a polygraph

instrument with respect to the examinee and then analyzes the

charts derived from the test. Throughout the actual testing phase,

the examiner shall not ask any question that was not presented

in writing for review prior to the testing phase. An examiner may,

however, recess the testing phase and return to the pre-test phase

to review additional relevant questions with the examinee. In the

case of an ongoing investigation, the examiner shall ensure that

all relevant questions (as distinguished from technical baseline

questions) pertain to the investigation.

(b) No testing period subject to the provisions of the Act shall

be less than ninety minutes in length. Such ‘‘test period’’ begins

at the time that the examiner begins informing the examinee of

the nature and characteristics of the examination and the

instruments involved, as prescribed in section 8(b)(2)(B) of the

EPPA and section 1.23(a)(2) of this part, and ends when the examiner completes the review of the test results with the examinee

as provided in section 1.25 of this part. The ninety-minute minimum

duration shall not apply if the examinee voluntarily acts to terminate the test before the completion thereof, in which event the

examiner may not render an opinion regarding the employee’s

truthfulness.

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

(a) The post-test phase refers to any questioning or other

communication with the examinee following the use of the polygraph

instrument, including review of the results of the test with the

examinee. Before any adverse employment action, the employing

office must:

(1) Further interview the examinee on the basis of the

test results; and

(2) Give to the examinee a written copy of any opinions

or conclusions rendered in response to the test, as well as

the questions asked during the test, with the corresponding

charted responses. The term ‘‘corresponding charted responses’’

refers to copies of the entire examination charts recording the

employee’s physiological responses, and not just the examiner’s

written report which describes the examinee’s responses to

the questions as ‘‘charted’’ by the instrument.

SEC. 1.26 QUALIFICATIONS OF AND REQUIREMENTS FOR EXAMINERS.

(a) Section 8 (b) and (c) of the EPPA provides that the limited

exemption in section 7(d) of the EPPA for ongoing investigations

shall not apply unless the person conducting the polygraph examination meets specified qualifications and requirements.

(b) An examiner must meet the following qualifications:

(1) Have a valid current license, if required by the State

in which the test is to be conducted; and

(2) Carry a minimum bond of $50,000 provided by a surety

incorporated under the laws of the United States or of any

State, which may under those laws guarantee the fidelity of

persons holding positions of trust, or carry an equivalent

amount of professional liability coverage.

(c) An examiner must also, with respect to examinees identified

by the employing office pursuant to section 1.30(c) of this part:
S. Con. Res. 51—123

(1) Observe all rights of examinees, as set out in sections

1.22, 1.23, 1.24, and 1.25 of this part;

(2) Administer no more than five polygraph examinations

in any one calendar day on which a test or tests subject to

the provisions of EPPA are administered, not counting those

instances where an examinee voluntarily terminates an examination prior to the actual testing phase;

(3) Administer no polygraph examination subject to the

provisions of the EPPA which is less than ninety minutes

in duration, as described in section 1.24(b) of this part; and

(4) Render any opinion or conclusion regarding truthfulness

or deception in writing. Such opinion or conclusion must be

based solely on the polygraph test results. The written report

shall not contain any information other than admissions,

information, case facts, and interpretation of the charts relevant

to the stated purpose of the polygraph test and shall not include

any recommendation concerning the employment of the examinee.

(5) Maintain all opinions, reports, charts, written questions,

lists, and other records relating to the test, including, statements signed by examinees advising them of rights under the

CAA (as described in section 1.23(a)(3) of this part) and any

electronic recordings of examinations, for at least three years

from the date of the administration of the test. (See section

1.30 of this part for recordkeeping requirements.)

SUBPART D—RECORDKEEPING AND DISCLOSURE REQUIREMENTS

SEC. 1.30 RECORDS TO BE PRESERVED FOR 3 YEARS.

(a) The following records shall be kept for a minimum period

of three years from the date the polygraph examination is conducted

(or from the date the examination is requested if no examination

is conducted):

(1) Each employing office that requests an employee to

submit to a polygraph examination in connection with an

ongoing investigation involving economic loss or injury shall

retain a copy of the statement that sets forth the specific

incident or activity under investigation and the basis for testing

that particular covered employee, as required by section 7(d)(4)

of the EPPA and described in 1.12(a)(4) of this part.

