III

104TH CONGRESS

2D SESSION S. RES. 242

To provide for the approval of final regulations that are applicable to the

Senate and the employees of the Senate, and that were issued by the

Office of Compliance on January 22, 1996, and for other purposes.

IN THE SENATE OF THE UNITED STATES

APRIL 15, 1996

Mr. WARNER submitted the following resolution; which was considered and

agreed to

RESOLUTION

To provide for the approval of final regulations that are

applicable to the Senate and the employees of the Senate,

and that were issued by the Office of Compliance on

January 22, 1996, and for other purposes.

1 Resolved, That the following regulations issued by the

2 Office of Compliance on January 22, 1996 are hereby ap3 proved 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?
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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?

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?
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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?
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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?

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].

1 PART 825—FAMILY AND MEDICAL LEAVE

2 § 825.1 Purpose and scope

3 (a) Section 202 of the Congressional Accountability

4 Act (CAA) (2 U.S.C. 1312) applies the rights and protec5 tions of sections 101 through 105 of the Family and Medi6 cal Leave Act of 1993 (FMLA) (29 U.S.C. 2611–2615)

7 to covered employees. (The term ‘‘covered employee’’ is de8 fined in section 101(3) of the CAA (2 U.S.C. 1301(3)).

9 See § 825.800 of these regulations for that definition.)
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1 The purpose of this part is to set forth the regulations

2 to carry out the provisions of section 202 of the CAA.

3 (b) These regulations are issued by the Board of Di4 rectors, Office of Compliance, pursuant to sections 202(d)

5 and 304 of the CAA, which direct the Board to promul6 gate regulations implementing section 202 that are ‘‘the

7 same as substantive regulations promulgated by the Sec8 retary of Labor to implement the statutory provisions re9 ferred to in subsection (a) [of section 202 of the CAA]

10 except insofar as the Board may determine, for good cause

11 shown . . . that a modification of such regulations would

12 be more effective for the implementation of the rights and

13 protections under this section’’. The regulations issued by

14 the Board herein are on all matters for which section 202

15 of the CAA requires regulations to be issued. Specifically,

16 it is the Board’s considered judgment, based on the infor17 mation available to it at the time of the promulgation of

18 these regulations, that, with the exception of regulations

19 adopted and set forth herein, there are no other ‘‘sub20 stantive regulations promulgated by the Secretary of

21 Labor to implement the statutory provisions referred to

22 in subsection (a) [of section 202 of the CAA]’’.

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

24 made certain technical and nomenclature changes to the

25 regulations as promulgated by the Secretary. Such
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1 changes are intended to make the provisions adopted ac2 cord more naturally to situations in the legislative branch.

3 However, by making these changes, the Board does not

4 intend a substantive difference between these regulations

5 and those of the Secretary from which they are derived.

6 Moreover, such changes, in and of themselves, are not in7 tended to constitute an interpretation of the regulation or

8 of the statutory provisions of the CAA upon which they

9 are based.

10 § 825.2 [Reserved]

11 SUBPART A—WHAT IS THE FAMILY AND MEDICAL

12 LEAVE ACT, AND TO WHOM DOES IT APPLY UNDER

13 THE CONGRESSIONAL ACCOUNTABILITY ACT?

14 § 825.100 What is the Family and Medical Leave Act?

15 (a) The Family and Medical Leave Act of 1993

16 (FMLA), as made applicable by the Congressional Ac17 countability Act (CAA), allows ‘‘eligible’’ employees of an

18 employing office to take job-protected, unpaid leave, or to

19 substitute appropriate paid leave if the employee has

20 earned or accrued it, for up to a total of 12 workweeks

21 in any 12 months because of the birth of a child and to

22 care for the newborn child, because of the placement of

23 a child with the employee for adoption or foster care, be24 cause the employee is needed to care for a family member

25 (child, spouse, or parent) with a serious health condition,
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1 or because the employee’s own serious health condition

2 makes the employee unable to perform the functions of

3 his or her job (see § 825.306(b)(4)). In certain cases, this

4 leave may be taken on an intermittent basis rather than

5 all at once, or the employee may work a part-time sched6 ule.

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

8 have health benefits maintained while on leave as if the

9 employee had continued to work instead of taking the

10 leave. If an employee was paying all or part of the pre11 mium payments prior to leave, the employee would con12 tinue to pay his or her share during the leave period. The

13 employing office or a disbursing or other financial office

14 of the Senate may recover its share only if the employee

15 does not return to work for a reason other than the serious

16 health condition of the employee or the employee’s imme17 diate family member, or another reason beyond the em18 ployee’s control.

19 (c) An employee generally has a right to return to

20 the same position or an equivalent position with equivalent

21 pay, benefits and working conditions at the conclusion of

22 the leave. The taking of FMLA leave cannot result in the

23 loss of any benefit that accrued prior to the start of the

24 leave.
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1 (d) The employing office has a right to 30 days ad2 vance notice from the employee where practicable. In addi3 tion, the employing office may require an employee to sub4 mit certification from a health care provider to substan5 tiate that the leave is due to the serious health condition

6 of the employee or the employee’s immediate family mem7 ber. Failure to comply with these requirements may result

8 in a delay in the start of FMLA leave. Pursuant to a uni9 formly applied policy, the employing office may also re10 quire that an employee present a certification of fitness

11 to return to work when the absence was caused by the

12 employee’s serious health condition (see § 825.311(c)).

13 The employing office may delay restoring the employee to

14 employment without such certificate relating to the health

15 condition which caused the employee’s absence.

16 § 825.101 What is the purpose of the FMLA?

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

18 their work and family life by taking reasonable unpaid

19 leave for medical reasons, for the birth or adoption of a

20 child, and for the care of a child, spouse, or parent who

21 has a serious health condition. The FMLA is intended to

22 balance the demands of the workplace with the needs of

23 families, to promote the stability and economic security

24 of families, and to promote national interests in preserving

25 family integrity. It was intended that the FMLA accom-
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1 plish these purposes in a manner that accommodates the

2 legitimate interests of employers, and in a manner consist3 ent with the Equal Protection Clause of the Fourteenth

4 Amendment in minimizing the potential for employment

5 discrimination on the basis of sex, while promoting equal

6 employment opportunity for men and women.

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

8 fundamental concerns ‘‘the needs of the American

9 workforce, and the development of high-performance orga10 nizations’’. Increasingly, America’s children and elderly

11 are dependent upon family members who must spend long

12 hours at work. When a family emergency arises, requiring

13 workers to attend to seriously-ill children or parents, or

14 to newly-born or adopted infants, or even to their own seri15 ous illness, workers need reassurance that they will not

16 be asked to choose between continuing their employment,

17 and meeting their personal and family obligations or tend18 ing to vital needs at home.

19 (c) The FMLA is both intended and expected to bene20 fit employers as well as their employees. A direct correla21 tion exists between stability in the family and productivity

22 in the workplace. FMLA will encourage the development

23 of high-performance organizations. When workers can

24 count on durable links to their workplace they are able

25 to make their own full commitments to their jobs. The
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1 record of hearings on family and medical leave indicate

2 the powerful productive advantages of stable workplace re3 lationships, and the comparatively small costs of guaran4 teeing that those relationships will not be dissolved while

5 workers attend to pressing family health obligations or

6 their own serious illness.

7 § 825.102 When are the FMLA and the CAA effective

8 for covered employees and employing of9 fices?

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

11 105 of the FMLA have applied to certain Senate employ12 ees and certain employing offices of the Senate since Au13 gust 5, 1993 (see section 501 of FMLA).

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

15 105 of the FMLA have applied to any employee in an em16 ployment position and any employment authority of the

17 House of Representatives since August 5, 1993 (see sec18 tion 502 of FMLA).

19 (c) The rights and protections of sections 101

20 through 105 of the FMLA have applied to certain employ21 ing offices and covered employees other than those re22 ferred to in paragraphs (a) and (b) of this section for cer23 tain periods since August 5, 1993 (see, e.g., title V of the

24 FMLA, sections 501 and 502).
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1 (d) The provisions of section 202 of the CAA that

2 apply rights and protections of the FMLA to covered em3 ployees are effective on January 23, 1996.

4 (e) The period prior to the effective date of the appli5 cation of FMLA rights and protections under the CAA

6 must be considered in determining employee eligibility.

7 § 825.103 How does the FMLA, as made applicable

8 by the CAA, affect leave in progress on,

9 or taken before, the effective date of the

10 CAA?

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

12 began on the date that the rights and protections of the

13 FMLA first went into effect for the employing office and

14 employee (see § 825.102(a)). Any leave taken prior to the

15 date on which the rights and protections of the FMLA

16 first became effective for the employing office from which

17 the leave was taken may not be counted for purposes of

18 the FMLA as made applicable by the CAA. If leave quali19 fying as FMLA leave was underway prior to the effective

20 date of the FMLA for the employing office from which

21 the leave was taken and continued after the FMLA’s effec22 tive date for that office, only that portion of leave taken

23 on or after the FMLA’s effective date may be counted

24 against the employee’s leave entitlement under the FMLA,

25 as made applicable by the CAA.
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1 (b) If an employing office-approved leave is underway

2 when the application of the FMLA by the CAA takes ef3 fect, no further notice would be required of the employee

4 unless the employee requests an extension of the leave.

5 For leave which commenced on the effective date or short6 ly thereafter, such notice must have been given which was

7 practicable, considering the foreseeability of the need for

8 leave and the effective date.

9 (c) Starting on January 23, 1996, an employee is en10 titled to FMLA leave under these regulations if the reason

11 for the leave is qualifying under the FMLA, as made ap12 plicable by the CAA, even if the event occasioning the need

13 for leave (e.g., the birth of a child) occurred before such

14 date (so long as any other requirements are satisfied).

15 § 825.104 What employing offices are covered by the

16 FMLA, as made applicable by the CAA?

17 (a) The FMLA, as made applicable by the CAA, cov18 ers all employing offices. As used in the CAA, the term

19 ‘‘employing office’’ means—

20 (1) the personal office of a Member of the

21 House of Representatives or of a Senator;

22 (2) a committee of the House of Representa23 tives or the Senate or a joint committee;

24 (3) any other office headed by a person with

25 the final authority to appoint, hire, discharge, and
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1 set the terms, conditions, or privileges of the employ2 ment of an employee of the House of Representa3 tives or the Senate; or

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

5 Board, the Congressional Budget Office, the Office

6 of the Architect of the Capitol, the Office of the At7 tending Physician, the Office of Compliance, and the

8 Office of Technology Assessment.

9 (b) [Reserved]

10 (c) Separate entities will be deemed to be parts of

11 a single employer for purposes of the FMLA, as made ap12 plicable by the CAA, if they meet the ‘‘integrated em13 ployer’’ test. A determination of whether or not separate

14 entities are an integrated employer is not determined by

15 the application of any single criterion, but rather the en16 tire relationship is to be reviewed in its totality. Factors

17 considered in determining whether two or more entities

18 are an integrated employer include:

19 (i) Common management;

20 (ii) Interrelation between operations;

21 (iii) Centralized control of labor relations; and

22 (iv) Degree of common financial control.
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1 § 825.105 [Reserved]

2 § 825.106 How is ‘‘joint employment’’ treated under

3 the FMLA as made applicable by the

4 CAA?

5 (a) Where two or more employing offices exercise

6 some control over the work or working conditions of the

7 employee, the employing offices may be joint employers

8 under FMLA, as made applicable by the CAA. Where the

9 employee performs work which simultaneously benefits

10 two or more employing offices, or works for two or more

11 employing offices at different times during the workweek,

12 a joint employment relationship generally will be consid13 ered to exist in situations such as:

14 (1) Where there is an arrangement between em15 ploying offices to share an employee’s services or to

16 interchange employees;

17 (2) Where one employing office acts directly or

18 indirectly in the interest of the other employing of19 fice in relation to the employee; or

20 (3) Where the employing offices are not com21 pletely disassociated with respect to the employee’s

22 employment and may be deemed to share control of

23 the employee, directly or indirectly, because one em24 ploying office controls, is controlled by, or is under

25 common control with the other employing office.
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1 (b) A determination of whether or not a joint employ2 ment relationship exists is not determined by the applica3 tion of any single criterion, but rather the entire relation4 ship is to be viewed in its totality. For example, joint em5 ployment will ordinarily be found to exist when—

6 (1) an employee, who is employed by an em7 ploying office other than the personal office of a

8 Member of the House of Representatives or of a

9 Senator, is under the actual direction and control of

10 the Member of the House of Representatives or Sen11 ator; or

12 (2) two or more employing offices employ an in13 dividual to work on common issues or other matters

14 for both or all of them.

15 (c) When employing offices employ a covered em16 ployee jointly, they may designate one of themselves to be

17 the primary employing office, and the other or others to

18 be the secondary employing office(s). Such a designation

19 shall be made by written notice to the covered employee.

20 (d) If an employing office is designated a primary em21 ploying office pursuant to paragraph (c) of this section,

22 only that employing office is responsible for giving re23 quired notices to the covered employee, providing FMLA

24 leave, and maintenance of health benefits. Job restoration

25 is the primary responsibility of the primary employing of-
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1 fice, and the secondary employing office(s) may, subject

2 to the limitations in § 825.216, be responsible for accept3 ing the employee returning from FMLA leave.

4 (e) If employing offices employ an employee jointly,

5 but fail to designate a primary employing office pursuant

6 to paragraph (c) of this section, then all of these employ7 ing offices shall be jointly and severally liable for giving

8 required notices to the employee, for providing FMLA

9 leave, for assuring that health benefits are maintained,

10 and for job restoration. The employee may give notice of

11 need for FMLA leave, as described in §§ 825.302 and

12 825.303, to whichever of these employing offices the em13 ployee chooses. If the employee makes a written request

14 for restoration to one of these employing offices, that em15 ploying office shall be primarily responsible for job res16 toration, and the other employing office(s) may, subject

17 to the limitations in § 825.216, be responsible for accept18 ing the employee returning from FMLA leave.

19 § 825.107 [Reserved]

20 § 825.108 [Reserved]

21 § 825.109 [Reserved]

22 § 825.110 Which employees are ‘‘eligible’’ to take

23 FMLA leave under these regulations?

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

25 means a covered employee who has been employed in any
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1 employing office for 12 months and for at least 1,250

2 hours of employment during the previous 12 months.

3 (b) The 12 months an employee must have been em4 ployed by any employing office need not be consecutive

5 months. If an employee worked for two or more employing

6 offices sequentially, the time worked will be aggregated to

7 determine whether it equals 12 months. If an employee

8 is maintained on the payroll for any part of a week, includ9 ing any periods of paid or unpaid leave (sick, vacation)

10 during which other benefits or compensation are provided

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

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

13 employment. For purposes of determining whether inter14 mittent/occasional/casual employment qualifies as ‘‘at

15 least 12 months’’, 52 weeks is deemed to be equal to 12

16 months.

17 (c) If an employee was employed by two or more em18 ploying offices, either sequentially or concurrently, the

19 hours of service will be aggregated to determine whether

20 the minimum of 1,250 hours has been reached. Whether

21 an employee has worked the minimum 1,250 hours of

22 service is determined according to the principles estab23 lished under the Fair Labor Standards Act (FLSA), as

24 applied by section 203 of the CAA (2 U.S.C. 1313), for

25 determining compensable hours of work. The determining
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1 factor is the number of hours an employee has worked

2 for one or more employing offices. The determination is

3 not limited by methods of record-keeping, or by compensa4 tion agreements that do not accurately reflect all of the

5 hours an employee has worked for or been in service to

6 the employing office. Any accurate accounting of actual

7 hours worked may be used. For this purpose, full-time

8 teachers (see § 825.800 for definition) of an elementary

9 or secondary school system, or institution of higher edu10 cation, or other educational establishment or institution

11 are deemed to meet the 1,250 hour test. An employing

12 office must be able to clearly demonstrate that such an

13 employee did not work 1,250 hours during the previous

14 12 months in order to claim that the employee is not ‘‘eli15 gible’’ for FMLA leave.

16 (d) The determinations of whether an employee has

17 worked for any employing office for at least 1,250 hours

18 in the previous 12 months and has been employed by any

19 employing office for a total of at least 12 months must

20 be made as of the date leave commences. The ‘‘previous

21 12 months’’ means the 12 months immediately preceding

22 the commencement of the leave. If an employee notifies

23 the employing office of need for FMLA leave before the

24 employee meets these eligibility criteria, the employing of25 fice must either confirm the employee’s eligibility based
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1 upon a projection that the employee will be eligible on the

2 date leave would commence or must advise the employee

3 when the eligibility requirement is met. If the employing

4 office confirms eligibility at the time the notice for leave

5 is received, the employing office may not subsequently

6 challenge the employee’s eligibility. In the latter case, if

7 the employing office does not advise the employee whether

8 the employee is eligible as soon as practicable (i.e., two

9 business days absent extenuating circumstances) after the

10 date employee eligibility is determined, the employee will

11 have satisfied the notice requirements and the notice of

12 leave is considered current and outstanding until the em13 ploying office does advise. If the employing office fails to

14 advise the employee whether the employee is eligible prior

15 to the date the requested leave is to commence, the em16 ployee will be deemed eligible. The employing office may

17 not, then, deny the leave. Where the employee does not

18 give notice of the need for leave more than two business

19 days prior to commencing leave, the employee will be

20 deemed to be eligible if the employing office fails to advise

21 the employee that the employee is not eligible within two

22 business days of receiving the employee’s notice.

23 (e) The period prior to the effective date of the appli24 cation of FMLA rights and protections under the CAA

25 must be considered in determining employee’s eligibility.
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1 (f) [Reserved]

2 § 825.111 [Reserved]

3 § 825.112 Under what kinds of circumstances are em4 ploying offices required to grant family

5 or medical leave?

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

7 eligible employees:

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

9 for the newborn child;

10 (2) For placement with the employee of a son

11 or daughter for adoption or foster care;

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

13 daughter, or parent with a serious health condition;

14 and

15 (4) Because of a serious health condition that

16 makes the employee unable to perform the functions

17 of the employee’s job.

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

19 applicable by the CAA applies equally to male and female

20 employees. A father, as well as a mother, can take family

21 leave for the birth, placement for adoption or foster care

22 of a child.

23 (c) Circumstances may require that FMLA leave

24 begin before the actual date of birth of a child. An expect25 ant mother may take FMLA leave pursuant to paragraph
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1 (a)(4) of this section before the birth of the child for pre2 natal care or if her condition makes her unable to work.

3 (d) Employing offices are required to grant FMLA

4 leave pursuant to paragraph (a)(2) of this section before

5 the actual placement or adoption of a child if an absence

6 from work is required for the placement for adoption or

7 foster care to proceed. For example, the employee may be

8 required to attend counseling sessions, appear in court,

9 consult with his or her attorney or the doctor(s) represent10 ing the birth parent, or submit to a physical examination.

11 The source of an adopted child (e.g., whether from a li12 censed placement agency or otherwise) is not a factor in

13 determining eligibility for leave for this purpose.

14 (e) Foster care is 24-hour care for children in substi15 tution for, and away from, their parents or guardian. Such

16 placement is made by or with the agreement of the State

17 as a result of a voluntary agreement between the parent

18 or guardian that the child be removed from the home, or

19 pursuant to a judicial determination of the necessity for

20 foster care, and involves agreement between the State and

21 foster family that the foster family will take care of the

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

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

24 from parental custody.
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1 (f) In situations where the employer/employee rela2 tionship has been interrupted, such as an employee who

3 has been on layoff, the employee must be recalled or other4 wise be re-employed before being eligible for FMLA leave.

5 Under such circumstances, an eligible employee is imme6 diately entitled to further FMLA leave for a qualifying

7 reason.

8 (g) FMLA leave is available for treatment for sub9 stance abuse provided the conditions of § 825.114 are met.

10 However, treatment for substance abuse does not prevent

11 an employing office from taking employment action

12 against an employee. The employing office may not take

13 action against the employee because the employee has ex14 ercised his or her right to take FMLA leave for treatment.

15 However, if the employing office has an established policy,

16 applied in a non-discriminatory manner that has been

17 communicated to all employees, that provides under cer18 tain circumstances an employee may be terminated for

19 substance abuse, pursuant to that policy the employee may

20 be terminated whether or not the employee is presently

21 taking FMLA leave. An employee may also take FMLA

22 leave to care for an immediate family member who is re23 ceiving treatment for substance abuse. The employing of24 fice may not take action against an employee who is pro-
23

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1 viding care for an immediate family member receiving

2 treatment for substance abuse.

3 § 825.113 What do ‘‘spouse’’, ‘‘parent’’, and ‘‘son or

4 daughter’’ mean for purposes of an em5 ployee qualifying to take FMLA leave?

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

7 recognized under State law for purposes of marriage in

8 the State where the employee resides, including common

9 law marriage in States where it is recognized.

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

11 who stands or stood in loco parentis to an employee when

12 the employee was a son or daughter as defined in (c)

13 below. This term does not include parents ‘‘in law’’.

14 (c) Son or daughter means a biological, adopted, or

15 foster child, a stepchild, a legal ward, or a child of a per16 son standing in loco parentis, who is either under age 18,

17 or age 18 or older and ‘‘incapable of self-care because of

18 a mental or physical disability’’.

19 (1) ‘‘Incapable of self-care’’ means that the in20 dividual requires active assistance or supervision to

21 provide daily self-care in three or more of the ‘‘ac22 tivities of daily living’’ (ADLs) or ‘‘instrumental ac23 tivities of daily living’’ (IADLs). Activities of daily

24 living include adaptive activities such as caring ap25 propriately for one’s grooming and hygiene, bathing,
24

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1 dressing and eating. Instrumental activities of daily

2 living include cooking, cleaning, shopping, taking

3 public transportation, paying bills, maintaining a

4 residence, using telephones and directories, using a

5 post office, etc.

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

7 physical or mental impairment that substantially

8 limits one or more of the major life activities of an

9 individual. See the Americans with Disabilities Act

10 (ADA), as made applicable by section 201(a)(3) of

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

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

13 those with day-to-day responsibilities to care for and

14 financially support a child or, in the case of an em15 ployee, who had such responsibility for the employee

16 when the employee was a child. A biological or legal

17 relationship is not necessary.

18 (d) For purposes of confirmation of family relation19 ship, the employing office may require the employee giving

20 notice of the need for leave to provide reasonable docu21 mentation or statement of family relationship. This docu22 mentation may take the form of a simple statement from

23 the employee, or a child’s birth certificate, a court docu24 ment, etc. The employing office is entitled to examine doc25 umentation such as a birth certificate, etc., but the em-
25

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1 ployee is entitled to the return of the official document

2 submitted for this purpose.

3 § 825.114 What is a ‘‘serious health condition’’ enti4 tling an employee to FMLA leave?

5 (a) For purposes of FMLA, ‘‘serious health condi6 tion’’ entitling an employee to FMLA leave means an ill7 ness, injury, impairment, or physical or mental condition

8 that involves:

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

10 hospital, hospice, or residential medical care facility,

11 including any period of incapacity (for purposes of

12 this section, defined to mean inability to work, at13 tend school or perform other regular daily activities

14 due to the serious health condition, treatment there15 for, or recovery therefrom), or any subsequent treat16 ment in connection with such inpatient care; or

17 (2) Continuing treatment by a health care pro18 vider. A serious health condition involving continuing

19 treatment by a health care provider includes any one

20 or more of the following:

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

22 work, attend school or perform other regular

23 daily activities due to the serious health condi24 tion, treatment therefor, or recovery therefrom)

25 of more than three consecutive calendar days,
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1 and any subsequent treatment or period of in2 capacity relating to the same condition, that

3 also involves:

4 (A) Treatment two or more times by

5 a health care provider, by a nurse or physi6 cian’s assistant under direct supervision of

7 a health care provider, or by a provider of

8 health care services (e.g., physical thera9 pist) under orders of, or on referral by, a

10 health care provider; or

11 (B) Treatment by a health care pro12 vider on at least one occasion which results

13 in a regimen of continuing treatment

14 under the supervision of the health care

15 provider.

16 (ii) Any period of incapacity due to preg17 nancy, or for prenatal care.

18 (iii) Any period of incapacity or treatment

19 for such incapacity due to a chronic serious

20 health condition. A chronic serious health condi21 tion is one which:

22 (A) Requires periodic visits for treat23 ment by a health care provider, or by a

24 nurse or physician’s assistant under direct

25 supervision of a health care provider;
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1 (B) Continues over an extended pe2 riod of time (including recurring episodes

3 of a single underlying condition); and

4 (C) May cause episodic rather than a

5 continuing period of incapacity (e.g., asth6 ma, diabetes, epilepsy, etc.).

7 (iv) A period of incapacity which is perma8 nent or long-term due to a condition for which

9 treatment may not be effective. The employee

10 or family member must be under the continuing

11 supervision of, but need not be receiving active

12 treatment by, a health care provider. Examples

13 include Alzheimer’s, a severe stroke, or the ter14 minal stages of a disease.

15 (v) Any period of absence to receive mul16 tiple treatments (including any period of recov17 ery therefrom) by a health care provider or by

18 a provider of health care services under orders

19 of, or on referral by, a health care provider, ei20 ther for restorative surgery after an accident or

21 other injury, or for a condition that would likely

22 result in a period of incapacity of more than

23 three consecutive calendar days in the absence

24 of medical intervention or treatment, such as

25 cancer (chemotherapy, radiation, etc.), severe
28

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1 arthritis (physical therapy), kidney disease (di2 alysis).

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

4 section includes (but is not limited to) examinations to de5 termine if a serious health condition exists and evaluations

6 of the condition. Treatment does not include routine phys7 ical examinations, eye examinations, or dental examina8 tions. Under paragraph (a)(2)(i)(B), a regimen of continu9 ing treatment includes, for example, a course of prescrip10 tion medication (e.g., an antibiotic) or therapy requiring

11 special equipment to resolve or alleviate the health condi12 tion (e.g., oxygen). A regimen of continuing treatment

13 that includes the taking of over-the-counter medications

14 such as aspirin, antihistamines, or salves; or bed-rest,

15 drinking fluids, exercise, and other similar activities that

16 can be initiated without a visit to a health care provider,

17 is not, by itself, sufficient to constitute a regimen of con18 tinuing treatment for purposes of FMLA leave.

19 (c) Conditions for which cosmetic treatments are ad20 ministered (such as most treatments for acne or plastic

21 surgery) are not ‘‘serious health conditions’’ unless inpa22 tient hospital care is required or unless complications de23 velop. Ordinarily, unless complications arise, the common

24 cold, the flu, ear aches, upset stomach, minor ulcers, head25 aches other than migraine, routine dental or orthodontia
29

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1 problems, periodontal disease, etc., are examples of condi2 tions that do not meet the definition of a serious health

3 condition and do not qualify for FMLA leave. Restorative

4 dental or plastic surgery after an injury or removal of can5 cerous growths are serious health conditions provided all

6 the other conditions of this regulation are met. Mental ill7 ness resulting from stress or allergies may be serious

8 health conditions, but only if all the conditions of this sec9 tion are met.

10 (d) Substance abuse may be a serious health condi11 tion if the conditions of this section are met. However,

12 FMLA leave may only be taken for treatment for sub13 stance abuse by a health care provider or by a provider

14 of health care services on referral by a health care pro15 vider. On the other hand, absence because of the employ16 ee’s use of the substance, rather than for treatment, does

17 not qualify for FMLA leave.

18 (e) Absences attributable to incapacity under para19 graphs (a)(2) (ii) or (iii) qualify for FMLA leave even

20 though the employee or the immediate family member does

21 not receive treatment from a health care provider during

22 the absence, and even if the absence does not last more

23 than three days. For example, an employee with asthma

24 may be unable to report for work due to the onset of an

25 asthma attack or because the employee’s health care pro-
30

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1 vider has advised the employee to stay home when the pol2 len count exceeds a certain level. An employee who is preg3 nant may be unable to report to work because of severe

4 morning sickness.

5 § 825.115 What does it mean that ‘‘the employee is un6 able to perform the functions of the posi7 tion of the employee’’?

8 An employee is ‘‘unable to perform the functions of

9 the position’’ where the health care provider finds that the

10 employee is unable to work at all or is unable to perform

11 any one of the essential functions of the employee’s posi12 tion within the meaning of the Americans with Disabilities

13 Act (ADA), as made applicable by section 201(a)(3) of

14 the CAA (2 U.S.C. 1311(a)(3)). An employee who must

15 be absent from work to receive medical treatment for a

16 serious health condition is considered to be unable to per17 form the essential functions of the position during the ab18 sence for treatment. An employing office has the option,

19 in requiring certification from a health care provider, to

20 provide a statement of the essential functions of the em21 ployee’s position for the health care provider to review.

22 For purposes of FMLA, the essential functions of the em23 ployee’s position are to be determined with reference to

24 the position the employee held at the time notice is given

25 or leave commenced, whichever is earlier.
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1 § 825.116 What does it mean that an employee is

2 ‘‘needed to care for’’ a family member?

3 (a) The medical certification provision that an em4 ployee is ‘‘needed to care for’’ a family member encom5 passes both physical and psychological care. It includes

6 situations where, for example, because of a serious health

7 condition, the family member is unable to care for his or

8 her own basic medical, hygienic, or nutritional needs or

9 safety, or is unable to transport himself or herself to the

10 doctor, etc. The term also includes providing psychological

11 comfort and reassurance which would be beneficial to a

12 child, spouse or parent with a serious health condition who

13 is receiving inpatient or home care.

14 (b) The term also includes situations where the em15 ployee may be needed to fill in for others who are caring

16 for the family member, or to make arrangements for

17 changes in care, such as transfer to a nursing home.

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

19 leave schedule necessary to care for a family member in20 cludes not only a situation where the family member’s con21 dition itself is intermittent, but also where the employee

22 is only needed intermittently ‘‘such as where other care

23 is normally available, or care responsibilities are shared

24 with another member of the family or a third party.
32

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1 § 825.117 For an employee seeking intermittent

2 FMLA leave or leave on a reduced leave

3 schedule, what is meant by ‘‘the medical

4 necessity for’’ such leave?

5 For intermittent leave or leave on a reduced leave

6 schedule, there must be a medical need for leave (as distin7 guished from voluntary treatments and procedures) and

8 it must be that such medical need can be best accommo9 dated through an intermittent or reduced leave schedule.

10 The treatment regimen and other information described

11 in the certification of a serious health condition (see

12 § 825.306) meets the requirement for certification of the

13 medical necessity of intermittent leave or leave on a re14 duced leave schedule. Employees needing intermittent

15 FMLA leave or leave on a reduced leave schedule must

16 attempt to schedule their leave so as not to disrupt the

17 employing office’s operations. In addition, an employing

18 office may assign an employee to an alternative position

19 with equivalent pay and benefits that better accommodates

20 the employee’s intermittent or reduced leave schedule.

21 § 825.118 What is a ‘‘health care provider’’?

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

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

24 authorized to practice medicine or surgery (as ap25 propriate) by the State in which the doctor prac26 tices; or
33

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1 (ii) Any other person determined by the Office

2 of Compliance to be capable of providing health care

3 services.

4 (2) In making a determination referred to in subpara5 graph (1)(ii), and absent good cause shown to do other6 wise, the Office of Compliance will follow any determina7 tion made by the Secretary of Labor (under section

8 101(6)(B) of the FMLA, 29 U.S.C. 2611(6)(B)) that a

9 person is capable of providing health care services, pro10 vided the Secretary’s determination was not made at the

11 request of a person who was then a covered employee.

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

13 include only:

14 (1) Podiatrists, dentists, clinical psychologists,

15 optometrists, and chiropractors (limited to treatment

16 consisting of manual manipulation of the spine to

17 correct a subluxation as demonstrated by X-ray to

18 exist) authorized to practice in the State and per19 forming within the scope of their practice as defined

20 under State law;

21 (2) Nurse practitioners, nurse-midwives and

22 clinical social workers who are authorized to practice

23 under State law and who are performing within the

24 scope of their practice as defined under State law;
34

•SRES 242 ATS

1 (3) Christian Science practitioners listed with

2 the First Church of Christ, Scientist in Boston,

3 Massachusetts. Where an employee or family mem4 ber is receiving treatment from a Christian Science

5 practitioner, an employee may not object to any re6 quirement from an employing office that the em7 ployee or family member submit to examination

8 (though not treatment) to obtain a second or third

9 certification from a health care provider other than

10 a Christian Science practitioner except as otherwise

11 provided under applicable State or local law or col12 lective bargaining agreement.

13 (4) Any health care provider from whom an em14 ploying office or the employing office’s group health

15 plan’s benefits manager will accept certification of

16 the existence of a serious health condition to sub17 stantiate a claim for benefits; and

18 (5) A health care provider listed above who

19 practices in a country other than the United States,

20 who is authorized to practice in accordance with the

21 law of that country, and who is performing within

22 the scope of his or her practice as defined under

23 such law.

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

25 as used in this section means that the provider must be
35

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1 authorized to diagnose and treat physical or mental health

2 conditions without supervision by a doctor or other health

3 care provider.

4 SUBPART B—WHAT LEAVE IS AN EMPLOYEE ENTITLED

5 TO TAKE UNDER THE FAMILY AND MEDICAL

6 LEAVE ACT, AS MADE APPLICABLE BY THE CON7 GRESSIONAL ACCOUNTABILITY ACT?

8 § 825.200 How much leave may an employee take?

9 (a) An eligible employee’s FMLA leave entitlement

10 is limited to a total of 12 workweeks of leave during any

11 12-month period for any one, or more, of the following

12 reasons:

13 (1) The birth of the employee’s son or daugh14 ter, and to care for the newborn child;

15 (2) The placement with the employee of a son

16 or daughter for adoption or foster care, and to care

17 for the newly placed child;

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

19 daughter, or parent with a serious health condition;

20 and

21 (4) Because of a serious health condition that

22 makes the employee unable to perform one or more

23 of the essential functions of his or her job.

24 (b) An employing office is permitted to choose any

25 one of the following methods for determining the ‘‘12-
36

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1 month period’’ in which the 12 weeks of leave entitlement

2 occurs:

3 (1) The calendar year;

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

5 a fiscal year or a year starting on an employee’s

6 ‘‘anniversary’’ date;

7 (3) The 12-month period measured forward

8 from the date any employee’s first FMLA leave be9 gins; or

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

11 backward from the date an employee uses any

12 FMLA leave (except that such measure may not ex13 tend back before the date on which the application

14 of FMLA rights and protections first becomes effec15 tive for the employing office; see § 825.102).

16 (c) Under methods in paragraphs (b)(1) and (b)(2)

17 of this section an employee would be entitled to up to 12

18 weeks of FMLA leave at any time in the fixed 12-month

19 period selected. An employee could, therefore, take 12

20 weeks of leave at the end of the year and 12 weeks at

21 the beginning of the following year. Under the method in

22 paragraph (b)(3) of this section, an employee would be

23 entitled to 12 weeks of leave during the year beginning

24 on the first date FMLA leave is taken; the next 12-month

25 period would begin the first time FMLA leave is taken
37

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1 after completion of any previous 12-month period. Under

2 the method in paragraph (b)(4) of this section, the ‘‘roll3 ing’’ 12-month period, each time an employee takes

4 FMLA leave the remaining leave entitlement would be any

5 balance of the 12 weeks which has not been used during

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

7 employee has taken eight weeks of leave during the past

8 12 months, an additional four weeks of leave could be

9 taken. If an employee used four weeks beginning February

10 1, 1997, four weeks beginning June 1, 1997, and four

11 weeks beginning December 1, 1997, the employee would

12 not be entitled to any additional leave until February 1,

13 1998. However, beginning on February 1, 1998, the em14 ployee would be entitled to four weeks of leave, on June

15 1 the employee would be entitled to an additional four

16 weeks, etc.

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

18 one of the alternatives in paragraph (b) of this section

19 provided the alternative chosen is applied consistently and

20 uniformly to all employees. An employing office wishing

21 to change to another alternative is required to give at least

22 60 days notice to all employees, and the transition must

23 take place in such a way that the employees retain the

24 full benefit of 12 weeks of leave under whichever method

25 affords the greatest benefit to the employee. Under no cir-
38

•SRES 242 ATS

1 cumstances may a new method be implemented in order

2 to avoid the CAA’s FMLA leave requirements.

3 (2) [Reserved]

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

5 options in paragraph (b) of this section for measuring the

6 12-month period, the option that provides the most bene7 ficial outcome for the employee will be used. The employ8 ing office may subsequently select an option only by pro9 viding the 60-day notice to all employees of the option the

10 employing office intends to implement. During the run11 ning of the 60-day period any other employee who needs

12 FMLA leave may use the option providing the most bene13 ficial outcome to that employee. At the conclusion of the

14 60-day period the employing office may implement the se15 lected option.

16 (f) For purposes of determining the amount of leave

17 used by an employee, the fact that a holiday may occur

18 within the week taken as FMLA leave has no effect; the

19 week is counted as a week of FMLA leave. However, if

20 for some reason the employing office’s activity has tempo21 rarily ceased and employees generally are not expected to

22 report for work for one or more weeks (e.g., a school clos23 ing two weeks for the Christmas/New Year holiday or the

24 summer vacation or an employing office closing the office

25 for repairs), the days the employing office’s activities have
39

•SRES 242 ATS

1 ceased do not count against the employee’s FMLA leave

2 entitlement. Methods for determining an employee’s 12-

3 week leave entitlement are also described in § 825.205.

4 (g)(1) If employing offices jointly employ an em5 ployee, and if they designate a primary employer pursuant

6 to § 825.106(c), the primary employer may choose any one

7 of the alternatives in paragraph (b) of this section for

8 measuring the 12-month period, provided that the alter9 native chosen is applied consistently and uniformly to all

10 employees of the primary employer including the jointly

11 employed employee.

12 (2) If employing offices fail to designated a primary

13 employer pursuant to § 825.106(c), an employee jointly

14 employed by the employing offices may, by so notifying

15 one of the employing offices, select that employing office

16 to be the primary employer of the employee for purposes

17 of the application of paragraphs (d) and (e) of this section.

18 § 825.201 If leave is taken for the birth of a child, or

19 for placement of a child for adoption or

20 foster care, when must the leave be con21 cluded?

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

23 placement for adoption or foster care expires at the end

24 of the 12-month period beginning on the date of the birth

25 or placement, unless the employing office permits leave to
40

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1 be taken for a longer period. Any such FMLA leave must

2 be concluded within this one-year period.

3 § 825.202 How much leave may a husband and wife

4 take if they are employed by the same

5 employing office?

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

7 leave and are employed by the same employing office may

8 be limited to a combined total of 12 weeks of leave during

9 any 12-month period if the leave is taken—

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

11 or to care for the child after birth;

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

13 employee for adoption or foster care, or to care for

14 the child after placement; or

15 (3) to care for the employee’s parent with a se16 rious health condition.

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

18 to leave taken for the reasons specified in paragraph (a)

19 of this section as long as a husband and wife are employed

20 by the ‘‘same employing office’’. It would apply, for exam21 ple, even though the spouses are employed at two different

22 work sites of an employing office. On the other hand, if

23 one spouse is ineligible for FMLA leave, the other spouse

24 would be entitled to a full 12 weeks of FMLA leave.
41

•SRES 242 ATS

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

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

3 the purposes in paragraph (a) of this section, the husband

4 and wife would each be entitled to the difference between

5 the amount he or she has taken individually and 12 weeks

6 for FMLA leave for a purpose other than those contained

7 in paragraph (a) of this section. For example, if each

8 spouse took 6 weeks of leave to care for a healthy, new9 born child, each could use an additional 6 weeks due to

10 his or her own serious health condition or to care for a

11 child with a serious health condition.

12 § 825.203 Does FMLA leave have to be taken all at

13 once, or can it be taken in parts?

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

15 a reduced leave schedule’’ under certain circumstances.

16 Intermittent leave is FMLA leave taken in separate blocks

17 of time due to a single qualifying reason. A reduced leave

18 schedule is a leave schedule that reduces an employee’s

19 usual number of working hours per workweek, or hours

20 per workday. A reduced leave schedule is a change in the

21 employee’s schedule for a period of time, normally from

22 full-time to part-time.

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

24 of a child for adoption or foster care, an employee may

25 take leave intermittently or on a reduced leave schedule
42

•SRES 242 ATS

1 only if the employing office agrees. Such a schedule reduc2 tion might occur, for example, where an employee, with

3 the employing office’s agreement, works part-time after

4 the birth of a child, or takes leave in several segments.

5 The employing office’s agreement is not required, however,

6 for leave during which the mother has a serious health

7 condition in connection with the birth of her child or if

8 the newborn child has a serious health condition.

9 (c) Leave may be taken intermittently or on a re10 duced leave schedule when medically necessary for planned

11 and/or unanticipated medical treatment of a related seri12 ous health condition by or under the supervision of a

13 health care provider, or for recovery from treatment or

14 recovery from a serious health condition. It may also be

15 taken to provide care or psychological comfort to an imme16 diate family member with a serious health condition.

