2180 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1215–AA85

The Family and Medical Leave Act of

1993

AGENCY: Wage and Hour Division,

Labor.

ACTION: Final rule.

SUMMARY: This document provides the

text of final regulations implementing

the Family and Medical Leave Act of

1993, Public Law 103–3, 107 Stat. 6 (29

U.S.C. 2601 et seq.) (FMLA or Act).

FMLA generally requires private sector

employers of 50 or more employees, and

public agencies, to provide up to 12

workweeks of unpaid, job-protected

leave to eligible employees for certain

specified family and medical reasons; to

maintain eligible employees’ preexisting group health insurance

coverage during periods of FMLA leave;

and to restore eligible employees to

their same or an equivalent position at

the conclusion of their FMLA leave.

EFFECTIVE DATE: These rules are effective

on February 6, 1995.

FOR FURTHER INFORMATION CONTACT: J.

Dean Speer, Director, Division of Policy

and Analysis, Wage and Hour Division,

Employment Standards Administration,

U.S. Department of Labor, Room S–

3506, 200 Constitution Avenue, NW.,

Washington, DC 20210; telephone (202)

219–8412. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

Recordkeeping requirements

contained in these regulations

(§ 825.500) have been reviewed and

approved for use through July 1996 by

the Office of Management and Budget

(OMB) and assigned OMB control

number 1215–0181 under the

Paperwork Reduction Act of 1980 (Pub.

L. 96–511). No substantive changes have

been made in this final rule which affect

the recordkeeping requirements and

estimated burdens previously reviewed

and approved under OMB control

number 1215–0181. Comments received

regarding the estimate of public

reporting burden for the information

collection requirements contained in

these regulations are discussed below in

connection with § 825.500.

II. Background

The FMLA was enacted on February

5, 1993. In general, FMLA entitles an

‘‘eligible employee’’ to take up to a total

of 12 workweeks of unpaid leave during

any 12-month period for the birth of a

child and to care for such child, for the

placement of a child for adoption or

foster care, to care for a spouse or an

immediate family member with a

serious health condition, or when he or

she is unable to work because of a

serious health condition. Employers

covered by the law are required to

maintain any pre-existing group health

coverage during the leave period and,

once the leave period is concluded, to

reinstate the employee to the same or an

equivalent job with equivalent

employment benefits, pay, and other

terms and conditions of employment.

Title I of the Act applies to private

sector employers of 50 or more

employees, public agencies, and certain

Federal employers and entities, such as

the U.S. Postal Service and Postal Rate

Commission. These regulations, 29 CFR

Part 825, implement Title I of the

FMLA. Similar leave entitlement

provisions in Title II of the FMLA apply

to most other Federal civil service

employees who are covered by the

annual and sick leave system

established under 5 U.S.C. Chapter 63,

plus certain employees covered by other

Federal leave systems. The U.S. Office

of Personnel Management (OPM)

administers the regulations

implementing Title II of the FMLA (see

5 CFR Part 630). Title III established a

temporary ‘‘Commission on Leave,’’

which is to conduct a comprehensive

study and produce a report on existing

and proposed policies on leave and the

costs, benefits, and impact on

productivity of such policies. Title IV

contains miscellaneous provisions,

including rules governing the effect of

the Act on more generous leave policies,

other laws, and existing employment

benefits. Title V extended similar leave

provisions to certain employees of the

U.S. Senate and the U.S. House of

Representatives.

Section 404 of the Act required the

Department of Labor to issue regulations

to implement Title I and Title IV of

FMLA within 120 days of enactment, or

by June 5, 1993, with an effective date

of August 5, 1993. Title I of FMLA

became effective on August 5, 1993,

except where a collective bargaining

agreement (CBA) was in effect on that

date, in which case the provisions took

effect on the date the CBA terminated or

on February 5, 1994, whichever date

occurred earlier.

To obtain public input and assist in

the development of FMLA’s

implementing regulations, the

Department published a notice of

proposed rulemaking in the Federal

Register on March 10, 1993 (58 FR

13394), inviting comments until March

31, 1993, on a variety of questions and

issues. A total of 393 comments were

received in response to the notice—from

employers, trade and professional

associations, advocacy organizations,

labor unions, State and local

governments, law firms and employee

benefit firms, academic institutions,

financial institutions, medical

institutions, governments, Members of

Congress, and others.

After consideration of the comments

received, the Department issued an

interim final rule on June 4, 1993 (58 FR

31794), which went into effect on

August 5, 1993, and which invited

further public comment on FMLA’s

implementing rules until September 3,

1993. On August 30, 1993, the

Department further extended the public

comment period until December 3, 1993

(58 FR 45433). The Department received

more than 900 comments on the interim

final rules during the extended

comment period from advocacy groups

and associations, Members of Congress,

employers, union organizations,

governmental entities and associations,

law firms, management consultants,

marriage and family counselors and

therapists, clinical social workers,

property management companies,

temporary help and employee leasing

companies, professional and trade

associations, universities, and

individuals. In addition to the

substantive comments discussed below,

many commenters submitted minor

editorial suggestions, some of which

were adopted and some were not.

Finally, a number of other minor

editorial changes have been made to

better organize and simplify the

regulatory text.

On December 29, 1994, a meeting was

held at OMB with representatives of

Consolidated Edison Company of New

York pursuant to E.O. 12866.

The Department would like to point

out that it has prepared a lengthy

preamble to accompany these

regulations in an attempt to be fully

responsive to the numerous comments

received. The Department would

welcome additional comments

regarding employers’ experience with

the implementation of the FMLA over

the course of the next year or so. Such

comments will be reviewed together

with the results of the comprehensive

study on existing and proposed leave

policies to be conducted by the

Commission on Leave to determine

whether further revisions to these

regulations will be appropriate in the

future.
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2181

Summary of Major Comments

I. Subpart A, §§ 825.100–825.118

Covered Employers (§ 825.104)

Under FMLA, any employer engaged

in commerce or in an industry or

activity affecting commerce is covered if

50 or more employees are employed in

at least 20 or more calendar workweeks

in the current or preceding calendar

year. The Women’s Legal Defense Fund

and the Food & Allied Service Trades

expressed concern that employers may

manipulate workforce levels to avoid

the Act’s leave requirements. In this

connection, they suggested that any

intentional reduction to 49 or fewer

employees after an employee request for

FMLA leave should constitute unlawful

interference with FMLA rights, and, as

provided in regulations by the State of

Oregon under its Family Leave Act,

deemed a violation of the Act.

Section 825.220 discusses the

prohibited acts and anti-discrimination

provisions of the Act, including

violative employer practices that

attempt to interfere with an employee’s

exercise of rights under the Act. It is the

Department’s view that manipulation of

workforce levels by employers covered

by FMLA in an effort to deny

employees’ eligibility for leave is a

violation of the Act’s requirements, and

this has been clarified in § 825.220.

Two commenters (Alabama Power

Company and DLH Industries, Inc.)

objected to the statement in § 825.104

that individuals such as corporate

officers ‘‘acting in the interest of an

employer’’ are individually liable for

any violations of the Act. They contend

that this provision could frustrate

advancement to managerial positions

and unnecessarily increase costs for

insurance and bonding. The California

Department of Fair Employment and

Housing questioned whether managers

or supervisors can be held personally

liable under FMLA.

FMLA’s definition of ‘‘employer’’ is

the same as the Fair Labor Standards

Act (FLSA), 29 U.S.C. 203(d), insofar as

it includes any person who acts directly

or indirectly in the interest of an

employer to any of the employer’s

employees. Under established FLSA

case law, corporate officers, managers

and supervisors acting in the interest of

an employer can be held individually

liable for violations of the law. See, e.g.,

Reich v. Circle C Investments, Inc., 998

F.2d 324 (5th Cir. 1993); Dole v. Elliot

Travel & Tours, Inc., 942 F.2d 962 (6th

Cir. 1991).

The Chamber of Commerce of the

USA expressed concern about the

impact of the ‘‘employer’’ definition on

various business arrangements, e.g.,

leased employees, franchises, and other

loosely-related business operations. The

National Automobile Dealers

Association stated that additional

guidance on the application of the

‘‘integrated employer’’ test would

benefit the small business community in

particular.

The ‘‘integrated employer’’ test is not

a new concept created solely for

purposes of FMLA. It is based on

established case law, as was explained

in the preamble of the Interim Final

Rule, arising under Title VII of the Civil

Rights Act of 1964 and the Labor

Management Relations Act. As FMLA’s

legislative history states, the definition

of ‘‘employer’’ parallels Title VII’s

language defining a covered employer

and is intended to receive the same

interpretation. Under Title VII and other

employment-related legislation,

including the LMRA, when determining

whether to treat separate entities as a

single employer, individual

determinations are highly fact-specific

and are based on whether there is

common management, an interrelation

between operations, centralized control

of labor relations, and the degree of

common ownership/financial control.

They are not determined by any single

criterion, nor do all factors need to be

present; rather, the entire relationship is

viewed as a whole. Because it is a factspecific question in each case, further

detailed guidance cannot be provided in

the regulations.

The Society for Human Resource

Management questioned whether the

Act applied to employers in Puerto

Rico, or to such entities as the

Resolution Trust Corporation or to

Indian Tribes. FMLA’s coverage extends

to any State of the United States, the

District of Columbia, and to any

territory or possession of the United

States (§ 101(3) of FMLA defines the

term ‘‘State’’ to have the same meaning

as defined in § 3(c) of the Fair Labor

Standards Act). Employees of U.S. firms

stationed at worksites outside the

United States, its territories, or

possessions are not protected by FMLA,

nor are such employees counted for

purposes of determining employer

coverage or employee ‘‘eligibility’’ with

respect to worksites inside the United

States. This point has been clarified in

§ 825.105 of the regulations. The

Resolution Trust Corporation can be a

covered employer under Title I of FMLA

as a ‘‘successor in interest’’ of a covered

employer when it assumes control over

a failing thrift as part of the resolution

process. Because FMLA is a statute of

broad general applicability, which

applies to both the public and private

sectors, and there is nothing in either

the statute or its legislative history

which provides an exemption for Indian

tribes, it is the Department’s view that

Indian tribes may be covered by the

legislation where the statutory

prerequisites are met, as ‘‘a general

statute in terms applying to all persons

includes Indians and their property

interests.’’ FPC v. Tuscarora Indian

Nation, 362 U.S. 99, 116 (1960). The

rule in Tuscarora contains exceptions

for laws that (1) affect exclusive rights

of self-governance in purely intramural

matters; (2) abrogate rights guaranteed

in Indian treaties; or (3) provide proof

by legislative history or otherwise that

Congress intended the law not to apply

to Indians. It is the Department’s

position that these exceptions do not

apply to the FMLA, consistent with the

reasoning of the Ninth Circuit in

Donovan v. Coeur d’Alene Tribal Farm,

751 F.2d 1113, 1116 (1985). But see

EEOC v. Cherokee Nation, 871 F.2d 937

(1989), in which the Tenth Circuit held

that the Age Discrimination in

Employment Act does not apply to

Indians because its enforcement would

interfere with the tribe’s right of selfgovernment.

50 Employee/20 Workweek Threshold

(§ 825.105)

Private sector employers must employ

50 or more employees each working day

during 20 or more calendar weeks in the

current or preceding calendar year to be

covered by FMLA. Nine commenters

addressed the ‘‘50 or more employees’’

threshold test for coverage. The

Women’s Legal Defense Fund and the

International Ladies’ Garment Worker’s

Union objected to the exclusion of

workers on temporary layoff from the

count. They argued that temporary

workers with a reasonable expectation

of return to active employment are

counted as employees under the Worker

Adjustment and Retraining Notification

(WARN) Act; that the test for evaluating

who is an employee should be that of

a ‘‘continuing employment

relationship’’ and not the actual

performance of work during a given

time period; and that only employees on

an indefinite or long-term layoff should

be excluded from the count.

FMLA has significantly different

statutory coverage provisions and serves

considerably different objectives than

those of WARN. The FMLA regulations

attempt to define the size of an

employer’s workforce count for leave

purposes, and uses a ‘‘continuing

employment relationship’’ principle.

There is no continuing employeeemployer relationship during a layoff, as

evidenced by the fact that employees on
2182 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

layoff are entitled to unemployment

benefits, and laid-off employees are not

maintained on the payroll during such

periods. Furthermore, being on unpaid

leave is not the same as being laid off.

Moreover, under FMLA, if, while on

FMLA leave, an employee would have

been laid off, and the employment

relationship terminated, the employee’s

rights to continued leave and job

reinstatement would not extend beyond

the date the employee would have been

laid off. While the regulations do not

require actual performance of work

during a given time period for an

employee to be counted as having a

continuing employment relationship

(e.g., employees on employer-approved

leaves of absence are still included

where there is a reasonable expectation

of return to work), based on FMLA’s

legislative history, the regulations

necessarily exclude all employees who

are on layoff, and the employment

relationship terminated, whether the

layoff is temporary, indefinite or longterm.

Southern Electric International, Inc.

felt that the treatment of part-time

workers on the same basis as full-time

workers unnecessarily broadened

coverage because employer obligations

under the Act, particularly employers

with large numbers of part-time

workers, were based on counting noneligible employees. Southern Electric

argued that part-time workers should be

counted, if at all, only on a pro-rata

basis, i.e., two part-time workers

working 20 hours a week would equal

one equivalent full-time employee. The

United Paperworkers International

Union, on the other hand, supported

counting part-time workers as consistent

with the language of the Act and with

Title VII of the Civil Rights Act of 1964.

The union also felt that employers

should be required to notify employees

and their union representatives when

the conditions for coverage are no

longer met.

FMLA’s legislative history clearly

states Congressional intent to include

part-time employees when counting the

size of the employer’s workforce. The

committee reports state that part-time

employees and employees on leaves of

absence would be counted as

‘‘employed for each working day’’ so

long as they are on the payroll for each

day of the workweek. And, similarly, in

aggregating the number of employees at

the worksite and within 75 miles for

determining employee eligibility, the

legislative history states that all of the

employees of the employer, not just

eligible employees, are to be counted.

Accordingly, part-time employees must

be counted the same as full-time

employees under FMLA.

With respect to adding a requirement

that employers notify employees and

their representatives when they cease to

be covered by the Act, the Department

believes that such a requirement would

be overly burdensome. Questions of

employer coverage and employee

eligibility are fact-specific and may be

subject to frequent change in some

employment situations. They should be

resolved as necessary when an

employee requests leave.

Southern Electric International, Inc.

also noted that the phrase ‘‘reasonable

expectation that the employee will later

return to work’’ is confusing as it relates

to employees on long-term disability

because such employees rarely ever

return to work for the same employer.

The commenter recommended that

long-term disabled employees be

excluded from the 50-employee count.

The National Restaurant Association

also maintained that the ‘‘reasonable

expectation’’ requirement should be

deleted because it had no basis in the

Act or its legislative history, arguing

further that the term was surplusage in

that an employee is either on the payroll

or is not on the payroll.