(2) Each examiner retained to administer examinations

pursuant to any of the exemptions under section 7 (d), (e)

or (f) of the EPPA (described in sections 1.12 and 1.13 of

this part) shall maintain all opinions, reports, charts, written

questions, lists, and other records relating to polygraph tests

of such persons.

SEC. 1.35 DISCLOSURE OF TEST INFORMATION.

This section prohibits the unauthorized disclosure of any

information obtained during a polygraph test by any person, other

than the examinee, directly or indirectly, except as follows:

(a) A polygraph examiner or an employing office (other than

an employing office exempt under section 7 (a) or (b) of the EPPA

(described in sections 1.10 and 1.11 of this part)) may disclose

information acquired from a polygraph test only to:

(1) The examinee or an individual specifically designated

in writing by the examinee to receive such information;
S. Con. Res. 51—124

(2) The employing office that requested the polygraph test

pursuant to the provisions of the EPPA (including management

personnel of the employing office where the disclosure is relevant to the carrying out of their job responsibilities);

(3) Any court, governmental agency, arbitrator, or mediator

pursuant to an order from a court of competent jurisdiction

requiring the production of such information;

(b) An employing office may disclose information from the polygraph test at any time to an appropriate governmental agency

without the need of a court order where, and only insofar as,

the information disclosed is an admission of criminal conduct.

(c) A polygraph examiner may disclose test charts, without

identifying information (but not other examination materials and

records), to another examiner(s) for examination and analysis, provided that such disclosure is for the sole purpose of consultation

and review of the initial examiner’s opinion concerning the indications of truthfulness or deception. Such action would not constitute

disclosure under this part provided that the other examiner has

no direct or indirect interest in the matter.

SUBPART E—[RESERVED]

SEC. 1.40 [RESERVED].

APPENDIX A TO PART 801—NOTICE TO EXAMINEE

Section 204 of the Congressional Accountability Act, which

applies the rights and protections of section 8(b) of the Employee

Polygraph Protection Act to covered employees and employing

offices, and the regulations of the Board of Directors of the Office

of Compliance (sections 1.22, 1.23, 1.24, and 1.25), require that

you be given the following information before taking a polygraph

examination:

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

(b) Another device, such as those used in conversation or recording [will] [will

not] be used during the examination.

(c) Both you and the employing office have the right, with the other’s knowledge,

to record electronically the entire examination.

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

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

to be asked during the test.

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

(d) You may not be asked any questions concerning: Religious beliefs or opinions;

beliefs regarding racial matters; political beliefs or affiliations; matters relating to

sexual preference or behavior; beliefs, affiliations, opinions, or lawful activities regarding unions or labor organizations.

(e) The test may not be conducted if there is sufficient written evidence by a physician that you are suffering from a medical or psychological condition or undergoing

treatment that might cause abnormal responses during the examination.

(f) You have the right to consult with legal counsel or other representative before

each phase of the test, although the legal counsel or other representative may be

excluded from the room where the test is administered during the actual testing

phase.

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

(b) The employing office may not discharge, dismiss, discipline, deny employment or

promotion, or otherwise discriminate against you based on the analysis of a poly-
S. Con. Res. 51—125

graph test, or based on your refusal to take such a test without additional evidence

which would support such action.

(c)(1) In connection with an ongoing investigation, the additional evidence required

for an employing office to take adverse action against you, including termination,

may be (A) evidence that you had access to the property that is the subject of the

investigation, together with (B) the evidence supporting the employing office’s reasonable suspicion that you were involved in the incident or activity under investigation.

(2) Any statement made by you before or during the test may serve as additional

supporting evidence for an adverse employment action, as described in 3(b) above,

and any admission of criminal conduct by you may be transmitted to an appropriate

Government law enforcement agency.

4. (a) Information acquired from a polygraph test may be disclosed by the examiner

or by the employing office only:

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

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

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

order.

(b) Information acquired from a polygraph test may be disclosed by the employing

office to an appropriate governmental agency without a court order where, and only

insofar as, the information disclosed is an admission of criminal conduct.

5. If any of your rights or protections under the law are violated, you have the right

to take action against the employing office by filing a request for counseling with

the Office of Compliance under section 402 of the Congressional Accountability Act.

