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[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. Res. 242 Agreed to Senate (ATS)]

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.

    Resolved, That the following regulations issued by the Office of 
Compliance on January 22, 1996 are hereby approved as follows:

                   PART 825--FAMILY AND MEDICAL LEAVE

825.1  Purpose and scope.
825.2  [Reserved].
 Subpart A--What is the Family and Medical Leave Act, and to Whom Does 
          it Apply under the Congressional Accountability Act?

825.100  What is the Family and Medical Leave Act?
825.101  What is the purpose of the FMLA?
825.102  When are the FMLA and the CAA effective for covered employees 
                            and employing offices?
825.103  How does the FMLA, as made applicable by the CAA, affect leave 
                            in progress on, or taken before, the 
                            effective date of the CAA?
825.104  What employing offices are covered by the FMLA, as made 
                            applicable by the CAA?
825.105  [Reserved].
825.106  How is ``joint employment'' treated under the FMLA as made 
                            applicable by the CAA?
825.107--825.109  [Reserved].
825.110  Which employees are ``eligible'' to take FMLA leave under 
                            these regulations?
825.111  [Reserved].
825.112  Under what kinds of circumstances are employing offices 
                            required to grant family or medical leave?
825.113  What do ``spouse'', ``parent'', and ``son or daughter'' mean 
                            for purposes of an employee qualifying to 
                            take FMLA leave?
825.114  What is a ``serious health condition'' entitling an employee 
                            to FMLA leave?
825.115  What does it mean that ``the employee is unable to perform the 
                            (functions of the position of the 
                            employee''?
825.116  What does it mean that an employee is ``needed to care for'' a 
                            family member?
825.117  For an employee seeking intermittent FMLA leave or leave on a 
                            reduced leave schedule, what is meant by 
                            ``the medical necessity for'' such leave?
825.118  What is a ``health care provider''?
Subpart B--What Leave Is an Employee Entitled To Take Under The Family 
    and Medical Leave Act, as Made Applicable by the Congressional 
                          Accountability Act?

825.200  How much leave may an employee take?
825.201  If leave is taken for the birth of a child, or for placement 
                            of a child for adoption or foster care, 
                            when must the leave be concluded?
825.202  How much leave may a husband and wife take if they are 
                            employed by the same employing office?
825.203  Does FMLA leave have to be taken all at once, or can it be 
                            taken in parts?
825.204  May an employing office transfer an employee to an 
                            ``alternative position'' in order to 
                            accommodate intermittent leave or a reduced 
                            leave schedule?
825.205  How does one determine the amount of leave used where an 
                            employee takes leave intermittently or on a 
                            reduced leave schedule?
825.206  May an employing office deduct hourly amounts from an 
                            employee's salary, when providing unpaid 
                            leave under FMLA, as made applicable by the 
                            CAA, without affecting the employee's 
                            qualification for exemption as an 
                            executive, administrative, or professional 
                            employee, or when utilizing the fluctuating 
                            workweek method for payment of overtime, 
                            under the Fair Labor Standards Act?
825.207  Is FMLA leave paid or unpaid?
825.208  Under what circumstances may an employing office designate 
                            leave, paid or unpaid, as FMLA leave and, 
                            as a result, enable leave to be counted 
                            against the employee's total FMLA leave 
                            entitlement?
825.209  Is an employee entitled to benefits while using FMLA leave?
825.210  How may employees on FMLA leave pay their share of group 
                            health benefit premiums?
825.211  What special health benefits maintenance rules apply to multi-
                            employer health plans?
825.212  What are the consequences of an employee's failure to make 
                            timely health plan premium payments?
825.213  May an employing office recover costs it incurred for 
                            maintaining ``group health plan'' or other 
                            non-health benefits coverage during FMLA 
                            leave?
825.214  What are an employee's rights on returning to work from FMLA 
                            leave?
825.215  What is an equivalent position?
825.216  Are there any limitations on an employing office's obligation 
                            to reinstate an employee?
825.217  What is a ``key employee''?
825.218  What does ``substantial and grievous economic injury'' mean?
825.219  What are the rights of a key employee?
825.220  How are employees protected who request leave or otherwise 
                            assert FMLA rights?
Subpart C--How Do Employees Learn of Their Rights and Obligations under 
  the FMLA, as Made Applicable by the CAA, and What Can an Employing 
                     Office Require of an Employee?

825.300  [Reserved].
825.301  What notices to employees are required of employing offices 
                            under the FMLA as made applicable by the 
                            CAA?
825.302  What notice does an employee have to give an employing office 
                            when the need for FMLA leave is 
                            foreseeable?
825.303  What are the requirements for an employee to furnish notice to 
                            an employing office where the need for FMLA 
                            leave is not foreseeable?
825.304  What recourse do employing offices have if employees fail to 
                            provide the required notice?
825.305  When must an employee provide medical certification to support 
                            FMLA leave?
825.306  How much information may be required in medical certifications 
                            of a serious health condition?
825.307  What may an employing office do if it questions the adequacy 
                            of a medical certification?
825.308  Under what circumstances may an employing office request 
                            subsequent recertifications of medical 
                            conditions?
825.309  What notice may an employing office require regarding an 
                            employee's intent to return to work?
825.310  Under what circumstances may an employing office require that 
                            an employee submit a medical certification 
                            that the employee is able (or unable) to 
                            return to work (i.e., a ``fitness-for-
                            duty'' report)?
825.311  What happens if an employee fails to satisfy the medical 
                            certification and/or recertification 
                            requirements?
825.312  Under what circumstances may an employing office refuse to 
                            provide FMLA leave or reinstatement to 
                            eligible employees?
      Subpart D--What Enforcement Mechanisms Does the CAA Provide?

825.400  What can employees do who believe that their rights under the 
                            FMLA as made applicable by the CAA have 
                            been violated?
825.401--825.404  [Reserved].
                         Subpart E--[Reserved]

      Subpart F--What Special Rules Apply to Employees of Schools?

825.600  To whom do the special rules apply?
825.601  What limitations apply to the taking of intermittent leave or 
                            leave on a reduced leave schedule?
825.602  What limitations apply to the taking of leave near the end of 
                            an academic term?
825.603  Is all leave taken during ``periods of a particular duration'' 
                            counted against the FMLA leave entitlement?
825.604  What special rules apply to restoration to ``an equivalent 
                            position''?
     Subpart G--How Do Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements Affect Employee Rights Under the FMLA 
                     as Made Applicable by the CAA?

825.700  What if an employing office provides more generous benefits 
                            than required by FMLA as Made Applicable by 
                            the CAA?
825.701  [Reserved].
825.702  How does FMLA affect anti-discrimination laws as applied by 
                            section 201 of the CAA?
                         Subpart H--Definitions

825.800  Definitions.
Appendix A to Part 825--[Reserved].
Appendix B to Part 825--Certification of Physician or Practitioner.
Appendix C to Part 825--[Reserved].
Appendix D to Part 825--Prototype Notice: Employing Office Response to 
                            Employee Request for Family and Medical 
                            Leave.
Appendix E to Part 825--[Reserved].

                   PART 825--FAMILY AND MEDICAL LEAVE

Sec. 825.1  Purpose and scope
    (a) Section 202 of the Congressional Accountability Act (CAA) (2 
U.S.C. 1312) applies the rights and protections of sections 101 through 
105 of the Family and Medical Leave Act of 1993 (FMLA) (29 U.S.C. 2611-
2615) to covered employees. (The term ``covered employee'' is defined 
in section 101(3) of the CAA (2 U.S.C. 1301(3)). See Sec. 825.800 of 
these regulations for that definition.) The purpose of this part is to 
set forth the regulations to carry out the provisions of section 202 of 
the CAA.
    (b) These regulations are issued by the Board of Directors, Office 
of Compliance, pursuant to sections 202(d) and 304 of the CAA, which 
direct the Board to promulgate regulations implementing section 202 
that are ``the same as substantive regulations promulgated by the 
Secretary of Labor to implement the statutory provisions referred to in 
subsection (a) [of section 202 of the CAA] except insofar as the Board 
may determine, for good cause shown . . . that a modification of such 
regulations would be more effective for the implementation of the 
rights and protections under this section''. The regulations issued by 
the Board herein are on all matters for which section 202 of the CAA 
requires regulations to be issued. Specifically, it is the Board's 
considered judgment, based on the information available to it at the 
time of the promulgation of these regulations, that, with the exception 
of regulations adopted and set forth herein, there are no other 
``substantive regulations promulgated by the Secretary of Labor to 
implement the statutory provisions referred to in subsection (a) [of 
section 202 of the CAA]''.
    (c) In promulgating these regulations, the Board has made certain 
technical and nomenclature changes to the regulations as promulgated by 
the Secretary. Such changes are intended to make the provisions adopted 
accord more naturally to situations in the legislative branch. However, 
by making these changes, the Board does not intend a substantive 
difference between these regulations and those of the Secretary from 
which they are derived. Moreover, such changes, in and of themselves, 
are not intended to constitute an interpretation of the regulation or 
of the statutory provisions of the CAA upon which they are based.
Sec. 825.2  [Reserved]

 Subpart A--What is the Family and Medical Leave Act, and to Whom Does 
          it Apply under the Congressional Accountability Act?

Sec. 825.100  What is the Family and Medical Leave Act?
    (a) The Family and Medical Leave Act of 1993 (FMLA), as made 
applicable by the Congressional Accountability Act (CAA), allows 
``eligible'' employees of an employing office to take job-protected, 
unpaid leave, or to substitute appropriate paid leave if the employee 
has earned or accrued it, for up to a total of 12 workweeks in any 12 
months because of the birth of a child and to care for the newborn 
child, because of the placement of a child with the employee for 
adoption or foster care, because the employee is needed to care for a 
family member (child, spouse, or parent) with a serious health 
condition, or because the employee's own serious health condition makes 
the employee unable to perform the functions of his or her job (see 
Sec. 825.306(b)(4)). In certain cases, this leave may be taken on an 
intermittent basis rather than all at once, or the employee may work a 
part-time schedule.
    (b) An employee on FMLA leave is also entitled to have health 
benefits maintained while on leave as if the employee had continued to 
work instead of taking the leave. If an employee was paying all or part 
of the premium payments prior to leave, the employee would continue to 
pay his or her share during the leave period. The employing office or a 
disbursing or other financial office of the Senate may recover its 
share only if the employee does not return to work for a reason other 
than the serious health condition of the employee or the employee's 
immediate family member, or another reason beyond the employee's 
control.
    (c) An employee generally has a right to return to the same 
position or an equivalent position with equivalent pay, benefits and 
working conditions at the conclusion of the leave. The taking of FMLA 
leave cannot result in the loss of any benefit that accrued prior to 
the start of the leave.
    (d) The employing office has a right to 30 days advance notice from 
the employee where practicable. In addition, the employing office may 
require an employee to submit certification from a health care provider 
to substantiate that the leave is due to the serious health condition 
of the employee or the employee's immediate family member. Failure to 
comply with these requirements may result in a delay in the start of 
FMLA leave. Pursuant to a uniformly applied policy, the employing 
office may also require that an employee present a certification of 
fitness to return to work when the absence was caused by the employee's 
serious health condition (see Sec. 825.311(c)). The employing office 
may delay restoring the employee to employment without such certificate 
relating to the health condition which caused the employee's absence.
Sec. 825.101  What is the purpose of the FMLA?
    (a) FMLA is intended to allow employees to balance their work and 
family life by taking reasonable unpaid leave for medical reasons, for 
the birth or adoption of a child, and for the care of a child, spouse, 
or parent who has a serious health condition. The FMLA is intended to 
balance the demands of the workplace with the needs of families, to 
promote the stability and economic security of families, and to promote 
national interests in preserving family integrity. It was intended that 
the FMLA accomplish these purposes in a manner that accommodates the 
legitimate interests of employers, and in a manner consistent with the 
Equal Protection Clause of the Fourteenth Amendment in minimizing the 
potential for employment discrimination on the basis of sex, while 
promoting equal employment opportunity for men and women.
    (b) The enactment of FMLA was predicated on two fundamental 
concerns ``the needs of the American workforce, and the development of 
high-performance organizations''. Increasingly, America's children and 
elderly are dependent upon family members who must spend long hours at 
work. When a family emergency arises, requiring workers to attend to 
seriously-ill children or parents, or to newly-born or adopted infants, 
or even to their own serious illness, workers need reassurance that 
they will not be asked to choose between continuing their employment, 
and meeting their personal and family obligations or tending to vital 
needs at home.
    (c) The FMLA is both intended and expected to benefit employers as 
well as their employees. A direct correlation exists between stability 
in the family and productivity in the workplace. FMLA will encourage 
the development of high-performance organizations. When workers can 
count on durable links to their workplace they are able to make their 
own full commitments to their jobs. The record of hearings on family 
and medical leave indicate the powerful productive advantages of stable 
workplace relationships, and the comparatively small costs of 
guaranteeing that those relationships will not be dissolved while 
workers attend to pressing family health obligations or their own 
serious illness.
Sec. 825.102  When are the FMLA and the CAA effective for covered 
              employees and employing offices?
    (a) The rights and protection of sections 101 through 105 of the 
FMLA have applied to certain Senate employees and certain employing 
offices of the Senate since August 5, 1993 (see section 501 of FMLA).
    (b) The rights and protection of sections 101 through 105 of the 
FMLA have applied to any employee in an employment position and any 
employment authority of the House of Representatives since August 5, 
1993 (see section 502 of FMLA).
    (c) The rights and protections of sections 101 through 105 of the 
FMLA have applied to certain employing offices and covered employees 
other than those referred to in paragraphs (a) and (b) of this section 
for certain periods since August 5, 1993 (see, e.g., title V of the 
FMLA, sections 501 and 502).
    (d) The provisions of section 202 of the CAA that apply rights and 
protections of the FMLA to covered employees are effective on January 
23, 1996.
    (e) The period prior to the effective date of the application of 
FMLA rights and protections under the CAA must be considered in 
determining employee eligibility.
Sec. 825.103  How does the FMLA, as made applicable by the CAA, affect 
              leave in progress on, or taken before, the effective date 
              of the CAA?
    (a) An eligible employee's right to take FMLA leave began on the 
date that the rights and protections of the FMLA first went into effect 
for the employing office and employee (see Sec. 825.102(a)). Any leave 
taken prior to the date on which the rights and protections of the FMLA 
first became effective for the employing office from which the leave 
was taken may not be counted for purposes of the FMLA as made 
applicable by the CAA. If leave qualifying as FMLA leave was underway 
prior to the effective date of the FMLA for the employing office from 
which the leave was taken and continued after the FMLA's effective date 
for that office, only that portion of leave taken on or after the 
FMLA's effective date may be counted against the employee's leave 
entitlement under the FMLA, as made applicable by the CAA.
    (b) If an employing office-approved leave is underway when the 
application of the FMLA by the CAA takes effect, no further notice 
would be required of the employee unless the employee requests an 
extension of the leave. For leave which commenced on the effective date 
or shortly thereafter, such notice must have been given which was 
practicable, considering the foreseeability of the need for leave and 
the effective date.
    (c) Starting on January 23, 1996, an employee is entitled to FMLA 
leave under these regulations if the reason for the leave is qualifying 
under the FMLA, as made applicable by the CAA, even if the event 
occasioning the need for leave (e.g., the birth of a child) occurred 
before such date (so long as any other requirements are satisfied).
Sec. 825.104  What employing offices are covered by the FMLA, as made 
              applicable by the CAA?
    (a) The FMLA, as made applicable by the CAA, covers all employing 
offices. As used in the CAA, the term ``employing office'' means--
            (1) the personal office of a Member of the House of 
        Representatives or of a Senator;
            (2) a committee of the House of Representatives or the 
        Senate or a joint committee;
            (3) any other office headed by a person with the final 
        authority to appoint, hire, discharge, and set the terms, 
        conditions, or privileges of the employment of an employee of 
        the House of Representatives or the Senate; or
            (4) the Capitol Guide Board, the Capitol Police Board, the 
        Congressional Budget Office, the Office of the Architect of the 
        Capitol, the Office of the Attending Physician, the Office of 
        Compliance, and the Office of Technology Assessment.
    (b) [Reserved]
    (c) Separate entities will be deemed to be parts of a single 
employer for purposes of the FMLA, as made applicable by the CAA, if 
they meet the ``integrated employer'' test. A determination of whether 
or not separate entities are an integrated employer is not determined 
by the application of any single criterion, but rather the entire 
relationship is to be reviewed in its totality. Factors considered in 
determining whether two or more entities are an integrated employer 
include:
            (i) Common management;
            (ii) Interrelation between operations;
            (iii) Centralized control of labor relations; and
            (iv) Degree of common financial control.
Sec. 825.105  [Reserved]
Sec. 825.106  How is ``joint employment'' treated under the FMLA as 
              made applicable by the CAA?
    (a) Where two or more employing offices exercise some control over 
the work or working conditions of the employee, the employing offices 
may be joint employers under FMLA, as made applicable by the CAA. Where 
the employee performs work which simultaneously benefits two or more 
employing offices, or works for two or more employing offices at 
different times during the workweek, a joint employment relationship 
generally will be considered to exist in situations such as:
            (1) Where there is an arrangement between employing offices 
        to share an employee's services or to interchange employees;
            (2) Where one employing office acts directly or indirectly 
        in the interest of the other employing office in relation to 
        the employee; or
            (3) Where the employing offices are not completely 
        disassociated with respect to the employee's employment and may 
        be deemed to share control of the employee, directly or 
        indirectly, because one employing office controls, is 
        controlled by, or is under common control with the other 
        employing office.
    (b) A determination of whether or not a joint employment 
relationship exists is not determined by the application of any single 
criterion, but rather the entire relationship is to be viewed in its 
totality. For example, joint employment will ordinarily be found to 
exist when--
            (1) an employee, who is employed by an employing office 
        other than the personal office of a Member of the House of 
        Representatives or of a Senator, is under the actual direction 
        and control of the Member of the House of Representatives or 
        Senator; or
            (2) two or more employing offices employ an individual to 
        work on common issues or other matters for both or all of them.
    (c) When employing offices employ a covered employee jointly, they 
may designate one of themselves to be the primary employing office, and 
the other or others to be the secondary employing office(s). Such a 
designation shall be made by written notice to the covered employee.
    (d) If an employing office is designated a primary employing office 
pursuant to paragraph (c) of this section, only that employing office 
is responsible for giving required notices to the covered employee, 
providing FMLA leave, and maintenance of health benefits. Job 
restoration is the primary responsibility of the primary employing 
office, and the secondary employing office(s) may, subject to the 
limitations in Sec. 825.216, be responsible for accepting the employee 
returning from FMLA leave.
    (e) If employing offices employ an employee jointly, but fail to 
designate a primary employing office pursuant to paragraph (c) of this 
section, then all of these employing offices shall be jointly and 
severally liable for giving required notices to the employee, for 
providing FMLA leave, for assuring that health benefits are maintained, 
and for job restoration. The employee may give notice of need for FMLA 
leave, as described in Sec. Sec.  825.302 and 825.303, to whichever of 
these employing offices the employee chooses. If the employee makes a 
written request for restoration to one of these employing offices, that 
employing office shall be primarily responsible for job restoration, 
and the other employing office(s) may, subject to the limitations in 
Sec. 825.216, be responsible for accepting the employee returning from 
FMLA leave.
Sec. 825.107 [Reserved]
Sec. 825.108 [Reserved]
Sec. 825.109 [Reserved]
Sec. 825.110 Which employees are ``eligible'' to take FMLA leave under 
              these regulations?
    (a) An ``eligible employee'' under these regulations means a 
covered employee who has been employed in any employing office for 12 
months and for at least 1,250 hours of employment during the previous 
12 months.
    (b) The 12 months an employee must have been employed by any 
employing office need not be consecutive months. If an employee worked 
for two or more employing offices sequentially, the time worked will be 
aggregated to determine whether it equals 12 months. If an employee is 
maintained on the payroll for any part of a week, including any periods 
of paid or unpaid leave (sick, vacation) during which other benefits or 
compensation are provided by the employer (e.g., workers' compensation, 
group health plan benefits, etc.), the week counts as a week of 
employment. For purposes of determining whether intermittent/
occasional/casual employment qualifies as ``at least 12 months'', 52 
weeks is deemed to be equal to 12 months.
    (c) If an employee was employed by two or more employing offices, 
either sequentially or concurrently, the hours of service will be 
aggregated to determine whether the minimum of 1,250 hours has been 
reached. Whether an employee has worked the minimum 1,250 hours of 
service is determined according to the principles established under the 
Fair Labor Standards Act (FLSA), as applied by section 203 of the CAA 
(2 U.S.C. 1313), for determining compensable hours of work. The 
determining factor is the number of hours an employee has worked for 
one or more employing offices. The determination is not limited by 
methods of record-keeping, or by compensation agreements that do not 
accurately reflect all of the hours an employee has worked for or been 
in service to the employing office. Any accurate accounting of actual 
hours worked may be used. For this purpose, full-time teachers (see 
Sec. 825.800 for definition) of an elementary or secondary school 
system, or institution of higher education, or other educational 
establishment or institution are deemed to meet the 1,250 hour test. An 
employing office must be able to clearly demonstrate that such an 
employee did not work 1,250 hours during the previous 12 months in 
order to claim that the employee is not ``eligible'' for FMLA leave.
    (d) The determinations of whether an employee has worked for any 
employing office for at least 1,250 hours in the previous 12 months and 
has been employed by any employing office for a total of at least 12 
months must be made as of the date leave commences. The ``previous 12 
months'' means the 12 months immediately preceding the commencement of 
the leave. If an employee notifies the employing office of need for 
FMLA leave before the employee meets these eligibility criteria, the 
employing office must either confirm the employee's eligibility based 
upon a projection that the employee will be eligible on the date leave 
would commence or must advise the employee when the eligibility 
requirement is met. If the employing office confirms eligibility at the 
time the notice for leave is received, the employing office may not 
subsequently challenge the employee's eligibility. In the latter case, 
if the employing office does not advise the employee whether the 
employee is eligible as soon as practicable (i.e., two business days 
absent extenuating circumstances) after the date employee eligibility 
is determined, the employee will have satisfied the notice requirements 
and the notice of leave is considered current and outstanding until the 
employing office does advise. If the employing office fails to advise 
the employee whether the employee is eligible prior to the date the 
requested leave is to commence, the employee will be deemed eligible. 
The employing office may not, then, deny the leave. Where the employee 
does not give notice of the need for leave more than two business days 
prior to commencing leave, the employee will be deemed to be eligible 
if the employing office fails to advise the employee that the employee 
is not eligible within two business days of receiving the employee's 
notice.
    (e) The period prior to the effective date of the application of 
FMLA rights and protections under the CAA must be considered in 
determining employee's eligibility.
    (f) [Reserved]
Sec. 825.111 [Reserved]
Sec. 825.112 Under what kinds of circumstances are employing offices 
              required to grant family or medical leave?
    (a) Employing offices are required to grant leave to eligible 
employees:
            (1) For birth of a son or daughter, and to care for the 
        newborn child;
            (2) For placement with the employee of a son or daughter 
        for adoption or foster care;
            (3) To care for the employee's spouse, son, daughter, or 
        parent with a serious health condition; and
            (4) Because of a serious health condition that makes the 
        employee unable to perform the functions of the employee's job.
    (b) The right to take leave under FMLA as made applicable by the 
CAA applies equally to male and female employees. A father, as well as 
a mother, can take family leave for the birth, placement for adoption 
or foster care of a child.
    (c) Circumstances may require that FMLA leave begin before the 
actual date of birth of a child. An expectant mother may take FMLA 
leave pursuant to paragraph (a)(4) of this section before the birth of 
the child for prenatal care or if her condition makes her unable to 
work.
    (d) Employing offices are required to grant FMLA leave pursuant to 
paragraph (a)(2) of this section before the actual placement or 
adoption of a child if an absence from work is required for the 
placement for adoption or foster care to proceed. For example, the 
employee may be required to attend counseling sessions, appear in 
court, consult with his or her attorney or the doctor(s) representing 
the birth parent, or submit to a physical examination. The source of an 
adopted child (e.g., whether from a licensed placement agency or 
otherwise) is not a factor in determining eligibility for leave for 
this purpose.
    (e) Foster care is 24-hour care for children in substitution for, 
and away from, their parents or guardian. Such placement is made by or 
with the agreement of the State as a result of a voluntary agreement 
between the parent or guardian that the child be removed from the home, 
or pursuant to a judicial determination of the necessity for foster 
care, and involves agreement between the State and foster family that 
the foster family will take care of the child. Although foster care may 
be with relatives of the child, State action is involved in the removal 
of the child from parental custody.
    (f) In situations where the employer/employee relationship has been 
interrupted, such as an employee who has been on layoff, the employee 
must be recalled or otherwise be re-employed before being eligible for 
FMLA leave. Under such circumstances, an eligible employee is 
immediately entitled to further FMLA leave for a qualifying reason.
    (g) FMLA leave is available for treatment for substance abuse 
provided the conditions of Sec. 825.114 are met. However, treatment for 
substance abuse does not prevent an employing office from taking 
employment action against an employee. The employing office may not 
take action against the employee because the employee has exercised his 
or her right to take FMLA leave for treatment. However, if the 
employing office has an established policy, applied in a non-
discriminatory manner that has been communicated to all employees, that 
provides under certain circumstances an employee may be terminated for 
substance abuse, pursuant to that policy the employee may be terminated 
whether or not the employee is presently taking FMLA leave. An employee 
may also take FMLA leave to care for an immediate family member who is 
receiving treatment for substance abuse. The employing office may not 
take action against an employee who is providing care for an immediate 
family member receiving treatment for substance abuse.
Sec. 825.113 What do ``spouse'', ``parent'', and ``son or daughter'' 
              mean for purposes of an employee qualifying to take FMLA 
              leave?
    (a) Spouse means a husband or wife as defined or recognized under 
State law for purposes of marriage in the State where the employee 
resides, including common law marriage in States where it is 
recognized.
    (b) Parent means a biological parent or an individual who stands or 
stood in loco parentis to an employee when the employee was a son or 
daughter as defined in (c) below. This term does not include parents 
``in law''.
    (c) Son or daughter means a biological, adopted, or foster child, a 
stepchild, a legal ward, or a child of a person standing in loco 
parentis, who is either under age 18, or age 18 or older and 
``incapable of self-care because of a mental or physical disability''.
            (1) ``Incapable of self-care'' means that the individual 
        requires active assistance or supervision to provide daily 
        self-care in three or more of the ``activities of daily 
        living'' (ADLs) or ``instrumental activities of daily living'' 
        (IADLs). Activities of daily living include adaptive activities 
        such as caring appropriately for one's grooming and hygiene, 
        bathing, dressing and eating. Instrumental activities of daily 
        living include cooking, cleaning, shopping, taking public 
        transportation, paying bills, maintaining a residence, using 
        telephones and directories, using a post office, etc.
            (2) ``Physical or mental disability'' means a physical or 
        mental impairment that substantially limits one or more of the 
        major life activities of an individual. See the Americans with 
        Disabilities Act (ADA), as made applicable by section 201(a)(3) 
        of the CAA (2 U.S.C. 1311(a)(3)).
            (3) Persons who are ``in loco parentis'' include those with 
        day-to-day responsibilities to care for and financially support 
        a child or, in the case of an employee, who had such 
        responsibility for the employee when the employee was a child. 
        A biological or legal relationship is not necessary.
    (d) For purposes of confirmation of family relationship, the 
employing office may require the employee giving notice of the need for 
leave to provide reasonable documentation or statement of family 
relationship. This documentation may take the form of a simple 
statement from the employee, or a child's birth certificate, a court 
document, etc. The employing office is entitled to examine 
documentation such as a birth certificate, etc., but the employee is 
entitled to the return of the official document submitted for this 
purpose.
Sec. 825.114 What is a ``serious health condition'' entitling an 
              employee to FMLA leave?
    (a) For purposes of FMLA, ``serious health condition'' entitling an 
employee to FMLA leave means an illness, injury, impairment, or 
physical or mental condition that involves:
            (1) Inpatient care (i.e., an overnight stay) in a hospital, 
        hospice, or residential medical care facility, including any 
        period of incapacity (for purposes of this section, defined to 
        mean inability to work, attend school or perform other regular 
        daily activities due to the serious health condition, treatment 
        therefor, or recovery therefrom), or any subsequent treatment 
        in connection with such inpatient care; or
            (2) Continuing treatment by a health care provider. A 
        serious health condition involving continuing treatment by a 
        health care provider includes any one or more of the following:
                    (i) A period of incapacity (i.e., inability to 
                work, attend school or perform other regular daily 
                activities due to the serious health condition, 
                treatment therefor, or recovery therefrom) of more than 
                three consecutive calendar days, and any subsequent 
                treatment or period of incapacity relating to the same 
                condition, that also involves:
                            (A) Treatment two or more times by a health 
                        care provider, by a nurse or physician's 
                        assistant under direct supervision of a health 
                        care provider, or by a provider of health care 
                        services (e.g., physical therapist) under 
                        orders of, or on referral by, a health care 
                        provider; or
                            (B) Treatment by a health care provider on 
                        at least one occasion which results in a 
                        regimen of continuing treatment under the 
                        supervision of the health care provider.
                    (ii) Any period of incapacity due to pregnancy, or 
                for prenatal care.
                    (iii) Any period of incapacity or treatment for 
                such incapacity due to a chronic serious health 
                condition. A chronic serious health condition is one 
                which:
                            (A) Requires periodic visits for treatment 
                        by a health care provider, or by a nurse or 
                        physician's assistant under direct supervision 
                        of a health care provider;
                            (B) Continues over an extended period of 
                        time (including recurring episodes of a single 
                        underlying condition); and
                            (C) May cause episodic rather than a 
                        continuing period of incapacity (e.g., asthma, 
                        diabetes, epilepsy, etc.).
                    (iv) A period of incapacity which is permanent or 
                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.
                    (v) Any period of absence to receive multiple 
                treatments (including any period of recovery therefrom) 
                by a health care provider or by a provider of health 
                care services under orders of, or on referral by, a 
                health care provider, either for restorative surgery 
                after an accident or other injury, or for a condition 
                that would likely result in a period of incapacity of 
                more than three consecutive calendar days in the 
                absence of medical intervention or treatment, such as 
                cancer (chemotherapy, radiation, etc.), severe 
                arthritis (physical therapy), kidney disease 
                (dialysis).
    (b) Treatment for purposes of paragraph (a) of this section 
includes (but is not limited to) examinations to determine if a serious 
health condition exists and evaluations of the condition. Treatment 
does not include routine physical examinations, eye examinations, or 
dental examinations. Under paragraph (a)(2)(i)(B), a regimen of 
continuing treatment includes, for example, a course of prescription 
medication (e.g., an antibiotic) or therapy requiring special equipment 
to resolve or alleviate the health condition (e.g., oxygen). A regimen 
of continuing treatment that includes the taking of over-the-counter 
medications such as aspirin, antihistamines, or salves; or bed-rest, 
drinking fluids, exercise, and other similar activities that can be 
initiated without a visit to a health care provider, is not, by itself, 
sufficient to constitute a regimen of continuing treatment for purposes 
of FMLA leave.
    (c) Conditions for which cosmetic treatments are administered (such 
as most treatments for acne or plastic surgery) are not ``serious 
health conditions'' unless inpatient hospital care is required or 
unless complications develop. Ordinarily, unless complications arise, 
the common cold, the flu, ear aches, upset stomach, minor ulcers, 
headaches other than migraine, routine dental or orthodontia problems, 
periodontal disease, etc., are examples of conditions that do not meet 
the definition of a serious health condition and do not qualify for 
FMLA leave. Restorative dental or plastic surgery after an injury or 
removal of cancerous growths are serious health conditions provided all 
the other conditions of this regulation are met. Mental illness 
resulting from stress or allergies may be serious health conditions, 
but only if all the conditions of this section are met.
    (d) Substance abuse may be a serious health condition if the 
conditions of this section are met. However, FMLA leave may only be 
taken for treatment for substance abuse by a health care provider or by 
a provider of health care services on referral by a health care 
provider. On the other hand, absence because of the employee's use of 
the substance, rather than for treatment, does not qualify for FMLA 
leave.
    (e) Absences attributable to incapacity under paragraphs (a)(2) 
(ii) or (iii) qualify for FMLA leave even though the employee or the 
immediate family member does not receive treatment from a health care 
provider during the absence, and even if the absence does not last more 
than three days. For example, an employee with asthma may be unable to 
report for work due to the onset of an asthma attack or because the 
employee's health care provider has advised the employee to stay home 
when the pollen count exceeds a certain level. An employee who is 
pregnant may be unable to report to work because of severe morning 
sickness.
Sec. 825.115 What does it mean that ``the employee is unable to perform 
              the functions of the position of the employee''?
    An employee is ``unable to perform the functions of the position'' 
where the health care provider finds that the employee is unable to 
work at all or is unable to perform any one of the essential functions 
of the employee's position within the meaning of the Americans with 
Disabilities Act (ADA), as made applicable by section 201(a)(3) of the 
CAA (2 U.S.C. 1311(a)(3)). An employee who must be absent from work to 
receive medical treatment for a serious health condition is considered 
to be unable to perform the essential functions of the position during 
the absence for treatment. An employing office has the option, in 
requiring certification from a health care provider, to provide a 
statement of the essential functions of the employee's position for the 
health care provider to review. For purposes of FMLA, the essential 
functions of the employee's position are to be determined with 
reference to the position the employee held at the time notice is given 
or leave commenced, whichever is earlier.
Sec. 825.116 What does it mean that an employee is ``needed to care 
              for'' a family member?
    (a) The medical certification provision that an employee is 
``needed to care for'' a family member encompasses both physical and 
psychological care. It includes situations where, for example, because 
of a serious health condition, the family member is unable to care for 
his or her own basic medical, hygienic, or nutritional needs or safety, 
or is unable to transport himself or herself to the doctor, etc. The 
term also includes providing psychological comfort and reassurance 
which would be beneficial to a child, spouse or parent with a serious 
health condition who is receiving inpatient or home care.
    (b) The term also includes situations where the employee may be 
needed to fill in for others who are caring for the family member, or 
to make arrangements for changes in care, such as transfer to a nursing 
home.
    (c) An employee's intermittent leave or a reduced leave schedule 
necessary to care for a family member includes not only a situation 
where the family member's condition itself is intermittent, but also 
where the employee is only needed intermittently ``such as where other 
care is normally available, or care responsibilities are shared with 
another member of the family or a third party.
Sec. 825.117 For an employee seeking intermittent FMLA leave or leave 
              on a reduced leave schedule, what is meant by ``the 
              medical necessity for'' such leave?
    For intermittent leave or leave on a reduced leave schedule, there 
must be a medical need for leave (as distinguished from voluntary 
treatments and procedures) and it must be that such medical need can be 
best accommodated through an intermittent or reduced leave schedule. 
The treatment regimen and other information described in the 
certification of a serious health condition (see Sec. 825.306) meets 
the requirement for certification of the medical necessity of 
intermittent leave or leave on a reduced leave schedule. Employees 
needing intermittent FMLA leave or leave on a reduced leave schedule 
must attempt to schedule their leave so as not to disrupt the employing 
office's operations. In addition, an employing office may assign an 
employee to an alternative position with equivalent pay and benefits 
that better accommodates the employee's intermittent or reduced leave 
schedule.
Sec. 825.118 What is a ``health care provider''?
    (a)(1) The term ``health care provider'' means:
            (i) A doctor of medicine or osteopathy who is authorized to 
        practice medicine or surgery (as appropriate) by the State in 
        which the doctor practices; or
            (ii) Any other person determined by the Office of 
        Compliance to be capable of providing health care services.
    (2) In making a determination referred to in subparagraph (1)(ii), 
and absent good cause shown to do otherwise, the Office of Compliance 
will follow any determination made by the Secretary of Labor (under 
section 101(6)(B) of the FMLA, 29 U.S.C. 2611(6)(B)) that a person is 
capable of providing health care services, provided the Secretary's 
determination was not made at the request of a person who was then a 
covered employee.
    (b) Others ``capable of providing health care services'' include 
only:
            (1) Podiatrists, dentists, clinical psychologists, 
        optometrists, and chiropractors (limited to treatment 
        consisting of manual manipulation of the spine to correct a 
        subluxation as demonstrated by X-ray to exist) authorized to 
        practice in the State and performing within the scope of their 
        practice as defined under State law;
            (2) Nurse practitioners, nurse-midwives and clinical social 
        workers who are authorized to practice under State law and who 
        are performing within the scope of their practice as defined 
        under State law;
            (3) Christian Science practitioners listed with the First 
        Church of Christ, Scientist in Boston, Massachusetts. Where an 
        employee or family member is receiving treatment from a 
        Christian Science practitioner, an employee may not object to 
        any requirement from an employing office that the employee or 
        family member submit to examination (though not treatment) to 
        obtain a second or third certification from a health care 
        provider other than a Christian Science practitioner except as 
        otherwise provided under applicable State or local law or 
        collective bargaining agreement.
            (4) Any health care provider from whom an employing office 
        or the employing office's group health plan's benefits manager 
        will accept certification of the existence of a serious health 
        condition to substantiate a claim for benefits; and
            (5) A health care provider listed above who practices in a 
        country other than the United States, who is authorized to 
        practice in accordance with the law of that country, and who is 
        performing within the scope of his or her practice as defined 
        under such law.
    (c) The phrase ``authorized to practice in the State'' as used in 
this section means that the provider must be authorized to diagnose and 
treat physical or mental health conditions without supervision by a 
doctor or other health care provider.

Subpart B--What Leave Is an Employee Entitled To Take Under the Family 
    and Medical Leave Act, as Made Applicable by the Congressional 
                          Accountability Act?