17 (1) Intermittent leave may be taken for a seri18 ous health condition which requires treatment by a

19 health care provider periodically, rather than for one

20 continuous period of time, and may include leave of

21 periods from an hour or more to several weeks. Ex22 amples of intermittent leave would include leave

23 taken on an occasional basis for medical appoint24 ments, or leave taken several days at a time spread

25 over a period of six months, such as for chemo-
43

•SRES 242 ATS

1 therapy. A pregnant employee may take leave inter2 mittently for prenatal examinations or for her own

3 condition, such as for periods of severe morning

4 sickness. An example of an employee taking leave on

5 a reduced leave schedule is an employee who is re6 covering from a serious health condition and is not

7 strong enough to work a full-time schedule.

8 (2) Intermittent or reduced schedule leave may

9 be taken for absences where the employee or family

10 member is incapacitated or unable to perform the

11 essential functions of the position because of a

12 chronic serious health condition even if he or she

13 does not receive treatment by a health care provider.

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

15 leave when an employee takes intermittent leave or leave

16 on a reduced leave schedule. However, an employing office

17 may limit leave increments to the shortest period of time

18 that the employing office’s payroll system uses to account

19 for absences or use of leave, provided it is one hour or

20 less. For example, an employee might take two hours off

21 for a medical appointment, or might work a reduced day

22 of four hours over a period of several weeks while

23 recuperating from an illness. An employee may not be re24 quired to take more FMLA leave than necessary to ad-
44

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1 dress the circumstance that precipitated the need for the

2 leave, except as provided in §§ 825.601 and 825.602.

3 § 825.204 May an employing office transfer an em4 ployee to an ‘‘alternative position’’ in

5 order to accommodate intermittent leave

6 or a reduced leave schedule?

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

8 on a reduced leave schedule that is foreseeable based on

9 planned medical treatment for the employee or a family

10 member, including during a period of recovery from a seri11 ous health condition, or if the employing office agrees to

12 permit intermittent or reduced schedule leave for the birth

13 of a child or for placement of a child for adoption or foster

14 care, the employing office may require the employee to

15 transfer temporarily, during the period the intermittent or

16 reduced leave schedule is required, to an available alter17 native position for which the employee is qualified and

18 which better accommodates recurring periods of leave than

19 does the employee’s regular position. See § 825.601 for

20 special rules applicable to instructional employees of

21 schools.

22 (b) Transfer to an alternative position may require

23 compliance with any applicable collective bargaining agree24 ment and any applicable law (such as the Americans with

25 Disabilities Act, as made applicable by the CAA). Transfer
45

•SRES 242 ATS

1 to an alternative position may include altering an existing

2 job to better accommodate the employee’s need for inter3 mittent or reduced leave.

4 (c) The alternative position must have equivalent pay

5 and benefits. An alternative position for these purposes

6 does not have to have equivalent duties. The employing

7 office may increase the pay and benefits of an existing

8 alternative position, so as to make them equivalent to the

9 pay and benefits of the employee’s regular job. The em10 ploying office may also transfer the employee to a part11 time job with the same hourly rate of pay and benefits,

12 provided the employee is not required to take more leave

13 than is medically necessary. For example, an employee de14 siring to take leave in increments of four hours per day

15 could be transferred to a half-time job, or could remain

16 in the employee’s same job on a part-time schedule, paying

17 the same hourly rate as the employee’s previous job and

18 enjoying the same benefits. The employing office may not

19 eliminate benefits which otherwise would not be provided

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

21 proportionately reduce benefits such as vacation leave

22 where an employing office’s normal practice is to base

23 such benefits on the number of hours worked.

24 (d) An employing office may not transfer the em25 ployee to an alternative position in order to discourage the
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1 employee from taking leave or otherwise work a hardship

2 on the employee. For example, a white collar employee

3 may not be assigned to perform laborer’s work; an em4 ployee working the day shift may not be reassigned to the

5 graveyard shift; an employee working in the headquarters

6 facility may not be reassigned to a branch a significant

7 distance away from the employee’s normal job location.

8 Any such attempt on the part of the employing office to

9 make such a transfer will be held to be contrary to the

10 prohibited-acts provisions of the FMLA, as made applica11 ble by the CAA.

12 (e) When an employee who is taking leave intermit13 tently or on a reduced leave schedule and has been trans14 ferred to an alternative position no longer needs to con15 tinue on leave and is able to return to full-time work, the

16 employee must be placed in the same or equivalent job

17 as the job he/she left when the leave commenced. An em18 ployee may not be required to take more leave than nec19 essary to address the circumstance that precipitated the

20 need for leave.
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1 § 825.205 How does one determine the amount of

2 leave used where an employee takes

3 leave intermittently or on a reduced

4 leave schedule?

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

6 reduced leave schedule, only the amount of leave actually

7 taken may be counted toward the 12 weeks of leave to

8 which an employee is entitled. For example, if an employee

9 who normally works five days a week takes off one day,

the employee would use 1 10 ⁄5 of a week of FMLA leave. Simi11 larly, if a full-time employee who normally works 8-hour

12 days works 4-hour days under a reduced leave schedule,

the employee would use 1 13 ⁄2 week of FMLA leave each

14 week.

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

16 schedule or variable hours, the amount of leave to which

17 an employee is entitled is determined on a pro rata or pro18 portional basis by comparing the new schedule with the

19 employee’s normal schedule. For example, if an employee

20 who normally works 30 hours per week works only 20

21 hours a week under a reduced leave schedule, the employ22 ee’s ten hours of leave would constitute one-third of a week

23 of FMLA leave for each week the employee works the re24 duced leave schedule.

25 (c) If an employing office has made a permanent or

26 long-term change in the employee’s schedule (for reasons
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1 other than FMLA, and prior to the notice of need for

2 FMLA leave), the hours worked under the new schedule

3 are to be used for making this calculation.

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

5 week, a weekly average of the hours worked over the 12

6 weeks prior to the beginning of the leave period would be

7 used for calculating the employee’s normal workweek.

8 § 825.206 May an employing office deduct hourly

9 amounts from an employee’s salary, when

10 providing unpaid leave under FMLA, as

11 made applicable by the CAA, without af12 fecting the employee’s qualification for

13 exemption as an executive, administra14 tive, or professional employee, or when

15 utilizing the fluctuating workweek meth16 od for payment of overtime, under the

17 Fair Labor Standards Act?

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

19 the CAA, may be unpaid. If an employee is otherwise ex20 empt from minimum wage and overtime requirements of

21 the Fair Labor Standards Act (FLSA), as made applica22 ble by the CAA, as a salaried executive, administrative,

23 or professional employee (under regulations issued by the

24 Board, at part 541), providing unpaid FMLA-qualifying

25 leave to such an employee will not cause the employee to
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1 lose the FLSA exemption. This means that under regula2 tions currently in effect, where an employee meets the

3 specified duties test, is paid on a salary basis, and is paid

4 a salary of at least the amount specified in the regulations,

5 the employing office may make deductions from the em6 ployee’s salary for any hours taken as intermittent or re7 duced FMLA leave within a workweek, without affecting

8 the exempt status of the employee. The fact that an em9 ploying office provides FMLA leave, whether paid or un10 paid, or maintains any records regarding FMLA leave, will

11 not be relevant to the determination whether an employee

12 is exempt within the meaning of the Board’s regulations

13 at part 541.

14 (b) For an employee paid in accordance with a fluc15 tuating workweek method of payment for overtime, where

16 permitted by section 203 of the CAA (2 U.S.C. 1313),

17 the employing office, during the period in which intermit18 tent or reduced schedule FMLA leave is scheduled to be

19 taken, may compensate an employee on an hourly basis

20 and pay only for the hours the employee works, including

21 time and one-half the employee’s regular rate for overtime

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

23 include the entire period during which the employee is tak24 ing intermittent leave, including weeks in which no leave

25 is taken. The hourly rate shall be determined by dividing
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1 the employee’s weekly salary by the employee’s normal or

2 average schedule of hours worked during weeks in which

3 FMLA leave is not being taken. If an employing office

4 chooses to follow this exception from the fluctuating work5 week method of payment, the employing office must do

6 so uniformly, with respect to all employees paid on a fluc7 tuating workweek basis for whom FMLA leave is taken

8 on an intermittent or reduced leave schedule basis. If an

9 employing office does not elect to convert the employee’s

10 compensation to hourly pay, no deduction may be taken

11 for FMLA leave absences. Once the need for intermittent

12 or reduced scheduled leave is over, the employee may be

13 restored to payment on a fluctuating workweek basis.

14 (c) This special exception to the ‘‘salary basis’’ re15 quirements of the FLSA exemption or fluctuating work16 week payment requirements applies only to employees of

17 employing offices who are eligible for FMLA leave, and

18 to leave which qualifies as (one of the four types of)

19 FMLA leave. Hourly or other deductions which are not

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

21 or with a permissible fluctuating workweek method of pay22 ment for overtime may not be taken, for example, where

23 the employee has not worked long enough to be eligible

24 for FMLA leave without potentially affecting the employ25 ee’s eligibility for exemption. Nor may deductions which
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1 are not permitted by the Board’s regulations at part 541

2 or by a permissible fluctuating workweek method of pay3 ment for overtime be taken from such an employee’s salary

4 for any leave which does not qualify as FMLA leave, for

5 example, deductions from an employee’s pay for leave re6 quired under an employing office’s policy or practice for

7 a reason which does not qualify as FMLA leave, e.g., leave

8 to care for a grandparent or for a medical condition which

9 does not qualify as a serious health condition; or for leave

10 which is more generous than provided by FMLA as made

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

12 in a year. The employing office may comply with the em13 ploying office’s own policy/practice under these cir14 cumstances and maintain the employee’s eligibility for ex15 emption or for the fluctuating workweek method of pay

16 by not taking hourly deductions from the employee’s pay,

17 in accordance with FLSA requirements, or may take such

18 deductions, treating the employee as an ‘‘hourly’’ employee

19 and pay overtime premium pay for hours worked over 40

20 in a workweek.

21 § 825.207 Is FMLA leave paid or unpaid?

22 (a) Generally, FMLA leave is unpaid. However, under

23 the circumstances described in this section, FMLA, as

24 made applicable by the CAA, permits an eligible employee

25 to choose to substitute paid leave for FMLA leave. If an
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1 employee does not choose to substitute accrued paid leave,

2 the employing office may require the employee to sub3 stitute accrued paid leave for FMLA leave.

4 (b) Where an employee has earned or accrued paid

5 vacation, personal or family leave, that paid leave may be

6 substituted for all or part of any (otherwise) unpaid

7 FMLA leave relating to birth, placement of a child for

8 adoption or foster care, or care for a spouse, child or par9 ent who has a serious health condition. The term ‘‘family

10 leave’’ as used in FMLA refers to paid leave provided by

11 the employing office covering the particular circumstances

12 for which the employee seeks leave for either the birth of

13 a child and to care for such child, placement of a child

14 for adoption or foster care, or care for a spouse, child or

15 parent with a serious health condition. For example, if the

16 employing office’s leave plan allows use of family leave to

17 care for a child but not for a parent, the employing office

18 is not required to allow accrued family leave to be sub19 stituted for FMLA leave used to care for a parent.

20 (c) Substitution of paid accrued vacation, personal,

21 or medical/sick leave may be made for any (otherwise) un22 paid FMLA leave needed to care for a family member or

23 the employee’s own serious health condition. Substitution

24 of paid sick/medical leave may be elected to the extent the

25 circumstances meet the employing office’s usual require-
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1 ments for the use of sick/medical leave. An employing of2 fice is not required to allow substitution of paid sick or

3 medical leave for unpaid FMLA leave ‘‘in any situation’’

4 where the employing office’s uniform policy would not nor5 mally allow such paid leave. An employee, therefore, has

6 a right to substitute paid medical/sick leave to care for

7 a seriously ill family member only if the employing office’s

8 leave plan allows paid leave to be used for that purpose.

9 Similarly, an employee does not have a right to substitute

10 paid medical/sick leave for a serious health condition

11 which is not covered by the employing office’s leave plan.

12 (d)(1) Disability leave for the birth of a child would

13 be considered FMLA leave for a serious health condition

14 and counted in the 12 weeks of leave permitted under

15 FMLA as made applicable by the CAA. Because the leave

16 pursuant to a temporary disability benefit plan is not un17 paid, the provision for substitution of paid leave is inap18 plicable. However, the employing office may designate the

19 leave as FMLA leave and count the leave as running con20 currently for purposes of both the benefit plan and the

21 FMLA leave entitlement. If the requirements to qualify

22 for payments pursuant to the employing office’s temporary

23 disability plan are more stringent than those of FMLA

24 as made applicable by the CAA, the employee must meet

25 the more stringent requirements of the plan, or may
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1 choose not to meet the requirements of the plan and in2 stead receive no payments from the plan and use unpaid

3 FMLA leave or substitute available accrued paid leave.

4 (2) The FMLA as made applicable by the CAA pro5 vides that a serious health condition may result from in6 jury to the employee ‘‘on or off’’ the job. If the employing

7 office designates the leave as FMLA leave in accordance

8 with § 825.208, the employee’s FMLA 12-week leave enti9 tlement may run concurrently with a workers’ compensa10 tion absence when the injury is one that meets the criteria

11 for a serious health condition. As the workers’ compensa12 tion absence is not unpaid leave, the provision for substi13 tution of the employee’s accrued paid leave is not applica14 ble. However, if the health care provider treating the em15 ployee for the workers’ compensation injury certifies the

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

17 unable to return to the same or equivalent job, the em18 ployee may decline the employing office’s offer of a ‘‘light

19 duty job’’. As a result the employee may lose workers’

20 compensation payments, but is entitled to remain on un21 paid FMLA leave until the 12-week entitlement is ex22 hausted. As of the date workers’ compensation benefits

23 cease, the substitution provision becomes applicable and

24 either the employee may elect or the employing office may

25 require the use of accrued paid leave. See also §§
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1 825.210(f), 825.216(d), 825.220(d), 825.307(a)(1) and

2 825.702(d) (1) and (2) regarding the relationship between

3 workers’ compensation absences and FMLA leave.

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

5 earned or accrued under plans allowing ‘‘paid time off’’,

6 may be substituted, at either the employee’s or the em7 ploying office’s option, for any qualified FMLA leave. No

8 limitations may be placed by the employing office on sub9 stitution of paid vacation or personal leave for these pur10 poses.

11 (f) If neither the employee nor the employing office

12 elects to substitute paid leave for unpaid FMLA leave

13 under the above conditions and circumstances, the em14 ployee will remain entitled to all the paid leave which is

15 earned or accrued under the terms of the employing of16 fice’s plan.

17 (g) If an employee uses paid leave under cir18 cumstances which do not qualify as FMLA leave, the leave

19 will not count against the 12 weeks of FMLA leave to

20 which the employee is entitled. For example, paid sick

21 leave used for a medical condition which is not a serious

22 health condition does not count against the 12 weeks of

23 FMLA leave entitlement.

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

25 substitute paid leave (of any type) for unpaid FMLA leave
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1 under circumstances permitted by these regulations, and

2 the employing office’s procedural requirements for taking

3 that kind of leave are less stringent than the requirements

4 of FMLA as made applicable by the CAA (e.g., notice or

5 certification requirements), only the less stringent require6 ments may be imposed. An employee who complies with

7 an employing office’s less stringent leave plan require8 ments in such cases may not have leave for an FMLA

9 purpose delayed or denied on the grounds that the em10 ployee has not complied with stricter requirements of

11 FMLA as made applicable by the CAA. However, where

12 accrued paid vacation or personal leave is substituted for

13 unpaid FMLA leave for a serious health condition, an em14 ployee may be required to comply with any less stringent

15 medical certification requirements of the employing of16 fice’s sick leave program. See §§ 825.302(g), 825.305(e)

17 and 825.306(c).

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

19 applicable law, is not a form of accrued paid leave that

20 an employing office may require the employee to substitute

21 for unpaid FMLA leave. The employee may request to use

22 his/her balance of compensatory time for an FMLA rea23 son. If the employing office permits the accrual of compen24 satory time to be used in compliance with applicable Board

25 regulations, the absence which is paid from the employee’s
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1 accrued compensatory time ‘‘account’’ may not be counted

2 against the employee’s FMLA leave entitlement.

3 § 825.208 Under what circumstances may an employ4 ing office designate leave, paid or unpaid,

5 as FMLA leave and, as a result, enable

6 leave to be counted against the employ7 ee’s total FMLA leave entitlement?

8 (a) In all circumstances, it is the employing office’s

9 responsibility to designate leave, paid or unpaid, as

10 FMLA-qualifying, and to give notice of the designation to

11 the employee as provided in this section. In the case of

12 intermittent leave or leave on a reduced schedule, only one

13 such notice is required unless the circumstances regarding

14 the leave have changed. The employing office’s designation

15 decision must be based only on information received from

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

17 employee is incapacitated, the employee’s spouse, adult

18 child, parent, doctor, etc., may provide notice to the em19 ploying office of the need to take FMLA leave). In any

20 circumstance where the employing office does not have

21 sufficient information about the reason for an employee’s

22 use of paid leave, the employing office should inquire fur23 ther of the employee or the spokesperson to ascertain

24 whether the paid leave is potentially FMLA-qualifying.
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1 (1) An employee giving notice of the need for

2 unpaid FMLA leave must explain the reasons for

3 the needed leave so as to allow the employing office

4 to determine that the leave qualifies under the

5 FMLA, as made applicable by the CAA. If the em6 ployee fails to explain the reasons, leave may be de7 nied. In many cases, in explaining the reasons for a

8 request to use paid leave, especially when the need

9 for the leave was unexpected or unforeseen, an em10 ployee will provide sufficient information for the em11 ploying office to designate the paid leave as FMLA

12 leave. An employee using accrued paid leave, espe13 cially vacation or personal leave, may in some cases

14 not spontaneously explain the reasons or their plans

15 for using their accrued leave.

16 (2) As noted in § 825.302(c), an employee giv17 ing notice of the need for unpaid FMLA leave does

18 not need to expressly assert rights under the FMLA

19 as made applicable by the CAA or even mention the

20 FMLA to meet his or her obligation to provide no21 tice, though the employee would need to state a

22 qualifying reason for the needed leave. An employee

23 requesting or notifying the employing office of an in24 tent to use accrued paid leave, even if for a purpose

25 covered by FMLA, would not need to assert such
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1 right either. However, if an employee requesting to

2 use paid leave for an FMLA-qualifying purpose does

3 not explain the reason for the leave—consistent with

4 the employing office’s established policy or prac5 tice—and the employing office denies the employee’s

6 request, the employee will need to provide sufficient

7 information to establish an FMLA-qualifying reason

8 for the needed leave so that the employing office is

9 aware of the employee’s entitlement (i.e., that the

10 leave may not be denied) and, then, may designate

11 that the paid leave be appropriately counted against

12 (substituted for) the employee’s 12-week entitlement.

13 Similarly, an employee using accrued paid vacation

14 leave who seeks an extension of unpaid leave for an

15 FMLA-qualifying purpose will need to state the rea16 son. If this is due to an event which occurred during

17 the period of paid leave, the employing office may

18 count the leave used after the FMLA-qualifying

19 event against the employee’s 12-week entitlement.

20 (b)(1) Once the employing office has acquired knowl21 edge that the leave is being taken for an FMLA required

22 reason, the employing office must promptly (within two

23 business days absent extenuating circumstances) notify

24 the employee that the paid leave is designated and will

25 be counted as FMLA leave. If there is a dispute between
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1 an employing office and an employee as to whether paid

2 leave qualifies as FMLA leave, it should be resolved

3 through discussions between the employee and the employ4 ing office. Such discussions and the decision must be docu5 mented.

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

7 the leave has been designated as FMLA leave may be oral8 ly or in writing. If the notice is oral, it shall be confirmed

9 in writing, no later than the following payday (unless the

10 payday is less than one week after the oral notice, in which

11 case the notice must be no later than the subsequent pay12 day). The written notice may be in any form, including

13 a notation on the employee’s pay stub.

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

15 substituted for unpaid leave, or that paid leave taken

16 under an existing leave plan be counted as FMLA leave,

17 this decision must be made by the employing office within

18 two business days of the time the employee gives notice

19 of the need for leave, or, where the employing office does

20 not initially have sufficient information to make a deter21 mination, when the employing office determines that the

22 leave qualifies as FMLA leave if this happens later. The

23 employing office’s designation must be made before the

24 leave starts, unless the employing office does not have suf25 ficient information as to the employee’s reason for taking
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1 the leave until after the leave commenced. If the employing

2 office has the requisite knowledge to make a determination

3 that the paid leave is for an FMLA reason at the time

4 the employee either gives notice of the need for leave or

5 commences leave and fails to designate the leave as FMLA

6 leave (and so notify the employee in accordance with para7 graph (b)), the employing office may not designate leave

8 as FMLA leave retroactively, and may designate only pro9 spectively as of the date of notification to the employee

10 of the designation. In such circumstances, the employee

11 is subject to the full protections of the FMLA, as made

12 applicable by the CAA, but none of the absence preceding

13 the notice to the employee of the designation may be

14 counted against the employee’s 12-week FMLA leave enti15 tlement.

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

17 FMLA purpose after leave has begun, such as when an

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

19 paid leave with unpaid FMLA leave, the entire or some

20 portion of the paid leave period may be retroactively

21 counted as FMLA leave, to the extent that the leave period

22 qualified as FMLA leave. For example, an employee is

23 granted two weeks paid vacation leave for a skiing trip.

24 In mid-week of the second week, the employee contacts

25 the employing office for an extension of leave as unpaid
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1 leave and advises that at the beginning of the second week

2 of paid vacation leave the employee suffered a severe acci3 dent requiring hospitalization. The employing office may

4 notify the employee that both the extension and the second

5 week of paid vacation leave (from the date of the injury)

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

7 the employee takes sick leave that turns into a serious

8 health condition (e.g., bronchitis that turns into bronchial

9 pneumonia) and the employee gives notice of the need for

10 an extension of leave, the entire period of the serious

11 health condition may be counted as FMLA leave.

12 (e) Employing offices may not designate leave as

13 FMLA leave after the employee has returned to work with

14 two exceptions:

15 (1) If the employee was absent for an FMLA

16 reason and the employing office did not learn the

17 reason for the absence until the employee’s return

18 (e.g., where the employee was absent for only a brief

19 period), the employing office may, upon the employ20 ee’s return to work, promptly (within two business

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

22 leave retroactively with appropriate notice to the em23 ployee. If leave is taken for an FMLA reason but

24 the employing office was not aware of the reason,

25 and the employee desires that the leave be counted
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1 as FMLA leave, the employee must notify the em2 ploying office within two business days of returning

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

4 of such timely notification by the employee, the em5 ployee may not subsequently assert FMLA protec6 tions for the absence.

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

8 the leave but has not been able to confirm that the

9 leave qualifies under FMLA, or where the employing

10 office has requested medical certification which has

11 not yet been received or the parties are in the proc12 ess of obtaining a second or third medical opinion,

13 the employing office should make a preliminary des14 ignation, and so notify the employee, at the time

15 leave begins, or as soon as the reason for the leave

16 becomes known. Upon receipt of the requisite infor17 mation from the employee or of the medical certifi18 cation which confirms the leave is for an FMLA rea19 son, the preliminary designation becomes final. If

20 the medical certifications fail to confirm that the

21 reason for the absence was an FMLA reason, the

22 employing office must withdraw the designation

23 (with written notice to the employee).

24 (f) If, before beginning employment with an employ25 ing office, an employee had been employed by another em-
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1 ploying office, the subsequent employing office may count

2 against the employee’s FMLA leave entitlement FMLA

3 leave taken from the prior employing office, except that,

4 if the FMLA leave began after the effective date of these

5 regulations (or if the FMLA leave was subject to other

6 applicable requirement under which the employing office

7 was to have designated the leave as FMLA leave), the

8 prior employing office must have properly designated the

9 leave as FMLA under these regulations or other applicable

10 requirement.

11 § 825.209 Is an employee entitled to benefits while

12 using FMLA leave?

13 (a) During any FMLA leave, the employing office

14 must maintain the employee’s coverage under the Federal

15 Employees Health Benefits Program or any group health

16 plan (as defined in the Internal Revenue Code of 1986

17 at 26 U.S.C. 5000(b)(1)) on the same conditions as cov18 erage would have been provided if the employee had been

19 continuously employed during the entire leave period. All

20 employing offices are subject to the requirements of the

21 FMLA, as made applicable by the CAA, to maintain

22 health coverage. The definition of ‘‘group health plan’’ is

23 set forth in § 825.800. For purposes of FMLA, the term

24 ‘‘group health plan’’ shall not include an insurance pro-
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1 gram providing health coverage under which employees

2 purchase individual policies from insurers provided that—

3 (1) no contributions are made by the employing

4 office;

5 (2) participation in the program is completely

6 voluntary for employees;

7 (3) the sole functions of the employing office

8 with respect to the program are, without endorsing

9 the program, to permit the insurer to publicize the

10 program to employees, to collect premiums through

11 payroll deductions and to remit them to the insurer;

12 (4) the employing office receives no consider13 ation in the form of cash or otherwise in connection

14 with the program, other than reasonable compensa15 tion, excluding any profit, for administrative services

16 actually rendered in connection with payroll deduc17 tion; and

18 (5) the premium charged with respect to such

19 coverage does not increase in the event the employ20 ment relationship terminates.

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

22 an employee prior to taking FMLA leave must be main23 tained during the FMLA leave. For example, if family

24 member coverage is provided to an employee, family mem25 ber coverage must be maintained during the FMLA leave.
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1 Similarly, benefit coverage during FMLA leave for medical

2 care, surgical care, hospital care, dental care, eye care,

3 mental health counseling, substance abuse treatment, etc.,

4 must be maintained during leave if provided in an employ5 ing office’s group health plan, including a supplement to

6 a group health plan, whether or not provided through a

7 flexible spending account or other component of a cafe8 teria plan.

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

10 or benefits or changes health benefits or plans while an

11 employee is on FMLA leave, the employee is entitled to

12 the new or changed plan/benefits to the same extent as

13 if the employee were not on leave. For example, if an em14 ploying office changes a group health plan so that dental

15 care becomes covered under the plan, an employee on

16 FMLA leave must be given the same opportunity as other

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

18 Any other plan changes (e.g., in coverage, premiums,

19 deductibles, etc.) which apply to all employees of the

20 workforce would also apply to an employee on FMLA

21 leave.

22 (d) Notice of any opportunity to change plans or ben23 efits must also be given to an employee on FMLA leave.

24 If the group health plan permits an employee to change

25 from single to family coverage upon the birth of a child
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1 or otherwise add new family members, such a change in

2 benefits must be made available while an employee is on

3 FMLA leave. If the employee requests the changed cov4 erage it must be provided by the employing office.

5 (e) An employee may choose not to retain group

6 health plan coverage during FMLA leave. However, when

7 an employee returns from leave, the employee is entitled

8 to be reinstated on the same terms as prior to taking the

9 leave, including family or dependent coverages, without

10 any qualifying period, physical examination, exclusion of

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

12 (f) Except as required by the Consolidated Omnibus

13 Budget Reconciliation Act of 1986 (COBRA) or 5 U.S.C.

14 8905a, whichever is applicable, and for ‘‘key’’ employees

15 (as discussed below), an employing office’s obligation to

16 maintain health benefits during leave (and to restore the

17 employee to the same or equivalent employment) under

18 FMLA ceases if and when the employment relationship

19 would have terminated if the employee had not taken

20 FMLA leave (e.g., if the employee’s position is eliminated

21 as part of a nondiscriminatory reduction in force and the

22 employee would not have been transferred to another posi23 tion); an employee informs the employing office of his or

24 her intent not to return from leave (including before start25 ing the leave if the employing office is so informed before
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1 the leave starts); or the employee fails to return from leave

2 or continues on leave after exhausting his or her FMLA

3 leave entitlement in the 12-month period.

4 (g) If a ‘‘key employee’’ (see § 825.218) does not re5 turn from leave when notified by the employing office that

6 substantial or grievous economic injury will result from

7 his or her reinstatement, the employee’s entitlement to

8 group health plan benefits continues unless and until the

9 employee advises the employing office that the employee

10 does not desire restoration to employment at the end of

11 the leave period, or FMLA leave entitlement is exhausted,

12 or reinstatement is actually denied.

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

14 group health benefits during a period of FMLA leave (e.g.,

15 holiday pay) is to be determined by the employing office’s

16 established policy for providing such benefits when the em17 ployee is on other forms of leave (paid or unpaid, as appro18 priate).

19 § 825.210 How may employees on FMLA leave pay

20 their share of group health benefit pre21 miums?

22 (a) Group health plan benefits must be maintained

23 on the same basis as coverage would have been provided

24 if the employee had been continuously employed during

25 the FMLA leave period. Therefore, any share of group
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1 health plan premiums which had been paid by the em2 ployee prior to FMLA leave must continue to be paid by

3 the employee during the FMLA leave period. If premiums

4 are raised or lowered, the employee would be required to

5 pay the new premium rates. Maintenance of health insur6 ance policies which are not a part of the employing office’s

7 group health plan, as described in § 825.209(a), are the

8 sole responsibility of the employee. The employee and the

9 insurer should make necessary arrangements for payment

10 of premiums during periods of unpaid FMLA leave.

11 (b) If the FMLA leave is substituted paid leave, the

12 employee’s share of premiums must be paid by the method

13 normally used during any paid leave, presumably as a pay14 roll deduction.

15 (c) If FMLA leave is unpaid, the employing office has

16 a number of options for obtaining payment from the em17 ployee. The employing office may require that payment be

18 made to the employing office or to the insurance carrier,

19 but no additional charge may be added to the employee’s

20 premium payment for administrative expenses. The em21 ploying office may require employees to pay their share

22 of premium payments in any of the following ways:

23 (1) Payment would be due at the same time as

24 it would be made if by payroll deduction;
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1 (2) Payment would be due on the same sched2 ule as payments are made under COBRA or 5

3 U.S.C. 8905a, whichever is applicable;

4 (3) Payment would be prepaid pursuant to a

5 cafeteria plan at the employee’s option;

6 (4) The employing office’s existing rules for

7 payment by employees on ‘‘leave without pay’’ would

8 be followed, provided that such rules do not require

9 prepayment (i.e., prior to the commencement of the

10 leave) of the premiums that will become due during

11 a period of unpaid FMLA leave or payment of high12 er premiums than if the employee had continued to

13 work instead of taking leave; or

14 (5) Another system voluntarily agreed to be15 tween the employing office and the employee, which

16 may include prepayment of premiums (e.g., through

17 increased payroll deductions when the need for the

18 FMLA leave is foreseeable).

19 (d) The employing office must provide the employee

20 with advance written notice of the terms and conditions

21 under which these payments must be made. (See

22 § 825.301.)

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

24 employee using FMLA leave than the employing office re25 quires of other employees on ‘‘leave without pay’’.
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1 (f) An employee who is receiving payments as a result

2 of a workers’ compensation injury must make arrange3 ments with the employing office for payment of group

4 health plan benefits when simultaneously taking unpaid

5 FMLA leave. See paragraph (c) of this section and

6 § 825.207(d)(2).

7 § 825.211 What special health benefits maintenance

8 rules apply to multi-employer health

9 plans?

10 (a) A multi-employer health plan is a plan to which

11 more than one employer is required to contribute, and

12 which is maintained pursuant to one or more collective

13 bargaining agreements between employee organization(s)

14 and the employers.

15 (b) An employing office under a multi-employer plan

16 must continue to make contributions on behalf of an em17 ployee using FMLA leave as though the employee had

18 been continuously employed, unless the plan contains an

19 explicit FMLA provision for maintaining coverage such as

20 through pooled contributions by all employers party to the

21 plan.

22 (c) During the duration of an employee’s FMLA

23 leave, coverage by the group health plan, and benefits pro24 vided pursuant to the plan, must be maintained at the
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1 level of coverage and benefits which were applicable to the

2 employee at the time FMLA leave commenced.

3 (d) An employee using FMLA leave cannot be re4 quired to use ‘‘banked’’ hours or pay a greater premium

5 than the employee would have been required to pay if the

6 employee had been continuously employed.

7 (e) As provided in § 825.209(f), group health plan

8 coverage must be maintained for an employee on FMLA

9 leave until:

10 (1) the employee’s FMLA leave entitlement is

11 exhausted;

12 (2) the employing office can show that the em13 ployee would have been laid off and the employment

14 relationship terminated; or

15 (3) the employee provides unequivocal notice of

16 intent not to return to work.

17 § 825.212 What are the consequences of an employee’s

18 failure to make timely health plan pre19 mium payments?

20 (a)(1) In the absence of an established employing of21 fice policy providing a longer grace period, an employing

22 office’s obligations to maintain health insurance coverage

23 cease under FMLA if an employee’s premium payment is

24 more than 30 days late. In order to drop the coverage for

25 an employee whose premium payment is late, the employ-
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1 ing office must provide written notice to the employee that

2 the payment has not been received. Such notice must be

3 mailed to the employee at least 15 days before coverage

4 is to cease, advising that coverage will be dropped on a

5 specified date at least 15 days after the date of the letter

6 unless the payment has been received by that date. If the

7 employing office has established policies regarding other

8 forms of unpaid leave that provide for the employing office

9 to cease coverage retroactively to the date the unpaid pre10 mium payment was due, the employing office may drop

11 the employee from coverage retroactively in accordance

12 with that policy, provided the 15-day notice was given. In

13 the absence of such a policy, coverage for the employee

14 may be terminated at the end of the 30-day grace period,

15 where the required 15-day notice has been provided.

16 (2) An employing office has no obligation regarding

17 the maintenance of a health insurance policy which is not

18 a ‘‘group health plan’’. See § 825.209(a).

19 (3) All other obligations of an employing office under

20 FMLA would continue; for example, the employing office

21 continues to have an obligation to reinstate an employee

22 upon return from leave.

23 (b) The employing office may recover the employee’s

24 share of any premium payments missed by the employee

25 for any FMLA leave period during which the employing
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1 office maintains health coverage by paying the employee’s

2 share after the premium payment is missed.

3 (c) If coverage lapses because an employee has not

4 made required premium payments, upon the employee’s

5 return from FMLA leave the employing office must still

6 restore the employee to coverage/benefits equivalent to

7 those the employee would have had if leave had not been

8 taken and the premium payment(s) had not been missed,

9 including family or dependent coverage. See § 825.215(d)

10 (1)–(5). In such case, an employee may not be required

11 to meet any qualification requirements imposed by the

12 plan, including any new preexisting condition waiting pe13 riod, to wait for an open season, or to pass a medical ex14 amination to obtain reinstatement of coverage.

15 § 825.213 May an employing office recover costs it in16 curred for maintaining ‘‘group health

17 plan’’ or other non-health benefits cov18 erage during FMLA leave?

19 (a) In addition to the circumstances discussed in

20 § 825.212(b), the share of health plan premiums paid by

21 or on behalf of the employing office during a period of

22 unpaid FMLA leave may be recovered from an employee

23 if the employee fails to return to work after the employee’s

24 FMLA leave entitlement has been exhausted or expires,

25 unless the reason the employee does not return is due to:
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1 (1) The continuation, recurrence, or onset of a

2 serious health condition of the employee or the em3 ployee’s family member which would otherwise enti4 tle the employee to leave under FMLA;

5 (2) Other circumstances beyond the employee’s

6 control. Examples of ‘‘other circumstances beyond

7 the employee’s control’’ are necessarily broad. They

8 include such situations as where a parent chooses to

9 stay home with a newborn child who has a serious

10 health condition; an employee’s spouse is unexpect11 edly transferred to a job location more than 75 miles

12 from the employee’s worksite; a relative or individual

13 other than an immediate family member has a seri14 ous health condition and the employee is needed to

15 provide care; the employee is laid off while on leave;

16 or, the employee is a ‘‘key employee’’ who decides

17 not to return to work upon being notified of the em18 ploying office’s intention to deny restoration because

19 of substantial and grievous economic injury to the

20 employing office’s operations and is not reinstated

21 by the employing office. Other circumstances beyond

22 the employee’s control would not include a situation

23 where an employee desires to remain with a parent

24 in a distant city even though the parent no longer

25 requires the employee’s care, or a parent chooses not
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1 to return to work to stay home with a well, newborn

2 child; or

3 (3) When an employee fails to return to work

4 because of the continuation, recurrence, or onset of

5 a serious health condition, thereby precluding the

6 employing office from recovering its (share of)

7 health benefit premium payments made on the em8 ployee’s behalf during a period of unpaid FMLA

9 leave, the employing office may require medical cer10 tification of the employee’s or the family member’s

11 serious health condition. Such certification is not re12 quired unless requested by the employing office. The

13 employee is required to provide medical certification

14 in a timely manner which, for purposes of this sec15 tion, is within 30 days from the date of the employ16 ing office’s request. For purposes of medical certifi17 cation, the employee may use the optional form de18 veloped for this purpose (see § 825.306(a) and Ap19 pendix B of this part). If the employing office re20 quests medical certification and the employee does

21 not provide such certification in a timely manner

22 (within 30 days), or the reason for not returning to

23 work does not meet the test of other circumstances

24 beyond the employee’s control, the employing office

25 may recover 100 percent of the health benefit pre-
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1 miums it paid during the period of unpaid FMLA

2 leave.

3 (b) Under some circumstances an employing office

4 may elect to maintain other benefits, e.g., life insurance,

5 disability insurance, etc., by paying the employee’s (share

6 of) premiums during periods of unpaid FMLA leave. For

7 example, to ensure the employing office can meet its re8 sponsibilities to provide equivalent benefits to the em9 ployee upon return from unpaid FMLA leave, it may be

10 necessary that premiums be paid continuously to avoid a

11 lapse of coverage. If the employing office elects to main12 tain such benefits during the leave, at the conclusion of

13 leave, the employing office is entitled to recover only the

14 costs incurred for paying the employee’s share of any pre15 miums whether or not the employee returns to work.

16 (c) An employee who returns to work for at least 30

17 calendar days is considered to have ‘‘returned’’ to work.

18 An employee who transfers directly from taking FMLA

19 leave to retirement, or who retires during the first 30 days

20 after the employee returns to work, is deemed to have re21 turned to work.

22 (d) When an employee elects or an employing office

23 requires paid leave to be substituted for FMLA leave, the

24 employing office may not recover its (share of) health in25 surance or other non-health benefit premiums for any pe-
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1 riod of FMLA leave covered by paid leave. Because paid

2 leave provided under a plan covering temporary disabilities

3 (including workers’ compensation) is not unpaid, recovery

4 of health insurance premiums does not apply to such paid

5 leave.

6 (e) The amount that self-insured employing offices

7 may recover is limited to only the employing office’s share

8 of allowable ‘‘premiums’’ as would be calculated under

9 COBRA, excluding the 2 percent fee for administrative

10 costs.

11 (f) When an employee fails to return to work, any

12 health and non-health benefit premiums which this section

13 of the regulations permits an employing office to recover

14 are a debt owed by the non-returning employee to the em15 ploying office. The existence of this debt caused by the

16 employee’s failure to return to work does not alter the em17 ploying office’s responsibilities for health benefit coverage

18 and, under a self-insurance plan, payment of claims in19 curred during the period of FMLA leave. To the extent

20 recovery is allowed, the employing office may recover the

21 costs through deduction from any sums due to the em22 ployee (e.g., unpaid wages, vacation pay, etc.), provided

23 such deductions do not otherwise violate applicable wage

24 payment or other laws. Alternatively, the employing office
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1 may initiate legal action against the employee to recover

2 such costs.

3 § 825.214 What are an employee’s rights on returning

4 to work from FMLA leave?

5 (a) On return from FMLA leave, an employee is enti6 tled to be returned to the same position the employee held

7 when leave commenced, or to an equivalent position with

8 equivalent benefits, pay, and other terms and conditions

9 of employment. An employee is entitled to such reinstate10 ment even if the employee has been replaced or his or her

11 position has been restructured to accommodate the em12 ployee’s absence. See also § 825.106(e) for the obligations

13 of employing offices that are joint employing offices.

14 (b) If the employee is unable to perform an essential

15 function of the position because of a physical or mental

16 condition, including the continuation of a serious health

17 condition, the employee has no right to restoration to an18 other position under the FMLA. However, the employing

19 office’s obligations may be governed by the Americans

20 with Disabilities Act (ADA), as made applicable by the

21 CAA. See § 825.702.

22 § 825.215 What is an equivalent position?

23 (a) An equivalent position is one that is virtually

24 identical to the employee’s former position in terms of pay,

25 benefits and working conditions, including privileges, per-
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1 quisites and status. It must involve the same or substan2 tially similar duties and responsibilities, which must entail

3 substantially equivalent skill, effort, responsibility, and au4 thority.

5 (b) If an employee is no longer qualified for the posi6 tion because of the employee’s inability to attend a nec7 essary course, renew a license, fly a minimum number of

8 hours, etc., as a result of the leave, the employee shall

9 be given a reasonable opportunity to fulfill those condi10 tions upon return to work.