Employing offices that violate this law are liable to the affected examinee, who may

recover such legal or equitable relief as may be appropriate, including, but not limited to, employment, reinstatement, and promotion, payment of lost wages and benefits, and reasonable costs, including attorney’s fees.

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

action or complaint under the CAA, and agreed to and signed by the parties.

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

read to me.

llllllllllllllllllll

(Date)

llllllllllllllllllll

(Signature)

APPLICATION OF RIGHTS AND PROTECTIONS OF THE

WORKER ADJUSTMENT RETRAINING AND NOTIFICATION

ACT OF 1988 (IMPLEMENTING SECTION 204 OF THE CAA)

Sec.

639.1 Purpose and scope.

639.2 What does WARN require?

639.3 Definitions.

639.4 Who must give notice?

639.5 When must notice be given?

639.6 Who must receive notice?

639.7 What must the notice contain?

639.8 How is the notice served?

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

639.10 When may notice be extended?

639.11 [Reserved].

§ 639.1 Purpose and scope

(a) PURPOSE OF WARN AS APPLIED BY THE CAA.—Section 205

of the Congressional Accountability Act, Public Law 104–1 (‘‘CAA’’),

provides protection to covered employees and their families by

requiring employing offices to provide notification 60 calendar days

in advance of office closings and mass layoffs within the meaning
S. Con. Res. 51—126

of section 3 of the Worker Adjustment and Retraining Notification

Act of 1988, 29 U.S.C. § 2102. Advance notice provides workers

and their families some transition time to adjust to the prospective

loss of employment, to seek and obtain alternative jobs and, if

necessary, to enter skill training or retraining that will allow these

workers to successfully compete in the job market. As used in

these regulations, WARN shall refer to the provisions of WARN

applied to covered employing offices by section 205 of the CAA.

(b) SCOPE OF THESE REGULATIONS.—These regulations are

issued by the Board of Directors, Office of Compliance, pursuant

to sections 205(c) and 304 of the CAA, which directs the Board

to promulgate regulations implementing section 205 that are ‘‘the

same as substantive regulations promulgated by the Secretary of

Labor to implement the statutory provisions referred to in subsection (a) [of section 205 of the CAA] except insofar as the Board

may determine, for good cause shown*** that a modification

of such regulations would be more effective for the implementation

of the rights and protections under this section’’. The regulations

issued by the Board herein are on all matters for which section

205 of the CAA requires a regulation to be issued. Specifically,

it is the Board’s considered judgment, based on the information

available to it at the time of promulgation of these regulations,

that, with the exception of regulations adopted and set forth herein,

there are no other ‘‘substantive regulations promulgated by the

Secretary of Labor to implement the statutory provisions referred

to in subsection (a) [of section 205 of the CAA]’’.

In promulgating these regulations, the Board has made certain

technical and nomenclature changes to the regulations as promulgated by the Secretary. Such changes are intended to make the

provisions adopted accord more naturally to situations in the legislative branch. However, by making these changes, the Board does

not intend a substantive difference between these sections and

those of the Secretary from which they are derived. Moreover,

such changes, in and of themselves, are not intended to constitute

an interpretation of the regulation or of the statutory provisions

of the CAA upon which they are based.

These regulations establish basic definitions and rules for giving

notice, implementing the provisions of WARN. The objective of

these regulations is to establish clear principles and broad guidelines which can be applied in specific circumstances. However,

it is recognized that rulemaking cannot address the multitude of

employing office-specific situations in which advance notice will

be given.

(c) NOTICE IN AMBIGUOUS SITUATIONS.—It is civically desirable

and it would appear to be good business practice for an employing

office to provide advance notice, where reasonably possible, to its

workers or unions when terminating a significant number of

employees. The Office encourages employing offices to give notice

in such circumstances.

(d) WARN NOT TO SUPERSEDE OTHER LAWS AND CONTRACTS.—

The provisions of WARN do not supersede any otherwise applicable

laws or collective bargaining agreements that provide for additional

notice or additional rights and remedies. If such law or agreement

provides for a longer notice period, WARN notice shall run concurrently with that additional notice period. Collective bargaining

agreements may be used to clarify or amplify the terms and conditions of WARN, but may not reduce WARN rights.
S. Con. Res. 51—127

§ 639.2 What does WARN require?