An employee who is permanently

disabled from work would not

reasonably be expected to return to

work and, therefore, may be excluded

from the employee count. The

Department continues to believe,

however, that the employer’s workforce

count should be based on whether there

is a continuing employment

relationship between the employer and

each of its employees. A ‘‘reasonable

expectation’’ that an employee on leave

will later return to work is an

appropriate standard that contributes to

a better understanding of that

relationship for purposes of FMLA, and

it is retained in the regulations.

Additionally, two public commenters

(Association of Washington Cities and

the California Department of Fair

Employment and Housing) suggested

that the phrase ‘‘on the payroll’’ needed

clarification as applied to public

employers. They noted practices of local

governments to hire seasonal and

temporary employees, particularly in

public works and recreation, who may

or may not be rehired the following

summer or after completion of short

term projects; or to use volunteer

firefighters and volunteer police reserve

officers who receive only nominal

stipends for service. Because public

agencies are covered ‘‘employers’’ under

the Act regardless of the number of

employees employed (see § 825.108(a)),

these comments more appropriately

raise questions related to ‘‘employee

eligibility’’ and are addressed in the

discussion of §§ 825.110 and 825.111.

Joint Employment (§ 825.106)

Administaff, Abel Temps, National

Staff Leasing Association, National

Association of Temporary Services, and

National Staff Network argued that

temporary help and leasing agencies

should not be held responsible, as the

primary employer, for giving the

required FMLA notices, providing leave,

maintaining health benefits, and job

restoration. In particular, they stressed

the unique nature of their business and

the relationship with client employers,

who, rather than the temporary help or

leasing agency, have control over

worksites and jobs. They argue generally

that client employers, as secondary

employers, should be responsible for job

restoration and other requirements of

the Act for all their own employees,

including leased or temporary

employees. In the alternative, several of

these commenters urged adoption of a

‘‘head of the line’’ standard, which

would limit job restoration for

temporary or leased employees where

the client employer discontinues the

services of the temporary or leasing

agency or the services of the returning

temporary/leased employee, to priority

consideration by the temporary or

leasing agency for possible placement in

assignments with other client employers

for which the employee is qualified.

Several of these commenters also

proposed differing criteria for situations

where temporary or leasing agencies

contract with covered and non-covered

client employers.

The Department agrees that joint

employment relationships do present

special compliance concerns for

temporary help and leasing agencies in

that the ease with which they may be

able to meet their statutory obligations

under FMLA may depend largely on the

nature of the relationship they have

established with their client-employers.

Our analysis of the statute and its

legislative history in the context of the

industry comments submitted, however,

revealed no viable alternatives that

could be implemented by regulation

that would not also have the

unacceptable result of depriving eligible

employees of their statutory rights to job

reinstatement at the conclusion of

FMLA leave. As the legislative history

clearly states, the right to be restored

upon return from leave to the previous

position or to an equivalent position

with equivalent employment benefits,

pay and other terms and conditions of

employment is central to the

entitlement provided by FMLA.
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2183

Furthermore, it is the employment

agency which is responsible for the

employee’s pay and benefits, and is in

the best position to provide the rights

and benefits of the Act.

FMLA does not entitle a restored

employee to any right, benefit, or

position of employment other than any

right, benefit, or position which the

employee would have held or been

entitled to had the employee not taken

leave. This means, for example, that if,

but for being on leave, an employee

would have been laid off, the

employee’s right to reinstatement is

whatever it would have been had the

employee not been on leave when the

layoff occurred. Thus, if a client

employer of a temporary help agency

discontinued the services of the

temporary help agency altogether, or

discontinued contracting for the

particular services that were being

furnished by the temporary employee

who took FMLA leave, during the

employee’s FMLA leave period,

following a ‘‘head of the line’’ approach

for giving the returning employee

priority consideration for possible

placement in assignments with other

client employers for which the

employee is qualified would appear to

be entirely consistent with the intent of

the FMLA in those circumstances. As

provided in § 825.216, an employer

must show that an employee would not

otherwise have been employed in order

to deny restoration to employment in

the same or an equivalent position.

Failure to promptly restore a returning

employee to employment at the

conclusion of the leave where the client

employer continues to utilize the same

services as were previously furnished by

the employee who took leave would be

a violation of FMLA’s job restoration

requirements.

Two commenters (William M. Mercer,

Inc. and Chamber of Commerce of the

USA) noted that subsection (f) could be

construed as requiring the secondary or

client employer to restore the jobs of

temporary or leased employees, which

is disruptive to business and the

contractual relationship between

temporary or leasing agencies and the

client employers. They felt that job

restoration obligations should be the

responsibility of the temporary or

leasing agency (the primary employer).

The primary employer (temporary

placement firm or leasing agency) is

responsible for furnishing eligible

employees with all FMLA-required

notices, providing FMLA leave,

maintaining health benefits during

FMLA leave, and restoring employees to

employment upon return from leave. In

addition, although job restoration is the

responsibility of the primary employer,

the purposes of the Act would be

thwarted if the secondary employer is

able to prevent an employee from

returning to employment. Accordingly,

the regulations are revised to provide

that the secondary employer is

responsible for accepting an employee

returning from leave in place of any

replacement employee. Furthermore,

the secondary employer (client

employer) must observe FMLA’s

prohibitions in § 105(a)(1), including the

prohibition against interfering with,

restraining, or denying the exercise of or

attempt to exercise any rights provided

under the FMLA. It would be an

unlawful practice, in the Department’s

view, if a secondary employer interfered

with or attempted to restrain efforts by

the primary (temporary help) employer

to restore an employee who was

returning from FMLA leave to his or her

previous position of employment with

the secondary (client) employer (where

the primary (temporary help) employer

is still furnishing the same services to

the secondary (client) employer).

Because the secondary employer is

acting in the interest of the primary

employer within the meaning of

§ 101(4)(A)(ii)(I) of the Act, the

secondary employer has these

responsibilities, regardless of the

number of employees employed.

The National Association of

Plumbing-Heating-Cooling Contractors

noted a potential for misunderstandings

of the ‘‘joint employment’’ criteria and

the Chamber of Commerce of the USA,

for similar reasons, urged that DOL

reconsider the requirement in

subsection (d) that jointly-employed

employees are counted by both

employers in determining employer

coverage and employee eligibility. This

requirement, according to the Chamber,

was of particular concern to small

businesses. To minimize the risk of

unintentional violations of the Act, the

Chamber recommended against a

requirement to count employees jointly

for purposes of determining eligibility

status, and urged adoption of ‘‘good

faith’’ defense provisions for employers

confronted with joint employment

quandaries.

In joint employment relationships, an

individual employee’s eligibility to take

FMLA leave is determined from

counting the employees employed by

that employee’s primary employer (i.e.,

the one responsible for granting FMLA

leave), and would exclude any

‘‘permanent’’ employees ‘‘primarily

employed’’ by any secondary (joint)

employer of that same employee. Thus,

in practical effect, the employee is only

counted once for purposes of

determining his or her own individual

eligibility to take FMLA leave. In the

example of 15 employees from a

temporary help agency working with 40

‘‘permanent’’ employees employed by

an employer, the eligibility of any one

of the 15 temporary help agency

employees to take FMLA leave from

their primary employer (the temporary

help agency) is determined by counting

only the temporary help agency

employees assigned (outplaced) from or

working at the temporary help agency’s

‘‘single site of employment’’ (i.e., most

likely the main placement or corporate

office). Excluded from this count is any

‘‘permanent’’ employee of any of the

temporary help agency’s client

employers. On the other hand, the client

employer with 40 ‘‘permanent’’

employees is responsible for granting

FMLA leave to its ‘‘permanent’’

employees because it employs a total of

more than 50 employees when

including the jointly-employed

employees, but its obligation to grant

FMLA leave extends to only its 40

‘‘permanent’’ employees.

Notwithstanding the complexities that

arise in administering the law in joint

employment contexts, there is no

authority to adopt by regulation any

‘‘good faith’’ defense provisions that

would take away employees’ statutory

rights.

William M. Mercer, Inc. noted that the

requirement in subsection (d) relating to

counting jointly-employed employees

for coverage and eligibility purposes

‘‘whether or not maintained on a

payroll’’ differed from § 825.111(c),

which limits the employee count at a

worksite to employees maintained on

the payroll. The commenter urged

clarification of ‘‘joint employment’’

principles in the case of worksite

determinations and, also, in

determinations of whether or not 1,250

hours have been worked for eligibility

(§ 825.110(d)).

As noted above, § 825.106 provides

particularized guidance that addresses

the special circumstances of joint

employment. Because in most joint

employment situations there may be

only one payroll, maintained by only

the primary employer, the guidance in

§§ 825.105 and 825.111, standing alone,

would not be sufficient to address joint

employment. Section 825.106 is revised

to further clarify application, as the

employee is maintained on only one

payroll. In addition, in order to clarify

and prevent misunderstandings,

§ 825.111 is revised to add similar

guidance from § 825.106 on joint

employment ‘‘worksite’’ determinations

for purposes of determining employee

eligibility. With respect to counting the
2184 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

hours worked by jointly-employed

employees to determine if the 1,250

hour threshold is met, the calculation is

relevant only with respect to the

primary employer of the employee at

the time the employee requests FMLA

leave.

The discussion of employment

relationship in general has been

removed from this section of the

regulations and a more general

discussion has been included instead in

§ 825.105.

Successor in Interest (§ 825.107)

The Equal Employment Opportunity

Commission (EEOC) pointed out that

while the factors for determining

‘‘successor in interest’’ are based in part

on Title VII precedent, no reference is

made in this section to whether or not

the successor had ‘‘notice’’ of pending

complaints against a predecessor

employer. The EEOC recommended

clarifying how ‘‘notice’’ affects the

liability of a successor employer or a

statement explaining that the FMLA

rule departs from established Title VII

precedent in this respect.

As explained in the preamble to the

Interim Final Rule, the list of factors is

derived from Title VII and Vietnam Era

Veterans’ Readjustment Act of 1974 case

law. The Department agrees with the

court in Horton v. Georgia-Pacific Corp.,

114 Lab. Cas. (CCH) par. 12,060 (E.D.

Mich. 1990), that notice should not be

considered to continue the

predecessor’s obligation to employees

who are on leave, or for determining

coverage and eligibility of employees

continuing in employment. The

Department believes, however, that

notice may be relevant in determining a

successor employer’s liability for

violations of the predecessor, and the

rule is clarified accordingly.

The Chamber of Commerce of the

USA indicated a need to clarify how a

predecessor and successor employer can

allocate FMLA liability and

responsibility. In this connection, the

commenter recommended adoption of

criteria provided by 20 CFR § 639.4 of

the Worker Adjustment and Retraining

Notification Act regulations.

The WARN Act regulations, at

§ 639.4(c), discuss the effect of a sale of

a business between a seller and a buyer

and the continuing employer

obligations, under WARN, for giving

notice to employees of plans to carry out

a plant closing or mass layoff. While the

Department believes it is appropriate for

a seller of a business to inform a

potential buyer of any eligible

employees who are either to be out on

FMLA leave at the time the business is

sold (or have announced to the seller

plans to take FMLA leave soon after the

sale takes place), so that the buyer is

aware of its ‘‘successor in interest’’

obligations under FMLA to maintain

health benefits during the FMLA leave

periods and to restore the employees at

the conclusion of their FMLA leave,

there is no ‘‘allocation’’ of responsibility

under FMLA based on whether the

seller and buyer have exchanged such

information. The regulations are revised

to make clear that an eligible employee

of a covered predecessor employer who

commences FMLA leave before the

business is sold to a ‘‘successor in

interest’’ employer is entitled under

FMLA to be restored to employment by

the successor employer without

limitation.

The Employers Association of New

Jersey questioned whether a successor

employer had to meet coverage

requirements (§ 825.104) in order to be

considered a ‘‘successor in interest.’’

FMLA’s statutory definition of

‘‘employer’’ (§ 101(4)) includes ‘‘any

successor in interest of an employer,’’

which we interpret to include successor

employers that employ fewer than 50

employees after the succession of

interest. FMLA’s obligations in such

cases, however, are limited to

completing the cycle of any FMLA leave

requests initiated by employees of the

predecessor employer, where the

employees met the eligibility criteria at

the time the leave was requested.

The Contract Services Association of

America posed a series of questions

related to FMLA’s ‘‘successor in

interest’’ obligations as applied to

service contractors performing on

Federal service contracts covered by the

McNamara-O’Hara Service Contract Act

(SCA). In the example posed, Employer

A has lost a service contract (through

recompetition) to Employer B. Employer

B has been determined to be a

‘‘successor in interest.’’ In its bid

proposal, Employer B did not include

several positions which Employer A

employed on the predecessor contract.

One of the eliminated positions was

occupied by an employee of Employer

A who was on FMLA leave at the time

of the succession of the contract to

Employer B. The Association

questioned whether Employer A would

have to continue to maintain the

employee on FMLA leave and maintain

his or her group health benefits, or

whether the employee could be

terminated at the time of contract

turnover, treating it as a layoff and a

lack of work. Employer A would not

have to maintain this employee on

FMLA leave or maintain health benefits

if it can demonstrate that the employee

would not otherwise have been

employed as a result of the loss of the

contract. This could be demonstrated,

for example, if other, similarly situated

employees of Employer A did not

otherwise continue their employment

with Employer A on other contract work

or in some other capacity. Because

Employer B had no comparable position

in its bid proposal, Employer B would

not be obligated to hire this employee

either.

The Association also asked if an

employee on an SCA-covered contract

were on FMLA leave at the time of

contract transition to another contractor,

would a ‘‘successor in interest’’

contractor be required to hire the

employee under the job protection

provisions of FMLA? The answer is

‘‘yes’’, if the employee’s position

continues to exist under the successor

contract (as distinguished from the facts

in the previous example, above). The

successor contractor would not have a

right to ‘‘non-select’’ the employee in

this example at the end of the

employee’s FMLA leave. The outgoing

contractor would not be required to

maintain this employee’s group health

plan benefits for the remaining period of

FMLA leave extending beyond the

contract changeover, but the ‘‘successor

in interest’’ contractor would be

required to do so, and to restore the

employee to the same or an equivalent

position.

With respect to the remaining

questions posed by the Association, it

would be helpful for a predecessor

contractor to furnish a list to the

successor in interest of the predecessor’s

employees who are on FMLA leave

when contractors change, and a list of

benefits being provided (so they may be

maintained and/or restored at the same

levels). If lists are not furnished, the

successor in interest should attempt to

determine its obligations without

waiting for the employees on FMLA

leave to apply for employment with the

successor.

Public Agency (§ 825.108)

The State of Nevada personnel

department objected to the designation

of a State as a single employer,

suggesting that certain individual

‘‘public agencies’’ of a State should be

treated as separate employers based on

criteria set forth in an administrative

letter ruling issued by the Wage-Hour

Administrator on October 10, 1985.