11 (c) Equivalent Pay:

12 (1) An employee is entitled to any unconditional

13 pay increases which may have occurred during the

14 FMLA leave period, such as cost of living increases.

15 Pay increases conditioned upon seniority, length of

16 service, or work performed would not have to be

17 granted unless it is the employing office’s policy or

18 practice to do so with respect to other employees on

19 ‘‘leave without pay’’. In such case, any pay increase

20 would be granted based on the employee’s seniority,

21 length of service, work performed, etc., excluding the

22 period of unpaid FMLA leave. An employee is enti23 tled to be restored to a position with the same or

24 equivalent pay premiums, such as a shift differen25 tial. If an employee departed from a position averag-
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1 ing ten hours of overtime (and corresponding over2 time pay) each week, an employee is ordinarily enti3 tled to such a position on return from FMLA leave.

4 (2) Many employing offices pay bonuses in dif5 ferent forms to employees for job-related perform6 ance such as for perfect attendance, safety (absence

7 of injuries or accidents on the job) and exceeding

8 production goals. Bonuses for perfect attendance

9 and safety do not require performance by the em10 ployee but rather contemplate the absence of occur11 rences. To the extent an employee who takes FMLA

12 leave had met all the requirements for either or both

13 of these bonuses before FMLA leave began, the em14 ployee is entitled to continue this entitlement upon

15 return from FMLA leave, that is, the employee may

16 not be disqualified for the bonus(es) for the taking

17 of FMLA leave. See § 825.220 (b) and (c). A month18 ly production bonus, on the other hand, does require

19 performance by the employee. If the employee is on

20 FMLA leave during any part of the period for which

21 the bonus is computed, the employee is entitled to

22 the same consideration for the bonus as other em23 ployees on paid or unpaid leave (as appropriate). See

24 paragraph (d)(2) of this section.
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1 (d) Equivalent Benefits. ‘‘Benefits’’ include all bene2 fits provided or made available to employees by an employ3 ing office, including group life insurance, health insurance,

4 disability insurance, sick leave, annual leave, educational

5 benefits, and pensions, regardless of whether such benefits

6 are provided by a practice or written policy of an employ7 ing office through an employee benefit plan.

8 (1) At the end of an employee’s FMLA leave,

9 benefits must be resumed in the same manner and

10 at the same levels as provided when the leave began,

11 and subject to any changes in benefit levels that may

12 have taken place during the period of FMLA leave

13 affecting the entire workforce, unless otherwise elect14 ed by the employee. Upon return from FMLA leave,

15 an employee cannot be required to requalify for any

16 benefits the employee enjoyed before FMLA leave

17 began (including family or dependent coverages).

18 For example, if an employee was covered by a life

19 insurance policy before taking leave but is not cov20 ered or coverage lapses during the period of unpaid

21 FMLA leave, the employee cannot be required to

22 meet any qualifications, such as taking a physical

23 examination, in order to requalify for life insurance

24 upon return from leave. Accordingly, some employ25 ing offices may find it necessary to modify life insur-
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1 ance and other benefits programs in order to restore

2 employees to equivalent benefits upon return from

3 FMLA leave, make arrangements for continued pay4 ment of costs to maintain such benefits during un5 paid FMLA leave, or pay these costs subject to re6 covery from the employee on return from leave. See

7 § 825.213(b).

8 (2) An employee may, but is not entitled to, ac9 crue any additional benefits or seniority during un10 paid FMLA leave. Benefits accrued at the time leave

11 began, however, (e.g., paid vacation, sick or personal

12 leave to the extent not substituted for FMLA leave)

13 must be available to an employee upon return from

14 leave.

15 (3) If, while on unpaid FMLA leave, an em16 ployee desires to continue life insurance, disability

17 insurance, or other types of benefits for which he or

18 she typically pays, the employing office is required

19 to follow established policies or practices for continu20 ing such benefits for other instances of leave without

21 pay. If the employing office has no established pol22 icy, the employee and the employing office are en23 couraged to agree upon arrangements before FMLA

24 leave begins.
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1 (4) With respect to pension and other retire2 ment plans, any period of unpaid FMLA leave shall

3 not be treated as or counted toward a break in serv4 ice for purposes of vesting and eligibility to partici5 pate. Also, if the plan requires an employee to be

6 employed on a specific date in order to be credited

7 with a year of service for vesting, contributions or

8 participation purposes, an employee on unpaid

9 FMLA leave on that date shall be deemed to have

10 been employed on that date. However, unpaid

11 FMLA leave periods need not be treated as credited

12 service for purposes of benefit accrual, vesting and

13 eligibility to participate.

14 (5) Employees on unpaid FMLA leave are to be

15 treated as if they continued to work for purposes of

16 changes to benefit plans. They are entitled to

17 changes in benefits plans, except those which may be

18 dependent upon seniority or accrual during the leave

19 period, immediately upon return from leave or to the

20 same extent they would have qualified if no leave

21 had been taken. For example if the benefit plan is

22 predicated on a pre-established number of hours

23 worked each year and the employee does not have

24 sufficient hours as a result of taking unpaid FMLA
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1 leave, the benefit is lost. (In this regard, § 825.209

2 addresses health benefits.)

3 (e) Equivalent Terms and Conditions of Employment.

4 An equivalent position must have substantially similar du5 ties, conditions, responsibilities, privileges and status as

6 the employee’s original position.

7 (1) The employee must be reinstated to the

8 same or a geographically proximate worksite (i.e.,

9 one that does not involve a significant increase in

10 commuting time or distance) from where the em11 ployee had previously been employed. If the employ12 ee’s original worksite has been closed, the employee

13 is entitled to the same rights as if the employee had

14 not been on leave when the worksite closed. For ex15 ample, if an employing office transfers all employees

16 from a closed worksite to a new worksite in a dif17 ferent city, the employee on leave is also entitled to

18 transfer under the same conditions as if he or she

19 had continued to be employed.

20 (2) The employee is ordinarily entitled to return

21 to the same shift or the same or an equivalent work

22 schedule.

23 (3) The employee must have the same or an

24 equivalent opportunity for bonuses and other similar

25 discretionary and non-discretionary payments.
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1 (4) FMLA does not prohibit an employing of2 fice from accommodating an employee’s request to

3 be restored to a different shift, schedule, or position

4 which better suits the employee’s personal needs on

5 return from leave, or to offer a promotion to a bet6 ter position. However, an employee cannot be in7 duced by the employing office to accept a different

8 position against the employee’s wishes.

9 (f) The requirement that an employee be restored to

10 the same or equivalent job with the same or equivalent

11 pay, benefits, and terms and conditions of employment

12 does not extend to de minimis or intangible, unmeasurable

13 aspects of the job. However, restoration to a job slated

14 for lay-off, when the employee’s original position is not,

15 would not meet the requirements of an equivalent position.

16 § 825.216 Are there any limitations on an employing

17 office’s obligation to reinstate an em18 ployee?

19 (a) An employee has no greater right to reinstate20 ment or to other benefits and conditions of employment

21 than if the employee had been continuously employed dur22 ing the FMLA leave period. An employing office must be

23 able to show that an employee would not otherwise have

24 been employed at the time reinstatement is requested in

25 order to deny restoration to employment. For example:
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1 (1) If an employee is laid off during the course

2 of taking FMLA leave and employment is termi3 nated, the employing office’s responsibility to con4 tinue FMLA leave, maintain group health plan bene5 fits and restore the employee ceases at the time the

6 employee is laid off, provided the employing office

7 has no continuing obligations under a collective bar8 gaining agreement or otherwise. An employing office

9 would have the burden of proving that an employee

10 would have been laid off during the FMLA leave pe11 riod and, therefore, would not be entitled to restora12 tion.

13 (2) If a shift has been eliminated, or overtime

14 has been decreased, an employee would not be enti15 tled to return to work that shift or the original over16 time hours upon restoration. However, if a position

17 on, for example, a night shift has been filled by an18 other employee, the employee is entitled to return to

19 the same shift on which employed before taking

20 FMLA leave.

21 (b) If an employee was hired for a specific term or

22 only to perform work on a discrete project, the employing

23 office has no obligation to restore the employee if the em24 ployment term or project is over and the employing office
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1 would not otherwise have continued to employ the em2 ployee.

3 (c) In addition to the circumstances explained above,

4 an employing office may deny job restoration to salaried

5 eligible employees (‘‘key employees’’, as defined in para6 graph (c) of § 825.217) if such denial is necessary to pre7 vent substantial and grievous economic injury to the oper8 ations of the employing office; or may delay restoration

9 to an employee who fails to provide a fitness for duty cer10 tificate to return to work under the conditions described

11 in § 825.310.

12 (d) If the employee has been on a workers’ compensa13 tion absence during which FMLA leave has been taken

14 concurrently, and after 12 weeks of FMLA leave the em15 ployee is unable to return to work, the employee no longer

16 has the protections of FMLA and must look to the work17 ers’ compensation statute or ADA, as made applicable by

18 the CAA, for any relief or protections.

19 § 825.217 What is a ‘‘key employee’’?

20 (a) A ‘‘key employee’’ is a salaried FMLA-eligible em21 ployee who is among the highest paid 10 percent of all

22 the employees employed by the employing office within 75

23 miles of the employee’s worksite.

24 (b) The term ‘‘salaried’’ means paid on a salary basis,

25 within the meaning of the Board’s regulations at part 541,
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1 implementing section 203 of the CAA (2 U.S.C. 1313) (re2 garding employees who may qualify as exempt from the

3 minimum wage and overtime requirements of the FLSA,

4 as made applicable by the CAA, as executive, administra5 tive, and professional employees).

6 (c) A ‘‘key employee’’ must be ‘‘among the highest

7 paid 10 percent’’ of all the employees ‘‘both salaried and

8 non-salaried, eligible and ineligible ‘‘who are employed by

9 the employing office within 75 miles of the worksite’’:

10 (1) In determining which employees are among

11 the highest paid 10 percent, year-to-date earnings

12 are divided by weeks worked by the employee (in13 cluding weeks in which paid leave was taken). Earn14 ings include wages, premium pay, incentive pay, and

15 non-discretionary and discretionary bonuses. Earn16 ings do not include incentives whose value is deter17 mined at some future date, e.g., benefits or per18 quisites.

19 (2) The determination of whether a salaried

20 employee is among the highest paid 10 percent shall

21 be made at the time the employee gives notice of the

22 need for leave. No more than 10 percent of the em23 ploying office’s employees within 75 miles of the

24 worksite may be ‘‘key employees’’.
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1 § 825.218 What does ‘‘substantial and grievous eco2 nomic injury’’ mean?

3 (a) In order to deny restoration to a key employee,

4 an employing office must determine that the restoration

5 of the employee to employment will cause ‘‘substantial and

6 grievous economic injury’’ to the operations of the employ7 ing office, not whether the absence of the employee will

8 cause such substantial and grievous injury.

9 (b) An employing office may take into account its

10 ability to replace on a temporary basis (or temporarily do

11 without) the employee on FMLA leave. If permanent re12 placement is unavoidable, the cost of then reinstating the

13 employee can be considered in evaluating whether substan14 tial and grievous economic injury will occur from restora15 tion; in other words, the effect on the operations of the

16 employing office of reinstating the employee in an equiva17 lent position.

18 (c) A precise test cannot be set for the level of hard19 ship or injury to the employing office which must be sus20 tained. If the reinstatement of a ‘‘key employee’’ threatens

21 the economic viability of the employing office, that would

22 constitute ‘‘substantial and grievous economic injury’’. A

23 lesser injury which causes substantial, long-term economic

24 injury would also be sufficient. Minor inconveniences and

25 costs that the employing office would experience in the
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1 normal course would certainly not constitute ‘‘substantial

2 and grievous economic injury’’.

3 (d) FMLA’s ‘‘substantial and grievous economic in4 jury’’ standard is different from and more stringent than

5 the ‘‘undue hardship’’ test under the ADA (see, also

6 § 825.702).

7 § 825.219 What are the rights of a key employee?

8 (a) An employing office which believes that reinstate9 ment may be denied to a key employee, must give written

10 notice to the employee at the time the employee gives no11 tice of the need for FMLA leave (or when FMLA leave

12 commences, if earlier) that he or she qualifies as a key

13 employee. At the same time, the employing office must

14 also fully inform the employee of the potential con15 sequences with respect to reinstatement and maintenance

16 of health benefits if the employing office should determine

17 that substantial and grievous economic injury to the em18 ploying office’s operations will result if the employee is re19 instated from FMLA leave. If such notice cannot be given

20 immediately because of the need to determine whether the

21 employee is a key employee, it shall be given as soon as

22 practicable after being notified of a need for leave (or the

23 commencement of leave, if earlier). It is expected that in

24 most circumstances there will be no desire that an em25 ployee be denied restoration after FMLA leave and, there-
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1 fore, there would be no need to provide such notice. How2 ever, an employing office who fails to provide such timely

3 notice will lose its right to deny restoration even if sub4 stantial and grievous economic injury will result from rein5 statement.

6 (b) As soon as an employing office makes a good faith

7 determination, based on the facts available, that substan8 tial and grievous economic injury to its operations will re9 sult if a key employee who has given notice of the need

10 for FMLA leave or is using FMLA leave is reinstated, the

11 employing office shall notify the employee in writing of

12 its determination, that it cannot deny FMLA leave, and

13 that it intends to deny restoration to employment on com14 pletion of the FMLA leave. It is anticipated that an em15 ploying office will ordinarily be able to give such notice

16 prior to the employee starting leave. The employing office

17 must serve this notice either in person or by certified mail.

18 This notice must explain the basis for the employing of19 fice’s finding that substantial and grievous economic in20 jury will result, and, if leave has commenced, must provide

21 the employee a reasonable time in which to return to work,

22 taking into account the circumstances, such as the length

23 of the leave and the urgency of the need for the employee

24 to return.
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1 (c) If an employee on leave does not return to work

2 in response to the employing office’s notification of intent

3 to deny restoration, the employee continues to be entitled

4 to maintenance of health benefits and the employing office

5 may not recover its cost of health benefit premiums. A

6 key employee’s rights under FMLA continue unless and

7 until either the employee gives notice that he or she no

8 longer wishes to return to work, or the employing office

9 actually denies reinstatement at the conclusion of the leave

10 period.

11 (d) After notice to an employee has been given that

12 substantial and grievous economic injury will result if the

13 employee is reinstated to employment, an employee is still

14 entitled to request reinstatement at the end of the leave

15 period even if the employee did not return to work in re16 sponse to the employing office’s notice. The employing of17 fice must then again determine whether there will be sub18 stantial and grievous economic injury from reinstatement,

19 based on the facts at that time. If it is determined that

20 substantial and grievous economic injury will result, the

21 employing office shall notify the employee in writing (in

22 person or by certified mail) of the denial of restoration.
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1 § 825.220 How are employees protected who request

2 leave or otherwise assert FMLA rights?

3 (a) The FMLA, as made applicable by the CAA, pro4 hibits interference with an employee’s rights under the

5 law, and with legal proceedings or inquiries relating to an

6 employee’s rights. More specifically, the law contains the

7 following employee protections:

8 (1) An employing office is prohibited from

9 interfering with, restraining, or denying the exercise

10 of (or attempts to exercise) any rights provided by

11 the FMLA as made applicable by the CAA.

12 (2) An employing office is prohibited from dis13 charging or in any other way discriminating against

14 any covered employee (whether or not an eligible em15 ployee) for opposing or complaining about any un16 lawful practice under the FMLA as made applicable

17 by the CAA.

18 (3) All employing offices are prohibited from

19 discharging or in any other way discriminating

20 against any covered employee (whether or not an eli21 gible employee) because that covered employee has—

22 (i) Filed any charge, or has instituted (or

23 caused to be instituted) any proceeding under

24 or related to the FMLA, as made applicable by

25 the CAA;
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1 (ii) Given, or is about to give, any informa2 tion in connection with an inquiry or proceeding

3 relating to a right under the FMLA, as made

4 applicable by the CAA;

5 (iii) Testified, or is about to testify, in any

6 inquiry or proceeding relating to a right under

7 the FMLA, as made applicable by the CAA.

8 (b) Any violations of the FMLA, as made applicable

9 by the CAA, or of these regulations constitute interfering

10 with, restraining, or denying the exercise of rights pro11 vided by the FMLA as made applicable by the CAA.

12 ‘‘Interfering with’’ the exercise of an employee’s rights

13 would include, for example, not only refusing to authorize

14 FMLA leave, but discouraging an employee from using

15 such leave. It would also include manipulation by an em16 ploying office to avoid responsibilities under FMLA, for

17 example—

18 (1) [Reserved];

19 (2) changing the essential functions of the job

20 in order to preclude the taking of leave;

21 (3) reducing hours available to work in order to

22 avoid employee eligibility.

23 (c) An employing office is prohibited from discrimi24 nating against employees or prospective employees who

25 have used FMLA leave. For example, if an employee on
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1 leave without pay would otherwise be entitled to full bene2 fits (other than health benefits), the same benefits would

3 be required to be provided to an employee on unpaid

4 FMLA leave. By the same token, employing offices cannot

5 use the taking of FMLA leave as a negative factor in em6 ployment actions, such as hiring, promotions or discipli7 nary actions; nor can FMLA leave be counted under ‘‘no

8 fault’’ attendance policies.

9 (d) Employees cannot waive, nor may employing of10 fices induce employees to waive, their rights under FMLA.

11 For example, employees (or their collective bargaining rep12 resentatives) cannot ‘‘trade off’’ the right to take FMLA

13 leave against some other benefit offered by the employing

14 office. This does not prevent an employee’s voluntary and

15 uncoerced acceptance (not as a condition of employment)

16 of a ‘‘light duty’’ assignment while recovering from a seri17 ous health condition (see § 825.702(d)). In such a cir18 cumstance the employee’s right to restoration to the same

19 or an equivalent position is available until 12 weeks have

20 passed within the 12-month period, including all FMLA

21 leave taken and the period of ‘‘light duty’’.

22 (e) Covered employees, and not merely eligible em23 ployees, are protected from retaliation for opposing (e.g.,

24 file a complaint about) any practice which is unlawful

25 under the FMLA, as made applicable by the CAA. They
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1 are similarly protected if they oppose any practice which

2 they reasonably believe to be a violation of the FMLA,

3 as made applicable by the CAA or regulations.

4 SUBPART C—HOW DO EMPLOYEES LEARN OF THEIR

5 RIGHTS AND OBLIGATIONS UNDER THE FMLA, AS

6 MADE APPLICABLE BY THE CAA, AND WHAT CAN

7 AN EMPLOYING OFFICE REQUIRE OF AN EM8 PLOYEE?

9 § 825.300 [Reserved]

10 § 825.301 What notices to employees are required of

11 employing offices under the FMLA as

12 made applicable by the CAA?

13 (a)(1) If an employing office has any eligible employ14 ees and has any written guidance to employees concerning

15 employee benefits or leave rights, such as in an employee

16 handbook, information concerning both entitlements and

17 employee obligations under the FMLA, as made applicable

18 by the CAA, must be included in the handbook or other

19 document. For example, if an employing office provides

20 an employee handbook to all employees that describes the

21 employing office’s policies regarding leave, wages, attend22 ance, and similar matters, the handbook must incorporate

23 information on FMLA rights and responsibilities and the

24 employing office’s policies regarding the FMLA, as made

25 applicable by the CAA. Informational publications describ-
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1 ing the provisions of the FMLA as made applicable by

2 the CAA are available from the Office of Compliance and

3 may be incorporated in such employing office handbooks

4 or written policies.

5 (2) If such an employing office does not have written

6 policies, manuals, or handbooks describing employee bene7 fits and leave provisions, the employing office shall provide

8 written guidance to an employee concerning all the em9 ployee’s rights and obligations under the FMLA as made

10 applicable by the CAA. This notice shall be provided to

11 employees each time notice is given pursuant to paragraph

12 (b), and in accordance with the provisions of that para13 graph. Employing offices may duplicate and provide the

14 employee a copy of the FMLA Fact Sheet available from

15 the Office of Compliance to provide such guidance.

16 (b)(1) The employing office shall also provide the em17 ployee with written notice detailing the specific expecta18 tions and obligations of the employee and explaining any

19 consequences of a failure to meet these obligations. The

20 written notice must be provided to the employee in a lan21 guage in which the employee is literate. Such specific no22 tice must include, as appropriate—

23 (i) that the leave will be counted against the

24 employee’s annual FMLA leave entitlement (see

25 § 825.208);
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1 (ii) any requirements for the employee to fur2 nish medical certification of a serious health condi3 tion and the consequences of failing to do so (see

4 § 825.305);

5 (iii) the employee’s right to substitute paid

6 leave and whether the employing office will require

7 the substitution of paid leave, and the conditions re8 lated to any substitution;

9 (iv) any requirement for the employee to make

10 any premium payments to maintain health benefits

11 and the arrangements for making such payments

12 (see § 825.210), and the possible consequences of

13 failure to make such payments on a timely basis

14 (i.e., the circumstances under which coverage may

15 lapse);

16 (v) any requirement for the employee to present

17 a fitness-for-duty certificate to be restored to em18 ployment (see § 825.310);

19 (vi) the employee’s status as a ‘‘key employee’’

20 and the potential consequence that restoration may

21 be denied following FMLA leave, explaining the con22 ditions required for such denial (see § 825.218);

23 (vii) the employee’s right to restoration to the

24 same or an equivalent job upon return from leave

25 (see §§ 825.214 and 825.604); and
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1 (viii) the employee’s potential liability for pay2 ment of health insurance premiums paid by the em3 ploying office during the employee’s unpaid FMLA

4 leave if the employee fails to return to work after

5 taking FMLA leave (see § 825.213).

6 (2) The specific notice may include other informa7 tion—e.g., whether the employing office will require peri8 odic reports of the employee’s status and intent to return

9 to work, but is not required to do so. A prototype notice

10 is contained in Appendix D of this part, or may be ob11 tained from the Office of Compliance, which employing of12 fices may adapt for their use to meet these specific notice

13 requirements.

14 (c) Except as provided in this subparagraph, the writ15 ten notice required by paragraph (b) (and by subpara16 graph (a)(2) where applicable) must be provided to the

17 employee no less often than the first time in each six18 month period that an employee gives notice of the need

19 for FMLA leave (if FMLA leave is taken during the six20 month period). The notice shall be given within a reason21 able time after notice of the need for leave is given by

22 the employee—within one or two business days if feasible.

23 If leave has already begun, the notice should be mailed

24 to the employee’s address of record.
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1 (1) If the specific information provided by the

2 notice changes with respect to a subsequent period

3 of FMLA leave during the six-month period, the em4 ploying office shall, within one or two business days

5 of receipt of the employee’s notice of need for leave,

6 provide written notice referencing the prior notice

7 and setting forth any of the information in subpara8 graph (b) which has changed. For example, if the

9 initial leave period were paid leave and the subse10 quent leave period would be unpaid leave, the em11 ploying office may need to give notice of the ar12 rangements for making premium payments.

13 (2)(i) Except as provided in subparagraph (ii),

14 if the employing office is requiring medical certifi15 cation or a ‘‘fitness-for-duty’’ report, written notice

16 of the requirement shall be given with respect to

17 each employee notice of a need for leave.

18 (ii) Subsequent written notification shall not be

19 required if the initial notice in the six-month period

20 and the employing office handbook or other written

21 documents (if any) describing the employing office’s

22 leave policies, clearly provided that certification or a

23 ‘‘fitness-for-duty’’ report would be required (e.g., by

24 stating that certification would be required in all

25 cases, by stating that certification would be required
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1 in all cases in which leave of more than a specified

2 number of days is taken, or by stating that a ‘‘fit3 ness-for-duty’’ report would be required in all cases

4 for back injuries for employees in a certain occupa5 tion). Where subsequent written notice is not re6 quired, at least oral notice shall be provided. (See

7 § 825.305(a).)

8 (d) Employing offices are also expected to respon9 sively answer questions from employees concerning their

10 rights and responsibilities under the FMLA as made appli11 cable under the CAA.

12 (e) Employing offices furnishing FMLA-required no13 tices to sensory impaired individuals must also comply

14 with all applicable requirements under law.

15 (f) If an employing office fails to provide notice in

16 accordance with the provisions of this section, the employ17 ing office may not take action against an employee for

18 failure to comply with any provision required to be set

19 forth in the notice.

20 § 825.302 What notice does an employee have to give

21 an employing office when the need for

22 FMLA leave is foreseeable?

23 (a) An employee must provide the employing office

24 at least 30 days advance notice before FMLA leave is to

25 begin if the need for the leave is foreseeable based on an
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1 expected birth, placement for adoption or foster care, or

2 planned medical treatment for a serious health condition

3 of the employee or of a family member. If 30 days notice

4 is not practicable, such as because of a lack of knowledge

5 of approximately when leave will be required to begin, a

6 change in circumstances, or a medical emergency, notice

7 must be given as soon as practicable. For example, an em8 ployee’s health condition may require leave to commence

9 earlier than anticipated before the birth of a child. Simi10 larly, little opportunity for notice may be given before

11 placement for adoption. Whether the leave is to be contin12 uous or is to be taken intermittently or on a reduced

13 schedule basis, notice need only be given one time, but

14 the employee shall advise the employing office as soon as

15 practicable if dates of scheduled leave change or are ex16 tended, or were initially unknown.

17 (b) ‘‘As soon as practicable’’ means as soon as both

18 possible and practical, taking into account all of the facts

19 and circumstances in the individual case. For foreseeable

20 leave where it is not possible to give as much as 30 days

21 notice, ‘‘as soon as practicable’’ ordinarily would mean at

22 least verbal notification to the employing office within one

23 or two business days of when the need for leave becomes

24 known to the employee.
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1 (c) An employee shall provide at least verbal notice

2 sufficient to make the employing office aware that the em3 ployee needs FMLA-qualifying leave, and the anticipated

4 timing and duration of the leave. The employee need not

5 expressly assert rights under the FMLA as made applica6 ble by the CAA, or even mention the FMLA, but may only

7 state that leave is needed for an expected birth or adop8 tion, for example. The employing office should inquire fur9 ther of the employee if it is necessary to have more infor10 mation about whether FMLA leave is being sought by the

11 employee, and obtain the necessary details of the leave to

12 be taken. In the case of medical conditions, the employing

13 office may find it necessary to inquire further to determine

14 if the leave is because of a serious health condition and

15 may request medical certification to support the need for

16 such leave (see § 825.305).

17 (d) An employing office may also require an employee

18 to comply with the employing office’s usual and customary

19 notice and procedural requirements for requesting leave.

20 For example, an employing office may require that written

21 notice set forth the reasons for the requested leave, the

22 anticipated duration of the leave, and the anticipated start

23 of the leave. However, failure to follow such internal em24 ploying office procedures will not permit an employing of-
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1 fice to disallow or delay an employee’s taking FMLA leave

2 if the employee gives timely verbal or other notice.

3 (e) When planning medical treatment, the employee

4 must consult with the employing office and make a reason5 able effort to schedule the leave so as not to disrupt un6 duly the employing office’s operations, subject to the ap7 proval of the health care provider. Employees are ordi8 narily expected to consult with their employing offices

9 prior to the scheduling of treatment in order to work out

10 a treatment schedule which best suits the needs of both

11 the employing office and the employee. If an employee who

12 provides notice of the need to take FMLA leave on an

13 intermittent basis for planned medical treatment neglects

14 to consult with the employing office to make a reasonable

15 attempt to arrange the schedule of treatments so as not

16 to unduly disrupt the employing office’s operations, the

17 employing office may initiate discussions with the em18 ployee and require the employee to attempt to make such

19 arrangements, subject to the approval of the health care

20 provider.

21 (f) In the case of intermittent leave or leave on a re22 duced leave schedule which is medically necessary, an em23 ployee shall advise the employing office, upon request, of

24 the reasons why the intermittent/reduced leave schedule

25 is necessary and of the schedule for treatment, if applica-
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1 ble. The employee and employing office shall attempt to

2 work out a schedule which meets the employee’s needs

3 without unduly disrupting the employing office’s oper4 ations, subject to the approval of the health care provider.

5 (g) An employing office may waive employees’ FMLA

6 notice requirements. In addition, an employing office may

7 not require compliance with stricter FMLA notice require8 ments where the provisions of a collective bargaining

9 agreement or applicable leave plan allow less advance no10 tice to the employing office. For example, if an employee

11 (or employing office) elects to substitute paid vacation

12 leave for unpaid FMLA leave (see § 825.207), and the em13 ploying office’s paid vacation leave plan imposes no prior

14 notification requirements for taking such vacation leave,

15 no advance notice may be required for the FMLA leave

16 taken in these circumstances. On the other hand, FMLA

17 notice requirements would apply to a period of unpaid

18 FMLA leave, unless the employing office imposes lesser

19 notice requirements on employees taking leave without

20 pay.
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1 § 825.303 What are the requirements for an em2 ployee to furnish notice to an employing

3 office where the need for FMLA leave is

4 not foreseeable?

5 (a) When the approximate timing of the need for

6 leave is not foreseeable, an employee should give notice

7 to the employing office of the need for FMLA leave as

8 soon as practicable under the facts and circumstances of

9 the particular case. It is expected that an employee will

10 give notice to the employing office within no more than

11 one or two working days of learning of the need for leave,

12 except in extraordinary circumstances where such notice

13 is not feasible. In the case of a medical emergency requir14 ing leave because of an employee’s own serious health con15 dition or to care for a family member with a serious health

16 condition, written advance notice pursuant to an employ17 ing office’s internal rules and procedures may not be re18 quired when FMLA leave is involved.

19 (b) The employee should provide notice to the em20 ploying office either in person or by telephone, telegraph,

21 facsimile (‘‘fax’’) machine or other electronic means. No22 tice may be given by the employee’s spokesperson (e.g.,

23 spouse, adult family member or other responsible party)

24 if the employee is unable to do so personally. The employee

25 need not expressly assert rights under the FMLA, as made

26 applicable by the CAA, or even mention the FMLA, but
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1 may only state that leave is needed. The employing office

2 will be expected to obtain any additional required informa3 tion through informal means. The employee or spokes4 person will be expected to provide more information when

5 it can readily be accomplished as a practical matter, tak6 ing into consideration the exigencies of the situation.

7 § 825.304 What recourse do employing offices have if

8 employees fail to provide the required

9 notice?

10 (a) An employing office may waive employees’ FMLA

11 notice obligations or the employing office’s own internal

12 rules on leave notice requirements.

13 (b) If an employee fails to give 30 days notice for

14 foreseeable leave with no reasonable excuse for the delay,

15 the employing office may delay the taking of FMLA leave

16 until at least 30 days after the date the employee provides

17 notice to the employing office of the need for FMLA leave.

18 (c) In all cases, in order for the onset of an employ19 ee’s FMLA leave to be delayed due to lack of required

20 notice, it must be clear that the employee had actual no21 tice of the FMLA notice requirements. This condition

22 would be satisfied by the employing office’s proper post23 ing, at the worksite where the employee is employed, of

24 the information regarding the FMLA provided (pursuant

25 to section 301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2))
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1 by the Office of Compliance to the employing office in a

2 manner suitable for posting. Furthermore, the need for

3 leave and the approximate date leave would be taken must

4 have been clearly foreseeable to the employee 30 days in

5 advance of the leave. For example, knowledge that an em6 ployee would receive a telephone call about the availability

7 of a child for adoption at some unknown point in the fu8 ture would not be sufficient.

9 § 825.305 When must an employee provide medical

10 certification to support FMLA leave?

11 (a) An employing office may require that an employ12 ee’s leave to care for the employee’s seriously ill spouse,

13 son, daughter, or parent, or due to the employee’s own

14 serious health condition that makes the employee unable

15 to perform one or more of the essential functions of the

16 employee’s position, be supported by a certification issued

17 by the health care provider of the employee or the employ18 ee’s ill family member. An employing office must give no19 tice of a requirement for medical certification each time

20 a certification is required; such notice must be written no21 tice whenever required by § 825.301. An employing office’s

22 oral request to an employee to furnish any subsequent

23 medical certification is sufficient.

24 (b) When the leave is foreseeable and at least 30 days

25 notice has been provided, the employee should provide the
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1 medical certification before the leave begins. When this is

2 not possible, the employee must provide the requested cer3 tification to the employing office within the time frame

4 requested by the employing office (which must allow at

5 least 15 calendar days after the employing office’s re6 quest), unless it is not practicable under the particular cir7 cumstances to do so despite the employee’s diligent, good

8 faith efforts.

9 (c) In most cases, the employing office should request

10 that an employee furnish certification from a health care

11 provider at the time the employee gives notice of the need

12 for leave or within two business days thereafter, or, in the

13 case of unforeseen leave, within two business days after

14 the leave commences. The employing office may request

15 certification at some later date if the employing office later

16 has reason to question the appropriateness of the leave

17 or its duration.

18 (d) At the time the employing office requests certifi19 cation, the employing office must also advise an employee

20 of the anticipated consequences of an employee’s failure

21 to provide adequate certification. The employing office

22 shall advise an employee whenever the employing office

23 finds a certification incomplete, and provide the employee

24 a reasonable opportunity to cure any such deficiency.
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1 (e) If the employing office’s sick or medical leave plan

2 imposes medical certification requirements that are less

3 stringent than the certification requirements of these reg4 ulations, and the employee or employing office elects to

5 substitute paid sick, vacation, personal or family leave for

6 unpaid FMLA leave where authorized (see § 825.207),

7 only the employing office’s less stringent sick leave certifi8 cation requirements may be imposed.

9 § 825.306 How much information may be required in

10 medical certifications of a serious health

11 condition?

12 (a) The Office of Compliance has made available an

13 optional form (‘‘Certification of Physician or Practi14 tioner’’) for employees’ (or their family members’) use in

15 obtaining medical certification, including second and third

16 opinions, from health care providers that meets FMLA’s

17 certification requirements. (See Appendix B to these regu18 lations.) This optional form reflects certification require19 ments so as to permit the health care provider to furnish

20 appropriate medical information within his or her knowl21 edge.

22 (b) The Certification of Physician or Practitioner

23 form is modeled closely on Form WH–380, as revised,

24 which was developed by the Department of Labor (see 29

25 C.F.R. Part 825, Appendix B). The employing office may
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1 use the Office of Compliance’s form, or Form WH–380,

2 as revised, or another form containing the same basic in3 formation; however, no additional information may be re4 quired. In all instances the information on the form must

5 relate only to the serious health condition for which the

6 current need for leave exists. The form identifies the

7 health care provider and type of medical practice (includ8 ing pertinent specialization, if any), makes maximum use

9 of checklist entries for ease in completing the form, and

10 contains required entries for:

11 (1) A certification as to which part of the defi12 nition of ‘‘serious health condition’’ (see § 825.114),

13 if any, applies to the patient’s condition, and the

14 medical facts which support the certification, includ15 ing a brief statement as to how the medical facts

16 meet the criteria of the definition.

17 (2)(i) The approximate date the serious health

18 condition commenced, and its probable duration, in19 cluding the probable duration of the patient’s

20 present incapacity (defined to mean inability to

21 work, attend school or perform other regular daily

22 activities due to the serious health condition, treat23 ment therefor, or recovery therefrom) if different.

24 (ii) Whether it will be necessary for the em25 ployee to take leave intermittently or to work on a
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1 reduced leave schedule basis (i.e., part-time) as a re2 sult of the serious health condition (see § 825.117

3 and § 825.203), and if so, the probable duration of

4 such schedule.

5 (iii) If the condition is pregnancy or a chronic

6 condition within the meaning of § 825.114(a)(2)(iii),

7 whether the patient is presently incapacitated and

8 the likely duration and frequency of episodes of inca9 pacity.

10 (3)(i)(A) If additional treatments will be re11 quired for the condition, an estimate of the probable

12 number of such treatments.

13 (B) If the patient’s incapacity will be intermit14 tent, or will require a reduced leave schedule, an es15 timate of the probable number and interval between

16 such treatments, actual or estimated dates of treat17 ment if known, and period required for recovery if

18 any.

19 (ii) If any of the treatments referred to in sub20 paragraph (i) will be provided by another provider of

21 health services (e.g., physical therapist), the nature

22 of the treatments.

23 (iii) If a regimen of continuing treatment by the

24 patient is required under the supervision of the
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1 health care provider, a general description of the

2 regimen (see § 825.114(b)).

3 (4) If medical leave is required for the employ4 ee’s absence from work because of the employee’s

5 own condition (including absences due to pregnancy

6 or a chronic condition), whether the employee—

7 (i) is unable to perform work of any kind;

8 (ii) is unable to perform any one or more

9 of the essential functions of the employee’s posi10 tion, including a statement of the essential

11 functions the employee is unable to perform

12 (see § 825.115), based on either information

13 provided on a statement from the employing of14 fice of the essential functions of the position or,

15 if not provided, discussion with the employee

16 about the employee’s job functions; or

17 (iii) must be absent from work for treat18 ment.

19 (5)(i) If leave is required to care for a family

20 member of the employee with a serious health condi21 tion, whether the patient requires assistance for

22 basic medical or personal needs or safety, or for

23 transportation; or if not, whether the employee’s

24 presence to provide psychological comfort would be

25 beneficial to the patient or assist in the patient’s re-
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1 covery. The employee is required to indicate on the

2 form the care he or she will provide and an estimate

3 of the time period.

4 (ii) If the employee’s family member will need

5 care only intermittently or on a reduced leave sched6 ule basis (i.e., part-time), the probable duration of

7 the need.

8 (c) If the employing office’s sick or medical leave plan

9 requires less information to be furnished in medical certifi10 cations than the certification requirements of these regula11 tions, and the employee or employing office elects to sub12 stitute paid sick, vacation, personal or family leave for un13 paid FMLA leave where authorized (see § 825.207), only

14 the employing office’s lesser sick leave certification re15 quirements may be imposed.

16 § 825.307 What may an employing office do if it ques17 tions the adequacy of a medical certifi18 cation?

19 (a) If an employee submits a complete certification

20 signed by the health care provider, the employing office

21 may not request additional information from the employ22 ee’s health care provider. However, a health care provider

23 representing the employing office may contact the employ24 ee’s health care provider, with the employee’s permission,
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1 for purposes of clarification and authenticity of the medi2 cal certification.

3 (1) If an employee is on FMLA leave running

4 concurrently with a workers’ compensation absence,

5 and the provisions of the workers’ compensation

6 statute permit the employing office or the employing

7 office’s representative to have direct contact with the

8 employee’s workers’ compensation health care pro9 vider, the employing office may follow the workers’

10 compensation provisions.

11 (2) An employing office that has reason to

12 doubt the validity of a medical certification may re13 quire the employee to obtain a second opinion at the

14 employing office’s expense. Pending receipt of the

15 second (or third) medical opinion, the employee is

16 provisionally entitled to the benefits of the FMLA as

17 made applicable by the CAA, including maintenance

18 of group health benefits. If the certifications do not

19 ultimately establish the employee’s entitlement to

20 FMLA leave, the leave shall not be designated as

21 FMLA leave and may be treated as paid or unpaid

22 leave under the employing office’s established leave

23 policies. The employing office is permitted to des24 ignate the health care provider to furnish the second

25 opinion, but the selected health care provider may
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1 not be employed on a regular basis by the employing

2 office. See also paragraphs (e) and (f) of this sec3 tion.

4 (b) The employing office may not regularly contract

5 with or otherwise regularly utilize the services of the

6 health care provider furnishing the second opinion unless

7 the employing office is located in an area where access

8 to health care is extremely limited (e.g., a rural area where

9 no more than one or two doctors practice in the relevant

10 specialty in the vicinity).

11 (c) If the opinions of the employee’s and the employ12 ing office’s designated health care providers differ, the em13 ploying office may require the employee to obtain certifi14 cation from a third health care provider, again at the em15 ploying office’s expense. This third opinion shall be final

16 and binding. The third health care provider must be des17 ignated or approved jointly by the employing office and

18 the employee. The employing office and the employee must

19 each act in good faith to attempt to reach agreement on

20 whom to select for the third opinion provider. If the em21 ploying office does not attempt in good faith to reach

22 agreement, the employing office will be bound by the first

23 certification. If the employee does not attempt in good

24 faith to reach agreement, the employee will be bound by

25 the second certification. For example, an employee who
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1 refuses to agree to see a doctor in the specialty in question

2 may be failing to act in good faith. On the other hand,

3 an employing office that refuses to agree to any doctor

4 on a list of specialists in the appropriate field provided

5 by the employee and whom the employee has not pre6 viously consulted may be failing to act in good faith.

7 (d) The employing office is required to provide the

8 employee with a copy of the second and third medical opin9 ions, where applicable, upon request by the employee. Re10 quested copies are to be provided within two business days

11 unless extenuating circumstances prevent such action.