WARN requires employing offices that are planning an office

closing or a mass layoff to give affected employees at least 60

days’ notice of such an employment action. While the 60-day period

is the minimum for advance notice, this provision is not intended

to discourage employing offices from voluntarily providing longer

periods of advance notice. Not all office closings and layoffs are

subject to WARN, and certain employment thresholds must be

reached before WARN applies. WARN sets out specific exemptions,

and provides for a reduction in the notification period in particular

circumstances. Remedies authorized under section 205 of the CAA

may be assessed against employing offices that violate WARN

requirements.

§ 639.3 Definitions

(a) EMPLOYING OFFICE.—(1) The term ‘‘employing office’’ means

any of the entities listed in section 101(9) of the CAA, 2 U.S.C.

§ 1301(9) that employs—

(i) 100 or more employees, excluding part-time employees;

or

(ii) employs 100 or more employees, including part-time

employees, who in the aggregate work at least 4,000 hours

per week, exclusive of overtime.

Workers on temporary layoff or on leave who have a reasonable

expectation of recall are counted as employees. An employee has

a ‘‘reasonable expectation of recall’’ when he/she understands,

through notification or through common practice, that his/her

employment with the employing office has been temporarily interrupted and that he/she will be recalled to the same or to a similar

job.

(2) Workers, other than part-time workers, who are exempt

from notice under section 4 of WARN, are nonetheless counted

as employees for purposes of determining coverage as an employing

office.

(3) An employing office may have one or more sites of employment under common control.

(b) OFFICE CLOSING.—The term ‘‘office closing’’ means the

permanent or temporary shutdown of a ‘‘single site of employment’’,

or one or more ‘‘facilities or operating units’’ within a single site

of employment, if the shutdown results in an ‘‘employment loss’’

during any 30-day period at the single site of employment for

50 or more employees, excluding any part-time employees. An

employment action that results in the effective cessation of the

work performed by a unit, even if a few employees remain, is

a shutdown. A ‘‘temporary shutdown’’ triggers the notice requirement only if there are a sufficient number of terminations, layoffs

exceeding 6 months, or reductions in hours of work as specified

under the definition of ‘‘employment loss’’.

(c) MASS LAYOFF.—(1) The term ‘‘mass layoff’’ means a reduction in force which first, is not the result of an office closing,

and second, results in an employment loss at the single site of

employment during any 30-day period for:

(i) At least 33 percent of the active employees, excluding

part-time employees, and

(ii) At least 50 employees, excluding part-time employees.

Where 500 or more employees (excluding part-time employees) are

affected, the 33 percent requirement does not apply, and notice
S. Con. Res. 51—128

is required if the other criteria are met. Office closings involve

employment loss which results from the shutdown of one or more

distinct units within a single site or the entire site. A mass layoff

involves employment loss, regardless of whether one or more units

are shut down at the site.

(2) Workers, other than part-time workers, who are exempt

from notice under section 4 of WARN are nonetheless counted

as employees for purposes of determining coverage as an office

closing or mass layoff. For example, if an employing office closes

a temporary project on which 10 permanent and 40 temporary

workers are employed, a covered office closing has occurred although

only 10 workers are entitled to notice.

(d) REPRESENTATIVE.—The term ‘‘representative’’ means an

exclusive representative of employees within the meaning of 5

U.S.C. §§ 7101 et seq., as applied to covered employees and employing offices by section 220 of the CAA, 2 U.S.C. § 1351.

(e) AFFECTED EMPLOYEES.—The term ‘‘affected employees’’

means employees who may reasonably be expected to experience

an employment loss as a consequence of a proposed office closing

or mass layoff by their employing office. This includes individually

identifiable employees who will likely lose their jobs because of

bumping rights or other factors, to the extent that such individual

workers reasonably can be identified at the time notice is required

to be given. The term affected employees includes managerial and

supervisory employees. Consultant or contract employees who have

a separate employment relationship with another employing office

or employer and are paid by that other employing office or employer,

or who are self-employed, are not ‘‘affected employees’’ of the operations to which they are assigned. In addition, for purposes of

determining whether coverage thresholds are met, either incumbent

workers in jobs being eliminated or, if known 60 days in advance,

the actual employees who suffer an employment loss may be

counted.