Treating a State as a single employer

under FMLA is a result required by the

statute. FMLA defines the term

‘‘employer’’ to include any ‘‘public

agency’’ as defined in § 3(x) of the Fair

Labor Standards Act, which defines

‘‘public agency’’ to include the
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2185

government of a State or political

subdivision of a State, and any agency

of a State or a political subdivision of

a State. The 1985 letter ruling cited by

the commenter was issued before the

enactment of the 1985 FLSA

Amendments, under which the

Congress included specially-tailored

provisions for employees of public

agencies to address special situations

where they volunteer their services

under certain conditions, and perform

work in fire protection, law

enforcement, or related activities on

special details when hired for such

work by a ‘‘separate and independent

employer.’’ Special rules to address

FLSA’s particular statutory provisions

are found in 29 CFR Part 553;

§ 553.102(b) provides that the

determination of whether two agencies

of the same State government constitute

the same public agency can only be

made on a case-by-case basis, but one

factor supporting the conclusion that

they are separate is whether they are

treated separately for statistical

purposes in the Census of Governments

issued by the Bureau of the Census, U.S.

Department of Commerce. Section

825.108(c) of the FMLA rules similarly

provides for following the Census of

Governments publication in resolving

particular questions. FLSA’s special

rules for defining a public agency

employer for other unique purposes

mandated under FLSA are not

analogous to FMLA leave situations,

and we do not believe that any similar

special rules are required under FMLA.

The Office of Legislative Auditor,

State of Louisiana questioned the status

of an agency of a State’s legislative

branch under FMLA, where the agency

is not subject to the State’s civil service

regulations and is otherwise considered

not covered under the FLSA.

Section 101(3) of the FMLA defines

the term ‘‘employee’’ to have the same

meaning as defined in § 3(e) of the Fair

Labor Standards Act. Section 3(e)(2)(C)

of the FLSA excludes from this

definition of ‘‘employee’’ individuals

who are not subject to the civil service

laws of the State and who are employed

in the legislative branch of that State

(other than the legislative library). Thus,

employees excluded from the FLSA

statutory definition of ‘‘employee’’

would similarly be excluded from

coverage under the FMLA.

The Government Finance Officers

Association felt that a public employer,

as a single employer, should not be

required to notify all of its employees

about FMLA entitlements because many

employees may misunderstand that they

are not eligible for FMLA leave.

FMLA imposes a statutory obligation

on all covered employers to post the

notice to employees informing them of

FMLA’s provisions, regardless of

whether the employer has any ‘‘eligible’’

employees. Public agencies are covered

‘‘employers’’ without regard to the

number of employees employed. There

is no authorized exception that relieves

covered employers from this notice

requirement when they have no

‘‘eligible’’ employees. The DOL poster,

however, includes the employee

eligibility criteria and makes it apparent

that FMLA’s entitlement to leave

applies only to ‘‘eligible’’ employees.

The individualized, specific notice to

employees required to be furnished in

response to FMLA leave requests

applies only to FMLA-’’eligible’’

employees.

Section 825.108(b) states that the U.S.

Bureau of the Census’ Census of

Governments will be used to resolve

questions about whether a public entity

is distinguishable from another public

agency. In this regard, the Office of the

Treasurer, State of Ohio asked that more

information be provided on how the

census information can be accessed.

The Census Bureau takes a census of

governments at five-year intervals.

Volume 1, Government Organization,

contains the official count of the

number of State and local governments.

It includes tabulations of governments

by State, type of government, size, and

county location. Also produced is a

universe list of governmental units,

classified according to type of

government. Copies of Volume 1 and

subsequent volumes are available from

the Superintendent of Documents, U.S.

Government Printing Office,

Washington, D.C. 20402; District Offices

of the U.S. Department of Commerce;

and Regional and selective depository

libraries. For a list of all depository

libraries, write to the U.S. Government

Printing Office, 710 N. Capitol Street,

NW, Washington, D.C. 20402.

Federal Agency Coverage (§ 825.109)

The Farm Credit Administration, the

Chesapeake Farm Credit, and a number

of other farm credit system institutions

argued that system institutions should

not be listed in this section dealing with

Federal agencies, citing express

legislation that defederalized system

institution employees.

These commenters are correct. This

section of the regulations has been

revised to delete the former reference to

the Farm Credit Administration. These

employees will be treated in the same

manner as employees in the private

sector when determining employer

coverage and employee eligibility under

FMLA.

Section 825.109(b) further states that

employees of the Library of Congress are

covered by Title I provisions of FMLA,

rather than Title II which is

administered by the Office of Personnel

Management (OPM). A review of

applicable legislative authority indicates

that employees of the Library of

Congress should be covered by Title II

of FMLA within the jurisdiction of

OPM. The regulations have been revised

to delete the Library of Congress from

coverage under Title I.

12 Months and 1,250 Hours of Service

(§ 825.110)

To be eligible for FMLA leave, an

employee must have been employed for

at least 12 months with the employer,

and the 12 months need not be

consecutive. Several commenters stated

that determining past employment was

burdensome, too indefinite, and urged

various limitations on a 12-month

coverage test. The Burroughs Wellcome

Company suggested excluding any

employment experience prior to an

employee resignation or employerinitiated termination that occurred more

than two years before the current date

of reemployment. Another commenter,

the State of Kansas Department of

Administration, suggested limiting the

12 months of service to the period

immediately preceding the

commencement of leave. The ERISA

Industry Committee argued that the 12

months should be either consecutive

months, or 12 months of service as

computed under bridging rules

applicable to employer’s pension plans.

Many employers require prospective

employees to submit applications for

employment which disclose employees’

previous employment histories. Thus,

the information regarding previous

employment with an employer should

be readily available and may be

confirmed by the employer’s records if

a question arises. Further, there is no

basis under the statute or its legislative

history to adopt these suggestions.

A number of commenters urged

clarifications with respect to the

determination of 1,250 hours of service

during the 12-month period preceding

the commencement of leave. The Equal

Rights Advocates argued that any FMLA

leave taken in the previous 12 months

should be included in the calculation of

the requisite 1,250 hours of work. The

State of New York Metropolitan

Transportation Authority stated that it

was not clear whether time paid but not

worked (i.e., vacation and personal

days) should be counted and urged

limiting the determination to only
2186 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

actual hours worked. The Edison

Electric Institute made the same

observation but noted that the standard

in § 825.105 for determining coverage—

50-employee test—is based on

employees appearing on the employer’s

payroll. In addition to vacation time, the

Society for Human Resource

Management asked whether overtime

hours worked are to be included in the

calculation. The Air Line Pilots

Association also urged inclusion of all

compensated hours (vacation, holiday,

illness, incapacity, lay-off, jury duty,

military duty, official company

business, leave of absence or official

union business) in determining the

1,250 hours of service. Finally, the

Tennessee Association of Business

requested clarification of the status of

employees who are temporarily laid off

for 2 or 3 weeks because of a plant

shutdown.

The eligibility criteria are set forth in

§ 101(2) of FMLA as a statutory

definition of ‘‘eligible employee.’’ One

component of the definition

(§ 101(2)(C)) states that for purposes of

determining whether an employee

meets the hours of service requirement,

the legal standards established under § 7

of the FLSA shall apply. The legislative

history explains that the minimum

hours of service requirement is meant to

be construed in a manner consistent

with the legal principles established for

determining hours of work for payment

of overtime compensation under § 7 of

the FLSA and regulations under that act,

citing specifically 29 CFR Part 785

(Hours Worked [Under the FLSA]) and

referencing 29 CFR 778.103 (which in

turn states that the principles for

determining what hours are hours

worked within the meaning of the FLSA

are discussed in 29 CFR Part 785).

‘‘Hours worked’’ does not include time

paid but not ‘‘worked’’ (paid vacation,

personal or sick leave, holidays), nor

does it include unpaid leave (of any

kind) or periods of layoff. Whether the

hours are compensated or

uncompensated is not determinative for

purposes of FMLA’s 1,250-hours-ofservice test. The determining factor in

all cases is whether the time constitutes

hours of work under FLSA. Because

overtime hours worked are ‘‘hours

worked’’ within the meaning of FLSA,

they are included.

The National Restaurant Association

noted that the determination of the

1,250 hour/12 months test must be

made as of the date leave commences;

whereas the 50 employee within 75

miles test is to be determined when the

employee requests FMLA leave. The

Association argued that the same date

should be used for determining all

eligibility requirements. The USA

Chamber of Commerce argued that

§ 825.110(d) as written forces an

employer to avoid providing an

ineligible employee with an estimated

date of eligibility, a potential benefit for

both employee and employer, because

the employer that makes such an

estimate is precluded from later

challenging the employee’s eligibility.

This, according to the Chamber, ignores

the very real possibility that an

employee may reach the projected date

and still not be eligible.

As explained in the preamble of the

Interim Final Rule, the purpose and

structure of FMLA’s notice provisions

intentionally encourage as much

advance notice of an employee’s need

for leave as possible, to enable both the

employer to plan for the absence and

the employee to make necessary

arrangements for the leave. Both parties

are served by making this determination

when the employee requests leave.

Tying the worksite employee-count to

the date leave commences as suggested

could create the anomalous result of

both the employee and employer

planning for the leave, only to have it

denied at the last moment before it

starts if fewer than 50 employees are

employed within 75 miles of the

worksite at that time. This would

entirely defeat the notice and planning

aspects that are so integral and

indispensable to the FMLA leave

process. Accordingly, no changes have

been made in response to the comments

received from the National Restaurant

Association and the Chamber of

Commerce of the USA.

Several commenters (Nationsbank

Corporation and South Coast Air

Quality Management District) indicated

that the terms ‘‘employee’’ and ‘‘eligible

employee’’ required clarification

regarding independent contractors,

contract employees, and consultants.

The Dow Chemical Company suggested

that students working in co-op programs

approved by their schools should not be

deemed an employee eligible for FMLA

benefits.

FMLA’s definitions of ‘‘employ’’ and

‘‘employee’’ are ‘‘borrowed’’ from the

FLSA. If a particular arrangement in fact

constitutes an employee-employer

relationship within the meaning of the

FLSA (and case law thereunder) as

contemplated by the statutory

definitions, and the ‘‘employee’’

satisfies FMLA’s eligibility criteria, the

employee is entitled to FMLA’s benefits.

A true independent contractor

relationship within the meaning of the

FLSA would not constitute an

employee-employer relationship. Thus,

an independent consultant operating his

or her own business ordinarily would

not be considered an ‘‘employee’’ of the

business that hires the consultant’s

services. Employees hired for a

specified term to perform services under

contract (‘‘contract employees’’) would

ordinarily be subject to FMLA if they

otherwise meet FMLA’s 12 months and

1,250-hours-of-service (with the

‘‘employer’’) eligibility criteria. It has

been our experience that such persons

rarely qualify as independent

contractors under the FLSA, and,

therefore, they would rarely qualify as

independent contractors under FMLA.

There would be no authority under the

statute to exclude students working in

co-op programs approved by their

schools if the arrangement otherwise

meets the criteria for an employeeemployer relationship. Many such

students, however, may not be

‘‘eligible’’ under FMLA if they have not

worked for the employer for at least 12

months and for at least 1,250 hours.

With respect to the 1,250 hours of

service test, the California Rural Legal

Assistance, Inc. expressed concern

about situations where employers fail to

keep required records of hours worked,

and urged a reference to the ‘‘Mt.

Clemens Pottery rule’’ as being

applicable to such situations.

This comment refers to the U.S.

Supreme Court’s decision in Anderson

v. Mt. Clemens Pottery Co., 328 U.S. 680

(1946), which provided a lighter burden

of proof for employees where employers

failed to maintain required records. The

regulations already provide that

eligibility is presumed for FLSA-exempt

employees who have worked at least 12

months. The regulations have been

revised in this section to provide the

same presumption where FMLAcovered employers with 50 or more

employees fail to keep records required

for purposes of establishing employee

eligibility for FMLA leave.

The American Federation of Teachers

and the National Education Association

expressed concern that employers may

intentionally reduce or otherwise

manipulate an employee’s hours to

avoid FMLA eligibility, and urged that

such conduct be treated as a violation of

the Act. This matter will be addressed

in § 825.220(b) (the ‘‘prohibited acts’’

section of the regulations) by providing

that FMLA-covered employers that

intentionally limit or manipulate

employees’ work schedules to foreclose

their eligibility for FMLA leave will be

held in violation of the provisions of

FMLA and these regulations which

prohibit interfering with employees’

exercise of rights.

The Air Line Pilots Association

(ALPA) requested clarification of the
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2187

discussion in the preamble about

determining 1,250 hours of service,

specifically the statement that on-call

time includes ‘‘* * * hours of service

where it meets the FLSA hours-worked

requirements (29 CFR Part 785.17), as

would ground time for flight crews.’’

According to the ALPA, the term

‘‘ground time’’ requires clarification as

applied in the airline industry, which

typically distinguishes between ‘‘flight’’

time (time an airplane is actually in the

air from take-off to landing), ‘‘duty’’

time (hours a pilot is on duty beginning

with checkin for departure until

returning to the domicile) and ‘‘reserve’’

time (designated on-call period when

pilot must be available to be reached by

phone, and must be able to report to the

airport within one to three hours’

notice). Pilots typically receive different

rates of pay for the reserve time, the

flight time and an hourly per-diem for

all duty time. The commenter argues

that all hours credited for such pay

should be credited for hours of service.

Crediting the time attributable to all

such pay would exceed the number of

actual hours worked within the meaning

of the FLSA and thus be contrary to

FMLA’s provisions on crediting hours of

service based on FLSA ‘‘hours worked’’

principles. Hours of service would

normally include all ‘‘duty’’ time.

‘‘Reserve’’ time would not be included

unless employees have further

restrictions on their time so that they

would be unable to use the time for

their own purposes.

The International Brotherhood of

Teamsters argued that the 1,250 hours of

service test as currently defined

effectively precludes coverage of airline

crew members under FMLA. While

§ 825.110(c) applies FLSA principles for

determining hours of service, the

commenter notes that section 13(b) of

the FLSA excludes any employee of a

carrier by air subject to the provisions

of Title II of the Railway Labor Act from

the Act’s provisions in section 207.

According to the commenter, airline

crew members’ work schedules and pay

formulas are predicated on ‘‘flight

hours,’’—generally amounting to onethird of the hours of employees covered

by the FLSA—and flight crew members

are prohibited by regulation from

exceeding 1,000 flight hours in a 12-

month period. The commenter contends

that it is improper to compare flight

crew ‘‘hours of service’’ with the ‘‘hours

of service’’ performed by FLSA-covered

employees and that airline crew

members should be specifically

exempted from the minimum hours of

service requirement.

Section 13(b) of the FLSA provides

exemptions from FLSA’s requirement to

pay overtime compensation in certain

cases; they are not exemptions from the

rules on what constitutes ‘‘hours

worked’’ within the meaning of the

FLSA. The fact that a particular class of

employee is exempt from overtime

under FLSA § 13(b) has no impact on

the applicability of FLSA’s ‘‘hours

worked’’ rules under 101(2)(C) of the

FMLA. Because the eligibility criteria

are statutory, DOL lacks the authority to

exempt airline crew members from the

minimum hours of service criteria. As

pointed out above, however, other

‘‘duty’’ time would normally be hours of

service, in addition to the flight time.