Sec. 825.200 How much leave may an employee take?
    (a) An eligible employee's FMLA leave entitlement is limited to a 
total of 12 workweeks of leave during any 12-month period for any one, 
or more, of the following reasons:
            (1) The birth of the employee's son or daughter, and to 
        care for the newborn child;
            (2) The placement with the employee of a son or daughter 
        for adoption or foster care, and to care for the newly placed 
        child;
            (3) To care for the employee's spouse, son, daughter, or 
        parent with a serious health condition; and
            (4) Because of a serious health condition that makes the 
        employee unable to perform one or more of the essential 
        functions of his or her job.
    (b) An employing office is permitted to choose any one of the 
following methods for determining the ``12-month period'' in which the 
12 weeks of leave entitlement occurs:
            (1) The calendar year;
            (2) Any fixed 12-month ``leave year'', such as a fiscal 
        year or a year starting on an employee's ``anniversary'' date;
            (3) The 12-month period measured forward from the date any 
        employee's first FMLA leave begins; or
            (4) A ``rolling'' 12-month period measured backward from 
        the date an employee uses any FMLA leave (except that such 
        measure may not extend back before the date on which the 
        application of FMLA rights and protections first becomes 
        effective for the employing office; see Sec. 825.102).
    (c) Under methods in paragraphs (b)(1) and (b)(2) of this section 
an employee would be entitled to up to 12 weeks of FMLA leave at any 
time in the fixed 12-month period selected. An employee could, 
therefore, take 12 weeks of leave at the end of the year and 12 weeks 
at the beginning of the following year. Under the method in paragraph 
(b)(3) of this section, an employee would be entitled to 12 weeks of 
leave during the year beginning on the first date FMLA leave is taken; 
the next 12-month period would begin the first time FMLA leave is taken 
after completion of any previous 12-month period. Under the method in 
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each 
time an employee takes FMLA leave the remaining leave entitlement would 
be any balance of the 12 weeks which has not been used during the 
immediately preceding 12 months. For example, if an employee has taken 
eight weeks of leave during the past 12 months, an additional four 
weeks of leave could be taken. If an employee used four weeks beginning 
February 1, 1997, four weeks beginning June 1, 1997, and four weeks 
beginning December 1, 1997, the employee would not be entitled to any 
additional leave until February 1, 1998. However, beginning on February 
1, 1998, the employee would be entitled to four weeks of leave, on June 
1 the employee would be entitled to an additional four weeks, etc.
    (d)(1) Employing offices will be allowed to choose any one of the 
alternatives in paragraph (b) of this section provided the alternative 
chosen is applied consistently and uniformly to all employees. An 
employing office wishing to change to another alternative is required 
to give at least 60 days notice to all employees, and the transition 
must take place in such a way that the employees retain the full 
benefit of 12 weeks of leave under whichever method affords the 
greatest benefit to the employee. Under no circumstances may a new 
method be implemented in order to avoid the CAA's FMLA leave 
requirements.
    (2) [Reserved]
    (e) If an employing office fails to select one of the options in 
paragraph (b) of this section for measuring the 12-month period, the 
option that provides the most beneficial outcome for the employee will 
be used. The employing office may subsequently select an option only by 
providing the 60-day notice to all employees of the option the 
employing office intends to implement. During the running of the 60-day 
period any other employee who needs FMLA leave may use the option 
providing the most beneficial outcome to that employee. At the 
conclusion of the 60-day period the employing office may implement the 
selected option.
    (f) For purposes of determining the amount of leave used by an 
employee, the fact that a holiday may occur within the week taken as 
FMLA leave has no effect; the week is counted as a week of FMLA leave. 
However, if for some reason the employing office's activity has 
temporarily ceased and employees generally are not expected to report 
for work for one or more weeks (e.g., a school closing two weeks for 
the Christmas/New Year holiday or the summer vacation or an employing 
office closing the office for repairs), the days the employing office's 
activities have ceased do not count against the employee's FMLA leave 
entitlement. Methods for determining an employee's 12-week leave 
entitlement are also described in Sec. 825.205.
    (g)(1) If employing offices jointly employ an employee, and if they 
designate a primary employer pursuant to Sec. 825.106(c), the primary 
employer may choose any one of the alternatives in paragraph (b) of 
this section for measuring the 12-month period, provided that the 
alternative chosen is applied consistently and uniformly to all 
employees of the primary employer including the jointly employed 
employee.
    (2) If employing offices fail to designated a primary employer 
pursuant to Sec. 825.106(c), an employee jointly employed by the 
employing offices may, by so notifying one of the employing offices, 
select that employing office to be the primary employer of the employee 
for purposes of the application of paragraphs (d) and (e) of this 
section.
Sec. 825.201  If leave is taken for the birth of a child, or for 
              placement of a child for adoption or foster care, when 
              must the leave be concluded?
    An employee's entitlement to leave for a birth or placement for 
adoption or foster care expires at the end of the 12-month period 
beginning on the date of the birth or placement, unless the employing 
office permits leave to be taken for a longer period. Any such FMLA 
leave must be concluded within this one-year period.
Sec. 825.202  How much leave may a husband and wife take if they are 
              employed by the same employing office?
    (a) A husband and wife who are eligible for FMLA leave and are 
employed by the same employing office may be limited to a combined 
total of 12 weeks of leave during any 12-month period if the leave is 
taken--
            (1) for birth of the employee's son or daughter or to care 
        for the child after birth;
            (2) for placement of a son or daughter with the employee 
        for adoption or foster care, or to care for the child after 
        placement; or
            (3) to care for the employee's parent with a serious health 
        condition.
    (b) This limitation on the total weeks of leave applies to leave 
taken for the reasons specified in paragraph (a) of this section as 
long as a husband and wife are employed by the ``same employing 
office''. It would apply, for example, even though the spouses are 
employed at two different work sites of an employing office. On the 
other hand, if one spouse is ineligible for FMLA leave, the other 
spouse would be entitled to a full 12 weeks of FMLA leave.
    (c) Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for one of the purposes in paragraph (a) of 
this section, the husband and wife would each be entitled to the 
difference between the amount he or she has taken individually and 12 
weeks for FMLA leave for a purpose other than those contained in 
paragraph (a) of this section. For example, if each spouse took 6 weeks 
of leave to care for a healthy, newborn child, each could use an 
additional 6 weeks due to his or her own serious health condition or to 
care for a child with a serious health condition.
Sec. 825.203  Does FMLA leave have to be taken all at once, or can it 
              be taken in parts?
    (a) FMLA leave may be taken ``intermittently or on a reduced leave 
schedule'' under certain circumstances. Intermittent leave is FMLA 
leave taken in separate blocks of time due to a single qualifying 
reason. A reduced leave schedule is a leave schedule that reduces an 
employee's usual number of working hours per workweek, or hours per 
workday. A reduced leave schedule is a change in the employee's 
schedule for a period of time, normally from full-time to part-time.
    (b) When leave is taken after the birth or placement of a child for 
adoption or foster care, an employee may take leave intermittently or 
on a reduced leave schedule only if the employing office agrees. Such a 
schedule reduction might occur, for example, where an employee, with 
the employing office's agreement, works part-time after the birth of a 
child, or takes leave in several segments. The employing office's 
agreement is not required, however, for leave during which the mother 
has a serious health condition in connection with the birth of her 
child or if the newborn child has a serious health condition.
    (c) Leave may be taken intermittently or on a reduced leave 
schedule when medically necessary for planned and/or unanticipated 
medical treatment of a related serious health condition by or under the 
supervision of a health care provider, or for recovery from treatment 
or recovery from a serious health condition. It may also be taken to 
provide care or psychological comfort to an immediate family member 
with a serious health condition.
            (1) Intermittent leave may be taken for a serious health 
        condition which requires treatment by a health care provider 
        periodically, rather than for one continuous period of time, 
        and may include leave of periods from an hour or more to 
        several weeks. Examples of intermittent leave would include 
        leave taken on an occasional basis for medical appointments, or 
        leave taken several days at a time spread over a period of six 
        months, such as for chemotherapy. A pregnant employee may take 
        leave intermittently for prenatal examinations or for her own 
        condition, such as for periods of severe morning sickness. An 
        example of an employee taking leave on a reduced leave schedule 
        is an employee who is recovering from a serious health 
        condition and is not strong enough to work a full-time 
        schedule.
            (2) Intermittent or reduced schedule leave may be taken for 
        absences where the employee or family member is incapacitated 
        or unable to perform the essential functions of the position 
        because of a chronic serious health condition even if he or she 
        does not receive treatment by a health care provider.
    (d) There is no limit on the size of an increment of leave when an 
employee takes intermittent leave or leave on a reduced leave schedule. 
However, an employing office may limit leave increments to the shortest 
period of time that the employing office's payroll system uses to 
account for absences or use of leave, provided it is one hour or less. 
For example, an employee might take two hours off for a medical 
appointment, or might work a reduced day of four hours over a period of 
several weeks while recuperating from an illness. An employee may not 
be required to take more FMLA leave than necessary to address the 
circumstance that precipitated the need for the leave, except as 
provided in Sec. Sec. 825.601 and 825.602.
Sec. 825.204 May an employing office transfer an employee to an 
              ``alternative position'' in order to accommodate 
              intermittent leave or a reduced leave schedule?
    (a) If an employee needs intermittent leave or leave on a reduced 
leave schedule that is foreseeable based on planned medical treatment 
for the employee or a family member, including during a period of 
recovery from a serious health condition, or if the employing office 
agrees to permit intermittent or reduced schedule leave for the birth 
of a child or for placement of a child for adoption or foster care, the 
employing office may require the employee to transfer temporarily, 
during the period the intermittent or reduced leave schedule is 
required, to an available alternative position for which the employee 
is qualified and which better accommodates recurring periods of leave 
than does the employee's regular position. See Sec. 825.601 for special 
rules applicable to instructional employees of schools.
    (b) Transfer to an alternative position may require compliance with 
any applicable collective bargaining agreement and any applicable law 
(such as the Americans with Disabilities Act, as made applicable by the 
CAA). Transfer to an alternative position may include altering an 
existing job to better accommodate the employee's need for intermittent 
or reduced leave.
    (c) The alternative position must have equivalent pay and benefits. 
An alternative position for these purposes does not have to have 
equivalent duties. The employing office may increase the pay and 
benefits of an existing alternative position, so as to make them 
equivalent to the pay and benefits of the employee's regular job. The 
employing office may also transfer the employee to a part-time job with 
the same hourly rate of pay and benefits, provided the employee is not 
required to take more leave than is medically necessary. For example, 
an employee desiring to take leave in increments of four hours per day 
could be transferred to a half-time job, or could remain in the 
employee's same job on a part-time schedule, paying the same hourly 
rate as the employee's previous job and enjoying the same benefits. The 
employing office may not eliminate benefits which otherwise would not 
be provided to part-time employees; however, an employing office may 
proportionately reduce benefits such as vacation leave where an 
employing office's normal practice is to base such benefits on the 
number of hours worked.
    (d) An employing office may not transfer the employee to an 
alternative position in order to discourage the employee from taking 
leave or otherwise work a hardship on the employee. For example, a 
white collar employee may not be assigned to perform laborer's work; an 
employee working the day shift may not be reassigned to the graveyard 
shift; an employee working in the headquarters facility may not be 
reassigned to a branch a significant distance away from the employee's 
normal job location. Any such attempt on the part of the employing 
office to make such a transfer will be held to be contrary to the 
prohibited-acts provisions of the FMLA, as made applicable by the CAA.
    (e) When an employee who is taking leave intermittently or on a 
reduced leave schedule and has been transferred to an alternative 
position no longer needs to continue on leave and is able to return to 
full-time work, the employee must be placed in the same or equivalent 
job as the job he/she left when the leave commenced. An employee may 
not be required to take more leave than necessary to address the 
circumstance that precipitated the need for leave.
Sec. 825.205 How does one determine the amount of leave used where an 
              employee takes leave intermittently or on a reduced leave 
              schedule?
    (a) If an employee takes leave on an intermittent or reduced leave 
schedule, only the amount of leave actually taken may be counted toward 
the 12 weeks of leave to which an employee is entitled. For example, if 
an employee who normally works five days a week takes off one day, the 
employee would use \1/5\ of a week of FMLA leave. Similarly, if a full-
time employee who normally works 8-hour days works 4-hour days under a 
reduced leave schedule, the employee would use \1/2\ week of FMLA leave 
each week.
    (b) Where an employee normally works a part-time schedule or 
variable hours, the amount of leave to which an employee is entitled is 
determined on a pro rata or proportional basis by comparing the new 
schedule with the employee's normal schedule. For example, if an 
employee who normally works 30 hours per week works only 20 hours a 
week under a reduced leave schedule, the employee's ten hours of leave 
would constitute one-third of a week of FMLA leave for each week the 
employee works the reduced leave schedule.
    (c) If an employing office has made a permanent or long-term change 
in the employee's schedule (for reasons other than FMLA, and prior to 
the notice of need for FMLA leave), the hours worked under the new 
schedule are to be used for making this calculation.
    (d) If an employee's schedule varies from week to week, a weekly 
average of the hours worked over the 12 weeks prior to the beginning of 
the leave period would be used for calculating the employee's normal 
workweek.
Sec. 825.206 May an employing office deduct hourly amounts from an 
              employee's salary, when providing unpaid leave under 
              FMLA, as made applicable by the CAA, without affecting 
              the employee's qualification for exemption as an 
              executive, administrative, or professional employee, or 
              when utilizing the fluctuating workweek method for 
              payment of overtime, under the Fair Labor Standards Act?
    (a) Leave taken under FMLA, as made applicable by the CAA, may be 
unpaid. If an employee is otherwise exempt from minimum wage and 
overtime requirements of the Fair Labor Standards Act (FLSA), as made 
applicable by the CAA, as a salaried executive, administrative, or 
professional employee (under regulations issued by the Board, at part 
541), providing unpaid FMLA-qualifying leave to such an employee will 
not cause the employee to lose the FLSA exemption. This means that 
under regulations currently in effect, where an employee meets the 
specified duties test, is paid on a salary basis, and is paid a salary 
of at least the amount specified in the regulations, the employing 
office may make deductions from the employee's salary for any hours 
taken as intermittent or reduced FMLA leave within a workweek, without 
affecting the exempt status of the employee. The fact that an employing 
office provides FMLA leave, whether paid or unpaid, or maintains any 
records regarding FMLA leave, will not be relevant to the determination 
whether an employee is exempt within the meaning of the Board's 
regulations at part 541.
    (b) For an employee paid in accordance with a fluctuating workweek 
method of payment for overtime, where permitted by section 203 of the 
CAA (2 U.S.C. 1313), the employing office, during the period in which 
intermittent or reduced schedule FMLA leave is scheduled to be taken, 
may compensate an employee on an hourly basis and pay only for the 
hours the employee works, including time and one-half the employee's 
regular rate for overtime hours. The change to payment on an hourly 
basis would include the entire period during which the employee is 
taking intermittent leave, including weeks in which no leave is taken. 
The hourly rate shall be determined by dividing the employee's weekly 
salary by the employee's normal or average schedule of hours worked 
during weeks in which FMLA leave is not being taken. If an employing 
office chooses to follow this exception from the fluctuating workweek 
method of payment, the employing office must do so uniformly, with 
respect to all employees paid on a fluctuating workweek basis for whom 
FMLA leave is taken on an intermittent or reduced leave schedule basis. 
If an employing office does not elect to convert the employee's 
compensation to hourly pay, no deduction may be taken for FMLA leave 
absences. Once the need for intermittent or reduced scheduled leave is 
over, the employee may be restored to payment on a fluctuating workweek 
basis.
    (c) This special exception to the ``salary basis'' requirements of 
the FLSA exemption or fluctuating workweek payment requirements applies 
only to employees of employing offices who are eligible for FMLA leave, 
and to leave which qualifies as (one of the four types of) FMLA leave. 
Hourly or other deductions which are not in accordance with the Board's 
regulations at part 541 or with a permissible fluctuating workweek 
method of payment for overtime may not be taken, for example, where the 
employee has not worked long enough to be eligible for FMLA leave 
without potentially affecting the employee's eligibility for exemption. 
Nor may deductions which are not permitted by the Board's regulations 
at part 541 or by a permissible fluctuating workweek method of payment 
for overtime be taken from such an employee's salary for any leave 
which does not qualify as FMLA leave, for example, deductions from an 
employee's pay for leave required under an employing office's policy or 
practice for a reason which does not qualify as FMLA leave, e.g., leave 
to care for a grandparent or for a medical condition which does not 
qualify as a serious health condition; or for leave which is more 
generous than provided by FMLA as made applicable by the CAA, such as 
leave in excess of 12 weeks in a year. The employing office may comply 
with the employing office's own policy/practice under these 
circumstances and maintain the employee's eligibility for exemption or 
for the fluctuating workweek method of pay by not taking hourly 
deductions from the employee's pay, in accordance with FLSA 
requirements, or may take such deductions, treating the employee as an 
``hourly'' employee and pay overtime premium pay for hours worked over 
40 in a workweek.
Sec. 825.207 Is FMLA leave paid or unpaid?
    (a) Generally, FMLA leave is unpaid. However, under the 
circumstances described in this section, FMLA, as made applicable by 
the CAA, permits an eligible employee to choose to substitute paid 
leave for FMLA leave. If an employee does not choose to substitute 
accrued paid leave, the employing office may require the employee to 
substitute accrued paid leave for FMLA leave.
    (b) Where an employee has earned or accrued paid vacation, personal 
or family leave, that paid leave may be substituted for all or part of 
any (otherwise) unpaid FMLA leave relating to birth, placement of a 
child for adoption or foster care, or care for a spouse, child or 
parent who has a serious health condition. The term ``family leave'' as 
used in FMLA refers to paid leave provided by the employing office 
covering the particular circumstances for which the employee seeks 
leave for either the birth of a child and to care for such child, 
placement of a child for adoption or foster care, or care for a spouse, 
child or parent with a serious health condition. For example, if the 
employing office's leave plan allows use of family leave to care for a 
child but not for a parent, the employing office is not required to 
allow accrued family leave to be substituted for FMLA leave used to 
care for a parent.
    (c) Substitution of paid accrued vacation, personal, or medical/
sick leave may be made for any (otherwise) unpaid FMLA leave needed to 
care for a family member or the employee's own serious health 
condition. Substitution of paid sick/medical leave may be elected to 
the extent the circumstances meet the employing office's usual 
requirements for the use of sick/medical leave. An employing office is 
not required to allow substitution of paid sick or medical leave for 
unpaid FMLA leave ``in any situation'' where the employing office's 
uniform policy would not normally allow such paid leave. An employee, 
therefore, has a right to substitute paid medical/sick leave to care 
for a seriously ill family member only if the employing office's leave 
plan allows paid leave to be used for that purpose. Similarly, an 
employee does not have a right to substitute paid medical/sick leave 
for a serious health condition which is not covered by the employing 
office's leave plan.
    (d)(1) Disability leave for the birth of a child would be 
considered FMLA leave for a serious health condition and counted in the 
12 weeks of leave permitted under FMLA as made applicable by the CAA. 
Because the leave pursuant to a temporary disability benefit plan is 
not unpaid, the provision for substitution of paid leave is 
inapplicable. However, the employing office may designate the leave as 
FMLA leave and count the leave as running concurrently for purposes of 
both the benefit plan and the FMLA leave entitlement. If the 
requirements to qualify for payments pursuant to the employing office's 
temporary disability plan are more stringent than those of FMLA as made 
applicable by the CAA, the employee must meet the more stringent 
requirements of the plan, or may choose not to meet the requirements of 
the plan and instead receive no payments from the plan and use unpaid 
FMLA leave or substitute available accrued paid leave.
    (2) The FMLA as made applicable by the CAA provides that a serious 
health condition may result from injury to the employee ``on or off'' 
the job. If the employing office designates the leave as FMLA leave in 
accordance with Sec. 825.208, the employee's FMLA 12-week leave 
entitlement may run concurrently with a workers' compensation absence 
when the injury is one that meets the criteria for a serious health 
condition. As the workers' compensation absence is not unpaid leave, 
the provision for substitution of the employee's accrued paid leave is 
not applicable. However, if the health care provider treating the 
employee for the workers' compensation injury certifies the employee is 
able to return to a ``light duty job'' but is unable to return to the 
same or equivalent job, the employee may decline the employing office's 
offer of a ``light duty job''. As a result the employee may lose 
workers' compensation payments, but is entitled to remain on unpaid 
FMLA leave until the 12-week entitlement is exhausted. As of the date 
workers' compensation benefits cease, the substitution provision 
becomes applicable and either the employee may elect or the employing 
office may require the use of accrued paid leave. See also Sec. Sec.  
825.210(f), 825.216(d), 825.220(d), 825.307(a)(1) and 825.702(d) (1) 
and (2) regarding the relationship between workers' compensation 
absences and FMLA leave.
    (e) Paid vacation or personal leave, including leave earned or 
accrued under plans allowing ``paid time off'', may be substituted, at 
either the employee's or the employing office's option, for any 
qualified FMLA leave. No limitations may be placed by the employing 
office on substitution of paid vacation or personal leave for these 
purposes.
    (f) If neither the employee nor the employing office elects to 
substitute paid leave for unpaid FMLA leave under the above conditions 
and circumstances, the employee will remain entitled to all the paid 
leave which is earned or accrued under the terms of the employing 
office's plan.
    (g) If an employee uses paid leave under circumstances which do not 
qualify as FMLA leave, the leave will not count against the 12 weeks of 
FMLA leave to which the employee is entitled. For example, paid sick 
leave used for a medical condition which is not a serious health 
condition does not count against the 12 weeks of FMLA leave 
entitlement.
    (h) When an employee or employing office elects to substitute paid 
leave (of any type) for unpaid FMLA leave under circumstances permitted 
by these regulations, and the employing office's procedural 
requirements for taking that kind of leave are less stringent than the 
requirements of FMLA as made applicable by the CAA (e.g., notice or 
certification requirements), only the less stringent requirements may 
be imposed. An employee who complies with an employing office's less 
stringent leave plan requirements in such cases may not have leave for 
an FMLA purpose delayed or denied on the grounds that the employee has 
not complied with stricter requirements of FMLA as made applicable by 
the CAA. However, where accrued paid vacation or personal leave is 
substituted for unpaid FMLA leave for a serious health condition, an 
employee may be required to comply with any less stringent medical 
certification requirements of the employing office's sick leave 
program. See Sec. Sec. 825.302(g), 825.305(e) and 825.306(c).
    (i) Compensatory time off, if any is authorized under applicable 
law, is not a form of accrued paid leave that an employing office may 
require the employee to substitute for unpaid FMLA leave. The employee 
may request to use his/her balance of compensatory time for an FMLA 
reason. If the employing office permits the accrual of compensatory 
time to be used in compliance with applicable Board regulations, the 
absence which is paid from the employee's accrued compensatory time 
``account'' may not be counted against the employee's FMLA leave 
entitlement.
Sec. 825.208 Under what circumstances may an employing office designate 
              leave, paid or unpaid, as FMLA leave and, as a result, 
              enable leave to be counted against the employee's total 
              FMLA leave entitlement?
    (a) In all circumstances, it is the employing office's 
responsibility to designate leave, paid or unpaid, as FMLA-qualifying, 
and to give notice of the designation to the employee as provided in 
this section. In the case of intermittent leave or leave on a reduced 
schedule, only one such notice is required unless the circumstances 
regarding the leave have changed. The employing office's designation 
decision must be based only on information received from the employee 
or the employee's spokesperson (e.g., if the employee is incapacitated, 
the employee's spouse, adult child, parent, doctor, etc., may provide 
notice to the employing office of the need to take FMLA leave). In any 
circumstance where the employing office does not have sufficient 
information about the reason for an employee's use of paid leave, the 
employing office should inquire further of the employee or the 
spokesperson to ascertain whether the paid leave is potentially FMLA-
qualifying.
            (1) An employee giving notice of the need for unpaid FMLA 
        leave must explain the reasons for the needed leave so as to 
        allow the employing office to determine that the leave 
        qualifies under the FMLA, as made applicable by the CAA. If the 
        employee fails to explain the reasons, leave may be denied. In 
        many cases, in explaining the reasons for a request to use paid 
        leave, especially when the need for the leave was unexpected or 
        unforeseen, an employee will provide sufficient information for 
        the employing office to designate the paid leave as FMLA leave. 
        An employee using accrued paid leave, especially vacation or 
        personal leave, may in some cases not spontaneously explain the 
        reasons or their plans for using their accrued leave.
            (2) As noted in Sec. 825.302(c), an employee giving notice 
        of the need for unpaid FMLA leave does not need to expressly 
        assert rights under the FMLA as made applicable by the CAA or 
        even mention the FMLA to meet his or her obligation to provide 
        notice, though the employee would need to state a qualifying 
        reason for the needed leave. An employee requesting or 
        notifying the employing office of an intent to use accrued paid 
        leave, even if for a purpose covered by FMLA, would not need to 
        assert such right either. However, if an employee requesting to 
        use paid leave for an FMLA-qualifying purpose does not explain 
        the reason for the leave--consistent with the employing 
        office's established policy or practice--and the employing 
        office denies the employee's request, the employee will need to 
        provide sufficient information to establish an FMLA-qualifying 
        reason for the needed leave so that the employing office is 
        aware of the employee's entitlement (i.e., that the leave may 
        not be denied) and, then, may designate that the paid leave be 
        appropriately counted against (substituted for) the employee's 
        12-week entitlement. Similarly, an employee using accrued paid 
        vacation leave who seeks an extension of unpaid leave for an 
        FMLA-qualifying purpose will need to state the reason. If this 
        is due to an event which occurred during the period of paid 
        leave, the employing office may count the leave used after the 
        FMLA-qualifying event against the employee's 12-week 
        entitlement.
    (b)(1) Once the employing office has acquired knowledge that the 
leave is being taken for an FMLA required reason, the employing office 
must promptly (within two business days absent extenuating 
circumstances) notify the employee that the paid leave is designated 
and will be counted as FMLA leave. If there is a dispute between an 
employing office and an employee as to whether paid leave qualifies as 
FMLA leave, it should be resolved through discussions between the 
employee and the employing office. Such discussions and the decision 
must be documented.
    (2) The employing office's notice to the employee that the leave 
has been designated as FMLA leave may be orally or in writing. If the 
notice is oral, it shall be confirmed in writing, no later than the 
following payday (unless the payday is less than one week after the 
oral notice, in which case the notice must be no later than the 
subsequent payday). The written notice may be in any form, including a 
notation on the employee's pay stub.
    (c) If the employing office requires paid leave to be substituted 
for unpaid leave, or that paid leave taken under an existing leave plan 
be counted as FMLA leave, this decision must be made by the employing 
office within two business days of the time the employee gives notice 
of the need for leave, or, where the employing office does not 
initially have sufficient information to make a determination, when the 
employing office determines that the leave qualifies as FMLA leave if 
this happens later. The employing office's designation must be made 
before the leave starts, unless the employing office does not have 
sufficient information as to the employee's reason for taking the leave 
until after the leave commenced. If the employing office has the 
requisite knowledge to make a determination that the paid leave is for 
an FMLA reason at the time the employee either gives notice of the need 
for leave or commences leave and fails to designate the leave as FMLA 
leave (and so notify the employee in accordance with paragraph (b)), 
the employing office may not designate leave as FMLA leave 
retroactively, and may designate only prospectively as of the date of 
notification to the employee of the designation. In such circumstances, 
the employee is subject to the full protections of the FMLA, as made 
applicable by the CAA, but none of the absence preceding the notice to 
the employee of the designation may be counted against the employee's 
12-week FMLA leave entitlement.
    (d) If the employing office learns that leave is for an FMLA 
purpose after leave has begun, such as when an employee gives notice of 
the need for an extension of the paid leave with unpaid FMLA leave, the 
entire or some portion of the paid leave period may be retroactively 
counted as FMLA leave, to the extent that the leave period qualified as 
FMLA leave. For example, an employee is granted two weeks paid vacation 
leave for a skiing trip. In mid-week of the second week, the employee 
contacts the employing office for an extension of leave as unpaid leave 
and advises that at the beginning of the second week of paid vacation 
leave the employee suffered a severe accident requiring 
hospitalization. The employing office may notify the employee that both 
the extension and the second week of paid vacation leave (from the date 
of the injury) is designated as FMLA leave. On the other hand, when the 
employee takes sick leave that turns into a serious health condition 
(e.g., bronchitis that turns into bronchial pneumonia) and the employee 
gives notice of the need for an extension of leave, the entire period 
of the serious health condition may be counted as FMLA leave.
    (e) Employing offices may not designate leave as FMLA leave after 
the employee has returned to work with two exceptions:
            (1) If the employee was absent for an FMLA reason and the 
        employing office did not learn the reason for the absence until 
        the employee's return (e.g., where the employee was absent for 
        only a brief period), the employing office may, upon the 
        employee's return to work, promptly (within two business days 
        of the employee's return to work) designate the leave 
        retroactively with appropriate notice to the employee. If leave 
        is taken for an FMLA reason but the employing office was not 
        aware of the reason, and the employee desires that the leave be 
        counted as FMLA leave, the employee must notify the employing 
        office within two business days of returning to work of the 
        reason for the leave. In the absence of such timely 
        notification by the employee, the employee may not subsequently 
        assert FMLA protections for the absence.
            (2) If the employing office knows the reason for the leave 
        but has not been able to confirm that the leave qualifies under 
        FMLA, or where the employing office has requested medical 
        certification which has not yet been received or the parties 
        are in the process of obtaining a second or third medical 
        opinion, the employing office should make a preliminary 
        designation, and so notify the employee, at the time leave 
        begins, or as soon as the reason for the leave becomes known. 
        Upon receipt of the requisite information from the employee or 
        of the medical certification which confirms the leave is for an 
        FMLA reason, the preliminary designation becomes final. If the 
        medical certifications fail to confirm that the reason for the 
        absence was an FMLA reason, the employing office must withdraw 
        the designation (with written notice to the employee).
    (f) If, before beginning employment with an employing office, an 
employee had been employed by another employing office, the subsequent 
employing office may count against the employee's FMLA leave 
entitlement FMLA leave taken from the prior employing office, except 
that, if the FMLA leave began after the effective date of these 
regulations (or if the FMLA leave was subject to other applicable 
requirement under which the employing office was to have designated the 
leave as FMLA leave), the prior employing office must have properly 
designated the leave as FMLA under these regulations or other 
applicable requirement.
Sec. 825.209 Is an employee entitled to benefits while using FMLA 
              leave?
    (a) During any FMLA leave, the employing office must maintain the 
employee's coverage under the Federal Employees Health Benefits Program 
or any group health plan (as defined in the Internal Revenue Code of 
1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would 
have been provided if the employee had been continuously employed 
during the entire leave period. All employing offices are subject to 
the requirements of the FMLA, as made applicable by the CAA, to 
maintain health coverage. The definition of ``group health plan'' is 
set forth in Sec. 825.800. For purposes of FMLA, the term ``group 
health plan'' shall not include an insurance program providing health 
coverage under which employees purchase individual policies from 
insurers provided that--
            (1) no contributions are made by the employing office;
            (2) participation in the program is completely voluntary 
        for employees;
            (3) the sole functions of the employing office with respect 
        to the program are, without endorsing the program, to permit 
        the insurer to publicize the program to employees, to collect 
        premiums through payroll deductions and to remit them to the 
        insurer;
            (4) the employing office receives no consideration in the 
        form of cash or otherwise in connection with the program, other 
        than reasonable compensation, excluding any profit, for 
        administrative services actually rendered in connection with 
        payroll deduction; and
            (5) the premium charged with respect to such coverage does 
        not increase in the event the employment relationship 
        terminates.
    (b) The same group health plan benefits provided to an employee 
prior to taking FMLA leave must be maintained during the FMLA leave. 
For example, if family member coverage is provided to an employee, 
family member coverage must be maintained during the FMLA leave. 