(f) EMPLOYMENT LOSS.—(1) The term employment loss means

(i) an employment termination, other than a discharge for cause,

voluntary departure, or retirement, (ii) a layoff exceeding 6 months,

or (iii) a reduction in hours of work of individual employees of

more than 50 percent during each month of any 6-month period.

(2) Where a termination or a layoff (see paragraphs (f)(1) (i)

and (ii) of this section) is involved, an employment loss does not

occur when an employee is reassigned or transferred to employing

office-sponsored programs, such as retraining or job search activities, as long as the reassignment does not constitute a constructive

discharge or other involuntary termination.

(3) An employee is not considered to have experienced an

employment loss if the closing or layoff is the result of the relocation

or consolidation of part or all of the employing office’s operations

and, prior to the closing or layoff—

(i) The employing office offers to transfer the employee

to a different site of employment within a reasonable commuting distance with no more than a 6-month break in employment,

or

(ii) The employing office offers to transfer the employee

to any other site of employment regardless of distance with

no more than a 6-month break in employment, and the

employee accepts within 30 days of the offer or of the closing

or layoff, whichever is later.
S. Con. Res. 51—129

(4) A ‘‘relocation or consolidation’’ of part or all of an employing

office’s operations, for purposes of paragraph § 639.3(f)(3), means

that some definable operations are transferred to a different site

of employment and that transfer results in an office closing or

mass layoff.

(g) PART-TIME EMPLOYEE.—The term ‘‘part-time’’ employee

means an employee who is employed for an average of fewer than

20 hours per week or who has been employed for fewer than

6 of the 12 months preceding the date on which notice is required,

including workers who work full-time. This term may include workers who would traditionally be understood as ‘‘seasonal’’ employees.

The period to be used for calculating whether a worker has worked

‘‘an average of fewer than 20 hours per week’’ is the shorter of

the actual time the worker has been employed or the most recent

90 days.

(h) SINGLE SITE OF EMPLOYMENT.—(1) A single site of employment can refer to either a single location or a group of contiguous

locations. Separate facilities across the street from one another

may be considered a single site of employment.

(2) There may be several single sites of employment within

a single building, such as an office building, if separate employing

offices conduct activities within such a building. For example, an

office building housing 50 different employing offices will contain

50 single sites of employment. The offices of each employing office

will be its single site of employment.

(3) Separate buildings or areas which are not directly connected

or in immediate proximity may be considered a single site of employment if they are in reasonable geographic proximity, used for the

same purpose, and share the same staff and equipment.

(4) Non-contiguous sites in the same geographic area which

do not share the same staff or operational purpose should not

be considered a single site.

(5) Contiguous buildings operated by the same employing office

which have separate management and have separate workforces

are considered separate single sites of employment.

(6) For workers whose primary duties require travel from point

to point, who are outstationed, or whose primary duties involve

work outside any of the employing office’s regular employment

sites (e.g., railroad workers, bus drivers, salespersons), the single

site of employment to which they are assigned as their home base,

from which their work is assigned, or to which they report will

be the single site in which they are covered for WARN purposes.

(7) Foreign sites of employment are not covered under WARN.

United States workers at such sites are counted to determine

whether an employing office is covered as an employing office

under § 639.3(a).

(8) The term ‘‘single site of employment’’ may also apply to

truly unusual organizational situations where the above criteria

do not reasonably apply. The application of this definition with

the intent to evade the purpose of WARN to provide notice is

not acceptable.

(i) FACILITY OR OPERATING UNIT.—The term ‘‘facility’’ refers

to a building or buildings. The term ‘‘operating unit’’ refers to

an organizationally or operationally distinct product, operation, or

specific work function within or across facilities at the single site.
S. Con. Res. 51—130

§ 639.4 Who must give notice?

Section 205(a)(1) of the CAA states that ‘‘[n]o employing office

shall be closed or a mass layoff ordered within the meaning of

section 3 of [WARN] until the end of a 60-day period after the

employing office serves written notice of such prospective closing

or layoff*** ’’. Therefore, an employing office that is anticipating

carrying out an office closing or mass layoff is required to give

notice to affected employees or their representative(s). (See definitions in § 639.3 of this part.)