12 (e) If the employing office requires the employee to

13 obtain either a second or third opinion the employing of14 fice must reimburse an employee or family member for

15 any reasonable ‘‘out of pocket’’ travel expenses incurred

16 to obtain the second and third medical opinions. The em17 ploying office may not require the employee or family

18 member to travel outside normal commuting distance for

19 purposes of obtaining the second or third medical opinions

20 except in very unusual circumstances.

21 (f) In circumstances when the employee or a family

22 member is visiting in another country, or a family member

23 resides in a another country, and a serious health condi24 tion develops, the employing office shall accept a medical
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1 certification as well as second and third opinions from a

2 health care provider who practices in that country.

3 § 825.308 Under what circumstances may an employ4 ing office request subsequent recertifi5 cations of medical conditions?

6 (a) For pregnancy, chronic, or permanent/long-term

7 conditions under continuing supervision of a health care

8 provider (as defined in § 825.114(a)(2) (ii), (iii) or (iv)),

9 an employing office may request recertification no more

10 often than every 30 days and only in connection with an

11 absence by the employee, unless:

12 (1) Circumstances described by the previous

13 certification have changed significantly (e.g., the du14 ration or frequency of absences, the severity of the

15 condition, complications); or

16 (2) The employing office receives information

17 that casts doubt upon the employee’s stated reason

18 for the absence.

19 (b)(1) If the minimum duration of the period of inca20 pacity specified on a certification furnished by the health

21 care provider is more than 30 days, the employing office

22 may not request recertification until that minimum dura23 tion has passed unless one of the conditions set forth in

24 paragraph (c) (1), (2) or (3) of this section is met.
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1 (2) For FMLA leave taken intermittently or on a re2 duced leave schedule basis, the employing office may not

3 request recertification in less than the minimum period

4 specified on the certification as necessary for such leave

5 (including treatment) unless one of the conditions set

6 forth in paragraph (c) (1), (2) or (3) of this section is

7 met.

8 (c) For circumstances not covered by paragraphs (a)

9 or (b) of this section, an employing office may request re10 certification at any reasonable interval, but not more often

11 than every 30 days, unless:

12 (1) The employee requests an extension of

13 leave;

14 (2) Circumstances described by the previous

15 certification have changed significantly (e.g., the du16 ration of the illness, the nature of the illness, com17 plications); or

18 (3) The employing office receives information

19 that casts doubt upon the continuing validity of the

20 certification.

21 (d) The employee must provide the requested recer22 tification to the employing office within the time frame

23 requested by the employing office (which must allow at

24 least 15 calendar days after the employing office’s re25 quest), unless it is not practicable under the particular cir-
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1 cumstances to do so despite the employee’s diligent, good

2 faith efforts.

3 (e) Any recertification requested by the employing of4 fice shall be at the employee’s expense unless the employ5 ing office provides otherwise. No second or third opinion

6 on recertification may be required.

7 § 825.309 What notice may an employing office re8 quire regarding an employee’s intent to

9 return to work?

10 (a) An employing office may require an employee on

11 FMLA leave to report periodically on the employee’s sta12 tus and intent to return to work. The employing office’s

13 policy regarding such reports may not be discriminatory

14 and must take into account all of the relevant facts and

15 circumstances related to the individual employee’s leave

16 situation.

17 (b) If an employee gives unequivocal notice of intent

18 not to return to work, the employing office’s obligations

19 under FMLA, as made applicable by the CAA, to maintain

20 health benefits (subject to requirements of COBRA or 5

21 U.S.C. 8905a, whichever is applicable) and to restore the

22 employee cease. However, these obligations continue if an

23 employee indicates he or she may be unable to return to

24 work but expresses a continuing desire to do so.
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1 (c) It may be necessary for an employee to take more

2 leave than originally anticipated. Conversely, an employee

3 may discover after beginning leave that the circumstances

4 have changed and the amount of leave originally antici5 pated is no longer necessary. An employee may not be re6 quired to take more FMLA leave than necessary to resolve

7 the circumstance that precipitated the need for leave. In

8 both of these situations, the employing office may require

9 that the employee provide the employing office reasonable

10 notice (i.e., within two business days) of the changed cir11 cumstances where foreseeable. The employing office may

12 also obtain information on such changed circumstances

13 through requested status reports.

14 § 825.310 Under what circumstances may an employ15 ing office require that an employee sub16 mit a medical certification that the em17 ployee is able (or unable) to return to

18 work (i.e., a ‘‘fitness-for-duty’’ report)?

19 (a) As a condition of restoring an employee whose

20 FMLA leave was occasioned by the employee’s own serious

21 health condition that made the employee unable to per22 form the employee’s job, an employing office may have a

23 uniformly-applied policy or practice that requires all simi24 larly-situated employees (i.e., same occupation, same seri25 ous health condition) who take leave for such conditions
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1 to obtain and present certification from the employee’s

2 health care provider that the employee is able to resume

3 work.

4 (b) If the terms of a collective bargaining agreement

5 govern an employee’s return to work, those provisions

6 shall be applied. Similarly, requirements under the Ameri7 cans with Disabilities Act (ADA), as made applicable by

8 the CAA, that any return-to-work physical be job-related

9 and consistent with business necessity apply. For example,

10 an attorney could not be required to submit to a medical

11 examination or inquiry just because her leg had been am12 putated. The essential functions of an attorney’s job do

13 not require use of both legs; therefore such an inquiry

14 would not be job related. An employing office may require

15 a warehouse laborer, whose back impairment affects the

16 ability to lift, to be examined by an orthopedist, but may

17 not require this employee to submit to an HIV test where

18 the test is not related to either the essential functions of

19 his/her job or to his/her impairment.

20 (c) An employing office may seek fitness-for-duty cer21 tification only with regard to the particular health condi22 tion that caused the employee’s need for FMLA leave. The

23 certification itself need only be a simple statement of an

24 employee’s ability to return to work. A health care pro25 vider employed by the employing office may contact the
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1 employee’s health care provider with the employee’s per2 mission, for purposes of clarification of the employee’s fit3 ness to return to work. No additional information may be

4 acquired, and clarification may be requested only for the

5 serious health condition for which FMLA leave was taken.

6 The employing office may not delay the employee’s return

7 to work while contact with the health care provider is

8 being made.

9 (d) The cost of the certification shall be borne by the

10 employee and the employee is not entitled to be paid for

11 the time or travel costs spent in acquiring the certification.

12 (e) The notice that employing offices are required to

13 give to each employee giving notice of the need for FMLA

14 leave regarding their FMLA rights and obligations as

15 made applicable by the CAA (see § 825.301) shall advise

16 the employee if the employing office will require fitness17 for-duty certification to return to work. If the employing

18 office has a handbook explaining employment policies and

19 benefits, the handbook should explain the employing of20 fice’s general policy regarding any requirement for fitness21 for-duty certification to return to work. Specific notice

22 shall also be given to any employee from whom fitness23 for-duty certification will be required either at the time

24 notice of the need for leave is given or immediately after

25 leave commences and the employing office is advised of
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1 the medical circumstances requiring the leave, unless the

2 employee’s condition changes from one that did not pre3 viously require certification pursuant to the employing of4 fice’s practice or policy. No second or third fitness-for5 duty certification may be required.

6 (f) An employing office may delay restoration to em7 ployment until an employee submits a required fitness-for8 duty certification unless the employing office has failed to

9 provide the notices required in paragraph (e) of this sec10 tion.

11 (g) An employing office is not entitled to certification

12 of fitness to return to duty when the employee takes inter13 mittent leave as described in § 825.203.

14 (h) When an employee is unable to return to work

15 after FMLA leave because of the continuation, recurrence,

16 or onset of the employee’s or family member’s serious

17 health condition, thereby preventing the employing office

18 from recovering its share of health benefit premium pay19 ments made on the employee’s behalf during a period of

20 unpaid FMLA leave, the employing office may require

21 medical certification of the employee’s or the family mem22 ber’s serious health condition. (See § 825.213(a)(3).) The

23 cost of the certification shall be borne by the employee

24 and the employee is not entitled to be paid for the time

25 or travel costs spent in acquiring the certification.
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1 § 825.311 What happens if an employee fails to satisfy

2 the medical certification and/or recertifi3 cation requirements?

4 (a) In the case of foreseeable leave, an employing of5 fice may delay the taking of FMLA leave to an employee

6 who fails to provide timely certification after being re7 quested by the employing office to furnish such certifi8 cation (i.e., within 15 calendar days, if practicable), until

9 the required certification is provided.

10 (b) When the need for leave is not foreseeable, or in

11 the case of recertification, an employee must provide cer12 tification (or recertification) within the time frame re13 quested by the employing office (which must allow at least

14 15 days after the employing office’s request) or as soon

15 as reasonably possible under the particular facts and cir16 cumstances. In the case of a medical emergency, it may

17 not be practicable for an employee to provide the required

18 certification within 15 calendar days. If an employee fails

19 to provide a medical certification within a reasonable time

20 under the pertinent circumstances, the employing office

21 may delay the employee’s continuation of FMLA leave. If

22 the employee never produces the certification, the leave is

23 not FMLA leave.

24 (c) When requested by the employing office pursuant

25 to a uniformly applied policy for similarly-situated employ26 ees, the employee must provide medical certification at the
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1 time the employee seeks reinstatement at the end of

2 FMLA leave taken for the employee’s serious health condi3 tion, that the employee is fit for duty and able to return

4 to work (see § 825.310(a)) if the employing office has pro5 vided the required notice (see § 825.301(c)); the employing

6 office may delay restoration until the certification is pro7 vided. In this situation, unless the employee provides ei8 ther a fitness-for-duty certification or a new medical cer9 tification for a serious health condition at the time FMLA

10 leave is concluded, the employee may be terminated. See

11 also § 825.213(a)(3).

12 § 825.312 Under what circumstances may an employ13 ing office refuse to provide FMLA leave

14 or reinstatement to eligible employees?

15 (a) If an employee fails to give timely advance notice

16 when the need for FMLA leave is foreseeable, the employ17 ing office may delay the taking of FMLA leave until 30

18 days after the date the employee provides notice to the

19 employing office of the need for FMLA leave. (See

20 § 825.302.)

21 (b) If an employee fails to provide in a timely manner

22 a requested medical certification to substantiate the need

23 for FMLA leave due to a serious health condition, an em24 ploying office may delay continuation of FMLA leave until

25 an employee submits the certificate. (See §§ 825.305 and
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1 825.311.) If the employee never produces the certification,

2 the leave is not FMLA leave.

3 (c) If an employee fails to provide a requested fitness4 for-duty certification to return to work, an employing of5 fice may delay restoration until the employee submits the

6 certificate. (See §§ 825.310 and 825.311.)

7 (d) An employee has no greater right to reinstate8 ment or to other benefits and conditions of employment

9 than if the employee had been continuously employed dur10 ing the FMLA leave period. Thus, an employee’s rights

11 to continued leave, maintenance of health benefits, and

12 restoration cease under FMLA, as made applicable by the

13 CAA, if and when the employment relationship terminates

14 (e.g., layoff), unless that relationship continues, for exam15 ple, by the employee remaining on paid FMLA leave. If

16 the employee is recalled or otherwise re-employed, an eligi17 ble employee is immediately entitled to further FMLA

18 leave for an FMLA-qualifying reason. An employing office

19 must be able to show, when an employee requests restora20 tion, that the employee would not otherwise have been em21 ployed if leave had not been taken in order to deny res22 toration to employment. (See § 825.216.)

23 (e) An employing office may require an employee on

24 FMLA leave to report periodically on the employee’s sta25 tus and intention to return to work. (See § 825.309.) If
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1 an employee unequivocally advises the employing office ei2 ther before or during the taking of leave that the employee

3 does not intend to return to work, and the employment

4 relationship is terminated, the employee’s entitlement to

5 continued leave, maintenance of health benefits, and res6 toration ceases unless the employment relationship contin7 ues, for example, by the employee remaining on paid leave.

8 An employee may not be required to take more leave than

9 necessary to address the circumstances for which leave

10 was taken. If the employee is able to return to work earlier

11 than anticipated, the employee shall provide the employing

12 office two business days notice where feasible; the employ13 ing office is required to restore the employee once such

14 notice is given, or where such prior notice was not feasible.

15 (f) An employing office may deny restoration to em16 ployment, but not the taking of FMLA leave and the

17 maintenance of health benefits, to an eligible employee

18 only under the terms of the ‘‘key employee’’ exemption.

19 Denial of reinstatement must be necessary to prevent

20 ‘‘substantial and grievous economic injury’’ to the employ21 ing office’s operations. The employing office must notify

22 the employee of the employee’s status as a ‘‘key employee’’

23 and of the employing office’s intent to deny reinstatement

24 on that basis when the employing office makes these deter25 minations. If leave has started, the employee must be
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1 given a reasonable opportunity to return to work after

2 being so notified. (See § 825.219.)

3 (g) An employee who fraudulently obtains FMLA

4 leave from an employing office is not protected by job res5 toration or maintenance of health benefits provisions of

6 the FMLA as made applicable by the CAA.

7 (h) If the employing office has a uniformly-applied

8 policy governing outside or supplemental employment,

9 such a policy may continue to apply to an employee while

10 on FMLA leave. An employing office which does not have

11 such a policy may not deny benefits to which an employee

12 is entitled under FMLA as made applicable by the CAA

13 on this basis unless the FMLA leave was fraudulently ob14 tained as in paragraph (g) of this section.

15 SUBPART D—WHAT ENFORCEMENT MECHANISMS DOES

16 THE CAA PROVIDE?

17 § 825.400 What can employees do who believe that

18 their rights under the FMLA as made ap19 plicable by the CAA have been violated?

20 (a) To commence a proceeding, a covered employee

21 alleging a violation of the rights and protections of the

22 FMLA made applicable by the CAA must request counsel23 ing by the Office of Compliance not later than 180 days

24 after the date of the alleged violation. If a covered em-
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1 ployee misses this deadline, the covered employee will be

2 unable to obtain a remedy under the CAA.

3 (b) The following procedures are available under title

4 IV of the CAA for covered employees who believe that

5 their rights under FMLA as made applicable by the CAA

6 have been violated—

7 (1) counseling;

8 (2) mediation; and

9 (3) election of either—

10 (A) a formal complaint, filed with the Of11 fice of Compliance, and a hearing before a hear12 ing officer, subject to review by the Board of

13 Directors of the Office of Compliance, and judi14 cial review in the United States Court of Ap15 peals for the Federal Circuit; or

16 (B) a civil action in a district court of the

17 United States.

18 (c) Regulations of the Office of Compliance describ19 ing and governing these procedures are found at [proposed

20 rules can be found at 141 Cong. Rec. S17012 (November

21 14, 1995)].
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1 § 825.401 [Reserved]

2 §825.402 [Reserved]

3 § 825.403 [Reserved]

4 § 825.404 [Reserved]

5 SUBPART E—[RESERVED]

6 SUBPART F—WHAT SPECIAL RULES APPLY TO

7 EMPLOYEES OF SCHOOLS?

8 § 825.600 To whom do the special rules apply?

9 (a) Certain special rules apply to employees of ‘‘local

10 educational agencies’’, including public school boards and

11 elementary schools under their jurisdiction, and private el12 ementary and secondary schools. The special rules do not

13 apply to other kinds of educational institutions, such as

14 colleges and universities, trade schools, and preschools.

15 (b) Educational institutions are covered by FMLA as

16 made applicable by the CAA (and these special rules). The

17 usual requirements for employees to be ‘‘eligible’’ apply.

18 (c) The special rules affect the taking of intermittent

19 leave or leave on a reduced leave schedule, or leave near

20 the end of an academic term (semester), by instructional

21 employees. ‘‘Instructional employees’’ are those whose

22 principal function is to teach and instruct students in a

23 class, a small group, or an individual setting. This term

24 includes not only teachers, but also athletic coaches, driv25 ing instructors, and special education assistants such as

26 signers for the hearing impaired. It does not include, and
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1 the special rules do not apply to, teacher assistants or

2 aides who do not have as their principal job actual teach3 ing or instructing, nor does it include auxiliary personnel

4 such as counselors, psychologists, or curriculum special5 ists. It also does not include cafeteria workers, mainte6 nance workers, or bus drivers.

7 (d) Special rules which apply to restoration to an

8 equivalent position apply to all employees of local edu9 cational agencies.

10 § 825.601 What limitations apply to the taking of

11 intermittent leave or leave on a reduced

12 leave schedule?

13 (a) Leave taken for a period that ends with the school

14 year and begins the next semester is leave taken consecu15 tively rather than intermittently. The period during the

16 summer vacation when the employee would not have been

17 required to report for duty is not counted against the em18 ployee’s FMLA leave entitlement. An instructional em19 ployee who is on FMLA leave at the end of the school

20 year must be provided with any benefits over the summer

21 vacation that employees would normally receive if they had

22 been working at the end of the school year.

23 (1) If an eligible instructional employee needs

24 intermittent leave or leave on a reduced leave sched25 ule to care for a family member, or for the employ-
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1 ee’s own serious health condition, which is foresee2 able based on planned medical treatment, and the

3 employee would be on leave for more than 20 per4 cent of the total number of working days over the

5 period the leave would extend, the employing office

6 may require the employee to choose either to:

7 (i) Take leave for a period or periods of a

8 particular duration, not greater than the dura9 tion of the planned treatment; or

10 (ii) Transfer temporarily to an available al11 ternative position for which the employee is

12 qualified, which has equivalent pay and benefits

13 and which better accommodates recurring peri14 ods of leave than does the employee’s regular

15 position.

16 (2) These rules apply only to a leave involving

17 more than 20 percent of the working days during

18 the period over which the leave extends. For exam19 ple, if an instructional employee who normally works

20 five days each week needs to take two days of

21 FMLA leave per week over a period of several

22 weeks, the special rules would apply. Employees tak23 ing leave which constitutes 20 percent or less of the

24 working days during the leave period would not be

25 subject to transfer to an alternative position. ‘‘Peri-
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1 ods of a particular duration’’ means a block, or

2 blocks, of time beginning no earlier than the first

3 day for which leave is needed and ending no later

4 than the last day on which leave is needed, and may

5 include one uninterrupted period of leave.

6 (b) If an instructional employee does not give re7 quired notice of foreseeable FMLA leave (see § 825.302)

8 to be taken intermittently or on a reduced leave schedule,

9 the employing office may require the employee to take

10 leave of a particular duration, or to transfer temporarily

11 to an alternative position. Alternatively, the employing of12 fice may require the employee to delay the taking of leave

13 until the notice provision is met. See § 825.207(h).

14 § 825.602 What limitations apply to the taking of

15 leave near the end of an academic term?

16 (a) There are also different rules for instructional

17 employees who begin leave more than five weeks before

18 the end of a term, less than five weeks before the end

19 of a term, and less than three weeks before the end of

20 a term. Regular rules apply except in circumstances when:

21 (1) An instructional employee begins leave more

22 than five weeks before the end of a term. The em23 ploying office may require the employee to continue

24 taking leave until the end of the term if—
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1 (i) the leave will last at least three weeks,

2 and

3 (ii) the employee would return to work

4 during the three-week period before the end of

5 the term.

6 (2) The employee begins leave for a purpose

7 other than the employee’s own serious health condi8 tion during the five-week period before the end of a

9 term. The employing office may require the em10 ployee to continue taking leave until the end of the

11 term if—

12 (i) the leave will last more than two weeks,

13 and

14 (ii) the employee would return to work

15 during the two-week period before the end of

16 the term.

17 (3) The employee begins leave for a purpose

18 other than the employee’s own serious health condi19 tion during the three-week period before the end of

20 a term, and the leave will last more than five work21 ing days. The employing office may require the em22 ployee to continue taking leave until the end of the

23 term.

24 (b) For purposes of these provisions, ‘‘academic

25 term’’ means the school semester, which typically ends
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1 near the end of the calendar year and the end of spring

2 each school year. In no case may a school have more than

3 two academic terms or semesters each year for purposes

4 of FMLA as made applicable by the CAA. An example

5 of leave falling within these provisions would be where an

6 employee plans two weeks of leave to care for a family

7 member which will begin three weeks before the end of

8 the term. In that situation, the employing office could re9 quire the employee to stay out on leave until the end of

10 the term.

11 § 825.603 Is all leave taken during ‘‘periods of a par12 ticular duration’’ counted against the

13 FMLA leave entitlement?

14 (a) If an employee chooses to take leave for ‘‘periods

15 of a particular duration’’ in the case of intermittent or

16 reduced schedule leave, the entire period of leave taken

17 will count as FMLA leave.

18 (b) In the case of an employee who is required to

19 take leave until the end of an academic term, only the

20 period of leave until the employee is ready and able to

21 return to work shall be charged against the employee’s

22 FMLA leave entitlement. The employing office has the op23 tion not to require the employee to stay on leave until the

24 end of the school term. Therefore, any additional leave re25 quired by the employing office to the end of the school
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1 term is not counted as FMLA leave; however, the employ2 ing office shall be required to maintain the employee’s

3 group health insurance and restore the employee to the

4 same or equivalent job including other benefits at the con5 clusion of the leave.

6 § 825.604 What special rules apply to restoration to

7 ‘‘an equivalent position’’?

8 The determination of how an employee is to be re9 stored to ‘‘an equivalent position’’ upon return from

10 FMLA leave will be made on the basis of ‘‘established

11 school board policies and practices, private school policies

12 and practices, and collective bargaining agreements’’. The

13 ‘‘established policies’’ and collective bargaining agree14 ments used as a basis for restoration must be in writing,

15 must be made known to the employee prior to the taking

16 of FMLA leave, and must clearly explain the employee’s

17 restoration rights upon return from leave. Any established

18 policy which is used as the basis for restoration of an em19 ployee to ‘‘an equivalent position’’ must provide substan20 tially the same protections as provided in the FMLA, as

21 made applicable by the CAA, for reinstated employees. See

22 § 825.215. In other words, the policy or collective bargain23 ing agreement must provide for restoration to an ‘‘equiva24 lent position’’ with equivalent employment benefits, pay,

25 and other terms and conditions of employment. For exam-
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1 ple, an employee may not be restored to a position requir2 ing additional licensure or certification.

3 SUBPART G—HOW DO OTHER LAWS, EMPLOYING OF4 FICE PRACTICES, AND COLLECTIVE BARGAINING

5 AGREEMENTS AFFECT EMPLOYEE RIGHTS UNDER

6 THE FMLA AS MADE APPLICABLE BY THE CAA?

7 § 825.700 What if an employing office provides more

8 generous benefits than required by FMLA

9 as made applicable by the CAA?

10 (a) An employing office must observe any employ11 ment benefit program or plan that provides greater family

12 or medical leave rights to employees than the rights estab13 lished by the FMLA. Conversely, the rights established by

14 the FMLA, as made applicable by the CAA, may not be

15 diminished by any employment benefit program or plan.

16 For example, a provision of a collective bargaining agree17 ment (CBA) which provides for reinstatement to a position

18 that is not equivalent because of seniority (e.g., provides

19 lesser pay) is superseded by FMLA. If an employing office

20 provides greater unpaid family leave rights than are af21 forded by FMLA, the employing office is not required to

22 extend additional rights afforded by FMLA, such as main23 tenance of health benefits (other than through COBRA

24 or 5 U.S.C. 8905a, whichever is applicable), to the addi25 tional leave period not covered by FMLA. If an employee
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1 takes paid or unpaid leave and the employing office does

2 not designate the leave as FMLA leave, the leave taken

3 does not count against an employee’s FMLA entitlement.

4 (b) Nothing in the FMLA, as made applicable by the

5 CAA, prevents an employing office from amending existing

6 leave and employee benefit programs, provided they com7 ply with FMLA as made applicable by the CAA. However,

8 nothing in the FMLA, as made applicable by the CAA,

9 is intended to discourage employing offices from adopting

10 or retaining more generous leave policies.

11 (c) [Reserved]

12 § 825.701 [Reserved]

13 § 825.702 How does FMLA affect anti-discrimination

14 laws as applied by section 201 of the

15 CAA?

16 (a) Nothing in FMLA modifies or affects any applica17 ble law prohibiting discrimination on the basis of race, re18 ligion, color, national origin, sex, age, or disability (e.g.,

19 title VII of the Civil Rights Act of 1964, as amended by

20 the Pregnancy Discrimination Act), as made applicable by

21 the CAA. FMLA’s legislative history explains that FMLA

22 is ‘‘not intended to modify or affect the Rehabilitation Act

23 of 1973, as amended, the regulations concerning employ24 ment which have been promulgated pursuant to that stat25 ute, or the Americans with Disabilities Act of 1990, or
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1 the regulations issued under that Act. Thus, the leave pro2 visions of the [FMLA] are wholly distinct from the reason3 able accommodation obligations of employers covered

4 under the [ADA] * * * or the Federal government itself.

5 The purpose of the FMLA is to make leave available to

6 eligible employees and employing offices within its cov7 erage, and not to limit already existing rights and protec8 tion’’. S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993).

9 An employing office must therefore provide leave under

10 whichever statutory provision provides the greater rights

11 to employees.

12 (b) If an employee is a qualified individual with a dis13 ability within the meaning of the Americans with Disabil14 ities Act (ADA), the employing office must make reason15 able accommodations, etc., barring undue hardship, in ac16 cordance with the ADA. At the same time, the employing

17 office must afford an employee his or her FMLA rights.

18 ADA’s ‘‘disability’’ and FMLA’s ‘‘serious health condi19 tion’’ are different concepts, and must be analyzed sepa20 rately. FMLA entitles eligible employees to 12 weeks of

21 leave in any 12-month period, whereas the ADA allows

22 an indeterminate amount of leave, barring undue hard23 ship, as a reasonable accommodation. FMLA requires em24 ploying offices to maintain employees’ group health plan

25 coverage during FMLA leave on the same conditions as
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1 coverage would have been provided if the employee had

2 been continuously employed during the leave period,

3 whereas ADA does not require maintenance of health in4 surance unless other employees receive health insurance

5 during leave under the same circumstances.

6 (c)(1) A reasonable accommodation under the ADA

7 might be accomplished by providing an individual with a

8 disability with a part-time job with no health benefits, as9 suming the employing office did not ordinarily provide

10 health insurance for part-time employees. However,

11 FMLA would permit an employee to work a reduced leave

12 schedule until the equivalent of 12 workweeks of leave

13 were used, with group health benefits maintained during

14 this period. FMLA permits an employing office to tempo15 rarily transfer an employee who is taking leave intermit16 tently or on a reduced leave schedule to an alternative po17 sition, whereas the ADA allows an accommodation of reas18 signment to an equivalent, vacant position only if the em19 ployee cannot perform the essential functions of the em20 ployee’s present position and an accommodation is not

21 possible in the employee’s present position, or an accom22 modation in the employee’s present position would cause

23 an undue hardship. The examples in the following para24 graphs of this section demonstrate how the two laws would
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1 interact with respect to a qualified individual with a dis2 ability.

3 (2) A qualified individual with a disability who is also

4 an ‘‘eligible employee’’ entitled to FMLA leave requests

5 10 weeks of medical leave as a reasonable accommodation,

6 which the employing office grants because it is not an

7 undue hardship. The employing office advises the em8 ployee that the 10 weeks of leave is also being designated

9 as FMLA leave and will count towards the employee’s

10 FMLA leave entitlement. This designation does not pre11 vent the parties from also treating the leave as a reason12 able accommodation and reinstating the employee into the

13 same job, as required by the ADA, rather than an equiva14 lent position under FMLA, if that is the greater right

15 available to the employee. At the same time, the employee

16 would be entitled under FMLA to have the employing of17 fice maintain group health plan coverage during the leave,

18 as that requirement provides the greater right to the em19 ployee.

20 (3) If the same employee needed to work part-time

21 (a reduced leave schedule) after returning to his or her

22 same job, the employee would still be entitled under

23 FMLA to have group health plan coverage maintained for

24 the remainder of the two-week equivalent of FMLA leave

25 entitlement, notwithstanding an employing office policy
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1 that part-time employees do not receive health insurance.

2 This employee would be entitled under the ADA to reason3 able accommodations to enable the employee to perform

4 the essential functions of the part-time position. In addi5 tion, because the employee is working a part-time schedule

6 as a reasonable accommodation, the employee would be

7 shielded from FMLA’s provision for temporary assign8 ment to a different alternative position. Once the employee

9 has exhausted his or her remaining FMLA leave entitle10 ment while working the reduced (part-time) schedule, if

11 the employee is a qualified individual with a disability, and

12 if the employee is unable to return to the same full-time

13 position at that time, the employee might continue to work

14 part-time as a reasonable accommodation, barring undue

15 hardship; the employee would then be entitled to only

16 those employment benefits ordinarily provided by the em17 ploying office to part-time employees.

18 (4) At the end of the FMLA leave entitlement, an

19 employing office is required under FMLA to reinstate the

20 employee in the same or an equivalent position, with equiv21 alent pay and benefits, to that which the employee held

22 when leave commenced. The employing office’s FMLA ob23 ligations would be satisfied if the employing office offered

24 the employee an equivalent full-time position. If the em25 ployee were unable to perform the essential functions of
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1 that equivalent position even with reasonable accommoda2 tion, because of a disability, the ADA may require the em3 ploying office to make a reasonable accommodation at that

4 time by allowing the employee to work part-time or by re5 assigning the employee to a vacant position, barring undue

6 hardship.

7 (d)(1) If FMLA entitles an employee to leave, an em8 ploying office may not, in lieu of FMLA leave entitlement,

9 require an employee to take a job with a reasonable ac10 commodation. However, ADA may require that an employ11 ing office offer an employee the opportunity to take such

12 a position. An employing office may not change the essen13 tial functions of the job in order to deny FMLA leave.

14 See § 825.220(b).

15 (2) An employee may be on a workers’ compensation

16 absence due to an on-the-job injury or illness which also

17 qualifies as a serious health condition under FMLA. The

18 workers’ compensation absence and FMLA leave may run

19 concurrently (subject to proper notice and designation by

20 the employing office). At some point the health care pro21 vider providing medical care pursuant to the workers’

22 compensation injury may certify the employee is able to

23 return to work in a ‘‘light duty’’ position. If the employing

24 office offers such a position, the employee is permitted but

25 not required to accept the position (see § 825.220(d)). As
146

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1 a result, the employee may no longer qualify for payments

2 from the workers’ compensation benefit plan, but the em3 ployee is entitled to continue on unpaid FMLA leave either

4 until the employee is able to return to the same or equiva5 lent job the employee left or until the 12-week FMLA

6 leave entitlement is exhausted. See § 825.207(d)(2). If the

7 employee returning from the workers’ compensation injury

8 is a qualified individual with a disability, he or she will

9 have rights under the ADA.

10 (e) If an employing office requires certifications of

11 an employee’s fitness for duty to return to work, as per12 mitted by FMLA under a uniform policy, it must comply

13 with the ADA requirement that a fitness for duty physical

14 be job-related and consistent with business necessity.

15 (f) Under title VII of the Civil Rights Act of 1964,

16 as amended by the Pregnancy Discrimination Act, and as

17 made applicable by the CAA, an employing office should

18 provide the same benefits for women who are pregnant

19 as the employing office provides to other employees with

20 short-term disabilities. Because title VII does not require

21 employees to be employed for a certain period of time to

22 be protected, an employee employed for less than 12

23 months by any employing office (and, therefore, not an

24 ‘‘eligible’’ employee under FMLA, as made applicable by

25 the CAA) may not be denied maternity leave if the employ-
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1 ing office normally provides short-term disability benefits

2 to employees with the same tenure who are experiencing

3 other short-term disabilities.

4 (g) For further information on Federal anti-discrimi5 nation laws applied by section 201 of the CAA (2 U.S.C.

6 1311), including title VII, the Rehabilitation Act, and the

7 ADA, individuals are encouraged to contact the Office of

8 Compliance.

9 SUBPART H—DEFINITIONS

10 § 825.800 Definitions.

11 For purposes of this part:

12 ADA means the Americans With Disabilities Act (42

13 U.S.C. 12101 et seq.).

14 CAA means the Congressional Accountability Act of

15 1995 (Pub. Law 104–1, 109 Stat. 3, 2 U.S.C. 1301 et

16 seq.).

17 COBRA means the continuation coverage require18 ments of title X of the Consolidated Omnibus Budget Rec19 onciliation Act of 1986 (Pub. Law 99–272, title X, section

20 10002; 100 Stat. 227; as amended; 29 U.S.C. 1161–

21 1168).

22 Continuing treatment means: A serious health condi23 tion involving continuing treatment by a health care pro24 vider includes any one or more of the following:
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1 (1) A period of incapacity (i.e., inability to

2 work, attend school or perform other regular daily

3 activities due to the serious health condition, treat4 ment therefor, or recovery therefrom) of more than

5 three consecutive calendar days, and any subsequent

6 treatment or period of incapacity relating to the

7 same condition, that also involves:

8 (i) Treatment two or more times by a

9 health care provider, by a nurse or physician’s

10 assistant under direct supervision of a health

11 care provider, or by a provider of health care

12 services (e.g., physical therapist) under orders

13 of, or on referral by, a health care provider; or

14 (ii) Treatment by a health care provider on

15 at least one occasion which results in a regimen

16 of continuing treatment under the supervision

17 of the health care provider.

18 (2) Any period of incapacity due to pregnancy,

19 or for prenatal care.

20 (3) Any period of incapacity or treatment for

21 such incapacity due to a chronic serious health con22 dition. A chronic serious health condition is one

23 which:

24 (i) Requires periodic visits for treatment

25 by a health care provider, or by a nurse or phy-
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•SRES 242 ATS

1 sician’s assistant under direct supervision of a

2 health care provider;

3 (ii) Continues over an extended period of

4 time (including recurring episodes of a single

5 underlying condition); and

6 (iii) May cause episodic rather than a con7 tinuing period of incapacity (e.g., asthma, dia8 betes, epilepsy, etc.).

9 (4) A period of incapacity which is permanent

10 or long-term due to a condition for which treatment

11 may not be effective. The employee or family mem12 ber must be under the continuing supervision of, but

13 need not be receiving active treatment by, a health

14 care provider. Examples include Alzheimer’s, a se15 vere stroke, or the terminal stages of a disease.

16 (5) Any period of absence to receive multiple

17 treatments (including any period of recovery there18 from) by a health care provider or by a provider of

19 health care services under orders of, or on referral

20 by, a health care provider, either for restorative sur21 gery after an accident or other injury, or for a con22 dition that would likely result in a period of incapac23 ity of more than three consecutive calendar days in

24 the absence of medical intervention or treatment,

25 such as cancer (chemotherapy, radiation, etc.), se-
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1 vere arthritis (physical therapy), kidney disease (di2 alysis).

3 Covered employee—The term ‘‘covered employee’’, as

4 defined in the CAA, means any employee of—(1) the

5 House of Representatives; (2) the Senate; (3) the Capitol

6 Guide Service; (4) the Capitol Police; (5) the Congres7 sional Budget Office; (6) the Office of the Architect of

8 the Capitol; (7) the Office of the Attending Physician; (8)

9 the Office of Compliance; or (9) the Office of Technology

10 Assessment.

11 Eligible employee—The term ‘‘eligible employee’’, as

12 defined in the CAA, means a covered employee who has

13 been employed in any employing office for 12 months and

14 for at least 1,250 hours of employment during the pre15 vious 12 months.

16 Employ means to suffer or permit to work.

17 Employee means an employee as defined in the CAA

18 and includes an applicant for employment and a former

19 employee.

20 Employee employed in an instructional capacity: See

21 Teacher.

22 Employee of the Capitol Police—The term ‘‘employee

23 of the Capitol Police’’ includes any member or officer of

24 the Capitol Police.
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1 Employee of the House of Representatives—The

2 term ‘‘employee of the House of Representatives’’ includes

3 an individual occupying a position the pay for which is

4 disbursed by the Clerk of the House of Representatives,

5 or another official designated by the House of Representa6 tives, or any employment position in an entity that is paid

7 with funds derived from the clerk-hire allowance of the

8 House of Representatives but not any such individual em9 ployed by any entity listed in subparagraphs (3) through

10 (9) under ‘‘covered employee’’ above.

11 Employee of the Office of the Architect of the Cap12 itol—The term ‘‘employee of the Office of the Architect

13 of the Capitol’’ includes any employee of the Office of the

14 Architect of the Capitol, the Botanic Garden, or the Sen15 ate Restaurants.

16 Employee of the Senate—The term ‘‘employee of the

17 Senate’’ includes any employee whose pay is disbursed by

18 the Secretary of the Senate, but not any such individual

19 employed by any entity listed in subparagraphs (3)

20 through (9) under ‘‘covered employee’’ above.

21 Employing Office—The term ‘‘employing office’’, as

22 defined in the CAA, means—

23 (1) the personal office of a Member of the

24 House of Representatives or of a Senator;
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1 (2) a committee of the House of Representa2 tives or the Senate or a joint committee;

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

4 the final authority to appoint, hire, discharge, and

5 set the terms, conditions, or privileges of the employ6 ment of an employee of the House of Representa7 tives or the Senate; or

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

9 Board, the Congessional Budget Office, the Office of

10 the Architect of the Capitol, the Office of the At11 tending Physician, the Office of Compliance, and the

12 Office of Technology Assessment.

13 Employment benefits means all benefits provided or

14 made available to employees by an employing office, in15 cluding group life insurance, health insurance, disability

16 insurance, sick leave, annual leave, educational benefits,

17 and pensions, regardless of whether such benefits are pro18 vided by a practice or written policy of an employing office

19 or through an employee benefit plan. The term does not

20 include non-employment related obligations paid by em21 ployees through voluntary deductions such as supple22 mental insurance coverage. (See § 825.209(a)).

23 FLSA means the Fair Labor Standards Act (29

24 U.S.C. 201 et seq.).
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1 FMLA means the Family and Medical Leave Act of

2 1993, Public Law 103–3 (February 5, 1993), 107 Stat.

3 6 (29 U.S.C. 2601 et seq.).

4 Group health plan means the Federal Employees

5 Health Benefits Program and any other plan of, or con6 tributed to by, an employing office (including a self-in7 sured plan) to provide health care (directly or otherwise)

8 to the employing office’s employees, former employees, or

9 the families of such employees or former employees. For

10 purposes of FMLA, as made applicable by the CAA, the

11 term ‘‘group health plan’’ shall not include an insurance

12 program providing health coverage under which employees

13 purchase individual policies from insurers provided that—

14 (1) no contributions are made by the employing

15 office;

16 (2) participation in the program is completely

17 voluntary for employees;

18 (3) the sole functions of the employing office

19 with respect to the program are, without endorsing

20 the program, to permit the insurer to publicize the

21 program to employees, to collect premiums through

22 payroll deductions and to remit them to the insurer;

23 (4) the employing office receives no consider24 ation in the form of cash or otherwise in connection

25 with the program, other than reasonable compensa-
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•SRES 242 ATS

1 tion, excluding any profit, for administrative services

2 actually rendered in connection with payroll deduc3 tion; and

4 (5) the premium charged with respect to such

5 coverage does not increase in the event the employ6 ment relationship terminates.

7 Health care provider means:

8 (1) A doctor of medicine or osteopathy who is

9 authorized to practice medicine or surgery by the

10 State in which the doctor practices; or

11 (2) Podiatrists, dentists, clinical psychologists,

12 optometrists, and chiropractors (limited to treatment

13 consisting of manual manipulation of the spine to

14 correct a subluxation as demonstrated by X-ray to

15 exist) authorized to practice in the State and per16 forming within the scope of their practice as defined

17 under State law; and

18 (3) Nurse practitioners, nurse-midwives and

19 clinical social workers who are authorized to practice

20 under State law and who are performing within the

21 scope of their practice as defined under State law;

22 and

23 (4) Christian Science practitioners listed with

24 the First Church of Christ, Scientist in Boston,

25 Massachusetts.
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1 (5) Any health care provider from whom an em2 ploying office or a group health plan’s benefits man3 ager will accept certification of the existence of a se4 rious health condition to substantiate a claim for

5 benefits.

6 (6) A health care provider as defined above who

7 practices in a country other than the United States,

8 who is licensed to practice in accordance with the

9 laws and regulations of that country.

10 ‘‘Incapable of self-care’’ means that the individual re11 quires active assistance or supervision to provide daily

12 self-care in several of the ‘‘activities of daily living’’

13 (ADLs) or ‘‘instrumental activities of daily living’’

14 (IADLs). Activities of daily living include adaptive activi15 ties such as caring appropriately for one’s grooming and

16 hygiene, bathing, dressing and eating. Instrumental activi17 ties of daily living include cooking, cleaning, shopping,

18 taking public transportation, paying bills, maintaining a

19 residence, using telephones and directories, using a post

20 office, etc.

21 Instructional employee: See Teacher.

22 Intermittent leave means leave taken in separate peri23 ods of time due to a single illness or injury, rather than

24 for one continuous period of time, and may include leave

25 of periods from an hour or more to several weeks. Exam-
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1 ples of intermittent leave would include leave taken on an

2 occasional basis for medical appointments, or leave taken

3 several days at a time spread over a period of six months,

4 such as for chemotherapy.