Similarly, benefit coverage during FMLA leave for medical care, 
surgical care, hospital care, dental care, eye care, mental health 
counseling, substance abuse treatment, etc., must be maintained during 
leave if provided in an employing office's group health plan, including 
a supplement to a group health plan, whether or not provided through a 
flexible spending account or other component of a cafeteria plan.
    (c) If an employing office provides a new health plan or benefits 
or changes health benefits or plans while an employee is on FMLA leave, 
the employee is entitled to the new or changed plan/benefits to the 
same extent as if the employee were not on leave. For example, if an 
employing office changes a group health plan so that dental care 
becomes covered under the plan, an employee on FMLA leave must be given 
the same opportunity as other employees to receive (or obtain) the 
dental care coverage. Any other plan changes (e.g., in coverage, 
premiums, deductibles, etc.) which apply to all employees of the 
workforce would also apply to an employee on FMLA leave.
    (d) Notice of any opportunity to change plans or benefits must also 
be given to an employee on FMLA leave. If the group health plan permits 
an employee to change from single to family coverage upon the birth of 
a child or otherwise add new family members, such a change in benefits 
must be made available while an employee is on FMLA leave. If the 
employee requests the changed coverage it must be provided by the 
employing office.
    (e) An employee may choose not to retain group health plan coverage 
during FMLA leave. However, when an employee returns from leave, the 
employee is entitled to be reinstated on the same terms as prior to 
taking the leave, including family or dependent coverages, without any 
qualifying period, physical examination, exclusion of pre-existing 
conditions, etc. See Sec. 825.212(c).
    (f) Except as required by the Consolidated Omnibus Budget 
Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, whichever is 
applicable, and for ``key'' employees (as discussed below), an 
employing office's obligation to maintain health benefits during leave 
(and to restore the employee to the same or equivalent employment) 
under FMLA ceases if and when the employment relationship would have 
terminated if the employee had not taken FMLA leave (e.g., if the 
employee's position is eliminated as part of a nondiscriminatory 
reduction in force and the employee would not have been transferred to 
another position); an employee informs the employing office of his or 
her intent not to return from leave (including before starting the 
leave if the employing office is so informed before the leave starts); 
or the employee fails to return from leave or continues on leave after 
exhausting his or her FMLA leave entitlement in the 12-month period.
    (g) If a ``key employee'' (see Sec. 825.218) does not return from 
leave when notified by the employing office that substantial or 
grievous economic injury will result from his or her reinstatement, the 
employee's entitlement to group health plan benefits continues unless 
and until the employee advises the employing office that the employee 
does not desire restoration to employment at the end of the leave 
period, or FMLA leave entitlement is exhausted, or reinstatement is 
actually denied.
    (h) An employee's entitlement to benefits other than group health 
benefits during a period of FMLA leave (e.g., holiday pay) is to be 
determined by the employing office's established policy for providing 
such benefits when the employee is on other forms of leave (paid or 
unpaid, as appropriate).
Sec. 825.210 How may employees on FMLA leave pay their share of group 
              health benefit premiums?
    (a) Group health plan benefits must be maintained on the same basis 
as coverage would have been provided if the employee had been 
continuously employed during the FMLA leave period. Therefore, any 
share of group health plan premiums which had been paid by the employee 
prior to FMLA leave must continue to be paid by the employee during the 
FMLA leave period. If premiums are raised or lowered, the employee 
would be required to pay the new premium rates. Maintenance of health 
insurance policies which are not a part of the employing office's group 
health plan, as described in Sec. 825.209(a), are the sole 
responsibility of the employee. The employee and the insurer should 
make necessary arrangements for payment of premiums during periods of 
unpaid FMLA leave.
    (b) If the FMLA leave is substituted paid leave, the employee's 
share of premiums must be paid by the method normally used during any 
paid leave, presumably as a payroll deduction.
    (c) If FMLA leave is unpaid, the employing office has a number of 
options for obtaining payment from the employee. The employing office 
may require that payment be made to the employing office or to the 
insurance carrier, but no additional charge may be added to the 
employee's premium payment for administrative expenses. The employing 
office may require employees to pay their share of premium payments in 
any of the following ways:
            (1) Payment would be due at the same time as it would be 
        made if by payroll deduction;
            (2) Payment would be due on the same schedule as payments 
        are made under COBRA or 5 U.S.C. 8905a, whichever is 
        applicable;
            (3) Payment would be prepaid pursuant to a cafeteria plan 
        at the employee's option;
            (4) The employing office's existing rules for payment by 
        employees on ``leave without pay'' would be followed, provided 
        that such rules do not require prepayment (i.e., prior to the 
        commencement of the leave) of the premiums that will become due 
        during a period of unpaid FMLA leave or payment of higher 
        premiums than if the employee had continued to work instead of 
        taking leave; or
            (5) Another system voluntarily agreed to between the 
        employing office and the employee, which may include prepayment 
        of premiums (e.g., through increased payroll deductions when 
        the need for the FMLA leave is foreseeable).
    (d) The employing office must provide the employee with advance 
written notice of the terms and conditions under which these payments 
must be made. (See Sec. 825.301.)
    (e) An employing office may not require more of an employee using 
FMLA leave than the employing office requires of other employees on 
``leave without pay''.
    (f) An employee who is receiving payments as a result of a workers' 
compensation injury must make arrangements with the employing office 
for payment of group health plan benefits when simultaneously taking 
unpaid FMLA leave. See paragraph (c) of this section and 
Sec. 825.207(d)(2).
Sec. 825.211 What special health benefits maintenance rules apply to 
              multi-employer health plans?
    (a) A multi-employer health plan is a plan to which more than one 
employer is required to contribute, and which is maintained pursuant to 
one or more collective bargaining agreements between employee 
organization(s) and the employers.
    (b) An employing office under a multi-employer plan must continue 
to make contributions on behalf of an employee using FMLA leave as 
though the employee had been continuously employed, unless the plan 
contains an explicit FMLA provision for maintaining coverage such as 
through pooled contributions by all employers party to the plan.
    (c) During the duration of an employee's FMLA leave, coverage by 
the group health plan, and benefits provided pursuant to the plan, must 
be maintained at the level of coverage and benefits which were 
applicable to the employee at the time FMLA leave commenced.
    (d) An employee using FMLA leave cannot be required to use 
``banked'' hours or pay a greater premium than the employee would have 
been required to pay if the employee had been continuously employed.
    (e) As provided in Sec. 825.209(f), group health plan coverage must 
be maintained for an employee on FMLA leave until:
            (1) the employee's FMLA leave entitlement is exhausted;
            (2) the employing office can show that the employee would 
        have been laid off and the employment relationship terminated; 
        or
            (3) the employee provides unequivocal notice of intent not 
        to return to work.
Sec. 825.212 What are the consequences of an employee's failure to make 
              timely health plan premium payments?
    (a)(1) In the absence of an established employing office policy 
providing a longer grace period, an employing office's obligations to 
maintain health insurance coverage cease under FMLA if an employee's 
premium payment is more than 30 days late. In order to drop the 
coverage for an employee whose premium payment is late, the employing 
office must provide written notice to the employee that the payment has 
not been received. Such notice must be mailed to the employee at least 
15 days before coverage is to cease, advising that coverage will be 
dropped on a specified date at least 15 days after the date of the 
letter unless the payment has been received by that date. If the 
employing office has established policies regarding other forms of 
unpaid leave that provide for the employing office to cease coverage 
retroactively to the date the unpaid premium payment was due, the 
employing office may drop the employee from coverage retroactively in 
accordance with that policy, provided the 15-day notice was given. In 
the absence of such a policy, coverage for the employee may be 
terminated at the end of the 30-day grace period, where the required 
15-day notice has been provided.
    (2) An employing office has no obligation regarding the maintenance 
of a health insurance policy which is not a ``group health plan''. See 
Sec. 825.209(a).
    (3) All other obligations of an employing office under FMLA would 
continue; for example, the employing office continues to have an 
obligation to reinstate an employee upon return from leave.
    (b) The employing office may recover the employee's share of any 
premium payments missed by the employee for any FMLA leave period 
during which the employing office maintains health coverage by paying 
the employee's share after the premium payment is missed.
    (c) If coverage lapses because an employee has not made required 
premium payments, upon the employee's return from FMLA leave the 
employing office must still restore the employee to coverage/benefits 
equivalent to those the employee would have had if leave had not been 
taken and the premium payment(s) had not been missed, including family 
or dependent coverage. See Sec. 825.215(d) (1)-(5). In such case, an 
employee may not be required to meet any qualification requirements 
imposed by the plan, including any new preexisting condition waiting 
period, to wait for an open season, or to pass a medical examination to 
obtain reinstatement of coverage.
Sec. 825.213 May an employing office recover costs it incurred for 
              maintaining ``group health plan'' or other non-health 
              benefits coverage during FMLA leave?
    (a) In addition to the circumstances discussed in Sec. 825.212(b), 
the share of health plan premiums paid by or on behalf of the employing 
office during a period of unpaid FMLA leave may be recovered from an 
employee if the employee fails to return to work after the employee's 
FMLA leave entitlement has been exhausted or expires, unless the reason 
the employee does not return is due to:
            (1) The continuation, recurrence, or onset of a serious 
        health condition of the employee or the employee's family 
        member which would otherwise entitle the employee to leave 
        under FMLA;
            (2) Other circumstances beyond the employee's control. 
        Examples of ``other circumstances beyond the employee's 
        control'' are necessarily broad. They include such situations 
        as where a parent chooses to stay home with a newborn child who 
        has a serious health condition; an employee's spouse is 
        unexpectedly transferred to a job location more than 75 miles 
        from the employee's worksite; a relative or individual other 
        than an immediate family member has a serious health condition 
        and the employee is needed to provide care; the employee is 
        laid off while on leave; or, the employee is a ``key employee'' 
        who decides not to return to work upon being notified of the 
        employing office's intention to deny restoration because of 
        substantial and grievous economic injury to the employing 
        office's operations and is not reinstated by the employing 
        office. Other circumstances beyond the employee's control would 
        not include a situation where an employee desires to remain 
        with a parent in a distant city even though the parent no 
        longer requires the employee's care, or a parent chooses not to 
        return to work to stay home with a well, newborn child; or
            (3) When an employee fails to return to work because of the 
        continuation, recurrence, or onset of a serious health 
        condition, thereby precluding the employing office from 
        recovering its (share of) health benefit premium payments made 
        on the employee's behalf during a period of unpaid FMLA leave, 
        the employing office may require medical certification of the 
        employee's or the family member's serious health condition. 
        Such certification is not required unless requested by the 
        employing office. The employee is required to provide medical 
        certification in a timely manner which, for purposes of this 
        section, is within 30 days from the date of the employing 
        office's request. For purposes of medical certification, the 
        employee may use the optional form developed for this purpose 
        (see Sec. 825.306(a) and Appendix B of this part). If the 
        employing office requests medical certification and the 
        employee does not provide such certification in a timely manner 
        (within 30 days), or the reason for not returning to work does 
        not meet the test of other circumstances beyond the employee's 
        control, the employing office may recover 100 percent of the 
        health benefit premiums it paid during the period of unpaid 
        FMLA leave.
    (b) Under some circumstances an employing office may elect to 
maintain other benefits, e.g., life insurance, disability insurance, 
etc., by paying the employee's (share of) premiums during periods of 
unpaid FMLA leave. For example, to ensure the employing office can meet 
its responsibilities to provide equivalent benefits to the employee 
upon return from unpaid FMLA leave, it may be necessary that premiums 
be paid continuously to avoid a lapse of coverage. If the employing 
office elects to maintain such benefits during the leave, at the 
conclusion of leave, the employing office is entitled to recover only 
the costs incurred for paying the employee's share of any premiums 
whether or not the employee returns to work.
    (c) An employee who returns to work for at least 30 calendar days 
is considered to have ``returned'' to work. An employee who transfers 
directly from taking FMLA leave to retirement, or who retires during 
the first 30 days after the employee returns to work, is deemed to have 
returned to work.
    (d) When an employee elects or an employing office requires paid 
leave to be substituted for FMLA leave, the employing office may not 
recover its (share of) health insurance or other non-health benefit 
premiums for any period of FMLA leave covered by paid leave. Because 
paid leave provided under a plan covering temporary disabilities 
(including workers' compensation) is not unpaid, recovery of health 
insurance premiums does not apply to such paid leave.
    (e) The amount that self-insured employing offices may recover is 
limited to only the employing office's share of allowable ``premiums'' 
as would be calculated under COBRA, excluding the 2 percent fee for 
administrative costs.
    (f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits 
an employing office to recover are a debt owed by the non-returning 
employee to the employing office. The existence of this debt caused by 
the employee's failure to return to work does not alter the employing 
office's responsibilities for health benefit coverage and, under a 
self-insurance plan, payment of claims incurred during the period of 
FMLA leave. To the extent recovery is allowed, the employing office may 
recover the costs through deduction from any sums due to the employee 
(e.g., unpaid wages, vacation pay, etc.), provided such deductions do 
not otherwise violate applicable wage payment or other laws. 
Alternatively, the employing office may initiate legal action against 
the employee to recover such costs.
Sec. 825.214 What are an employee's rights on returning to work from 
              FMLA leave?
    (a) On return from FMLA leave, an employee is entitled to be 
returned to the same position the employee held when leave commenced, 
or to an equivalent position with equivalent benefits, pay, and other 
terms and conditions of employment. An employee is entitled to such 
reinstatement even if the employee has been replaced or his or her 
position has been restructured to accommodate the employee's absence. 
See also Sec. 825.106(e) for the obligations of employing offices that 
are joint employing offices.
    (b) If the employee is unable to perform an essential function of 
the position because of a physical or mental condition, including the 
continuation of a serious health condition, the employee has no right 
to restoration to another position under the FMLA. However, the 
employing office's obligations may be governed by the Americans with 
Disabilities Act (ADA), as made applicable by the CAA. See 
Sec. 825.702.
Sec. 825.215 What is an equivalent position?
    (a) An equivalent position is one that is virtually identical to 
the employee's former position in terms of pay, benefits and working 
conditions, including privileges, perquisites and status. It must 
involve the same or substantially similar duties and responsibilities, 
which must entail substantially equivalent skill, effort, 
responsibility, and authority.
    (b) If an employee is no longer qualified for the position because 
of the employee's inability to attend a necessary course, renew a 
license, fly a minimum number of hours, etc., as a result of the leave, 
the employee shall be given a reasonable opportunity to fulfill those 
conditions upon return to work.
    (c) Equivalent Pay:
            (1) An employee is entitled to any unconditional pay 
        increases which may have occurred during the FMLA leave period, 
        such as cost of living increases. Pay increases conditioned 
        upon seniority, length of service, or work performed would not 
        have to be granted unless it is the employing office's policy 
        or practice to do so with respect to other employees on ``leave 
        without pay''. In such case, any pay increase would be granted 
        based on the employee's seniority, length of service, work 
        performed, etc., excluding the period of unpaid FMLA leave. An 
        employee is entitled to be restored to a position with the same 
        or equivalent pay premiums, such as a shift differential. If an 
        employee departed from a position averaging ten hours of 
        overtime (and corresponding overtime pay) each week, an 
        employee is ordinarily entitled to such a position on return 
        from FMLA leave.
            (2) Many employing offices pay bonuses in different forms 
        to employees for job-related performance such as for perfect 
        attendance, safety (absence of injuries or accidents on the 
        job) and exceeding production goals. Bonuses for perfect 
        attendance and safety do not require performance by the 
        employee but rather contemplate the absence of occurrences. To 
        the extent an employee who takes FMLA leave had met all the 
        requirements for either or both of these bonuses before FMLA 
        leave began, the employee is entitled to continue this 
        entitlement upon return from FMLA leave, that is, the employee 
        may not be disqualified for the bonus(es) for the taking of 
        FMLA leave. See Sec. 825.220 (b) and (c). A monthly production 
        bonus, on the other hand, does require performance by the 
        employee. If the employee is on FMLA leave during any part of 
        the period for which the bonus is computed, the employee is 
        entitled to the same consideration for the bonus as other 
        employees on paid or unpaid leave (as appropriate). See 
        paragraph (d)(2) of this section.
    (d) Equivalent Benefits. ``Benefits'' include all benefits provided 
or made available to employees by an employing office, including group 
life insurance, health insurance, disability insurance, sick leave, 
annual leave, educational benefits, and pensions, regardless of whether 
such benefits are provided by a practice or written policy of an 
employing office through an employee benefit plan.
            (1) At the end of an employee's FMLA leave, benefits must 
        be resumed in the same manner and at the same levels as 
        provided when the leave began, and subject to any changes in 
        benefit levels that may have taken place during the period of 
        FMLA leave affecting the entire workforce, unless otherwise 
        elected by the employee. Upon return from FMLA leave, an 
        employee cannot be required to requalify for any benefits the 
        employee enjoyed before FMLA leave began (including family or 
        dependent coverages). For example, if an employee was covered 
        by a life insurance policy before taking leave but is not 
        covered or coverage lapses during the period of unpaid FMLA 
        leave, the employee cannot be required to meet any 
        qualifications, such as taking a physical examination, in order 
        to requalify for life insurance upon return from leave. 
        Accordingly, some employing offices may find it necessary to 
        modify life insurance and other benefits programs in order to 
        restore employees to equivalent benefits upon return from FMLA 
        leave, make arrangements for continued payment of costs to 
        maintain such benefits during unpaid FMLA leave, or pay these 
        costs subject to recovery from the employee on return from 
        leave. See Sec. 825.213(b).
            (2) An employee may, but is not entitled to, accrue any 
        additional benefits or seniority during unpaid FMLA leave. 
        Benefits accrued at the time leave began, however, (e.g., paid 
        vacation, sick or personal leave to the extent not substituted 
        for FMLA leave) must be available to an employee upon return 
        from leave.
            (3) If, while on unpaid FMLA leave, an employee desires to 
        continue life insurance, disability insurance, or other types 
        of benefits for which he or she typically pays, the employing 
        office is required to follow established policies or practices 
        for continuing such benefits for other instances of leave 
        without pay. If the employing office has no established policy, 
        the employee and the employing office are encouraged to agree 
        upon arrangements before FMLA leave begins.
            (4) With respect to pension and other retirement plans, any 
        period of unpaid FMLA leave shall not be treated as or counted 
        toward a break in service for purposes of vesting and 
        eligibility to participate. Also, if the plan requires an 
        employee to be employed on a specific date in order to be 
        credited with a year of service for vesting, contributions or 
        participation purposes, an employee on unpaid FMLA leave on 
        that date shall be deemed to have been employed on that date. 
        However, unpaid FMLA leave periods need not be treated as 
        credited service for purposes of benefit accrual, vesting and 
        eligibility to participate.
            (5) Employees on unpaid FMLA leave are to be treated as if 
        they continued to work for purposes of changes to benefit 
        plans. They are entitled to changes in benefits plans, except 
        those which may be dependent upon seniority or accrual during 
        the leave period, immediately upon return from leave or to the 
        same extent they would have qualified if no leave had been 
        taken. For example if the benefit plan is predicated on a pre-
        established number of hours worked each year and the employee 
        does not have sufficient hours as a result of taking unpaid 
        FMLA leave, the benefit is lost. (In this regard, Sec. 825.209 
        addresses health benefits.)
    (e) Equivalent Terms and Conditions of Employment. An equivalent 
position must have substantially similar duties, conditions, 
responsibilities, privileges and status as the employee's original 
position.
            (1) The employee must be reinstated to the same or a 
        geographically proximate worksite (i.e., one that does not 
        involve a significant increase in commuting time or distance) 
        from where the employee had previously been employed. If the 
        employee's original worksite has been closed, the employee is 
        entitled to the same rights as if the employee had not been on 
        leave when the worksite closed. For example, if an employing 
        office transfers all employees from a closed worksite to a new 
        worksite in a different city, the employee on leave is also 
        entitled to transfer under the same conditions as if he or she 
        had continued to be employed.
            (2) The employee is ordinarily entitled to return to the 
        same shift or the same or an equivalent work schedule.
            (3) The employee must have the same or an equivalent 
        opportunity for bonuses and other similar discretionary and 
        non-discretionary payments.
            (4) FMLA does not prohibit an employing office from 
        accommodating an employee's request to be restored to a 
        different shift, schedule, or position which better suits the 
        employee's personal needs on return from leave, or to offer a 
        promotion to a better position. However, an employee cannot be 
        induced by the employing office to accept a different position 
        against the employee's wishes.
    (f) The requirement that an employee be restored to the same or 
equivalent job with the same or equivalent pay, benefits, and terms and 
conditions of employment does not extend to de minimis or intangible, 
unmeasurable aspects of the job. However, restoration to a job slated 
for lay-off, when the employee's original position is not, would not 
meet the requirements of an equivalent position.
Sec. 825.216 Are there any limitations on an employing office's 
              obligation to reinstate an employee?
    (a) An employee has no greater right to reinstatement or to other 
benefits and conditions of employment than if the employee had been 
continuously employed during the FMLA leave period. An employing office 
must be able to show that an employee would not otherwise have been 
employed at the time reinstatement is requested in order to deny 
restoration to employment. For example:
            (1) If an employee is laid off during the course of taking 
        FMLA leave and employment is terminated, the employing office's 
        responsibility to continue FMLA leave, maintain group health 
        plan benefits and restore the employee ceases at the time the 
        employee is laid off, provided the employing office has no 
        continuing obligations under a collective bargaining agreement 
        or otherwise. An employing office would have the burden of 
        proving that an employee would have been laid off during the 
        FMLA leave period and, therefore, would not be entitled to 
        restoration.
            (2) If a shift has been eliminated, or overtime has been 
        decreased, an employee would not be entitled to return to work 
        that shift or the original overtime hours upon restoration. 
        However, if a position on, for example, a night shift has been 
        filled by another employee, the employee is entitled to return 
        to the same shift on which employed before taking FMLA leave.
    (b) If an employee was hired for a specific term or only to perform 
work on a discrete project, the employing office has no obligation to 
restore the employee if the employment term or project is over and the 
employing office would not otherwise have continued to employ the 
employee.
    (c) In addition to the circumstances explained above, an employing 
office may deny job restoration to salaried eligible employees (``key 
employees'', as defined in paragraph (c) of Sec. 825.217) if such 
denial is necessary to prevent substantial and grievous economic injury 
to the operations of the employing office; or may delay restoration to 
an employee who fails to provide a fitness for duty certificate to 
return to work under the conditions described in Sec. 825.310.
    (d) If the employee has been on a workers' compensation absence 
during which FMLA leave has been taken concurrently, and after 12 weeks 
of FMLA leave the employee is unable to return to work, the employee no 
longer has the protections of FMLA and must look to the workers' 
compensation statute or ADA, as made applicable by the CAA, for any 
relief or protections.
Sec. 825.217 What is a ``key employee''?
    (a) A ``key employee'' is a salaried FMLA-eligible employee who is 
among the highest paid 10 percent of all the employees employed by the 
employing office within 75 miles of the employee's worksite.
    (b) The term ``salaried'' means paid on a salary basis, within the 
meaning of the Board's regulations at part 541, implementing section 
203 of the CAA (2 U.S.C. 1313) (regarding employees who may qualify as 
exempt from the minimum wage and overtime requirements of the FLSA, as 
made applicable by the CAA, as executive, administrative, and 
professional employees).
    (c) A ``key employee'' must be ``among the highest paid 10 
percent'' of all the employees ``both salaried and non-salaried, 
eligible and ineligible ``who are employed by the employing office 
within 75 miles of the worksite'':
            (1) In determining which employees are among the highest 
        paid 10 percent, year-to-date earnings are divided by weeks 
        worked by the employee (including weeks in which paid leave was 
        taken). Earnings include wages, premium pay, incentive pay, and 
        non-discretionary and discretionary bonuses. Earnings do not 
        include incentives whose value is determined at some future 
        date, e.g., benefits or perquisites.
            (2) The determination of whether a salaried employee is 
        among the highest paid 10 percent shall be made at the time the 
        employee gives notice of the need for leave. No more than 10 
        percent of the employing office's employees within 75 miles of 
        the worksite may be ``key employees''.
Sec. 825.218 What does ``substantial and grievous economic injury'' 
              mean?
    (a) In order to deny restoration to a key employee, an employing 
office must determine that the restoration of the employee to 
employment will cause ``substantial and grievous economic injury'' to 
the operations of the employing office, not whether the absence of the 
employee will cause such substantial and grievous injury.
    (b) An employing office may take into account its ability to 
replace on a temporary basis (or temporarily do without) the employee 
on FMLA leave. If permanent replacement is unavoidable, the cost of 
then reinstating the employee can be considered in evaluating whether 
substantial and grievous economic injury will occur from restoration; 
in other words, the effect on the operations of the employing office of 
reinstating the employee in an equivalent position.
    (c) A precise test cannot be set for the level of hardship or 
injury to the employing office which must be sustained. If the 
reinstatement of a ``key employee'' threatens the economic viability of 
the employing office, that would constitute ``substantial and grievous 
economic injury''. A lesser injury which causes substantial, long-term 
economic injury would also be sufficient. Minor inconveniences and 
costs that the employing office would experience in the normal course 
would certainly not constitute ``substantial and grievous economic 
injury''.
    (d) FMLA's ``substantial and grievous economic injury'' standard is 
different from and more stringent than the ``undue hardship'' test 
under the ADA (see, also Sec. 825.702).
Sec. 825.219 What are the rights of a key employee?
    (a) An employing office which believes that reinstatement may be 
denied to a key employee, must give written notice to the employee at 
the time the employee gives notice of the need for FMLA leave (or when 
FMLA leave commences, if earlier) that he or she qualifies as a key 
employee. At the same time, the employing office must also fully inform 
the employee of the potential consequences with respect to 
reinstatement and maintenance of health benefits if the employing 
office should determine that substantial and grievous economic injury 
to the employing office's operations will result if the employee is 
reinstated from FMLA leave. If such notice cannot be given immediately 
because of the need to determine whether the employee is a key 
employee, it shall be given as soon as practicable after being notified 
of a need for leave (or the commencement of leave, if earlier). It is 
expected that in most circumstances there will be no desire that an 
employee be denied restoration after FMLA leave and, therefore, there 
would be no need to provide such notice. However, an employing office 
who fails to provide such timely notice will lose its right to deny 
restoration even if substantial and grievous economic injury will 
result from reinstatement.
    (b) As soon as an employing office makes a good faith 
determination, based on the facts available, that substantial and 
grievous economic injury to its operations will result if a key 
employee who has given notice of the need for FMLA leave or is using 
FMLA leave is reinstated, the employing office shall notify the 
employee in writing of its determination, that it cannot deny FMLA 
leave, and that it intends to deny restoration to employment on 
completion of the FMLA leave. It is anticipated that an employing 
office will ordinarily be able to give such notice prior to the 
employee starting leave. The employing office must serve this notice 
either in person or by certified mail. This notice must explain the 
basis for the employing office's finding that substantial and grievous 
economic injury will result, and, if leave has commenced, must provide 
the employee a reasonable time in which to return to work, taking into 
account the circumstances, such as the length of the leave and the 
urgency of the need for the employee to return.
    (c) If an employee on leave does not return to work in response to 
the employing office's notification of intent to deny restoration, the 
employee continues to be entitled to maintenance of health benefits and 
the employing office may not recover its cost of health benefit 
premiums. A key employee's rights under FMLA continue unless and until 
either the employee gives notice that he or she no longer wishes to 
return to work, or the employing office actually denies reinstatement 
at the conclusion of the leave period.
    (d) After notice to an employee has been given that substantial and 
grievous economic injury will result if the employee is reinstated to 
employment, an employee is still entitled to request reinstatement at 
the end of the leave period even if the employee did not return to work 
in response to the employing office's notice. The employing office must 
then again determine whether there will be substantial and grievous 
economic injury from reinstatement, based on the facts at that time. If 
it is determined that substantial and grievous economic injury will 
result, the employing office shall notify the employee in writing (in 
person or by certified mail) of the denial of restoration.
Sec. 825.220 How are employees protected who request leave or otherwise 
              assert FMLA rights?
    (a) The FMLA, as made applicable by the CAA, prohibits interference 
with an employee's rights under the law, and with legal proceedings or 
inquiries relating to an employee's rights. More specifically, the law 
contains the following employee protections:
            (1) An employing office is prohibited from interfering 
        with, restraining, or denying the exercise of (or attempts to 
        exercise) any rights provided by the FMLA as made applicable by 
        the CAA.
            (2) An employing office is prohibited from discharging or 
        in any other way discriminating against any covered employee 
        (whether or not an eligible employee) for opposing or 
        complaining about any unlawful practice under the FMLA as made 
        applicable by the CAA.
            (3) All employing offices are prohibited from discharging 
        or in any other way discriminating against any covered employee 
        (whether or not an eligible employee) because that covered 
        employee has--
                    (i) Filed any charge, or has instituted (or caused 
                to be instituted) any proceeding under or related to 
                the FMLA, as made applicable by the CAA;
                    (ii) Given, or is about to give, any information in 
                connection with an inquiry or proceeding relating to a 
                right under the FMLA, as made applicable by the CAA;
                    (iii) Testified, or is about to testify, in any 
                inquiry or proceeding relating to a right under the 
                FMLA, as made applicable by the CAA.
    (b) Any violations of the FMLA, as made applicable by the CAA, or 
of these regulations constitute interfering with, restraining, or 
denying the exercise of rights provided by the FMLA as made applicable 
by the CAA. ``Interfering with'' the exercise of an employee's rights 
would include, for example, not only refusing to authorize FMLA leave, 
but discouraging an employee from using such leave. It would also 
include manipulation by an employing office to avoid responsibilities 
under FMLA, for example--
            (1) [Reserved];
            (2) changing the essential functions of the job in order to 
        preclude the taking of leave;
            (3) reducing hours available to work in order to avoid 
        employee eligibility.
    (c) An employing office is prohibited from discriminating against 
employees or prospective employees who have used FMLA leave. For 
example, if an employee on leave without pay would otherwise be 
entitled to full benefits (other than health benefits), the same 
benefits would be required to be provided to an employee on unpaid FMLA 
leave. By the same token, employing offices cannot use the taking of 
FMLA leave as a negative factor in employment actions, such as hiring, 
promotions or disciplinary actions; nor can FMLA leave be counted under 
``no fault'' attendance policies.
    (d) Employees cannot waive, nor may employing offices induce 
employees to waive, their rights under FMLA. For example, employees (or 
their collective bargaining representatives) cannot ``trade off'' the 
right to take FMLA leave against some other benefit offered by the 
employing office. This does not prevent an employee's voluntary and 
uncoerced acceptance (not as a condition of employment) of a ``light 
duty'' assignment while recovering from a serious health condition (see 
Sec. 825.702(d)). In such a circumstance the employee's right to 
restoration to the same or an equivalent position is available until 12 
weeks have passed within the 12-month period, including all FMLA leave 
taken and the period of ``light duty''.
    (e) Covered employees, and not merely eligible employees, are 
protected from retaliation for opposing (e.g., file a complaint about) 
any practice which is unlawful under the FMLA, as made applicable by 
the CAA. They are similarly protected if they oppose any practice which 
they reasonably believe to be a violation of the FMLA, as made 
applicable by the CAA or regulations.