(a) It is the responsibility of the employing office to decide

the most appropriate person within the employing office’s organization to prepare and deliver the notice to affected employees or

their representative(s). In most instances, this may be the local

site office manager, the local personnel director or a labor relations

officer.

(b) An employing office that has previously announced and

carried out a short-term layoff (6 months or less) which is being

extended beyond 6 months due to circumstances not reasonably

foreseeable at the time of the initial layoff is required to give

notice when it becomes reasonably foreseeable that the extension

is required. A layoff extending beyond 6 months from the date

the layoff commenced for any other reason shall be treated as

an employment loss from the date of its commencement.

(c) In the case of the privatization or sale of part or all of

an employing office’s operations, the employing office is responsible

for providing notice of any office closing or mass layoff which

takes place up to and including the effective date (time) of the

privatization or sale, and the contractor or buyer is responsible

for providing any required notice of any office closing or mass

layoff that takes place thereafter.

(1) If the employing office is made aware of any definite

plans on the part of the buyer or contractor to carry out

an office closing or mass layoff within 60 days of purchase,

the employing office may give notice to affected employees

as an agent of the buyer or contractor, if so empowered. If

the employing office does not give notice, the buyer or contractor

is, nevertheless, responsible to give notice. If the employing

office gives notice as the agent of the buyer or contractor,

the responsibility for notice still remains with the buyer or

contractor.

(2) It may be prudent for the buyer or contractor and

employing office to determine the impacts of the privatization

or sale on workers, and to arrange between them for advance

notice to be given to affected employees or their

representative(s), if a mass layoff or office closing is planned.

§ 639.5 When must notice be given?

(a) GENERAL RULE.—(1) With certain exceptions discussed in

paragraphs (b) and (c) of this section and in § 639.9 of this part,

notice must be given at least 60 calendar days prior to any planned

office closing or mass layoff, as defined in these regulations. When

all employees are not terminated on the same date, the date of

the first individual termination within the statutory 30-day or

90-day period triggers the 60-day notice requirement. A worker’s

last day of employment is considered the date of that worker’s

layoff. The first and each subsequent group of terminees are entitled
S. Con. Res. 51—131

to a full 60 days’ notice. In order for an employing office to decide

whether issuing notice is required, the employing office should—

(i) look ahead 30 days and behind 30 days to determine

whether employment actions both taken and planned will, in

the aggregate for any 30-day period, reach the minimum numbers for an office closing or a mass layoff and thus trigger

the notice requirement; and

(ii) look ahead 90 days and behind 90 days to determine

whether employment actions both taken and planned each of

which separately is not of sufficient size to trigger WARN

coverage will, in the aggregate for any 90-day period, reach

the minimum numbers for an office closing or a mass layoff

and thus trigger the notice requirement. An employing office

is not, however, required under section 3(d) to give notice

if the employing office demonstrates that the separate employment losses are the result of separate and distinct actions

and causes, and are not an attempt to evade the requirements

of WARN.

(2) The point in time at which the number of employees is

to be measured for the purpose of determining coverage is the

date the first notice is required to be given. If this ‘‘snapshot’’

of the number of employees employed on that date is clearly

unrepresentative of the ordinary or average employment level, then

a more representative number can be used to determine coverage.

Examples of unrepresentative employment levels include cases

when the level is near the peak or trough of an employment cycle

or when large upward or downward shifts in the number of employees occur around the time notice is to be given. A more representative number may be an average number of employees over a recent

period of time or the number of employees on an alternative date

which is more representative of normal employment levels. Alternative methods cannot be used to evade the purpose of WARN,

and should only be used in unusual circumstances.

(b) TRANSFERS.—(1) Notice is not required in certain cases

involving transfers, as described under the definition of ‘‘employment loss’’ at § 639.3(f) of this part.

(2) An offer of reassignment to a different site of employment

should not be deemed to be a ‘‘transfer’’ if the new job constitutes

a constructive discharge.

(3) The meaning of the term ‘‘reasonable commuting distance’’

will vary with local conditions. In determining what is a ‘‘reasonable

commuting distance’’, consideration should be given to the following

factors: geographic accessibility of the place of work, the quality

of the roads, customarily available transportation, and the usual

travel time.