50 Employees within 75 Miles

(§ 825.111)

One of the tests for employee

eligibility for FMLA leave requires that

there be 50 employees employed by the

employer within 75 miles of the

worksite. This section described how

‘‘worksite’’ is construed and how to

measure the 75 miles under this test.

The Equal Rights Advocates

questioned measuring the 75 mile

requirement by road miles and

advocated a broader interpretation such

as actual mileage between two

employment facilities. The Medical

Group Management Association stated

that measuring a radius around a single

point using road miles was very difficult

and suggested a standard of traveling

‘‘75 miles in any direction using public

surface transportation.’’

The regulations have been clarified by

deleting the reference to ‘‘radius,’’ a

term not found in the statute. The 75-

mile distance will be measured by

surface miles using available

transportation by the most direct route

between worksites.

The Institute of Real Estate

Management and 29 other associated

real estate management companies

complained that the 75-mile rule for

determining employee eligibility creates

unique hardships for most property

management companies and could

cause serious economic harm in the

absence of industry-specific

modifications.

The National Association of

Temporary Services was also concerned

over the impact of the 50-employee/75-

mile eligibility test on temporary help

offices, noting that most temporary help

offices operate with very small office

staffs but on any given day may have a

significant number of temporary

employees assigned to customer

worksites. Because temporaries assigned

to customers within 75 miles of the

office are included in the eligibility

determination, staff employees of two or

three person offices become eligible for

FMLA leave, which, according to the

commenter, works a hardship on small

temporary help offices. The commenter

urged an exception which would permit

such offices to exclude from the

eligibility test those temporary

employees assigned out of any

particular office—temporaries would

still be eligible if secondary employers

have a total of 50 employees within 75

miles of their worksite. In support of

this position, the commenter points to a

colloquy between Congressman Derrick

and Congressman Ford on H.R. 1 (Cong.

Rec. 139, H396–7 (Feb. 3, 1993)) in

which Congressman Ford indicated that

the matter of temporary help offices

with small staffs would be an

appropriate subject for rulemaking and

his hope that implementing regulations

would address such situations taking

into account the broad purpose of the

Act to provide protection to as many

employees as possible and, at the same

time, the legitimate concerns of small

businesses.

Employees employed by a temporary

help office have, as their ‘‘single site of

employment’’ worksite under FMLA,

the site from which their work is

assigned (i.e., the temporary help

office). Thus, all temporary employees

assigned from the temporary help office,

regardless of whether the customers’

worksites are within 75 miles of the

temporary help office, are included in

the employee count for the temporary

help office in determining if staff

employees are eligible for FMLA leave.

This provision, in our judgment, is

required by the express intention of the

Congress in the committee reports that

the WARN Act regulations be used to

determine ‘‘worksite.’’ We believe that

the implementing regulations accurately

reflect, consistent with the express

confines of the statute itself, the

Congress’ broad purpose to provide

FMLA’s protection to as many

employees as possible while, at the

same time, considering the legitimate

concerns of small businesses.

Section 825.111(d) provides that

eligibility determinations are to be made

by employers when the employee

requests the leave; once eligibility has

been established in response to the

request, subsequent changes in the

number of employees employed at or

within 75 miles of the employee’s

worksite will not affect the employee’s

eligibility or leave once commenced.

These provisions attracted considerable

comment.

The California Rural Legal Assistance,

Inc. argued that using the date the

employee requests leave as the ‘‘trigger’’

date will deprive eligibility to many

seasonal employees, especially if they
2188 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

give the requisite 30-days notice,

because the 50-employee threshold may

not be reached until the peak

employment season. The commenter

urges an alternate test for seasonal and

other employers whose workforce varies

greatly during the year, in particular

that the test should allow a

determination of eligibility at the time

of the request if the employer can be

expected to have at least 50 employees

during any period in which FMLA leave

is to be taken. This commenter would

also apply such a test for teachers

because many teachers are not actually

under contract until just before or even

after the school year has begun. In the

alternative, the commenter suggested a

position that an employee should be

considered on the payroll as long as he

or she is on an involuntary layoff with

a reasonable expectation of returning to

work within a reasonable period of time.

The Women’s Legal Defense Fund, the

Service Employees International Union,

and the United Paperworkers

International Union also expressed

concern about determining eligibility

from an employee count on a single day,

i.e., date of request, stating that such a

test is arbitrary and subject to wide

variation due to workforce fluctuations.

They urged adoption of the counting

method in the Act for determining

employer coverage on the grounds that

it is the only counting method

statutorily based and is consistent with

the legislative history. Thus, under this

position, an employee would be eligible

for FMLA leave if the employer has

employed 50 or more employees within

75 miles of the employee’s worksite for

each working day during each of 20 or

more calendar workweeks in the current

or preceding calendar year.

A number of commenters stated that

the ‘‘date of request’’ as a trigger date

would be burdensome for employers in

cyclical industries. Several commenters

(California Department of Fair

Employment and Housing and the

Greater Cincinnati Chamber of

Commerce) endorsed the option

discussed in the preamble to the interim

final rule: ‘‘* * * where notice is given

30 or more days prior to the

commencement of leave, the count

would be made on the 30th day

preceding the start of leave, or, at the

employer’s option, as of the date leave

is requested; where 30 days notice is not

given, the count would be made at the

time notice is given or the date leave

begins, whichever is earlier.’’ The

Society of Human Resource

Management supported a trigger date of

‘‘30 days prior to the onset of leave.’’ To

accommodate the particular needs of

seasonal employers under the ‘‘date of

request’’ trigger date, Southern Electric

International, Inc. suggested that

employers be permitted to cancel or

reduce requested leave if the employee

count falls below some reasonable

number, i.e., 40, by the time the leave

is to be taken. The National Restaurant

Association argued that the same date

should be used for determining all

eligibility requirements and the law firm

of Sommer & Barnard also

recommended a uniform eligibility

criteria determination date, endorsing

the ‘‘date of commencement of leave.’’

The United Paperworkers International

Union also endorsed uniformity in the

methods of counting eligible employees

and covered employers.

The USA Chamber of Commerce

noted that under § 825.111(d) eligibility

is a continuing, day-to-day

determination, even during FMLA

leave, and that an employee who is

initially ineligible can subsequently

become eligible. The commenter argues

that the rationale should be consistent:

if an ineligible employee can become

eligible, then an eligible employee

should be able to subsequently become

ineligible and, thus, not be entitled to

continue FMLA leave.

The Department has given careful

consideration to all of the comments

submitted in connection with the rule

for determining employee eligibility

based on the number of employees

maintained on the payroll as of the date

that an employee requests leave. We see

no justifiable basis for altering our

earlier policy decisions as reflected in

the Interim Final Rule. In our view,

none of the recommendations suggest a

course that would be entirely consistent

with the literal language of the FMLA,

its remedial purpose, or the expressions

of Congressional intent contained in the

legislative history. Congress directly

addressed the treatment to be accorded

seasonal, temporary and part-time

employees by establishing statutory

employer coverage and employee

eligibility criteria. The Act exempts

smaller and certain seasonal businesses

by limiting coverage to employers with

50 or more employees in 20 or more

calendar weeks of the year. It does not

cover part-time or seasonal employees

working less than 1,250 hours a year. To

be eligible for leave, an employee must

have worked for the employer for at

least 12 months and for at least 1,250

hours during the 12-month period

preceding the commencement of the

leave. The employer must also employ

at least 50 employees within 75 miles of

the employee’s worksite. Given

Congress’ specific treatment of these

issues in the legislation, DOL lacks

authority to write special rules for

determining employee eligibility for

seasonal workers in ways that depart

from the statutory standards adopted in

the legislation.

As explained in the preamble of the

Interim Final Rule (and as noted above),

the purpose and structure of FMLA’s

notice provisions intentionally

encourage as much advance notice of an

employee’s need for leave as possible, to

enable both the employer to plan for the

absence and the employee to make

necessary arrangements for the leave.

Both parties are served by making this

determination when the employee

requests leave. But, at the same time,

both parties need to be able to rely on

the commitments they are making.

Tying the worksite employee-count to

the date leave commences as suggested

could result in both the employee and

the employer planning for the leave,

only to have it denied at the last

moment before it starts if fewer than 50

employees are employed within 75

miles of the worksite at that time. This

would entirely defeat the notice and

planning aspects that are an integral

part of the FMLA leave process. The

same would be true if employers were

permitted to cancel or reduce requested

leave if the employee count fell below

some arbitrary number (e.g., 40) at the

time leave was being taken. As

explained in the preamble to the Interim

Final Rule, use of both a fixed date and

the same date for determining employer

coverage were previously considered

and rejected as being inconsistent with

the literal language of the Act and the

legislative history, which both use the

present tense in describing ‘‘eligible’’

employees (i.e., employee is eligible if

employed at least 12 months by the

employer ‘‘* * * with respect to whom

leave is requested * * *’’; but excludes

any employee ‘‘* * * at a worksite at

which such employer employs less than

50 employees if the total * * * [within

75 miles] is less than 50.’’).

Accordingly, while clarifications are

included to more carefully explain the

applicable principles, no significant

changes are included in this section to

alter the policy on the timing of

determining employee eligibility.

The term ‘‘worksite’’ also generated

considerable comment. The Los Angeles

County Metropolitan Transportation

Authority and Society for Human

Resource Management stated that

additional guidance was needed to

determine eligibility, particularly with

respect to salespersons who work out of

their homes. The International

Organization of Masters, Mates & Pilots

stated that the applicable ‘‘worksite’’ in

the case of maritime employment

should be defined as the home office of
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2189

the employer from which the job

assignment originates, and the United

Paperworkers International Union stated

that, in the case of workers without a

fixed worksite, the reference point

should be those employees defined in

the bargaining unit by any applicable

collective bargaining agreement. For

employees who typically have no fixed

worksite, the USA Chamber of

Commerce urged a provision that makes

clear that an employee has only one

worksite for purposes of making

eligibility and coverage determinations.

In the case of pilots and flight crew

members, the Air Line Pilots

Association, Association of Professional

Flight Attendants and Independent

Federation of Flight Attendants contend

that the characterization of a home base

as an employee’s worksite would be

inappropriate in the airline industry

because the actual ‘‘worksite’’ ranges

across a particular carrier’s entire route

system due to the availability and

flexibility of the large number of

employees employed in such job

categories. They argue that employees at

worksites with less than 50 employees

within 75 miles should be eligible for

FMLA leave if the employer (airline)

employs more than 50 employees at all

of its worksites and such employer can

replace the employee on leave with

another current employee through an

employer-wide seniority system in the

affected job classification.

Many of the comments reflect a

misunderstanding of the ‘‘worksite’’

concept under the FMLA regulations.

FMLA’s legislative history explains that

when determining if 50 employees are

employed by the employer within 75

miles of the worksite of the employee

intending to take leave, the term

‘‘worksite’’ is intended to be construed

in the same manner as the term ‘‘single

site of employment’’ under the WARN

Act regulations (20 CFR Part 639). The

legislative history further states that

where employees have no fixed

worksite, as is the case for many

construction workers, transportation

workers, and salespersons, such

employees’ ‘‘worksite’’ should be

construed to mean 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. The regulations included these

concepts.

Accordingly, salespersons who work

out of their homes have as their single

site of employment the site ‘‘from which

their work is assigned or to which they

report’’ (for example, the corporate or

regional office). Their homes are not

their ‘‘single site of employment’’ in any

case. Tracking the number of employees

in a collective bargaining unit, or

defining the worksite for flight crew

members as a carrier’s entire route

system, would deviate significantly

from the legislative history’s discussion

of the applicable principles and cannot

be adopted as suggested in the

comments. (Members of flight crews

thus have as their ‘‘worksite’’ the ‘‘site

to which they are assigned as their

home base, from which their work is

assigned, or to which they report.’’)

One commenter, Employers

Association of New Jersey, indicated

that more guidance was needed on what

employees are to be counted. The

commenter asked whether only eligible

employees as defined in § 825.110 are

counted, or are temporarily inactive

employees counted, such as those on

leave of absence, strike, etc. As noted

above, the employee count must include

all employees of the employer who are

‘‘maintained on the payroll,’’ including

part-time, full-time, eligible and noneligible employees. It must also include

employees on paid or unpaid leaves of

absence. Employees who have been laid

off (whether temporary, indefinite, or

long-term) are not included. (See the

discussion of related issues under

§ 825.105.) In effect, the test of whether

an individual is counted as an

‘‘employee’’ depends upon whether

there is a continuing employment

relationship, and being ‘‘maintained on

the payroll’’ is used as a proxy for

establishing the continuing nature of the

relationship.

Leave Entitlement (§ 825.112)

Section 825.112 sets forth the basic

statutory circumstances for which

employers must grant FMLA leave. A

number of commenters addressed these

circumstances with suggestions,

recommendations, or requests for

clarifications. For example, Lancaster

Laboratories suggested that an employer

should not be required to approve

prenatal care visits if such appointments

could be scheduled outside of normal

working hours. United Federal Credit

Union felt that employers should be

able to place a cap on how many

employees may be on FMLA leave at

any one time, with discretion linked to

business needs. Another commenter

indicated that FMLA leave should be

allowed for a sister or brother living

with the employee. The Society for

Human Resource Management asked

whether the terms ‘‘placement * * * for

adoption’’ covered the situation where a

child was placed in a new home for

adoption and time was needed for

bonding between the new parent and

the child. The Society also asked if a

pregnant employee were well enough to

return to work after six weeks, but had

requested 12 weeks, could the employer

require the employee to return to work

after six weeks. Oregon Bureau of Labor

and Industries observed that

§ 825.112(d) states there is no age limit

on a child being adopted or placed for

foster care, but § 825.113(c) defines ‘‘son

or daughter’’ to be a person under the

age 18, or 18 or older and incapable of

self-care, and questioned whether

FMLA leave was available for adoption

of a child age 18 or older who is capable

of self-care. The Equal Employment

Advisory Council argued, with respect

to an employee who marries and

requests FMLA leave to be with new

stepchildren, that such leave should be

explicitly prohibited unless the

employee formally adopts the

stepchildren.

California Department of Fair

Employment and Housing and the law

firm of Fisher and Phillips urged

§ 825.112 be expanded to incorporate

provisions stated elsewhere in the

regulations. Specifically, they argued

that the definition of ‘‘son or daughter’’

in § 825.113 as it relates to the

availability of FMLA leave to an

employee who stands in loco parentis to

a child should be added to

§ 825.112(a)(1), and that § 825.112(d)

should be amended to reference the

limitation in § 825.203 on the use of

intermittent leave for purposes of birth,

adoption or placement of a foster child

that such leave is available only if the

employer agrees. Sommer & Barnard

noted that while an employee may be

eligible for FMLA leave before ‘‘the

actual date of birth’’ or ‘‘actual

placement,’’ there is no provision in the

regulations that would permit an

employer to require verification that

leave requested for such purposes is for

a statutory purpose.