Subpart C--How do Employees Learn of Their Rights and Obligations under 
  the FMLA, as Made Applicable by the CAA, and What Can an Employing 
                     Office Require of an Employee?

Sec. 825.300 [Reserved]
Sec. 825.301 What notices to employees are required of employing 
              offices under the FMLA as made applicable by the CAA?
    (a)(1) If an employing office has any eligible employees and has 
any written guidance to employees concerning employee benefits or leave 
rights, such as in an employee handbook, information concerning both 
entitlements and employee obligations under the FMLA, as made 
applicable by the CAA, must be included in the handbook or other 
document. For example, if an employing office provides an employee 
handbook to all employees that describes the employing office's 
policies regarding leave, wages, attendance, and similar matters, the 
handbook must incorporate information on FMLA rights and 
responsibilities and the employing office's policies regarding the 
FMLA, as made applicable by the CAA. Informational publications 
describing the provisions of the FMLA as made applicable by the CAA are 
available from the Office of Compliance and may be incorporated in such 
employing office handbooks or written policies.
    (2) If such an employing office does not have written policies, 
manuals, or handbooks describing employee benefits and leave 
provisions, the employing office shall provide written guidance to an 
employee concerning all the employee's rights and obligations under the 
FMLA as made applicable by the CAA. This notice shall be provided to 
employees each time notice is given pursuant to paragraph (b), and in 
accordance with the provisions of that paragraph. Employing offices may 
duplicate and provide the employee a copy of the FMLA Fact Sheet 
available from the Office of Compliance to provide such guidance.
    (b)(1) The employing office shall also provide the employee with 
written notice detailing the specific expectations and obligations of 
the employee and explaining any consequences of a failure to meet these 
obligations. The written notice must be provided to the employee in a 
language in which the employee is literate. Such specific notice must 
include, as appropriate--
            (i) that the leave will be counted against the employee's 
        annual FMLA leave entitlement (see Sec. 825.208);
            (ii) any requirements for the employee to furnish medical 
        certification of a serious health condition and the 
        consequences of failing to do so (see Sec. 825.305);
            (iii) the employee's right to substitute paid leave and 
        whether the employing office will require the substitution of 
        paid leave, and the conditions related to any substitution;
            (iv) any requirement for the employee to make any premium 
        payments to maintain health benefits and the arrangements for 
        making such payments (see Sec. 825.210), and the possible 
        consequences of failure to make such payments on a timely basis 
        (i.e., the circumstances under which coverage may lapse);
            (v) any requirement for the employee to present a fitness-
        for-duty certificate to be restored to employment (see 
        Sec. 825.310);
            (vi) the employee's status as a ``key employee'' and the 
        potential consequence that restoration may be denied following 
        FMLA leave, explaining the conditions required for such denial 
        (see Sec. 825.218);
            (vii) the employee's right to restoration to the same or an 
        equivalent job upon return from leave (see Sec. Sec.  825.214 
        and 825.604); and
            (viii) the employee's potential liability for payment of 
        health insurance premiums paid by the employing office during 
        the employee's unpaid FMLA leave if the employee fails to 
        return to work after taking FMLA leave (see Sec. 825.213).
    (2) The specific notice may include other information--e.g., 
whether the employing office will require periodic reports of the 
employee's status and intent to return to work, but is not required to 
do so. A prototype notice is contained in Appendix D of this part, or 
may be obtained from the Office of Compliance, which employing offices 
may adapt for their use to meet these specific notice requirements.
    (c) Except as provided in this subparagraph, the written notice 
required by paragraph (b) (and by subparagraph (a)(2) where applicable) 
must be provided to the employee no less often than the first time in 
each six-month period that an employee gives notice of the need for 
FMLA leave (if FMLA leave is taken during the six-month period). The 
notice shall be given within a reasonable time after notice of the need 
for leave is given by the employee--within one or two business days if 
feasible. If leave has already begun, the notice should be mailed to 
the employee's address of record.
            (1) If the specific information provided by the notice 
        changes with respect to a subsequent period of FMLA leave 
        during the six-month period, the employing office shall, within 
        one or two business days of receipt of the employee's notice of 
        need for leave, provide written notice referencing the prior 
        notice and setting forth any of the information in subparagraph 
        (b) which has changed. For example, if the initial leave period 
        were paid leave and the subsequent leave period would be unpaid 
        leave, the employing office may need to give notice of the 
        arrangements for making premium payments.
            (2)(i) Except as provided in subparagraph (ii), if the 
        employing office is requiring medical certification or a 
        ``fitness-for-duty'' report, written notice of the requirement 
        shall be given with respect to each employee notice of a need 
        for leave.
            (ii) Subsequent written notification shall not be required 
        if the initial notice in the six-month period and the employing 
        office handbook or other written documents (if any) describing 
        the employing office's leave policies, clearly provided that 
        certification or a ``fitness-for-duty'' report would be 
        required (e.g., by stating that certification would be required 
        in all cases, by stating that certification would be required 
        in all cases in which leave of more than a specified number of 
        days is taken, or by stating that a ``fitness-for-duty'' report 
        would be required in all cases for back injuries for employees 
        in a certain occupation). Where subsequent written notice is 
        not required, at least oral notice shall be provided. (See 
        Sec. 825.305(a).)
    (d) Employing offices are also expected to responsively answer 
questions from employees concerning their rights and responsibilities 
under the FMLA as made applicable under the CAA.
    (e) Employing offices furnishing FMLA-required notices to sensory 
impaired individuals must also comply with all applicable requirements 
under law.
    (f) If an employing office fails to provide notice in accordance 
with the provisions of this section, the employing office may not take 
action against an employee for failure to comply with any provision 
required to be set forth in the notice.
Sec. 825.302 What notice does an employee have to give an employing 
              office when the need for FMLA leave is foreseeable?
    (a) An employee must provide the employing office at least 30 days 
advance notice before FMLA leave is to begin if the need for the leave 
is foreseeable based on an expected birth, placement for adoption or 
foster care, or planned medical treatment for a serious health 
condition of the employee or of a family member. If 30 days notice is 
not practicable, such as because of a lack of knowledge of 
approximately when leave will be required to begin, a change in 
circumstances, or a medical emergency, notice must be given as soon as 
practicable. For example, an employee's health condition may require 
leave to commence earlier than anticipated before the birth of a child. 
Similarly, little opportunity for notice may be given before placement 
for adoption. Whether the leave is to be continuous or is to be taken 
intermittently or on a reduced schedule basis, notice need only be 
given one time, but the employee shall advise the employing office as 
soon as practicable if dates of scheduled leave change or are extended, 
or were initially unknown.
    (b) ``As soon as practicable'' means as soon as both possible and 
practical, taking into account all of the facts and circumstances in 
the individual case. For foreseeable leave where it is not possible to 
give as much as 30 days notice, ``as soon as practicable'' ordinarily 
would mean at least verbal notification to the employing office within 
one or two business days of when the need for leave becomes known to 
the employee.
    (c) An employee shall provide at least verbal notice sufficient to 
make the employing office aware that the employee needs FMLA-qualifying 
leave, and the anticipated timing and duration of the leave. The 
employee need not expressly assert rights under the FMLA as made 
applicable by the CAA, or even mention the FMLA, but may only state 
that leave is needed for an expected birth or adoption, for example. 
The employing office should inquire further of the employee if it is 
necessary to have more information about whether FMLA leave is being 
sought by the employee, and obtain the necessary details of the leave 
to be taken. In the case of medical conditions, the employing office 
may find it necessary to inquire further to determine if the leave is 
because of a serious health condition and may request medical 
certification to support the need for such leave (see Sec. 825.305).
    (d) An employing office may also require an employee to comply with 
the employing office's usual and customary notice and procedural 
requirements for requesting leave. For example, an employing office may 
require that written notice set forth the reasons for the requested 
leave, the anticipated duration of the leave, and the anticipated start 
of the leave. However, failure to follow such internal employing office 
procedures will not permit an employing office to disallow or delay an 
employee's taking FMLA leave if the employee gives timely verbal or 
other notice.
    (e) When planning medical treatment, the employee must consult with 
the employing office and make a reasonable effort to schedule the leave 
so as not to disrupt unduly the employing office's operations, subject 
to the approval of the health care provider. Employees are ordinarily 
expected to consult with their employing offices prior to the 
scheduling of treatment in order to work out a treatment schedule which 
best suits the needs of both the employing office and the employee. If 
an employee who provides notice of the need to take FMLA leave on an 
intermittent basis for planned medical treatment neglects to consult 
with the employing office to make a reasonable attempt to arrange the 
schedule of treatments so as not to unduly disrupt the employing 
office's operations, the employing office may initiate discussions with 
the employee and require the employee to attempt to make such 
arrangements, subject to the approval of the health care provider.
    (f) In the case of intermittent leave or leave on a reduced leave 
schedule which is medically necessary, an employee shall advise the 
employing office, upon request, of the reasons why the intermittent/
reduced leave schedule is necessary and of the schedule for treatment, 
if applicable. The employee and employing office shall attempt to work 
out a schedule which meets the employee's needs without unduly 
disrupting the employing office's operations, subject to the approval 
of the health care provider.
    (g) An employing office may waive employees' FMLA notice 
requirements. In addition, an employing office may not require 
compliance with stricter FMLA notice requirements where the provisions 
of a collective bargaining agreement or applicable leave plan allow 
less advance notice to the employing office. For example, if an 
employee (or employing office) elects to substitute paid vacation leave 
for unpaid FMLA leave (see Sec. 825.207), and the employing office's 
paid vacation leave plan imposes no prior notification requirements for 
taking such vacation leave, no advance notice may be required for the 
FMLA leave taken in these circumstances. On the other hand, FMLA notice 
requirements would apply to a period of unpaid FMLA leave, unless the 
employing office imposes lesser notice requirements on employees taking 
leave without pay.
Sec. 825.303  What are the requirements for an employee to furnish 
              notice to an employing office where the need for FMLA 
              leave is not foreseeable?
    (a) When the approximate timing of the need for leave is not 
foreseeable, an employee should give notice to the employing office of 
the need for FMLA leave as soon as practicable under the facts and 
circumstances of the particular case. It is expected that an employee 
will give notice to the employing office within no more than one or two 
working days of learning of the need for leave, except in extraordinary 
circumstances where such notice is not feasible. In the case of a 
medical emergency requiring leave because of an employee's own serious 
health condition or to care for a family member with a serious health 
condition, written advance notice pursuant to an employing office's 
internal rules and procedures may not be required when FMLA leave is 
involved.
    (b) The employee should provide notice to the employing office 
either in person or by telephone, telegraph, facsimile (``fax'') 
machine or other electronic means. Notice may be given by the 
employee's spokesperson (e.g., spouse, adult family member or other 
responsible party) if the employee is unable to do so personally. The 
employee need not expressly assert rights under the FMLA, as made 
applicable by the CAA, or even mention the FMLA, but may only state 
that leave is needed. The employing office will be expected to obtain 
any additional required information through informal means. The 
employee or spokesperson will be expected to provide more information 
when it can readily be accomplished as a practical matter, taking into 
consideration the exigencies of the situation.
Sec. 825.304  What recourse do employing offices have if employees fail 
              to provide the required notice?
    (a) An employing office may waive employees' FMLA notice 
obligations or the employing office's own internal rules on leave 
notice requirements.
    (b) If an employee fails to give 30 days notice for foreseeable 
leave with no reasonable excuse for the delay, the employing office may 
delay the taking of FMLA leave until at least 30 days after the date 
the employee provides notice to the employing office of the need for 
FMLA leave.
    (c) In all cases, in order for the onset of an employee's FMLA 
leave to be delayed due to lack of required notice, it must be clear 
that the employee had actual notice of the FMLA notice requirements. 
This condition would be satisfied by the employing office's proper 
posting, at the worksite where the employee is employed, of the 
information regarding the FMLA provided (pursuant to section 301(h)(2) 
of the CAA, 2 U.S.C. 1381(h)(2)) by the Office of Compliance to the 
employing office in a manner suitable for posting. Furthermore, the 
need for leave and the approximate date leave would be taken must have 
been clearly foreseeable to the employee 30 days in advance of the 
leave. For example, knowledge that an employee would receive a 
telephone call about the availability of a child for adoption at some 
unknown point in the future would not be sufficient.
Sec. 825.305  When must an employee provide medical certification to 
              support FMLA leave?
    (a) An employing office may require that an employee's leave to 
care for the employee's seriously ill spouse, son, daughter, or parent, 
or due to the employee's own serious health condition that makes the 
employee unable to perform one or more of the essential functions of 
the employee's position, be supported by a certification issued by the 
health care provider of the employee or the employee's ill family 
member. An employing office must give notice of a requirement for 
medical certification each time a certification is required; such 
notice must be written notice whenever required by Sec. 825.301. An 
employing office's oral request to an employee to furnish any 
subsequent medical certification is sufficient.
    (b) When the leave is foreseeable and at least 30 days notice has 
been provided, the employee should provide the medical certification 
before the leave begins. When this is not possible, the employee must 
provide the requested certification to the employing office within the 
time frame requested by the employing office (which must allow at least 
15 calendar days after the employing office's request), unless it is 
not practicable under the particular circumstances to do so despite the 
employee's diligent, good faith efforts.
    (c) In most cases, the employing office should request that an 
employee furnish certification from a health care provider at the time 
the employee gives notice of the need for leave or within two business 
days thereafter, or, in the case of unforeseen leave, within two 
business days after the leave commences. The employing office may 
request certification at some later date if the employing office later 
has reason to question the appropriateness of the leave or its 
duration.
    (d) At the time the employing office requests certification, the 
employing office must also advise an employee of the anticipated 
consequences of an employee's failure to provide adequate 
certification. The employing office shall advise an employee whenever 
the employing office finds a certification incomplete, and provide the 
employee a reasonable opportunity to cure any such deficiency.
    (e) If the employing office's sick or medical leave plan imposes 
medical certification requirements that are less stringent than the 
certification requirements of these regulations, and the employee or 
employing office elects to substitute paid sick, vacation, personal or 
family leave for unpaid FMLA leave where authorized (see Sec. 825.207), 
only the employing office's less stringent sick leave certification 
requirements may be imposed.
Sec. 825.306  How much information may be required in medical 
              certifications of a serious health condition?
    (a) The Office of Compliance has made available an optional form 
(``Certification of Physician or Practitioner'') for employees' (or 
their family members') use in obtaining medical certification, 
including second and third opinions, from health care providers that 
meets FMLA's certification requirements. (See Appendix B to these 
regulations.) This optional form reflects certification requirements so 
as to permit the health care provider to furnish appropriate medical 
information within his or her knowledge.
    (b) The Certification of Physician or Practitioner form is modeled 
closely on Form WH-380, as revised, which was developed by the 
Department of Labor (see 29 C.F.R. Part 825, Appendix B). The employing 
office may use the Office of Compliance's form, or Form WH-380, as 
revised, or another form containing the same basic information; 
however, no additional information may be required. In all instances 
the information on the form must relate only to the serious health 
condition for which the current need for leave exists. The form 
identifies the health care provider and type of medical practice 
(including pertinent specialization, if any), makes maximum use of 
checklist entries for ease in completing the form, and contains 
required entries for:
            (1) A certification as to which part of the definition of 
        ``serious health condition'' (see Sec. 825.114), if any, 
        applies to the patient's condition, and the medical facts which 
        support the certification, including a brief statement as to 
        how the medical facts meet the criteria of the definition.
            (2)(i) The approximate date the serious health condition 
        commenced, and its probable duration, including the probable 
        duration of the patient's present incapacity (defined to mean 
        inability to work, attend school or perform other regular daily 
        activities due to the serious health condition, treatment 
        therefor, or recovery therefrom) if different.
            (ii) Whether it will be necessary for the employee to take 
        leave intermittently or to work on a reduced leave schedule 
        basis (i.e., part-time) as a result of the serious health 
        condition (see Sec. 825.117 and Sec. 825.203), and if so, the 
        probable duration of such schedule.
            (iii) If the condition is pregnancy or a chronic condition 
        within the meaning of Sec. 825.114(a)(2)(iii), whether the 
        patient is presently incapacitated and the likely duration and 
        frequency of episodes of incapacity.
            (3)(i)(A) If additional treatments will be required for the 
        condition, an estimate of the probable number of such 
        treatments.
            (B) If the patient's incapacity will be intermittent, or 
        will require a reduced leave schedule, an estimate of the 
        probable number and interval between such treatments, actual or 
        estimated dates of treatment if known, and period required for 
        recovery if any.
            (ii) If any of the treatments referred to in subparagraph 
        (i) will be provided by another provider of health services 
        (e.g., physical therapist), the nature of the treatments.
            (iii) If a regimen of continuing treatment by the patient 
        is required under the supervision of the health care provider, 
        a general description of the regimen (see Sec. 825.114(b)).
            (4) If medical leave is required for the employee's absence 
        from work because of the employee's own condition (including 
        absences due to pregnancy or a chronic condition), whether the 
        employee--
                    (i) is unable to perform work of any kind;
                    (ii) is unable to perform any one or more of the 
                essential functions of the employee's position, 
                including a statement of the essential functions the 
                employee is unable to perform (see Sec. 825.115), based 
                on either information provided on a statement from the 
                employing office of the essential functions of the 
                position or, if not provided, discussion with the 
                employee about the employee's job functions; or
                    (iii) must be absent from work for treatment.
            (5)(i) If leave is required to care for a family member of 
        the employee with a serious health condition, whether the 
        patient requires assistance for basic medical or personal needs 
        or safety, or for transportation; or if not, whether the 
        employee's presence to provide psychological comfort would be 
        beneficial to the patient or assist in the patient's recovery. 
        The employee is required to indicate on the form the care he or 
        she will provide and an estimate of the time period.
            (ii) If the employee's family member will need care only 
        intermittently or on a reduced leave schedule basis (i.e., 
        part-time), the probable duration of the need.
    (c) If the employing office's sick or medical leave plan requires 
less information to be furnished in medical certifications than the 
certification requirements of these regulations, and the employee or 
employing office elects to substitute paid sick, vacation, personal or 
family leave for unpaid FMLA leave where authorized (see Sec. 825.207), 
only the employing office's lesser sick leave certification 
requirements may be imposed.
Sec. 825.307 What may an employing office do if it questions the 
              adequacy of a medical certification?
    (a) If an employee submits a complete certification signed by the 
health care provider, the employing office may not request additional 
information from the employee's health care provider. However, a health 
care provider representing the employing office may contact the 
employee's health care provider, with the employee's permission, for 
purposes of clarification and authenticity of the medical 
certification.
            (1) If an employee is on FMLA leave running concurrently 
        with a workers' compensation absence, and the provisions of the 
        workers' compensation statute permit the employing office or 
        the employing office's representative to have direct contact 
        with the employee's workers' compensation health care provider, 
        the employing office may follow the workers' compensation 
        provisions.
            (2) An employing office that has reason to doubt the 
        validity of a medical certification may require the employee to 
        obtain a second opinion at the employing office's expense. 
        Pending receipt of the second (or third) medical opinion, the 
        employee is provisionally entitled to the benefits of the FMLA 
        as made applicable by the CAA, including maintenance of group 
        health benefits. If the certifications do not ultimately 
        establish the employee's entitlement to FMLA leave, the leave 
        shall not be designated as FMLA leave and may be treated as 
        paid or unpaid leave under the employing office's established 
        leave policies. The employing office is permitted to designate 
        the health care provider to furnish the second opinion, but the 
        selected health care provider may not be employed on a regular 
        basis by the employing office. See also paragraphs (e) and (f) 
        of this section.
    (b) The employing office may not regularly contract with or 
otherwise regularly utilize the services of the health care provider 
furnishing the second opinion unless the employing office is located in 
an area where access to health care is extremely limited (e.g., a rural 
area where no more than one or two doctors practice in the relevant 
specialty in the vicinity).
    (c) If the opinions of the employee's and the employing office's 
designated health care providers differ, the employing office may 
require the employee to obtain certification from a third health care 
provider, again at the employing office's expense. This third opinion 
shall be final and binding. The third health care provider must be 
designated or approved jointly by the employing office and the 
employee. The employing office and the employee must each act in good 
faith to attempt to reach agreement on whom to select for the third 
opinion provider. If the employing office does not attempt in good 
faith to reach agreement, the employing office will be bound by the 
first certification. If the employee does not attempt in good faith to 
reach agreement, the employee will be bound by the second 
certification. For example, an employee who refuses to agree to see a 
doctor in the specialty in question may be failing to act in good 
faith. On the other hand, an employing office that refuses to agree to 
any doctor on a list of specialists in the appropriate field provided 
by the employee and whom the employee has not previously consulted may 
be failing to act in good faith.
    (d) The employing office is required to provide the employee with a 
copy of the second and third medical opinions, where applicable, upon 
request by the employee. Requested copies are to be provided within two 
business days unless extenuating circumstances prevent such action.
    (e) If the employing office requires the employee to obtain either 
a second or third opinion the employing office must reimburse an 
employee or family member for any reasonable ``out of pocket'' travel 
expenses incurred to obtain the second and third medical opinions. The 
employing office may not require the employee or family member to 
travel outside normal commuting distance for purposes of obtaining the 
second or third medical opinions except in very unusual circumstances.
    (f) In circumstances when the employee or a family member is 
visiting in another country, or a family member resides in a another 
country, and a serious health condition develops, the employing office 
shall accept a medical certification as well as second and third 
opinions from a health care provider who practices in that country.
Sec. 825.308 Under what circumstances may an employing office request 
              subsequent recertifications of medical conditions?
    (a) For pregnancy, chronic, or permanent/long-term conditions under 
continuing supervision of a health care provider (as defined in 
Sec. 825.114(a)(2) (ii), (iii) or (iv)), an employing office may 
request recertification no more often than every 30 days and only in 
connection with an absence by the employee, unless:
            (1) Circumstances described by the previous certification 
        have changed significantly (e.g., the duration or frequency of 
        absences, the severity of the condition, complications); or
            (2) The employing office receives information that casts 
        doubt upon the employee's stated reason for the absence.
    (b)(1) If the minimum duration of the period of incapacity 
specified on a certification furnished by the health care provider is 
more than 30 days, the employing office may not request recertification 
until that minimum duration has passed unless one of the conditions set 
forth in paragraph (c) (1), (2) or (3) of this section is met.
    (2) For FMLA leave taken intermittently or on a reduced leave 
schedule basis, the employing office may not request recertification in 
less than the minimum period specified on the certification as 
necessary for such leave (including treatment) unless one of the 
conditions set forth in paragraph (c) (1), (2) or (3) of this section 
is met.
    (c) For circumstances not covered by paragraphs (a) or (b) of this 
section, an employing office may request recertification at any 
reasonable interval, but not more often than every 30 days, unless:
            (1) The employee requests an extension of leave;
            (2) Circumstances described by the previous certification 
        have changed significantly (e.g., the duration of the illness, 
        the nature of the illness, complications); or
            (3) The employing office receives information that casts 
        doubt upon the continuing validity of the certification.
    (d) The employee must provide the requested recertification to the 
employing office within the time frame requested by the employing 
office (which must allow at least 15 calendar days after the employing 
office's request), unless it is not practicable under the particular 
circumstances to do so despite the employee's diligent, good faith 
efforts.
    (e) Any recertification requested by the employing office shall be 
at the employee's expense unless the employing office provides 
otherwise. No second or third opinion on recertification may be 
required.
Sec. 825.309 What notice may an employing office require regarding an 
              employee's intent to return to work?
    (a) An employing office may require an employee on FMLA leave to 
report periodically on the employee's status and intent to return to 
work. The employing office's policy regarding such reports may not be 
discriminatory and must take into account all of the relevant facts and 
circumstances related to the individual employee's leave situation.
    (b) If an employee gives unequivocal notice of intent not to return 
to work, the employing office's obligations under FMLA, as made 
applicable by the CAA, to maintain health benefits (subject to 
requirements of COBRA or 5 U.S.C. 8905a, whichever is applicable) and 
to restore the employee cease. However, these obligations continue if 
an employee indicates he or she may be unable to return to work but 
expresses a continuing desire to do so.
    (c) It may be necessary for an employee to take more leave than 
originally anticipated. Conversely, an employee may discover after 
beginning leave that the circumstances have changed and the amount of 
leave originally anticipated is no longer necessary. An employee may 
not be required to take more FMLA leave than necessary to resolve the 
circumstance that precipitated the need for leave. In both of these 
situations, the employing office may require that the employee provide 
the employing office reasonable notice (i.e., within two business days) 
of the changed circumstances where foreseeable. The employing office 
may also obtain information on such changed circumstances through 
requested status reports.
Sec. 825.310 Under what circumstances may an employing office require 
              that an employee submit a medical certification that the 
              employee is able (or unable) to return to work (i.e., a 
              ``fitness-for-duty'' report)?
    (a) As a condition of restoring an employee whose FMLA leave was 
occasioned by the employee's own serious health condition that made the 
employee unable to perform the employee's job, an employing office may 
have a uniformly-applied policy or practice that requires all 
similarly-situated employees (i.e., same occupation, same serious 
health condition) who take leave for such conditions to obtain and 
present certification from the employee's health care provider that the 
employee is able to resume work.
    (b) If the terms of a collective bargaining agreement govern an 
employee's return to work, those provisions shall be applied. 
Similarly, requirements under the Americans with Disabilities Act 
(ADA), as made applicable by the CAA, that any return-to-work physical 
be job-related and consistent with business necessity apply. For 
example, an attorney could not be required to submit to a medical 
examination or inquiry just because her leg had been amputated. The 
essential functions of an attorney's job do not require use of both 
legs; therefore such an inquiry would not be job related. An employing 
office may require a warehouse laborer, whose back impairment affects 
the ability to lift, to be examined by an orthopedist, but may not 
require this employee to submit to an HIV test where the test is not 
related to either the essential functions of his/her job or to his/her 
impairment.
    (c) An employing office may seek fitness-for-duty certification 
only with regard to the particular health condition that caused the 
employee's need for FMLA leave. The certification itself need only be a 
simple statement of an employee's ability to return to work. A health 
care provider employed by the employing office may contact the 
employee's health care provider with the employee's permission, for 
purposes of clarification of the employee's fitness to return to work. 
No additional information may be acquired, and clarification may be 
requested only for the serious health condition for which FMLA leave 
was taken. The employing office may not delay the employee's return to 
work while contact with the health care provider is being made.
    (d) The cost of the certification shall be borne by the employee 
and the employee is not entitled to be paid for the time or travel 
costs spent in acquiring the certification.
    (e) The notice that employing offices are required to give to each 
employee giving notice of the need for FMLA leave regarding their FMLA 
rights and obligations as made applicable by the CAA (see Sec. 825.301) 
shall advise the employee if the employing office will require fitness-
for-duty certification to return to work. If the employing office has a 
handbook explaining employment policies and benefits, the handbook 
should explain the employing office's general policy regarding any 
requirement for fitness-for-duty certification to return to work. 
Specific notice shall also be given to any employee from whom fitness-
for-duty certification will be required either at the time notice of 
the need for leave is given or immediately after leave commences and 
the employing office is advised of the medical circumstances requiring 
the leave, unless the employee's condition changes from one that did 
not previously require certification pursuant to the employing office's 
practice or policy. No second or third fitness-for-duty certification 
may be required.
    (f) An employing office may delay restoration to employment until 
an employee submits a required fitness-for-duty certification unless 
the employing office has failed to provide the notices required in 
paragraph (e) of this section.
    (g) An employing office is not entitled to certification of fitness 
to return to duty when the employee takes intermittent leave as 
described in Sec. 825.203.
    (h) When an employee is unable to return to work after FMLA leave 
because of the continuation, recurrence, or onset of the employee's or 
family member's serious health condition, thereby preventing the 
employing office from recovering its share of health benefit premium 
payments made on the employee's behalf during a period of unpaid FMLA 
leave, the employing office may require medical certification of the 
employee's or the family member's serious health condition. (See 
Sec. 825.213(a)(3).) The cost of the certification shall be borne by 
the employee and the employee is not entitled to be paid for the time 
or travel costs spent in acquiring the certification.
Sec. 825.311 What happens if an employee fails to satisfy the medical 
              certification and/or recertification requirements?
    (a) In the case of foreseeable leave, an employing office may delay 
the taking of FMLA leave to an employee who fails to provide timely 
certification after being requested by the employing office to furnish 
such certification (i.e., within 15 calendar days, if practicable), 
until the required certification is provided.
    (b) When the need for leave is not foreseeable, or in the case of 
recertification, an employee must provide certification (or 
recertification) within the time frame requested by the employing 
office (which must allow at least 15 days after the employing office's 
request) or as soon as reasonably possible under the particular facts 
and circumstances. In the case of a medical emergency, it may not be 
practicable for an employee to provide the required certification 
within 15 calendar days. If an employee fails to provide a medical 
certification within a reasonable time under the pertinent 
circumstances, the employing office may delay the employee's 
continuation of FMLA leave. If the employee never produces the 
certification, the leave is not FMLA leave.
    (c) When requested by the employing office pursuant to a uniformly 
applied policy for similarly-situated employees, the employee must 
provide medical certification at the time the employee seeks 
reinstatement at the end of FMLA leave taken for the employee's serious 
health condition, that the employee is fit for duty and able to return 
to work (see Sec. 825.310(a)) if the employing office has provided the 
required notice (see Sec. 825.301(c)); the employing office may delay 
restoration until the certification is provided. In this situation, 
unless the employee provides either a fitness-for-duty certification or 
a new medical certification for a serious health condition at the time 
FMLA leave is concluded, the employee may be terminated. See also 
Sec. 825.213(a)(3).
Sec. 825.312 Under what circumstances may an employing office refuse to 
              provide FMLA leave or reinstatement to eligible 
              employees?
    (a) If an employee fails to give timely advance notice when the 
need for FMLA leave is foreseeable, the employing office may delay the 
taking of FMLA leave until 30 days after the date the employee provides 
notice to the employing office of the need for FMLA leave. (See 
Sec. 825.302.)
    (b) If an employee fails to provide in a timely manner a requested 
medical certification to substantiate the need for FMLA leave due to a 
serious health condition, an employing office may delay continuation of 
FMLA leave until an employee submits the certificate. (See Sec. Sec.  
825.305 and 825.311.) If the employee never produces the certification, 
the leave is not FMLA leave.
    (c) If an employee fails to provide a requested fitness-for-duty 
certification to return to work, an employing office may delay 
restoration until the employee submits the certificate. (See Sec. Sec.  
825.310 and 825.311.)
    (d) An employee has no greater right to reinstatement or to other 
benefits and conditions of employment than if the employee had been 
continuously employed during the FMLA leave period. Thus, an employee's 
rights to continued leave, maintenance of health benefits, and 
restoration cease under FMLA, as made applicable by the CAA, if and 
when the employment relationship terminates (e.g., layoff), unless that 
relationship continues, for example, by the employee remaining on paid 
FMLA leave. If the employee is recalled or otherwise re-employed, an 
eligible employee is immediately entitled to further FMLA leave for an 
FMLA-qualifying reason. An employing office must be able to show, when 
an employee requests restoration, that the employee would not otherwise 
have been employed if leave had not been taken in order to deny 
restoration to employment. (See Sec. 825.216.)
    (e) An employing office may require an employee on FMLA leave to 
report periodically on the employee's status and intention to return to 
work. (See Sec. 825.309.) If an employee unequivocally advises the 
employing office either before or during the taking of leave that the 
employee does not intend to return to work, and the employment 
relationship is terminated, the employee's entitlement to continued 
leave, maintenance of health benefits, and restoration ceases unless 
the employment relationship continues, for example, by the employee 
remaining on paid leave. An employee may not be required to take more 
leave than necessary to address the circumstances for which leave was 
taken. If the employee is able to return to work earlier than 
anticipated, the employee shall provide the employing office two 
business days notice where feasible; the employing office is required 
to restore the employee once such notice is given, or where such prior 
notice was not feasible.
    (f) An employing office may deny restoration to employment, but not 
the taking of FMLA leave and the maintenance of health benefits, to an 
eligible employee only under the terms of the ``key employee'' 
exemption. Denial of reinstatement must be necessary to prevent 
``substantial and grievous economic injury'' to the employing office's 
operations. The employing office must notify the employee of the 
employee's status as a ``key employee'' and of the employing office's 
intent to deny reinstatement on that basis when the employing office 
makes these determinations. If leave has started, the employee must be 
given a reasonable opportunity to return to work after being so 
notified. (See Sec. 825.219.)
    (g) An employee who fraudulently obtains FMLA leave from an 
employing office is not protected by job restoration or maintenance of 
health benefits provisions of the FMLA as made applicable by the CAA.
    (h) If the employing office has a uniformly-applied policy 
governing outside or supplemental employment, such a policy may 
continue to apply to an employee while on FMLA leave. An employing 
office which does not have such a policy may not deny benefits to which 
an employee is entitled under FMLA as made applicable by the CAA on 
this basis unless the FMLA leave was fraudulently obtained as in 
paragraph (g) of this section.

      Subpart D--What Enforcement Mechanisms Does the CAA Provide?

Sec. 825.400 What can employees do who believe that their rights under 
              the FMLA as made applicable by the CAA have been 
              violated?
    (a) To commence a proceeding, a covered employee alleging a 
violation of the rights and protections of the FMLA made applicable by 
the CAA must request counseling by the Office of Compliance not later 
than 180 days after the date of the alleged violation. If a covered 
employee misses this deadline, the covered employee will be unable to 
obtain a remedy under the CAA.
    (b) The following procedures are available under title IV of the 
CAA for covered employees who believe that their rights under FMLA as 
made applicable by the CAA have been violated--
            (1) counseling;
            (2) mediation; and
            (3) election of either--
                    (A) a formal complaint, filed with the Office of 
                Compliance, and a hearing before a hearing officer, 
                subject to review by the Board of Directors of the 
                Office of Compliance, and judicial review in the United 
                States Court of Appeals for the Federal Circuit; or
                    (B) a civil action in a district court of the 
                United States.
    (c) Regulations of the Office of Compliance describing and 
governing these procedures are found at [proposed rules can be found at 
141 Cong. Rec. S17012 (November 14, 1995)].
Sec. 825.401 [Reserved]
Sec. 825.402 [Reserved]
Sec. 825.403 [Reserved]
Sec. 825.404 [Reserved]

                         Subpart E--[Reserved]

      Subpart F--What Special Rules Apply to Employees of Schools?

Sec. 825.600 To whom do the special rules apply?
    (a) Certain special rules apply to employees of ``local educational 
agencies'', including public school boards and elementary schools under 
their jurisdiction, and private elementary and secondary schools. The 
special rules do not apply to other kinds of educational institutions, 
such as colleges and universities, trade schools, and preschools.
    (b) Educational institutions are covered by FMLA as made applicable 
by the CAA (and these special rules). The usual requirements for 
employees to be ``eligible'' apply.
    (c) The special rules affect the taking of intermittent leave or 
leave on a reduced leave schedule, or leave near the end of an academic 
term (semester), by instructional employees. ``Instructional 
employees'' are those whose principal function is to teach and instruct 
students in a class, a small group, or an individual setting. This term 
includes not only teachers, but also athletic coaches, driving 
instructors, and special education assistants such as signers for the 
hearing impaired. It does not include, and the special rules do not 
apply to, teacher assistants or aides who do not have as their 
principal job actual teaching or instructing, nor does it include 
auxiliary personnel such as counselors, psychologists, or curriculum 
specialists. It also does not include cafeteria workers, maintenance 
workers, or bus drivers.
    (d) Special rules which apply to restoration to an equivalent 
position apply to all employees of local educational agencies.
Sec. 825.601 What limitations apply to the taking of intermittent leave 
              or leave on a reduced leave schedule?
    (a) Leave taken for a period that ends with the school year and 
begins the next semester is leave taken consecutively rather than 
intermittently. The period during the summer vacation when the employee 
would not have been required to report for duty is not counted against 
the employee's FMLA leave entitlement. An instructional employee who is 
on FMLA leave at the end of the school year must be provided with any 
benefits over the summer vacation that employees would normally receive 
if they had been working at the end of the school year.
            (1) If an eligible instructional employee needs 
        intermittent leave or leave on a reduced leave schedule to care 
        for a family member, or for the employee's own serious health 
        condition, which is foreseeable based on planned medical 
        treatment, and the employee would be on leave for more than 20 
        percent of the total number of working days over the period the 
        leave would extend, the employing office may require the 
        employee to choose either to:
                    (i) Take leave for a period or periods of a 
                particular duration, not greater than the duration of 
                the planned treatment; or
                    (ii) Transfer temporarily to an available 
                alternative position for which the employee is 
                qualified, which has equivalent pay and benefits and 
                which better accommodates recurring periods of leave 
                than does the employee's regular position.
            (2) These rules apply only to a leave involving more than 
        20 percent of the working days during the period over which the 
        leave extends. For example, if an instructional employee who 
        normally works five days each week needs to take two days of 
        FMLA leave per week over a period of several weeks, the special 
        rules would apply. Employees taking leave which constitutes 20 
        percent or less of the working days during the leave period 
        would not be subject to transfer to an alternative position. 
        ``Periods of a particular duration'' means a block, or blocks, 
        of time beginning no earlier than the first day for which leave 
        is needed and ending no later than the last day on which leave 
        is needed, and may include one uninterrupted period of leave.
    (b) If an instructional employee does not give required notice of 
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently or 
on a reduced leave schedule, the employing office may require the 
employee to take leave of a particular duration, or to transfer 
temporarily to an alternative position. Alternatively, the employing 
office may require the employee to delay the taking of leave until the 
notice provision is met. See Sec. 825.207(h).
Sec. 825.602 What limitations apply to the taking of leave near the end 
              of an academic term?
    (a) There are also different rules for instructional employees who 
begin leave more than five weeks before the end of a term, less than 
five weeks before the end of a term, and less than three weeks before 
the end of a term. Regular rules apply except in circumstances when:
            (1) An instructional employee begins leave more than five 
        weeks before the end of a term. The employing office may 
        require the employee to continue taking leave until the end of 
        the term if--
                    (i) the leave will last at least three weeks, and
                    (ii) the employee would return to work during the 
                three-week period before the end of the term.
            (2) The employee begins leave for a purpose other than the 
        employee's own serious health condition during the five-week 
        period before the end of a term. The employing office may 
        require the employee to continue taking leave until the end of 
        the term if--
                    (i) the leave will last more than two weeks, and
                    (ii) the employee would return to work during the 
                two-week period before the end of the term.
            (3) The employee begins leave for a purpose other than the 
        employee's own serious health condition during the three-week 
        period before the end of a term, and the leave will last more 
        than five working days. The employing office may require the 
        employee to continue taking leave until the end of the term.
     (b) For purposes of these provisions, ``academic term'' means the 
school semester, which typically ends near the end of the calendar year 
and the end of spring each school year. In no case may a school have 
more than two academic terms or semesters each year for purposes of 
FMLA as made applicable by the CAA. An example of leave falling within 
these provisions would be where an employee plans two weeks of leave to 
care for a family member which will begin three weeks before the end of 
the term. In that situation, the employing office could require the 
employee to stay out on leave until the end of the term.
Sec. 825.603 Is all leave taken during ``periods of a particular 
              duration'' counted against the FMLA leave entitlement?
    (a) If an employee chooses to take leave for ``periods of a 
particular duration'' in the case of intermittent or reduced schedule 
leave, the entire period of leave taken will count as FMLA leave.
    (b) In the case of an employee who is required to take leave until 
the end of an academic term, only the period of leave until the 
employee is ready and able to return to work shall be charged against 
the employee's FMLA leave entitlement. The employing office has the 
option not to require the employee to stay on leave until the end of 
the school term. Therefore, any additional leave required by the 
employing office to the end of the school term is not counted as FMLA 
leave; however, the employing office shall be required to maintain the 
employee's group health insurance and restore the employee to the same 
or equivalent job including other benefits at the conclusion of the 
leave.
Sec. 825.604 What special rules apply to restoration to ``an equivalent 
              position''?
    The determination of how an employee is to be restored to ``an 
equivalent position'' upon return from FMLA leave will be made on the 
basis of ``established school board policies and practices, private 
school policies and practices, and collective bargaining agreements''. 
The ``established policies'' and collective bargaining agreements used 
as a basis for restoration must be in writing, must be made known to 
the employee prior to the taking of FMLA leave, and must clearly 
explain the employee's restoration rights upon return from leave. Any 
established policy which is used as the basis for restoration of an 
employee to ``an equivalent position'' must provide substantially the 
same protections as provided in the FMLA, as made applicable by the 
CAA, for reinstated employees. See Sec. 825.215. In other words, the 
policy or collective bargaining agreement must provide for restoration 
to an ``equivalent position'' with equivalent employment benefits, pay, 
and other terms and conditions of employment. For example, an employee 
may not be restored to a position requiring additional licensure or 
certification.

     Subpart G--How Do Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements Affect Employee Rights Under the FMLA 
                     as Made Applicable by the CAA?

Sec. 825.700 What if an employing office provides more generous 
              benefits than required by FMLA as made applicable by the 
              CAA?
    (a) An employing office must observe any employment benefit program 
or plan that provides greater family or medical leave rights to 
employees than the rights established by the FMLA. Conversely, the 
rights established by the FMLA, as made applicable by the CAA, may not 
be diminished by any employment benefit program or plan. For example, a 
provision of a collective bargaining agreement (CBA) which provides for 
reinstatement to a position that is not equivalent because of seniority 
(e.g., provides lesser pay) is superseded by FMLA. If an employing 
office provides greater unpaid family leave rights than are afforded by 
FMLA, the employing office is not required to extend additional rights 
afforded by FMLA, such as maintenance of health benefits (other than 
through COBRA or 5 U.S.C. 8905a, whichever is applicable), to the 
additional leave period not covered by FMLA. If an employee takes paid 
or unpaid leave and the employing office does not designate the leave 
as FMLA leave, the leave taken does not count against an employee's 
FMLA entitlement.
    (b) Nothing in the FMLA, as made applicable by the CAA, prevents an 
employing office from amending existing leave and employee benefit 
programs, provided they comply with FMLA as made applicable by the CAA. 
However, nothing in the FMLA, as made applicable by the CAA, is 
intended to discourage employing offices from adopting or retaining 
more generous leave policies.
    (c) [Reserved]
Sec. 825.701 [Reserved]
Sec. 825.702 How does FMLA affect anti-discrimination laws as applied 
              by section 201 of the CAA?
    (a) Nothing in FMLA modifies or affects any applicable law 
prohibiting discrimination on the basis of race, religion, color, 
national origin, sex, age, or disability (e.g., title VII of the Civil 
Rights Act of 1964, as amended by the Pregnancy Discrimination Act), as 
made applicable by the CAA. FMLA's legislative history explains that 
FMLA is ``not intended to modify or affect the Rehabilitation Act of 
1973, as amended, the regulations concerning employment which have been 
promulgated pursuant to that statute, or the Americans with 
Disabilities Act of 1990, or the regulations issued under that Act. 
Thus, the leave provisions of the [FMLA] are wholly distinct from the 
reasonable accommodation obligations of employers covered under the 
[ADA] * * * or the Federal government itself. The purpose of the FMLA 
is to make leave available to eligible employees and employing offices 
within its coverage, and not to limit already existing rights and 
protection''. S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). An 
employing office must therefore provide leave under whichever statutory 
provision provides the greater rights to employees.
    (b) If an employee is a qualified individual with a disability 
within the meaning of the Americans with Disabilities Act (ADA), the 
employing office must make reasonable accommodations, etc., barring 
undue hardship, in accordance with the ADA. At the same time, the 
employing office must afford an employee his or her FMLA rights. ADA's 
``disability'' and FMLA's ``serious health condition'' are different 
concepts, and must be analyzed separately. FMLA entitles eligible 
employees to 12 weeks of leave in any 12-month period, whereas the ADA 
allows an indeterminate amount of leave, barring undue hardship, as a 
reasonable accommodation. FMLA requires employing offices to maintain 
employees' group health plan coverage during FMLA leave on the same 
conditions as coverage would have been provided if the employee had 
been continuously employed during the leave period, whereas ADA does 
not require maintenance of health insurance unless other employees 
receive health insurance during leave under the same circumstances.
    (c)(1) A reasonable accommodation under the ADA might be 
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employing office did not 
ordinarily provide health insurance for part-time employees. However, 
FMLA would permit an employee to work a reduced leave schedule until 
the equivalent of 12 workweeks of leave were used, with group health 
benefits maintained during this period. FMLA permits an employing 
office to temporarily transfer an employee who is taking leave 
intermittently or on a reduced leave schedule to an alternative 
position, whereas the ADA allows an accommodation of reassignment to an 
equivalent, vacant position only if the employee cannot perform the 
essential functions of the employee's present position and an 
accommodation is not possible in the employee's present position, or an 
accommodation in the employee's present position would cause an undue 
hardship. The examples in the following paragraphs of this section 
demonstrate how the two laws would interact with respect to a qualified 
individual with a disability.
    (2) A qualified individual with a disability who is also an 
``eligible employee'' entitled to FMLA leave requests 10 weeks of 
medical leave as a reasonable accommodation, which the employing office 
grants because it is not an undue hardship. The employing office 
advises the employee that the 10 weeks of leave is also being 
designated as FMLA leave and will count towards the employee's FMLA 
leave entitlement. This designation does not prevent the parties from 
also treating the leave as a reasonable accommodation and reinstating 
the employee into the same job, as required by the ADA, rather than an 
equivalent position under FMLA, if that is the greater right available 
to the employee. At the same time, the employee would be entitled under 
FMLA to have the employing office maintain group health plan coverage 
during the leave, as that requirement provides the greater right to the 
employee.
    (3) If the same employee needed to work part-time (a reduced leave 
schedule) after returning to his or her same job, the employee would 
still be entitled under FMLA to have group health plan coverage 
maintained for the remainder of the two-week equivalent of FMLA leave 
entitlement, notwithstanding an employing office policy that part-time 
employees do not receive health insurance. This employee would be 
entitled under the ADA to reasonable accommodations to enable the 
employee to perform the essential functions of the part-time position. 
In addition, because the employee is working a part-time schedule as a 
reasonable accommodation, the employee would be shielded from FMLA's 
provision for temporary assignment to a different alternative position. 
Once the employee has exhausted his or her remaining FMLA leave 
entitlement while working the reduced (part-time) schedule, if the 
employee is a qualified individual with a disability, and if the 
employee is unable to return to the same full-time position at that 
time, the employee might continue to work part-time as a reasonable 
accommodation, barring undue hardship; the employee would then be 
entitled to only those employment benefits ordinarily provided by the 
employing office to part-time employees.
    (4) At the end of the FMLA leave entitlement, an employing office 
is required under FMLA to reinstate the employee in the same or an 
equivalent position, with equivalent pay and benefits, to that which 
the employee held when leave commenced. The employing office's FMLA 
obligations would be satisfied if the employing office offered the 
employee an equivalent full-time position. If the employee were unable 
to perform the essential functions of that equivalent position even 
with reasonable accommodation, because of a disability, the ADA may 
require the employing office to make a reasonable accommodation at that 
time by allowing the employee to work part-time or by reassigning the 
employee to a vacant position, barring undue hardship.
    (d)(1) If FMLA entitles an employee to leave, an employing office 
may not, in lieu of FMLA leave entitlement, require an employee to take 
a job with a reasonable accommodation. However, ADA may require that an 
employing office offer an employee the opportunity to take such a 
position. An employing office may not change the essential functions of 
the job in order to deny FMLA leave. See Sec. 825.220(b).
    (2) An employee may be on a workers' compensation absence due to an 
on-the-job injury or illness which also qualifies as a serious health 
condition under FMLA. The workers' compensation absence and FMLA leave 
may run concurrently (subject to proper notice and designation by the 
employing office). At some point the health care provider providing 
medical care pursuant to the workers' compensation injury may certify 
the employee is able to return to work in a ``light duty'' position. If 
the employing office offers such a position, the employee is permitted 
but not required to accept the position (see Sec. 825.220(d)). As a 
result, the employee may no longer qualify for payments from the 
workers' compensation benefit plan, but the employee is entitled to 
continue on unpaid FMLA leave either until the employee is able to 
return to the same or equivalent job the employee left or until the 12-
week FMLA leave entitlement is exhausted. See Sec. 825.207(d)(2). If 
the employee returning from the workers' compensation injury is a 
qualified individual with a disability, he or she will have rights 
under the ADA.
    (e) If an employing office requires certifications of an employee's 
fitness for duty to return to work, as permitted by FMLA under a 
uniform policy, it must comply with the ADA requirement that a fitness 
for duty physical be job-related and consistent with business 
necessity.
    (f) Under title VII of the Civil Rights Act of 1964, as amended by 
the Pregnancy Discrimination Act, and as made applicable by the CAA, an 
employing office should provide the same benefits for women who are 
pregnant as the employing office provides to other employees with 
short-term disabilities. Because title VII does not require employees 
to be employed for a certain period of time to be protected, an 
employee employed for less than 12 months by any employing office (and, 
therefore, not an ``eligible'' employee under FMLA, as made applicable 
by the CAA) may not be denied maternity leave if the employing office 
normally provides short-term disability benefits to employees with the 
same tenure who are experiencing other short-term disabilities.
    (g) For further information on Federal anti-discrimination laws 
applied by section 201 of the CAA (2 U.S.C. 1311), including title VII, 
the Rehabilitation Act, and the ADA, individuals are encouraged to 
contact the Office of Compliance.