(4) In cases where the transfer is beyond reasonable commuting

distance, the employing office may become liable for failure to

give notice if an offer to transfer is not accepted within 30 days

of the offer or of the closing or layoff (whichever is later). Depending

upon when the offer of transfer was made by the employing office,

the normal 60-day notice period may have expired and the office

closing or mass layoff may have occurred. An employing office

is, therefore, well advised to provide 60-day advance notice as

part of the transfer offer.

(c) TEMPORARY EMPLOYMENT.—(1) No notice is required if the

closing is of a temporary facility, or if the closing or layoff is

the result of the completion of a particular project or undertaking,
S. Con. Res. 51—132

and the affected employees were hired with the understanding

that their employment was limited to the duration of the facility

or the project or undertaking.

(2) Employees must clearly understand at the time of hire

that their employment is temporary. When such understandings

exist will be determined by reference to employment contracts,

collective bargaining agreements, or employment practices of other

employing offices or a locality, but the burden of proof will lie

with the employing office to show that the temporary nature of

the project or facility was clearly communicated should questions

arise regarding the temporary employment understandings.

§ 639.6 Who must receive notice?

Section 3(a) of WARN provides for notice to each representative

of the affected employees as of the time notice is required to

be given or, if there is no such representative at that time, to

each affected employee.

(a) REPRESENTATIVE(S) OF AFFECTED EMPLOYEES.—Written

notice is to be served upon the chief elected officer of the exclusive

representative(s) or bargaining agent(s) of affected employees at

the time of the notice. If this person is not the same as the

officer of the local union(s) representing affected employees, it is

recommended that a copy also be given to the local union official(s).

(b) AFFECTED EMPLOYEES.—Notice is required to be given to

employees who may reasonably be expected to experience an

employment loss. This includes employees who will likely lose their

jobs because of bumping rights or other factors, to the extent

that such workers can be identified at the time notice is required

to be given. If, at the time notice is required to be given, the

employing office cannot identify the employee who may reasonably

be expected to experience an employment loss due to the elimination

of a particular position, the employing office must provide notice

to the incumbent in that position. While part-time employees are

not counted in determining whether office closing or mass layoff

thresholds are reached, such workers are due notice.

§ 639.7 What must the notice contain?

(a) NOTICE MUST BE SPECIFIC.—(1) All notice must be specific.

(2) Where voluntary notice has been given more than 60 days

in advance, but does not contain all of the required elements set

out in this section, the employing office must ensure that all of

the information required by this section is provided in writing

to the parties listed in § 639.6 at least 60 days in advance of

a covered employment action.

(3) Notice may be given conditional upon the occurrence or

nonoccurrence of an event only when the event is definite and

the consequences of its occurrence or nonoccurrence will necessarily,

in the normal course of operations, lead to a covered office closing

or mass layoff less than 60 days after the event. The notice must

contain each of the elements set out in this section.

(4) The information provided in the notice shall be based on

the best information available to the employing office at the time

the notice is served. It is not the intent of the regulations that

errors in the information provided in a notice that occur because

events subsequently change or that are minor, inadvertent errors

are to be the basis for finding a violation of WARN.
S. Con. Res. 51—133

(b) DEFINITION.—As used in this section, the term ‘‘date’’ refers

to a specific date or to a 14-day period during which a separation

or separations are expected to occur. If separations are planned

according to a schedule, the schedule should indicate the specific

dates on which or the beginning date of each 14-day period during

which any separations are expected to occur. Where a 14-day period

is used, notice must be given at least 60 days in advance of the

first day of the period.

(c) NOTICE.—Notice to each representative of affected employees

is to contain:

(1) The name and address of the employment site where

the office closing or mass layoff will occur, and the name

and telephone number of an employing office official to contact

for further information;

(2) A statement as to whether the planned action is

expected to be permanent or temporary and, if the entire office

is to be closed, a statement to that effect;

(3) The expected date of the first separation and the anticipated schedule for making separations;

(4) The job titles of positions to be affected and the names

of the workers currently holding affected jobs.

The notice may include additional information useful to the employees such as information on available dislocated worker assistance,

and, if the planned action is expected to be temporary, the estimated

duration, if known.