5 Mental disability: See Physical or mental disability.

6 Office of Compliance means the independent office

7 established in the legislative branch under section 301 of

8 the CAA (2 U.S.C. 1381).

9 Parent means the biological parent of an employee

10 or an individual who stands or stood in loco parentis to

11 an employee when the employee was a child.

12 Physical or mental disability means a physical or

13 mental impairment that substantially limits one or more

14 of the major life activities of an individual. See the Ameri15 cans with Disabilities Act (ADA), as made applicable by

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

17 Reduced leave schedule means a leave schedule that

18 reduces the usual number of hours per workweek, or hours

19 per workday, of an employee.

20 Secretary means the Secretary of Labor or author21 ized representative.

22 Serious health condition entitling an employee to

23 FMLA leave means:

24 (1) An illness, injury, impairment, or physical

25 or mental condition that involves:
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1 (i) Inpatient care (i.e., an overnight stay)

2 in a hospital, hospice, or residential medical

3 care facility, including any period of incapacity

4 (for purposes of this section, defined to mean

5 inability to work, attend school or perform

6 other regular daily activities due to the serious

7 health condition, treatment therefor, or recovery

8 therefrom), or any subsequent treatment in

9 connection with such inpatient care; or

10 (ii) Continuing treatment by a health care

11 provider. A serious health condition involving

12 continuing treatment by a health care provider

13 includes:

14 (A) A period of incapacity (i.e., inabil15 ity to work, attend school or perform other

16 regular daily activities due to the serious

17 health condition, treatment therefor, or re18 covery therefrom) of more than three con19 secutive calendar days, including any sub20 sequent treatment or period of incapacity

21 relating to the same condition, that also in22 volves:

23 (1) Treatment two or more times

24 by a health care provider, by a nurse

25 or physician’s assistant under direct
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•SRES 242 ATS

1 supervision of a health care provider,

2 or by a provider of health care serv3 ices (e.g., physical therapist) under

4 orders of, or on referral by, a health

5 care provider; or

6 (2) Treatment by a health care

7 provider on at least one occasion

8 which results in a regimen of continu9 ing treatment under the supervision of

10 the health care provider.

11 (B) Any period of incapacity due to

12 pregnancy, or for prenatal care.

13 (C) Any period of incapacity or treat14 ment for such incapacity due to a chronic

15 serious health condition. A chronic serious

16 health condition is one which:

17 (1) Requires periodic visits for

18 treatment by a health care provider,

19 or by a nurse or physician’s assistant

20 under direct supervision of a health

21 care provider;

22 (2) Continues over an extended

23 period of time (including recurring

24 episodes of a single underlying condi25 tion); and
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•SRES 242 ATS

1 (3) May cause episodic rather

2 than a continuing period of incapacity

3 (e.g., asthma, diabetes, epilepsy, etc.).

4 (D) A period of incapacity which is

5 permanent or long-term due to a condition

6 for which treatment may not be effective.

7 The employee or family member must be

8 under the continuing supervision of, but

9 need not be receiving active treatment by,

10 a health care provider. Examples include

11 Alzheimer’s, a severe stroke, or the termi12 nal stages of a disease.

13 (E) Any period of absence to receive

14 multiple treatments (including any period

15 of recovery therefrom) by a health care

16 provider or by a provider of health care

17 services under orders of, or on referral by,

18 a health care provider, either for restora19 tive surgery after an accident or other in20 jury, or for a condition that would likely

21 result in a period of incapacity of more

22 than three consecutive calendar days in the

23 absence of medical intervention or treat24 ment, such as cancer (chemotherapy, radi-
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1 ation, etc.), severe arthritis (physical ther2 apy), kidney disease (dialysis).

3 (2) Treatment for purposes of paragraph (1) of

4 this definition includes (but is not limited to) exami5 nations to determine if a serious health condition ex6 ists and evaluations of the condition. Treatment

7 does not include routine physical examinations, eye

8 examinations, or dental examinations. Under para9 graph (1)(ii)(A)(2) of this definition, a regimen of

10 continuing treatment includes, for example, a course

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

12 therapy requiring special equipment to resolve or al13 leviate the health condition (e.g., oxygen). A regimen

14 of continuing treatment that includes the taking of

15 over-the-counter medications such as aspirin, anti16 histamines, or salves; or bed-rest, drinking fluids, ex17 ercise, and other similar activities that can be initi18 ated without a visit to a health care provider, is not,

19 by itself, sufficient to constitute a regimen of con20 tinuing treatment for purposes of FMLA leave.

21 (3) Conditions for which cosmetic treatments

22 are administered (such as most treatments for acne

23 or plastic surgery) are not ‘‘serious health condi24 tions’’ unless inpatient hospital care is required or

25 unless complications develop. Ordinarily, unless com-
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•SRES 242 ATS

1 plications arise, the common cold, the flu, ear aches,

2 upset stomach, minor ulcers, headaches other than

3 migraine, routine dental or orthodontia problems,

4 periodontal disease, etc., are examples of conditions

5 that do not meet the definition of a serious health

6 condition and do not qualify for FMLA leave. Re7 storative dental or plastic surgery after an injury or

8 removal of cancerous growths are serious health con9 ditions provided all the other conditions of this regu10 lation are met. Mental illness resulting from stress

11 or allergies may be serious health conditions, but

12 only if all the conditions of this section are met.

13 (4) Substance abuse may be a serious health

14 condition if the conditions of this section are met.

15 However, FMLA leave may only be taken for treat16 ment for substance abuse by a health care provider

17 or by a provider of health care services on referral

18 by a health care provider. On the other hand, ab19 sence because of the employee’s use of the sub20 stance, rather than for treatment, does not qualify

21 for FMLA leave.

22 (5) Absences attributable to incapacity under

23 paragraphs (1)(ii) (B) or (C) of this definition qual24 ify for FMLA leave even though the employee or the

25 immediate family member does not receive treatment
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•SRES 242 ATS

1 from a health care provider during the absence, and

2 even if the absence does not last more than three

3 days. For example, an employee with asthma may be

4 unable to report for work due to the onset of an

5 asthma attack or because the employee’s health care

6 provider has advised the employee to stay home

7 when the pollen count exceeds a certain level. An

8 employee who is pregnant may be unable to report

9 to work because of severe morning sickness.

10 Son or daughter means a biological, adopted, or fos11 ter child, a stepchild, a legal ward, or a child of a person

12 standing in loco parentis, who is under 18 years of age

13 or 18 years of age or older and incapable of self-care be14 cause of a mental or physical disability.

15 Spouse means a husband or wife as defined or recog16 nized under State law for purposes of marriage in the

17 State where the employee resides, including common law

18 marriage in States where it is recognized.

19 State means any State of the United States or the

20 District of Columbia or any Territory or possession of the

21 United States.

22 Teacher (or employee employed in an instructional

23 capacity, or instructional employee) means an employee

24 employed principally in an instructional capacity by an

25 educational agency or school whose principal function is
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1 to teach and instruct students in a class, a small group,

2 or an individual setting, and includes athletic coaches,

3 driving instructors, and special education assistants such

4 as signers for the hearing impaired. The term does not

5 include teacher assistants or aides who do not have as

6 their principal function actual teaching or instructing, nor

7 auxiliary personnel such as counselors, psychologists, cur8 riculum specialists, cafeteria workers, maintenance work9 ers, bus drivers, or other primarily noninstructional em10 ployees.

11 APPENDIX A TO PART 825—[RESERVED]

12 APPENDIX B TO PART 825—CERTIFICATION OF

13 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:
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•SRES 242 ATS

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

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)
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(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).

FOOTNOTES

1Here 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.
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1 APPENDIX C TO PART 825—[RESERVED]

2 APPENDIX D TO PART 825—PROTOTYPE NOTICE: EM3 PLOYING OFFICE RESPONSE TO EMPLOYEE RE4 QUEST 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.
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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)

(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.)
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1 Subtitle A—Regulations Relating to

2 the Senate and Its Employing

3 Offices—S Series

4 CHAPTER III—REGULATIONS RELATING

5 TO THE RIGHTS AND PROTECTIONS

6 UNDER THE FAIR LABOR STANDARDS

7 ACT OF 1938

8 PART S501—GENERAL PROVISIONS

Sec.

S501.00 Corresponding section table of the FLSA regulations of the Labor

Department and the CAA regulations of the Office of Compliance.

S501.101 Purpose and scope.

S501.102 Definitions.

S501.103 Coverage.

S501.104 Administrative authority.

S501.105 Effect of Interpretations of the Labor Department.

S501.106 Application of the Portal-to-Portal Act of 1947.

S501.107 [Reserved]

9 §S501.00 Corresponding section table of the FLSA

10 regulations of the Labor Department and

11 the CAA regulations of the Office of Com12 pliance.

13 The following table lists the parts of the Secretary

14 of Labor Regulations at Title 29 of the Code of Federal

15 Regulations under the FLSA with the corresponding parts

16 of the Office of Compliance (OC) Regulations under sec17 tion 203 of the CAA:

Secretary of Labor regulations OC regulations

Part 531 Wage payments under the Fair Labor Standards

Act of 1938 ........................................................................... Part S531

Part 541 Defining and delimiting the terms ‘‘bona fide executive’’, ‘‘administrative’’, and ‘‘professional’’ employees ... Part S541
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Secretary of Labor regulations OC regulations

Part 547 Requirements of a ‘‘Bona fide thrift or savings

plan’’ ..................................................................................... Part S547

Part 553 Application of the FLSA to employees of public

agencies ................................................................................. Part S553

Part 570 Child labor .............................................................. Part S570

1 SUBPART A—MATTERS OF GENERAL APPLICABILITY

2 §S501.101 Purpose and scope.

3 (a) Section 203 of the Congressional Accountability

4 Act (CAA) provides that the rights and protections of sub5 sections (a)(1) and (d) of section 6, section 7, and section

6 12(c) of the Fair Labor Standards Act of 1938 (FLSA)

7 (29 U.S.C. §§ 206 (a)(1) and (d), 207, 212(c)) shall apply

8 to covered employees of the legislative branch of the Fed9 eral Government. Section 301 of the CAA creates the Of10 fice of Compliance as an independent office in the legisla11 tive branch for enforcing the rights and protections of the

12 FLSA, as applied by the CAA.

13 (b) The FLSA as applied by the CAA provides for

14 minimum standards for both wages and overtime entitle15 ments, and delineates administrative procedures by which

16 covered worktime must be compensated. Included also in

17 the FLSA are provisions related to child labor, equal pay,

18 and portal-to-portal activities. In addition, the FLSA ex19 empts specified employees or groups of employees from the

20 application of certain of its provisions.

21 (c) This chapter contains the substantive regulations

22 with respect to the FLSA that the Board of Directors of
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1 the Office of Compliance has adopted pursuant to sections

2 203(c) and 304 of the CAA, which require that the Board

3 promulgate regulations that are ‘‘the same as substantive

4 regulations promulgated by the Secretary of Labor to im5 plement the statutory provisions referred to in subsection

6 (a) [of § 203 of the CAA] except insofar as the Board may

7 determine, for good cause shown . . . that a modification

8 of such regulations would be more effective for the imple9 mentation of the rights and protections under this sec10 tion’’.

11 (d) These regulations are issued by the Board of Di12 rectors, Office of Compliance, pursuant to sections 203(c)

13 and 304 of the CAA, which directs the Board to promul14 gate regulations implementing section 203 that are ‘‘the

15 same as substantive regulations promulgated by the Sec16 retary of Labor to implement the statutory provisions re17 ferred to in subsection (a) [of section 203 of the CAA]

18 except insofar as the Board may determine, for good cause

19 shown . . . that a modification of such regulations would

20 be more effective for the implementation of the rights and

21 protections under this section’’. The regulations issued by

22 the Board herein are on all matters for which section 203

23 of the CAA requires regulations to be issued. Specifically,

24 it is the Board’s considered judgment, based on the infor25 mation available to it at the time of the promulgation of
171

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1 these regulations, that, with the exception of regulations

2 adopted and set forth herein, there are no other ‘‘sub3 stantive regulations promulgated by the Secretary of

4 Labor to implement the statutory provisions referred to

5 in subsection (a) [of section 203 of the CAA]’’.

6 (e) In promulgating these regulations, the Board has

7 made certain technical and nomenclature changes to the

8 regulations as promulgated by the Secretary. Such

9 changes are intended to make the provisions adopted ac10 cord more naturally to situations in the legislative branch.

11 However, by making these changes, the Board does not

12 intend a substantive difference between these regulations

13 and those of the Secretary from which they are derived.

14 Moreover, such changes, in and of themselves, are not in15 tended to constitute an interpretation of the regulation or

16 of the statutory provisions of the CAA upon which they

17 are based.

18 §S501.102 Definitions.

19 For purposes of this chapter:

20 (a) CAA means the Congressional Accountabil21 ity Act of 1995 (P.L. 104–1, 109 Stat. 3, 2 U.S.C.

22 §§ 1301–1438).

23 (b) FLSA or Act means the Fair Labor Stand24 ards Act of 1938, as amended (29 U.S.C. § 201 et
172

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1 seq.), as applied by section 203 of the CAA to cov2 ered employees and employing offices.

3 (c) Covered employee means any employee of

4 the Senate, including an applicant for employment

5 and a former employee, but shall not include an in6 tern.

7 (d) Employee of the Senate includes any em8 ployee whose pay is disbursed by the Secretary of

9 the Senate, but not any such individual employed by

10 (1) the Capitol Guide Service; (2) the Capitol Police;

11 (3) the Congressional Budget Office; (4) the Office

12 of the Architect of the Capitol; (5) the Office of the

13 Attending Physician; (6) the Office of Compliance;

14 or (7) the Office of Technology Assessment.

15 (e) Employing office and employer mean (1) the

16 personal office of a Senator; (2) a committee of the

17 Senate or a joint committee; or (3) any other office

18 headed by a person with the final authority to ap19 point, hire, discharge, and set the terms, conditions,

20 or privileges of the employment of an employee of

21 the Senate.

22 (f) Board means the Board of Directors of the

23 Office of Compliance.

24 (g) Office means the Office of Compliance.
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1 (h) Intern is an individual who (a) is perform2 ing services in an employing office as part of a dem3 onstrated educational plan, and (b) is appointed on

4 a temporary basis for a period not to exceed 12

5 months: Provided, That if an intern is appointed for

6 a period shorter than 12 months, the intern may be

7 reappointed for additional periods as long as the

8 total length of the internship does not exceed 12

9 months: Provided further, That an intern for pur10 poses of section 203(a)(2) of the CAA also includes

11 an individual who is a senior citizen appointed under

12 S. Res. 219 (May 5, 1978, as amended by S. Res.

13 96, April 9, 1991), but does not include volunteers,

14 fellows or pages.

15 §S501.103 Coverage.

16 The coverage of section 203 of the CAA extends to

17 any covered employee of an employing office without re18 gard to whether the covered employee is engaged in com19 merce or the production of goods for interstate commerce

20 and without regard to size, number of employees, amount

21 of business transacted, or other measure.

22 §S501.104 Administrative authority.

23 (a) The Office of Compliance is authorized to admin24 ister the provisions of section 203 of the Act with respect

25 to any covered employee or covered employer.
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1 (b) The Board is authorized to promulgate sub2 stantive regulations in accordance with the provisions of

3 sections 203(c) and 304 of the CAA.

4 §S501.105 Effect of Interpretation of the Depart5 ment of Labor.

6 (a) In administering the FLSA, the Wage and Hour

7 Division of the Department of Labor has issued not only

8 substantive regulations but also interpretative bulletins.

9 Substantive regulations represent an exercise of statutory10 delegated lawmaking authority from the legislative branch

11 to an administrative agency. Generally, they are proposed

12 in accordance with the notice-and-comment procedures of

13 the Administrative Procedure Act (APA), 5 U.S.C. § 553.

14 Once promulgated, such regulations are considered to have

15 the force and effect of law, unless set aside upon judicial

16 review as arbitrary, capricious, an abuse of discretion, or

17 otherwise not in accordance with law. See Batterton v.

18 Francis, 432 U.S. 416, 425 n.9 (1977). See also 29 CFR

19 § 790.17(b) (1994). Unlike substantive regulations, inter20 pretative statements, including bulletins and other releases

21 of the Wage and Hour Division, are not issued pursuant

22 to the provisions of the APA and may not have the force

23 and effect of law. Rather, they may only constitute official

24 interpretations of the Department of Labor with respect

25 to the meaning and application of the minimum wage,
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1 maximum hour, and overtime pay requirements of the

2 FLSA. See 29 C.F.R. § 790.17(c) (citing Final Report of

3 the Attorney General’s Committee on Administrative Pro4 cedure, Senate Document No. 8, 77th Cong., 1st Sess.,

5 at p. 27 (1941)). The purpose of such statements is to

6 make available in one place the interpretations of the

7 FLSA which will guide the Secretary of Labor and the

8 Wage and Hour Administrator in the performance of their

9 duties unless and until they are otherwise directed by au10 thoritative decisions of the courts or conclude, upon reex11 amination of an interpretation, that it is incorrect. The

12 Supreme Court has observed: ‘‘[T]he rulings, interpreta13 tions and opinions of the Administrator under this Act,

14 while not controlling upon the courts by reason of their

15 authority, do constitute a body of experience and informed

16 judgment to which courts and litigants may properly re17 sort for guidance. The weight of such a judgment in a

18 particular case will depend upon the thoroughness evident

19 in the consideration, the validity of its reasoning, its con20 sistency with earlier and later pronouncements, and all

21 those factors which give it power to persuade, if lacking

22 power to control’’, Skidmore v. Swift, 323 U.S. 134, 140

23 (1944).

24 (b) Section 203(c) of the CAA provides that the sub25 stantive regulations implementing section 203 of the CAA
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1 shall be ‘‘the same as substantive regulations promulgated

2 by the Secretary of Labor’’ except where the Board finds,

3 for good cause shown, that a modification would more ef4 fectively implement the rights and protections established

5 by the FLSA. Thus, the CAA by its terms does not man6 date that the Board adopt the interpretative statements

7 of the Department of Labor or its Wage and Hour Divi8 sion. The Board is thus not adopting such statements as

9 part of its substantive regulations.

10 §S501.106 Application of the Portal-to-Portal Act of

11 1947.

12 (a) Consistent with section 225 of the CAA, the Por13 tal-to-Portal Act (PPA), 29 U.S.C. §§ 216 and 251 et

14 seq., is applicable in defining and delimiting the rights and

15 protections of the FLSA that are prescribed by the CAA.

16 Section 10 of the PPA, 29 U.S.C. § 259, provides in perti17 nent part: ‘‘[N]o employer shall be subject to any liability

18 or punishment for or on account of the failure of the em19 ployer to pay minimum wages or overtime compensation

20 under the Fair Labor Standards Act of 1938, as amended,

21 . . . if he pleads and proves that the act of omission com22 plained of was in good faith in conformity with and reli23 ance on any written administrative regulation, order, rul24 ing, approval or interpretation of [the Administrator of

25 the Wage and Hour Division of the Department of Labor]
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1 . . . or any administrative practice or enforcement policy

2 of such agency with respect to the class of employers to

3 which he belonged. Such a defense, if established shall be

4 a bar to the action or proceeding, notwithstanding that

5 after such act or omission, such administrative regulation,

6 order, ruling, approval, interpretation, practice or enforce7 ment policy is modified or rescinded or is determined by

8 judicial authority to be invalid or of no legal effect’’.

9 (b) In defending any action or proceeding based on

10 any act or omission arising out of section 203 of the CAA,

11 an employing office may satisfy the standards set forth

12 in subsection (a) by pleading and proving good faith reli13 ance upon any written administrative regulation, order,

14 ruling, approval or interpretation, of the Administrator of

15 the Wage and Hour Division of the Department of Labor:

16 Provided, That such regulation, order, ruling approval or

17 interpretation had not been superseded at the time or reli18 ance by any regulation, order, decision, or ruling of the

19 Board or the courts.

20 §S501.107 [Reserved].

21 PART S531—WAGE PAYMENTS UNDER THE

22 FAIR LABOR STANDARDS ACT OF 1938

SUBPART A—PRELIMINARY MATTERS

Sec.

S531.00 Corresponding section table of the FLSA regulations of the Labor

Department and the CAA regulations of the Office of Compliance.

S531.1 Definitions.
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S531.2 Purpose and scope.

SUBPART B—DETERMINATIONS OF ‘‘REASONABLE COSTS’’; EFFECTS OF

COLLECTIVE BARGAINING AGREEMENTS

S531.3 General determinations of ‘‘reasonable cost’’.

S531.6 Effects of collective bargaining agreements.

1 SUBPART A—PRELIMINARY MATTERS

2 §S531.00 Corresponding section table of the FLSA

3 regulations of the Labor Department and

4 the CAA regulations of the Office of Com5 pliance.

6 The following table lists the sections of the Secretary

7 of Labor Regulations at Title 29 of the Code of Federal

8 Regulations under the FLSA with the corresponding sec9 tions of the Office of Compliance (OC) Regulations under

10 section 203 of the CAA:

Secretary of Labor Regulations OC Regulations

531.1 Defintions ............................................................................... S531.1

531.2 Purpose and scope .................................................................. S531.2

531.3 General determinations of ‘‘reasonable cost’’ ......................... S531.3

531.6 Effects of collective bargaining agreements ........................... S531.6

11 §S531.1 Definitions.

12 (a) Administrator means the Administrator of the

13 Wage and Hour Division or his authorized representative.

14 The Secretary of Labor has delegated to the Adminis15 trator the functions vested in him under section 3(m) of

16 the Act.

17 (b) Act means the Fair Labor Standards Act of 1938,

18 as amended.
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1 §S531.2 Purpose and scope.

2 (a) Section 3(m) of the Act defines the term ‘‘wage’’

3 to include the ‘‘reasonable cost’’, as determined by the

4 Secretary of Labor, to an employer of furnishing any em5 ployee with board, lodging, or other facilities, if such

6 board, lodging, or other facilities are customarily fur7 nished by the employer to his employees. In addition, sec8 tion 3(m) gives the Secretary authority to determine the

9 ‘‘fair value’’ of such facilities on the basis of average cost

10 to the employer or to groups of employers similarly situ11 ated, on average value to groups of employees, or other

12 appropriate measures of ‘‘fair value’’. Whenever so deter13 mined and when applicable and pertinent, the ‘‘fair value’’

14 of the facilities involved shall be includable as part of

15 ‘‘wages’’ instead of the actual measure of the costs of

16 those facilities. The section provides, however, the cost of

17 board, lodging, or other facilities shall not be included as

18 part of ‘‘wages’’ if excluded therefrom by a bona fide col19 lective bargaining agreement. Section 3(m) also provides

20 a method for determining the wage of a tipped employee.

21 (b) This part 531 contains any determinations made

22 as to the ‘‘reasonable cost’’ and ‘‘fair value’’ of board,

23 lodging, or other facilities have general application.
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1 SUBPART B—DETERMINATIONS OF ‘‘REASONABLE

2 COST’’ AND ‘‘FAIR VALUE’’; EFFECTS OF COLLEC3 TIVE BARGAINING AGREEMENTS

4 §S531.3 General determinations of ‘‘reasonable

5 cost’’.

6 (a) The term ‘‘reasonable cost’’ as used in section

7 3(m) of the Act is hereby determined to be not more than

8 the actual cost to the employer of the board, lodging, or

9 other facilities customarily furnished by him to his employ10 ees.

11 (b) Reasonable cost does not include a profit to the

12 employer or to any affiliated person.

13 (c) The reasonable cost to the employer of furnishing

14 the employee with board, lodging, or other facilities (in15 cluding housing) is the cost of operation and maintenance

16 including adequate depreciation plus a reasonable allowance (not more than 51 17 ⁄2 percent) for interest on the de18 preciated amount of capital invested by the employer: Pro19 vided, That if the total so computed is more than the fair

20 rental value (or the fair price of the commodities or facili21 ties offered for sale), the fair rental value (or the fair price

22 of the commodities or facilities offered for sale) shall be

23 the reasonable cost. The cost of operation and mainte24 nance, the rate of depreciation, and the depreciated

25 amount of capital invested by the employer shall be those
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1 arrived at under good accounting practices. As used in this

2 paragraph, the term good accounting practices does not

3 include accounting practices which have been rejected by

4 the Internal Revenue Service for tax purposes, and the

5 term depreciation includes obsolescence.

6 (d)(1) The cost of furnishing ‘‘facilities’’ found by the

7 Administrator to be primarily for the benefit or conven8 ience of the employer will not be recognized as reasonable

9 and may not therefore be included in computing wages.

10 (2) The following is a list of facilities found by the

11 Administrator to be primarily for the benefit of conven12 ience of the employer. The list is intended to be illustrative

13 rather than exclusive: (i) Tools of the trade and other ma14 terials and services incidental to carrying on the employ15 er’s business; (ii) the cost of any construction by and for

16 the employer; (iii) the cost of uniforms and of their laun17 dering, where the nature of the business requires the em18 ployee to wear a uniform.

19 §S531.6 Effects of collective bargaining agreements.

20 (a) The cost of board, lodging, or other facilities shall

21 not be included as part of the wage paid to any employee

22 to the extent it is excluded therefrom under the terms of

23 a bona fide collective bargaining agreement applicable to

24 the particular employee.
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1 (b) A collective bargaining agreement shall be deemed

2 to be ‘‘bona fide’’ when pursuant to the provisions of sec3 tion 7(b)(1) or 7(b)(2) of the FLSA it is made with the

4 certified representative of the employees under the provi5 sions of the CAA.

6 PART S541—DEFINING AND DELIMITING THE

7 TERMS ‘‘BONA FIDE EXECUTIVE’’, ‘‘ADMIN8 ISTRATIVE’’, OR ‘‘PROFESSIONAL’’ CAPAC9 ITY (INCLUDING ANY EMPLOYEE EM10 PLOYED IN THE CAPACITY OF ACADEMIC

11 ADMINISTRATIVE PERSONNEL OR TEACH12 ER IN SECONDARY SCHOOL)

13 SUBPART A—GENERAL REGULATIONS

Sec.

S541.00 Corresponding section table of the FLSA regulations of the Labor Department and the CAA regulations of the Office of Compliance.

S541.01 Application of the exemptions of section 13(a)(1) of the FLSA.

S541.1 Executive.

S541.2 Administrative.

S541.3 Professional.

S541.5b Equal pay provisions of section 6(d) of the FLSA as applied by the

CAA extend to executive, administrative, and professional employees.

S541.5d Special provisions applicable to employees of public agencies.

14 §S541.00 Corresponding section table of the FLSA

15 regulations of the Labor Department and

16 the CAA regulations of the Office of Com17 pliance.

18 The following table lists the sections of the Secretary

19 of Labor Regulations at Title 29 of the Code of Federal

20 Regulations under the FLSA with the corresponding sec-
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1 tions of the Office of Compliance (OC) Regulations under

2 section 203 of the CAA:

Secretary of Labor Regulations OC Regulations

541.1 Executive ....................................................................... S541.1

541.2 Administrative ............................................................... S541.2

541.3 Professional ................................................................... S541.3

541.5b Equal pay provisions of section 6(d) of the FLSA

apply to executive, administrative, and professional employees ......................................................................................... S541.5b

541.5d Special provisions applicable to employees of public

agencies ................................................................................. S541.5d

3 §S541.01 Application of the exemptions of section

4 13(a)(1) of the FLSA

5 (a) Section 13(a)(1) of the FLSA, which provides

6 certain exemptions for employees employed in a bona fide

7 executive, administrative, or professional capacity (includ8 ing any employee employed in a capacity of academic ad9 ministrative personnel or teacher in a secondary school),

10 applies to covered employees by virtue of section 225(f)(1)

11 of the CAA.

12 (b) The substantive regulations set forth in this part

13 are promulgated under the authority of sections 203(c)

14 and 304 of the CAA, which require that such regulations

15 be the same as the substantive regulations promulgated

16 by the Secretary of Labor except where the Board deter17 mines for good cause shown that modifications would be

18 more effective for the implementation of the rights and

19 protections under § 203.
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1 §S541.1 Executive

2 The term employee employed in a bona fide executive

3 * * * capacity in section 13(a)(1) of the FSLA as applied

4 by the CAA shall mean any employee:

5 (a) Whose primary duty consists of the management

6 of an employing office in which he is employed or of a

7 customarily recognized department or subdivision thereof;

8 and

9 (b) Who customarily and regularly directs the work

10 of two or more other employees therein; and

11 (c) Who has the authority to hire or fire other em12 ployees or whose suggestions and recommendations as to

13 the hiring or firing and as to the advancement and pro14 motion or any other change of status of other employees

15 will be given particular weight; and

16 (d) Who customarily and regularly exercises discre17 tionary powers; and

18 (e) Who does not devote more than 20 percent, or,

19 in the case of an employee of a retail or service establish20 ment who does not devote as much as 40 percent, of his

21 hours of work in the workweek to activities which are not

22 directly and closely related to the performance of the work

23 described in paragraphs (a) through (d) of this section:

24 Provided, That this paragraph shall not apply in the case

25 of an employee who is in sole charge of an independent
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1 establishment or a physically separated branch establish2 ment; and

3 (f) Who is compensated for his services on a salary

4 basis at a rate of not less than $155 per week, exclusive

5 of board, lodging or other facilities: Provided, That an em6 ployee who is compensated on a salary basis at a rate of

7 not less than $250 per week, exclusive of board, lodging

8 or other facilities, and whose primary duty consists of the

9 management of the employing office in which the employee

10 is employed or of a customarily recognized department or

11 subdivision thereof, and includes the customary and regu12 lar direction of work of two or more other employees there13 in, shall be deemed to meet all the requirements of this

14 section

15 §S541.2 Administrative

16 The term employee employed in a bona fide * * *

17 administrative * * * capacity in section 13(a)(1) of the

18 FLSA as applied by the CAA shall mean any employee:

19 (a) Whose primary duty consists of either:

20 (1) The performance of office or nonmanual

21 work directly related to management policies or gen22 eral operations of his employer or his employer’s

23 customers, or

24 (2) The performance of functions in the admin25 istration of a school system, or educational establish-
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1 ment or institution, or of a department or subdivi2 sion thereof, in work directly related to the academic

3 instruction or training carried on therein; and

4 (b) Who customarily and regularly exercises discre5 tion and independent judgment; and

6 (c)(1) Who regularly and directly assists the head of

7 an employing office, or an employee employed in a bona

8 fide executive or administrative capacity (as such terms

9 are defined in the regulations of this subpart), or

10 (2) Who performs under only general supervision

11 work along specialized or technical lines requiring special

12 training, experience, or knowledge, or

13 (3) Who executes under only general supervision spe14 cial assignments and tasks; and

15 (d) Who does not devote more than 20 percent, or,

16 in the case of an employee of a retail or service establish17 ment who does not devote as much as 40 percent, of his

18 hours worked in the workweek to activities which are not

19 directly and closely related to the performance of the work

20 described in paragraphs (a) through (c) of this section;

21 and

22 (e)(1) Who is compensated for his services on a salary

23 or fee basis at a rate of not less than $155 per week, exclu24 sive of board, lodging or other facilities, or
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1 (2) Who, in the case of academic administrative per2 sonnel, is compensated for services as required by para3 graph (e)(1) of this section, or on a salary basis which

4 is at least equal to the entrance salary for teachers in the

5 school system, educational establishment or institution by

6 which employed: Provided, That an employee who is com7 pensated on a salary or fee basis at a rate of not less than

8 $250 per week, exclusive of board, lodging or other facili9 ties, and whose primary duty consists of the performance

10 of work described in paragraph (a) of this section, which

11 includes work requiring the exercise of discretion and inde12 pendent judgment, shall be deemed to meet all the require13 ments of this section.

14 §S541.3 Professional

15 The term employee employed in a bona fide * * *

16 professional capacity in section 13(a)(1) of the FLSA as

17 applied by the CAA shall mean any employee:

18 (a) Whose primary duty consists of the performance

19 of:

20 (1) Work requiring knowledge of an advance

21 type in a field of science or learning customarily ac22 quired by a prolonged course of specialized intellec23 tual instruction and study, as distinguished from a

24 general academic education and from an apprentice-
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1 ship, and from training in the performance of rou2 tine mental, manual, or physical processes, or

3 (2) Work that is original and creative in a rec4 ognized field of artistic endeavor (as opposed to

5 work which can be produced by a person endowed

6 with general manual or intellectual ability and train7 ing), and the result of which depends primarily on

8 the invention, imagination, or talent of the employee,

9 or

10 (3) Teaching, tutoring, instructing, or lecturing

11 in the activity of imparting knowledge and who is

12 employed and engaged in this activity as a teacher

13 in the school system, educational establishment or

14 institution by which employed, or

15 (4) Work that requires theoretical and practical

16 application of highly-specialized knowledge in com17 puter systems analysis, programming, and software

18 engineering, and who is employed and engaged in

19 these activities as a computer systems analyst, com20 puter programmer, software engineer, or other simi21 larly skilled worker in the computer software field;

22 and

23 (b) Whose work requires the consistent exercise of

24 discretion and judgment in its performance; and
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1 (c) Whose work is predominantly intellectual and var2 ied in character (as opposed to routine mental, manual,

3 mechanical, or physical work) and is of such character

4 that the output produced or the result accomplished can5 not be standardized in relation to a given period of time;

6 and

7 (d) Who does not devote more than 20 percent of his

8 hours worked in the workweek to activities which are not

9 an essential part of and necessarily incident to the work

10 described in paragraphs (a) through (c) of this section;

11 and

12 (e) Who is compensated for services on a salary or

13 fee basis at a rate of not less than $170 per week, exclu14 sive of board, lodging or other facilities: Provided, That

15 this paragraph shall not apply in the case of an employee

16 who is the holder of a valid license or certificate permitting

17 the practice of law or medicine or any of their branches

18 and who is actually engaged in the practice thereof, nor

19 in the case of an employee who is the holder of the req20 uisite academic degree for the general practice of medicine

21 and is engaged in an internship or resident program pur22 suant to the practice of medicine or any of its branches,

23 nor in the case of an employee employed and engaged as

24 a teacher as provided in paragraph (a)(3) of this section:

25 Provided further, That an employee who is compensated
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1 on a salary or fee basis at a rate of not less than $250

2 per week, exclusive of board, lodging or other facilities,

3 and whose primary duty consists of the performance either

4 of work described in paragraph (a)(1), (3), or (4) of this

5 section, which includes work requiring the consistent exer6 cise of discretion and judgment, or of work requiring in7 vention, imagination, or talent in a recognized field of ar8 tistic endeavor, shall be deemed to meet all of the require9 ments of this section: Provided further, That the salary

10 or fee requirements of this paragraph shall not apply to

11 an employee engaged in computer-related work within the

12 scope of paragraph (a)(4) of this section and who is compensated on an hourly basis at a rate in excess of 61 13 ⁄2

14 times the minimum wage provided by section 6 of the

15 FLSA as applied by the CAA.

16 §S541.5b Equal pay provisions of section 6(d) of the

17 FLSA as applied by the CAA extend to ex18 ecutive, administrative, and professional

19 employees

20 The FLSA, as amended and as applied by the CAA,

21 includes within the protection of the equal pay provisions

22 those employees exempt from the minimum wage and

23 overtime pay provisions as bona fide executive, administra24 tive, and professional employees (including any employee

25 employed in the capacity of academic administrative per-
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1 sonnel or teacher in elementary or secondary schools)

2 under section 13(a)(1) of the FLSA. Thus, for example,

3 where an exempt administrative employee and another em4 ployee of the employing office are performing substantially

5 ‘‘equal work’’, the sex discrimination prohibitions of sec6 tion 6(d) are applicable with respect to any wage differen7 tial between those two employees.

8 §S541.5d Special provisions applicable to employ9 ees of public agencies

10 (a) An employee of a public agency who otherwise

11 meets the requirement of being paid on a salary basis shall

12 not be disqualified from exemption under section S541.1,

13 S541.2, or S541.3 on the basis that such employee is paid

14 according to a pay system established by statute, ordi15 nance, or regulation, or by a policy for practice established

16 pursuant to principles of public accountability, under

17 which the employee accrues personal leave and sick leave

18 and which requires the public agency employee’s pay to

19 be reduced or such employee to be placed on leave without

20 pay for absences for personal reasons or because of illness

21 or injury of less than one workday when accrued leave is

22 not used by an employee because—

23 (1) permission for its use has not been sought

24 or has been sought and denied;

25 (2) accrued leave has been exhausted; or
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1 (3) the employee chooses to use leave without

2 pay.

3 (b) Deductions from the pay for an employee of a

4 public agency for absences due to a budget-required fur5 lough shall not disqualify the employee from being paid

6 ‘‘on a salary basis’’ except in the workweek in which the

7 furlough occurs and for which the employee’s pay is ac8 cordingly reduced.

9 PART S547—REQUIREMENTS OF A ‘‘BONA FIDE

10 THRIFT OR SAVINGS PLAN’’

Sec.

S547.00 Corresponding section table of the FLSA regulations of the Labor

Department and the CAA regulations of the Office of Compliance.

S547.0 Scope and effect of part.

S547.1 Essential requirements of qualifications.

S547.2 Disqualifying provisions.

11 §S547.00 Corresponding section table of the FLSA

12 regulations of the Labor Department and

13 the CAA regulations of the Office of Com14 pliance

15 The following table lists the sections of the Secretary

16 of Labor Regulations under the FLSA with the cor17 responding sections of the Office of Compliance (OC) Reg18 ulations under section 203 of the CAA:

Secretary of Labor Regulations OC Regulations

547.0 Scope and effect of part ............................................... S547.0

547.1 Essential requirements of qualifications ...................... S547.1

547.2 Disqualifying provisions ............................................... S547.2
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1 §S547.0 Scope and effect of part

2 (a) The regulations in this part set forth the require3 ments of a ‘‘bona fide thrift or savings plan’’ under section

4 7(3)(e)(b) of the Fair Labor Standards Act of 1938, as

5 amended (FLSA), as applied by the CAA. In determining

6 the total remuneration for employment which section 7(e)

7 of the FLSA requires to be included in the regular rate

8 at which an employee is employed, it is not necessary to

9 include any sums paid to or on behalf of such employee,

10 in recognition of services performed by him during a given

11 period, which are paid pursuant to a bona fide thrift or

12 savings plan meeting the requirements set forth herein.

13 In the formulation of these regulations due regard has

14 been given to the factors and standards set forth in section

15 7(e)(3)(b) of the Act.

16 (b) Where a thrift or savings plan is combined in a

17 single program (whether in one or more documents) with

18 a plan or trust for providing old age, retirement, life, acci19 dent or health insurance or similar benefits for employees,

20 contributions made by the employer pursuant to such

21 thrift or savings plan may be excluded from the regular

22 rate if the plan meets the requirements of the regulation

23 in this part and the contributions made for the other pur24 poses may be excluded from the regular rate if they meet

25 the tests set forth in regulations.
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1 §S547.1 Essential requirements for qualifications

2 (a) A ‘‘bona fide thrift or savings plan’’ for the pur3 pose of section 7(e)(3)(b) of the FLSA as applied by the

4 CAA is required to meet all the standards set forth in

5 paragraphs (b) through (f) of this section and must not

6 contain the disqualifying provisions set forth in § S547.2.

7 (b) The thrift or savings plan constitutes a definite

8 program or arrangement in writing, adopted by the em9 ployer or by contract as a result of collective bargaining

10 and communicated or made available to the employees,

11 which is established and maintained, in good faith, for the

12 purpose of encouraging voluntary thrift or savings by em13 ployees by providing an incentive to employees to accumu14 late regularly and retain cash savings for a reasonable pe15 riod of time or to save through the regular purchase of

16 public or private securities.

17 (c) The plan specifically shall set forth the category

18 or categories of employees participating and the basis of

19 their eligibility. Eligibility may not be based on such fac20 tors as hours of work, production, or efficiency of the em21 ployees: Provided, however, That hours of work may be

22 used to determine eligibility of part-time or casual employ23 ees.

24 (d) The amount any employee may save under the

25 plan shall be specified in the plan or determined in accord26 ance with a definite formula specified in the plan, which
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1 formula may be based on one or more factors such as the

2 straight-time earnings or total earnings, base rate of pay,

3 or length of service of the employee.

4 (e) The employer’s total contribution in any year may

5 not exceed 15 percent of the participating employees’ total

6 earnings during that year. In addition, the employer’s

7 total contribution in any year may not exceed the total

8 amount saved or invested by the participating employees

9 during that year.

10 (f) The employer’s contributions shall be apportioned

11 among the individual employees in accordance with a defi12 nite formula or method of calculation specified in the plan,

13 which formula or method of calculation is based on the

14 amount saved or the length of time the individual em15 ployee retains his savings or investment in the plan: Pro16 vided, That no employee’s share determined in accordance

17 with the plan may be diminished because of any other re18 muneration received by him.

19 §S547.2 Disqualifying provisions

20 (a) No employee’s participation in the plan shall be

21 on other than a voluntary basis.