                         Subpart H--Definitions

Sec. 825.800 Definitions.
    For purposes of this part:
    ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et 
seq.).
    CAA means the Congressional Accountability Act of 1995 (Pub. Law 
104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq.).
    COBRA means the continuation coverage requirements of title X of 
the Consolidated Omnibus Budget Reconciliation Act of 1986 (Pub. Law 
99-272, title X, section 10002; 100 Stat. 227; as amended; 29 U.S.C. 
1161-1168).
    Continuing treatment means: A serious health condition involving 
continuing treatment by a health care provider includes any one or more 
of the following:
            (1) A period of incapacity (i.e., inability to work, attend 
        school or perform other regular daily activities due to the 
        serious health condition, treatment therefor, or recovery 
        therefrom) of more than three consecutive calendar days, and 
        any subsequent treatment or period of incapacity relating to 
        the same condition, that also involves:
                    (i) Treatment two or more times by a health care 
                provider, by a nurse or physician's assistant under 
                direct supervision of a health care provider, or by a 
                provider of health care services (e.g., physical 
                therapist) under orders of, or on referral by, a health 
                care provider; or
                    (ii) Treatment by a health care provider on at 
                least one occasion which results in a regimen of 
                continuing treatment under the supervision of the 
                health care provider.
            (2) Any period of incapacity due to pregnancy, or for 
        prenatal care.
            (3) Any period of incapacity or treatment for such 
        incapacity due to a chronic serious health condition. A chronic 
        serious health condition is one which:
                    (i) Requires periodic visits for treatment by a 
                health care provider, or by a nurse or physician's 
                assistant under direct supervision of a health care 
                provider;
                    (ii) Continues over an extended period of time 
                (including recurring episodes of a single underlying 
                condition); and
                    (iii) May cause episodic rather than a continuing 
                period of incapacity (e.g., asthma, diabetes, epilepsy, 
                etc.).
            (4) A period of incapacity which is permanent or long-term 
        due to a condition for which treatment may not be effective. 
        The employee or family member must be under the continuing 
        supervision of, but need not be receiving active treatment by, 
        a health care provider. Examples include Alzheimer's, a severe 
        stroke, or the terminal stages of a disease.
            (5) Any period of absence to receive multiple treatments 
        (including any period of recovery therefrom) by a health care 
        provider or by a provider of health care services under orders 
        of, or on referral by, a health care provider, either for 
        restorative surgery after an accident or other injury, or for a 
        condition that would likely result in a period of incapacity of 
        more than three consecutive calendar days in the absence of 
        medical intervention or treatment, such as cancer 
        (chemotherapy, radiation, etc.), severe arthritis (physical 
        therapy), kidney disease (dialysis).
    Covered employee--The term ``covered employee'', as defined in the 
CAA, means any employee of--(1) the House of Representatives; (2) the 
Senate; (3) the Capitol Guide Service; (4) the Capitol Police; (5) the 
Congressional Budget Office; (6) the Office of the Architect of the 
Capitol; (7) the Office of the Attending Physician; (8) the Office of 
Compliance; or (9) the Office of Technology Assessment.
    Eligible employee--The term ``eligible employee'', as defined in 
the CAA, means a covered employee who has been employed in any 
employing office for 12 months and for at least 1,250 hours of 
employment during the previous 12 months.
    Employ means to suffer or permit to work.
    Employee means an employee as defined in the CAA and includes an 
applicant for employment and a former employee.
    Employee employed in an instructional capacity: See Teacher.
    Employee of the Capitol Police--The term ``employee of the Capitol 
Police'' includes any member or officer of the Capitol Police.
    Employee of the House of Representatives--The term ``employee of 
the House of Representatives'' includes an individual occupying a 
position the pay for which is disbursed by the Clerk of the House of 
Representatives, or another official designated by the House of 
Representatives, or any employment position in an entity that is paid 
with funds derived from the clerk-hire allowance of the House of 
Representatives but not any such individual employed by any entity 
listed in subparagraphs (3) through (9) under ``covered employee'' 
above.
    Employee of the Office of the Architect of the Capitol--The term 
``employee of the Office of the Architect of the Capitol'' includes any 
employee of the Office of the Architect of the Capitol, the Botanic 
Garden, or the Senate Restaurants.
    Employee of the Senate--The term ``employee of the Senate'' 
includes any employee whose pay is disbursed by the Secretary of the 
Senate, but not any such individual employed by any entity listed in 
subparagraphs (3) through (9) under ``covered employee'' above.
    Employing Office--The term ``employing office'', as defined in the 
CAA, means--
            (1) the personal office of a Member of the House of 
        Representatives or of a Senator;
            (2) a committee of the House of Representatives or the 
        Senate or a joint committee;
            (3) any other office headed by a person with the final 
        authority to appoint, hire, discharge, and set the terms, 
        conditions, or privileges of the employment of an employee of 
        the House of Representatives or the Senate; or
            (4) the Capitol Guide Board, the Capitol Police Board, the 
        Congessional Budget Office, the Office of the Architect of the 
        Capitol, the Office of the Attending Physician, the Office of 
        Compliance, and the Office of Technology Assessment.
    Employment benefits means all benefits provided or made available 
to employees by an employing office, including group life insurance, 
health insurance, disability insurance, sick leave, annual leave, 
educational benefits, and pensions, regardless of whether such benefits 
are provided by a practice or written policy of an employing office or 
through an employee benefit plan. The term does not include non-
employment related obligations paid by employees through voluntary 
deductions such as supplemental insurance coverage. (See 
Sec. 825.209(a)).
    FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
    FMLA means the Family and Medical Leave Act of 1993, Public Law 
103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq.).
    Group health plan means the Federal Employees Health Benefits 
Program and any other plan of, or contributed to by, an employing 
office (including a self-insured plan) to provide health care (directly 
or otherwise) to the employing office's employees, former employees, or 
the families of such employees or former employees. For purposes of 
FMLA, as made applicable by the CAA, the term ``group health plan'' 
shall not include an insurance program providing health coverage under 
which employees purchase individual policies from insurers provided 
that--
            (1) no contributions are made by the employing office;
            (2) participation in the program is completely voluntary 
        for employees;
            (3) the sole functions of the employing office with respect 
        to the program are, without endorsing the program, to permit 
        the insurer to publicize the program to employees, to collect 
        premiums through payroll deductions and to remit them to the 
        insurer;
            (4) the employing office receives no consideration in the 
        form of cash or otherwise in connection with the program, other 
        than reasonable compensation, excluding any profit, for 
        administrative services actually rendered in connection with 
        payroll deduction; and
            (5) the premium charged with respect to such coverage does 
        not increase in the event the employment relationship 
        terminates.
    Health care provider means:
            (1) A doctor of medicine or osteopathy who is authorized to 
        practice medicine or surgery by the State in which the doctor 
        practices; or
            (2) Podiatrists, dentists, clinical psychologists, 
        optometrists, and chiropractors (limited to treatment 
        consisting of manual manipulation of the spine to correct a 
        subluxation as demonstrated by X-ray to exist) authorized to 
        practice in the State and performing within the scope of their 
        practice as defined under State law; and
            (3) Nurse practitioners, nurse-midwives and clinical social 
        workers who are authorized to practice under State law and who 
        are performing within the scope of their practice as defined 
        under State law; and
            (4) Christian Science practitioners listed with the First 
        Church of Christ, Scientist in Boston, Massachusetts.
            (5) Any health care provider from whom an employing office 
        or a group health plan's benefits manager will accept 
        certification of the existence of a serious health condition to 
        substantiate a claim for benefits.
            (6) A health care provider as defined above who practices 
        in a country other than the United States, who is licensed to 
        practice in accordance with the laws and regulations of that 
        country.
    ``Incapable of self-care'' means that the individual requires 
active assistance or supervision to provide daily self-care in several 
of the ``activities of daily living'' (ADLs) or ``instrumental 
activities of daily living'' (IADLs). Activities of daily living 
include adaptive activities such as caring appropriately for one's 
grooming and hygiene, bathing, dressing and eating. Instrumental 
activities of daily living include cooking, cleaning, shopping, taking 
public transportation, paying bills, maintaining a residence, using 
telephones and directories, using a post office, etc.
    Instructional employee: See Teacher.
    Intermittent leave means leave taken in separate periods of time 
due to a single illness or injury, rather than for one continuous 
period of time, and may include leave of periods from an hour or more 
to several weeks. Examples of intermittent leave would include leave 
taken on an occasional basis for medical appointments, or leave taken 
several days at a time spread over a period of six months, such as for 
chemotherapy.
    Mental disability: See Physical or mental disability.
    Office of Compliance means the independent office established in 
the legislative branch under section 301 of the CAA (2 U.S.C. 1381).
    Parent means the biological parent of an employee or an individual 
who stands or stood in loco parentis to an employee when the employee 
was a child.
    Physical or mental disability means a physical or mental impairment 
that substantially limits one or more of the major life activities of 
an individual. See the Americans with Disabilities Act (ADA), as made 
applicable by section 201(a)(3) of the CAA (2 U.S.C. 1311(a)(3)).
    Reduced leave schedule means a leave schedule that reduces the 
usual number of hours per workweek, or hours per workday, of an 
employee.
    Secretary means the Secretary of Labor or authorized 
representative.
    Serious health condition entitling an employee to FMLA leave means:
            (1) An illness, injury, impairment, or physical or mental 
        condition that involves:
                    (i) Inpatient care (i.e., an overnight stay) in a 
                hospital, hospice, or residential medical care 
                facility, including any period of incapacity (for 
                purposes of this section, defined to mean inability to 
                work, attend school or perform other regular daily 
                activities due to the serious health condition, 
                treatment therefor, or recovery therefrom), or any 
                subsequent treatment in connection with such inpatient 
                care; or
                    (ii) Continuing treatment by a health care 
                provider. A serious health condition involving 
                continuing treatment by a health care provider 
                includes:
                            (A) A period of incapacity (i.e., inability 
                        to work, attend school or perform other regular 
                        daily activities due to the serious health 
                        condition, treatment therefor, or recovery 
                        therefrom) of more than three consecutive 
                        calendar days, including any subsequent 
                        treatment or period of incapacity relating to 
                        the same condition, that also involves:
                                    (1) Treatment two or more times by 
                                a health care provider, by a nurse or 
                                physician's assistant under direct 
                                supervision of a health care provider, 
                                or by a provider of health care 
                                services (e.g., physical therapist) 
                                under orders of, or on referral by, a 
                                health care provider; or
                                    (2) Treatment by a health care 
                                provider on at least one occasion which 
                                results in a regimen of continuing 
                                treatment under the supervision of the 
                                health care provider.
                            (B) Any period of incapacity due to 
                        pregnancy, or for prenatal care.
                            (C) Any period of incapacity or treatment 
                        for such incapacity due to a chronic serious 
                        health condition. A chronic serious health 
                        condition is one which:
                                    (1) Requires periodic visits for 
                                treatment by a health care provider, or 
                                by a nurse or physician's assistant 
                                under direct supervision of a health 
                                care provider;
                                    (2) Continues over an extended 
                                period of time (including recurring 
                                episodes of a single underlying 
                                condition); and
                                    (3) May cause episodic rather than 
                                a continuing period of incapacity 
                                (e.g., asthma, diabetes, epilepsy, 
                                etc.).
                            (D) A period of incapacity which is 
                        permanent or long-term due to a condition for 
                        which treatment may not be effective. The 
                        employee or family member must be under the 
                        continuing supervision of, but need not be 
                        receiving active treatment by, a health care 
                        provider. Examples include Alzheimer's, a 
                        severe stroke, or the terminal stages of a 
                        disease.
                            (E) Any period of absence to receive 
                        multiple treatments (including any period of 
                        recovery therefrom) by a health care provider 
                        or by a provider of health care services under 
                        orders of, or on referral by, a health care 
                        provider, either for restorative surgery after 
                        an accident or other injury, or for a condition 
                        that would likely result in a period of 
                        incapacity of more than three consecutive 
                        calendar days in the absence of medical 
                        intervention or treatment, such as cancer 
                        (chemotherapy, radiation, etc.), severe 
                        arthritis (physical therapy), kidney disease 
                        (dialysis).
            (2) Treatment for purposes of paragraph (1) of this 
        definition includes (but is not limited to) examinations to 
        determine if a serious health condition exists and evaluations 
        of the condition. Treatment does not include routine physical 
        examinations, eye examinations, or dental examinations. Under 
        paragraph (1)(ii)(A)(2) of this definition, a regimen of 
        continuing treatment includes, for example, a course of 
        prescription medication (e.g., an antibiotic) or therapy 
        requiring special equipment to resolve or alleviate the health 
        condition (e.g., oxygen). A regimen of continuing treatment 
        that includes the taking of over-the-counter medications such 
        as aspirin, antihistamines, or salves; or bed-rest, drinking 
        fluids, exercise, and other similar activities that can be 
        initiated without a visit to a health care provider, is not, by 
        itself, sufficient to constitute a regimen of continuing 
        treatment for purposes of FMLA leave.
            (3) Conditions for which cosmetic treatments are 
        administered (such as most treatments for acne or plastic 
        surgery) are not ``serious health conditions'' unless inpatient 
        hospital care is required or unless complications develop. 
        Ordinarily, unless complications arise, the common cold, the 
        flu, ear aches, upset stomach, minor ulcers, headaches other 
        than migraine, routine dental or orthodontia problems, 
        periodontal disease, etc., are examples of conditions that do 
        not meet the definition of a serious health condition and do 
        not qualify for FMLA leave. Restorative dental or plastic 
        surgery after an injury or removal of cancerous growths are 
        serious health conditions provided all the other conditions of 
        this regulation are met. Mental illness resulting from stress 
        or allergies may be serious health conditions, but only if all 
        the conditions of this section are met.
            (4) Substance abuse may be a serious health condition if 
        the conditions of this section are met. However, FMLA leave may 
        only be taken for treatment for substance abuse by a health 
        care provider or by a provider of health care services on 
        referral by a health care provider. On the other hand, absence 
        because of the employee's use of the substance, rather than for 
        treatment, does not qualify for FMLA leave.
            (5) Absences attributable to incapacity under paragraphs 
        (1)(ii) (B) or (C) of this definition qualify for FMLA leave 
        even though the employee or the immediate family member does 
        not receive treatment from a health care provider during the 
        absence, and even if the absence does not last more than three 
        days. For example, an employee with asthma may be unable to 
        report for work due to the onset of an asthma attack or because 
        the employee's health care provider has advised the employee to 
        stay home when the pollen count exceeds a certain level. An 
        employee who is pregnant may be unable to report to work 
        because of severe morning sickness.
    Son or daughter means a biological, adopted, or foster child, a 
stepchild, a legal ward, or a child of a person standing in loco 
parentis, who is under 18 years of age or 18 years of age or older and 
incapable of self-care because of a mental or physical disability.
    Spouse means a husband or wife as defined or recognized under State 
law for purposes of marriage in the State where the employee resides, 
including common law marriage in States where it is recognized.
    State means any State of the United States or the District of 
Columbia or any Territory or possession of the United States.
    Teacher (or employee employed in an instructional capacity, or 
instructional employee) means an employee employed principally in an 
instructional capacity by an educational agency or school whose 
principal function is to teach and instruct students in a class, a 
small group, or an individual setting, and includes athletic coaches, 
driving instructors, and special education assistants such as signers 
for the hearing impaired. The term does not include teacher assistants 
or aides who do not have as their principal function actual teaching or 
instructing, nor auxiliary personnel such as counselors, psychologists, 
curriculum specialists, cafeteria workers, maintenance workers, bus 
drivers, or other primarily noninstructional employees.

                   Appendix A to Part 825--[Reserved]

   Appendix B to Part 825--Certification of Physician or Practitioner

                 Certification of Health Care Provider

    (family and medical leave act of 1993 as made applicable by the 
               congressional accountability act of 1995)

1. Employee's Name:

2. Patient's Name (if different from employee):

3. The attached sheet describes what is meant by a ``serious health 
condition'' under the Family and Medical Leave Act as made applicable 
by the Congressional Accountability Act. Does the patient's 
condition\1\ qualify under any of the categories described? If so, 
please check the applicable category.

(1) ________

(2) ________

(3) ________

(4) ________

(5) ________

(6) ________, or

None of the above ________

4. Describe the medical facts which support your certification, 
including a brief statement as to how the medical facts meet the 
criteria of one of these categories:

5.a. State the approximate date the condition commenced, and the 
probable duration of the condition (and also the probable duration of 
the patient's present incapacity<SUP>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)? 
________

        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? ________

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)? ________ If yes, please list the essential 
functions the employee is unable to perform: ________

c. If neither a. nor b. applies, is it necessary for the employee to be 
absent from work for treatment? ________

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? 
________

b. If no, would the employee's presence to provide psychological 
comfort be beneficial to the patient or assist in the patient's 
recovery? ________

c. If the patient will need care only intermittently or on a part-time 
basis, please indicate the probable duration of this need:

(Signature of Health Care Provider)

(Type of Practice)

(Address)

(Telephone number)

To be completed by the employee needing family leave to care for a 
family member:

        State the care you will provide and an estimate of the period 
        during which care will be provided, including a schedule if 
        leave is to be taken intermittently or if it will be necessary 
        for you to work less than a full schedule:

(Employee signature)

(Date)

A ``Serious Health Condition'' means an illness, injury, impairment, or 
physical or mental condition that involves one of the following:

1. Hospital Care.--Inpatient care (i.e., an overnight stay) in a 
hospital, hospice, or residential medical care facility, including any 
period of incapacity\1\ or subsequent treatment in connection with or 
consequent to such inpatient care.

2. Absence Plus Treatment.--A period of incapacity\2\ of more than 
three consecutive calendar days (including any subsequent treatment or 
period of incapacity\2\ relating to the same condition), that also 
involves:

        (1) Treatment\3\ two or more times by a health care provider, 
        by a nurse or physician's assistant under direct supervision of 
        a health care provider, or by a provider of health care 
        services (e.g., physical therapist) under orders of, or on 
        referral by, a health care provider; or

        (2) Treatment by a health care provider on at least one 
        occasion which results in a regimen of continuing 
        treatment<SUP>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

\1\Here and elsewhere on this form, the information sought relates only 
to the condition for which the employee is taking FMLA leave.
\2\``Incapacity'', for purposes of FMLA as make applicable by the CAA, 
is defined to mean inability to work, attend school or perform other 
regular daily activities due to the serious health condition, treatment 
therefore, or recovery therefrom.
<SUP>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.
<SUP>4 A regimen of continuing treatment includes, for example, a 
course of prescription medication (e.g., an antibiotic) or therapy 
requiring special equipment to resolve or alleviate the health 
condition. A regimen of treatment does not include the taking of over-
the-counter medications such as aspirin, antihistamines, or salves; or 
bed-rest, drinking fluids, exercise, and other similar activities that 
can be initiated without a visit to a health care provider.

                   Appendix C to Part 825--[Reserved]

Appendix D to Part 825--Prototype Notice: Employing Office Response to 
             Employee Request for Family and Medical Leave

  Employing Office Response to Employee Request for Family or Medical 
                                 Leave

 (optional use form--see Sec. 825.301(b)(1) of the regulations of the 
   (family and medical leave act of 1993, as made applicable by the 
               congressional accountability act of 1995)
(Date)

To:____________________
        (Employee's name)

From:____________________
        (Name of appropriate employing office representative)

Subject: Request for Family/Medical Leave

        On________, (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 ________(date) 
and that you expect leave to continue until on or about________ (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   eligible   not eligible  for leave under the FMLA as made 
applicable by the CAA.

2. The requested leave   will   will not  be counted against your 
annual FMLA leave entitlement.

3. You   will   will not  be required to furnish medical certification 
of a serious health condition. If required, you must furnish 
certification by________ (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   will   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   will   will not  pay 
your share of health insurance premiums while you are on leave.

(c). We   will   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   will   will not  be expected to reimburse us for the payments 
made on your behalf.

6. You   will   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   are   are not  a ``key employee'' as described in 
Sec. 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   have    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 Sec. 825.219 of 
the Office of Compliance's FMLA regulations.)

8. While on leave, you   will   will not  be required to furnish us 
with periodic reports every ________ (indicate interval of periodic 
reports, as appropriate for the particular leave situation) of your 
status and intent to return to work (see Sec. 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   will   will not  be 
required to notify us at least two work days prior to the date you 
intend to report for work.

9. You   will   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 
Sec. 825.308 of the Office of Compliance's FMLA regulations.)

   Subtitle A--Regulations Relating to the Senate and Its Employing 
                           Offices--S Series

 CHAPTER III--REGULATIONS RELATING TO THE RIGHTS AND PROTECTIONS UNDER 
                  THE FAIR LABOR STANDARDS ACT OF 1938

                     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]
Sec. S501.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
    The following table lists the parts of the Secretary of Labor 
Regulations at Title 29 of the Code of Federal Regulations under the 
FLSA with the corresponding parts of the Office of Compliance (OC) 
Regulations under section 203 of the CAA:

                Secretary of Labor regulations           OC regulations
Part 531  Wage payments under the Fair Labor                  Part S531
Standards Act of 1938.
Part 541  Defining and delimiting the terms ``bona            Part S541
fide executive'', ``administrative'', and 
``professional'' employees.
Part 547  Requirements of a ``Bona fide thrift or             Part S547
savings plan''.
Part 553  Application of the FLSA to employees of             Part S553
public agencies.
Part 570  Child labor................................         Part S570

              Subpart A--Matters of General Applicability

Sec. S501.101  Purpose and scope.
    (a) Section 203 of the Congressional Accountability Act (CAA) 
provides that the rights and protections of subsections (a)(1) and (d) 
of section 6, section 7, and section 12(c) of the Fair Labor Standards 
Act of 1938 (FLSA) (29 U.S.C. Sec. Sec. 206 (a)(1) and (d), 207, 
212(c)) shall apply to covered employees of the legislative branch of 
the Federal Government. Section 301 of the CAA creates the Office of 
Compliance as an independent office in the legislative branch for 
enforcing the rights and protections of the FLSA, as applied by the 
CAA.
    (b) The FLSA as applied by the CAA provides for minimum standards 
for both wages and overtime entitlements, and delineates administrative 
procedures by which covered worktime must be compensated. Included also 
in the FLSA are provisions related to child labor, equal pay, and 
portal-to-portal activities. In addition, the FLSA exempts specified 
employees or groups of employees from the application of certain of its 
provisions.
    (c) This chapter contains the substantive regulations with respect 
to the FLSA that the Board of Directors of the Office of Compliance has 
adopted pursuant to sections 203(c) and 304 of the CAA, which require 
that the Board promulgate regulations that are ``the same as 
substantive regulations promulgated by the Secretary of Labor to 
implement the statutory provisions referred to in subsection (a) [of 
Sec. 203 of the CAA] except insofar as the Board may determine, for 
good cause shown . . . that a modification of such regulations would be 
more effective for the implementation of the rights and protections 
under this section''.
    (d) These regulations are issued by the Board of Directors, Office 
of Compliance, pursuant to sections 203(c) and 304 of the CAA, which 
directs the Board to promulgate regulations implementing section 203 
that are ``the same as substantive regulations promulgated by the 
Secretary of Labor to implement the statutory provisions referred to in 
subsection (a) [of section 203 of the CAA] except insofar as the Board 
may determine, for good cause shown . . . that a modification of such 
regulations would be more effective for the implementation of the 
rights and protections under this section''. The regulations issued by 
the Board herein are on all matters for which section 203 of the CAA 
requires regulations to be issued. Specifically, it is the Board's 
considered judgment, based on the information available to it at the 
time of the promulgation of these regulations, that, with the exception 
of regulations adopted and set forth herein, there are no other 
``substantive regulations promulgated by the Secretary of Labor to 
implement the statutory provisions referred to in subsection (a) [of 
section 203 of the CAA]''.
    (e) In promulgating these regulations, the Board has made certain 
technical and nomenclature changes to the regulations as promulgated by 
the Secretary. Such changes are intended to make the provisions adopted 
accord more naturally to situations in the legislative branch. However, 
by making these changes, the Board does not intend a substantive 
difference between these regulations and those of the Secretary from 
which they are derived. Moreover, such changes, in and of themselves, 
are not intended to constitute an interpretation of the regulation or 
of the statutory provisions of the CAA upon which they are based.
Sec. S501.102  Definitions.
    For purposes of this chapter:
            (a) CAA means the Congressional Accountability Act of 1995 
        (P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
            (b) FLSA or Act means the Fair Labor Standards Act of 1938, 
        as amended (29 U.S.C. Sec. 201 et seq.), as applied by section 
        203 of the CAA to covered employees and employing offices.
            (c) Covered employee means any employee of the Senate, 
        including an applicant for employment and a former employee, 
        but shall not include an intern.
            (d) Employee of the Senate includes any employee whose pay 
        is disbursed by the Secretary of the Senate, but not any such 
        individual employed by (1) the Capitol Guide Service; (2) the 
        Capitol Police; (3) the Congressional Budget Office; (4) the 
        Office of the Architect of the Capitol; (5) the Office of the 
        Attending Physician; (6) the Office of Compliance; or (7) the 
        Office of Technology Assessment.
            (e) Employing office and employer mean (1) the personal 
        office of a Senator; (2) a committee of the Senate or a joint 
        committee; or (3) any other office headed by a person with the 
        final authority to appoint, hire, discharge, and set the terms, 
        conditions, or privileges of the employment of an employee of 
        the Senate.
            (f) Board means the Board of Directors of the Office of 
        Compliance.
            (g) Office means the Office of Compliance.
            (h) Intern is an individual who (a) is performing services 
        in an employing office as part of a demonstrated educational 
        plan, and (b) is appointed on a temporary basis for a period 
        not to exceed 12 months: Provided, That if an intern is 
        appointed for a period shorter than 12 months, the intern may 
        be reappointed for additional periods as long as the total 
        length of the internship does not exceed 12 months: Provided 
        further, That an intern for purposes of section 203(a)(2) of 
        the CAA also includes an individual who is a senior citizen 
        appointed under S. Res. 219 (May 5, 1978, as amended by S. Res. 
        96, April 9, 1991), but does not include volunteers, fellows or 
        pages.
Sec. S501.103  Coverage.
    The coverage of section 203 of the CAA extends to any covered 
employee of an employing office without regard to whether the covered 
employee is engaged in commerce or the production of goods for 
interstate commerce and without regard to size, number of employees, 
amount of business transacted, or other measure.
Sec. S501.104  Administrative authority.
    (a) The Office of Compliance is authorized to administer the 
provisions of section 203 of the Act with respect to any covered 
employee or covered employer.
    (b) The Board is authorized to promulgate substantive regulations 
in accordance with the provisions of sections 203(c) and 304 of the 
CAA.
Sec. S501.105  Effect of Interpretation of the Department of Labor.
    (a) In administering the FLSA, the Wage and Hour Division of the 
Department of Labor has issued not only substantive regulations but 
also interpretative bulletins. Substantive regulations represent an 
exercise of statutory-delegated lawmaking authority from the 
legislative branch to an administrative agency. Generally, they are 
proposed in accordance with the notice-and-comment procedures of the 
Administrative Procedure Act (APA), 5 U.S.C. Sec. 553. Once 
promulgated, such regulations are considered to have the force and 
effect of law, unless set aside upon judicial review as arbitrary, 
capricious, an abuse of discretion, or otherwise not in accordance with 
law. See Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977). See also 
29 CFR Sec. 790.17(b) (1994). Unlike substantive regulations, 
interpretative statements, including bulletins and other releases of 
the Wage and Hour Division, are not issued pursuant to the provisions 
of the APA and may not have the force and effect of law. Rather, they 
may only constitute official interpretations of the Department of Labor 
with respect to the meaning and application of the minimum wage, 
maximum hour, and overtime pay requirements of the FLSA. See 29 C.F.R. 
Sec. 790.17(c) (citing Final Report of the Attorney General's Committee 
on Administrative Procedure, Senate Document No. 8, 77th Cong., 1st 
Sess., at p. 27 (1941)). The purpose of such statements is to make 
available in one place the interpretations of the FLSA which will guide 
the Secretary of Labor and the Wage and Hour Administrator in the 
performance of their duties unless and until they are otherwise 
directed by authoritative decisions of the courts or conclude, upon 
reexamination of an interpretation, that it is incorrect. The Supreme 
Court has observed: ``[T]he rulings, interpretations and opinions of 
the Administrator under this Act, while not controlling upon the courts 
by reason of their authority, do constitute a body of experience and 
informed judgment to which courts and litigants may properly resort for 
guidance. The weight of such a judgment in a particular case will 
depend upon the thoroughness evident in the consideration, the validity 
of its reasoning, its consistency with earlier and later 
pronouncements, and all those factors which give it power to persuade, 
if lacking power to control'', Skidmore v. Swift, 323 U.S. 134, 140 
(1944).
    (b) Section 203(c) of the CAA provides that the substantive 
regulations implementing section 203 of the CAA shall be ``the same as 
substantive regulations promulgated by the Secretary of Labor'' except 
where the Board finds, for good cause shown, that a modification would 
more effectively implement the rights and protections established by 
the FLSA. Thus, the CAA by its terms does not mandate that the Board 
adopt the interpretative statements of the Department of Labor or its 
Wage and Hour Division. The Board is thus not adopting such statements 
as part of its substantive regulations.
Sec. S501.106 Application of the Portal-to-Portal Act of 1947.
    (a) Consistent with section 225 of the CAA, the Portal-to-Portal 
Act (PPA), 29 U.S.C. Sec. Sec. 216 and 251 et seq., is applicable in 
defining and delimiting the rights and protections of the FLSA that are 
prescribed by the CAA. Section 10 of the PPA, 29 U.S.C. Sec. 259, 
provides in pertinent part: ``[N]o employer shall be subject to any 
liability or punishment for or on account of the failure of the 
employer to pay minimum wages or overtime compensation under the Fair 
Labor Standards Act of 1938, as amended, . . . if he pleads and proves 
that the act of omission complained of was in good faith in conformity 
with and reliance on any written administrative regulation, order, 
ruling, approval or interpretation of [the Administrator of the Wage 
and Hour Division of the Department of Labor] . . . or any 
administrative practice or enforcement policy of such agency with 
respect to the class of employers to which he belonged. Such a defense, 
if established shall be a bar to the action or proceeding, 
notwithstanding that after such act or omission, such administrative 
regulation, order, ruling, approval, interpretation, practice or 
enforcement policy is modified or rescinded or is determined by 
judicial authority to be invalid or of no legal effect''.
    (b) In defending any action or proceeding based on any act or 
omission arising out of section 203 of the CAA, an employing office may 
satisfy the standards set forth in subsection (a) by pleading and 
proving good faith reliance upon any written administrative regulation, 
order, ruling, approval or interpretation, of the Administrator of the 
Wage and Hour Division of the Department of Labor: Provided, That such 
regulation, order, ruling approval or interpretation had not been 
superseded at the time or reliance by any regulation, order, decision, 
or ruling of the Board or the courts.
Sec. S501.107  [Reserved].

  PART S531--WAGE PAYMENTS UNDER THE 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.
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.

                     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.
    The following table lists the sections of the Secretary of Labor 
Regulations at Title 29 of the Code of Federal Regulations under the 
FLSA with the corresponding sections of the Office of Compliance (OC) 
Regulations under section 203 of the CAA:

                Secretary of Labor Regulations           OC Regulations
531.1  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
Sec. S531.1  Definitions.
    (a) Administrator means the Administrator of the Wage and Hour 
Division or his authorized representative. The Secretary of Labor has 
delegated to the Administrator the functions vested in him under 
section 3(m) of the Act.
    (b) Act means the Fair Labor Standards Act of 1938, as amended.
Sec. S531.2  Purpose and scope.
    (a) Section 3(m) of the Act defines the term ``wage'' to include 
the ``reasonable cost'', as determined by the Secretary of Labor, to an 
employer of furnishing any employee with board, lodging, or other 
facilities, if such board, lodging, or other facilities are customarily 
furnished by the employer to his employees. In addition, section 3(m) 
gives the Secretary authority to determine the ``fair value'' of such 
facilities on the basis of average cost to the employer or to groups of 
employers similarly situated, on average value to groups of employees, 
or other appropriate measures of ``fair value''. Whenever so determined 
and when applicable and pertinent, the ``fair value'' of the facilities 
involved shall be includable as part of ``wages'' instead of the actual 
measure of the costs of those facilities. The section provides, 
however, the cost of board, lodging, or other facilities shall not be 
included as part of ``wages'' if excluded therefrom by a bona fide 
collective bargaining agreement. Section 3(m) also provides a method 
for determining the wage of a tipped employee.
    (b) This part 531 contains any determinations made as to the 
``reasonable cost'' and ``fair value'' of board, lodging, or other 
facilities have general application.

 Subpart B--Determinations of ``Reasonable Cost'' and ``Fair Value''; 
              Effects of Collective Bargaining Agreements

Sec. S531.3  General determinations of ``reasonable cost''.
    (a) The term ``reasonable cost'' as used in section 3(m) of the Act 
is hereby determined to be not more than the actual cost to the 
employer of the board, lodging, or other facilities customarily 
furnished by him to his employees.
    (b) Reasonable cost does not include a profit to the employer or to 
any affiliated person.
    (c) The reasonable cost to the employer of furnishing the employee 
with board, lodging, or other facilities (including housing) is the 
cost of operation and maintenance including adequate depreciation plus 
a reasonable allowance (not more than 5\1/2\ percent) for interest on 
the depreciated amount of capital invested by the employer: Provided, 
That if the total so computed is more than the fair rental value (or 
the fair price of the commodities or facilities offered for sale), the 
fair rental value (or the fair price of the commodities or facilities 
offered for sale) shall be the reasonable cost. The cost of operation 
and maintenance, the rate of depreciation, and the depreciated amount 
of capital invested by the employer shall be those arrived at under 
good accounting practices. As used in this paragraph, the term good 
accounting practices does not include accounting practices which have 
been rejected by the Internal Revenue Service for tax purposes, and the 
term depreciation includes obsolescence.
    (d)(1) The cost of furnishing ``facilities'' found by the 
Administrator to be primarily for the benefit or convenience of the 
employer will not be recognized as reasonable and may not therefore be 
included in computing wages.
    (2) The following is a list of facilities found by the 
Administrator to be primarily for the benefit of convenience of the 
employer. The list is intended to be illustrative rather than 
exclusive: (i) Tools of the trade and other materials and services 
incidental to carrying on the employer's business; (ii) the cost of any 
construction by and for the employer; (iii) the cost of uniforms and of 
their laundering, where the nature of the business requires the 
employee to wear a uniform.
Sec. S531.6  Effects of collective bargaining agreements.
    (a) The cost of board, lodging, or other facilities shall not be 
included as part of the wage paid to any employee to the extent it is 
excluded therefrom under the terms of a bona fide collective bargaining 
agreement applicable to the particular employee.
    (b) A collective bargaining agreement shall be deemed to be ``bona 
fide'' when pursuant to the provisions of section 7(b)(1) or 7(b)(2) of 
the FLSA it is made with the certified representative of the employees 
under the provisions of the CAA.

 PART S541--DEFINING AND DELIMITING THE TERMS ``BONA FIDE EXECUTIVE'', 
    ``ADMINISTRATIVE'', OR ``PROFESSIONAL'' CAPACITY (INCLUDING ANY 
EMPLOYEE EMPLOYED IN THE CAPACITY OF ACADEMIC ADMINISTRATIVE PERSONNEL 
                    OR TEACHER IN SECONDARY SCHOOL)

                     Subpart A--General Regulations

Sec.
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.
Sec. S541.00 Corresponding section table of the FLSA regulations of the 
              Labor Department and the CAA regulations of the Office of 
              Compliance.
    The following table lists the sections of the Secretary of Labor 
Regulations at Title 29 of the Code of Federal Regulations under the 
FLSA with the corresponding sections of the Office of Compliance (OC) 
Regulations under section 203 of the CAA:

                Secretary of Labor Regulations           OC Regulations
541.1 Executive......................................            S541.1
541.2 Administrative.................................            S541.2
541.3 Professional...................................            S541.3
541.5b Equal pay provisions of section 6(d) of the              S541.5b
FLSA apply to executive, administrative, and 
professional employees.
541.5d Special provisions applicable to employees of            S541.5d
public agencies.
Sec. S541.01 Application of the exemptions of section 13(a)(1) of the 
              FLSA
    (a) Section 13(a)(1) of the FLSA, which provides certain exemptions 
for employees employed in a bona fide executive, administrative, or 
professional capacity (including any employee employed in a capacity of 
academic administrative personnel or teacher in a secondary school), 
applies to covered employees by virtue of section 225(f)(1) of the CAA.
    (b) The substantive regulations set forth in this part are 
promulgated under the authority of sections 203(c) and 304 of the CAA, 
which require that such regulations be the same as the substantive 
regulations promulgated by the Secretary of Labor except where the 
Board determines for good cause shown that modifications would be more 
effective for the implementation of the rights and protections under 
Sec. 203.
Sec. S541.1 Executive
    The term employee employed in a bona fide executive * * * capacity 
in section 13(a)(1) of the FSLA as applied by the CAA shall mean any 
employee:
    (a) Whose primary duty consists of the management of an employing 
office in which he is employed or of a customarily recognized 
department or subdivision thereof; and
    (b) Who customarily and regularly directs the work of two or more 
other employees therein; and
    (c) Who has the authority to hire or fire other employees or whose 
suggestions and recommendations as to the hiring or firing and as to 
the advancement and promotion or any other change of status of other 
employees will be given particular weight; and
    (d) Who customarily and regularly exercises discretionary powers; 
and
    (e) Who does not devote more than 20 percent, or, in the case of an 
employee of a retail or service establishment who does not devote as 
much as 40 percent, of his hours of work in the workweek to activities 
which are not directly and closely related to the performance of the 
work described in paragraphs (a) through (d) of this section: Provided, 
That this paragraph shall not apply in the case of an employee who is 
in sole charge of an independent establishment or a physically 
separated branch establishment; and
    (f) Who is compensated for his services on a salary basis at a rate 
of not less than $155 per week, exclusive of board, lodging or other 
facilities: Provided, That an employee who is compensated on a salary 
basis at a rate of not less than $250 per week, exclusive of board, 
lodging or other facilities, and whose primary duty consists of the 
management of the employing office in which the employee is employed or 
of a customarily recognized department or subdivision thereof, and 
includes the customary and regular direction of work of two or more 
other employees therein, shall be deemed to meet all the requirements 
of this section
Sec. S541.2  Administrative
    The term employee employed in a bona fide * * * administrative * * 
* capacity in section 13(a)(1) of the FLSA as applied by the CAA shall 
mean any employee:
    (a) Whose primary duty consists of either:
            (1) The performance of office or nonmanual work directly 
        related to management policies or general operations of his 
        employer or his employer's customers, or
            (2) The performance of functions in the administration of a 
        school system, or educational establishment or institution, or 
        of a department or subdivision thereof, in work directly 
        related to the academic instruction or training carried on 
        therein; and
    (b) Who customarily and regularly exercises discretion and 
independent judgment; and
    (c)(1) Who regularly and directly assists the head of an employing 
office, or an employee employed in a bona fide executive or 
administrative capacity (as such terms are defined in the regulations 
of this subpart), or
    (2) Who performs under only general supervision work along 
specialized or technical lines requiring special training, experience, 
or knowledge, or
    (3) Who executes under only general supervision special assignments 
and tasks; and
    (d) Who does not devote more than 20 percent, or, in the case of an 
employee of a retail or service establishment who does not devote as 
much as 40 percent, of his hours worked in the workweek to activities 
which are not directly and closely related to the performance of the 
work described in paragraphs (a) through (c) of this section; and
    (e)(1) Who is compensated for his services on a salary or fee basis 
at a rate of not less than $155 per week, exclusive of board, lodging 
or other facilities, or
    (2) Who, in the case of academic administrative personnel, is 
compensated for services as required by paragraph (e)(1) of this 
section, or on a salary basis which is at least equal to the entrance 
salary for teachers in the school system, educational establishment or 
institution by which employed: Provided, That an employee who is 
compensated on a salary or fee basis at a rate of not less than $250 
per week, exclusive of board, lodging or other facilities, and whose 
primary duty consists of the performance of work described in paragraph 
(a) of this section, which includes work requiring the exercise of 
discretion and independent judgment, shall be deemed to meet all the 
requirements of this section.
Sec. S541.3  Professional
    The term employee employed in a bona fide * * * professional 
capacity in section 13(a)(1) of the FLSA as applied by the CAA shall 
mean any employee:
    (a) Whose primary duty consists of the performance of:
            (1) Work requiring knowledge of an advance type in a field 
        of science or learning customarily acquired by a prolonged 
        course of specialized intellectual instruction and study, as 
        distinguished from a general academic education and from an 
        apprenticeship, and from training in the performance of routine 
        mental, manual, or physical processes, or
            (2) Work that is original and creative in a recognized 
        field of artistic endeavor (as opposed to work which can be 
        produced by a person endowed with general manual or 
        intellectual ability and training), and the result of which 
        depends primarily on the invention, imagination, or talent of 
        the employee, or
            (3) Teaching, tutoring, instructing, or lecturing in the 
        activity of imparting knowledge and who is employed and engaged 
        in this activity as a teacher in the school system, educational 
        establishment or institution by which employed, or
            (4) Work that requires theoretical and practical 
        application of highly-specialized knowledge in computer systems 
        analysis, programming, and software engineering, and who is 
        employed and engaged in these activities as a computer systems 
        analyst, computer programmer, software engineer, or other 
        similarly skilled worker in the computer software field; and
    (b) Whose work requires the consistent exercise of discretion and 
judgment in its performance; and
    (c) Whose work is predominantly intellectual and varied in 
character (as opposed to routine mental, manual, mechanical, or 
physical work) and is of such character that the output produced or the 
result accomplished cannot be standardized in relation to a given 
period of time; and
    (d) Who does not devote more than 20 percent of his hours worked in 
the workweek to activities which are not an essential part of and 
necessarily incident to the work described in paragraphs (a) through 
(c) of this section; and
    (e) Who is compensated for services on a salary or fee basis at a 
rate of not less than $170 per week, exclusive of board, lodging or 
other facilities: Provided, That this paragraph shall not apply in the 
case of an employee who is the holder of a valid license or certificate 
permitting the practice of law or medicine or any of their branches and 
who is actually engaged in the practice thereof, nor in the case of an 
employee who is the holder of the requisite academic degree for the 
general practice of medicine and is engaged in an internship or 
resident program pursuant to the practice of medicine or any of its 
branches, nor in the case of an employee employed and engaged as a 
teacher as provided in paragraph (a)(3) of this section: Provided 
further, That an employee who is compensated on a salary or fee basis 
at a rate of not less than $250 per week, exclusive of board, lodging 
or other facilities, and whose primary duty consists of the performance 
either of work described in paragraph (a)(1), (3), or (4) of this 
section, which includes work requiring the consistent exercise of 
discretion and judgment, or of work requiring invention, imagination, 
or talent in a recognized field of artistic endeavor, shall be deemed 
to meet all of the requirements of this section: Provided further, That 
the salary or fee requirements of this paragraph shall not apply to an 
employee engaged in computer-related work within the scope of paragraph 
(a)(4) of this section and who is compensated on an hourly basis at a 
rate in excess of 6\1/2\ times the minimum wage provided by section 6 
of the FLSA as applied by the CAA.
Sec. S541.5b  Equal pay provisions of section 6(d) of the FLSA as 
              applied by the CAA extend to executive, administrative, 
              and professional employees
    The FLSA, as amended and as applied by the CAA, includes within the 
protection of the equal pay provisions those employees exempt from the 
minimum wage and overtime pay provisions as bona fide executive, 
administrative, and professional employees (including any employee 
employed in the capacity of academic administrative personnel or 
teacher in elementary or secondary schools) under section 13(a)(1) of 
the FLSA. Thus, for example, where an exempt administrative employee 
and another employee of the employing office are performing 
substantially ``equal work'', the sex discrimination prohibitions of 
section 6(d) are applicable with respect to any wage differential 
between those two employees.
Sec. S541.5d  Special provisions applicable to employees of public 
              agencies
    (a) An employee of a public agency who otherwise meets the 
requirement of being paid on a salary basis shall not be disqualified 
from exemption under section S541.1, S541.2, or S541.3 on the basis 
that such employee is paid according to a pay system established by 
statute, ordinance, or regulation, or by a policy for practice 
established pursuant to principles of public accountability, under 
which the employee accrues personal leave and sick leave and which 
requires the public agency employee's pay to be reduced or such 
employee to be placed on leave without pay for absences for personal 
reasons or because of illness or injury of less than one workday when 
accrued leave is not used by an employee because--
            (1) permission for its use has not been sought or has been 
        sought and denied;
            (2) accrued leave has been exhausted; or
            (3) the employee chooses to use leave without pay.
    (b) Deductions from the pay for an employee of a public agency for 
absences due to a budget-required furlough shall not disqualify the 
employee from being paid ``on a salary basis'' except in the workweek 
in which the furlough occurs and for which the employee's pay is 
accordingly reduced.