With respect to scheduling prenatal

care doctor’s visits, the Act and

regulations require that in any case

where the need for leave is foreseeable

based on planned medical care, the

employee shall make a bona fide,

reasonable effort to schedule the leave

in a manner that does not unduly

disrupt the employer’s operations

(subject to the approval of the

employee’s (or family member’s) health

care provider). However, it would be

contrary to the statute for an employer

to place any cap on the number of

employees who could be eligible for

FMLA leave at any one time, or for the

regulations to require employers to grant

the same type of leave entitlement for a

sister or brother living with the

employee as FMLA provides for a

spouse (although employers could adopt

more generous leave policies than the
2190 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

minimums established by FMLA). With

respect to leave for the birth of a child,

the statute entitles an employee to

FMLA leave for a period of up to 12

weeks for the birth and care of a child.

Under the circumstances described by

the Society for Human Resource

Management, the employee may not be

required to return to work after six

weeks if the employee desires 12 weeks

of FMLA leave for the birth of her child.

In response to the question on

whether FMLA’s leave entitlement for

placement for adoption includes

‘‘bonding’’ time between the parent and

child, we note from the legislative

history’s discussion of the need for

family and medical leave legislation

that:

Adoptive parents also face difficulties

in the absence of a reasonable family

leave policy. Most adoption agencies

require the presence of a parent in the

home—some for as long as four

months—when a child is placed with

the family to allow them adequate time

for proper bonding. * * *

The legislative history’s discussion of

the leave provisions themselves

provides:

Section 102(a)(2) requires that leave

provided under § 102(a)(1) (A) or (B) to

care for a newborn child or a child

newly placed with the employee for

adoption or foster care be taken before

the end of the first 12 months following

the date of the birth or placement. * * *

Clearly, the intent of FMLA’s leave

entitlement in the case of leave for

placement of a child with the employee

for adoption or foster care includes

‘‘bonding’’ time with the newly-placed

child, during the 12 months following

the date of placement.

In response to the commenter who

questioned whether FMLA leave is

available for adoption of a child age 18

or older who is capable of self-care,

upon reexamination of the statutory

definitions and leave entitlement

provisions of the Act, we have

concluded that the availability of leave

for adoption of a child age 18 or older

is limited to those who are incapable of

self-care because of a mental or physical

disability, consistent with the statutory

definition of ‘‘son or daughter’’ in

§ 101(12) of the FMLA. The regulations

have been revised to delete the

statement that there is no maximum age

limit for a child placed for adoption or

foster care. Regarding the employee who

marries and requests FMLA leave to be

with new stepchildren, FMLA leave

would only be available if the employee

in that case formally adopted the

stepchildren, as the commenter pointed

out. However, if one of the children

subsequently has a serious health

condition, the stepparent would be

entitled to FMLA leave to care for the

child.

Many comments suggesting

clarification or reiteration of provisions

contained elsewhere in the regulations

are being adopted. The regulations are

also being revised at § 825.113 to permit

an employer to request that employees

provide reasonable documentation that

verifies the legitimacy of an FMLA leave

request, i.e., that requested leave is for

a qualifying statutory purpose.

Reasonable documentation of a

qualifying reason for FMLA leave can

take the form of a simple signed

statement by the employee. The

employer’s policies in this area should

be communicated in advance to

employees and be applied uniformly,

and employees must be given a

reasonable opportunity to respond.

Section 825.112(e) provides that

‘‘State’’ action must be involved in

foster care placement to qualify for

FMLA leave. The Community Legal

Services, Inc. and Women’s Legal

Defense Fund stated that the ‘‘State’’

involvement requirement was not

supported by the statute, legislative

history, or sound public policy, and

argued that the statutory definition of a

‘‘son or daughter,’’ which includes a

‘‘child of a person standing in loco

parentis,’’ implies that FMLA leave

should be available whenever an

employee takes primary responsibility

for the care of a child with the intention

of adopting or otherwise having day-today caretaking responsibility for that

child. Thus, for example, parents of

addicts who assume responsibility as

primary caretakers for the addicts’

children is a form of ‘‘foster’’ care in

which FMLA leave should be available

to such parents.

Section 102(a)(1)(B) of FMLA entitles

an eligible employee to take FMLA

leave ‘‘[b]ecause of the placement of a

son or daughter with the employee for

adoption or foster care’’ (emphasis

added). Thus, the entitlement to leave

under this section of the Act relates only

to the actual placement with the eligible

employee of an adopted or foster child.

The act of providing ‘‘foster care,’’ in

and of itself, is not a qualifying reason

for taking FMLA leave under the statute.

On the other hand, in the example of

parents of addicts who assume the

primary, day-to-day responsibilities to

care for and financially support the

addicts’ children, the in loco parentis

relationship thus established could

entitle the in loco parentis parents to

take FMLA leave under a different

section of the FMLA, § 102(a)(1)(C), if

the in loco parentis parent was needed

to care for the ‘‘child’’ (of the person

standing in loco parentis) for a serious

health condition (subject to the Act’s

medical certification provisions).

FMLA’s legislative history fully

supports this view:

The terms ‘‘parent’’ and ‘‘son or

daughter’’ * * * reflect the reality that

many children in the United States

today do not live in traditional

‘‘nuclear’’ families with their biological

father and mother. Increasingly, those

who find themselves in need of

workplace accommodation of their child

care responsibilities are not the

biological parent of the children they

care for, but their adoptive, step, or

foster parents, their guardians, or

sometimes simply their grandparents or

other relatives or adults. This legislation

deals with such families by tying the

availability of ‘‘parental’’ leave to the

birth, adoption, or serious health

condition of a ‘‘son or daughter’’ and

then defining the term ‘‘son or

daughter’’ to mean ‘‘a biological,

adopted, or foster child, a stepchild, a

legal ward, or a child of a person

standing in loco parentis * * *.’’ * * *

Definition of Spouse, Parent, Son or

Daughter (§ 825.113)

FMLA entitles an eligible employee to

take leave ‘‘in order to care for the

spouse, or a son, daughter, or parent, of

the employee, if such spouse, son,

daughter, or parent has a serious health

condition’’ (emphasis added). Section

825.113(a) defines the term ‘‘spouse’’ to

mean a husband or wife as defined or

recognized under State law for purposes

of marriage, including common law

marriage in States where it is

recognized. A considerable number of

comments urged that this definition be

broadened to include domestic partners

in committed relationships including

same-sex relationships, or, in the

alternative, to include all unions

recognized by State or local law. The

Society for Human Resource

Management questioned whether an

employer located in one State which

does not recognize common law

marriages would be required to grant

FMLA leave to its employees with

common law spouses who reside in

another State that recognizes common

law marriages. William M. Mercer, Inc.

also recommended clarification of

which State law would be controlling

when the employee works in a different

State.

FMLA defines the term ‘‘spouse’’ to

mean ‘‘a husband or wife, as the case

may be.’’ In discussing this definition

during Senate consideration of the

legislation, Senator Nickles noted:
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2191

* * * This is the same definition that

appears in Title 10 of the United States Code

(10 U.S.C. 101).

Under this amendment, an employer

would be required to give an eligible female

employee unpaid leave to care for her

husband and an eligible male employee

unpaid leave to care for his wife. No

employer would be required to grant an

eligible employee unpaid leave to care for an

unmarried domestic partner.

This simple definition will spare us a great

deal of costly and unnecessary litigation.

Without this amendment, the bill would

invite lawsuits by workers who

unsuccessfully seek leave on the basis of

their unmarried adult companions. (Cong.

Rec. (S 1347), Feb. 4, 1993.)

Accordingly, given this legislative

history, the recommendations that the

definition of ‘‘spouse’’ be broadened

cannot be adopted. The definition is

clarified, however, to reference the State

‘‘in which the employee resides’’ as

being controlling for purposes of an

employee qualifying to take FMLA leave

to care for the employee’s ‘‘spouse’’

with a serious health condition.

Section 825.113(b) of the regulations

defined ‘‘parent,’’ as provided in

§ 101(7) of the FMLA, to mean a

biological parent or an individual who

stands or stood in loco parentis to an

employee when the employee was a

child. The regulatory definition noted

that the term did not include a parent

‘‘in-law.’’ Several commenters (City of

Alexandria, Virginia; Fairfax Area

Commission on Aging; Northern

Virginia Aging Network; the Brooklyn

and Green Mountain Chapters of the

Older Women’s League; Sisters of

Charity of Nazareth; Retail, Wholesale

and Department Store Union; and

University of Vermont) viewed the

regulatory definition as too restrictive,

recommending in some instances that

the term ‘‘parent’’ be broadened to

specifically include parents ‘‘in-law.’’

(An additional 107 cards or letters were

received from individuals endorsing

this view.)

Standard rules of statutory

construction require that we interpret

the availability of FMLA leave for a

‘‘parent’’ in a manner consistent with

FMLA’s definition of ‘‘parent,’’ which is

limited to the employee’s biological

parent or an individual who stood in

loco parentis to the employee when the

employee was a child, and does not

extend to a parent ‘‘in-law.’’ Moreover,

the leave entitlement under

§ 102(a)(1)(C) of FMLA is expressly

limited to ‘‘* * * care for the * * *

parent, of the employee, if such * * *

parent has a serious health condition.’’

Thus, each eligible spouse may take

qualifying FMLA leave to care for his or

her own biological (or in loco parentis)

‘‘parent’’ who has a serious health

condition, but the leave entitlement

cannot be extended by regulation to

parents ‘‘in-law.’’

FMLA § 101(12) defines ‘‘son or

daughter’’ in part as one who is under

age 18, or age 18 or older and

‘‘incapable of self-care because of a

mental or physical disability.’’ The

Older Women’s League, in commenting

on the ‘‘incapable of self-care’’

provisions defined in § 825.113(c)(1),

was concerned that requiring that an

individual need active assistance or

supervision to provide daily self-care in

‘‘several’’ of the ‘‘activities of daily

living’’ would be interpreted to mean

three or more, absent clarification,

which they believe would unduly

restrict eligibility for FMLA leave. The

Consortium for Citizens With

Disabilities, the Epilepsy Foundation of

America, and the United Cerebral Palsy

Association recommended that the

definition of ‘‘incapable of self-care’’ be

supplemented with additional criteria

which more accurately reflect the needs

of all people with disabilities,

suggesting that ‘‘instrumental activities

of daily living’’ or IADL’s (activities

necessary to remain independent)

should be added to address the needs of

people with mental and cognitive

impairments.

In response to the comments received

on this section, ‘‘incapable of self-care’’

is defined in the final rule to include,

in addition to the ‘‘activities of daily

living,’’ the ‘‘instrumental activities of

daily living,’’ as recommended. We

interpret ‘‘several’’ to mean more than

two but fewer than many, i.e., three or

more (see Webster’s; Black’s Law).

The Equal Employment Opportunity

Commission (EEOC), in commenting on

‘‘physical or mental disability’’ in

§ 825.113(c)(2), noted that the DOL rule

cited, as a cross-reference, EEOC’s entire

regulatory part under the Americans

with Disabilities Act (ADA), 29 CFR

1630, for defining ‘‘physical or mental

disability.’’ Because the current illegal

use of drugs is not a disability within

the meaning of the ADA, EEOC

expressed concern that the broader

cross-reference to the entire regulatory

part could create confusion over

whether an adult child currently

engaging in the illegal use of drugs

would be ‘‘disabled’’ for purposes of a

parent qualifying to take FMLA leave.

EEOC suggested that DOL be more

specific in citing to the pertinent ADA

regulations to foreclose the argument

that ‘‘physical’’ or ‘‘mental’’ disability in

this context would not include the

current illegal use of drugs. We have

adopted EEOC’s suggestion in the final

rule. An eligible employee’s son or

daughter who illegally uses drugs may

be disabled for purposes of an eligible

parent (employee) taking FMLA leave.

The University of Michigan includes

in-laws, domestic partners, and other

relatives within a broader definition of

‘‘family’’ for purposes of its family leave

policies. The University suggested that

the regulations enable employers that

have extended their family leave

policies to such ‘‘non-traditional’’

families to count as part of an

employee’s FMLA leave entitlement

leave that is taken to care for such

broader definitions of ‘‘family.’’ This

issue is addressed in § 825.700 of the

regulations, which discusses the effect

of employer policies that provide greater

benefits than those required by FMLA.

We interpret the statute as prohibiting

an employer from counting as a part of

an employee’s FMLA leave entitlement

leave granted for a reason that does not

qualify under FMLA.

The law firm of Orr and Reno, and the

Chicagoland Chamber of Commerce, et

al., urged that in addition to medical

certifications presently required, the

regulations should include provision for

requests relating to child care because it

is not always obvious that the leave is

justified, particularly with respect to a

father or in foster care situations.

Although leave to provide ‘‘child

care’’ would not ordinarily qualify as

FMLA leave if the child is not a

newborn (in the first year after the birth)

and is otherwise healthy, FMLA leave is

‘‘justified’’ (and may not be denied by

the employer) if it is taken for one of

FMLA’s qualifying reasons, including

where a father wants to stay home with

a healthy newborn child in the first year

after the birth, or needs to be home to

care for a child with a serious health

condition, or for placement with the

employee of a child for foster care. The

regulations have been amended in

§ 825.113(d) to permit employers to

require reasonable documentation from

the employee for confirmation of family

relationships.

Definition of ‘‘Serious Health

Condition’’ (§ 825.114)

Section 101(11) of FMLA defines

‘‘serious health condition’’ to mean

* * * an illness, injury, impairment,

or physical or mental condition that

involves—

(A) inpatient care in a hospital,

hospice, or residential medical care

facility; or

(B) continuing treatment by a health

care provider.

This scant statutory definition is

further clarified by the legislative

history. The congressional reports did

indicate that the term was not intended
2192 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

to cover short-term conditions for which

treatment and recovery are very brief, as

Congress expected that such conditions

would be covered by even the most

modest of employer sick leave policies.

While the meaning of inpatient care is

evident (i.e., an overnight stay in the

hospital, etc.), the concept of

‘‘continuing treatment’’ presents more

difficult issues. Under the Interim Final

Rule, ‘‘continuing treatment’’ required

two or more visits to a health care

provider or a single visit followed by a

prescribed regimen of treatment, or a

serious, incurable condition which

existed over a prolonged period of time

under the continuing supervision of a

health care provider. When deciding

upon the regulatory guidance for the

definition in the Interim Final Rule, the

Department relied heavily upon

definitions and concepts from the Office

of Workers’ Compensation Programs.

For example, under many State workers’

compensation laws and the Federal

Employees’ Compensation Act (FECA),

a three-day waiting period is applied

before compensation is paid to an

employee for a temporary disability. A

similar provision was included in the

FMLA rules; a period of incapacity of

‘‘more than three days’’ was used as a

‘‘bright line’’ test based on the

references in the legislative history to

serious health conditions lasting ‘‘more

than a few days.’’