22 (b) No employee’s wages or salary shall be dependent

23 upon or influenced by the existence of such thrift or sav24 ings plan or the employer’s contributions thereto.
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1 (c) The amounts any employee may save under the

2 plan, or the amounts paid by the employer under the plan

3 may not be based upon the employee’s hours of work, pro4 duction or efficiency.

5 PART S553—OVERTIME COMPENSATION: PAR6 TIAL EXEMPTION FOR EMPLOYEES EN7 GAGED IN LAW ENFORCEMENT AND FIRE

8 PROTECTION; OVERTIME AND COMPEN9 SATORY TIME-OFF FOR EMPLOYEES

10 WHOSE WORK SCHEDULE DIRECTLY DE11 PENDS UPON THE SCHEDULE OF THE

12 HOUSE INTRODUCTION

Sec.

S553.00 Corresponding section table of the FLSA regulations of the Labor

Department and the CAA regulations of the Office of Compliance.

S553.1 Definitions

S553.2 Purpose and scope

SUBPART C—PARTIAL EXEMPTION FOR EMPLOYEES ENGAGED IN LAW

ENFORCEMENT AND FIRE PROTECTION

S553.201 Statutory provisions: section 7(k).

S553.202 Limitations.

S553.211 Law enforcement activities.

S553.212 Twenty percent limitation on nonexempt work.

S553.213 Public agency employees engaged in both fire protection and law enforcement activities.

S553.214 Trainees.

S553.215 Ambulance and rescue service employees.

S553.216 Other exemptions.

S553.220 ‘‘Tour of duty’’ defined.

S553.221 Compensable hours of work.

S553.222 Sleep time.

S553.223 Meal time.

S553.224 ‘‘Work period’’ defined.

S553.225 Early relief.

S553.226 Training time.

S553.227 Outside employment.

S553.230 Maximum hours standard for work periods of 7 to 28 days—section

7(k).
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S553.231 Compensatory time off.

S553.232 Overtime pay requirements.

S553.233 ‘‘Regular rate’’ defined.

SUBPART D—COMPENSATORY TIME-OFF FOR OVERTIME EARNED BY EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY DEPENDS UPON THE

SCHEDULE OF THE HOUSE

S553.301 Definiton of ‘‘directly depends’’.

S553.302 Overtime compensation and compensatory time off for an employee

whose work schedule directly depends upon the schedule of the

House.

S553.303 Using compensatory time off.

S553.304 Payment of overtime compensation for accrued compensatory time

off as of termination of service.

1 INTRODUCTION

2 §S553.00 Corresponding section table of the FLSA

3 regulations of the Labor Department and

4 the CAA regulations of the Office of Com5 pliance

6 The following table lists the sections of the Secretary

7 of Labor Regulations under the FLSA with the cor8 responding sections of the Office of Compliance (OC) Reg9 ulations under section 203 of the CAA:

Secretary of Labor Regulations OC Regulations

553.1 Definitions ................................................................... S553.1

553.2 Purpose and scope ....................................................... S553.2

553.201 Statutory provisions: section 7(k) ............................ S553.201

553.202 Limitations ............................................................... S553.202

553.211 Law enforcement activities ...................................... S553.211

553.212 Twenty percent limitation on nonexempt work ....... S553.212

553.213 Public agency employees engaged in both fire protection and law enforcement activities .................................. S553.213

553.214 Trainees ................................................................... S553.214

553.215 Ambulance and rescue service employees ................ S553.215

553.216 Other exemptions ..................................................... S553.216

553.220 ‘‘Tour of duty’’ defined ............................................ S553.220

553.221 Compensable hours of work ..................................... S553.221

553.222 Sleep time ................................................................ S553.222

553.223 Meal time ................................................................. S553.223

553.224 ‘‘Work period’’ defined ............................................ S553.224

553.225 Early relief ............................................................... S553.225

553.226 Training time ........................................................... S553.226

553.227 Outside employment ................................................ S553.227
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Secretary of Labor Regulations OC Regulations

553.230 Maximum hours standard for work periods of 7 to

28 days—section 7(k) ........................................................... S553.230

553.231 Compensatory time off ............................................. S553.231

553.232 Overtime pay requirements ...................................... S553.232

553.233 ‘‘Regular rate’’ defined ............................................ S553.233

1 INTRODUCTION

2 §S553.1 Definitions

3 (a) Act or FLSA means the Fair Labor Standards

4 Act of 1938, as amended (52 Stat. 1060, as amended; 29

5 U.S.C. 201–219), as applied by the CAA.

6 (b) 1985 Amendments means the Fair Labor Stand7 ards Act Amendments of 1985 (Pub. L. 99–150).

8 (c) Public agency means an employing office as the

9 term is defined in § 501.102 of this chapter, including the

10 Capitol Police.

11 (d) Section 7(k) means the provisions of § 7(k) of the

12 FLSA as applied to covered employees and employing of13 fices by § 203 of the CAA.

14 §S553.2 Purpose and scope

15 The purpose of part S553 is to adopt with appro16 priate modifications the regulations of the Secretary of

17 Labor to carry out those provisions of the FLSA relating

18 to public agency employees as they are applied to covered

19 employees and employing offices of the CAA. In particu20 lar, these regulations apply section 7(k) as it relates to

21 fire protection and law enforcement employees of public

22 agencies.
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1 SUBPART C—PARTIAL EXEMPTION FOR EMPLOYEES

2 ENGAGED IN LAW ENFORCEMENT AND FIRE PRO3 TECTION

4 §S553.201 Statutory provisions: section 7(k)

5 Section 7(k) of the Act provides a partial overtime

6 pay exemption for fire protection and law enforcement

7 personnel (including security personnel in correctional in8 stitutions) who are employed by public agencies on a work

9 period basis. This section of the Act formerly permitted

10 public agencies to pay overtime compensation to such em11 ployees in work periods of 28 consecutive days only after

12 216 hours of work. As further set forth in § S553.230 of

13 this part, the 216-hour standard has been replaced, pursu14 ant to the study mandated by the statute, by 212 hours

15 for fire protection employees and 171 hours for law en16 forcement employees. In the case of such employees who

17 have a work period of at least 7 but less than 28 consecu18 tive days, overtime compensation is required when the

19 ratio of the number of hours worked to the number of

20 days in the work period exceeds the ratio of 212 (or 171)

21 hours to 28 days.

22 §S553.202 Limitations

23 The application of § 7(k), by its terms, is limited to

24 public agencies, and does not apply to any private organi25 zation engaged in furnishing fire protection or law enforce-
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1 ment services. This is so even if the services are provided

2 under contract with a public agency.

3 EXEMPTION REQUIREMENTS

4 §S553.211 Law enforcement activities

5 (a) As used in § 7(k) of the Act, the term ‘‘any em6 ployee . . . in law enforcement activities’’ refers to any

7 employee (1) who is a uniformed or plainclothed member

8 of a body of officers and subordinates who are empowered

9 by law to enforce laws designed to maintain public peace

10 and order and to protect both life and property from acci11 dental or willful injury, and to prevent and detect crimes,

12 (2) who has the power to arrest, and (3) who is presently

13 undergoing or has undergone or will undergo on-the-job

14 training and/or a course of instruction and study which

15 typically includes physical training, self-defense, firearm

16 proficiency, criminal and civil law principles, investigative

17 and law enforcement techniques, community relations,

18 medical aid and ethics.

19 (b) Employees who meet these tests are considered

20 to be engaged in law enforcement activities regardless of

21 their rank, or of their status as ‘‘trainee’’, ‘‘probationary’’,

22 or ‘‘permanent’’, and regardless of their assignment to du23 ties incidental to the performance of their law enforcement

24 activities such as equipment maintenance, and lecturing,

25 or to support activities of the type described in paragraph

26 (g) of this section, whether or not such assignment is for
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1 training or familiarization purposes, or for reasons of ill2 ness, injury or infirmity. The term would also include res3 cue and ambulance service personnel if such personnel

4 form an integral part of the public agency’s law enforce5 ment activities. See section S553.215.

6 (c) Typically, employees engaged in law enforcement

7 activities include police who are regularly employed and

8 paid as such. Other agency employees with duties not spe9 cifically mentioned may, depending upon the particular

10 facts and pertinent statutory provisions in that jurisdic11 tion, meet the three tests described above. If so, they will

12 also qualify as law enforcement officers. Such employees

13 might include, for example, any law enforcement employee

14 within the legislative branch concerned with keeping public

15 peace and order and protecting life and property.

16 (d) Employees who do not meet each of the three

17 tests described above are not engaged in ‘‘law enforcement

18 activities’’ as that term is used in section 7(k). Employees

19 who normally would not meet each of these tests include:

20 (1) Building inspectors (other than those de21 fined in section S553.213(a)),

22 (2) Health inspectors,

23 (3) Sanitarians,
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1 (4) Civilian traffic employees who direct vehicu2 lar and pedestrian traffic at specified intersections

3 or other control points,

4 (5) Civilian parking checkers who patrol as5 signed areas for the purpose of discovering parking

6 violations and issuing appropriate warnings or ap7 pearance notices,

8 (6) Wage and hour compliance officers,

9 (7) Equal employment opportunity compliance

10 officers, and

11 (8) Building guards whose primary duty is to

12 protect the lives and property of persons within the

13 limited area of the building.

14 (e) The term ‘‘any employee in law enforcement ac15 tivities’’ also includes, by express reference, ‘‘security per16 sonnel in correctional institutions’’. Typically, such facili17 ties may include precinct house lockups. Employees of cor18 rectional institutions who qualify as security personnel for

19 purposes of the section 7(k) exemption are those who have

20 responsibility for controlling and maintaining custody of

21 inmates and of safeguarding them from other inmates or

22 for supervising such functions, regardless of whether their

23 duties are performed inside the correctional institution or

24 outside the institution. These employees are considered to

25 be engaged in law enforcement activities regardless of
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1 their rank or of their status as ‘‘trainee’’, ‘‘probationary’’,

2 or ‘‘permanent’’, and regardless of their assignment to du3 ties incidental to the performance of their law enforcement

4 activities, or to support activities of the type described in

5 paragraph (f) of this section, whether or not such assign6 ment is for training or familiarization purposes or for rea7 sons of illness, injury or infirmity.

8 (f) Not included in the term ‘‘employee in law en9 forcement activities’’ are the so-called ‘‘civilian’’ employees

10 of law enforcement agencies or correctional institutions

11 who engage in such support activities as those performed

12 by dispatcher, radio operators, apparatus and equipment

13 maintenance and repair workers, janitors, clerks and ste14 nographers. Nor does the term include employees in cor15 rectional institutions who engage in building repair and

16 maintenance, culinary services, teaching, or in psycho17 logical, medical and paramedical services. This is so even

18 though such employees may, when assigned to correctional

19 institutions, come into regular contact with the inmates

20 in the performance of their duties.

21 §S553.212 Twenty percent limitation on nonexempt

22 work

23 (a) Employees engaged in fire protection or law en24 forcement activities as described in sections S553.210 and

25 S553.211, may also engage in some nonexempt work
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1 which is not performed as an incident to or in conjunction

2 with their fire protection or law enforcement activities.

3 For example, firefighters who work for forest conservation

4 agencies may, during slack times, plant trees and perform

5 other conservation activities unrelated to their firefighting

6 duties. The performance of such nonexempt work will not

7 defeat the § 7(k) exemption unless it exceeds 20 percent

8 of the total hours worked by that employee during the

9 workweek or applicable work period. A person who spends

10 more than 20 percent of his/her working time in non11 exempt activities is not considered to be an employee en12 gaged in fire protection or law enforcement activities for

13 purposes of this part.

14 (b) Public agency fire protection and law enforcement

15 personnel may, at their own option, undertake employ16 ment for the same employer on an occasional or sporadic

17 and part-time basis in a different capacity from their regu18 lar employment. The performance of such work does not

19 affect the application of the § 7(k) exemption with respect

20 to the regular employment. In addition, the hours of work

21 in the different capacity need not be counted as hours

22 worked for overtime purposes on the regular job, nor are

23 such hours counted in determining the 20 percent toler24 ance for nonexempt work discussed in paragraph (a) of

25 this section.
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1 §S553.213 Public agency employees engaged in both

2 fire protection and law enforcement ac3 tivities

4 (a) Some public agencies have employees (often called

5 ‘‘public safety officers’’) who engage in both fire protection

6 and law enforcement activities, depending on the agency

7 needs at the time. This dual assignment would not defeat

8 the section 7(k) exemption: Provided, That each of the ac9 tivities performed meets the appropriate tests set forth in

10 sections S553.210 and S553.211. This is so regardless of

11 how the employee’s time is divided between the two activi12 ties. However, all time spent in nonexempt activities by

13 public safety officers within the work period, whether per14 formed in connection with fire protection or law enforce15 ment functions, or with neither, must be combined for pur16 poses of the 20 percent limitation on nonexempt work dis17 cussed in section S553.212.

18 (b) As specified in section S553.230, the maximum

19 hours standards under section 7(k) are different for em20 ployees engaged in fire protection and for employees en21 gaged in law enforcement. For those employees who per22 form both fire protection and law enforcement activities,

23 the applicable standard is the one which applies to the

24 activity in which the employee spends the majority of work

25 time during the work period.
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1 §S553.214 Trainees

2 The attendance at a bona fide fire or police academy

3 or other training facility, when required by the employing

4 agency, constitutes engagement in activities under section

5 7(k) only when the employee meets all the applicable tests

6 described in section S553.210 or section S553.211 (except

7 for the power of arrest for law enforcement personnel),

8 as the case may be. If the applicable tests are met, then

9 basic training or advanced training is considered inciden10 tal to, and part of, the employee’s fire protection or law

11 enforcement activities.

12 §S553.215 Ambulance and rescue service employees

13 Ambulance and rescue service employees of a public

14 agency other than a fire protection or law enforcement

15 agency may be treated as employees engaged in fire pro16 tection or law enforcement activities of the type con17 templated by § 7(k) if their services are substantially relat18 ed to firefighting or law enforcement activities in that (1)

19 the ambulance and rescue service employees have received

20 training in the rescue of fire, crime, and accident victims

21 or firefighters or law enforcement personnel injured in the

22 performance of their respective, duties, and (2) the ambu23 lance and rescue service employees are regularly dis24 patched to fires, crime scenes, riots, natural disasters and

25 accidents. As provided in section S553.213(b), where em26 ployees perform both fire protection and law enforcement
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1 activities, the applicable standard is the one which applies

2 to the activity in which the employee spends the majority

3 of work time during the work period.

4 §S553.216 Other exemptions

5 Although the 1974 Amendments to the FLSA as ap6 plied by the CAA provide special exemptions for employees

7 of public agencies engaged in fire protection and law en8 forcement activities, such workers may also be subject to

9 other exemptions in the Act, and public agencies may

10 claim such other applicable exemptions in lieu of § 7(k).

11 For example, section 13(a)(1) as applied by the CAA pro12 vides a complete minimum wage and overtime pay exemp13 tion for any employee employed in a bona fide executive,

14 administrative, or professional capacity, as those terms

15 are defined and delimited in Part S541. The section

16 13(a)(1) exemption can be claimed for any fire protection

17 or law enforcement employee who meets all of the tests

18 specified in Part S541 relating to duties, responsibilities,

19 and salary. Thus, high ranking police officials who are en20 gaged in law enforcement activities, may also, depending

21 on the facts, qualify for the section 13(a)(1) exemption

22 as ‘‘executive’’ employees. Similarly, certain criminal in23 vestigative agents may qualify as ‘‘administrative’’ em24 ployees under section 13(a)(1).
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1 TOUR OF DUTY AND COMPENSABLE HOURS OF WORK

2 RULES

3 §S553.220 ‘‘Tour of duty’’ defined

4 (a) The term ‘‘tour of duty’’ is a unique concept ap5 plicable only to employees for whom the section 7(k) ex6 emption is claimed. This term, as used in section 7(k),

7 means the period of time during which an employee is con8 sidered to be on duty for purposes of determining compen9 sable hours. It may be a scheduled or unscheduled period.

10 Such periods include ‘‘shifts’’ assigned to employees often

11 days in advance of the performance of the work. Scheduled

12 periods also include time spent in work outside the ‘‘shift’’

13 which the public agency employer assigns. For example,

14 a police officer may be assigned to crowd control during

15 a parade or other special event outside of his or her shift.

16 (b) Unscheduled periods include time spent in court

17 by police officers, time spent handling emergency situa18 tions, and time spent working after a shift to complete

19 an assignment. Such time must be included in the compen20 sable tour of duty even though the specific work performed

21 may not have been assigned in advance.

22 (c) The tour of duty does not include time spent

23 working for a separate and independent employer in cer24 tain types of special details as provided in section

25 S553.227.
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1 §S553.221 Compensable hours of work

2 (a) The rules under the FLSA as applied by the CAA

3 on compensable hours of work are applicable to employees

4 for whom the section 7(k) exemption is claimed. Special

5 rules for sleep time (section S553.222) apply to both law

6 enforcement and firefighting employees for whom the sec7 tion 7(k) exemption is claimed. Also, special rules for meal

8 time apply in the case of firefighters (section S553.223).

9 (b) Compensable hours of work generally include all

10 of the time during which an employee is on duty on the

11 employer’s premises or at a prescribed workplace, as well

12 as all other time during which the employee is suffered

13 or permitted to work for the employer. Such time includes

14 all pre-shift and post-shift activities which are an integral

15 part of the employee’s principal activity or which are close16 ly related to the performance of the principal activity, such

17 as attending roll call, writing up and completing tickets

18 or reports, and washing and re-racking fire hoses.

19 (c) Time spent away from the employer’s premises

20 under conditions that are so circumscribed that they re21 strict the employee from effectively using the time for per22 sonal pursuits also constitutes compensable hours of work.

23 For example, where a police station must be evacuated be24 cause of an electrical failure and the employees are ex25 pected to remain in the vicinity and return to work after

26 the emergency has passed, the entire time spent away
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1 from the premises is compensable. The employees in this

2 example cannot use the time for their personal pursuits.

3 (d) An employee who is not required to remain on

4 the employer’s premises but is merely required to leave

5 word at home or with company officials where he or she

6 may be reached is not working while on call. Time spent

7 at home on call may or may not be compensable depending

8 on whether the restrictions placed on the employee pre9 clude using the time for personal pursuits. Where, for ex10 ample, a firefighter has returned home after the shift, with

11 the understanding that he or she is expected to return to

12 work in the event of an emergency in the night, such time

13 spent at home is normally not compensable. On the other

14 hand, where the conditions placed on the employee’s activi15 ties are so restrictive that the employee cannot use the

16 time effectively for personal pursuits, such time spent on

17 call is compensable.

18 (e) Normal home to work travel is not compensable,

19 even where the employee is expected to report to work at

20 a location away from the location of the employer’s prem21 ises.

22 (f) A police officer, who has completed his or her tour

23 of duty and who is given a patrol car to drive home and

24 use on personal business, is not working during the travel

25 time even where the radio must be left on so that the offi-
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1 cer can respond to emergency calls. Of course, the time

2 spent in responding to such calls is compensable.

3 §S553.222 Sleep time

4 (a) Where a public agency elects to pay overtime com5 pensation to firefighters and/or law enforcement personnel

6 in accordance with section 7(a)(1) of the Act, the public

7 agency may exclude sleep time from hours worked if all

8 the conditions for the exclusion of such time are met.

9 (b) Where the employer has elected to use the section

10 7(k) exemption, sleep time cannot be excluded from the

11 compensable hours of work where—

12 (1) the employee is on a tour of duty of less

13 than 24 hours, and

14 (2) the employee is on a tour of duty of exactly

15 24 hours.

16 (c) Sleep time can be excluded from compensable

17 hours of work, however, in the case of police officers or

18 firefighters who are on a tour of duty of more than 24

19 hours, but only if there is an expressed or implied agree20 ment between the employer and the employees to exclude

21 such time. In the absence of such an agreement, the sleep

22 time is compensable. In no event shall the time excluded

23 as sleep time exceed 8 hours in a 24-hour period. If the

24 sleep time is interrupted by a call to duty, the interruption

25 must be counted as hours worked. If the sleep period is
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1 interrupted to such an extent that the employee cannot

2 get a reasonable night’s sleep (which, for enforcement pur3 poses means at least 5 hours), the entire time must be

4 counted as hours of work.

5 §S553.223 Meal time

6 (a) If a public agency elects to pay overtime com7 pensation to firefighters and law enforcement personnel

8 in accordance with section 7(a)(1) of the Act, the public

9 agency may exclude meal time from hours worked if all

10 the statutory tests for the exclusion of such time are met.

11 (b) If a public agency elects to use the section 7(k)

12 exemption, the public agency may, in the case of law en13 forcement personnel, exclude meal time from hours worked

14 on tours of duty of 24 hours or less: Provided, That the

15 employee is completely relieved from duty during the meal

16 period, and all the other statutory tests for the exclusion

17 of such time are met. On the other hand, where law en18 forcement personnel are required to remain on call in bar19 racks or similar quarters, or are engaged in extended sur20 veillance activities (e.g., stakeouts), they are not consid21 ered to be completely relieved from duty, and any such

22 meal periods would be compensable.

23 (c) With respect to firefighters employed under sec24 tion 7(k), who are confined to a duty station, the legisla25 tive history of the Act indicates congressional intent to
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1 mandate a departure from the usual FLSA ‘‘hours of

2 work’’ rules and adoption of an overtime standard keyed

3 to the unique concept of ‘‘tour of duty’’ under which fire4 fighters are employed. Where the public agency elects to

5 use the section 7(k) exemption for firefighters, meal time

6 cannot be excluded from the compensable hours of work

7 where (1) the firefighter is on a tour of duty of less than

8 24 hours, and (2) where the firefighter is on a tour of

9 duty of exactly 24 hours.

10 (d) In the case of police officers or firefighters who

11 are on a tour of duty of more than 24 hours, meal time

12 may be excluded from compensable hours of work provided

13 that the statutory tests for exclusion of such hours are

14 met.

15 §S553.224 ‘‘Work period’’ defined

16 (a) As used in section 7(k), the term ‘‘work period’’

17 refers to any established and regularly recurring period

18 of work which, under the terms of the Act and legislative

19 history, cannot be less than 7 consecutive days nor more

20 than 28 consecutive days. Except for this limitation, the

21 work period can be of any length, and it need not coincide

22 with the duty cycle or pay period or with a particular day

23 of the week or hour of the day. Once the beginning and

24 ending time of an employee’s work period is established,

25 however, it remains fixed regardless of how many hours
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1 are worked within the period. The beginning and ending

2 of the work period may be changed: Provided, That the

3 change is intended to be permanent and is not designed

4 to evade the overtime compensation requirements of the

5 Act.

6 (b) An employer may have one work period applicable

7 to all employees, or different work periods for different

8 employees or groups of employees.

9 §S553.225 Early relief

10 It is a common practice among employees engaged

11 in fire protection activities to relieve employees on the pre12 vious shift prior to the scheduled starting time. Such early

13 relief time may occur pursuant to employee agreement, ei14 ther expressed or implied. This practice will not have the

15 effect of increasing the number of compensable hours of

16 work for employees employed under section 7(k) where it

17 is voluntary on the part of the employees and does not

18 result, over a period of time, in their failure to receive

19 proper compensation for all hours actually worked. On the

20 other hand, if the practice is required by the employer,

21 the time involved must be added to the employee’s tour

22 of duty and treated as compensable hours of work.

23 §S553.226 Training time

24 (a) The general rules for determining the compen25 sability of training time under the FLSA apply to employ-
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1 ees engaged in law enforcement or fire protection activi2 ties.

3 (b) While time spent in attending training required

4 by an employer is normally considered compensable hours

5 of work, following are situations where time spent by em6 ployees in required training is considered to be non7 compensable:

8 (1) Attendance outside of regular working

9 hours at specialized or follow-up training, which is

10 required by law for certification of public and private

11 sector employees within a particular governmental

12 jurisdiction (e.g., certification of public and private

13 emergency rescue workers), does not constitute com14 pensable hours of work for public employees within

15 that jurisdiction and subordinate jurisdictions.

16 (2) Attendance outside of regular working

17 hours at specialized or follow-up training, which is

18 required for certification of employees of a govern19 mental jurisdiction by law of a higher level of Gov20 ernment, does not constitute compensable hours of

21 work.

22 (3) Time spent in the training described in

23 paragraphs (b) (1) or (2) of this section is not com24 pensable, even if all or part of the costs of the train25 ing is borne by the employer.
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1 (c) Police officers or firefighters, who are in attend2 ance at a police or fire academy or other training facility,

3 are not considered to be on duty during those times when

4 they are not in class or at a training session, if they are

5 free to use such time for personal pursuits. Such free time

6 is not compensable.

7 §S553.227 Outside employment

8 (a) Section 7(p)(1) makes special provision for fire

9 protection and law enforcement employees of public agen10 cies who, at their own option, perform special duty work

11 in fire protection, law enforcement or related activities for

12 a separate and independent employer (public or private)

13 during their off-duty hours. The hours of work for the sep14 arate and independent employer are not combined with the

15 hours worked for the primary public agency employer for

16 purposes of overtime compensation.

17 (b) Section 7(p)(1) applies to such outside employ18 ment provided (1) the special detail work is performed

19 solely at the employee’s option, and (2) the two employers

20 are in fact separate and independent.

21 (c) Whether two employers are, in fact, separate and

22 independent can only be determined on a case-by-case

23 basis.

24 (d) The primary employer may facilitate the employ25 ment or affect the conditions of employment of such em-
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1 ployees. For example, a police department may maintain

2 a roster of officers who wish to perform such work. The

3 department may also select the officers for special details

4 from a list of those wishing to participate, negotiate their

5 pay, and retain a fee for administrative expenses. The de6 partment may require that the separate and independent

7 employer pay the fee for such services directly to the de8 partment, and establish procedures for the officers to re9 ceive their pay for the special details through the agency’s

10 payroll system. Finally, the department may require that

11 the officers observe their normal standards of conduct dur12 ing such details and take disciplinary action against those

13 who fail to do so.

14 (e) Section 7(p)(1) applies to special details even

15 where a State law or local ordinance requires that such

16 work be performed and that only law enforcement or fire

17 protection employees of a public agency in the same juris18 diction perform the work. For example, a city ordinance

19 may require the presence of city police officers at a con20 vention center during concerts or sports events. If the offi21 cers perform such work at their own option, the hours of

22 work need not be combined with the hours of work for

23 their primary employer in computing overtime compensa24 tion.
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1 (f) The principles in paragraphs (d) and (e) of this

2 section with respect to special details of public agency fire

3 protection and law enforcement employees under section

4 7(p)(1) are exceptions to the usual rules on joint employ5 ment set forth in part 791 of this title.

6 (g) Where an employee is directed by the public agen7 cy to perform work for a second employer, section 7(p)(1)

8 does not apply. Thus, assignments of police officers out9 side of their normal work hours to perform crowd control

10 at a parade, where the assignments are not solely at the

11 option of the officers, would not qualify as special details

12 subject to this exception. This would be true even if the

13 parade organizers reimburse the public agency for provid14 ing such services.

15 (h) Section 7(p)(1) does not prevent a public agency

16 from prohibiting or restricting outside employment by its

17 employees.

18 OVERTIME COMPENSATION RULES

19 §S553.230 Maximum hours standards for work peri20 ods of 7 to 28 days—section 7(k)

21 (a) For those employees engaged in fire protection

22 activities who have a work period of at least 7 but less

23 than 28 consecutive days, no overtime compensation is re24 quired under section 7(k) until the number of hours

25 worked exceeds the number of hours which bears the same
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1 relationship to 212 as the number of days in the work

2 period bears to 28.

3 (b) For those employees engaged in law enforcement

4 activities (including security personnel in correctional in5 stitutions) who have a work period of at least 7 but less

6 than 28 consecutive days, no overtime compensation is re7 quired under section 7(k) until the number of hours

8 worked exceeds the number of hours which bears the same

9 relationship to 171 as the number of days in the work

10 period bears to 28.

11 (c) The ratio of 212 hours to 28 days for employees

12 engaged in fire protection activities is 7.57 hours per day

13 (rounded) and the ratio of 171 hours to 28 days for em14 ployees engaged in law enforcement activities is 6.11 hours

15 per day (rounded). Accordingly, overtime compensation (in

16 premium pay or compensatory time) is required for all

17 hours worked in excess of the following maximum hours

18 standards (rounded to the nearest whole hour):

Work period (days)

Maximum hours standards

Fire protectionLaw 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
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Work period (days)

Maximum hours standards

Fire protectionLaw enforcement

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

1 §S553.231 Compensatory time off

2 (a) Law enforcement and fire protection employees

3 who are subject to the section 7(k) exemption may receive

4 compensatory time off in lieu of overtime pay for hours

5 worked in excess of the maximum for their work period

6 as set forth in section S553.230.

7 (b) Section 7(k) permits public agencies to balance

8 the hours of work over an entire work period for law en9 forcement and fire protection employees. For example, if

10 a firefighter’s work period is 28 consecutive days, and he

11 or she works 80 hours in each of the first two weeks, but

12 only 52 hours in the third week, and does not work in

13 the fourth week, no overtime compensation (in cash wages

14 or compensatory time) would be required since the total

15 hours worked do not exceed 212 for the work period. If

16 the same firefighter had a work period of only 14 days,

17 overtime compensation or compensatory time off would be
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1 due for 54 hours (160 minus 106 hours) in the first 14

2 day work period.

3 §S553.232 Overtime pay requirements

4 If a public agency pays employees subject to section

5 7(k) for overtime hours worked in cash wages rather than

6 compensatory time off, such wages must be paid at one

7 and one-half times the employees’ regular rates of pay.

8 §S553.233 ‘‘Regular rate’’ defined

9 The statutory rules for computing an employee’s

10 ‘‘regular rate’’, for purposes of the Act’s overtime pay re11 quirements are applicable to employees for whom the sec12 tion 7(k) exemption is claimed when overtime compensa13 tion is provided in cash wages.

14 SUBPART D—COMPENSATORY TIME-OFF FOR OVERTIME

15 EARNED BY EMPLOYEES WHOSE WORK SCHEDULE

16 DIRECTLY DEPENDS UPON THE SCHEDULE OF THE

17 SENATE

18 §S553.301 Definition of ‘‘directly depends’’

19 For the purposes of this Part, a covered employee’s

20 work schedule ‘‘directly depends’’ on the schedule of the

21 Senate only if the eligible employee performs work that

22 directly supports the conduct of legislative or other busi23 ness in the chamber and works hours that regularly

24 change in response to the schedule of the House and the

25 Senate.
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1 §S553.302 Overtime compensation and compen2 satory time off for an employee whose

3 work schedule directly depends upon the

4 schedule of the Senate

5 No employing office shall be deemed to have violated

6 section 203(a)(1) of the CAA, which applies the protec7 tions of section 7(a) of the Fair Labor Standards Act

8 (‘‘FLSA’’) to covered employees and employing office, by

9 employing any employee for a workweek in excess of the

10 maximum workweek applicable to such employee under

11 section 7(a) of the FLSA where the employee’s work

12 schedule directly depends on the schedule of the Senate

13 within the meaning of § S553.301, and: (a) the employee

14 is compensated at the rate of time-and-a-half in pay for

15 all hours in excess of 40 and up to 60 hours in a work16 week, and (b) the employee is compensated at the rate

17 of time-and-a-half in either pay or in time off for all hours

18 in excess of 60 hours in a workweek.

19 §S553.303 Using compensatory time off

20 An employee who has accrued compensatory time off

21 under § S553.302, upon his or her request, shall be per22 mitted by the employing office to use such time within

23 a reasonable period after making the request, unless the

24 employing office makes a bona fide determination that the

25 needs of the operations of the office do not allow the tak26 ing of compensatory time off at the time of the request.
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1 An employee may renew the request at a subsequent time.

2 An employing office may also, upon reasonable notice, re3 quire an employee to use accrued compensatory time-off.

4 §S553.304 Payment of overtime compensation for

5 accrued compensatory time off as of ter6 mination of service

7 An employee who has accrued compensatory time au8 thorized by this regulation shall, upon termination of em9 ployment, be paid for the unused compensatory time at

10 the rate earned by the employee at the time the employee

11 receives such payment.

12 PART S570—CHILD LABOR REGULATIONS

SUBPART A—GENERAL

Sec.

S570.00 Corresponding section table of the FLSA regulations of the Labor

Department and the CAA regulations of the Office of Compliance.

S570.1 Definitions.

S570.2 Minimum age standards.

SUBPART C—EMPLOYMENT OF MINORS BETWEEN 14 AND 16 YEARS OF

AGE (CHILD LABOR REG. 3)

S570.31 Determination.

S570.32 Effect of this subpart.

S570.33 Occupations.

S570.35 Periods and conditions of employment.
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1 SUBPART A—GENERAL

2 §S570.00 Corresponding section table of the FLSA

3 regulations of the Labor Department and

4 the CAA regulations of the Office of Com5 pliance.

6 The following table lists the sections of the Secretary

7 of Labor Regulations under the FLSA with the cor8 responding sections of the Office of Compliance Regula9 tions under section 202 of the CAA:

Secretary of Labor Regulations OC Regulations

570.1 Definitions ................................................................... S570.1

570.2 Minimum age standards .............................................. S570.2

570.31 Determinations .......................................................... S570.31

570.32 Effect of this subpart ................................................ S570.32

570.33 Occupations ................................................................ S570.33

570.35 Periods and conditions of employment ...................... S570.35

10 §S570.1 Definitions

11 As used in this part:

12 (a) Act means the Fair Labor Standards Act of 1938,

13 as amended (52 Stat. 1060, as amended; 29 U.S.C. 201–

14 219).

15 (b) Oppressive child labor means employment of a

16 minor in an occupation for which he does not meet the

17 minimum age standards of the Act, as set forth in section

18 S570.2 of this subpart.

19 (c) Oppressive child labor age means an age below

20 the minimum age established under the Act for the occu21 pation in which a minor is employed or in which his em22 ployment is contemplated.
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1 (d) [Reserved]

2 (e) [Reserved]

3 (f) Secretary or Secretary of Labor means the Sec4 retary of Labor, United States Department of Labor, or

5 his authorized representative.

6 (g) Wage and Hour Division means the Wage and

7 Hour Division, Employment Standards Administration,

8 United States Department of Labor.

9 (h) Administrator means the Administrator of the

10 Wage and Hour Division or his authorized representative.

11 §S570.2 Minimum age standards

12 (a) All occupations except in agriculture. (1) The Act,

13 in section 3(1), sets a general 16-year minimum age which

14 applies to all employment subject to its child labor provi15 sions in any occupation other than in agriculture, with the

16 following exceptions:

17 (i) The Act authorizes the Secretary of Labor

18 to provide by regulation or by order that the employ19 ment of employees between the ages of 14 and 16

20 years in occupations other than manufacturing and

21 mining shall not be deemed to constitute oppressive

22 child labor, if and to the extent that the Secretary

23 of Labor determines that such employment is con24 fined to periods which will not interfere with their

25 schooling and to conditions which will not interfere
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1 with their health and well-being (see subpart C of

2 this part); and

3 (ii) The Act sets an 18-year minimum age with

4 respect to employment in any occupation found and

5 declared by the Secretary of Labor to be particularly

6 hazardous for the employment of minors of such age

7 or detrimental to their health or well-being.

8 (2) The Act exempts from its minimum age require9 ments the employment by a parent of his own child, or

10 by a person standing in place of a parent of a child in

11 his custody, except in occupations to which the 18-year

12 age minimum applies and in manufacturing and mining

13 occupations.

14 SUBPART B—[RESERVED]

15 SUBPART C—EMPLOYMENT OF MINORS BETWEEN 14

16 AND 16 YEARS OF AGE (CHILD LABOR REG. 3)

17 §S570.31 Determination

18 The employment of minors between 14 and 16 years

19 of age in the occupations, for the periods, and under the

20 conditions hereafter specified does not interfere with their

21 schooling or with their health and well-being and shall not

22 be deemed to be oppressive child labor.

23 §S570.32 Effect of this subpart

24 In all occupations covered by this subpart the employ25 ment (including suffering or permitting to work) by an
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1 employer of minor employees between 14 and 16 years of

2 age for the periods and under the conditions specified in

3 § S570.35 shall not be deemed to be oppressive child labor

4 within the meaning of the Fair Labor Standards Act of

5 1938.

6 §S570.33 Occupations

7 This subpart shall apply to all occupations other than

8 the following:

9 (a) Manufacturing, mining, or processing occupa10 tions, including occupations requiring the performance of

11 any duties in work rooms or work places where goods are

12 manufactured, mined, or otherwise processed;

13 (b) Occupations which involve the operation or tend14 ing of hoisting apparatus or of any power-driven machin15 ery other than office machines;

16 (c) The operation of motor vehicles or service as help17 ers on such vehicles;

18 (d) Public messenger service;

19 (e) Occupations which the Secretary of Labor may,

20 pursuant to section 3(1) of the Fair Labor Standards Act

21 and Reorganization Plan No. 2, issued pursuant to the

22 Reorganization Act of 1945, find and declare to be haz23 ardous for the employment of minors between 16 and 18

24 years of age or detrimental to their health or well-being;

25 (f) Occupations in connection with:
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1 (1) Transportation of persons or property by

2 rail, highway, air, water, pipeline, or other means;

3 (2) Warehousing and storage;

4 (3) Communications and public utilities;

5 (4) Construction (including demolition and re6 pair); except such office (including ticket office)

7 work, or sales work, in connection with paragraphs

8 (f) (1), (2), (3), and (4) of this section, as does not

9 involve the performance of any duties on trains,

10 motor vehicles, aircraft, vessels, or other media of

11 transportation or at the actual site of construction

12 operations.

13 §S570.35 Periods and conditions of employment

14 (a) Except as provided in paragraph (b) of this sec15 tion, employment in any of the occupations to which this

16 subpart is applicable shall be confined to the following pe17 riods:

18 (1) Outside school hours;

19 (2) Not more than 40 hours in any 1 week

20 when school is not in session;

21 (3) Not more than 18 hours in any 1 week

22 when school is in session;

23 (4) Not more than 8 hours in any 1 day when

24 school is not in session;
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1 (5) Not more than 3 hours in any 1 day when

2 school is in session;

3 (6) Between 7 a.m. and 7 p.m. in any 1 day,

4 except during the summer (June 1 through Labor

5 Day) when the evening hour will be 9 p.m.

6 APPLICATION OF RIGHTS AND PROTECTIONS

7 OF THE EMPLOYEE POLYGRAPH PROTEC8 TION 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]
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Appendix A—Notice to Examinee

Authority: Pub. L. 104–1, 109 Stat. 3, 2 U.S.C. 1314(c)

1 SUBPART A—GENERAL

2 SEC. 1.1 PURPOSE AND SCOPE.

3 Enacted into law on January 23, 1995, the Congres4 sional Accountability Act (‘‘CAA’’) directly applies the

5 rights and protections of eleven Federal labor and employ6 ment law statutes to covered employees and employing of7 fices within the legislative branch. Section 204(a) of the

8 CAA, 2 U.S.C. § 1314(a) provides that no employing office

9 may require any covered employee (including a covered

10 employee who does not work in that employing office) to

11 take a lie detector test where such test would be prohibited

12 if required by an employer under paragraphs (1), (2) or

13 (3) of section 3 of the Employee Polygraph Protection Act

14 of 1988 (EPPA), 29 U.S.C. § 2002 (1), (2) or (3). The

15 purpose of this Part is to set forth the regulations to carry

16 out the provisions of section 204 of the CAA.

17 Subpart A contains the provisions generally applica18 ble to covered employers, including the requirements relat19 ing to the prohibitions on lie detector use. Subpart B sets

20 forth rules regarding the statutory exemptions from appli21 cation of section 204 of the CAA. Subpart C sets forth

22 the restrictions on polygraph usage under such exemp23 tions. Subpart D sets forth the rules on recordkeeping and

24 the disclosure of polygraph test information.
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1 SEC. 1.2 DEFINITIONS.

2 For purposes of this part:

3 (a) Act or CAA means the Congressional Account4 ability Act of 1995 (P.L. 104–1, 109 Stat. 3, 2 U.S.C.

5 §§ 1301–1438).

6 (b) EPPA means the Employee Polygraph Protection

7 Act of 1988 (Pub. L. 100–347, 102 Stat. 646, 29 U.S.C.

8 §§ 2001–2009) as applied to covered employees and em9 ploying offices by section 204 of the CAA.

10 (c) The term covered employee means any employee

11 of (1) the House of Representatives; (2) the Senate; (3)

12 the Capitol Guide Service; (4) the Congressional Budget

13 Office; (5) the Office of the Architect of the Capitol; (6)

14 the Office of the Attending Physician; (7) the Office of

15 Compliance; or (8) the Office of Technology Assessment.

16 (d) The term employee includes an applicant for em17 ployment and a former employee.