   PART S547--REQUIREMENTS OF A ``BONA FIDE 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.
Sec. S547.00  Corresponding section table of the FLSA regulations of 
              the Labor Department and the CAA regulations of the 
              Office of Compliance
    The following table lists the sections of the Secretary of Labor 
Regulations under the FLSA with the corresponding sections of the 
Office of Compliance (OC) Regulations under section 203 of the CAA:

                Secretary of Labor Regulations           OC Regulations
547.0  Scope and effect of part......................            S547.0
547.1  Essential requirements of qualifications......            S547.1
547.2  Disqualifying provisions......................            S547.2
Sec. S547.0  Scope and effect of part
    (a) The regulations in this part set forth the requirements of a 
``bona fide thrift or savings plan'' under section 7(3)(e)(b) of the 
Fair Labor Standards Act of 1938, as amended (FLSA), as applied by the 
CAA. In determining the total remuneration for employment which section 
7(e) of the FLSA requires to be included in the regular rate at which 
an employee is employed, it is not necessary to include any sums paid 
to or on behalf of such employee, in recognition of services performed 
by him during a given period, which are paid pursuant to a bona fide 
thrift or savings plan meeting the requirements set forth herein. In 
the formulation of these regulations due regard has been given to the 
factors and standards set forth in section 7(e)(3)(b) of the Act.
    (b) Where a thrift or savings plan is combined in a single program 
(whether in one or more documents) with a plan or trust for providing 
old age, retirement, life, accident or health insurance or similar 
benefits for employees, contributions made by the employer pursuant to 
such thrift or savings plan may be excluded from the regular rate if 
the plan meets the requirements of the regulation in this part and the 
contributions made for the other purposes may be excluded from the 
regular rate if they meet the tests set forth in regulations.
Sec. S547.1  Essential requirements for qualifications
    (a) A ``bona fide thrift or savings plan'' for the purpose of 
section 7(e)(3)(b) of the FLSA as applied by the CAA is required to 
meet all the standards set forth in paragraphs (b) through (f) of this 
section and must not contain the disqualifying provisions set forth in 
Sec. S547.2.
    (b) The thrift or savings plan constitutes a definite program or 
arrangement in writing, adopted by the employer or by contract as a 
result of collective bargaining and communicated or made available to 
the employees, which is established and maintained, in good faith, for 
the purpose of encouraging voluntary thrift or savings by employees by 
providing an incentive to employees to accumulate regularly and retain 
cash savings for a reasonable period of time or to save through the 
regular purchase of public or private securities.
    (c) The plan specifically shall set forth the category or 
categories of employees participating and the basis of their 
eligibility. Eligibility may not be based on such factors as hours of 
work, production, or efficiency of the employees: Provided, however, 
That hours of work may be used to determine eligibility of part-time or 
casual employees.
    (d) The amount any employee may save under the plan shall be 
specified in the plan or determined in accordance with a definite 
formula specified in the plan, which formula may be based on one or 
more factors such as the straight-time earnings or total earnings, base 
rate of pay, or length of service of the employee.
    (e) The employer's total contribution in any year may not exceed 15 
percent of the participating employees' total earnings during that 
year. In addition, the employer's total contribution in any year may 
not exceed the total amount saved or invested by the participating 
employees during that year.
    (f) The employer's contributions shall be apportioned among the 
individual employees in accordance with a definite formula or method of 
calculation specified in the plan, which formula or method of 
calculation is based on the amount saved or the length of time the 
individual employee retains his savings or investment in the plan: 
Provided, That no employee's share determined in accordance with the 
plan may be diminished because of any other remuneration received by 
him.
Sec. S547.2  Disqualifying provisions
    (a) No employee's participation in the plan shall be on other than 
a voluntary basis.
    (b) No employee's wages or salary shall be dependent upon or 
influenced by the existence of such thrift or savings plan or the 
employer's contributions thereto.
    (c) The amounts any employee may save under the plan, or the 
amounts paid by the employer under the plan may not be based upon the 
employee's hours of work, production or efficiency.

   PART S553--OVERTIME COMPENSATION: PARTIAL EXEMPTION FOR EMPLOYEES 
     ENGAGED IN LAW ENFORCEMENT AND FIRE PROTECTION; OVERTIME AND 
   COMPENSATORY TIME-OFF FOR EMPLOYEES WHOSE WORK SCHEDULE DIRECTLY 
          DEPENDS UPON THE SCHEDULE OF THE HOUSE INTRODUCTION

Sec.
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).
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.

                              introduction

Sec. S553.00  Corresponding section table of the FLSA regulations of 
              the Labor Department and the CAA regulations of the 
              Office of Compliance
    The following table lists the sections of the Secretary of Labor 
Regulations under the FLSA with the corresponding sections of the 
Office of Compliance (OC) Regulations under section 203 of the CAA:

                Secretary of Labor Regulations           OC Regulations
553.1  Definitions...................................            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          S553.213
protection and law enforcement activities.
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
553.230  Maximum hours standard for work periods of 7          S553.230
to 28 days--section 7(k).
553.231  Compensatory time off.......................          S553.231
553.232  Overtime pay requirements...................          S553.232
553.233  ``Regular rate'' defined....................          S553.233

                              introduction

Sec. S553.1  Definitions
    (a) Act or FLSA means the Fair Labor Standards Act of 1938, as 
amended (52 Stat. 1060, as amended; 29 U.S.C. 201-219), as applied by 
the CAA.
    (b) 1985 Amendments means the Fair Labor Standards Act Amendments 
of 1985 (Pub. L. 99-150).
    (c) Public agency means an employing office as the term is defined 
in Sec. 501.102 of this chapter, including the Capitol Police.
    (d) Section 7(k) means the provisions of Sec. 7(k) of the FLSA as 
applied to covered employees and employing offices by Sec. 203 of the 
CAA.
Sec. S553.2  Purpose and scope
    The purpose of part S553 is to adopt with appropriate modifications 
the regulations of the Secretary of Labor to carry out those provisions 
of the FLSA relating to public agency employees as they are applied to 
covered employees and employing offices of the CAA. In particular, 
these regulations apply section 7(k) as it relates to fire protection 
and law enforcement employees of public agencies.

 Subpart C--Partial Exemption for Employees Engaged in Law Enforcement 
                          and Fire Protection

Sec. S553.201  Statutory provisions: section 7(k)
    Section 7(k) of the Act provides a partial overtime pay exemption 
for fire protection and law enforcement personnel (including security 
personnel in correctional institutions) who are employed by public 
agencies on a work period basis. This section of the Act formerly 
permitted public agencies to pay overtime compensation to such 
employees in work periods of 28 consecutive days only after 216 hours 
of work. As further set forth in Sec. S553.230 of this part, the 216-
hour standard has been replaced, pursuant to the study mandated by the 
statute, by 212 hours for fire protection employees and 171 hours for 
law enforcement employees. In the case of such employees who have a 
work period of at least 7 but less than 28 consecutive days, overtime 
compensation is required when the ratio of the number of hours worked 
to the number of days in the work period exceeds the ratio of 212 (or 
171) hours to 28 days.
Sec. S553.202  Limitations
    The application of Sec. 7(k), by its terms, is limited to public 
agencies, and does not apply to any private organization engaged in 
furnishing fire protection or law enforcement services. This is so even 
if the services are provided under contract with a public agency.

                         exemption requirements

Sec. S553.211  Law enforcement activities
    (a) As used in Sec. 7(k) of the Act, the term ``any employee . . . 
in law enforcement activities'' refers to any employee (1) who is a 
uniformed or plainclothed member of a body of officers and subordinates 
who are empowered by law to enforce laws designed to maintain public 
peace and order and to protect both life and property from accidental 
or willful injury, and to prevent and detect crimes, (2) who has the 
power to arrest, and (3) who is presently undergoing or has undergone 
or will undergo on-the-job training and/or a course of instruction and 
study which typically includes physical training, self-defense, firearm 
proficiency, criminal and civil law principles, investigative and law 
enforcement techniques, community relations, medical aid and ethics.
    (b) Employees who meet these tests are considered to be engaged in 
law enforcement activities regardless of their rank, or of their status 
as ``trainee'', ``probationary'', or ``permanent'', and regardless of 
their assignment to duties incidental to the performance of their law 
enforcement activities such as equipment maintenance, and lecturing, or 
to support activities of the type described in paragraph (g) of this 
section, whether or not such assignment is for training or 
familiarization purposes, or for reasons of illness, injury or 
infirmity. The term would also include rescue and ambulance service 
personnel if such personnel form an integral part of the public 
agency's law enforcement activities. See section S553.215.
    (c) Typically, employees engaged in law enforcement activities 
include police who are regularly employed and paid as such. Other 
agency employees with duties not specifically mentioned may, depending 
upon the particular facts and pertinent statutory provisions in that 
jurisdiction, meet the three tests described above. If so, they will 
also qualify as law enforcement officers. Such employees might include, 
for example, any law enforcement employee within the legislative branch 
concerned with keeping public peace and order and protecting life and 
property.
    (d) Employees who do not meet each of the three tests described 
above are not engaged in ``law enforcement activities'' as that term is 
used in section 7(k). Employees who normally would not meet each of 
these tests include:
            (1) Building inspectors (other than those defined in 
        section S553.213(a)),
            (2) Health inspectors,
            (3) Sanitarians,
            (4) Civilian traffic employees who direct vehicular and 
        pedestrian traffic at specified intersections or other control 
        points,
            (5) Civilian parking checkers who patrol assigned areas for 
        the purpose of discovering parking violations and issuing 
        appropriate warnings or appearance notices,
            (6) Wage and hour compliance officers,
            (7) Equal employment opportunity compliance officers, and
            (8) Building guards whose primary duty is to protect the 
        lives and property of persons within the limited area of the 
        building.
    (e) The term ``any employee in law enforcement activities'' also 
includes, by express reference, ``security personnel in correctional 
institutions''. Typically, such facilities may include precinct house 
lockups. Employees of correctional institutions who qualify as security 
personnel for purposes of the section 7(k) exemption are those who have 
responsibility for controlling and maintaining custody of inmates and 
of safeguarding them from other inmates or for supervising such 
functions, regardless of whether their duties are performed inside the 
correctional institution or outside the institution. These employees 
are considered to be engaged in law enforcement activities regardless 
of their rank or of their status as ``trainee'', ``probationary'', or 
``permanent'', and regardless of their assignment to duties incidental 
to the performance of their law enforcement activities, or to support 
activities of the type described in paragraph (f) of this section, 
whether or not such assignment is for training or familiarization 
purposes or for reasons of illness, injury or infirmity.
    (f) Not included in the term ``employee in law enforcement 
activities'' are the so-called ``civilian'' employees of law 
enforcement agencies or correctional institutions who engage in such 
support activities as those performed by dispatcher, radio operators, 
apparatus and equipment maintenance and repair workers, janitors, 
clerks and stenographers. Nor does the term include employees in 
correctional institutions who engage in building repair and 
maintenance, culinary services, teaching, or in psychological, medical 
and paramedical services. This is so even though such employees may, 
when assigned to correctional institutions, come into regular contact 
with the inmates in the performance of their duties.
Sec. S553.212  Twenty percent limitation on nonexempt work
    (a) Employees engaged in fire protection or law enforcement 
activities as described in sections S553.210 and S553.211, may also 
engage in some nonexempt work which is not performed as an incident to 
or in conjunction with their fire protection or law enforcement 
activities. For example, firefighters who work for forest conservation 
agencies may, during slack times, plant trees and perform other 
conservation activities unrelated to their firefighting duties. The 
performance of such nonexempt work will not defeat the Sec. 7(k) 
exemption unless it exceeds 20 percent of the total hours worked by 
that employee during the workweek or applicable work period. A person 
who spends more than 20 percent of his/her working time in nonexempt 
activities is not considered to be an employee engaged in fire 
protection or law enforcement activities for purposes of this part.
    (b) Public agency fire protection and law enforcement personnel 
may, at their own option, undertake employment for the same employer on 
an occasional or sporadic and part-time basis in a different capacity 
from their regular employment. The performance of such work does not 
affect the application of the Sec. 7(k) exemption with respect to the 
regular employment. In addition, the hours of work in the different 
capacity need not be counted as hours worked for overtime purposes on 
the regular job, nor are such hours counted in determining the 20 
percent tolerance for nonexempt work discussed in paragraph (a) of this 
section.
Sec. S553.213  Public agency employees engaged in both fire protection 
              and law enforcement activities
    (a) Some public agencies have employees (often called ``public 
safety officers'') who engage in both fire protection and law 
enforcement activities, depending on the agency needs at the time. This 
dual assignment would not defeat the section 7(k) exemption: Provided, 
That each of the activities performed meets the appropriate tests set 
forth in sections S553.210 and S553.211. This is so regardless of how 
the employee's time is divided between the two activities. However, all 
time spent in nonexempt activities by public safety officers within the 
work period, whether performed in connection with fire protection or 
law enforcement functions, or with neither, must be combined for 
purposes of the 20 percent limitation on nonexempt work discussed in 
section S553.212.
    (b) As specified in section S553.230, the maximum hours standards 
under section 7(k) are different for employees engaged in fire 
protection and for employees engaged in law enforcement. For those 
employees who perform both fire protection and law enforcement 
activities, the applicable standard is the one which applies to the 
activity in which the employee spends the majority of work time during 
the work period.
Sec. S553.214  Trainees
    The attendance at a bona fide fire or police academy or other 
training facility, when required by the employing agency, constitutes 
engagement in activities under section 7(k) only when the employee 
meets all the applicable tests described in section S553.210 or section 
S553.211 (except for the power of arrest for law enforcement 
personnel), as the case may be. If the applicable tests are met, then 
basic training or advanced training is considered incidental to, and 
part of, the employee's fire protection or law enforcement activities.
Sec. S553.215  Ambulance and rescue service employees
    Ambulance and rescue service employees of a public agency other 
than a fire protection or law enforcement agency may be treated as 
employees engaged in fire protection or law enforcement activities of 
the type contemplated by Sec. 7(k) if their services are substantially 
related to firefighting or law enforcement activities in that (1) the 
ambulance and rescue service employees have received training in the 
rescue of fire, crime, and accident victims or firefighters or law 
enforcement personnel injured in the performance of their respective, 
duties, and (2) the ambulance and rescue service employees are 
regularly dispatched to fires, crime scenes, riots, natural disasters 
and accidents. As provided in section S553.213(b), where employees 
perform both fire protection and law enforcement activities, the 
applicable standard is the one which applies to the activity in which 
the employee spends the majority of work time during the work period.
Sec. S553.216  Other exemptions
    Although the 1974 Amendments to the FLSA as applied by the CAA 
provide special exemptions for employees of public agencies engaged in 
fire protection and law enforcement activities, such workers may also 
be subject to other exemptions in the Act, and public agencies may 
claim such other applicable exemptions in lieu of Sec. 7(k). For 
example, section 13(a)(1) as applied by the CAA provides a complete 
minimum wage and overtime pay exemption for any employee employed in a 
bona fide executive, administrative, or professional capacity, as those 
terms are defined and delimited in Part S541. The section 13(a)(1) 
exemption can be claimed for any fire protection or law enforcement 
employee who meets all of the tests specified in Part S541 relating to 
duties, responsibilities, and salary. Thus, high ranking police 
officials who are engaged in law enforcement activities, may also, 
depending on the facts, qualify for the section 13(a)(1) exemption as 
``executive'' employees. Similarly, certain criminal investigative 
agents may qualify as ``administrative'' employees under section 
13(a)(1).

            tour of duty and compensable hours of work rules

Sec. S553.220  ``Tour of duty'' defined
    (a) The term ``tour of duty'' is a unique concept applicable only 
to employees for whom the section 7(k) exemption is claimed. This term, 
as used in section 7(k), means the period of time during which an 
employee is considered to be on duty for purposes of determining 
compensable hours. It may be a scheduled or unscheduled period. Such 
periods include ``shifts'' assigned to employees often days in advance 
of the performance of the work. Scheduled periods also include time 
spent in work outside the ``shift'' which the public agency employer 
assigns. For example, a police officer may be assigned to crowd control 
during a parade or other special event outside of his or her shift.
    (b) Unscheduled periods include time spent in court by police 
officers, time spent handling emergency situations, and time spent 
working after a shift to complete an assignment. Such time must be 
included in the compensable tour of duty even though the specific work 
performed may not have been assigned in advance.
    (c) The tour of duty does not include time spent working for a 
separate and independent employer in certain types of special details 
as provided in section S553.227.
Sec. S553.221  Compensable hours of work
    (a) The rules under the FLSA as applied by the CAA on compensable 
hours of work are applicable to employees for whom the section 7(k) 
exemption is claimed. Special rules for sleep time (section S553.222) 
apply to both law enforcement and firefighting employees for whom the 
section 7(k) exemption is claimed. Also, special rules for meal time 
apply in the case of firefighters (section S553.223).
    (b) Compensable hours of work generally include all of the time 
during which an employee is on duty on the employer's premises or at a 
prescribed workplace, as well as all other time during which the 
employee is suffered or permitted to work for the employer. Such time 
includes all pre-shift and post-shift activities which are an integral 
part of the employee's principal activity or which are closely related 
to the performance of the principal activity, such as attending roll 
call, writing up and completing tickets or reports, and washing and re-
racking fire hoses.
    (c) Time spent away from the employer's premises under conditions 
that are so circumscribed that they restrict the employee from 
effectively using the time for personal pursuits also constitutes 
compensable hours of work. For example, where a police station must be 
evacuated because of an electrical failure and the employees are 
expected to remain in the vicinity and return to work after the 
emergency has passed, the entire time spent away from the premises is 
compensable. The employees in this example cannot use the time for 
their personal pursuits.
    (d) An employee who is not required to remain on the employer's 
premises but is merely required to leave word at home or with company 
officials where he or she may be reached is not working while on call. 
Time spent at home on call may or may not be compensable depending on 
whether the restrictions placed on the employee preclude using the time 
for personal pursuits. Where, for example, a firefighter has returned 
home after the shift, with the understanding that he or she is expected 
to return to work in the event of an emergency in the night, such time 
spent at home is normally not compensable. On the other hand, where the 
conditions placed on the employee's activities are so restrictive that 
the employee cannot use the time effectively for personal pursuits, 
such time spent on call is compensable.
    (e) Normal home to work travel is not compensable, even where the 
employee is expected to report to work at a location away from the 
location of the employer's premises.
    (f) A police officer, who has completed his or her tour of duty and 
who is given a patrol car to drive home and use on personal business, 
is not working during the travel time even where the radio must be left 
on so that the officer can respond to emergency calls. Of course, the 
time spent in responding to such calls is compensable.
Sec. S553.222  Sleep time
    (a) Where a public agency elects to pay overtime compensation to 
firefighters and/or law enforcement personnel in accordance with 
section 7(a)(1) of the Act, the public agency may exclude sleep time 
from hours worked if all the conditions for the exclusion of such time 
are met.
    (b) Where the employer has elected to use the section 7(k) 
exemption, sleep time cannot be excluded from the compensable hours of 
work where--
            (1) the employee is on a tour of duty of less than 24 
        hours, and
            (2) the employee is on a tour of duty of exactly 24 hours.
    (c) Sleep time can be excluded from compensable hours of work, 
however, in the case of police officers or firefighters who are on a 
tour of duty of more than 24 hours, but only if there is an expressed 
or implied agreement between the employer and the employees to exclude 
such time. In the absence of such an agreement, the sleep time is 
compensable. In no event shall the time excluded as sleep time exceed 8 
hours in a 24-hour period. If the sleep time is interrupted by a call 
to duty, the interruption must be counted as hours worked. If the sleep 
period is interrupted to such an extent that the employee cannot get a 
reasonable night's sleep (which, for enforcement purposes means at 
least 5 hours), the entire time must be counted as hours of work.
Sec. S553.223  Meal time
    (a) If a public agency elects to pay overtime compensation to 
firefighters and law enforcement personnel in accordance with section 
7(a)(1) of the Act, the public agency may exclude meal time from hours 
worked if all the statutory tests for the exclusion of such time are 
met.
    (b) If a public agency elects to use the section 7(k) exemption, 
the public agency may, in the case of law enforcement personnel, 
exclude meal time from hours worked on tours of duty of 24 hours or 
less: Provided, That the employee is completely relieved from duty 
during the meal period, and all the other statutory tests for the 
exclusion of such time are met. On the other hand, where law 
enforcement personnel are required to remain on call in barracks or 
similar quarters, or are engaged in extended surveillance activities 
(e.g., stakeouts), they are not considered to be completely relieved 
from duty, and any such meal periods would be compensable.
    (c) With respect to firefighters employed under section 7(k), who 
are confined to a duty station, the legislative history of the Act 
indicates congressional intent to mandate a departure from the usual 
FLSA ``hours of work'' rules and adoption of an overtime standard keyed 
to the unique concept of ``tour of duty'' under which firefighters are 
employed. Where the public agency elects to use the section 7(k) 
exemption for firefighters, meal time cannot be excluded from the 
compensable hours of work where (1) the firefighter is on a tour of 
duty of less than 24 hours, and (2) where the firefighter is on a tour 
of duty of exactly 24 hours.
    (d) In the case of police officers or firefighters who are on a 
tour of duty of more than 24 hours, meal time may be excluded from 
compensable hours of work provided that the statutory tests for 
exclusion of such hours are met.
Sec. S553.224  ``Work period'' defined
    (a) As used in section 7(k), the term ``work period'' refers to any 
established and regularly recurring period of work which, under the 
terms of the Act and legislative history, cannot be less than 7 
consecutive days nor more than 28 consecutive days. Except for this 
limitation, the work period can be of any length, and it need not 
coincide with the duty cycle or pay period or with a particular day of 
the week or hour of the day. Once the beginning and ending time of an 
employee's work period is established, however, it remains fixed 
regardless of how many hours are worked within the period. The 
beginning and ending of the work period may be changed: Provided, That 
the change is intended to be permanent and is not designed to evade the 
overtime compensation requirements of the Act.
    (b) An employer may have one work period applicable to all 
employees, or different work periods for different employees or groups 
of employees.
Sec. S553.225  Early relief
    It is a common practice among employees engaged in fire protection 
activities to relieve employees on the previous shift prior to the 
scheduled starting time. Such early relief time may occur pursuant to 
employee agreement, either expressed or implied. This practice will not 
have the effect of increasing the number of compensable hours of work 
for employees employed under section 7(k) where it is voluntary on the 
part of the employees and does not result, over a period of time, in 
their failure to receive proper compensation for all hours actually 
worked. On the other hand, if the practice is required by the employer, 
the time involved must be added to the employee's tour of duty and 
treated as compensable hours of work.
Sec. S553.226  Training time
    (a) The general rules for determining the compensability of 
training time under the FLSA apply to employees engaged in law 
enforcement or fire protection activities.
    (b) While time spent in attending training required by an employer 
is normally considered compensable hours of work, following are 
situations where time spent by employees in required training is 
considered to be noncompensable:
            (1) Attendance outside of regular working hours at 
        specialized or follow-up training, which is required by law for 
        certification of public and private sector employees within a 
        particular governmental jurisdiction (e.g., certification of 
        public and private emergency rescue workers), does not 
        constitute compensable hours of work for public employees 
        within that jurisdiction and subordinate jurisdictions.
            (2) Attendance outside of regular working hours at 
        specialized or follow-up training, which is required for 
        certification of employees of a governmental jurisdiction by 
        law of a higher level of Government, does not constitute 
        compensable hours of work.
            (3) Time spent in the training described in paragraphs (b) 
        (1) or (2) of this section is not compensable, even if all or 
        part of the costs of the training is borne by the employer.
    (c) Police officers or firefighters, who are in attendance at a 
police or fire academy or other training facility, are not considered 
to be on duty during those times when they are not in class or at a 
training session, if they are free to use such time for personal 
pursuits. Such free time is not compensable.
Sec. S553.227 Outside employment
    (a) Section 7(p)(1) makes special provision for fire protection and 
law enforcement employees of public agencies who, at their own option, 
perform special duty work in fire protection, law enforcement or 
related activities for a separate and independent employer (public or 
private) during their off-duty hours. The hours of work for the 
separate and independent employer are not combined with the hours 
worked for the primary public agency employer for purposes of overtime 
compensation.
    (b) Section 7(p)(1) applies to such outside employment provided (1) 
the special detail work is performed solely at the employee's option, 
and (2) the two employers are in fact separate and independent.
    (c) Whether two employers are, in fact, separate and independent 
can only be determined on a case-by-case basis.
    (d) The primary employer may facilitate the employment or affect 
the conditions of employment of such employees. For example, a police 
department may maintain a roster of officers who wish to perform such 
work. The department may also select the officers for special details 
from a list of those wishing to participate, negotiate their pay, and 
retain a fee for administrative expenses. The department may require 
that the separate and independent employer pay the fee for such 
services directly to the department, and establish procedures for the 
officers to receive their pay for the special details through the 
agency's payroll system. Finally, the department may require that the 
officers observe their normal standards of conduct during such details 
and take disciplinary action against those who fail to do so.
    (e) Section 7(p)(1) applies to special details even where a State 
law or local ordinance requires that such work be performed and that 
only law enforcement or fire protection employees of a public agency in 
the same jurisdiction perform the work. For example, a city ordinance 
may require the presence of city police officers at a convention center 
during concerts or sports events. If the officers perform such work at 
their own option, the hours of work need not be combined with the hours 
of work for their primary employer in computing overtime compensation.
    (f) The principles in paragraphs (d) and (e) of this section with 
respect to special details of public agency fire protection and law 
enforcement employees under section 7(p)(1) are exceptions to the usual 
rules on joint employment set forth in part 791 of this title.
    (g) Where an employee is directed by the public agency to perform 
work for a second employer, section 7(p)(1) does not apply. Thus, 
assignments of police officers outside of their normal work hours to 
perform crowd control at a parade, where the assignments are not solely 
at the option of the officers, would not qualify as special details 
subject to this exception. This would be true even if the parade 
organizers reimburse the public agency for providing such services.
    (h) Section 7(p)(1) does not prevent a public agency from 
prohibiting or restricting outside employment by its employees.

                      overtime compensation rules

Sec. S553.230  Maximum hours standards for work periods of 7 to 28 
              days--section 7(k)
    (a) For those employees engaged in fire protection activities who 
have a work period of at least 7 but less than 28 consecutive days, no 
overtime compensation is required under section 7(k) until the number 
of hours worked exceeds the number of hours which bears the same 
relationship to 212 as the number of days in the work period bears to 
28.
    (b) For those employees engaged in law enforcement activities 
(including security personnel in correctional institutions) who have a 
work period of at least 7 but less than 28 consecutive days, no 
overtime compensation is required under section 7(k) until the number 
of hours worked exceeds the number of hours which bears the same 
relationship to 171 as the number of days in the work period bears to 
28.
    (c) The ratio of 212 hours to 28 days for employees engaged in fire 
protection activities is 7.57 hours per day (rounded) and the ratio of 
171 hours to 28 days for employees engaged in law enforcement 
activities is 6.11 hours per day (rounded). Accordingly, overtime 
compensation (in premium pay or compensatory time) is required for all 
hours worked in excess of the following maximum hours standards 
(rounded to the nearest whole hour):

------------------------------------------------------------------------
                                                 Maximum hours standards
                                               -------------------------
              Work period (days)                    Fire         Law    
                                                 protection  enforcement
------------------------------------------------------------------------
28............................................          212          171
27............................................          204          165
26............................................          197          159
25............................................          189          153
24............................................          182          147
23............................................          174          141
22............................................          167          134
21............................................          159          128
20............................................          151          122
19............................................          144          116
18............................................          136          110
17............................................          129          104
16............................................          121           98
15............................................          114           92
14............................................          106           86
13............................................           98           79
12............................................           91           73
11............................................           83           67
10............................................           76           61
9.............................................           68           55
8.............................................           61           49
7.............................................           53           43
------------------------------------------------------------------------

Sec. S553.231  Compensatory time off
    (a) Law enforcement and fire protection employees who are subject 
to the section 7(k) exemption may receive compensatory time off in lieu 
of overtime pay for hours worked in excess of the maximum for their 
work period as set forth in section S553.230.
    (b) Section 7(k) permits public agencies to balance the hours of 
work over an entire work period for law enforcement and fire protection 
employees. For example, if a firefighter's work period is 28 
consecutive days, and he or she works 80 hours in each of the first two 
weeks, but only 52 hours in the third week, and does not work in the 
fourth week, no overtime compensation (in cash wages or compensatory 
time) would be required since the total hours worked do not exceed 212 
for the work period. If the same firefighter had a work period of only 
14 days, overtime compensation or compensatory time off would be due 
for 54 hours (160 minus 106 hours) in the first 14 day work period.
Sec. S553.232  Overtime pay requirements
    If a public agency pays employees subject to section 7(k) for 
overtime hours worked in cash wages rather than compensatory time off, 
such wages must be paid at one and one-half times the employees' 
regular rates of pay.
Sec. S553.233  ``Regular rate'' defined
    The statutory rules for computing an employee's ``regular rate'', 
for purposes of the Act's overtime pay requirements are applicable to 
employees for whom the section 7(k) exemption is claimed when overtime 
compensation is provided in cash wages.

Subpart D--Compensatory Time-off For Overtime Earned by Employees Whose 
     Work Schedule Directly Depends Upon the Schedule of the Senate

Sec. S553.301  Definition of ``directly depends''
    For the purposes of this Part, a covered employee's work schedule 
``directly depends'' on the schedule of the Senate only if the eligible 
employee performs work that directly supports the conduct of 
legislative or other business in the chamber and works hours that 
regularly change in response to the schedule of the House and the 
Senate.
Sec. S553.302  Overtime compensation and compensatory time off for an 
              employee whose work schedule directly depends upon the 
              schedule of the Senate
    No employing office shall be deemed to have violated section 
203(a)(1) of the CAA, which applies the protections of section 7(a) of 
the Fair Labor Standards Act (``FLSA'') to covered employees and 
employing office, by employing any employee for a workweek in excess of 
the maximum workweek applicable to such employee under section 7(a) of 
the FLSA where the employee's work schedule directly depends on the 
schedule of the Senate within the meaning of Sec. S553.301, and: (a) 
the employee is compensated at the rate of time-and-a-half in pay for 
all hours in excess of 40 and up to 60 hours in a workweek, and (b) the 
employee is compensated at the rate of time-and-a-half in either pay or 
in time off for all hours in excess of 60 hours in a workweek.
Sec. S553.303  Using compensatory time off
    An employee who has accrued compensatory time off under 
Sec. S553.302, upon his or her request, shall be permitted by the 
employing office to use such time within a reasonable period after 
making the request, unless the employing office makes a bona fide 
determination that the needs of the operations of the office do not 
allow the taking of compensatory time off at the time of the request. 
An employee may renew the request at a subsequent time. An employing 
office may also, upon reasonable notice, require an employee to use 
accrued compensatory time-off.
Sec. S553.304  Payment of overtime compensation for accrued 
              compensatory time off as of termination of service
    An employee who has accrued compensatory time authorized by this 
regulation shall, upon termination of employment, be paid for the 
unused compensatory time at the rate earned by the employee at the time 
the employee receives such payment.

                   PART 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.

                           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.
    The following table lists the sections of the Secretary of Labor 
Regulations under the FLSA with the corresponding sections of the 
Office of Compliance Regulations under section 202 of the CAA:

                Secretary of Labor Regulations           OC Regulations
570.1  Definitions...................................            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
Sec. S570.1  Definitions
    As used in this part:
    (a) Act means the Fair Labor Standards Act of 1938, as amended (52 
Stat. 1060, as amended; 29 U.S.C. 201-219).
    (b) Oppressive child labor means employment of a minor in an 
occupation for which he does not meet the minimum age standards of the 
Act, as set forth in section S570.2 of this subpart.
    (c) Oppressive child labor age means an age below the minimum age 
established under the Act for the occupation in which a minor is 
employed or in which his employment is contemplated.
    (d) [Reserved]
    (e) [Reserved]
    (f) Secretary or Secretary of Labor means the Secretary of Labor, 
United States Department of Labor, or his authorized representative.
    (g) Wage and Hour Division means the Wage and Hour Division, 
Employment Standards Administration, United States Department of Labor.
    (h) Administrator means the Administrator of the Wage and Hour 
Division or his authorized representative.
Sec. S570.2  Minimum age standards
    (a) All occupations except in agriculture. (1) The Act, in section 
3(1), sets a general 16-year minimum age which applies to all 
employment subject to its child labor provisions in any occupation 
other than in agriculture, with the following exceptions:
            (i) The Act authorizes the Secretary of Labor to provide by 
        regulation or by order that the employment of employees between 
        the ages of 14 and 16 years in occupations other than 
        manufacturing and mining shall not be deemed to constitute 
        oppressive child labor, if and to the extent that the Secretary 
        of Labor determines that such employment is confined to periods 
        which will not interfere with their schooling and to conditions 
        which will not interfere with their health and well-being (see 
        subpart C of this part); and
            (ii) The Act sets an 18-year minimum age with respect to 
        employment in any occupation found and declared by the 
        Secretary of Labor to be particularly hazardous for the 
        employment of minors of such age or detrimental to their health 
        or well-being.
    (2) The Act exempts from its minimum age requirements the 
employment by a parent of his own child, or by a person standing in 
place of a parent of a child in his custody, except in occupations to 
which the 18-year age minimum applies and in manufacturing and mining 
occupations.

                         Subpart B--[Reserved]

 Subpart C--Employment of Minors Between 14 and 16 Years of Age (Child 
                             Labor Reg. 3)

Sec. S570.31  Determination
    The employment of minors between 14 and 16 years of age in the 
occupations, for the periods, and under the conditions hereafter 
specified does not interfere with their schooling or with their health 
and well-being and shall not be deemed to be oppressive child labor.
Sec. S570.32  Effect of this subpart
    In all occupations covered by this subpart the employment 
(including suffering or permitting to work) by an employer of minor 
employees between 14 and 16 years of age for the periods and under the 
conditions specified in Sec.  S570.35 shall not be deemed to be 
oppressive child labor within the meaning of the Fair Labor Standards 
Act of 1938.
Sec. S570.33  Occupations
    This subpart shall apply to all occupations other than the 
following:
    (a) Manufacturing, mining, or processing occupations, including 
occupations requiring the performance of any duties in work rooms or 
work places where goods are manufactured, mined, or otherwise 
processed;
    (b) Occupations which involve the operation or tending of hoisting 
apparatus or of any power-driven machinery other than office machines;
    (c) The operation of motor vehicles or service as helpers on such 
vehicles;
    (d) Public messenger service;
    (e) Occupations which the Secretary of Labor may, pursuant to 
section 3(1) of the Fair Labor Standards Act and Reorganization Plan 
No. 2, issued pursuant to the Reorganization Act of 1945, find and 
declare to be hazardous for the employment of minors between 16 and 18 
years of age or detrimental to their health or well-being;
    (f) Occupations in connection with:
            (1) Transportation of persons or property by rail, highway, 
        air, water, pipeline, or other means;
            (2) Warehousing and storage;
            (3) Communications and public utilities;
            (4) Construction (including demolition and repair); except 
        such office (including ticket office) work, or sales work, in 
        connection with paragraphs (f) (1), (2), (3), and (4) of this 
        section, as does not involve the performance of any duties on 
        trains, motor vehicles, aircraft, vessels, or other media of 
        transportation or at the actual site of construction 
        operations.
Sec. S570.35  Periods and conditions of employment
    (a) Except as provided in paragraph (b) of this section, employment 
in any of the occupations to which this subpart is applicable shall be 
confined to the following periods:
            (1) Outside school hours;
            (2) Not more than 40 hours in any 1 week when school is not 
        in session;
            (3) Not more than 18 hours in any 1 week when school is in 
        session;
            (4) Not more than 8 hours in any 1 day when school is not 
        in session;
            (5) Not more than 3 hours in any 1 day when school is in 
        session;
            (6) Between 7 a.m. and 7 p.m. in any 1 day, except during 
        the summer (June 1 through Labor Day) when the evening hour 
        will be 9 p.m.

    APPLICATION OF RIGHTS AND PROTECTIONS OF THE EMPLOYEE POLYGRAPH 
                         PROTECTION ACT OF 1988

                           Subpart A--General

Sec.
1.1 Purpose and scope.
1.2 Definitions.
1.3 Coverage.
1.4 Prohibitions on lie detector use.
1.5 Effect on other laws or agreements.
1.6 Notice of protection.
1.7 Authority of the Board.
1.8 Employment relationship.
                         Subpart B--Exemptions

1.10 Exclusion for employees of the Capitol Police. [Reserved]
1.11 Exemption for national defense and security.
1.12 Exemption for employing offices conducting investigations of 
                            economic loss or injury.
1.13  Exemption for employing offices authorized to manufacture, 
                            distribute, or dispense controlled 
                            substances.
      Subpart C--Restrictions on Polygraph Usage Under Exemptions

1.20  Adverse employment action under ongoing investigation exemption.
1.21  Adverse employment action under controlled substance exemption.
1.22  Rights of examinee--general.
1.23  Rights of examinee--pretest phase.
1.24  Rights of examinee--actual testing phase.
1.25  Rights of examinee--post-test phase.
1.26  Qualifications of and requirements for examiners.
          Subpart D--Recordkeeping and Disclosure Requirements

1.30  Records to be preserved for 3 years.
1.35  Disclosure of test information.
                         Subpart E--[Reserved]

1.40  [Reserved]
Appendix A--Notice to Examinee
Authority: Pub. L. 104-1, 109 Stat. 3, 2 U.S.C. 1314(c)

                           Subpart A--General

SEC. 1.1  PURPOSE AND SCOPE.

    Enacted into law on January 23, 1995, the Congressional 
Accountability Act (``CAA'') directly applies the rights and 
protections of eleven Federal labor and employment law statutes to 
covered employees and employing offices within the legislative branch. 
Section 204(a) of the CAA, 2 U.S.C. Sec. 1314(a) provides that no 
employing office may require any covered employee (including a covered 
employee who does not work in that employing office) to take a lie 
detector test where such test would be prohibited if required by an 
employer under paragraphs (1), (2) or (3) of section 3 of the Employee 
Polygraph Protection Act of 1988 (EPPA), 29 U.S.C. Sec. 2002 (1), (2) 
or (3). The purpose of this Part is to set forth the regulations to 
carry out the provisions of section 204 of the CAA.
    Subpart A contains the provisions generally applicable to covered 
employers, including the requirements relating to the prohibitions on 
lie detector use. Subpart B sets forth rules regarding the statutory 
exemptions from application of section 204 of the CAA. Subpart C sets 
forth the restrictions on polygraph usage under such exemptions. 
Subpart D sets forth the rules on recordkeeping and the disclosure of 
polygraph test information.