Eighty-eight comments were received

on the regulatory definition of ‘‘serious

health condition.’’ Many commenters

objected to the language in

§ 825.114(a)(3), which provided that a

period of incapacity of more than three

calendar days was an indicator of a

serious health condition, and

§ 825.114(b)(2), which defined

continuing treatment as including one

visit to a health care provider which

results in a regimen of continuing

treatment under the supervision of the

health care provider, e.g., a course of

medication or therapy to resolve the

health condition. Some contended that

the ‘‘more than three days’’ test

encouraged employees to remain absent

from work longer than necessary for the

absence to qualify as FMLA leave, or

that the duration of the absence was not

a valid indicator of serious health

conditions that are very brief (e.g., a

severe asthma attack that is disabling

but requires fewer than three days for

treatment and recovery to permit the

employee’s return to work). Some

commenters felt the three-day rule was

unreasonably low and trivialized the

concept of seriousness, suggesting it

more appropriately defined a ‘‘health

condition’’ rather than a ‘‘serious health

condition.’’

Nine commenters (9 to 5, National

Association of Working Women;

Federally Employed Women; Women’s

Legal Defense Fund; Federal Express;

Linda Garcia; Kerryn M. Laumer;

Epilepsy Foundation of America;

International Ladies’ Garment Workers’

Union; Service Employees International

Union) stated that the three-day rule

was contrary to the statute and

legislative history. The Women’s Legal

Defense Fund and the Epilepsy

Foundation of America pointed out that

the House Education and Labor

Committee specifically rejected a

minimum durational limit during a

markup of the bill. These commenters,

together with the Consortium for

Citizens with Disabilities, National

Community Mental HealthCare Council,

and United Cerebral Palsy Associations,

contended that seriousness and duration

do not necessarily correlate, particularly

for people with disabilities; that a fixed

time limit fails to recognize that some

illnesses and conditions are episodic or

acute emergencies which may require

only brief but essential health care to

prevent aggravation into a longer term

illness or injury, and thus do not easily

fit into a specified linear time

requirement; and that establishing

arbitrary time lines in the definition

only creates ambiguity and

discriminates against those conditions

that do not fit the average. The Women’s

Legal Defense Fund made the

observation from the legislative history

that Congress intended the severity and

normal length of disabling conditions to

be used as ‘‘general tests,’’ not brightline rules, and suggested that if a

condition is sufficiently severe or

threatening, duration is irrelevant.

The 9 to 5, National Association of

Working Women, Los Angeles County

Metropolitan Transportation Authority,

Baptist Health Care, St. Vincent Medical

Center, Chamber of Commerce of the

USA, Chicagoland Chamber of

Commerce, and Service Employees

International Union, contended that a

three-day absence requirement will

inevitably result in employees with

minor short-term afflictions

unnecessarily extending their absences

just to qualify for FMLA leave.

Fifteen commenters suggested

extending the three-day absence

requirement to a longer period, such as

5, 6, 7, or 10 days (Care Providers of

Minnesota, Cincinnati Gas & Electric

Company, Chicagoland Chamber of

Commerce, Nevada Power Company,

Federal Express, Chevron, PARC,

Consolidated Edison Company of New

York, Inc., Village of Schaumburg

(Illinois) Human Resources, Food

Marketing Institute, Society for Human

Resource Management, Southwestern

Bell Corporation, New York State

Metropolitan Transportation Authority),

two weeks (United HealthCare

Corporation), or 31 days (the American

Apparel Manufacturers Association,

Inc., suggested that the definition

should reflect the initial study by the

U.S. General Accounting Office that

estimated FMLA’s cost impact, noting

further that the three-day rule is

significantly more lenient than the ‘‘31

days or more of bed rest required to

remedy the condition’’ used by GAO).

The Ohio Public Employer Relations

Association strongly objected to the

three-calendar-day rule on the grounds

that a single workday absence on Friday

followed by a weekend would qualify

(or a Monday absence following a

weekend). The law firm of Sommer and

Barnard stated that it was not clear from

the regulations or comments in the

preamble whether the three days are

consecutive or non-consecutive

calendar days of work. The Chamber of

Commerce of the USA questioned

whether the rule, as drafted, could be

construed as requiring three cumulative

days in a calendar year as opposed to

three consecutive calendar days.

Several additional commenters urged

that the period be measured by business

or working days in lieu of calendar

days, while still others distinguished

‘‘consecutive’’ calendar days of absence

from ‘‘consecutive’’ work days of

absence as alternative suggestions (i.e.,

more than five consecutive work days or

seven consecutive calendar days). The

Hospital Council of Western

Pennsylvania argued that the standard

should be one of incapacity requiring

absence from work for more than three

‘‘consecutively scheduled workdays,’’ as

a workday standard is compatible with

other sick leave and short-term

disability programs and removes any

doubt as to whether an employee was

otherwise incapacitated and unable to

work during days the employee was not

scheduled to work. Chicagoland

Chamber of Commerce commented that,

with respect to an employee’s own

serious health condition, the qualifying

standard pertains to work days and not

calendar days, and yet the regulatory

language would allow one to argue that

an inability to carry out regular daily

activities over the weekend counts

toward the qualifying period. The

Burroughs Wellcome Company

emphasized that the committee reports

clearly state that an employee must be

absent from work for the required

number of days and that absence from

‘‘school or other regular daily activities’’
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2193

relates only to a child’s, spouse’s, or

parent’s serious health condition.

The Chamber of Commerce of the

USA and the National Association of

Manufacturers recommended that DOL’s

definition of serious health condition

adopt each State’s waiting period for

qualifying for workers’ compensation

benefits, noting that many States use as

much as seven work days. As an

alternative, the Chamber of Commerce

and Consumers Power Company

(Michigan) suggested that the ADA’s

definition of ‘‘disability’’ could be

used—a mental or physical impairment

that substantially limits a major life

activity. EEOC, which enforces the

ADA, has advised that ADA ‘‘disability’’

and FMLA ‘‘serious health condition’’

are different, and that they should be

analyzed separately.

Massmutual noted that while the one

incentive in FMLA to limit employee

abuse of FMLA leave was the

stipulation that leave is unpaid, some

companies (like Massmutual) provide

fully paid sick leave for short-term

absences. Thus, for companies with

similar programs, there is no incentive

for employees not to abuse sick leave

because they would always be paid and

could not be disciplined for the abuse

due to FMLA’s employment protections.

Massmutual recommended that the

definition of serious health condition be

limited to a period of incapacity

requiring an absence of at least five

working days or to those days when an

employee is scheduled for actual

treatment and/or recovery from a

treatment.

The Burroughs Wellcome Company

observed that the definition does not

refer at all to the types of health

conditions involved, as does the

legislative history, but instead focuses

only on what the committee reports call

the ‘‘general test’’ of incapacity for more

than a few days and continuing medical

treatment or supervision. Thus, the

understanding of the test that Congress

provided by listing examples of

conditions that meet the test is lost. The

Equal Employment Advisory Council

recommended that the regulations

include as serious health conditions all

the conditions enumerated in the

legislative history and, for those not

enumerated, apply the general test.

Federal Express similarly argued that a

fixed number of consecutive absences

and visits to a health care provider do

not accurately reflect Congressional

intent, as colds and flu could be

included as ‘‘serious health conditions.’’

Federal Express recommended the

definition focus on the seriousness of

the illness rather than on an arbitrary

time period, and that the health

conditions listed in the legislative

history be used in conjunction with the

general test in the legislative history for

determining whether an illness

constitutes a serious health condition.

Chicagoland Chamber of Commerce

presented similar views, arguing that it

is contrary to obvious legislative intent

(and grossly over-inclusive) for the

regulation to focus on the extent to

which medical consultation is sought

rather than on the degree of

incapacitation.

Several employers and law firms

contended in their comments that the

definition was too broad and

inconsistent with the purpose of the

Act, in that a common cold (or any

particular illness) which incapacitates

an employee for more than three days

and involves two visits to a health care

provider could be considered within the

definition of ‘‘serious health condition.’’

Giant Food Inc., Kennedy Memorial

Hospitals, and LaMotte Company

recommended clarifications to exclude

from the definition minor, short-term,

remedial or self-limiting conditions, and

normal childhood or adult diseases (e.g.,

colds, flu, ear infections, strep throat,

bronchitis, upper respiratory infections,

sinusitis, rhinitis, allergies, muscle

strain, measles, even broken bones).

Southwestern Bell Corporation likewise

requested that the regulations

distinguish routine illness (measles,

chicken pox, common ear infections)

from serious health conditions by

providing a sample list of health

conditions which are not considered

serious unless complications arise.

Fisher and Phillips stated that predelivery maternity leave should not be

available where the pregnancy does not

render the employee unable to perform

the functions of the job. Nevada Power

Company recommended excluding:

Routine preventive physical

examinations; illnesses and injuries

which require less than six visits to a

health care provider; conditions relating

to transvestism, transsexualism,

pedophilia, exhibitionism, voyeurism,

gender disorders, or other sexual

behavior disorders, kleptomania,

pyromania or substance abuse disorders

resulting from illegal use of drugs; other

conditions which are neither lifethreatening nor prolonged.

A number of commenters (City of

Alexandria (Virginia), Fairfax Area

Commission on Aging, Federally

Employed Women, Northern Virginia

Aging Network, the Brooklyn and Green

Mountain Chapters of the Older

Women’s League, and Sisters of Charity

of Nazareth) stated that the definition

was too restrictive and recommended

that it be expanded to specifically

include chronic illnesses and long-term

conditions which may not require

inpatient care or treatment by a health

care provider. The University of

Vermont suggested that illnesses

requiring respite care also be included.

The LaMotte Company asked whether it

would matter if an absence for a chronic

illness (such as asthma) occurs

infrequently—e.g., would the absences

have to be consecutive days or could

they be one day this week and one the

next, or one every month?

Blue Cross and Blue Shield of Texas,

Inc., posed the issue as a quandary faced

by employees and employers over the

lack of definitive guidelines as follows:

Is there a liability in covering less

serious illnesses (such as chicken pox or

a broken leg) as FMLA leave? If the

employer does count time toward the

12-week entitlement, can the decision

be challenged if, later in the year, a

more severe condition arises and the

employee has less than sufficient

entitlement remaining?

Five commenters (Older Women’s

League, Women’s Legal Defense Fund,

Consortium for Citizens with

Disabilities, Epilepsy Foundation of

America, and United Cerebral Palsy

Associations) took issue with the

provisions in the definition which

characterized ‘‘continuing treatment’’

for a chronic or long-term condition that

is ‘‘incurable.’’ These commenters

contended that curability is not a proper

test for either a serious health condition

or for continuing treatment, is

ambiguous and subject to change over

time, and should be deleted, noting that

many incurable disabilities require

continuing treatment that has nothing to

do with curing the condition. Some

pointed out that conditions such as

epilepsy, traumatic brain injury, and

cerebral palsy are typically conditions

which are not ‘‘curable’’ in the generally

accepted sense, but are conditions for

which training and therapy can help

restore, maintain or develop function or

prevent deterioration, and noted that

people with disabilities have struggled

for a generation or more to overcome the

image that disabilities are, or should be

viewed as, curable or incurable. United

Cerebral Palsy Associations noted that

cerebral palsy is a term used to describe

a group of chronic conditions affecting

body movement and muscle

coordination that are neither progressive

nor communicable; that it is not a

disease and should never be referred to

as such, although training and therapy

and assistive technology may help to

restore, maintain or increase function.

Several commenters raised additional

concerns on various aspects of the

‘‘continuing treatment’’ definition. The
2194 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Equal Rights Advocates suggested that

continuing treatment include situations

where a serious health condition exists

that, if left unattended, would result in

a hospital stay of more than three days.

Burroughs Wellcome stated that

because the committee reports make it

clear that ‘‘continuing treatment’’

involves absences from work, the

regulation misses the mark by including

one visit to a physician plus medication.

Sommer and Barnard was concerned

that the discussion on continuing

treatment lacked clarity due to the lack

of a clearly defined time frame for

multiple treatments; further, that a

typical employer could not determine

from the information in the medical

certification whether a condition is ‘‘so

serious that, if not treated, it would

likely result in a period of incapacity of

more than three calendar days.’’ This

application does not call for a medical

judgment and the ‘‘likely’’ standard

cannot possibly be administered.

Sommer and Barnard also stated the

regulations lack a meaningful definition

of what constitutes a regimen of

continuing treatment—would it include

bed rest, home exercise, or instructions

to use a non-prescription drug or

medication? Sesco Management

Consultants suggested the definition

invalidly broadens the concept of

continuing treatment by allowing

‘‘following courses of medication and

therapy’’ to qualify, which could thus

include taking aspirin for a few days

while staying home, getting bed rest and

stretching limbs, drinking liquids, etc.,

which, this commenter contends, the

Congress did not remotely suggest

would qualify under FMLA.

Chicagoland Chamber of Commerce

also considered the ‘‘continuing

supervision’’ concept too vague,

questioning whether ‘‘supervision’’

required the individual to actually be

examined by the health care provider or

to report in on some regular basis, or

whether instructions to report in if the

condition changes were sufficient. It

considered treatment a definitive

concept which could be proven,

whereas ‘‘supervision’’ could not which

would invite abuse and litigation.

The Food Marketing Institute

commented that the Act defines a

serious health condition to require

continuing treatment by a health care

provider, which necessarily means at

least two visits to the health care

provider. Conditions which result in

self-treatment (e.g., taking medication)

‘‘under the supervision of’’ a doctor are

typically not serious health conditions

as contemplated by the FMLA,

according to this commenter. Similarly,

the Society for Human Resource

Management recommended that

‘‘continuing treatment’’ be redefined so

that taking medications does not count

the same as an office visit.

The Ohio Public Employer Labor

Relations Association noted that while

stress may contribute to illness in some

persons, it is not an illness or a medical

condition. The commenter

recommended that treatment for stress

without a commonly accepted and

recognized medical diagnosis should

not be included in the definition of a

serious health condition.

Ten commenters raised various

concerns regarding the availability of

FMLA leave for treatment for substance

abuse. The Epilepsy Foundation of

America stated that substance abuse

programs and mental health services

must be included in the definition of

serious health condition. William M.

Mercer, Inc., suggested that the

preamble discussion from the Interim

Final Rule on treatment for substance

abuse should be set forth in the rule

itself. Consolidated Edison Company of

New York, Inc. commented that

employees should be allowed FMLA

leave for substance abuse treatment only

if they are not current users of illegal

drugs, consistent with the approach

followed under the ADA’s protections.

Consumers Power Company (Michigan)

also recommended excluding absences

for an employee’s illegal use of drugs,

and limiting FMLA leaves to inpatient

substance abuse treatment programs

with durations of no less than 14, or

preferably, 28 days. Nationsbank

Corporation (Troutman Sanders)

suggested the regulations specifically

state: (1) FMLA does not prohibit

discipline for an employee’s drug use in

violation of the employer’s policy; (2) an

employee may not use FMLA to avoid

potential discipline or drug testing; and

(3) an employee returning from FMLA

leave for substance abuse may be drug

tested as a condition of return to work

and following return to work, pursuant

to an employer’s post-treatment drug

policy. Nevada Power Company

suggested that an employer should not

have to offer more than one leave of

absence for drug or alcohol

rehabilitation; and that employers

which expend funds to reform

substance abusers should be allowed to

terminate employees if they begin to

abuse drugs or alcohol again. Edison

Electric Institute also suggested

employers should only have to provide

professional rehabilitative service and

support to drug abusers one time.