18 (e) The term employee of the Office of the Architect

19 of the Capitol includes any employee of the Office of the

20 Architect of the Capitol, the Botanic Gardens, or the Sen21 ate Restaurants.

22 (f) The term employee of the Capitol Police includes

23 any member or officer of the Capitol Police.

24 (g) The term employee of the House of Representa25 tives includes an individual occupying a position the pay

26 for which is disbursed by the Clerk of the House of Rep-
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1 resentatives, or another official designated by the House

2 of Representatives, or any employment position in an en3 tity that is paid with funds derived from the clerk-hire

4 allowance of the House of Representatives but not any

5 such individual employed by any entity listed in subpara6 graphs (3) through (8) of paragraph (c) above.

7 (h) The term employee of the Senate includes any

8 employee whose pay is disbursed by the Secretary of the

9 Senate, but not any such individual employed by any en10 tity listed in subparagraphs (3) through (8) of paragraph

11 (c) above.

12 (i) The term employing office means (1) the personal

13 office of a Member of the House of Representatives or of

14 a Senator; (2) a committee of the House of Representa15 tives or the Senate or a joint committee; (3) any other

16 office headed by a person with the final authority to ap17 point, hire, discharge, and set the terms, conditions, or

18 privileges of the employment of an employee of the House

19 of Representatives or the Senate; or (4) the Capitol Guide

20 Board, the Congressional Budget Office, the Office of the

21 Architect of the Capitol, the Office of the Attending Physi22 cian, the Office of Compliance, and the Office of Tech23 nology Assessment. The term employing office includes

24 any person acting directly or indirectly in the interest of

25 an employing office in relation to an employee or prospec-
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1 tive employee. A polygraph examiner either employed for

2 or whose services are retained for the sole purpose of ad3 ministering polygraph tests ordinarily would not be

4 deemed an employing office with respect to the examinees.

5 Any reference to ‘‘employer’’ in these regulations includes

6 employing offices.

7 (j)(1) The term lie detector means a polygraph,

8 deceptograph, voice stress analyzer, psychological stress

9 evaluator, or any other similar device (whether mechanical

10 or electrical) that is used, or the results of which are used,

11 for the purpose of rendering a diagnostic opinion regard12 ing the honesty or dishonesty of an individual. Voice stress

13 analyzers, or psychological stress evaluators, include any

14 systems that utilize voice stress analysis, whether or not

15 an opinion on honesty or dishonesty is specifically ren16 dered.

17 (2) The term lie detector does not include medical

18 tests used to determine the presence or absence of con19 trolled substances or alcohol in bodily fluids. Also not in20 cluded in the definition of lie detector are written or oral

21 tests commonly referred to as ‘‘honesty’’ or ‘‘paper and

22 pencil’’ tests, machine-scored or otherwise; and graphology

23 tests commonly referred to as handwriting tests.

24 (k) The term polygraph means an instrument that—
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1 (1) records continuously, visually, permanently,

2 and simultaneously changes in cardiovascular, res3 piratory, and electrodermal patterns as minimum in4 strumentation standards; and

5 (2) is used, or the results of which are used, for

6 the purpose of rendering a diagnostic opinion re7 garding the honesty or dishonesty of an individual.

8 (l) Board means the Board of Directors of the Office

9 of Compliance.

10 (m) Office means the Office of Compliance.

11 SEC. 1.3 COVERAGE.

12 The coverage of section 204 of the Act extends to

13 any ‘‘covered employee’’ or ‘‘covered employing office’’

14 without regard to the number of employees or the employ15 ing office’s effect on interstate commerce.

16 SEC. 1.4 PROHIBITIONS ON LIE DETECTOR USE.

17 (a) Section 204 of the CAA provides that, subject to

18 the exemptions of the EPPA incorporated into the CAA

19 under section 225(f) of the CAA, as set forth in section

20 1.10 through 1.12 of this Part, employing offices are pro21 hibited from:

22 (1) Requiring, requesting, suggesting or caus23 ing, directly or indirectly, any covered employee or

24 prospective employee to take or submit to a lie de25 tector test;
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1 (2) Using, accepting, or inquiring about the re2 sults of a lie detector test of any covered employee

3 or prospective employee; and

4 (3) Discharging, disciplining, discriminating

5 against, denying employment or promotion, or

6 threatening any covered employee or prospective em7 ployee to take such action for refusal or failure to

8 take or submit to such test, or on the basis of the

9 results of a test.

10 The above prohibitions apply irrespective of whether

11 the covered employee referred to in paragraphs (1), (2)

12 or (3), above, works in that employing office.

13 (b) An employing office that reports a theft or other

14 incident involving economic loss to police or other law en15 forcement authorities is not engaged in conduct subject

16 to the prohibitions under paragraph (a) of this section if,

17 during the normal course of a subsequent investigation,

18 such authorities deem it necessary to administer a poly19 graph test to a covered employee(s) suspected of involve20 ment in the reported incident. Employing offices that co21 operate with police authorities during the course of their

22 investigations into criminal misconduct are likewise not

23 deemed engaged in prohibitive conduct: Provided, That

24 such cooperation is passive in nature. For example, it is

25 not uncommon for police authorities to request employees
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1 suspected of theft or criminal activity to submit to a poly2 graph test during the employee’s tour of duty since, as

3 a general rule, suspect employees are often difficult to lo4 cate away from their place of employment. Allowing a test

5 on the employing office’s premises, releasing a covered em6 ployee during working hours to take a test at police head7 quarters, and other similar types of cooperation at the re8 quest of the police authorities would not be construed as

9 ‘‘requiring, requesting, suggesting, or causing, directly or

10 indirectly, any covered employee * * * to take or submit

11 to a lie detector test’’. Cooperation of this type must be

12 distinguished from actual participation in the testing of

13 employees suspected of wrongdoing, either through the ad14 ministration of a test by the employing office at the re15 quest or direction of police authorities, or through reim16 bursement by the employing office of tests administered

17 by police authorities to employees. In some communities,

18 it may be a practice of police authorities to request testing

19 by employing offices of employees before a police investiga20 tion is initiated on a reported incident. In other commu21 nities, police examiners are available to covered employing

22 offices, on a cost reimbursement basis, to conduct tests

23 on employees suspected by an employing office of wrong24 doing. All such conduct on the part of employing offices
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1 is deemed within the prohibitions of section 204 of the

2 CAA.

3 (c) The receipt by an employing office of information

4 from a polygraph test administered by police authorities

5 pursuant to an investigation is prohibited by section 3(2)

6 of the EPPA. (See paragraph (a)(2) of this section.)

7 (d) The simulated use of a polygraph instrument so

8 as to lead an individual to believe that an actual test is

9 being or may be performed (e.g., to elicit confessions or

10 admissions of guilt) constitutes conduct prohibited by

11 paragraph (a) of this section. Such use includes the con12 nection of a covered employee or prospective employee to

13 the instrument without any intention of a diagnostic pur14 pose, the placement of the instrument in a room used for

15 interrogation unconnected to the covered employee or pro16 spective employee, or the mere suggestion that the instru17 ment may be used during the course of the interview.

18 (e) The Capitol Police may not require a covered em19 ployee not employed by the Capitol Police to take a lie

20 detector test (on its own initiative or at the request of

21 another employing office) except where the Capitol Police

22 administers such lie detector test as part of an ‘‘ongoing

23 investigation’’ by the Capitol Police. For the purpose of

24 this subsection, the definition of ‘‘ongoing investigation’’

25 contained in section 1.12(b) shall apply.
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1 SEC. 1.5 EFFECT ON OTHER LAWS OR AGREEMENTS.

2 (a) Section 204 of the CAA does not preempt any

3 otherwise applicable provision of Federal law or any rule

4 or regulation of the House or Senate or any negotiated

5 collective bargaining agreement that prohibits lie detector

6 tests or is more restrictive with respect to the use of lie

7 detector tests.

8 (b)(1) This provision applies to all aspects of the use

9 of lie detector tests, including procedural safeguards, the

10 use of test results, the rights and remedies provided

11 examinees, and the rights, remedies, and responsibilities

12 of examiners and employing offices.

13 (2) For example, a collective bargaining agreement

14 that provides greater protection to an examinee would

15 apply in addition to the protection provided in section 204

16 of the CAA.

17 SEC. 1.6 NOTICE OF PROTECTION.

18 Pursuant to section 301(h) of the CAA, the Office

19 shall prepare, in a manner suitable for posting, a notice

20 explaining the provisions of section 204 of the CAA. Cop21 ies of such notice may be obtained from the Office of Com22 pliance.

23 SEC. 1.7 AUTHORITY OF THE BOARD.

24 Pursuant to sections 204 and 304 of the CAA, the

25 Board is authorized to issue regulations to implement the

26 rights and protections of the EPPA. Section 204(c) directs
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1 the Board to promulgate regulations implementing section

2 204 that are ‘‘the same as substantive regulations promul3 gated by the Secretary of Labor to implement the statu4 tory provisions referred to in subsections (a) and (b) [of

5 section 204 of the CAA] except insofar as the Board may

6 determine, for good cause shown . . . that a modification

7 of such regulations would be more effective for the imple8 mentation of the rights and protections under this sec9 tion’’. The regulations issued by the Board herein are on

10 all matters for which section 204 of the CAA requires a

11 regulation to be issued. Specifically, it is the Board’s con12 sidered judgment, based on the information available to

13 it at the time of promulgation of these regulations, that,

14 with the exception of the regulations adopted and set forth

15 herein, there are no other ‘‘substantive regulations pro16 mulgated by the Secretary of Labor to implement the stat17 utory provisions referred to in subsections (a) and (b) [of

18 section 204 of the CAA]’’.

19 In promulgating these regulations, the Board has

20 made certain technical and nomenclature changes to the

21 regulations as promulgated by the Secretary. Such

22 changes are intended to make the provisions adopted ac23 cord more naturally to situations in the legislative branch.

24 However, by making these changes, the Board does not

25 intend a substantive difference between these regulations
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1 and those of the Secretary from which they are derived.

2 Moreover such changes, in and of themselves, are not in3 tended to constitute an interpretation of the regulation or

4 of the statutory provisions of the CAA upon which they

5 are based.

6 SEC. 1.8 EMPLOYMENT RELATIONSHIP.

7 Subject to the exemptions incorporated into the CAA

8 by section 225(f), section 204 applies the prohibitions on

9 the use of lie detectors by employing offices with respect

10 to covered employees irrespective of whether a covered em11 ployee works in that employing office. Sections 101 (3),

12 (4) and 204 of the CAA also apply EPPA prohibitions

13 against discrimination to applicants for employment and

14 former employees of a covered employing office. For exam15 ple, an employee may quit rather than take a lie detector

16 test. The employing office cannot discriminate or threaten

17 to discriminate in any manner against that person (such

18 as by providing bad references in the future) because of

19 that person’s refusal to be tested. Similarly, an employing

20 office cannot discriminate or threaten to discriminate in

21 any manner against that person because that person files

22 a complaint, institutes a proceeding, testifies in a proceed23 ing, or exercises any right under section 204 of the CAA.

24 (See section 207 of the CAA.)
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1 SUBPART B—EXEMPTIONS

2 SEC. 1.10 EXCLUSION FOR EMPLOYEES OF THE CAPITOL

3 POLICE [RESERVED].

4 SEC. 1.11 EXEMPTION FOR NATIONAL DEFENSE AND SE5 CURITY.

6 (a) The exemptions allowing for the administration

7 of lie detector tests in the following paragraphs (b)

8 through (e) of this section apply only to the Federal Gov9 ernment; they do not allow covered employing offices to

10 administer such tests. For the purposes of this section,

11 the term ‘‘Federal Government’’ means any agency or en12 tity within the Federal Government authorized to admin13 ister polygraph examinations which is otherwise exempt

14 from coverage under section 7(a) of the EPPA, 29 U.S.C.

15 § 2006(a).

16 (b) Section 7(b)(1) of the EPPA, incorporated into

17 the CAA under section 225(f) of the CAA, provides that

18 nothing in the EPPA shall be construed to prohibit the

19 administration of any lie detector test by the Federal Gov20 ernment, in the performance of any counterintelligence

21 function, to any expert, consultant or employee of any con22 tractor under contract with the Department of Defense;

23 or with the Department of Energy, in connection with the

24 atomic energy defense activities of such Department.
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1 (c) Section 7(b)(2)(A) of the EPPA, incorporated

2 into the CAA under section 225(f) of the CAA, provides

3 that nothing in the EPPA shall be construed to prohibit

4 the administration of any lie detector test by the Federal

5 Government, in the performance of any intelligence or

6 counterintelligence function of the National Security

7 Agency, the Defense Intelligence Agency, or the Central

8 Intelligence Agency, to any individual employed by, as9 signed to, or detailed to any such agency; or any expert

10 or consultant under contract to any such agency; or any

11 employee of a contractor to such agency; or any individual

12 applying for a position in any such agency; or any individ13 ual assigned to a space where sensitive cryptologic infor14 mation is produced, processed, or stored for any such

15 agency.

16 (d) Section 7(b)(2)(B) of the EPPA, incorporated

17 into the CAA under section 225(f) of the CAA, provides

18 that nothing in the EPPA shall be construed to prohibit

19 the administration of any lie detector test by the Federal

20 Government, in the performance of any intelligence or

21 counterintelligence function, to any covered employee

22 whose duties involve access to information that has been

23 classified at the level of top secret or designated as being

24 within a special access program under section 4.2 (a) of

25 Executive Order 12356 (or a successor Executive order).
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1 (c) Counterintelligence for purposes of the above

2 paragraphs means information gathered and activities

3 conducted to protect against espionage and other clandes4 tine intelligence activities, sabotage, terrorist activities, or

5 assassinations conducted for or on behalf of foreign gov6 ernments, or foreign or domestic organizations or persons.

7 (d) Lie detector tests of persons described in the

8 above paragraphs will be administered in accordance with

9 applicable Department of Defense directives and regula10 tions, or other regulations and directives governing the use

11 of such tests by the United States Government, as applica12 ble.

13 SEC. 1.12 EXEMPTION FOR EMPLOYING OFFICES CON14 DUCTING INVESTIGATIONS OF ECONOMIC

15 LOSS OR INJURY.

16 (a) Section 7(d) of the EPPA, incorporated into the

17 CAA under section 225(f) of the CAA, provides a limited

18 exemption from the general prohibition on lie detector use

19 for employers conducting ongoing investigations of eco20 nomic loss or injury to the employer’s business. An em21 ploying office may request an employee, subject to the con22 ditions set forth in sections 8 and 10 of the EPPA and

23 sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26 and 1.35 of this

24 part, to submit to a polygraph test, but no other type of

25 lie detector test, only if—
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1 (1) The test is administered in connection with

2 an ongoing investigation involving economic loss or

3 injury to the employing office’s operations, such as

4 theft, embezzlement, misappropriation or an act of

5 unlawful industrial espionage or sabotage;

6 (2) The employee had access to the property

7 that is the subject of the investigation;

8 (3) The employing office has a reasonable sus9 picion that the employee was involved in the incident

10 or activity under investigation;

11 (4) The employing office provides the examinee

12 with a statement, in a language understood by the

13 examinee, prior to the test which fully explains with

14 particularity the specific incident or activity being

15 investigated and the basis for testing particular em16 ployees and which contains, at a minimum:

17 (i) An identification with particularity of

18 the specific economic loss or injury to the oper19 ations of the employing office;

20 (ii) A description of the employee’s access

21 to the property that is the subject of the inves22 tigation;

23 (iii) A description in detail of the basis of

24 the employing office’s reasonable suspicion that
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1 the employee was involved in the incident or ac2 tivity under investigation; and

3 (iv) Signature of a person (other than a

4 polygraph examiner) authorized to legally bind

5 the employing office; and

6 (5) The employing office retains a copy of the

7 statement and proof of service described in para8 graph (a)(4) of this section for at least 3 years.

9 (b) For the exemption to apply, the condition of an

10 ‘‘ongoing investigation’’ must be met. As used in section

11 7(d) of the EPPA, the ongoing investigation must be of

12 a specific incident or activity. Thus, for example, an em13 ploying office may not request that an employee or em14 ployees submit to a polygraph test in an effort to deter15 mine whether or not any thefts have occurred. Such ran16 dom testing by an employing office is precluded by the

17 EPPA. Further, because the exemption is limited to a spe18 cific incident or activity, an employing office is precluded

19 from using the exemption in situations where the so-called

20 ‘‘ongoing investigation’’ is continuous. For example, the

21 fact that items are frequently missing would not be a suffi22 cient basis, standing alone, for administering a polygraph

23 test. Even if the employing office can establish that unusu24 ally high amounts of property are missing in a given

25 month, this, in and of itself, would not be a sufficient basis
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1 to meet the specific incident requirement. On the other

2 hand, polygraph testing in response to missing property

3 would be permitted where additional evidence is obtained

4 through subsequent investigation of specific items missing

5 through intentional wrongdoing, and a reasonable sus6 picion that the employee to be polygraphed was involved

7 in the incident under investigation. Administering a poly8 graph test in circumstances where the missing property

9 is merely unspecified, statistical shortages, without identi10 fication of a specific incident or activity that produced the

11 missing property and a ‘‘reasonable suspicion that the em12 ployee was involved’’, would amount to little more than

13 a fishing expedition and is prohibited by the EPPA as ap14 plied to covered employees and employing offices by the

15 CAA.

16 (c)(1)(i) The terms economic loss or injury to the em17 ploying office’s operations include both direct and indirect

18 economic loss or injury.

19 (ii) Direct loss or injury includes losses or injuries

20 resulting from theft, embezzlement, misappropriation, es21 pionage or sabotage. These examples, cited in the EPPA,

22 are intended to be illustrative and not exhaustive. Another

23 specific incident which would constitute direct economic

24 loss or injury is the misappropriation of confidential or

25 trade secret information.
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1 (iii) Indirect loss or injury includes the use of an em2 ploying office’s operations to commit a crime, such as

3 check-kiting or money laundering. In such cases, the ongo4 ing investigation must be limited to criminal activity that

5 has already occurred, and to use of the employing office’s

6 operations (and not simply the use of the premises) for

7 such activity. For example, the use of an employing of8 fice’s vehicles, warehouses, computers or equipment to

9 smuggle or facilitate the importing of illegal substances

10 constitutes an indirect loss or injury to the employing of11 fice’s business operations. Conversely, the mere fact that

12 an illegal act occurs on the employing office’s premises

13 (such as a drug transaction that takes place in the employ14 ing office’s parking lot or rest room) does not constitute

15 an indirect economic loss or injury to the employing office.

16 (iv) Indirect loss or injury also includes theft or in17 jury to property of another for which the employing office

18 exercises fiduciary, managerial or security responsibility,

19 or where the office has custody of the property (but not

20 property of other offices to which the employees have ac21 cess by virtue of the employment relationship). For exam22 ple, if a maintenance employee of the manager of an

23 apartment building steals jewelry from a tenant’s apart24 ment, the theft results in an indirect economic loss or in25 jury to the employer because of the manager’s manage-
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1 ment responsibility with respect to the tenant’s apartment.

2 A messenger on a delivery of confidential business reports

3 for a client firm who steals the reports causes an indirect

4 economic loss or injury to the messenger service because

5 the messenger service is custodian of the client firm’s re6 ports, and therefore is responsible for their security. Simi7 larly, the theft of property protected by a security service

8 employer is considered an economic loss or injury to that

9 employer.

10 (v) A theft or injury to a client firm does not con11 stitute an indirect loss or injury to an employing office

12 unless that employing office has custody of, or manage13 ment, or security responsibility for, the property of the

14 client that was lost or stolen or injured. For example, a

15 cleaning contractor has no responsibility for the money at

16 a client bank. If money is stolen from the bank by one

17 of the cleaning contractor’s employees, the cleaning con18 tractor does not suffer an indirect loss or injury.

19 (vi) Indirect loss or injury does not include loss or

20 injury which is merely threatened or potential, e.g., a

21 threatened or potential loss of an advantageous business

22 relationship.

23 (2) Economic losses or injuries which are the result

24 of unintentional or lawful conduct would not serve as a

25 basis for the administration of a polygraph test. Thus, ap-
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1 parently unintentional losses or injuries stemming from

2 truck, car, workplace, or other similar type accidents or

3 routine inventory or cash register shortages would not

4 meet the economic loss or injury requirement. Any eco5 nomic loss incident to lawful union or employee activity

6 also would not satisfy this requirement.

7 (3) It is the operations of the employing office which

8 must suffer the economic loss or injury. Thus, a theft com9 mitted by one employee against another employee of the

10 same employing office would not satisfy the requirement.

11 (d) While nothing in the EPPA as applied by the

12 CAA prohibits the use of medical tests to determine the

13 presence of controlled substances or alcohol in bodily

14 fluids, the section 7(d) exemption of the EPPA does not

15 permit the use of a polygraph test to learn whether an

16 employee has used drugs or alcohol, even where such pos17 sible use may have contributed to an economic loss to the

18 employing office (e.g., an accident involving an employing

19 office’s vehicle).

20 (e) Section 7(d)(2) of the EPPA provides that, as a

21 condition for the use of the exemption, the employee must

22 have had access to the property that is the subject of the

23 investigation.

24 (1) The word access, as used in section 7(d)(2),

25 refers to the opportunity which an employee had to
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1 cause, or to aid or abet in causing, the specific eco2 nomic loss or injury under investigation. The term

3 ‘‘access’’, thus, includes more than direct or physical

4 contact during the course of employment. For exam5 ple, as a general matter, all employees working in or

6 with authority to enter a property storage area have

7 ‘‘access’’ to unsecured property in the area. All em8 ployees with the combination to a safe have ‘‘access’’

9 to the property in a locked safe. Employees also

10 have ‘‘access’’ who have the ability to divert posses11 sion or otherwise affect the disposition of the prop12 erty that is the subject of investigation. For exam13 ple, a bookkeeper in a jewelry store with access to

14 inventory records may aid or abet a clerk who steals

15 an expensive watch by removing the watch from the

16 employing office’s inventory records. In such a situa17 tion, it is clear that the bookkeeper effectively has

18 ‘‘access’’ to the property that is the subject of the

19 investigation.

20 (2) As used in section 7(d)(2), property refers

21 to specifically identifiable property, but also includes

22 such things of value as security codes and computer

23 data, and proprietary, financial or technical informa24 tion, such as trade secrets, which by its availability
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1 to competitors or others would cause economic harm

2 to the employing office.

3 (f)(1) As used in section 7(d)(3), the term reasonable

4 suspicion refers to an observable, articulable basis in fact

5 which indicates that a particular employee was involved

6 in, or responsible for, an economic loss. Access in the sense

7 of possible or potential opportunity, standing alone, does

8 not constitute a basis for ‘‘reasonable suspicion’’. Informa9 tion from a co-worker, or an employee’s behavior, de10 meanor, or conduct may be factors in the basis for reason11 able suspicion. Likewise, inconsistencies between facts,

12 claims, or statements that surface during an investigation

13 can serve as a sufficient basis for reasonable suspicion.

14 While access or opportunity, standing alone, does not con15 stitute a basis for reasonable suspicion, the totality of cir16 cumstances surrounding the access or opportunity (such

17 as its unauthorized or unusual nature or the fact that ac18 cess was limited to a single individual) may constitute a

19 factor in determining whether there is a reasonable sus20 picion.

21 (2) For example, in an investigation of a theft of an

22 expensive piece of jewelry, an employee authorized to open

23 the establishment’s safe no earlier than 9 a.m., in order

24 to place the jewelry in a window display case, is observed

25 opening the safe at 7:30 a.m. In such a situation, the
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1 opening of the safe by the employee one and one-half

2 hours prior to the specified time may serve as the basis

3 for reasonable suspicion. On the other hand, in the exam4 ple given, if the employee is asked to bring the piece of

5 jewelry to his or her office at 7:30 a.m., and the employee

6 then opened the safe and reported the jewelry missing,

7 such access, standing alone, would not constitute a basis

8 for reasonable suspicion that the employee was involved

9 in the incident unless access to the safe was limited solely

10 to the employee. If no one other than the employee pos11 sessed the combination to the safe, and all other possible

12 explanations for the loss are ruled out, such as a break13 in, a basis for reasonable suspicion may be formulated

14 based on sole access by one employee.

15 (3) The employing office has the burden of establish16 ing that the specific individual or individuals to be tested

17 are ‘‘reasonably suspected’’ of involvement in the specific

18 economic loss or injury for the requirement in section

19 7(d)(3) of the EPPA to be met.

20 (g)(1) As discussed in paragraph (a)(4) of this sec21 tion, section 7(d)(4) of the EPPA sets forth what informa22 tion, at a minimum, must be provided to an employee if

23 the employing office wishes to claim the exemption.

24 (2) The statement required under paragraph (a)(4)

25 of this section must be received by the employee at least
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1 48 hours, excluding weekend days and holidays, prior to

2 the time of the examination. The statement must set forth

3 the time and date of receipt by the employee and be veri4 fied by the employee’s signature. This will provide the em5 ployee with adequate pre-test notice of the specific inci6 dent or activity being investigated and afford the employee

7 sufficient time prior to the test to obtain and consult with

8 legal counsel or an employee representative.

9 (3) The statement to be provided to the employee

10 must set forth with particularity the specific incident or

11 activity being investigated and the basis for testing par12 ticular employees. Section 7(d)(4)(A) of the EPPA re13 quires specificity beyond the mere assertion of general

14 statements regarding economic loss, employee access, and

15 reasonable suspicion. For example, an employing office’s

16 assertion that an expensive watch was stolen, and that the

17 employee had access to the watch and is therefore a sus18 pect, would not meet the ‘‘with particularity’’ criterion. If

19 the basis for an employing office’s requesting an employee

20 (or employees) to take a polygraph test is not articulated

21 with particularity, and reduced to writing, then the stand22 ard is not met. The identity of a co-worker or other indi23 vidual providing information used to establish reasonable

24 suspicion need not be revealed in the statement.
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1 (4) It is further required that the statement provided

2 to the examinee be signed by the employing office, or an

3 employee or other representative of the employing office

4 with authority to legally bind the employing office. The

5 person signing the statement must not be a polygraph ex6 aminer unless the examiner is acting solely in the capacity

7 of an employing office with respect to his or her own em8 ployees and does not conduct the examination. The stand9 ard would not be met, and the exemption would not apply

10 if the person signing the statement is not authorized to

11 legally bind the employing office.

12 (h) Polygraph tests administered pursuant to this ex13 emption are subject to the limitations set forth in sections

14 8 and 10 of the EPPA, as discussed in sections 1.20, 1.22,

15 1.23, 1.24, 1.25, 1.26, and 1.35 of this part. As provided

16 in these sections, the exemption will apply only if certain

17 requirements are met. Failure to satisfy any of the speci18 fied requirements nullifies the statutory authority for poly19 graph test administration and may subject the employing

20 office to remedial actions, as provided for in section 6(c)

21 of the EPPA.
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1 SEC. 1.13 EXEMPTION OF EMPLOYING OFFICES AUTHOR2 IZED TO MANUFACTURE, DISTRIBUTE, OR

3 DISPENSE CONTROLLED SUBSTANCES.

4 (a) Section 7(f) of the EPPA, incorporated into the

5 CAA by section 225(f) of the CAA, provides an exemption

6 from the EPPA’s general prohibition regarding the use

7 of polygraph tests for employers authorized to manufac8 ture, distribute, or dispense a controlled substance listed

9 in schedule I, II, III, or IV of section 202 of the Controlled

10 Substances Act (21 U.S.C. § 812). This exemption permits

11 the administration of polygraph tests, subject to the condi12 tions set forth in sections 8 and 10 of the EPPA and sec13 tions 1.21, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 of this

14 part, to:

15 (1) A prospective employee who would have di16 rect access to the manufacture, storage, distribution,

17 or sale of any such controlled substance; or

18 (2) A current employee if the following condi19 tions are met:

20 (i) The test is administered in connection

21 with an ongoing investigation of criminal or

22 other misconduct involving, or potentially in23 volving, loss or injury to the manufacture, dis24 tribution, or dispensing of any such controlled

25 substance by such employing office; and
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1 (ii) The employee had access to the person

2 or property that is the subject of the investiga3 tion.

4 (b)(1) The terms manufacture, distribute, distribu5 tion, dispense, storage, and sale, for the purposes of this

6 exemption, are construed within the meaning of the Con7 trolled Substances Act (21 U.S.C. § 812 et seq.), as ad8 ministered by the Drug Enforcement Administration

9 (DEA), United States Department of Justice.

10 (2) The exemption in section 7(f) of the EPPA ap11 plies only to employing offices that are authorized by DEA

12 to manufacture, distribute, or dispense a controlled sub13 stance. Section 202 of the Controlled Substances Act (21

14 U.S.C. § 812) requires every person who manufactures,

15 distributes, or dispenses any controlled substance to reg16 ister with the Attorney General (i.e., with DEA). Common

17 or contract carriers and warehouses whose possession of

18 the controlled substance is in the usual course of their

19 business or employment are not required to register.

20 Truck drivers and warehouse employees of the persons or

21 entities registered with DEA and authorized to manufac22 ture, distribute, or dispense controlled substances, are

23 within the scope of the exemption where they have direct

24 access or access to the controlled substances, as discussed

25 below.
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1 (c) In order for a polygraph examination to be per2 formed, section 7(f) of the Act requires that a prospective

3 employee have ‘‘direct access’’ to the controlled

4 substance(s) manufactured, dispensed, or distributed by

5 the employing office. Where a current employee is to be

6 tested as a part of an ongoing investigation, section 7(f)

7 requires that the employee have ‘‘access’’ to the person

8 or property that is the subject of the investigation.

9 (1) A prospective employee would have ‘‘direct

10 access’’ if the position being applied for has respon11 sibilities which include contact with or which affect

12 the disposition of a controlled substance, including

13 participation in the process of obtaining, dispensing,

14 or otherwise distributing a controlled substance.

15 This includes contact or direct involvement in the

16 manufacture, storage, testing, distribution, sale or

17 dispensing of a controlled substance and may in18 clude, for example, packaging, repackaging, order19 ing, licensing, shipping, receiving, taking inventory,

20 providing security, prescribing, and handling of a

21 controlled substance. A prospective employee would

22 have ‘‘direct access’’ if the described job duties

23 would give such person access to the products in

24 question, whether such employee would be in phys25 ical proximity to controlled substances or engaged in
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1 activity which would permit the employee to divert

2 such substances to his or her possession.

3 (2) A current employee would have ‘‘access’’

4 within the meaning of section 7(f) if the employee

5 had access to the specific person or property which

6 is the subject of the on-going investigation, as dis7 cussed in section 1.12(e) of this part. Thus, to test

8 a current employee, the employee need not have had

9 ‘‘direct’’ access to the controlled substance, but may

10 have had only infrequent, random, or opportunistic

11 access. Such access would be sufficient to test the

12 employee if the employee could have caused, or could

13 have aided or abetted in causing, the loss of the spe14 cific property which is the subject of the investiga15 tion. For example, a maintenance worker in a drug

16 warehouse, whose job duties include the cleaning of

17 areas where the controlled substances which are the

18 subject of the investigation were present, but whose

19 job duties do not include the handling of controlled

20 substances, would be deemed to have ‘‘access’’, but

21 normally not ‘‘direct access’’, to the controlled sub22 stances. On the other hand, a drug warehouse truck

23 loader, whose job duties include the handling of out24 going shipment orders which contain controlled sub25 stances, would have ‘‘direct access’’ to such con-
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1 trolled substances. A pharmacy department in a su2 permarket is another common situation which is use3 ful in illustrating the distinction between ‘‘direct ac4 cess’’ and ‘‘access’’. Store personnel receiving phar5 maceutical orders, i.e., the pharmacist, pharmacy in6 tern, and other such employees working in the phar7 macy department, would ordinarily have ‘‘direct ac8 cess’’ to controlled substances. Other store personnel

9 whose job duties and responsibilities do not include

10 the handling of controlled substances but who had

11 occasion to enter the pharmacy department where

12 the controlled substances which are the subject of

13 the investigation were stored, such as maintenance

14 personnel or pharmacy cashiers, would have ‘‘ac15 cess’’. Certain other store personnel whose job duties

16 do not permit or require entrance into the pharmacy

17 department for any reason, such as produce or meat

18 clerks, checkout cashiers, or baggers, would not ordi19 narily have ‘‘access’’. However, any current em20 ployee, regardless of described job duties, may be

21 polygraphed if the employing office’s investigation of

22 criminal or other misconduct discloses that such em23 ployee in fact took action to obtain ‘‘access’’ to the

24 person or property that is the subject of the inves25 tigation—e.g., by actually entering the drug storage
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1 area in violation of company rules. In the case of

2 ‘‘direct access’’, the prospective employee’s access to

3 controlled substances would be as a part of the man4 ufacturing, dispensing or distribution process, while

5 a current employee’s ‘‘access’’ to the controlled sub6 stances which are the subject of the investigation

7 need only be opportunistic.

8 (d) The term prospective employee, for the purposes

9 of this section, includes a current employee who presently

10 holds a position which does not entail direct access to con11 trolled substances, and therefore is outside the scope of

12 the exemption’s provisions for preemployment polygraph

13 testing, provided the employee has applied for and is being

14 considered for transfer or promotion to another position

15 which entails such direct access. For example, an office

16 secretary may apply for promotion to a position in the

17 vault or cage areas of a drug warehouse, where controlled

18 substances are kept. In such a situation, the current em19 ployee would be deemed a ‘‘prospective employee’’ for the

20 purposes of this exemption, and thus could be subject to

21 preemployment polygraph screening, prior to such a

22 change in position. However, any adverse action which is

23 based in part on a polygraph test against a current em24 ployee who is considered a ‘‘prospective employee’’ for pur25 poses of this section may be taken only with respect to
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1 the prospective position and may not affect the employee’s

2 employment in the current position.

3 (e) Section 7(f) of the EPPA, as applied by the CAA,

4 makes no specific reference to a requirement that employ5 ing offices provide current employees with a written state6 ment prior to polygraph testing. Thus, employing offices

7 to whom this exemption is available are not required to

8 furnish a written statement such as that specified in sec9 tion 7(d) of the EPPA and section 1.12(a)(4) of this part.

10 (f) For the section 7(f) exemption to apply, the poly11 graph testing of current employees must be administered

12 in connection with an ongoing investigation of criminal or

13 other misconduct involving, or potentially involving, loss

14 or injury to the manufacture, distribution, or dispensing

15 of any such controlled substance by such employing office.

16 (1) Current employees may only be adminis17 tered polygraph tests in connection with an ongoing

18 investigation of criminal or other misconduct, relat19 ing to a specific incident or activity, or potential in20 cident or activity. Thus, an employing office is pre21 cluded from using the exemption in connection with

22 continuing investigations or on a random basis to

23 determine if thefts are occurring. However, unlike

24 the exemption in section 7(d) of the EPPA for em25 ploying offices conducting ongoing investigations of
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1 economic loss or injury, the section 7(f) exemption

2 includes ongoing investigations of misconduct involv3 ing potential drug losses. Nor does the latter exemp4 tion include the requirement for ‘‘reasonable sus5 picion’’ contained in the section 7(d) exemption.

6 Thus, a drug store operator is permitted to poly7 graph all current employees who have access to a

8 controlled substance stolen from the inventory, or

9 where there is evidence that such a theft is planned.

10 Polygraph testing based on an inventory shortage of

11 the drug during a particular accounting period

12 would not be permitted unless there is extrinsic evi13 dence of misconduct.

14 (2) In addition, the test must be administered

15 in connection with loss or injury, or potential loss or

16 injury, to the manufacture, distribution, or dispens17 ing of a controlled substance.

18 (i) Retail drugstores and wholesale drug

19 warehouses typically carry inventory of so-called

20 health and beauty aids, cosmetics, over-the21 counter drugs, and a variety of other similar

22 products, in addition to their product lines of

23 controlled drugs. The noncontrolled products

24 usually constitute the majority of such firms’

25 sales volumes. An economic loss or injury relat-
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1 ed to such noncontrolled substances would not

2 constitute a basis of applicability of the section

3 7(f) exemption. For example, an investigation

4 into the theft of a gross of cosmetic products

5 could not be a basis for polygraph testing under

6 section 7(f), but the theft of a container of val7 ium could be.

8 (ii) Polygraph testing, with respect to an

9 ongoing investigation concerning products other

10 than controlled substances might be initiated

11 under section 7(d) of the EPPA and section

12 1.12 of this part. However, the exemption in

13 section 7(f) of the EPPA and this section is

14 limited solely to losses or injury associated with

15 controlled substances.

16 (g) Polygraph tests administered pursuant to this ex17 emption are subject to the limitations set forth in sections

18 8 and 10 of the EPPA, as discussed in sections 1.21, 1.22,

19 1.23, 1.24, 1.25, 1.26, and 1.35 of this part. As provided

20 in these sections, the exemption will apply only if certain

21 requirements are met. Failure to satisfy any of the speci22 fied requirements nullifies the statutory authority for poly23 graph test administration and may subject the employing

24 office to the remedies authorized in section 204 of the

25 CAA. The administration of such tests is also subject to
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1 collective bargaining agreements, which may either pro2 hibit lie detector tests, or contain more restrictive provi3 sions with respect to polygraph testing.

4 SUBPART C—RESTRICTIONS ON POLYGRAPH USAGE

5 UNDER EXEMPTIONS

6 SEC. 1.20 ADVERSE EMPLOYMENT ACTION UNDER ONGO7 ING INVESTIGATION EXEMPTION.

8 (a) Section 8(a)(1) of the EPPA provides that the

9 limited exemption in section 7(d) of the EPPA and section

10 1.12 of this part for ongoing investigations shall not apply

11 if an employing office discharges, disciplines, denies em12 ployment or promotion or otherwise discriminates in any

13 manner against a current employee based upon the analy14 sis of a polygraph test chart or the refusal to take a poly15 graph test, without additional supporting evidence.

16 (b) ‘‘Additional supporting evidence’’, for purposes of

17 section 8(a) of the EPPA, includes, but is not limited to,

18 the following:

19 (1)(i) Evidence indicating that the employee

20 had access to the missing or damaged property that

21 is the subject of an ongoing investigation; and

22 (ii) Evidence leading to the employing office’s

23 reasonable suspicion that the employee was involved

24 in the incident or activity under investigation; or
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1 (2) Admissions or statements made by an em2 ployee before, during or following a polygraph exam3 ination.

4 (c) Analysis of a polygraph test chart or refusal to

5 take a polygraph test may not serve as a basis for adverse

6 employment action, even with additional supporting evi7 dence, unless the employing office observes all the require8 ments of sections 7(d) and 8(b) of the EPPA, as applied

9 by the CAA and described in sections 1.12, 1.22, 1.23,

10 1.24 and 1.25 of this part.

11 SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CON12 TROLLED SUBSTANCE EXEMPTION.

13 (a) Section 8(a)(2) of the EPPA provides that the

14 controlled substance exemption in section 7(f) of the

15 EPPA and section 1.13 of this part shall not apply if an

16 employing office discharges, disciplines, denies employ17 ment or promotion, or otherwise discriminates in any man18 ner against a current employee or prospective employee

19 based solely on the analysis of a polygraph test chart or

20 the refusal to take a polygraph test.

21 (b) Analysis of a polygraph test chart or refusal to

22 take a polygraph test may serve as one basis for adverse

23 employment actions of the type described in paragraph (a)

24 of this section: Provided, That the adverse action was also

25 based on another bona fide reason, with supporting evi-
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1 dence therefor. For example, traditional factors such as

2 prior employment experience, education, job performance,

3 etc. may be used as a basis for employment decisions. Em4 ployment decisions based on admissions or statements

5 made by an employee or prospective employee before, dur6 ing or following a polygraph examination may, likewise,

7 serve as a basis for such decisions.

8 (c) Analysis of a polygraph test chart or the refusal

9 to take a polygraph test may not serve as a basis for ad10 verse employment action, even with another legitimate

11 basis for such action, unless the employing office observes

12 all the requirements of section 7(f) of the EPPA, as ap13 propriate, and section 8(b) of the EPPA, as described in

14 sections 1.13, 1.22, 1.23, 1.24 and 1.25 of this part.

15 SEC. 1.22 RIGHTS OF EXAMINEE—GENERAL.

16 (a) Pursuant to section 8(b) of the EPPA, the limited

17 exemption in section 7(d) of the EPPA for ongoing inves18 tigations (described in sections 1.12 and 1.13 of this part)

19 shall not apply unless all of the requirements set forth in

20 this section and sections 1.23 through 1.25 of this part

21 are met.

22 (b) During all phases of the polygraph testing the

23 person being examined has the following rights:

24 (1) The examinee may terminate the test at any

25 time.
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1 (2) The examinee may not be asked any ques2 tions in a degrading or unnecessarily intrusive man3 ner.

4 (3) The examinee may not be asked any ques5 tions dealing with:

6 (i) Religious beliefs or affiliations;

7 (ii) Beliefs or opinions regarding racial

8 matters;

9 (iii) Political beliefs or affiliations;

10 (iv) Sexual preferences or behavior; or

11 (v) Beliefs, affiliations, opinions, or lawful

12 activities concerning unions or labor organiza13 tions.