SEC. 1.2  DEFINITIONS.

    For purposes of this part:
    (a) Act or CAA means the Congressional Accountability Act of 1995 
(P.L. 104-1, 109 Stat. 3, 2 U.S.C. Sec. Sec. 1301-1438).
    (b) EPPA means the Employee Polygraph Protection Act of 1988 (Pub. 
L. 100-347, 102 Stat. 646, 29 U.S.C. Sec. Sec. 2001-2009) as applied to 
covered employees and employing offices by section 204 of the CAA.
    (c) The term covered employee means any employee of (1) the House 
of Representatives; (2) the Senate; (3) the Capitol Guide Service; (4) 
the Congressional Budget Office; (5) the Office of the Architect of the 
Capitol; (6) the Office of the Attending Physician; (7) the Office of 
Compliance; or (8) the Office of Technology Assessment.
    (d) The term employee includes an applicant for employment and a 
former employee.
    (e) The term employee of the Office of the Architect of the Capitol 
includes any employee of the Office of the Architect of the Capitol, 
the Botanic Gardens, or the Senate Restaurants.
    (f) The term employee of the Capitol Police includes any member or 
officer of the Capitol Police.
    (g) The term employee of the House of Representatives includes an 
individual occupying a position the pay for which is disbursed by the 
Clerk of the House of Representatives, or another official designated 
by the House of Representatives, or any employment position in an 
entity that is paid with funds derived from the clerk-hire allowance of 
the House of Representatives but not any such individual employed by 
any entity listed in subparagraphs (3) through (8) of paragraph (c) 
above.
    (h) The term employee of the Senate includes any employee whose pay 
is disbursed by the Secretary of the Senate, but not any such 
individual employed by any entity listed in subparagraphs (3) through 
(8) of paragraph (c) above.
    (i) The term employing office means (1) the personal office of a 
Member of the House of Representatives or of a Senator; (2) a committee 
of the House of Representatives or the Senate or a joint committee; (3) 
any other office headed by a person with the final authority to 
appoint, hire, discharge, and set the terms, conditions, or privileges 
of the employment of an employee of the House of Representatives or the 
Senate; or (4) the Capitol Guide Board, the Congressional Budget 
Office, the Office of the Architect of the Capitol, the Office of the 
Attending Physician, the Office of Compliance, and the Office of 
Technology Assessment. The term employing office includes any person 
acting directly or indirectly in the interest of an employing office in 
relation to an employee or prospective employee. A polygraph examiner 
either employed for or whose services are retained for the sole purpose 
of administering polygraph tests ordinarily would not be deemed an 
employing office with respect to the examinees. Any reference to 
``employer'' in these regulations includes employing offices.
    (j)(1) The term lie detector means a polygraph, deceptograph, voice 
stress analyzer, psychological stress evaluator, or any other similar 
device (whether mechanical or electrical) that is used, or the results 
of which are used, for the purpose of rendering a diagnostic opinion 
regarding the honesty or dishonesty of an individual. Voice stress 
analyzers, or psychological stress evaluators, include any systems that 
utilize voice stress analysis, whether or not an opinion on honesty or 
dishonesty is specifically rendered.
    (2) The term lie detector does not include medical tests used to 
determine the presence or absence of controlled substances or alcohol 
in bodily fluids. Also not included in the definition of lie detector 
are written or oral tests commonly referred to as ``honesty'' or 
``paper and pencil'' tests, machine-scored or otherwise; and graphology 
tests commonly referred to as handwriting tests.
    (k) The term polygraph means an instrument that--
            (1) records continuously, visually, permanently, and 
        simultaneously changes in cardiovascular, respiratory, and 
        electrodermal patterns as minimum instrumentation standards; 
        and
            (2) is used, or the results of which are used, for the 
        purpose of rendering a diagnostic opinion regarding the honesty 
        or dishonesty of an individual.
    (l) Board means the Board of Directors of the Office of Compliance.
    (m) Office means the Office of Compliance.

SEC. 1.3 COVERAGE.

    The coverage of section 204 of the Act extends to any ``covered 
employee'' or ``covered employing office'' without regard to the number 
of employees or the employing office's effect on interstate commerce.

SEC. 1.4 PROHIBITIONS ON LIE DETECTOR USE.

    (a) Section 204 of the CAA provides that, subject to the exemptions 
of the EPPA incorporated into the CAA under section 225(f) of the CAA, 
as set forth in section 1.10 through 1.12 of this Part, employing 
offices are prohibited from:
            (1) Requiring, requesting, suggesting or causing, directly 
        or indirectly, any covered employee or prospective employee to 
        take or submit to a lie detector test;
            (2) Using, accepting, or inquiring about the results of a 
        lie detector test of any covered employee or prospective 
        employee; and
            (3) Discharging, disciplining, discriminating against, 
        denying employment or promotion, or threatening any covered 
        employee or prospective employee to take such action for 
        refusal or failure to take or submit to such test, or on the 
        basis of the results of a test.
    The above prohibitions apply irrespective of whether the covered 
employee referred to in paragraphs (1), (2) or (3), above, works in 
that employing office.
    (b) An employing office that reports a theft or other incident 
involving economic loss to police or other law enforcement authorities 
is not engaged in conduct subject to the prohibitions under paragraph 
(a) of this section if, during the normal course of a subsequent 
investigation, such authorities deem it necessary to administer a 
polygraph test to a covered employee(s) suspected of involvement in the 
reported incident. Employing offices that cooperate with police 
authorities during the course of their investigations into criminal 
misconduct are likewise not deemed engaged in prohibitive conduct: 
Provided, That such cooperation is passive in nature. For example, it 
is not uncommon for police authorities to request employees suspected 
of theft or criminal activity to submit to a polygraph test during the 
employee's tour of duty since, as a general rule, suspect employees are 
often difficult to locate away from their place of employment. Allowing 
a test on the employing office's premises, releasing a covered employee 
during working hours to take a test at police headquarters, and other 
similar types of cooperation at the request of the police authorities 
would not be construed as ``requiring, requesting, suggesting, or 
causing, directly or indirectly, any covered employee * * * to take or 
submit to a lie detector test''. Cooperation of this type must be 
distinguished from actual participation in the testing of employees 
suspected of wrongdoing, either through the administration of a test by 
the employing office at the request or direction of police authorities, 
or through reimbursement by the employing office of tests administered 
by police authorities to employees. In some communities, it may be a 
practice of police authorities to request testing by employing offices 
of employees before a police investigation is initiated on a reported 
incident. In other communities, police examiners are available to 
covered employing offices, on a cost reimbursement basis, to conduct 
tests on employees suspected by an employing office of wrongdoing. All 
such conduct on the part of employing offices is deemed within the 
prohibitions of section 204 of the CAA.
    (c) The receipt by an employing office of information from a 
polygraph test administered by police authorities pursuant to an 
investigation is prohibited by section 3(2) of the EPPA. (See paragraph 
(a)(2) of this section.)
    (d) The simulated use of a polygraph instrument so as to lead an 
individual to believe that an actual test is being or may be performed 
(e.g., to elicit confessions or admissions of guilt) constitutes 
conduct prohibited by paragraph (a) of this section. Such use includes 
the connection of a covered employee or prospective employee to the 
instrument without any intention of a diagnostic purpose, the placement 
of the instrument in a room used for interrogation unconnected to the 
covered employee or prospective employee, or the mere suggestion that 
the instrument may be used during the course of the interview.
    (e) The Capitol Police may not require a covered employee not 
employed by the Capitol Police to take a lie detector test (on its own 
initiative or at the request of another employing office) except where 
the Capitol Police administers such lie detector test as part of an 
``ongoing investigation'' by the Capitol Police. For the purpose of 
this subsection, the definition of ``ongoing investigation'' contained 
in section 1.12(b) shall apply.

SEC. 1.5  EFFECT ON OTHER LAWS OR AGREEMENTS.

    (a) Section 204 of the CAA does not preempt any otherwise 
applicable provision of Federal law or any rule or regulation of the 
House or Senate or any negotiated collective bargaining agreement that 
prohibits lie detector tests or is more restrictive with respect to the 
use of lie detector tests.
    (b)(1) This provision applies to all aspects of the use of lie 
detector tests, including procedural safeguards, the use of test 
results, the rights and remedies provided examinees, and the rights, 
remedies, and responsibilities of examiners and employing offices.
    (2) For example, a collective bargaining agreement that provides 
greater protection to an examinee would apply in addition to the 
protection provided in section 204 of the CAA.

SEC. 1.6  NOTICE OF PROTECTION.

    Pursuant to section 301(h) of the CAA, the Office shall prepare, in 
a manner suitable for posting, a notice explaining the provisions of 
section 204 of the CAA. Copies of such notice may be obtained from the 
Office of Compliance.

SEC. 1.7  AUTHORITY OF THE BOARD.

    Pursuant to sections 204 and 304 of the CAA, the Board is 
authorized to issue regulations to implement the rights and protections 
of the EPPA. Section 204(c) directs the Board to promulgate regulations 
implementing section 204 that are ``the same as substantive regulations 
promulgated by the Secretary of Labor to implement the statutory 
provisions referred to in subsections (a) and (b) [of section 204 of 
the CAA] except insofar as the Board may determine, for good cause 
shown . . . that a modification of such regulations would be more 
effective for the implementation of the rights and protections under 
this section''. The regulations issued by the Board herein are on all 
matters for which section 204 of the CAA requires a regulation to be 
issued. Specifically, it is the Board's considered judgment, based on 
the information available to it at the time of promulgation of these 
regulations, that, with the exception of the regulations adopted and 
set forth herein, there are no other ``substantive regulations 
promulgated by the Secretary of Labor to implement the statutory 
provisions referred to in subsections (a) and (b) [of section 204 of 
the CAA]''.
    In promulgating these regulations, the Board has made certain 
technical and nomenclature changes to the regulations as promulgated by 
the Secretary. Such changes are intended to make the provisions adopted 
accord more naturally to situations in the legislative branch. However, 
by making these changes, the Board does not intend a substantive 
difference between these regulations and those of the Secretary from 
which they are derived. Moreover such changes, in and of themselves, 
are not intended to constitute an interpretation of the regulation or 
of the statutory provisions of the CAA upon which they are based.

SEC. 1.8  EMPLOYMENT RELATIONSHIP.

    Subject to the exemptions incorporated into the CAA by section 
225(f), section 204 applies the prohibitions on the use of lie 
detectors by employing offices with respect to covered employees 
irrespective of whether a covered employee works in that employing 
office. Sections 101 (3), (4) and 204 of the CAA also apply EPPA 
prohibitions against discrimination to applicants for employment and 
former employees of a covered employing office. For example, an 
employee may quit rather than take a lie detector test. The employing 
office cannot discriminate or threaten to discriminate in any manner 
against that person (such as by providing bad references in the future) 
because of that person's refusal to be tested. Similarly, an employing 
office cannot discriminate or threaten to discriminate in any manner 
against that person because that person files a complaint, institutes a 
proceeding, testifies in a proceeding, or exercises any right under 
section 204 of the CAA. (See section 207 of the CAA.)

                         Subpart B--Exemptions

SEC. 1.10  EXCLUSION FOR EMPLOYEES OF THE CAPITOL POLICE [RESERVED].

SEC. 1.11  EXEMPTION FOR NATIONAL DEFENSE AND SECURITY.

    (a) The exemptions allowing for the administration of lie detector 
tests in the following paragraphs (b) through (e) of this section apply 
only to the Federal Government; they do not allow covered employing 
offices to administer such tests. For the purposes of this section, the 
term ``Federal Government'' means any agency or entity within the 
Federal Government authorized to administer polygraph examinations 
which is otherwise exempt from coverage under section 7(a) of the EPPA, 
29 U.S.C. Sec. 2006(a).
    (b) Section 7(b)(1) of the EPPA, incorporated into the CAA under 
section 225(f) of the CAA, provides that nothing in the EPPA shall be 
construed to prohibit the administration of any lie detector test by 
the Federal Government, in the performance of any counterintelligence 
function, to any expert, consultant or employee of any contractor under 
contract with the Department of Defense; or with the Department of 
Energy, in connection with the atomic energy defense activities of such 
Department.
    (c) Section 7(b)(2)(A) of the EPPA, incorporated into the CAA under 
section 225(f) of the CAA, provides that nothing in the EPPA shall be 
construed to prohibit the administration of any lie detector test by 
the Federal Government, in the performance of any intelligence or 
counterintelligence function of the National Security Agency, the 
Defense Intelligence Agency, or the Central Intelligence Agency, to any 
individual employed by, assigned to, or detailed to any such agency; or 
any expert or consultant under contract to any such agency; or any 
employee of a contractor to such agency; or any individual applying for 
a position in any such agency; or any individual assigned to a space 
where sensitive cryptologic information is produced, processed, or 
stored for any such agency.
    (d) Section 7(b)(2)(B) of the EPPA, incorporated into the CAA under 
section 225(f) of the CAA, provides that nothing in the EPPA shall be 
construed to prohibit the administration of any lie detector test by 
the Federal Government, in the performance of any intelligence or 
counterintelligence function, to any covered employee whose duties 
involve access to information that has been classified at the level of 
top secret or designated as being within a special access program under 
section 4.2 (a) of Executive Order 12356 (or a successor Executive 
order).
    (c) Counterintelligence for purposes of the above paragraphs means 
information gathered and activities conducted to protect against 
espionage and other clandestine intelligence activities, sabotage, 
terrorist activities, or assassinations conducted for or on behalf of 
foreign governments, or foreign or domestic organizations or persons.
    (d) Lie detector tests of persons described in the above paragraphs 
will be administered in accordance with applicable Department of 
Defense directives and regulations, or other regulations and directives 
governing the use of such tests by the United States Government, as 
applicable.

SEC. 1.12  EXEMPTION FOR EMPLOYING OFFICES CONDUCTING INVESTIGATIONS OF 
              ECONOMIC LOSS OR INJURY.

    (a) Section 7(d) of the EPPA, incorporated into the CAA under 
section 225(f) of the CAA, provides a limited exemption from the 
general prohibition on lie detector use for employers conducting 
ongoing investigations of economic loss or injury to the employer's 
business. An employing office may request an employee, subject to the 
conditions set forth in sections 8 and 10 of the EPPA and sections 
1.20, 1.22, 1.23, 1.24, 1.25, 1.26 and 1.35 of this part, to submit to 
a polygraph test, but no other type of lie detector test, only if--
            (1) The test is administered in connection with an ongoing 
        investigation involving economic loss or injury to the 
        employing office's operations, such as theft, embezzlement, 
        misappropriation or an act of unlawful industrial espionage or 
        sabotage;
            (2) The employee had access to the property that is the 
        subject of the investigation;
            (3) The employing office has a reasonable suspicion that 
        the employee was involved in the incident or activity under 
        investigation;
            (4) The employing office provides the examinee with a 
        statement, in a language understood by the examinee, prior to 
        the test which fully explains with particularity the specific 
        incident or activity being investigated and the basis for 
        testing particular employees and which contains, at a minimum:
                    (i) An identification with particularity of the 
                specific economic loss or injury to the operations of 
                the employing office;
                    (ii) A description of the employee's access to the 
                property that is the subject of the investigation;
                    (iii) A description in detail of the basis of the 
                employing office's reasonable suspicion that the 
                employee was involved in the incident or activity under 
                investigation; and
                    (iv) Signature of a person (other than a polygraph 
                examiner) authorized to legally bind the employing 
                office; and
            (5) The employing office retains a copy of the statement 
        and proof of service described in paragraph (a)(4) of this 
        section for at least 3 years.
    (b) For the exemption to apply, the condition of an ``ongoing 
investigation'' must be met. As used in section 7(d) of the EPPA, the 
ongoing investigation must be of a specific incident or activity. Thus, 
for example, an employing office may not request that an employee or 
employees submit to a polygraph test in an effort to determine whether 
or not any thefts have occurred. Such random testing by an employing 
office is precluded by the EPPA. Further, because the exemption is 
limited to a specific incident or activity, an employing office is 
precluded from using the exemption in situations where the so-called 
``ongoing investigation'' is continuous. For example, the fact that 
items are frequently missing would not be a sufficient basis, standing 
alone, for administering a polygraph test. Even if the employing office 
can establish that unusually high amounts of property are missing in a 
given month, this, in and of itself, would not be a sufficient basis to 
meet the specific incident requirement. On the other hand, polygraph 
testing in response to missing property would be permitted where 
additional evidence is obtained through subsequent investigation of 
specific items missing through intentional wrongdoing, and a reasonable 
suspicion that the employee to be polygraphed was involved in the 
incident under investigation. Administering a polygraph test in 
circumstances where the missing property is merely unspecified, 
statistical shortages, without identification of a specific incident or 
activity that produced the missing property and a ``reasonable 
suspicion that the employee was involved'', would amount to little more 
than a fishing expedition and is prohibited by the EPPA as applied to 
covered employees and employing offices by the CAA.
    (c)(1)(i) The terms economic loss or injury to the employing 
office's operations include both direct and indirect economic loss or 
injury.
    (ii) Direct loss or injury includes losses or injuries resulting 
from theft, embezzlement, misappropriation, espionage or sabotage. 
These examples, cited in the EPPA, are intended to be illustrative and 
not exhaustive. Another specific incident which would constitute direct 
economic loss or injury is the misappropriation of confidential or 
trade secret information.
    (iii) Indirect loss or injury includes the use of an employing 
office's operations to commit a crime, such as check-kiting or money 
laundering. In such cases, the ongoing investigation must be limited to 
criminal activity that has already occurred, and to use of the 
employing office's operations (and not simply the use of the premises) 
for such activity. For example, the use of an employing office's 
vehicles, warehouses, computers or equipment to smuggle or facilitate 
the importing of illegal substances constitutes an indirect loss or 
injury to the employing office's business operations. Conversely, the 
mere fact that an illegal act occurs on the employing office's premises 
(such as a drug transaction that takes place in the employing office's 
parking lot or rest room) does not constitute an indirect economic loss 
or injury to the employing office.
    (iv) Indirect loss or injury also includes theft or injury to 
property of another for which the employing office exercises fiduciary, 
managerial or security responsibility, or where the office has custody 
of the property (but not property of other offices to which the 
employees have access by virtue of the employment relationship). For 
example, if a maintenance employee of the manager of an apartment 
building steals jewelry from a tenant's apartment, the theft results in 
an indirect economic loss or injury to the employer because of the 
manager's management responsibility with respect to the tenant's 
apartment. A messenger on a delivery of confidential business reports 
for a client firm who steals the reports causes an indirect economic 
loss or injury to the messenger service because the messenger service 
is custodian of the client firm's reports, and therefore is responsible 
for their security. Similarly, the theft of property protected by a 
security service employer is considered an economic loss or injury to 
that employer.
    (v) A theft or injury to a client firm does not constitute an 
indirect loss or injury to an employing office unless that employing 
office has custody of, or management, or security responsibility for, 
the property of the client that was lost or stolen or injured. For 
example, a cleaning contractor has no responsibility for the money at a 
client bank. If money is stolen from the bank by one of the cleaning 
contractor's employees, the cleaning contractor does not suffer an 
indirect loss or injury.
    (vi) Indirect loss or injury does not include loss or injury which 
is merely threatened or potential, e.g., a threatened or potential loss 
of an advantageous business relationship.
    (2) Economic losses or injuries which are the result of 
unintentional or lawful conduct would not serve as a basis for the 
administration of a polygraph test. Thus, apparently unintentional 
losses or injuries stemming from truck, car, workplace, or other 
similar type accidents or routine inventory or cash register shortages 
would not meet the economic loss or injury requirement. Any economic 
loss incident to lawful union or employee activity also would not 
satisfy this requirement.
    (3) It is the operations of the employing office which must suffer 
the economic loss or injury. Thus, a theft committed by one employee 
against another employee of the same employing office would not satisfy 
the requirement.
    (d) While nothing in the EPPA as applied by the CAA prohibits the 
use of medical tests to determine the presence of controlled substances 
or alcohol in bodily fluids, the section 7(d) exemption of the EPPA 
does not permit the use of a polygraph test to learn whether an 
employee has used drugs or alcohol, even where such possible use may 
have contributed to an economic loss to the employing office (e.g., an 
accident involving an employing office's vehicle).
    (e) Section 7(d)(2) of the EPPA provides that, as a condition for 
the use of the exemption, the employee must have had access to the 
property that is the subject of the investigation.
            (1) The word access, as used in section 7(d)(2), refers to 
        the opportunity which an employee had to cause, or to aid or 
        abet in causing, the specific economic loss or injury under 
        investigation. The term ``access'', thus, includes more than 
        direct or physical contact during the course of employment. For 
        example, as a general matter, all employees working in or with 
        authority to enter a property storage area have ``access'' to 
        unsecured property in the area. All employees with the 
        combination to a safe have ``access'' to the property in a 
        locked safe. Employees also have ``access'' who have the 
        ability to divert possession or otherwise affect the 
        disposition of the property that is the subject of 
        investigation. For example, a bookkeeper in a jewelry store 
        with access to inventory records may aid or abet a clerk who 
        steals an expensive watch by removing the watch from the 
        employing office's inventory records. In such a situation, it 
        is clear that the bookkeeper effectively has ``access'' to the 
        property that is the subject of the investigation.
            (2) As used in section 7(d)(2), property refers to 
        specifically identifiable property, but also includes such 
        things of value as security codes and computer data, and 
        proprietary, financial or technical information, such as trade 
        secrets, which by its availability to competitors or others 
        would cause economic harm to the employing office.
    (f)(1) As used in section 7(d)(3), the term reasonable suspicion 
refers to an observable, articulable basis in fact which indicates that 
a particular employee was involved in, or responsible for, an economic 
loss. Access in the sense of possible or potential opportunity, 
standing alone, does not constitute a basis for ``reasonable 
suspicion''. Information from a co-worker, or an employee's behavior, 
demeanor, or conduct may be factors in the basis for reasonable 
suspicion. Likewise, inconsistencies between facts, claims, or 
statements that surface during an investigation can serve as a 
sufficient basis for reasonable suspicion. While access or opportunity, 
standing alone, does not constitute a basis for reasonable suspicion, 
the totality of circumstances surrounding the access or opportunity 
(such as its unauthorized or unusual nature or the fact that access was 
limited to a single individual) may constitute a factor in determining 
whether there is a reasonable suspicion.
    (2) For example, in an investigation of a theft of an expensive 
piece of jewelry, an employee authorized to open the establishment's 
safe no earlier than 9 a.m., in order to place the jewelry in a window 
display case, is observed opening the safe at 7:30 a.m. In such a 
situation, the opening of the safe by the employee one and one-half 
hours prior to the specified time may serve as the basis for reasonable 
suspicion. On the other hand, in the example given, if the employee is 
asked to bring the piece of jewelry to his or her office at 7:30 a.m., 
and the employee then opened the safe and reported the jewelry missing, 
such access, standing alone, would not constitute a basis for 
reasonable suspicion that the employee was involved in the incident 
unless access to the safe was limited solely to the employee. If no one 
other than the employee possessed the combination to the safe, and all 
other possible explanations for the loss are ruled out, such as a 
break-in, a basis for reasonable suspicion may be formulated based on 
sole access by one employee.
    (3) The employing office has the burden of establishing that the 
specific individual or individuals to be tested are ``reasonably 
suspected'' of involvement in the specific economic loss or injury for 
the requirement in section 7(d)(3) of the EPPA to be met.
    (g)(1) As discussed in paragraph (a)(4) of this section, section 
7(d)(4) of the EPPA sets forth what information, at a minimum, must be 
provided to an employee if the employing office wishes to claim the 
exemption.
    (2) The statement required under paragraph (a)(4) of this section 
must be received by the employee at least 48 hours, excluding weekend 
days and holidays, prior to the time of the examination. The statement 
must set forth the time and date of receipt by the employee and be 
verified by the employee's signature. This will provide the employee 
with adequate pre-test notice of the specific incident or activity 
being investigated and afford the employee sufficient time prior to the 
test to obtain and consult with legal counsel or an employee 
representative.
    (3) The statement to be provided to the employee must set forth 
with particularity the specific incident or activity being investigated 
and the basis for testing particular employees. Section 7(d)(4)(A) of 
the EPPA requires specificity beyond the mere assertion of general 
statements regarding economic loss, employee access, and reasonable 
suspicion. For example, an employing office's assertion that an 
expensive watch was stolen, and that the employee had access to the 
watch and is therefore a suspect, would not meet the ``with 
particularity'' criterion. If the basis for an employing office's 
requesting an employee (or employees) to take a polygraph test is not 
articulated with particularity, and reduced to writing, then the 
standard is not met. The identity of a co-worker or other individual 
providing information used to establish reasonable suspicion need not 
be revealed in the statement.
    (4) It is further required that the statement provided to the 
examinee be signed by the employing office, or an employee or other 
representative of the employing office with authority to legally bind 
the employing office. The person signing the statement must not be a 
polygraph examiner unless the examiner is acting solely in the capacity 
of an employing office with respect to his or her own employees and 
does not conduct the examination. The standard would not be met, and 
the exemption would not apply if the person signing the statement is 
not authorized to legally bind the employing office.
    (h) Polygraph tests administered pursuant to this exemption are 
subject to the limitations set forth in sections 8 and 10 of the EPPA, 
as discussed in sections 1.20, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 
of this part. As provided in these sections, the exemption will apply 
only if certain requirements are met. Failure to satisfy any of the 
specified requirements nullifies the statutory authority for polygraph 
test administration and may subject the employing office to remedial 
actions, as provided for in section 6(c) of the EPPA.

SEC. 1.13  EXEMPTION OF EMPLOYING OFFICES AUTHORIZED TO MANUFACTURE, 
              DISTRIBUTE, OR DISPENSE CONTROLLED SUBSTANCES.

    (a) Section 7(f) of the EPPA, incorporated into the CAA by section 
225(f) of the CAA, provides an exemption from the EPPA's general 
prohibition regarding the use of polygraph tests for employers 
authorized to manufacture, distribute, or dispense a controlled 
substance listed in schedule I, II, III, or IV of section 202 of the 
Controlled Substances Act (21 U.S.C. Sec. 812). This exemption permits 
the administration of polygraph tests, subject to the conditions set 
forth in sections 8 and 10 of the EPPA and sections 1.21, 1.22, 1.23, 
1.24, 1.25, 1.26, and 1.35 of this part, to:
            (1) A prospective employee who would have direct access to 
        the manufacture, storage, distribution, or sale of any such 
        controlled substance; or
            (2) A current employee if the following conditions are met:
                    (i) The test is administered in connection with an 
                ongoing investigation of criminal or other misconduct 
                involving, or potentially involving, loss or injury to 
                the manufacture, distribution, or dispensing of any 
                such controlled substance by such employing office; and
                    (ii) The employee had access to the person or 
                property that is the subject of the investigation.
     (b)(1) The terms manufacture, distribute, distribution, dispense, 
storage, and sale, for the purposes of this exemption, are construed 
within the meaning of the Controlled Substances Act (21 U.S.C. Sec. 812 
et seq.), as administered by the Drug Enforcement Administration (DEA), 
United States Department of Justice.
    (2) The exemption in section 7(f) of the EPPA applies only to 
employing offices that are authorized by DEA to manufacture, 
distribute, or dispense a controlled substance. Section 202 of the 
Controlled Substances Act (21 U.S.C. Sec. 812) requires every person 
who manufactures, distributes, or dispenses any controlled substance to 
register with the Attorney General (i.e., with DEA). Common or contract 
carriers and warehouses whose possession of the controlled substance is 
in the usual course of their business or employment are not required to 
register. Truck drivers and warehouse employees of the persons or 
entities registered with DEA and authorized to manufacture, distribute, 
or dispense controlled substances, are within the scope of the 
exemption where they have direct access or access to the controlled 
substances, as discussed below.
    (c) In order for a polygraph examination to be performed, section 
7(f) of the Act requires that a prospective employee have ``direct 
access'' to the controlled substance(s) manufactured, dispensed, or 
distributed by the employing office. Where a current employee is to be 
tested as a part of an ongoing investigation, section 7(f) requires 
that the employee have ``access'' to the person or property that is the 
subject of the investigation.
            (1) A prospective employee would have ``direct access'' if 
        the position being applied for has responsibilities which 
        include contact with or which affect the disposition of a 
        controlled substance, including participation in the process of 
        obtaining, dispensing, or otherwise distributing a controlled 
        substance. This includes contact or direct involvement in the 
        manufacture, storage, testing, distribution, sale or dispensing 
        of a controlled substance and may include, for example, 
        packaging, repackaging, ordering, licensing, shipping, 
        receiving, taking inventory, providing security, prescribing, 
        and handling of a controlled substance. A prospective employee 
        would have ``direct access'' if the described job duties would 
        give such person access to the products in question, whether 
        such employee would be in physical proximity to controlled 
        substances or engaged in activity which would permit the 
        employee to divert such substances to his or her possession.
            (2) A current employee would have ``access'' within the 
        meaning of section 7(f) if the employee had access to the 
        specific person or property which is the subject of the on-
        going investigation, as discussed in section 1.12(e) of this 
        part. Thus, to test a current employee, the employee need not 
        have had ``direct'' access to the controlled substance, but may 
        have had only infrequent, random, or opportunistic access. Such 
        access would be sufficient to test the employee if the employee 
        could have caused, or could have aided or abetted in causing, 
        the loss of the specific property which is the subject of the 
        investigation. For example, a maintenance worker in a drug 
        warehouse, whose job duties include the cleaning of areas where 
        the controlled substances which are the subject of the 
        investigation were present, but whose job duties do not include 
        the handling of controlled substances, would be deemed to have 
        ``access'', but normally not ``direct access'', to the 
        controlled substances. On the other hand, a drug warehouse 
        truck loader, whose job duties include the handling of outgoing 
        shipment orders which contain controlled substances, would have 
        ``direct access'' to such controlled substances. A pharmacy 
        department in a supermarket is another common situation which 
        is useful in illustrating the distinction between ``direct 
        access'' and ``access''. Store personnel receiving 
        pharmaceutical orders, i.e., the pharmacist, pharmacy intern, 
        and other such employees working in the pharmacy department, 
        would ordinarily have ``direct access'' to controlled 
        substances. Other store personnel whose job duties and 
        responsibilities do not include the handling of controlled 
        substances but who had occasion to enter the pharmacy 
        department where the controlled substances which are the 
        subject of the investigation were stored, such as maintenance 
        personnel or pharmacy cashiers, would have ``access''. Certain 
        other store personnel whose job duties do not permit or require 
        entrance into the pharmacy department for any reason, such as 
        produce or meat clerks, checkout cashiers, or baggers, would 
        not ordinarily have ``access''. However, any current employee, 
        regardless of described job duties, may be polygraphed if the 
        employing office's investigation of criminal or other 
        misconduct discloses that such employee in fact took action to 
        obtain ``access'' to the person or property that is the subject 
        of the investigation--e.g., by actually entering the drug 
        storage area in violation of company rules. In the case of 
        ``direct access'', the prospective employee's access to 
        controlled substances would be as a part of the manufacturing, 
        dispensing or distribution process, while a current employee's 
        ``access'' to the controlled substances which are the subject 
        of the investigation need only be opportunistic.
    (d) The term prospective employee, for the purposes of this 
section, includes a current employee who presently holds a position 
which does not entail direct access to controlled substances, and 
therefore is outside the scope of the exemption's provisions for 
preemployment polygraph testing, provided the employee has applied for 
and is being considered for transfer or promotion to another position 
which entails such direct access. For example, an office secretary may 
apply for promotion to a position in the vault or cage areas of a drug 
warehouse, where controlled substances are kept. In such a situation, 
the current employee would be deemed a ``prospective employee'' for the 
purposes of this exemption, and thus could be subject to preemployment 
polygraph screening, prior to such a change in position. However, any 
adverse action which is based in part on a polygraph test against a 
current employee who is considered a ``prospective employee'' for 
purposes of this section may be taken only with respect to the 
prospective position and may not affect the employee's employment in 
the current position.
    (e) Section 7(f) of the EPPA, as applied by the CAA, makes no 
specific reference to a requirement that employing offices provide 
current employees with a written statement prior to polygraph testing. 
Thus, employing offices to whom this exemption is available are not 
required to furnish a written statement such as that specified in 
section 7(d) of the EPPA and section 1.12(a)(4) of this part.
    (f) For the section 7(f) exemption to apply, the polygraph testing 
of current employees must be administered in connection with an ongoing 
investigation of criminal or other misconduct involving, or potentially 
involving, loss or injury to the manufacture, distribution, or 
dispensing of any such controlled substance by such employing office.
            (1) Current employees may only be administered polygraph 
        tests in connection with an ongoing investigation of criminal 
        or other misconduct, relating to a specific incident or 
        activity, or potential incident or activity. Thus, an employing 
        office is precluded from using the exemption in connection with 
        continuing investigations or on a random basis to determine if 
        thefts are occurring. However, unlike the exemption in section 
        7(d) of the EPPA for employing offices conducting ongoing 
        investigations of economic loss or injury, the section 7(f) 
        exemption includes ongoing investigations of misconduct 
        involving potential drug losses. Nor does the latter exemption 
        include the requirement for ``reasonable suspicion'' contained 
        in the section 7(d) exemption. Thus, a drug store operator is 
        permitted to polygraph all current employees who have access to 
        a controlled substance stolen from the inventory, or where 
        there is evidence that such a theft is planned. Polygraph 
        testing based on an inventory shortage of the drug during a 
        particular accounting period would not be permitted unless 
        there is extrinsic evidence of misconduct.
            (2) In addition, the test must be administered in 
        connection with loss or injury, or potential loss or injury, to 
        the manufacture, distribution, or dispensing of a controlled 
        substance.
                    (i) Retail drugstores and wholesale drug warehouses 
                typically carry inventory of so-called health and 
                beauty aids, cosmetics, over-the-counter drugs, and a 
                variety of other similar products, in addition to their 
                product lines of controlled drugs. The noncontrolled 
                products usually constitute the majority of such firms' 
                sales volumes. An economic loss or injury related to 
                such noncontrolled substances would not constitute a 
                basis of applicability of the section 7(f) exemption. 
                For example, an investigation into the theft of a gross 
                of cosmetic products could not be a basis for polygraph 
                testing under section 7(f), but the theft of a 
                container of valium could be.
                    (ii) Polygraph testing, with respect to an ongoing 
                investigation concerning products other than controlled 
                substances might be initiated under section 7(d) of the 
                EPPA and section 1.12 of this part. However, the 
                exemption in section 7(f) of the EPPA and this section 
                is limited solely to losses or injury associated with 
                controlled substances.
    (g) Polygraph tests administered pursuant to this exemption are 
subject to the limitations set forth in sections 8 and 10 of the EPPA, 
as discussed in sections 1.21, 1.22, 1.23, 1.24, 1.25, 1.26, and 1.35 
of this part. As provided in these sections, the exemption will apply 
only if certain requirements are met. Failure to satisfy any of the 
specified requirements nullifies the statutory authority for polygraph 
test administration and may subject the employing office to the 
remedies authorized in section 204 of the CAA. The administration of 
such tests is also subject to collective bargaining agreements, which 
may either prohibit lie detector tests, or contain more restrictive 
provisions with respect to polygraph testing.

      Subpart C--Restrictions on Polygraph Usage Under Exemptions

SEC. 1.20 ADVERSE EMPLOYMENT ACTION UNDER ONGOING INVESTIGATION 
              EXEMPTION.

    (a) Section 8(a)(1) of the EPPA provides that the limited exemption 
in section 7(d) of the EPPA and section 1.12 of this part for ongoing 
investigations shall not apply if an employing office discharges, 
disciplines, denies employment or promotion or otherwise discriminates 
in any manner against a current employee based upon the analysis of a 
polygraph test chart or the refusal to take a polygraph test, without 
additional supporting evidence.
    (b) ``Additional supporting evidence'', for purposes of section 
8(a) of the EPPA, includes, but is not limited to, the following:
            (1)(i) Evidence indicating that the employee had access to 
        the missing or damaged property that is the subject of an 
        ongoing investigation; and
            (ii) Evidence leading to the employing office's reasonable 
        suspicion that the employee was involved in the incident or 
        activity under investigation; or
            (2) Admissions or statements made by an employee before, 
        during or following a polygraph examination.
    (c) Analysis of a polygraph test chart or refusal to take a 
polygraph test may not serve as a basis for adverse employment action, 
even with additional supporting evidence, unless the employing office 
observes all the requirements of sections 7(d) and 8(b) of the EPPA, as 
applied by the CAA and described in sections 1.12, 1.22, 1.23, 1.24 and 
1.25 of this part.

SEC. 1.21 ADVERSE EMPLOYMENT ACTION UNDER CONTROLLED SUBSTANCE 
              EXEMPTION.

    (a) Section 8(a)(2) of the EPPA provides that the controlled 
substance exemption in section 7(f) of the EPPA and section 1.13 of 
this part shall not apply if an employing office discharges, 
disciplines, denies employment or promotion, or otherwise discriminates 
in any manner against a current employee or prospective employee based 
solely on the analysis of a polygraph test chart or the refusal to take 
a polygraph test.
    (b) Analysis of a polygraph test chart or refusal to take a 
polygraph test may serve as one basis for adverse employment actions of 
the type described in paragraph (a) of this section: Provided, That the 
adverse action was also based on another bona fide reason, with 
supporting evidence therefor. For example, traditional factors such as 
prior employment experience, education, job performance, etc. may be 
used as a basis for employment decisions. Employment decisions based on 
admissions or statements made by an employee or prospective employee 
before, during or following a polygraph examination may, likewise, 
serve as a basis for such decisions.
    (c) Analysis of a polygraph test chart or the refusal to take a 
polygraph test may not serve as a basis for adverse employment action, 
even with another legitimate basis for such action, unless the 
employing office observes all the requirements of section 7(f) of the 
EPPA, as appropriate, and section 8(b) of the EPPA, as described in 
sections 1.13, 1.22, 1.23, 1.24 and 1.25 of this part.

SEC. 1.22 RIGHTS OF EXAMINEE--GENERAL.

    (a) Pursuant to section 8(b) of the EPPA, the limited exemption in 
section 7(d) of the EPPA for ongoing investigations (described in 
sections 1.12 and 1.13 of this part) shall not apply unless all of the 
requirements set forth in this section and sections 1.23 through 1.25 
of this part are met.
    (b) During all phases of the polygraph testing the person being 
examined has the following rights:
            (1) The examinee may terminate the test at any time.
            (2) The examinee may not be asked any questions in a 
        degrading or unnecessarily intrusive manner.
            (3) The examinee may not be asked any questions dealing 
        with:
                    (i) Religious beliefs or affiliations;
                    (ii) Beliefs or opinions regarding racial matters;
                    (iii) Political beliefs or affiliations;
                    (iv) Sexual preferences or behavior; or
                    (v) Beliefs, affiliations, opinions, or lawful 
                activities concerning unions or labor organizations.
            (4) The examinee may not be subjected to a test when there 
        is sufficient written evidence by a physician that the examinee 
        is suffering from any medical or psychological condition or 
        undergoing any treatment that might cause abnormal responses 
        during the actual testing phase. ``Sufficient written 
        evidence'' shall constitute, at a minimum, a statement by a 
        physician specifically describing the examinee's medical or 
        psychological condition or treatment and the basis for the 
        physician's opinion that the condition or treatment might 
        result in such abnormal responses.
            (5) An employee or prospective employee who exercises the 
        right to terminate the test, or who for medical reasons with 
        sufficient supporting evidence is not administered the test, 
        shall be subject to adverse employment action only on the same 
        basis as one who refuses to take a polygraph test, as described 
        in sections 1.20 and 1.21 of this part.
    (c) Any polygraph examination shall consist of one or more pretest 
phases, actual testing phases, and post-test phases, which must be 
conducted in accordance with the rights of examinees described in 
sections 1.23 through 1.25 of this part.