(d) EMPLOYEES NOT REPRESENTED.—Notice to each affected

employee who does not have a representative is to be written

in language understandable to the employees and is to contain:

(1) A statement as to whether the planned action is

expected to be permanent or temporary and, if the entire office

is to be closed, a statement to that effect;

(2) The expected date when the office closing or mass

layoff will commence and the expected date when the individual

employee will be separated;

(3) An indication whether or not bumping rights exist;

(4) The name and telephone number of an employing office

official to contact for further information.

The notice may include additional information useful to the employees such as information on available dislocated worker assistance,

and, if the planned action is expected to be temporary, the estimated

duration, if known.

§ 639.8 How is the notice served?

Any reasonable method of delivery to the parties listed under

§ 639.6 of this part which is designed to ensure receipt of notice

of at least 60 days before separation is acceptable (e.g., first class

mail, personal delivery with optional signed receipt). In the case

of notification directly to affected employees, insertion of notice

into pay envelopes is another viable option. A ticketed notice, i.e.,

preprinted notice regularly included in each employee’s pay check

or pay envelope, does not meet the requirements of WARN.

§ 639.9 When may notice be given less than 60 days in

advance?

Section 3(b) of WARN, as applied by section 205 of the CAA,

sets forth two conditions under which the notification period may

be reduced to less than 60 days. The employing office bears the
S. Con. Res. 51—134

burden of proof that conditions for the exceptions have been met.

If one of the exceptions is applicable, the employing office must

give as much notice as is practicable to the union and non-represented employees and this may, in some circumstances, be notice

after the fact. The employing office must, at the time notice actually

is given, provide a brief statement of the reason for reducing the

notice period, in addition to the other elements set out in § 639.7.

(a) The ‘‘unforeseeable business circumstances’’ exception under

section 3(b)(2)(A) of WARN, as applied under the CAA, applies

to office closings and mass layoffs caused by circumstances that

were not reasonably foreseeable at the time that 60-day notice

would have been required.

(1) An important indicator of a circumstance that is not

reasonably foreseeable is that the circumstance is caused by

some sudden, dramatic, and unexpected action or condition

outside the employing office’s control.

(2) The test for determining when circumstances are not

reasonably foreseeable focuses on an employing office’s business

judgment. The employing office must exercise such reasonable

business judgment as would a similarly situated employing

office in predicting the demands of its operations. The employing office is not required, however, to accurately predict general

economic conditions that also may affect its operations.

(b) The ‘‘natural disaster’’ exception in section 3(b)(2)(B) of

WARN applies to office closings and mass layoffs due to any form

of a natural disaster.

(1) Floods, earthquakes, droughts, storms, tidal waves or

tsunamis and similar effects of nature are natural disasters

under this provision.

(2) To qualify for this exception, an employing office must

be able to demonstrate that its office closing or mass layoff

is a direct result of a natural disaster.

(3) While a disaster may preclude full or any advance

notice, such notice as is practicable, containing as much of

the information required in § 639.7 as is available in the circumstances of the disaster still must be given, whether in

advance or after the fact of an employment loss caused by

a natural disaster.

(4) Where an office closing or mass layoff occurs as an

indirect result of a natural disaster, the exception does not

apply but the ‘‘unforeseeable business circumstance’’ exception

described in paragraph (a) of this section may be applicable.

§ 639.10 When may notice be extended?

Additional notice is required when the date or schedule of

dates of a planned office closing or mass layoff is extended beyond

the date or the ending date of any 14-day period announced in

the original notice as follows:

(a) If the postponement is for less than 60 days, the additional

notice should be given as soon as possible to the parties identified

in § 639.6 and should include reference to the earlier notice, the

date (or 14-day period) to which the planned action is postponed,

and the reasons for the postponement. The notice should be given

in a manner which will provide the information to all affected

employees.

(b) If the postponement is for 60 days or more, the additional

notice should be treated as new notice subject to the provisions
S. Con. Res. 51—135

of §§ 639.5, 639.6 and 639.7 of this part. Rolling notice, in the

sense of routine periodic notice, given whether or not an office

closing or mass layoff is impending, and with the intent to evade

the purpose of the Act rather than give specific notice as required

by WARN, is not acceptable.

§ 639.11 [Reserved]

Attest:

Secretary of the Senate.

Attest:

Clerk of the House of Representatives.