The American Trucking Association,

in contrast, advocated eliminating

substance abuse from the definition of

serious health condition, because

protection of substance abusers

jeopardizes efforts by the trucking

industry and the U.S. Department of

Transportation to eradicate substance

abusers from the nation’s highways.

Federal Highway Administration

regulations require trucking companies

to conduct substance abuse testing, but

do not permit a motor carrier to test a

driver who voluntarily admits to abuse

because such an admission, without

more, fails to trigger the duty to test

under any of the five categories, in

essence enabling the employee to ‘‘beat

the system’’ by triggering FMLA rights

before a drug test could be conducted.

It was unclear to the Association under

FMLA whether such an admission

would preclude a motor carrier’s ability

to test a driver scheduled for a random

drug test. The Association

recommended changing the regulations

to either totally exclude substance abuse

from the definition of serious health

condition, or exclude those persons who

are subject to FHWA drug testing

requirements from FMLA protections

insofar as those protections include

treatment for substance abuse. This

commenter would also support an

exclusion limited to those persons in

the transportation industry subject to

federal drug testing requirements, and

also suggested the regulations make

clear that persons currently engaged in

illegal use of drugs have no FMLA

protections, consistent with the

provisions of the ADA.

The Chamber of Commerce of the

USA recommended clarifications to

provide that current illegal use of drugs

during treatment for illegal drug use, or

resumption of the illegal use of drugs

following completion of treatment,

removes such treatment from the

category of ‘‘serious health condition’’

under FMLA, and that an employee who

fails a drug test would be subject to the

employer’s normal disciplinary

procedures and would not be protected

by FMLA.

Louisiana Health Care Alliance

(Phelps Dunbar) suggested that

clarification be provided to ensure that

employers have the continued right to

enforce legitimate policies for drug- and

alcohol-free workplaces, by explicitly

stating in the regulations that nothing in

FMLA prohibits an employer from

terminating or otherwise disciplining an

employee pursuant to a legitimate drug

testing program.

The Department has carefully

reviewed the comments and reexamined the legislative history and the

definition of ‘‘serious health condition’’

in an attempt to assure that it is

consistent with Congressional intent,

and that FMLA leave is available in
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2195

those situations where it is really

needed. As a result of this review, the

regulation has been significantly recrafted, as discussed below.

As summarized above, comments

were submitted opposing any duration

limit, and equally strong comments

suggested the standard was much too

short. Upon review, the Department has

concluded that the ‘‘more than three

days’’ test continues to be appropriate.

The legislative history specifically

provides that conditions lasting only a

few days were not intended to be

included as serious health conditions,

because such conditions are normally

covered by employers’ sick leave plans.

The Department has also concluded that

it is not appropriate to change the

standard to working days rather than

calendar days because the severity of

the illness is better captured by its

duration rather than the length of time

necessary to be absent from work.

Furthermore, a working days standard

would be difficult to apply to serious

health conditions of family members or

to part-time workers. (It is noted that

throughout the regulations, where a

number of days is prescribed, calendar

days is intended unless the regulation

explicitly states business days.) The

regulation has been revised, however, to

make it clear that the absence must be

a period of incapacity of more than

three consecutive calendar days.

‘‘Incapacity,’’ for purposes of this

definition, means inability to work,

attend school or perform other regular

daily activities due to the serious health

condition, treatment therefor, or

recovery therefrom. Any subsequent

treatment or incapacity relating to the

same condition would also be included.

The regulation also retains the

concept that continuing treatment

includes either two visits to a health

care provider (or to a provider of health

care services on referral of a health care

provider) or one visit followed by a

regimen of continuing treatment under

supervision of the health care provider.

Regimen of continuing treatment is

clarified in paragraph (b) of this section

to make it clear that the taking of overthe-counter medications, bed-rest,

drinking fluids, exercises, 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. Prescription

drugs or therapy requiring special

equipment, for example, would be

included. It is envisioned that a patient

would be under continuing supervision

in this context, for example, where the

patient is advised to call if the condition

is not improved.

The Department concurs with the

comments that suggested that special

recognition should be given to chronic

conditions. The Department recognizes

that certain conditions, such as asthma

and diabetes, continue over an extended

period of time (i.e., from several months

to several years), often without affecting

day-to-day ability to work or perform

other activities but may cause episodic

periods of incapacity of less than three

days. Although persons with such

underlying conditions generally visit a

health care provider periodically, when

subject to a flare-up or other

incapacitating episode, staying home

and self-treatment are often more

effective than visiting the health care

provider (e.g., the asthma-sufferer who

is advised to stay home and inside due

to the pollen count being too high). The

definition has, therefore, been revised to

include such conditions as serious

health conditions, even if the individual

episodes of incapacity are not of more

than three days duration. Pregnancy is

similar to a chronic condition in that the

patient is periodically visiting a health

care provider for prenatal care, but may

be subject to episodes of severe morning

sickness, for example, which may not

require an absence from work of more

than three days. It is clear from FMLA’s

legislative history that pregnancy was

intended to be treated as a serious

health condition entitling an individual

to leave under the Act, and the

definition therefore includes any period

of incapacity due to pregnancy, or for

prenatal care.

The Department has also included a

definition to deal with serious health

conditions which are not ordinarily

incapacitating (at least at the current

state of the patient’s condition), but for

which treatments are being given

because the condition would likely

result in a period of incapacity of more

than three consecutive calendar days in

the absence of medical intervention or

treatment. The regulation requires

multiple treatments, and includes as

examples patients receiving

chemotherapy or radiation for cancer,

dialysis for kidney disease, or physical

therapy for severe arthritis. Multiple

treatments for restorative surgery after

an accident or other injury is also

specifically included. The previous

requirement that the condition be

chronic or long-term has been deleted

because cancer treatments, for example,

might not meet that test if immediate

intervention occurs.

The portion of the definition dealing

with long-term, chronic conditions such

as Alzheimer’s or a severe stroke has

been modified to delete the reference to

the condition being incurable, and to

require instead that the condition

involve a period of incapacity which is

permanent or long-term and for which

treatment may not be effective.

Therefore, in this situation, as under the

interim final rule, it is only necessary

that the patient be under the

supervision of a health care provider,

rather than receiving active treatment.

The Department did not consider it

appropriate to include in the regulation

the ‘‘laundry list’’ of serious health

conditions listed in the legislative

history because their inclusion may lead

employers to recognize only conditions

on the list or to second-guess whether

a condition is equally ‘‘serious’’, rather

than apply the regulatory standard.

However, the regulation does provide,

as examples, that, unless complications

arise, the common cold, the flu,

earaches, upset stomach, minor ulcers,

headaches other than migraine, routine

dental or orthodontia problems, and

periodontal disease are not ordinarily

serious health conditions. In addition,

the regulation specifically states that

routine physicals, eye examinations and

dental examinations are not considered

treatment, although examinations to

determine if a serious health condition

exists and evaluations of the condition

are considered treatment.

The regulation has also been revised

in paragraph (c) to delete the reference

to ‘‘voluntary’’ treatments for which

treatment is not medically necessary,

and restrict the exclusion to cosmetic

treatments (unless inpatient care is

required or complications develop). The

term ‘‘voluntary’’ was considered

inappropriate because all treatments

and surgery are voluntary. Furthermore,

the Department did not wish to

encourage employers to second-guess a

health care provider’s judgment that a

treatment is advisable (e.g., orthoscopic

knee surgery on an out-patient basis) by

questioning whether it is ‘‘necessary’’.

The regulation continues to recognize

that substance abuse may be a serious

health condition if the criteria of the

regulation are met. However, the

regulation is revised to make it clear

that an absence because of the

employee’s use of the substance, rather

than for treatment, is not protected. See

also § 825.112(g) of the regulations,

which has been revised to make it clear

that an employer may take disciplinary

action against an employee pursuant to

a uniformly applied policy regarding

substance abuse, provided the action is

not being taken because the employee

has exercised his or her right to take

FMLA leave.

In response to the question by Blue

Cross and Blue Shield of Texas

regarding liability in covering less
2196 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

serious illnesses, the regulatory

procedures in § 825.208 prescribe the

method for an employer to designate

FMLA leave. Under this procedure, an

employee has an opportunity to counter

an employer’s designation of leave and

resolve the dispute. See § 825.208(b).

As suggested, the reference in the

interim final rule to stress as a possible

serious health condition has been

revised to mental illness resulting from

stress.

Unable To Perform the Functions of the

Position (§ 825.115)

An eligible employee may take FMLA

leave due to a ‘‘serious health

condition’’ that makes the employee

‘‘unable to perform the functions’’ of the

employee’s position. Section 825.115 of

the Interim Final Rule states that an

employee is ‘‘unable to perform the

functions of the position’’ where the

health care provider has found the

employee either unable to work at all,

or unable to perform any of the essential

functions of the position within the

meaning of the ADA and its

implementing regulations (29 CFR Part

1630). For employers that request

employees to furnish medical

certification from the employee’s health

care provider to support the leave

request, the regulations provide the

employer the option of furnishing a

statement (list) of the employee’s

essential functions for the health care

provider to review when certifying to

the employee’s condition.

The Women’s Legal Defense Fund,

California Department of Fair

Employment and Housing, and

Consumers Power Company, Michigan

commented that this section was

unclear as to whether an employee must

be found unable to perform each and

every essential function (i.e., all), or

only any single one, or some of several

of the essential functions. Several

commenters (Alabama Power Company

(Balch & Bingham); Chamber of

Commerce of the USA; Credit Union

National Association, Inc.; National

Restaurant Association; Society for

Human Resource Management; William

M. Mercer, Inc.) either questioned the

effect of ‘‘reasonable accommodations’’

and ‘‘job restructuring’’ or modified

‘‘light duty assignments’’ on FMLA

leave requests, or suggested that the

FMLA regulations be interpreted to

mean ‘‘unable to perform any of the

essential functions with or without

reasonable accommodation within the

meaning of the ADA.’’ Thus, under this

latter view, FMLA leave could be

denied to an employee with a serious

health condition who, although unable

to perform the essential job functions,

would be able, despite the condition, to

perform those functions if offered

‘‘reasonable accommodation.’’ Some

commenters noted the utility of creating

‘‘light duty’’ assignments for employees

who suffer on-the-job injuries, and the

impact on State workers’ compensation

benefits which can be suspended if an

employee refuses to accept a medicallyapproved ‘‘light duty’’ assignment. The

Consortium for Citizens with

Disabilities, Epilepsy Foundation of

America, and United Cerebral Palsy

Associations noted a difference in the

language in this section of the

regulations and that of § 825.306(b)

(discussing medical certifications) and

suggested conforming changes so that

both sections would be interpreted to

mean ‘‘any one (or more) of the essential

functions’’ (not all of the essential

functions). The EEOC noted once again

that the DOL rule cited to the entire

body of the ADA regulations in the

cross-reference and suggested refining

the cite to the specific ADA rule that

defines ‘‘essential functions’’ (29 CFR

1630.2(n)).

This section was intended to reflect

that an employee would be considered

‘‘unable to perform the functions of the

position’’ within the meaning of the

regulations if the employee could not

perform any one (or more) of the

essential functions of the job held by the

employee at the time the need for FMLA

leave arose, and the final rule is so

clarified (in §§ 825.115 and 825.306).

EEOC’s recommendation to cite to the

specific ADA rule defining ‘‘essential

functions’’ has also been adopted. The

cite has been so revised, to make it clear

that reasonable accommodation is

irrelevant for purposes of FMLA.

The relationship between FMLA’s

leave provisions and other laws like the

ADA and State workers’ compensation

laws is addressed under Title IV of the

FMLA and in Subpart G of the FMLA

regulations (§§ 825.700–825.702). As

will be discussed further in connection

with §§ 825.701 and 825.702 below,

FMLA entitles an employee to take up

to 12 weeks of job-protected leave, from

the position of employment of the

employee when the employee gives

notice or when leave commences

(whichever is earlier), for a serious

health condition that makes the

employee unable to perform any one of

the essential functions of the employee’s

position (the position held by the

employee when the notice was given or

the leave commenced). FMLA also

entitles such an employee to be restored

to that same position of employment

(the one held by the employee when

notice was given or the leave

commenced), or to an equivalent

position with equivalent employment

benefits, pay, and other terms and

conditions of employment. Under these

statutory terms, if an employee qualifies

under FMLA for job-protected leave, the

employee may not be forced, before the

employee’s FMLA job-protected leave

entitlement has expired, to return to

work in a ‘‘light duty’’ (i.e., an unequal,

modified, or restructured) position,

instead of continuing FMLA leave until

the entitlement has been exhausted. To

do so would violate an employee’s jobprotected rights to be restored to the

same or an equivalent position.

Furthermore, the circumstances in

which an employer is permitted to place

an employee in an alternative position

are explicitly addressed in the Act

(§ 102(b)(2)).

Regarding the comment that worker’s

compensation benefits may be

suspended if an employee refuses a light

duty assignment, we do not interpret the

FMLA as prohibiting that result under

applicable State workers’ compensation

statutes. In our view, where an

employee is injured on the job and the

injury also results in a serious health

condition that makes the employee

unable to perform any one of the

essential functions of the employee’s

position within the meaning of FMLA,

the employee effectively qualifies for

both workers’ compensation benefits

and job-protected leave under the

FMLA. This would mean that, in

addition to the employee receiving

payments from the workers’

compensation fund for replacement of

lost wages, the employer would be

obligated to maintain (at least until the

employee’s FMLA leave entitlement is

exhausted) any of the employee’s preexisting health benefits coverage under

the same terms and conditions as if the

employee had continued to work. If, as

part of the workers’ compensation claim

process, the employee is offered a

medically-approved ‘‘light duty’’

assignment, the employee may decline

the assignment offer and instead choose

to begin or continue to exercise FMLA

rights and remain on leave for the

remaining portion of the employee’s

FMLA leave entitlement. As discussed

in § 825.220(d), if the employee freely

accepts the ‘‘light duty’’ assignment

offer in lieu of FMLA leave or returns

to work before exhausting his or her

FMLA leave entitlement, the employee

would retain his or her right to the

original or an equivalent position until

12 weeks have passed, including all

FMLA leave taken that year. At the

conclusion of the 12-week period, if the

employee is not able to perform the

essential functions of the original
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2197

position, the employee’s right to

restoration ceases. The relationship

between State workers’ compensation

laws and FMLA will be discussed in

further detail in connection with

§ 825.702.

It should be noted that FMLA does

not modify or affect any law prohibiting

discrimination on the basis of disability,

such as the ADA. Thus, if a ‘‘qualified

individual with a disability’’ within the

meaning of the ADA is also an ‘‘eligible

employee’’ entitled to take FMLA leave,

an employer has multiple compliance

obligations under both the ADA and the

FMLA. When one of these laws offers a

superior right to an employee on a

particular issue, the employer must

provide that superior right to the

employee. These issues will be

discussed in further detail in connection

with § 825.702.