SEC. 1.23 RIGHTS OF EXAMINEE--PRETEST PHASE.

    (a) The pretest phase consists of the questioning and other 
preparation of the prospective examinee before the actual use of the 
polygraph instrument. During the initial pretest phase, the examinee 
must be:
            (1) Provided with written notice, in a language understood 
        by the examinee, as to when and where the examination will take 
        place and that the examinee has the right to consult with 
        counsel or an employee representative before each phase of the 
        test. Such notice shall be received by the examinee at least 
        forty-eight hours, excluding weekend days and holidays, before 
        the time of the examination, except that a prospective employee 
        may, at the employee's option, give written consent to 
        administration of a test anytime within 48 hours but no earlier 
        than 24 hours after receipt of the written notice. The written 
        notice or proof of service must set forth the time and date of 
        receipt by the employee or prospective employee and be verified 
        by his or her signature. The purpose of this requirement is to 
        provide a sufficient opportunity prior to the examination for 
        the examinee to consult with counsel or an employee 
        representative. Provision shall also be made for a convenient 
        place on the premises where the examination will take place at 
        which the examinee may consult privately with an attorney or an 
        employee representative before each phase of the test. The 
        attorney or representative may be excluded from the room where 
        the examination is administered during the actual testing 
        phase.
            (2) Informed orally and in writing of the nature and 
        characteristics of the polygraph instrument and examination, 
        including an explanation of the physical operation of the 
        polygraph instrument and the procedure used during the 
        examination.
            (3) Provided with a written notice prior to the testing 
        phase, in a language understood by the examinee, which shall be 
        read to and signed by the examinee. Use of Appendix A to this 
        part, if properly completed, will constitute compliance with 
        the contents of the notice requirement of this paragraph. If a 
        format other than in Appendix A is used, it must contain at 
        least the following information:
                    (i) Whether or not the polygraph examination area 
                contains a two-way mirror, a camera, or other device 
                through which the examinee may be observed;
                    (ii) Whether or not any other device, such as those 
                used in conversation or recording will be used during 
                the examination;
                    (iii) That both the examinee and the employing 
                office have the right, with the other's knowledge, to 
                make a recording of the entire examination;
                    (iv) That the examinee has the right to terminate 
                the test at any time;
                    (v) That the examinee has the right, and will be 
                given the opportunity, to review all questions to be 
                asked during the test;
                    (vi) That the examinee may not be asked questions 
                in a manner which degrades, or needlessly intrudes;
                    (vii) That the examinee may not be asked any 
                questions concerning religious beliefs or opinions; 
                beliefs regarding racial matters; political beliefs or 
                affiliations; matters relating to sexual behavior; 
                beliefs, affiliations, opinions, or lawful activities 
                regarding unions or labor organizations;
                    (viii) That the test may not be conducted if there 
                is sufficient written evidence by a physician that the 
                examinee is suffering from a medical or psychological 
                condition or undergoing treatment that might cause 
                abnormal responses during the examination;
                    (ix) That the test is not and cannot be required as 
                a condition of employment;
                    (x) That the employing office may not discharge, 
                dismiss, discipline, deny employment or promotion, or 
                otherwise discriminate against the examinee based on 
                the analysis of a polygraph test, or based on the 
                examinee's refusal to take such a test, without 
                additional evidence which would support such action;
                    (xi)(A) In connection with an ongoing 
                investigation, that the additional evidence required 
                for the employing office to take adverse action against 
                the examinee, including termination, may be evidence 
                that the examinee had access to the property that is 
                the subject of the investigation, together with 
                evidence supporting the employing office's reasonable 
                suspicion that the examinee was involved in the 
                incident or activity under investigation;
                    (B) That any statement made by the examinee before 
                or during the test may serve as additional supporting 
                evidence for an adverse employment action, as described 
                in paragraph (a)(3)(x) of this section, and that any 
                admission of criminal conduct by the examinee may be 
                transmitted to an appropriate Government law 
                enforcement agency;
                    (xii) That information acquired from a polygraph 
                test may be disclosed by the examiner or by the 
                employing office only:
                            (A) To the examinee or any other person 
                        specifically designated in writing by the 
                        examinee to receive such information;
                            (B) To the employing office that requested 
                        the test;
                            (C) To a court, governmental agency, 
                        arbitrator, or mediator pursuant to a court 
                        order;
                            (D) By the employing office, to an 
                        appropriate governmental agency without a court 
                        order where, and only insofar as, the 
                        information disclosed is an admission of 
                        criminal conduct;
                    (xiii) That if any of the examinee's rights or 
                protections under the law are violated, the examinee 
                has the right to take action against the employing 
                office under sections 401-404 of the CAA. Employing 
                offices that violate this law are liable to the 
                affected examinee, who may recover such legal or 
                equitable relief as may be appropriate, including, but 
                not limited to, employment, reinstatement, and 
                promotion, payment of lost wages and benefits, and 
                reasonable costs, including attorney's fees;
                    (xiv) That the examinee has the right to obtain and 
                consult with legal counsel or other representative 
                before each phase of the test, although the legal 
                counsel or representative may be excluded from the room 
                where the test is administered during the actual 
                testing phase.
                    (xv) That the employee's rights under the CAA may 
                not be waived, either voluntarily or involuntarily, by 
                contract or otherwise, except as part of a written 
                settlement to a pending action or complaint under the 
                CAA, agreed to and signed by the parties.
    (b) During the initial or any subsequent pretest phases, the 
examinee must be given the opportunity, prior to the actual testing 
phase, to review all questions in writing that the examiner will ask 
during each testing phase. Such questions may be presented at any point 
in time prior to the testing phase.

SEC. 1.24  RIGHTS OF EXAMINEE--ACTUAL TESTING PHASE.

    (a) The actual testing phase refers to that time during which the 
examiner administers the examination by using a polygraph instrument 
with respect to the examinee and then analyzes the charts derived from 
the test. Throughout the actual testing phase, the examiner shall not 
ask any question that was not presented in writing for review prior to 
the testing phase. An examiner may, however, recess the testing phase 
and return to the pre-test phase to review additional relevant 
questions with the examinee. In the case of an ongoing investigation, 
the examiner shall ensure that all relevant questions (as distinguished 
from technical baseline questions) pertain to the investigation.
    (b) No testing period subject to the provisions of the Act shall be 
less than ninety minutes in length. Such ``test period'' begins at the 
time that the examiner begins informing the examinee of the nature and 
characteristics of the examination and the instruments involved, as 
prescribed in section 8(b)(2)(B) of the EPPA and section 1.23(a)(2) of 
this part, and ends when the examiner completes the review of the test 
results with the examinee as provided in section 1.25 of this part. The 
ninety-minute minimum duration shall not apply if the examinee 
voluntarily acts to terminate the test before the completion thereof, 
in which event the examiner may not render an opinion regarding the 
employee's truthfulness.

SEC. 1.25  RIGHTS OF EXAMINEE--POST-TEST PHASE.

    (a) The post-test phase refers to any questioning or other 
communication with the examinee following the use of the polygraph 
instrument, including review of the results of the test with the 
examinee. Before any adverse employment action, the employing office 
must:
            (1) Further interview the examinee on the basis of the test 
        results; and
            (2) Give to the examinee a written copy of any opinions or 
        conclusions rendered in response to the test, as well as the 
        questions asked during the test, with the corresponding charted 
        responses. The term ``corresponding charted responses'' refers 
        to copies of the entire examination charts recording the 
        employee's physiological responses, and not just the examiner's 
        written report which describes the examinee's responses to the 
        questions as ``charted'' by the instrument.

SEC. 1.26  QUALIFICATIONS OF AND REQUIREMENTS FOR EXAMINERS.

    (a) Section 8 (b) and (c) of the EPPA provides that the limited 
exemption in section 7(d) of the EPPA for ongoing investigations shall 
not apply unless the person conducting the polygraph examination meets 
specified qualifications and requirements.
    (b) An examiner must meet the following qualifications:
            (1) Have a valid current license, if required by the State 
        in which the test is to be conducted; and
            (2) Carry a minimum bond of $50,000 provided by a surety 
        incorporated under the laws of the United States or of any 
        State, which may under those laws guarantee the fidelity of 
        persons holding positions of trust, or carry an equivalent 
        amount of professional liability coverage.
    (c) An examiner must also, with respect to examinees identified by 
the employing office pursuant to section 1.30(c) of this part:
            (1) Observe all rights of examinees, as set out in sections 
        1.22, 1.23, 1.24, and 1.25 of this part;
            (2) Administer no more than five polygraph examinations in 
        any one calendar day on which a test or tests subject to the 
        provisions of EPPA are administered, not counting those 
        instances where an examinee voluntarily terminates an 
        examination prior to the actual testing phase;
            (3) Administer no polygraph examination subject to the 
        provisions of the EPPA which is less than ninety minutes in 
        duration, as described in section 1.24(b) of this part; and
            (4) Render any opinion or conclusion regarding truthfulness 
        or deception in writing. Such opinion or conclusion must be 
        based solely on the polygraph test results. The written report 
        shall not contain any information other than admissions, 
        information, case facts, and interpretation of the charts 
        relevant to the stated purpose of the polygraph test and shall 
        not include any recommendation concerning the employment of the 
        examinee.
            (5) Maintain all opinions, reports, charts, written 
        questions, lists, and other records relating to the test, 
        including, statements signed by examinees advising them of 
        rights under the CAA (as described in section 1.23(a)(3) of 
        this part) and any electronic recordings of examinations, for 
        at least three years from the date of the administration of the 
        test. (See section 1.30 of this part for recordkeeping 
        requirements.)

          Subpart D--Recordkeeping and Disclosure Requirements

SEC. 1.30  RECORDS TO BE PRESERVED FOR 3 YEARS.

    (a) The following records shall be kept for a minimum period of 
three years from the date the polygraph examination is conducted (or 
from the date the examination is requested if no examination is 
conducted):
            (1) Each employing office that requests an employee to 
        submit to a polygraph examination in connection with an ongoing 
        investigation involving economic loss or injury shall retain a 
        copy of the statement that sets forth the specific incident or 
        activity under investigation and the basis for testing that 
        particular covered employee, as required by section 7(d)(4) of 
        the EPPA and described in 1.12(a)(4) of this part.
            (2) Each examiner retained to administer examinations 
        pursuant to any of the exemptions under section 7 (d), (e) or 
        (f) of the EPPA (described in sections 1.12 and 1.13 of this 
        part) shall maintain all opinions, reports, charts, written 
        questions, lists, and other records relating to polygraph tests 
        of such persons.

SEC. 1.35  DISCLOSURE OF TEST INFORMATION.

    This section prohibits the unauthorized disclosure of any 
information obtained during a polygraph test by any person, other than 
the examinee, directly or indirectly, except as follows:
    (a) A polygraph examiner or an employing office (other than an 
employing office exempt under section 7 (a) or (b) of the EPPA 
(described in sections 1.10 and 1.11 of this part)) may disclose 
information acquired from a polygraph test only to:
            (1) The examinee or an individual specifically designated 
        in writing by the examinee to receive such information;
            (2) The employing office that requested the polygraph test 
        pursuant to the provisions of the EPPA (including management 
        personnel of the employing office where the disclosure is 
        relevant to the carrying out of their job responsibilities);
            (3) Any court, governmental agency, arbitrator, or mediator 
        pursuant to an order from a court of competent jurisdiction 
        requiring the production of such information;
    (b) An employing office may disclose information from the polygraph 
test at any time to an appropriate governmental agency without the need 
of a court order where, and only insofar as, the information disclosed 
is an admission of criminal conduct.
    (c) A polygraph examiner may disclose test charts, without 
identifying information (but not other examination materials and 
records), to another examiner(s) for examination and analysis, provided 
that such disclosure is for the sole purpose of consultation and review 
of the initial examiner's opinion concerning the indications of 
truthfulness or deception. Such action would not constitute disclosure 
under this part provided that the other examiner has no direct or 
indirect interest in the matter.

                         Subpart E--[Reserved]

SEC. 1.40  [RESERVED].

               Appendix A to Part 801--Notice to Examinee

    Section 204 of the Congressional Accountability Act, which applies 
the rights and protections of section 8(b) of the Employee Polygraph 
Protection Act to covered employees and employing offices, and the 
regulations of the Board of Directors of the Office of Compliance 
(sections 1.22, 1.23, 1.24, and 1.25), require that you be given the 
following information before taking a polygraph examination:

1. (a) The polygraph examination area  [does]  [does not]  contain a 
two-way mirror, a camera, or other device through which you may be 
observed.

(b) Another device, such as those used in conversation or recording  
[will]  [will not]  be used during the examination.

(c) Both you and the employing office have the right, with the other's 
knowledge, to record electronically the entire examination.

2. (a) You have the right to terminate the test at any time.

(b) You have the right, and will be given the opportunity, to review 
all questions to be asked during the test.

(c) You may not be asked questions in a manner which degrades, or 
needlessly intrudes.

(d) You may not be asked any questions concerning: Religious beliefs or 
opinions; beliefs regarding racial matters; political beliefs or 
affiliations; matters relating to sexual preference or behavior; 
beliefs, affiliations, opinions, or lawful activities regarding unions 
or labor organizations.

(e) The test may not be conducted if there is sufficient written 
evidence by a physician that you are suffering from a medical or 
psychological condition or undergoing treatment that might cause 
abnormal responses during the examination.

(f) You have the right to consult with legal counsel or other 
representative before each phase of the test, although the legal 
counsel or other representative may be excluded from the room where the 
test is administered during the actual testing phase.

3. (a) The test is not and cannot be required as a condition of 
employment.

(b) The employing office may not discharge, dismiss, discipline, deny 
employment or promotion, or otherwise discriminate against you based on 
the analysis of a 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;

        (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.

________________________________________
(Date)
________________________________________
(Signature)

    APPLICATION OF RIGHTS AND PROTECTIONS OF THE WORKER ADJUSTMENT 
 RETRAINING AND NOTIFICATION ACT OF 1988 (IMPLEMENTING SECTION 204 OF 
                                THE CAA)

Sec.
639.1  Purpose and scope.
639.2  What does WARN require?
639.3  Definitions.
639.4  Who must give notice?
639.5  When must notice be given?
639.6  Who must receive notice?
639.7  What must the notice contain?
639.8  How is the notice served?
639.9  When may notice be given less than 60 days in advance?
639.10  When may notice be extended?
639.11  [Reserved].
Sec. 639.1  Purpose and scope
    (a) Purpose of WARN as Applied by the CAA.--Section 205 of the 
Congressional Accountability Act, Public Law 104-1 (``CAA''), provides 
protection to covered employees and their families by requiring 
employing offices to provide notification 60 calendar days in advance 
of office closings and mass layoffs within the meaning of section 3 of 
the Worker Adjustment and Retraining Notification Act of 1988, 29 
U.S.C. Sec. 2102. Advance notice provides workers and their families 
some transition time to adjust to the prospective loss of employment, 
to seek and obtain alternative jobs and, if necessary, to enter skill 
training or retraining that will allow these workers to successfully 
compete in the job market. As used in these regulations, WARN shall 
refer to the provisions of WARN applied to covered employing offices by 
section 205 of the CAA.
    (b) Scope of These Regulations.--These regulations are issued by 
the Board of Directors, Office of Compliance, pursuant to sections 
205(c) and 304 of the CAA, which directs the Board to promulgate 
regulations implementing section 205 that are ``the same as substantive 
regulations promulgated by the Secretary of Labor to implement the 
statutory provisions referred to in subsection (a) [of section 205 of 
the CAA] except insofar as the Board may determine, for good cause 
shown . . . that a modification of such regulations would be more 
effective for the implementation of the rights and protections under 
this section''. The regulations issued by the Board herein are on all 
matters for which section 205 of the CAA requires a regulation to be 
issued. Specifically, it is the Board's considered judgment, based on 
the information available to it at the time of promulgation of these 
regulations, that, with the exception of regulations adopted and set 
forth herein, there are no other ``substantive regulations promulgated 
by the Secretary of Labor to implement the statutory provisions 
referred to in subsection (a) [of section 205 of the CAA]''.
    In promulgating these regulations, the Board has made certain 
technical and nomenclature changes to the regulations as promulgated by 
the Secretary. Such changes are intended to make the provisions adopted 
accord more naturally to situations in the legislative branch. However, 
by making these changes, the Board does not intend a substantive 
difference between these sections and those of the Secretary from which 
they are derived. Moreover, such changes, in and of themselves, are not 
intended to constitute an interpretation of the regulation or of the 
statutory provisions of the CAA upon which they are based.
    These regulations establish basic definitions and rules for giving 
notice, implementing the provisions of WARN. The objective of these 
regulations is to establish clear principles and broad guidelines which 
can be applied in specific circumstances. However, it is recognized 
that rulemaking cannot address the multitude of employing office-
specific situations in which advance notice will be given.
    (c) Notice in Ambiguous Situations.--It is civically desirable and 
it would appear to be good business practice for an employing office to 
provide advance notice, where reasonably possible, to its workers or 
unions when terminating a significant number of employees. The Office 
encourages employing offices to give notice in such circumstances.
    (d) WARN not to Supersede Other Laws and Contracts.--The provisions 
of WARN do not supersede any otherwise applicable laws or collective 
bargaining agreements that provide for additional notice or additional 
rights and remedies. If such law or agreement provides for a longer 
notice period, WARN notice shall run concurrently with that additional 
notice period. Collective bargaining agreements may be used to clarify 
or amplify the terms and conditions of WARN, but may not reduce WARN 
rights.
Sec. 639.2 What does WARN require?
    WARN requires employing offices that are planning an office closing 
or a mass layoff to give affected employees at least 60 days' notice of 
such an employment action. While the 60-day period is the minimum for 
advance notice, this provision is not intended to discourage employing 
offices from voluntarily providing longer periods of advance notice. 
Not all office closings and layoffs are subject to WARN, and certain 
employment thresholds must be reached before WARN applies. WARN sets 
out specific exemptions, and provides for a reduction in the 
notification period in particular circumstances. Remedies authorized 
under section 205 of the CAA may be assessed against employing offices 
that violate WARN requirements.
Sec. 639.3 Definitions
    (a) Employing Office.--(1) The term ``employing office'' means any 
of the entities listed in section 101(9) of the CAA, 2 U.S.C. 
Sec. 1301(9) that employs--
            (i) 100 or more employees, excluding part-time employees; 
        or
            (ii) employs 100 or more employees, including part-time 
        employees, who in the aggregate work at least 4,000 hours per 
        week, exclusive of overtime.
Workers on temporary layoff or on leave who have a reasonable 
expectation of recall are counted as employees. An employee has a 
``reasonable expectation of recall'' when he/she understands, through 
notification or through common practice, that his/her employment with 
the employing office has been temporarily interrupted and that he/she 
will be recalled to the same or to a similar job.
    (2) Workers, other than part-time workers, who are exempt from 
notice under section 4 of WARN, are nonetheless counted as employees 
for purposes of determining coverage as an employing office.
    (3) An employing office may have one or more sites of employment 
under common control.
    (b) Office Closing.--The term ``office closing'' means the 
permanent or temporary shutdown of a ``single site of employment'', or 
one or more ``facilities or operating units'' within a single site of 
employment, if the shutdown results in an ``employment loss'' during 
any 30-day period at the single site of employment for 50 or more 
employees, excluding any part-time employees. An employment action that 
results in the effective cessation of the work performed by a unit, 
even if a few employees remain, is a shutdown. A ``temporary shutdown'' 
triggers the notice requirement only if there are a sufficient number 
of terminations, layoffs exceeding 6 months, or reductions in hours of 
work as specified under the definition of ``employment loss''.
    (c) Mass Layoff.--(1) The term ``mass layoff'' means a reduction in 
force which first, is not the result of an office closing, and second, 
results in an employment loss at the single site of employment during 
any 30-day period for:
            (i) At least 33 percent of the active employees, excluding 
        part-time employees, and
            (ii) At least 50 employees, excluding part-time employees.
Where 500 or more employees (excluding part-time employees) are 
affected, the 33 percent requirement does not apply, and notice is 
required if the other criteria are met. Office closings involve 
employment loss which results from the shutdown of one or more distinct 
units within a single site or the entire site. A mass layoff involves 
employment loss, regardless of whether one or more units are shut down 
at the site.
    (2) Workers, other than part-time workers, who are exempt from 
notice under section 4 of WARN are nonetheless counted as employees for 
purposes of determining coverage as an office closing or mass layoff. 
For example, if an employing office closes a temporary project on which 
10 permanent and 40 temporary workers are employed, a covered office 
closing has occurred although only 10 workers are entitled to notice.
    (d) Representative.--The term ``representative'' means an exclusive 
representative of employees within the meaning of 5 U.S.C. 
Sec. Sec. 7101 et seq., as applied to covered employees and employing 
offices by section 220 of the CAA, 2 U.S.C. Sec. 1351.
    (e) Affected Employees.--The term ``affected employees'' means 
employees who may reasonably be expected to experience an employment 
loss as a consequence of a proposed office closing or mass layoff by 
their employing office. This includes individually identifiable 
employees who will likely lose their jobs because of bumping rights or 
other factors, to the extent that such individual workers reasonably 
can be identified at the time notice is required to be given. The term 
affected employees includes managerial and supervisory employees. 
Consultant or contract employees who have a separate employment 
relationship with another employing office or employer and are paid by 
that other employing office or employer, or who are self-employed, are 
not ``affected employees'' of the operations to which they are 
assigned. In addition, for purposes of determining whether coverage 
thresholds are met, either incumbent workers in jobs being eliminated 
or, if known 60 days in advance, the actual employees who suffer an 
employment loss may be counted.
    (f) Employment Loss.--(1) The term employment loss means (i) an 
employment termination, other than a discharge for cause, voluntary 
departure, or retirement, (ii) a layoff exceeding 6 months, or (iii) a 
reduction in hours of work of individual employees of more than 50 
percent during each month of any 6-month period.
    (2) Where a termination or a layoff (see paragraphs (f)(1) (i) and 
(ii) of this section) is involved, an employment loss does not occur 
when an employee is reassigned or transferred to employing office-
sponsored programs, such as retraining or job search activities, as 
long as the reassignment does not constitute a constructive discharge 
or other involuntary termination.
    (3) An employee is not considered to have experienced an employment 
loss if the closing or layoff is the result of the relocation or 
consolidation of part or all of the employing office's operations and, 
prior to the closing or layoff--
            (i) The employing office offers to transfer the employee to 
        a different site of employment within a reasonable commuting 
        distance with no more than a 6-month break in employment, or
            (ii) The employing office offers to transfer the employee 
        to any other site of employment regardless of distance with no 
        more than a 6-month break in employment, and the employee 
        accepts within 30 days of the offer or of the closing or 
        layoff, whichever is later.
    (4) A ``relocation or consolidation'' of part or all of an 
employing office's operations, for purposes of paragraph 
Sec. 639.3(f)(3), means that some definable operations are transferred 
to a different site of employment and that transfer results in an 
office closing or mass layoff.
    (g) Part-time Employee.--The term ``part-time'' employee means an 
employee who is employed for an average of fewer than 20 hours per week 
or who has been employed for fewer than 6 of the 12 months preceding 
the date on which notice is required, including workers who work full-
time. This term may include workers who would traditionally be 
understood as ``seasonal'' employees. The period to be used for 
calculating whether a worker has worked ``an average of fewer than 20 
hours per week'' is the shorter of the actual time the worker has been 
employed or the most recent 90 days.
    (h) Single Site of Employment.--(1) A single site of employment can 
refer to either a single location or a group of contiguous locations. 
Separate facilities across the street from one another may be 
considered a single site of employment.
    (2) There may be several single sites of employment within a single 
building, such as an office building, if separate employing offices 
conduct activities within such a building. For example, an office 
building housing 50 different employing offices will contain 50 single 
sites of employment. The offices of each employing office will be its 
single site of employment.
    (3) Separate buildings or areas which are not directly connected or 
in immediate proximity may be considered a single site of employment if 
they are in reasonable geographic proximity, used for the same purpose, 
and share the same staff and equipment.
    (4) Non-contiguous sites in the same geographic area which do not 
share the same staff or operational purpose should not be considered a 
single site.
    (5) Contiguous buildings operated by the same employing office 
which have separate management and have separate workforces are 
considered separate single sites of employment.
    (6) For workers whose primary duties require travel from point to 
point, who are outstationed, or whose primary duties involve work 
outside any of the employing office's regular employment sites (e.g., 
railroad workers, bus drivers, salespersons), the single site of 
employment to which they are assigned as their home base, from which 
their work is assigned, or to which they report will be the single site 
in which they are covered for WARN purposes.
    (7) Foreign sites of employment are not covered under WARN. United 
States workers at such sites are counted to determine whether an 
employing office is covered as an employing office under Sec. 639.3(a).
    (8) The term ``single site of employment'' may also apply to truly 
unusual organizational situations where the above criteria do not 
reasonably apply. The application of this definition with the intent to 
evade the purpose of WARN to provide notice is not acceptable.
    (i) Facility or Operating Unit.--The term ``facility'' refers to a 
building or buildings. The term ``operating unit'' refers to an 
organizationally or operationally distinct product, operation, or 
specific work function within or across facilities at the single site.
Sec. 639.4 Who must give notice?
    Section 205(a)(1) of the CAA states that ``[n]o employing office 
shall be closed or a mass layoff ordered within the meaning of section 
3 of [WARN] until the end of a 60-day period after the employing office 
serves written notice of such prospective closing or layoff . . . ''. 
Therefore, an employing office that is anticipating carrying out an 
office closing or mass layoff is required to give notice to affected 
employees or their representative(s). (See definitions in Sec. 639.3 of 
this part.)
    (a) It is the responsibility of the employing office to decide the 
most appropriate person within the employing office's organization to 
prepare and deliver the notice to affected employees or their 
representative(s). In most instances, this may be the local site office 
manager, the local personnel director or a labor relations officer.
    (b) An employing office that has previously announced and carried 
out a short-term layoff (6 months or less) which is being extended 
beyond 6 months due to circumstances not reasonably foreseeable at the 
time of the initial layoff is required to give notice when it becomes 
reasonably foreseeable that the extension is required. A layoff 
extending beyond 6 months from the date the layoff commenced for any 
other reason shall be treated as an employment loss from the date of 
its commencement.
    (c) In the case of the privatization or sale of part or all of an 
employing office's operations, the employing office is responsible for 
providing notice of any office closing or mass layoff which takes place 
up to and including the effective date (time) of the privatization or 
sale, and the contractor or buyer is responsible for providing any 
required notice of any office closing or mass layoff that takes place 
thereafter.
            (1) If the employing office is made aware of any definite 
        plans on the part of the buyer or contractor to carry out an 
        office closing or mass layoff within 60 days of purchase, the 
        employing office may give notice to affected employees as an 
        agent of the buyer or contractor, if so empowered. If the 
        employing office does not give notice, the buyer or contractor 
        is, nevertheless, responsible to give notice. If the employing 
        office gives notice as the agent of the buyer or contractor, 
        the responsibility for notice still remains with the buyer or 
        contractor.
            (2) It may be prudent for the buyer or contractor and 
        employing office to determine the impacts of the privatization 
        or sale on workers, and to arrange between them for advance 
        notice to be given to affected employees or their 
        representative(s), if a mass layoff or office closing is 
        planned.
Sec. 639.5 When must notice be given?
    (a) General Rule.--(1) With certain exceptions discussed in 
paragraphs (b) and (c) of this section and in Sec. 639.9 of this part, 
notice must be given at least 60 calendar days prior to any planned 
office closing or mass layoff, as defined in these regulations. When 
all employees are not terminated on the same date, the date of the 
first individual termination within the statutory 30-day or 90-day 
period triggers the 60-day notice requirement. A worker's last day of 
employment is considered the date of that worker's layoff. The first 
and each subsequent group of terminees are entitled to a full 60 days' 
notice. In order for an employing office to decide whether issuing 
notice is required, the employing office should--
            (i) look ahead 30 days and behind 30 days to determine 
        whether employment actions both taken and planned will, in the 
        aggregate for any 30-day period, reach the minimum numbers for 
        an office closing or a mass layoff and thus trigger the notice 
        requirement; and
            (ii) look ahead 90 days and behind 90 days to determine 
        whether employment actions both taken and planned each of which 
        separately is not of sufficient size to trigger WARN coverage 
        will, in the aggregate for any 90-day period, reach the minimum 
        numbers for an office closing or a mass layoff and thus trigger 
        the notice requirement. An employing office is not, however, 
        required under section 3(d) to give notice if the employing 
        office demonstrates that the separate employment losses are the 
        result of separate and distinct actions and causes, and are not 
        an attempt to evade the requirements of WARN.
    (2) The point in time at which the number of employees is to be 
measured for the purpose of determining coverage is the date the first 
notice is required to be given. If this ``snapshot'' of the number of 
employees employed on that date is clearly unrepresentative of the 
ordinary or average employment level, then a more representative number 
can be used to determine coverage. Examples of unrepresentative 
employment levels include cases when the level is near the peak or 
trough of an employment cycle or when large upward or downward shifts 
in the number of employees occur around the time notice is to be given. 
A more representative number may be an average number of employees over 
a recent period of time or the number of employees on an alternative 
date which is more representative of normal employment levels. 
Alternative methods cannot be used to evade the purpose of WARN, and 
should only be used in unusual circumstances.
    (b) Transfers.--(1) Notice is not required in certain cases 
involving transfers, as described under the definition of ``employment 
loss'' at Sec. 639.3(f) of this part.
    (2) An offer of reassignment to a different site of employment 
should not be deemed to be a ``transfer'' if the new job constitutes a 
constructive discharge.
    (3) The meaning of the term ``reasonable commuting distance'' will 
vary with local conditions. In determining what is a ``reasonable 
commuting distance'', consideration should be given to the following 
factors: geographic accessibility of the place of work, the quality of 
the roads, customarily available transportation, and the usual travel 
time.
    (4) In cases where the transfer is beyond reasonable commuting 
distance, the employing office may become liable for failure to give 
notice if an offer to transfer is not accepted within 30 days of the 
offer or of the closing or layoff (whichever is later). Depending upon 
when the offer of transfer was made by the employing office, the normal 
60-day notice period may have expired and the office closing or mass 
layoff may have occurred. An employing office is, therefore, well 
advised to provide 60-day advance notice as part of the transfer offer.
    (c) Temporary Employment.--(1) No notice is required if the closing 
is of a temporary facility, or if the closing or layoff is the result 
of the completion of a particular project or undertaking, and the 
affected employees were hired with the understanding that their 
employment was limited to the duration of the facility or the project 
or undertaking.
    (2) Employees must clearly understand at the time of hire that 
their employment is temporary. When such understandings exist will be 
determined by reference to employment contracts, collective bargaining 
agreements, or employment practices of other employing offices or a 
locality, but the burden of proof will lie with the employing office to 
show that the temporary nature of the project or facility was clearly 
communicated should questions arise regarding the temporary employment 
understandings.
Sec. 639.6  Who must receive notice?
    Section 3(a) of WARN provides for notice to each representative of 
the affected employees as of the time notice is required to be given 
or, if there is no such representative at that time, to each affected 
employee.
    (a) Representative(s) of Affected Employees.--Written notice is to 
be served upon the chief elected officer of the exclusive 
representative(s) or bargaining agent(s) of affected employees at the 
time of the notice. If this person is not the same as the officer of 
the local union(s) representing affected employees, it is recommended 
that a copy also be given to the local union official(s).
    (b) Affected Employees.--Notice is required to be given to 
employees who may reasonably be expected to experience an employment 
loss. This includes employees who will likely lose their jobs because 
of bumping rights or other factors, to the extent that such workers can 
be identified at the time notice is required to be given. If, at the 
time notice is required to be given, the employing office cannot 
identify the employee who may reasonably be expected to experience an 
employment loss due to the elimination of a particular position, the 
employing office must provide notice to the incumbent in that position. 
While part-time employees are not counted in determining whether office 
closing or mass layoff thresholds are reached, such workers are due 
notice.
Sec. 639.7  What must the notice contain?
    (a) Notice Must be Specific.--(1) All notice must be specific.
    (2) Where voluntary notice has been given more than 60 days in 
advance, but does not contain all of the required elements set out in 
this section, the employing office must ensure that all of the 
information required by this section is provided in writing to the 
parties listed in Sec. 639.6 at least 60 days in advance of a covered 
employment action.
    (3) Notice may be given conditional upon the occurrence or 
nonoccurrence of an event only when the event is definite and the 
consequences of its occurrence or nonoccurrence will necessarily, in 
the normal course of operations, lead to a covered office closing or 
mass layoff less than 60 days after the event. The notice must contain 
each of the elements set out in this section.
    (4) The information provided in the notice shall be based on the 
best information available to the employing office at the time the 
notice is served. It is not the intent of the regulations that errors 
in the information provided in a notice that occur because events 
subsequently change or that are minor, inadvertent errors are to be the 
basis for finding a violation of WARN.
    (b) Definition.--As used in this section, the term ``date'' refers 
to a specific date or to a 14-day period during which a separation or 
separations are expected to occur. If separations are planned according 
to a schedule, the schedule should indicate the specific dates on which 
or the beginning date of each 14-day period during which any 
separations are expected to occur. Where a 14-day period is used, 
notice must be given at least 60 days in advance of the first day of 
the period.
    (c) Notice.--Notice to each representative of affected employees is 
to contain:
            (1) The name and address of the employment site where the 
        office closing or mass layoff will occur, and the name and 
        telephone number of an employing office official to contact for 
        further information;
            (2) A statement as to whether the planned action is 
        expected to be permanent or temporary and, if the entire office 
        is to be closed, a statement to that effect;
            (3) The expected date of the first separation and the 
        anticipated schedule for making separations;
            (4) The job titles of positions to be affected and the 
        names of the workers currently holding affected jobs.
The notice may include additional information useful to the employees 
such as information on available dislocated worker assistance, and, if 
the planned action is expected to be temporary, the estimated duration, 
if known.
    (d) Employees not Represented.--Notice to each affected employee 
who does not have a representative is to be written in language 
understandable to the employees and is to contain:
            (1) A statement as to whether the planned action is 
        expected to be permanent or temporary and, if the entire office 
        is to be closed, a statement to that effect;
            (2) The expected date when the office closing or mass 
        layoff will commence and the expected date when the individual 
        employee will be separated;
            (3) An indication whether or not bumping rights exist;
            (4) The name and telephone number of an employing office 
        official to contact for further information.
The notice may include additional information useful to the employees 
such as information on available dislocated worker assistance, and, if 
the planned action is expected to be temporary, the estimated duration, 
if known.
Sec. 639.8  How is the notice served?
    Any reasonable method of delivery to the parties listed under 
Sec. 639.6 of this part which is designed to ensure receipt of notice 
of at least 60 days before separation is acceptable (e.g., first class 
mail, personal delivery with optional signed receipt). In the case of 
notification directly to affected employees, insertion of notice into 
pay envelopes is another viable option. A ticketed notice, i.e., 
preprinted notice regularly included in each employee's pay check or 
pay envelope, does not meet the requirements of WARN.
Sec. 639.9  When may notice be given less than 60 days in advance?
    Section 3(b) of WARN, as applied by section 205 of the CAA, sets 
forth two conditions under which the notification period may be reduced 
to less than 60 days. The employing office bears the burden of proof 
that conditions for the exceptions have been met. If one of the 
exceptions is applicable, the employing office must give as much notice 
as is practicable to the union and non-represented employees and this 
may, in some circumstances, be notice after the fact. The employing 
office must, at the time notice actually is given, provide a brief 
statement of the reason for reducing the notice period, in addition to 
the other elements set out in Sec. 639.7.
    (a) The ``unforeseeable business circumstances'' exception under 
section 3(b)(2)(A) of WARN, as applied under the CAA, applies to office 
closings and mass layoffs caused by circumstances that were not 
reasonably foreseeable at the time that 60-day notice would have been 
required.
            (1) An important indicator of a circumstance that is not 
        reasonably foreseeable is that the circumstance is caused by 
        some sudden, dramatic, and unexpected action or condition 
        outside the employing office's control.
            (2) The test for determining when circumstances are not 
        reasonably foreseeable focuses on an employing office's 
        business judgment. The employing office must exercise such 
        reasonable business judgment as would a similarly situated 
        employing office in predicting the demands of its operations. 
        The employing office is not required, however, to accurately 
        predict general economic conditions that also may affect its 
        operations.
    (b) The ``natural disaster'' exception in section 3(b)(2)(B) of 
WARN applies to office closings and mass layoffs due to any form of a 
natural disaster.
            (1) Floods, earthquakes, droughts, storms, tidal waves or 
        tsunamis and similar effects of nature are natural disasters 
        under this provision.
            (2) To qualify for this exception, an employing office must 
        be able to demonstrate that its office closing or mass layoff 
        is a direct result of a natural disaster.
            (3) While a disaster may preclude full or any advance 
        notice, such notice as is practicable, containing as much of 
        the information required in Sec. 639.7 as is available in the 
        circumstances of the disaster still must be given, whether in 
        advance or after the fact of an employment loss caused by a 
        natural disaster.
            (4) Where an office closing or mass layoff occurs as an 
        indirect result of a natural disaster, the exception does not 
        apply but the ``unforeseeable business circumstance'' exception 
        described in paragraph (a) of this section may be applicable.
Sec. 639.10 When may notice be extended?
    Additional notice is required when the date or schedule of dates of 
a planned office closing or mass layoff is extended beyond the date or 
the ending date of any 14-day period announced in the original notice 
as follows:
    (a) If the postponement is for less than 60 days, the additional 
notice should be given as soon as possible to the parties identified in 
Sec. 639.6 and should include reference to the earlier notice, the date 
(or 14-day period) to which the planned action is postponed, and the 
reasons for the postponement. The notice should be given in a manner 
which will provide the information to all affected employees.
    (b) If the postponement is for 60 days or more, the additional 
notice should be treated as new notice subject to the provisions of 
Sec. Sec. 639.5, 639.6 and 639.7 of this part. Rolling notice, in the 
sense of routine periodic notice, given whether or not an office 
closing or mass layoff is impending, and with the intent to evade the 
purpose of the Act rather than give specific notice as required by 
WARN, is not acceptable.
Sec. 639.11 [Reserved]
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