14 (4) The examinee may not be subjected to a

15 test when there is sufficient written evidence by a

16 physician that the examinee is suffering from any

17 medical or psychological condition or undergoing any

18 treatment that might cause abnormal responses dur19 ing the actual testing phase. ‘‘Sufficient written evi20 dence’’ shall constitute, at a minimum, a statement

21 by a physician specifically describing the examinee’s

22 medical or psychological condition or treatment and

23 the basis for the physician’s opinion that the condi24 tion or treatment might result in such abnormal re25 sponses.
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1 (5) An employee or prospective employee who

2 exercises the right to terminate the test, or who for

3 medical reasons with sufficient supporting evidence

4 is not administered the test, shall be subject to ad5 verse employment action only on the same basis as

6 one who refuses to take a polygraph test, as de7 scribed in sections 1.20 and 1.21 of this part.

8 (c) Any polygraph examination shall consist of one

9 or more pretest phases, actual testing phases, and post10 test phases, which must be conducted in accordance with

11 the rights of examinees described in sections 1.23 through

12 1.25 of this part.

13 SEC. 1.23 RIGHTS OF EXAMINEE—PRETEST PHASE.

14 (a) The pretest phase consists of the questioning and

15 other preparation of the prospective examinee before the

16 actual use of the polygraph instrument. During the initial

17 pretest phase, the examinee must be:

18 (1) Provided with written notice, in a language

19 understood by the examinee, as to when and where

20 the examination will take place and that the exam21 inee has the right to consult with counsel or an em22 ployee representative before each phase of the test.

23 Such notice shall be received by the examinee at

24 least forty-eight hours, excluding weekend days and

25 holidays, before the time of the examination, except
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1 that a prospective employee may, at the employee’s

2 option, give written consent to administration of a

3 test anytime within 48 hours but no earlier than 24

4 hours after receipt of the written notice. The written

5 notice or proof of service must set forth the time

6 and date of receipt by the employee or prospective

7 employee and be verified by his or her signature.

8 The purpose of this requirement is to provide a suf9 ficient opportunity prior to the examination for the

10 examinee to consult with counsel or an employee

11 representative. Provision shall also be made for a

12 convenient place on the premises where the examina13 tion will take place at which the examinee may con14 sult privately with an attorney or an employee rep15 resentative before each phase of the test. The attor16 ney or representative may be excluded from the

17 room where the examination is administered during

18 the actual testing phase.

19 (2) Informed orally and in writing of the nature

20 and characteristics of the polygraph instrument and

21 examination, including an explanation of the phys22 ical operation of the polygraph instrument and the

23 procedure used during the examination.

24 (3) Provided with a written notice prior to the

25 testing phase, in a language understood by the ex-
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1 aminee, which shall be read to and signed by the ex2 aminee. Use of Appendix A to this part, if properly

3 completed, will constitute compliance with the con4 tents of the notice requirement of this paragraph. If

5 a format other than in Appendix A is used, it must

6 contain at least the following information:

7 (i) Whether or not the polygraph examina8 tion area contains a two-way mirror, a camera,

9 or other device through which the examinee

10 may be observed;

11 (ii) Whether or not any other device, such

12 as those used in conversation or recording will

13 be used during the examination;

14 (iii) That both the examinee and the em15 ploying office have the right, with the other’s

16 knowledge, to make a recording of the entire

17 examination;

18 (iv) That the examinee has the right to

19 terminate the test at any time;

20 (v) That the examinee has the right, and

21 will be given the opportunity, to review all ques22 tions to be asked during the test;

23 (vi) That the examinee may not be asked

24 questions in a manner which degrades, or need25 lessly intrudes;
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1 (vii) That the examinee may not be asked

2 any questions concerning religious beliefs or

3 opinions; beliefs regarding racial matters; politi4 cal beliefs or affiliations; matters relating to

5 sexual behavior; beliefs, affiliations, opinions, or

6 lawful activities regarding unions or labor orga7 nizations;

8 (viii) That the test may not be conducted

9 if there is sufficient written evidence by a physi10 cian that the examinee is suffering from a med11 ical or psychological condition or undergoing

12 treatment that might cause abnormal responses

13 during the examination;

14 (ix) That the test is not and cannot be re15 quired as a condition of employment;

16 (x) That the employing office may not dis17 charge, dismiss, discipline, deny employment or

18 promotion, or otherwise discriminate against

19 the examinee based on the analysis of a poly20 graph test, or based on the examinee’s refusal

21 to take such a test, without additional evidence

22 which would support such action;

23 (xi)(A) In connection with an ongoing in24 vestigation, that the additional evidence re25 quired for the employing office to take adverse
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1 action against the examinee, including termi2 nation, may be evidence that the examinee had

3 access to the property that is the subject of the

4 investigation, together with evidence supporting

5 the employing office’s reasonable suspicion that

6 the examinee was involved in the incident or ac7 tivity under investigation;

8 (B) That any statement made by the ex9 aminee before or during the test may serve as

10 additional supporting evidence for an adverse

11 employment action, as described in paragraph

12 (a)(3)(x) of this section, and that any admis13 sion of criminal conduct by the examinee may

14 be transmitted to an appropriate Government

15 law enforcement agency;

16 (xii) That information acquired from a

17 polygraph test may be disclosed by the exam18 iner or by the employing office only:

19 (A) To the examinee or any other per20 son specifically designated in writing by

21 the examinee to receive such information;

22 (B) To the employing office that re23 quested the test;
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1 (C) To a court, governmental agency,

2 arbitrator, or mediator pursuant to a court

3 order;

4 (D) By the employing office, to an ap5 propriate governmental agency without a

6 court order where, and only insofar as, the

7 information disclosed is an admission of

8 criminal conduct;

9 (xiii) That if any of the examinee’s rights

10 or protections under the law are violated, the

11 examinee has the right to take action against

12 the employing office under sections 401–404 of

13 the CAA. Employing offices that violate this

14 law are liable to the affected examinee, who

15 may recover such legal or equitable relief as

16 may be appropriate, including, but not limited

17 to, employment, reinstatement, and promotion,

18 payment of lost wages and benefits, and reason19 able costs, including attorney’s fees;

20 (xiv) That the examinee has the right to

21 obtain and consult with legal counsel or other

22 representative before each phase of the test, al23 though the legal counsel or representative may

24 be excluded from the room where the test is ad25 ministered during the actual testing phase.
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1 (xv) That the employee’s rights under the

2 CAA may not be waived, either voluntarily or

3 involuntarily, by contract or otherwise, except

4 as part of a written settlement to a pending ac5 tion or complaint under the CAA, agreed to and

6 signed by the parties.

7 (b) During the initial or any subsequent pretest

8 phases, the examinee must be given the opportunity, prior

9 to the actual testing phase, to review all questions in writ10 ing that the examiner will ask during each testing phase.

11 Such questions may be presented at any point in time

12 prior to the testing phase.

13 SEC. 1.24 RIGHTS OF EXAMINEE—ACTUAL TESTING

14 PHASE.

15 (a) The actual testing phase refers to that time dur16 ing which the examiner administers the examination by

17 using a polygraph instrument with respect to the examinee

18 and then analyzes the charts derived from the test.

19 Throughout the actual testing phase, the examiner shall

20 not ask any question that was not presented in writing

21 for review prior to the testing phase. An examiner may,

22 however, recess the testing phase and return to the pre23 test phase to review additional relevant questions with the

24 examinee. In the case of an ongoing investigation, the ex25 aminer shall ensure that all relevant questions (as distin-
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1 guished from technical baseline questions) pertain to the

2 investigation.

3 (b) No testing period subject to the provisions of the

4 Act shall be less than ninety minutes in length. Such ‘‘test

5 period’’ begins at the time that the examiner begins in6 forming the examinee of the nature and characteristics of

7 the examination and the instruments involved, as pre8 scribed in section 8(b)(2)(B) of the EPPA and section

9 1.23(a)(2) of this part, and ends when the examiner com10 pletes the review of the test results with the examinee as

11 provided in section 1.25 of this part. The ninety-minute

12 minimum duration shall not apply if the examinee volun13 tarily acts to terminate the test before the completion

14 thereof, in which event the examiner may not render an

15 opinion regarding the employee’s truthfulness.

16 SEC. 1.25 RIGHTS OF EXAMINEE—POST-TEST PHASE.

17 (a) The post-test phase refers to any questioning or

18 other communication with the examinee following the use

19 of the polygraph instrument, including review of the re20 sults of the test with the examinee. Before any adverse

21 employment action, the employing office must:

22 (1) Further interview the examinee on the basis

23 of the test results; and

24 (2) Give to the examinee a written copy of any

25 opinions or conclusions rendered in response to the
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1 test, as well as the questions asked during the test,

2 with the corresponding charted responses. The term

3 ‘‘corresponding charted responses’’ refers to copies

4 of the entire examination charts recording the em5 ployee’s physiological responses, and not just the ex6 aminer’s written report which describes the

7 examinee’s responses to the questions as ‘‘charted’’

8 by the instrument.

9 SEC. 1.26 QUALIFICATIONS OF AND REQUIREMENTS FOR

10 EXAMINERS.

11 (a) Section 8 (b) and (c) of the EPPA provides that

12 the limited exemption in section 7(d) of the EPPA for on13 going investigations shall not apply unless the person con14 ducting the polygraph examination meets specified quali15 fications and requirements.

16 (b) An examiner must meet the following qualifica17 tions:

18 (1) Have a valid current license, if required by

19 the State in which the test is to be conducted; and

20 (2) Carry a minimum bond of $50,000 provided

21 by a surety incorporated under the laws of the Unit22 ed States or of any State, which may under those

23 laws guarantee the fidelity of persons holding posi24 tions of trust, or carry an equivalent amount of pro25 fessional liability coverage.
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1 (c) An examiner must also, with respect to examinees

2 identified by the employing office pursuant to section

3 1.30(c) of this part:

4 (1) Observe all rights of examinees, as set out

5 in sections 1.22, 1.23, 1.24, and 1.25 of this part;

6 (2) Administer no more than five polygraph ex7 aminations in any one calendar day on which a test

8 or tests subject to the provisions of EPPA are ad9 ministered, not counting those instances where an

10 examinee voluntarily terminates an examination

11 prior to the actual testing phase;

12 (3) Administer no polygraph examination sub13 ject to the provisions of the EPPA which is less than

14 ninety minutes in duration, as described in section

15 1.24(b) of this part; and

16 (4) Render any opinion or conclusion regarding

17 truthfulness or deception in writing. Such opinion or

18 conclusion must be based solely on the polygraph

19 test results. The written report shall not contain any

20 information other than admissions, information, case

21 facts, and interpretation of the charts relevant to the

22 stated purpose of the polygraph test and shall not

23 include any recommendation concerning the employ24 ment of the examinee.
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1 (5) Maintain all opinions, reports, charts, writ2 ten questions, lists, and other records relating to the

3 test, including, statements signed by examinees ad4 vising them of rights under the CAA (as described

5 in section 1.23(a)(3) of this part) and any electronic

6 recordings of examinations, for at least three years

7 from the date of the administration of the test. (See

8 section 1.30 of this part for recordkeeping require9 ments.)

10 SUBPART D—RECORDKEEPING AND DISCLOSURE

11 REQUIREMENTS

12 SEC. 1.30 RECORDS TO BE PRESERVED FOR 3 YEARS.

13 (a) The following records shall be kept for a mini14 mum period of three years from the date the polygraph

15 examination is conducted (or from the date the examina16 tion is requested if no examination is conducted):

17 (1) Each employing office that requests an em18 ployee to submit to a polygraph examination in con19 nection with an ongoing investigation involving eco20 nomic loss or injury shall retain a copy of the state21 ment that sets forth the specific incident or activity

22 under investigation and the basis for testing that

23 particular covered employee, as required by section

24 7(d)(4) of the EPPA and described in 1.12(a)(4) of

25 this part.
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1 (2) Each examiner retained to administer ex2 aminations pursuant to any of the exemptions under

3 section 7 (d), (e) or (f) of the EPPA (described in

4 sections 1.12 and 1.13 of this part) shall maintain

5 all opinions, reports, charts, written questions, lists,

6 and other records relating to polygraph tests of such

7 persons.

8 SEC. 1.35 DISCLOSURE OF TEST INFORMATION.

9 This section prohibits the unauthorized disclosure of

10 any information obtained during a polygraph test by any

11 person, other than the examinee, directly or indirectly, ex12 cept as follows:

13 (a) A polygraph examiner or an employing office

14 (other than an employing office exempt under section 7

15 (a) or (b) of the EPPA (described in sections 1.10 and

16 1.11 of this part)) may disclose information acquired from

17 a polygraph test only to:

18 (1) The examinee or an individual specifically

19 designated in writing by the examinee to receive

20 such information;

21 (2) The employing office that requested the

22 polygraph test pursuant to the provisions of the

23 EPPA (including management personnel of the em24 ploying office where the disclosure is relevant to the

25 carrying out of their job responsibilities);
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1 (3) Any court, governmental agency, arbitrator,

2 or mediator pursuant to an order from a court of

3 competent jurisdiction requiring the production of

4 such information;

5 (b) An employing office may disclose information

6 from the polygraph test at any time to an appropriate gov7 ernmental agency without the need of a court order where,

8 and only insofar as, the information disclosed is an admis9 sion of criminal conduct.

10 (c) A polygraph examiner may disclose test charts,

11 without identifying information (but not other examina12 tion materials and records), to another examiner(s) for ex13 amination and analysis, provided that such disclosure is

14 for the sole purpose of consultation and review of the ini15 tial examiner’s opinion concerning the indications of truth16 fulness or deception. Such action would not constitute dis17 closure under this part provided that the other examiner

18 has no direct or indirect interest in the matter.

19 SUBPART E—[RESERVED]

20 SEC. 1.40 [RESERVED].

21 APPENDIX A TO PART 801—NOTICE TO EXAMINEE

22 Section 204 of the Congressional Accountability Act,

23 which applies the rights and protections of section 8(b)

24 of the Employee Polygraph Protection Act to covered em25 ployees and employing offices, and the regulations of the
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1 Board of Directors of the Office of Compliance (sections

2 1.22, 1.23, 1.24, and 1.25), require that you be given the

3 following information before taking a polygraph examina4 tion:

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 polygraph

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;
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(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)

1 APPLICATION OF RIGHTS AND PROTECTIONS

2 OF THE WORKER ADJUSTMENT RETRAIN3 ING AND NOTIFICATION ACT OF 1988 (IM4 PLEMENTING 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].

5 § 639.1 Purpose and scope

6 (a) PURPOSE OF WARN AS APPLIED BY THE

7 CAA.—Section 205 of the Congressional Accountability

8 Act, Public Law 104–1 (‘‘CAA’’), provides protection to
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1 covered employees and their families by requiring employ2 ing offices to provide notification 60 calendar days in ad3 vance of office closings and mass layoffs within the mean4 ing of section 3 of the Worker Adjustment and Retraining

5 Notification Act of 1988, 29 U.S.C. § 2102. Advance no6 tice provides workers and their families some transition

7 time to adjust to the prospective loss of employment, to

8 seek and obtain alternative jobs and, if necessary, to enter

9 skill training or retraining that will allow these workers

10 to successfully compete in the job market. As used in these

11 regulations, WARN shall refer to the provisions of WARN

12 applied to covered employing offices by section 205 of the

13 CAA.

14 (b) SCOPE OF THESE REGULATIONS.—These regula15 tions are issued by the Board of Directors, Office of Com16 pliance, pursuant to sections 205(c) and 304 of the CAA,

17 which directs the Board to promulgate regulations imple18 menting section 205 that are ‘‘the same as substantive

19 regulations promulgated by the Secretary of Labor to im20 plement the statutory provisions referred to in subsection

21 (a) [of section 205 of the CAA] except insofar as the

22 Board may determine, for good cause shown . . . that a

23 modification of such regulations would be more effective

24 for the implementation of the rights and protections under

25 this section’’. The regulations issued by the Board herein
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1 are on all matters for which section 205 of the CAA re2 quires a regulation to be issued. Specifically, it is the

3 Board’s considered judgment, based on the information

4 available to it at the time of promulgation of these regula5 tions, that, with the exception of regulations adopted and

6 set forth herein, there are no other ‘‘substantive regula7 tions promulgated by the Secretary of Labor to implement

8 the statutory provisions referred to in subsection (a) [of

9 section 205 of the CAA]’’.

10 In promulgating these regulations, the Board has

11 made certain technical and nomenclature changes to the

12 regulations as promulgated by the Secretary. Such

13 changes are intended to make the provisions adopted ac14 cord more naturally to situations in the legislative branch.

15 However, by making these changes, the Board does not

16 intend a substantive difference between these sections and

17 those of the Secretary from which they are derived. More18 over, such changes, in and of themselves, are not intended

19 to constitute an interpretation of the regulation or of the

20 statutory provisions of the CAA upon which they are

21 based.

22 These regulations establish basic definitions and rules

23 for giving notice, implementing the provisions of WARN.

24 The objective of these regulations is to establish clear prin25 ciples and broad guidelines which can be applied in specific
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1 circumstances. However, it is recognized that rulemaking

2 cannot address the multitude of employing office-specific

3 situations in which advance notice will be given.

4 (c) NOTICE IN AMBIGUOUS SITUATIONS.—It is

5 civically desirable and it would appear to be good business

6 practice for an employing office to provide advance notice,

7 where reasonably possible, to its workers or unions when

8 terminating a significant number of employees. The Office

9 encourages employing offices to give notice in such cir10 cumstances.

11 (d) WARN NOT TO SUPERSEDE OTHER LAWS AND

12 CONTRACTS.—The provisions of WARN do not supersede

13 any otherwise applicable laws or collective bargaining

14 agreements that provide for additional notice or additional

15 rights and remedies. If such law or agreement provides

16 for a longer notice period, WARN notice shall run concur17 rently with that additional notice period. Collective bar18 gaining agreements may be used to clarify or amplify the

19 terms and conditions of WARN, but may not reduce

20 WARN rights.

21 § 639.2 What does WARN require?

22 WARN requires employing offices that are planning

23 an office closing or a mass layoff to give affected employ24 ees at least 60 days’ notice of such an employment action.

25 While the 60-day period is the minimum for advance no-
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1 tice, this provision is not intended to discourage employing

2 offices from voluntarily providing longer periods of ad3 vance notice. Not all office closings and layoffs are subject

4 to WARN, and certain employment thresholds must be

5 reached before WARN applies. WARN sets out specific

6 exemptions, and provides for a reduction in the notifica7 tion period in particular circumstances. Remedies author8 ized under section 205 of the CAA may be assessed

9 against employing offices that violate WARN require10 ments.

11 § 639.3 Definitions

12 (a) EMPLOYING OFFICE.—(1) The term ‘‘employing

13 office’’ means any of the entities listed in section 101(9)

14 of the CAA, 2 U.S.C. § 1301(9) that employs—

15 (i) 100 or more employees, excluding part-time

16 employees; or

17 (ii) employs 100 or more employees, including

18 part-time employees, who in the aggregate work at

19 least 4,000 hours per week, exclusive of overtime.

20 Workers on temporary layoff or on leave who have a rea21 sonable expectation of recall are counted as employees. An

22 employee has a ‘‘reasonable expectation of recall’’ when

23 he/she understands, through notification or through com24 mon practice, that his/her employment with the employing
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1 office has been temporarily interrupted and that he/she

2 will be recalled to the same or to a similar job.

3 (2) Workers, other than part-time workers, who are

4 exempt from notice under section 4 of WARN, are none5 theless counted as employees for purposes of determining

6 coverage as an employing office.

7 (3) An employing office may have one or more sites

8 of employment under common control.

9 (b) OFFICE CLOSING.—The term ‘‘office closing’’

10 means the permanent or temporary shutdown of a ‘‘single

11 site of employment’’, or one or more ‘‘facilities or operat12 ing units’’ within a single site of employment, if the shut13 down results in an ‘‘employment loss’’ during any 30-day

14 period at the single site of employment for 50 or more

15 employees, excluding any part-time employees. An employ16 ment action that results in the effective cessation of the

17 work performed by a unit, even if a few employees remain,

18 is a shutdown. A ‘‘temporary shutdown’’ triggers the no19 tice requirement only if there are a sufficient number of

20 terminations, layoffs exceeding 6 months, or reductions in

21 hours of work as specified under the definition of ‘‘employ22 ment loss’’.

23 (c) MASS LAYOFF.—(1) The term ‘‘mass layoff’’

24 means a reduction in force which first, is not the result

25 of an office closing, and second, results in an employment
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1 loss at the single site of employment during any 30-day

2 period for:

3 (i) At least 33 percent of the active employees,

4 excluding part-time employees, and

5 (ii) At least 50 employees, excluding part-time

6 employees.

7 Where 500 or more employees (excluding part-time em8 ployees) are affected, the 33 percent requirement does not

9 apply, and notice is required if the other criteria are met.

10 Office closings involve employment loss which results from

11 the shutdown of one or more distinct units within a single

12 site or the entire site. A mass layoff involves employment

13 loss, regardless of whether one or more units are shut

14 down at the site.

15 (2) Workers, other than part-time workers, who are

16 exempt from notice under section 4 of WARN are none17 theless counted as employees for purposes of determining

18 coverage as an office closing or mass layoff. For example,

19 if an employing office closes a temporary project on which

20 10 permanent and 40 temporary workers are employed,

21 a covered office closing has occurred although only 10

22 workers are entitled to notice.

23 (d) REPRESENTATIVE.—The term ‘‘representative’’

24 means an exclusive representative of employees within the

25 meaning of 5 U.S.C. §§ 7101 et seq., as applied to covered
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1 employees and employing offices by section 220 of the

2 CAA, 2 U.S.C. § 1351.

3 (e) AFFECTED EMPLOYEES.—The term ‘‘affected

4 employees’’ means employees who may reasonably be ex5 pected to experience an employment loss as a consequence

6 of a proposed office closing or mass layoff by their employ7 ing office. This includes individually identifiable employees

8 who will likely lose their jobs because of bumping rights

9 or other factors, to the extent that such individual workers

10 reasonably can be identified at the time notice is required

11 to be given. The term affected employees includes manage12 rial and supervisory employees. Consultant or contract

13 employees who have a separate employment relationship

14 with another employing office or employer and are paid

15 by that other employing office or employer, or who are

16 self-employed, are not ‘‘affected employees’’ of the oper17 ations to which they are assigned. In addition, for pur18 poses of determining whether coverage thresholds are met,

19 either incumbent workers in jobs being eliminated or, if

20 known 60 days in advance, the actual employees who suf21 fer an employment loss may be counted.

22 (f) EMPLOYMENT LOSS.—(1) The term employment

23 loss means (i) an employment termination, other than a

24 discharge for cause, voluntary departure, or retirement,

25 (ii) a layoff exceeding 6 months, or (iii) a reduction in
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1 hours of work of individual employees of more than 50

2 percent during each month of any 6-month period.

3 (2) Where a termination or a layoff (see paragraphs

4 (f)(1) (i) and (ii) of this section) is involved, an employ5 ment loss does not occur when an employee is reassigned

6 or transferred to employing office-sponsored programs,

7 such as retraining or job search activities, as long as the

8 reassignment does not constitute a constructive discharge

9 or other involuntary termination.

10 (3) An employee is not considered to have experienced

11 an employment loss if the closing or layoff is the result

12 of the relocation or consolidation of part or all of the em13 ploying office’s operations and, prior to the closing or lay14 off—

15 (i) The employing office offers to transfer the

16 employee to a different site of employment within a

17 reasonable commuting distance with no more than a

18 6-month break in employment, or

19 (ii) The employing office offers to transfer the

20 employee to any other site of employment regardless

21 of distance with no more than a 6-month break in

22 employment, and the employee accepts within 30

23 days of the offer or of the closing or layoff, which24 ever is later.
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1 (4) A ‘‘relocation or consolidation’’ of part or all of

2 an employing office’s operations, for purposes of para3 graph § 639.3(f)(3), means that some definable operations

4 are transferred to a different site of employment and that

5 transfer results in an office closing or mass layoff.

6 (g) PART-TIME EMPLOYEE.—The term ‘‘part-time’’

7 employee means an employee who is employed for an aver8 age of fewer than 20 hours per week or who has been em9 ployed for fewer than 6 of the 12 months preceding the

10 date on which notice is required, including workers who

11 work full-time. This term may include workers who would

12 traditionally be understood as ‘‘seasonal’’ employees. The

13 period to be used for calculating whether a worker has

14 worked ‘‘an average of fewer than 20 hours per week’’ is

15 the shorter of the actual time the worker has been em16 ployed or the most recent 90 days.

17 (h) SINGLE SITE OF EMPLOYMENT.—(1) A single

18 site of employment can refer to either a single location

19 or a group of contiguous locations. Separate facilities

20 across the street from one another may be considered a

21 single site of employment.

22 (2) There may be several single sites of employment

23 within a single building, such as an office building, if sepa24 rate employing offices conduct activities within such a

25 building. For example, an office building housing 50 dif-
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1 ferent employing offices will contain 50 single sites of em2 ployment. The offices of each employing office will be its

3 single site of employment.

4 (3) Separate buildings or areas which are not directly

5 connected or in immediate proximity may be considered

6 a single site of employment if they are in reasonable geo7 graphic proximity, used for the same purpose, and share

8 the same staff and equipment.

9 (4) Non-contiguous sites in the same geographic area

10 which do not share the same staff or operational purpose

11 should not be considered a single site.

12 (5) Contiguous buildings operated by the same em13 ploying office which have separate management and have

14 separate workforces are considered separate single sites of

15 employment.

16 (6) For workers whose primary duties require travel

17 from point to point, who are outstationed, or whose pri18 mary duties involve work outside any of the employing of19 fice’s regular employment sites (e.g., railroad workers, bus

20 drivers, salespersons), the single site of employment to

21 which they are assigned as their home base, from which

22 their work is assigned, or to which they report will be the

23 single site in which they are covered for WARN purposes.

24 (7) Foreign sites of employment are not covered

25 under WARN. United States workers at such sites are
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1 counted to determine whether an employing office is cov2 ered as an employing office under § 639.3(a).

3 (8) The term ‘‘single site of employment’’ may also

4 apply to truly unusual organizational situations where the

5 above criteria do not reasonably apply. The application of

6 this definition with the intent to evade the purpose of

7 WARN to provide notice is not acceptable.

8 (i) FACILITY OR OPERATING UNIT.—The term ‘‘facil9 ity’’ refers to a building or buildings. The term ‘‘operating

10 unit’’ refers to an organizationally or operationally distinct

11 product, operation, or specific work function within or

12 across facilities at the single site.

13 § 639.4 Who must give notice?

14 Section 205(a)(1) of the CAA states that ‘‘[n]o em15 ploying office shall be closed or a mass layoff ordered with16 in the meaning of section 3 of [WARN] until the end of

17 a 60-day period after the employing office serves written

18 notice of such prospective closing or layoff . . . ’’. There19 fore, an employing office that is anticipating carrying out

20 an office closing or mass layoff is required to give notice

21 to affected employees or their representative(s). (See defi22 nitions in § 639.3 of this part.)

23 (a) It is the responsibility of the employing office to

24 decide the most appropriate person within the employing

25 office’s organization to prepare and deliver the notice to
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1 affected employees or their representative(s). In most in2 stances, this may be the local site office manager, the local

3 personnel director or a labor relations officer.

4 (b) An employing office that has previously an5 nounced and carried out a short-term layoff (6 months

6 or less) which is being extended beyond 6 months due to

7 circumstances not reasonably foreseeable at the time of

8 the initial layoff is required to give notice when it becomes

9 reasonably foreseeable that the extension is required. A

10 layoff extending beyond 6 months from the date the layoff

11 commenced for any other reason shall be treated as an

12 employment loss from the date of its commencement.

13 (c) In the case of the privatization or sale of part

14 or all of an employing office’s operations, the employing

15 office is responsible for providing notice of any office clos16 ing or mass layoff which takes place up to and including

17 the effective date (time) of the privatization or sale, and

18 the contractor or buyer is responsible for providing any

19 required notice of any office closing or mass layoff that

20 takes place thereafter.

21 (1) If the employing office is made aware of

22 any definite plans on the part of the buyer or con23 tractor to carry out an office closing or mass layoff

24 within 60 days of purchase, the employing office

25 may give notice to affected employees as an agent of
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1 the buyer or contractor, if so empowered. If the em2 ploying office does not give notice, the buyer or con3 tractor is, nevertheless, responsible to give notice. If

4 the employing office gives notice as the agent of the

5 buyer or contractor, the responsibility for notice still

6 remains with the buyer or contractor.

7 (2) It may be prudent for the buyer or contrac8 tor and employing office to determine the impacts of

9 the privatization or sale on workers, and to arrange

10 between them for advance notice to be given to af11 fected employees or their representative(s), if a mass

12 layoff or office closing is planned.

13 § 639.5 When must notice be given?

14 (a) GENERAL RULE.—(1) With certain exceptions

15 discussed in paragraphs (b) and (c) of this section and

16 in § 639.9 of this part, notice must be given at least 60

17 calendar days prior to any planned office closing or mass

18 layoff, as defined in these regulations. When all employees

19 are not terminated on the same date, the date of the first

20 individual termination within the statutory 30-day or 90-

21 day period triggers the 60-day notice requirement. A

22 worker’s last day of employment is considered the date

23 of that worker’s layoff. The first and each subsequent

24 group of terminees are entitled to a full 60 days’ notice.
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1 In order for an employing office to decide whether issuing

2 notice is required, the employing office should—

3 (i) look ahead 30 days and behind 30 days to

4 determine whether employment actions both taken

5 and planned will, in the aggregate for any 30-day

6 period, reach the minimum numbers for an office

7 closing or a mass layoff and thus trigger the notice

8 requirement; and

9 (ii) look ahead 90 days and behind 90 days to

10 determine whether employment actions both taken

11 and planned each of which separately is not of suffi12 cient size to trigger WARN coverage will, in the ag13 gregate for any 90-day period, reach the minimum

14 numbers for an office closing or a mass layoff and

15 thus trigger the notice requirement. An employing

16 office is not, however, required under section 3(d) to

17 give notice if the employing office demonstrates that

18 the separate employment losses are the result of sep19 arate and distinct actions and causes, and are not

20 an attempt to evade the requirements of WARN.

21 (2) The point in time at which the number of employ22 ees is to be measured for the purpose of determining cov23 erage is the date the first notice is required to be given.

24 If this ‘‘snapshot’’ of the number of employees employed

25 on that date is clearly unrepresentative of the ordinary
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1 or average employment level, then a more representative

2 number can be used to determine coverage. Examples of

3 unrepresentative employment levels include cases when the

4 level is near the peak or trough of an employment cycle

5 or when large upward or downward shifts in the number

6 of employees occur around the time notice is to be given.

7 A more representative number may be an average number

8 of employees over a recent period of time or the number

9 of employees on an alternative date which is more rep10 resentative of normal employment levels. Alternative meth11 ods cannot be used to evade the purpose of WARN, and

12 should only be used in unusual circumstances.

13 (b) TRANSFERS.—(1) Notice is not required in cer14 tain cases involving transfers, as described under the defi15 nition of ‘‘employment loss’’ at § 639.3(f) of this part.

16 (2) An offer of reassignment to a different site of em17 ployment should not be deemed to be a ‘‘transfer’’ if the

18 new job constitutes a constructive discharge.

19 (3) The meaning of the term ‘‘reasonable commuting

20 distance’’ will vary with local conditions. In determining

21 what is a ‘‘reasonable commuting distance’’, consideration

22 should be given to the following factors: geographic acces23 sibility of the place of work, the quality of the roads, cus24 tomarily available transportation, and the usual travel

25 time.
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1 (4) In cases where the transfer is beyond reasonable

2 commuting distance, the employing office may become lia3 ble for failure to give notice if an offer to transfer is not

4 accepted within 30 days of the offer or of the closing or

5 layoff (whichever is later). Depending upon when the offer

6 of transfer was made by the employing office, the normal

7 60-day notice period may have expired and the office clos8 ing or mass layoff may have occurred. An employing office

9 is, therefore, well advised to provide 60-day advance notice

10 as part of the transfer offer.

11 (c) TEMPORARY EMPLOYMENT.—(1) No notice is re12 quired if the closing is of a temporary facility, or if the

13 closing or layoff is the result of the completion of a par14 ticular project or undertaking, and the affected employees

15 were hired with the understanding that their employment

16 was limited to the duration of the facility or the project

17 or undertaking.

18 (2) Employees must clearly understand at the time

19 of hire that their employment is temporary. When such

20 understandings exist will be determined by reference to

21 employment contracts, collective bargaining agreements,

22 or employment practices of other employing offices or a

23 locality, but the burden of proof will lie with the employing

24 office to show that the temporary nature of the project

25 or facility was clearly communicated should questions
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1 arise regarding the temporary employment understand2 ings.

3 § 639.6 Who must receive notice?

4 Section 3(a) of WARN provides for notice to each

5 representative of the affected employees as of the time no6 tice is required to be given or, if there is no such rep7 resentative at that time, to each affected employee.

8 (a) REPRESENTATIVE(S) OF AFFECTED EMPLOY9 EES.—Written notice is to be served upon the chief elected

10 officer of the exclusive representative(s) or bargaining

11 agent(s) of affected employees at the time of the notice.

12 If this person is not the same as the officer of the local

13 union(s) representing affected employees, it is rec14 ommended that a copy also be given to the local union

15 official(s).

16 (b) AFFECTED EMPLOYEES.—Notice is required to

17 be given to employees who may reasonably be expected to

18 experience an employment loss. This includes employees

19 who will likely lose their jobs because of bumping rights

20 or other factors, to the extent that such workers can be

21 identified at the time notice is required to be given. If,

22 at the time notice is required to be given, the employing

23 office cannot identify the employee who may reasonably

24 be expected to experience an employment loss due to the

25 elimination of a particular position, the employing office
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1 must provide notice to the incumbent in that position.

2 While part-time employees are not counted in determining

3 whether office closing or mass layoff thresholds are

4 reached, such workers are due notice.

5 § 639.7 What must the notice contain?

6 (a) NOTICE MUST BE SPECIFIC.—(1) All notice must

7 be specific.

8 (2) Where voluntary notice has been given more than

9 60 days in advance, but does not contain all of the re10 quired elements set out in this section, the employing of11 fice must ensure that all of the information required by

12 this section is provided in writing to the parties listed in

13 § 639.6 at least 60 days in advance of a covered employ14 ment action.

15 (3) Notice may be given conditional upon the occur16 rence or nonoccurrence of an event only when the event

17 is definite and the consequences of its occurrence or non18 occurrence will necessarily, in the normal course of oper19 ations, lead to a covered office closing or mass layoff less

20 than 60 days after the event. The notice must contain

21 each of the elements set out in this section.

22 (4) The information provided in the notice shall be

23 based on the best information available to the employing

24 office at the time the notice is served. It is not the intent

25 of the regulations that errors in the information provided
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1 in a notice that occur because events subsequently change

2 or that are minor, inadvertent errors are to be the basis

3 for finding a violation of WARN.

4 (b) DEFINITION.—As used in this section, the term

5 ‘‘date’’ refers to a specific date or to a 14-day period dur6 ing which a separation or separations are expected to

7 occur. If separations are planned according to a schedule,

8 the schedule should indicate the specific dates on which

9 or the beginning date of each 14-day period during which

10 any separations are expected to occur. Where a 14-day

11 period is used, notice must be given at least 60 days in

12 advance of the first day of the period.

13 (c) NOTICE.—Notice to each representative of af14 fected employees is to contain:

15 (1) The name and address of the employment

16 site where the office closing or mass layoff will

17 occur, and the name and telephone number of an

18 employing office official to contact for further infor19 mation;

20 (2) A statement as to whether the planned ac21 tion is expected to be permanent or temporary and,

22 if the entire office is to be closed, a statement to

23 that effect;

24 (3) The expected date of the first separation

25 and the anticipated schedule for making separations;
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1 (4) The job titles of positions to be affected and

2 the names of the workers currently holding affected

3 jobs.

4 The notice may include additional information useful to

5 the employees such as information on available dislocated

6 worker assistance, and, if the planned action is expected

7 to be temporary, the estimated duration, if known.

8 (d) EMPLOYEES NOT REPRESENTED.—Notice to

9 each affected employee who does not have a representative

10 is to be written in language understandable to the employ11 ees and is to contain:

12 (1) A statement as to whether the planned ac13 tion is expected to be permanent or temporary and,

14 if the entire office is to be closed, a statement to

15 that effect;

16 (2) The expected date when the office closing or

17 mass layoff will commence and the expected date

18 when the individual employee will be separated;

19 (3) An indication whether or not bumping

20 rights exist;

21 (4) The name and telephone number of an em22 ploying office official to contact for further informa23 tion.

24 The notice may include additional information useful to

25 the employees such as information on available dislocated
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1 worker assistance, and, if the planned action is expected

2 to be temporary, the estimated duration, if known.

3 § 639.8 How is the notice served?

4 Any reasonable method of delivery to the parties list5 ed under § 639.6 of this part which is designed to ensure

6 receipt of notice of at least 60 days before separation is

7 acceptable (e.g., first class mail, personal delivery with op8 tional signed receipt). In the case of notification directly

9 to affected employees, insertion of notice into pay enve10 lopes is another viable option. A ticketed notice, i.e.,

11 preprinted notice regularly included in each employee’s

12 pay check or pay envelope, does not meet the requirements

13 of WARN.

14 § 639.9 When may notice be given less than 60 days

15 in advance?

16 Section 3(b) of WARN, as applied by section 205 of

17 the CAA, sets forth two conditions under which the notifi18 cation period may be reduced to less than 60 days. The

19 employing office bears the burden of proof that conditions

20 for the exceptions have been met. If one of the exceptions

21 is applicable, the employing office must give as much no22 tice as is practicable to the union and non-represented em23 ployees and this may, in some circumstances, be notice

24 after the fact. The employing office must, at the time no25 tice actually is given, provide a brief statement of the rea-
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1 son for reducing the notice period, in addition to the other

2 elements set out in § 639.7.

3 (a) The ‘‘unforeseeable business circumstances’’ ex4 ception under section 3(b)(2)(A) of WARN, as applied

5 under the CAA, applies to office closings and mass layoffs

6 caused by circumstances that were not reasonably foresee7 able at the time that 60-day notice would have been re8 quired.

9 (1) An important indicator of a circumstance

10 that is not reasonably foreseeable is that the cir11 cumstance is caused by some sudden, dramatic, and

12 unexpected action or condition outside the employing

13 office’s control.

14 (2) The test for determining when cir15 cumstances are not reasonably foreseeable focuses

16 on an employing office’s business judgment. The em17 ploying office must exercise such reasonable business

18 judgment as would a similarly situated employing of19 fice in predicting the demands of its operations. The

20 employing office is not required, however, to accu21 rately predict general economic conditions that also

22 may affect its operations.

23 (b) The ‘‘natural disaster’’ exception in section

24 3(b)(2)(B) of WARN applies to office closings and mass

25 layoffs due to any form of a natural disaster.
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1 (1) Floods, earthquakes, droughts, storms, tidal

2 waves or tsunamis and similar effects of nature are

3 natural disasters under this provision.

4 (2) To qualify for this exception, an employing

5 office must be able to demonstrate that its office

6 closing or mass layoff is a direct result of a natural

7 disaster.

8 (3) While a disaster may preclude full or any

9 advance notice, such notice as is practicable, con10 taining as much of the information required in

11 § 639.7 as is available in the circumstances of the

12 disaster still must be given, whether in advance or

13 after the fact of an employment loss caused by a

14 natural disaster.

15 (4) Where an office closing or mass layoff oc16 curs as an indirect result of a natural disaster, the

17 exception does not apply but the ‘‘unforeseeable

18 business circumstance’’ exception described in para19 graph (a) of this section may be applicable.

20 § 639.10 When may notice be extended?

21 Additional notice is required when the date or sched22 ule of dates of a planned office closing or mass layoff is

23 extended beyond the date or the ending date of any 14-

24 day period announced in the original notice as follows:
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1 (a) If the postponement is for less than 60 days, the

2 additional notice should be given as soon as possible to

3 the parties identified in § 639.6 and should include ref4 erence to the earlier notice, the date (or 14-day period)

5 to which the planned action is postponed, and the reasons

6 for the postponement. The notice should be given in a

7 manner which will provide the information to all affected

8 employees.

9 (b) If the postponement is for 60 days or more, the

10 additional notice should be treated as new notice subject

11 to the provisions of §§ 639.5, 639.6 and 639.7 of this part.

12 Rolling notice, in the sense of routine periodic notice,

13 given whether or not an office closing or mass layoff is

14 impending, and with the intent to evade the purpose of

15 the Act rather than give specific notice as required by

16 WARN, is not acceptable.

17 § 639.11 [Reserved]

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