This section is also revised to make it

clear, as stated in the legislative history

and in the preamble to the Interim Final

Rule, an employee who is absent to

receive medical treatment for a serious

health condition is unable to perform

the essential functions of the employee’s

job while absent for treatment.

Needed To Care for a Family Member

(§ 825.116)

An eligible employee may take FMLA

leave ‘‘in order to care for’’ an

immediate family member (spouse, son,

daughter, or parent) with a serious

health condition. This section, in

discussing what was meant by ‘‘needed

to care for’’ a family member, provided

that both physical and psychological

care or comfort were contemplated

under this provision of FMLA. Giant

Food, Inc. recommended that a

distinction be made between physical

and psychological care and supervisory

care, suggesting also that reasonable

efforts should be made by employees to

develop alternate day care plans in the

event of a childhood illness to lessen

the impact that excessive absenteeism

can have on an employer’s operations.

The Ohio Public Employer Labor

Relations Association objected to

allowing FMLA leave solely to provide

psychological comfort for a family

member rather than actual physical

assistance and care, and suggested that

employers should have discretion to

consider whether other care is being

provided to the family member through

health-care services as well as other

family members. The Women’s Legal

Defense Fund, Consortium for Citizens

with Disabilities, Epilepsy Foundation

of America, National Community

Mental Healthcare Council, and United

Cerebral Palsy Associations objected to

the reference to individuals ‘‘receiving

inpatient care’’ in paragraph (a), because

many individuals are in other

situations, such as in the home, which

require this type of care and assistance

from family members. Several of these

commenters also objected to use of the

phrase ‘‘seriously-ill’’ as too limiting

and recommended replacing it with the

statutory term ‘‘serious health

condition’’ for consistency with other

sections of the regulations. Some of

these commenters, in addition to the

Food and Allied Service Trades, also

recommended that ‘‘spouse’’ be added

to the list of family members in this

section.

The final rule has been revised to add

‘‘spouse’’ to the last sentence of

paragraph (a), to delete ‘‘inpatient care,’’

and to replace ‘‘seriously-ill’’ with

‘‘serious health condition.’’ No further

changes have been made in response to

the remaining comments. The legislative

history clearly reflects the intent of the

Congress that providing psychological

care and comfort to family members

with serious health conditions would be

a legitimate use of FMLA’s leave

entitlement provisions. Because FMLA

grants to eligible employees the absolute

right to take FMLA leave for qualifying

reasons under the law, employers have

no discretion in this area and cannot

deny the legitimate use of FMLA leave

for such purposes without violating the

prohibited acts section of the statute.

See § 105 of FMLA.

Medical Need for Intermittent/Reduced

Schedule Leave (§ 825.117)

FMLA permits eligible employees to

take leave ‘‘intermittently or on a

reduced leave schedule’’ under certain

conditions. Intermittent leave may be

taken for the birth of a child (and to care

for such child) and for the placement of

a child for adoption or foster care if the

employer and employee agree to such a

schedule. Leave for a serious health

condition (either the employee’s or

family member’s) may be taken

intermittently or on a reduced leave

schedule when ‘‘medically necessary’’

(§ 102(b)(1) of FMLA). An employer may

request that an employee support an

intermittent leave request for a serious

health condition with certification from

the health care provider of the employee

or family member of the medical

necessity of the intermittent leave

schedule and its expected duration.

Employees must make a reasonable

effort to schedule their intermittent

leave that is foreseeable based on

planned medical treatments so as not to

unduly disrupt the employer’s

operations (subject to the approval of

the health care provider), and employers

may assign employees temporarily to

alternative positions with equivalent

pay and benefits that better

accommodate such recurring periods of

intermittent leave. (See also § 825.203.)

The Employee Assistance Professional

Association, Inc. commented that no

rationale was provided for why

intermittent leave or reduced leave

schedules are not available to an

employee seeking to take leave to care

for a family member. Intermittent leave

to care for an immediate family member

is allowed, as discussed in § 825.116.

The Women’s Legal Defense Fund

recommended that the regulations state

explicitly that the determination of

medical necessity for intermittent or

reduced leave schedules is made only

by the health care provider of the

employee, in consultation with the

employee. The Department’s medical

certification form, as discussed in

§ 825.306, is the vehicle for obtaining

certification of the medical necessity of

intermittent leave or leave on a reduced

leave schedule, and such

determinations are made exclusively by

the health care provider of the employee

or employee’s family member (subject to

an employer’s right to request a second

opinion at its own expense if it has

reason to doubt the validity of the

certification provided).

HCMF (long term care facilities)

questioned what reasonable efforts are

required by employees to consult with

the employer and attempt to schedule

intermittent leave so as not to unduly

disrupt the employer’s operations.

Cincinnati Gas & Electric Company

suggested that it would be reasonable

for an employer to request that an

employee attempt to schedule planned

medical treatment outside normal work

hours. The Equal Employment Advisory

Council recommended the rules state

that an employer may deny intermittent

or reduced leave schedules when the

reason for the leave can be

accommodated during non-work hours,

because the need for leave in such

circumstances is not ‘‘medically

necessary.’’ Gray, Harris & Robinson

asked what would constitute an undue

disruption, if it were analogous to

ADA’s ‘‘undue hardship’’ standard, and

to what extent could an employer deny

the leave. The Chamber of Commerce of

the USA also recommended

clarifications in the rules of the impact

of an employee’s failure to satisfy the

obligation to avoid disruptions to the

employer’s operations.

As discussed in §§ 825.302 (e) and (f),

the employee and employer should

attempt to work out a schedule which

meets the employee’s FMLA leave needs

without unduly disrupting the

employer’s operations. The ultimate
2198 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

resolution of the leave schedule,

however, always remains subject to the

approval of the health care provider and

the schedule established for the planned

medical treatments. It should be noted

that under this section, the health care

provider either already has, or will,

establish the medical necessity for the

intermittent leave schedule; it is a

prerequisite for the leave. Thus, denial

of the leave would be out of the

question. Even delay of the leave would

be inappropriate unless the health care

provider agreed to reschedule the

medical treatments. What would be a

‘‘reasonable effort’’ by the employee and

an ‘‘undue disruption’’ of the

employer’s operations are fact-specific

in each case. Requesting that an

employee attempt to schedule planned

medical treatments outside the normal

work hours when scheduling them

during work hours would not unduly

disrupt the employer’s operations

would not be ‘‘reasonable’’ or consistent

with FMLA’s requirements.

Definition of ‘‘Health Care Provider’’

(§ 825.118)

FMLA entitles eligible employees to

take leave for a serious health condition

(of either the employee or an immediate

family member). ‘‘Serious health

condition’’ is defined to include an

injury, illness, impairment, or physical

or mental condition involving either

inpatient care or ‘‘continuing treatment

by a health care provider.’’ In addition,

FMLA’s medical certification provisions

allow an employer to request that leave

for a serious health condition ‘‘* * * be

supported by a certification issued by

the health care provider * * *’’ of the

employee or family member. Section

101(6) of the Act defines ‘‘health care

provider’’ as a doctor of medicine or

osteopathy authorized in the State to

practice medicine or surgery (as

appropriate) or ‘‘any other person

determined by the Secretary [of Labor]

to be capable of providing health care

services.’’

After reviewing definitions under

several programs, including rules of the

U.S. Office of Personnel Management

and Medicare, DOL developed FMLA’s

regulatory definition of ‘‘health care

provider’’ by beginning with the

definition of ‘‘physician’’ under the

Federal Employees’ Compensation Act

(5 U.S.C. 8101(2)), which also includes

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

by adding nurse practitioners and nursemidwives (who provide diagnosis and

treatment of certain conditions,

especially at health maintenance

organizations and in rural areas where

other health care providers may not be

available) if performing within the

scope of their practice as allowed by

State law. Finally, the definition

included Christian Science Practitioners

to reflect the Congressional intent that

such practitioners be included (as

expressed in colloquies on the floors of

both the House and Senate, and as

reflected in the Committee report

accompanying Title II of FMLA

applicable to Federal civil service

employees).

Fifty-seven commenters submitted

views on the regulatory definition of

‘‘health care provider.’’ Most advocacy

groups and various trade and

professional associations viewed the

definition as too restrictive and

suggested that it be expanded to include

a broad range of additional providers of

health care and related services.

Federally Employed Women and the

Women’s Legal Defense Fund noted that

OPM’s definition for Federal civil

service employees under Title II of

FMLA includes those providers

recognized by the Federal Employee’s

Health Benefits Program, and suggested

a similar approach be used by DOL for

Title I. They contended that including

any providers covered by the employers

health insurance plan avoids confusion

as to whether the services would be

reimbursed and ensures ease of

administration.

Alabama Power Company (Balch &

Bingham) considered the definition as

written too broad and suggested DOL

follow the lead of the States with

FMLA-type laws, confining the

definition to doctors and osteopaths.

The ERISA Industry Committee felt that

employers should not be required to

recognize service providers not

recognized by their health plans.

Burroughs Wellcome Company

suggested that Christian Science

Practitioners not be included.

The American Association for

Marriage and Family Therapy, 14 State

Associations for Marriage and Family

Therapy, Teton Youth & Family

Services, and the Women’s Legal

Defense Fund suggested that marriage

and family therapists be included in the

definition. Fourteen organizations

(American Board of Examiners in

Clinical Social Work; California Society

for Clinical Social Work; Catholic

Charities, Inc.; Council on Social Work

Education; the Maryland, Mississippi,

New Hampshire, New York State, Ohio,

Rhode Island, Texas and Utah Chapters

of the National Association of Social

Workers; Women’s Legal Defense Fund;

and 9 to 5, National Association of

Working Women), the Personnel

Department of the City of Newport

News, and five Members of Congress

recommended that ‘‘clinical social

workers’’ be added to the definition of

‘‘health care providers.’’ In addition,

436 cards/letters (generally uniform in

style and content) were received from

practicing social workers also urging

that ‘‘clinical social workers’’ be added.

The Consortium for Citizens with

Disabilities, Epilepsy Foundation of

America, and United Cerebral Palsy

Associations suggested that the

regulations include providers of

specialized health-related services for

the disabled, health care providers

licensed by States or accredited by

national certification organizations, a

non-exclusive list of types of providers

(whether or not licensed or accredited),

and a procedure for applying to DOL to

add ‘‘emerging’’ health care provider

services. The Service Employees

International Union also supported

flexibility in the regulations to include

other types of providers of services as

new roles evolve with changes in the

health care system.

The American Academy of Physician

Assistants, Community Legal Services,

Inc., Equal Rights Advocates, Hospital

Council of Western Pennsylvania, 9 to 5,

National Association of Working

Women, and Older Women’s League

recommended that physician assistants

be included. The National Acupuncture

and Oriental Medicine Alliance

recommended including Acupuncturists

and Oriental Medicine Practitioners.

Employee Assistance Professional

Association, Inc. recommended that

Certified Employee Assistance

Professionals be recognized as

‘‘providers’’ capable of making

determinations of whether an employee

is able to work or unable to return to

work.

The American Chiropractic

Association and William M. Mercer, Inc.

objected to the parenthetical phrase

concerning chiropractors that limited

treatment to manual manipulation of the

spine to correct a subluxation

demonstrated by X-ray to exist. The

American Psychological Association

recommended replacing ‘‘clinical

psychologist’’ with ‘‘doctorally trained

psychologist whose scope of

competence includes clinical

activities.’’

The American Psychiatric Association

suggested that a distinction should be

maintained between doctors of

medicine or osteopathy and non-
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2199

physician health care professionals, and

that certification for intermittent or

reduced leave schedules should be

accepted only from doctors of medicine

or osteopathy, not non-physician health

care providers. The Consortium for

Citizens with Disabilities, on the other

hand, suggested that the medical

certification form be revised so that it

does not appear that only a medical

doctor or osteopath can sign off on the

form.

California Rural Legal Assistance,

Inc., Equal Rights Advocates, and

William M. Mercer, Inc. recommended

that foreign-certified or foreign-licensed

health care providers should be

recognized under FMLA, to account for

the fact that many workers’ parents,

spouses or children do not reside in the

U.S. or that such family members may

become ill while abroad. (California

Rural Legal Assistance, Inc. stated that

many U.S. residents rely on Mexican

doctors for health care.)

The law firm of Fisher & Phillips

recommended that DOL delay

exercising its authority to designate

health care providers until there is an

opportunity to determine the impact on

the President’s health care proposal.

After giving careful consideration to

the numerous suggestions for changes in

the definition of ‘‘health care provider,’’

we have revised the final rule in the

following respects. The definition will

be expanded to include any health care

provider that is recognized by the

employer or accepted by the group

health plan (or equivalent program) of

the employer. To the extent that the

employers or the employers’ group

health plans recognize any such

individuals for certification of the

existence of a health condition to

substantiate a claim for health care and

related services that are provided, they

would be included in the revised

definition of ‘‘health care provider’’ for

purposes of FMLA. Clinical social

workers will also be included because

our review reveals that they are

ordinarily authorized to diagnose and

treat without supervision under State

law. Physician’s assistants are not

included as health care providers under

the regulations because they are

ordinarily only permitted to practice

under a doctor’s supervision. An

employee, however, may receive

treatment by a physician’s assistant or

other health care professional under the

supervision of a doctor or other health

care provider without first seeing the

health care provider and obtaining a

referral. In addition, any services

recognized by the plan which are

furnished as a result of a referral while

under the continuing supervision of a

health care provider would qualify as

medical treatment for purposes of

FMLA leave (see § 825.114(c)(2)(i)(A)).

II. Subpart B, §§ 825.200–825.220

Amount of Leave (§ 825.200)

Employers must choose from among

four options a single uniform method

for calculating the 12-month period for

determining ‘‘12 workweeks of leave

during any 12-month period.’’ The

choice of options was intended to give

maximum flexibility for ease in

administering FMLA in conjunction

with other ongoing employer leave

plans, given that some employers

establish a ‘‘leave year’’ and because of

State laws that may require a particular

result.

The California Department of Fair

Employment and Housing

recommended this section include

cautionary advice to employers that the

availability of options may be limited by

State law (the California Family Rights

Act starts the 12-month period with the

date the employee first uses qualifying

leave). William M. Mercer, Inc.

questioned whether State family leave

laws would control the employer’s

administration of FMLA, and also

whether leave accrues under the

backward rolling method on a daily

basis. The State of New York’s

Department of Civil Service and the

State of Nevada’s Department of

Personnel recommended that each

agency or department within a State

government be allowed to select a

separate (i.e., different) 12-month

period.

The State of South Carolina’s Division

of Human Resource Management, the

State of South Dakota’s Bureau of

Personnel, and the Edison Electric

Institute recommended provisions be

added to limit the amount of FMLA

leave available to an employee for the

birth or adoption of a child to a single

12-week period per event (e.g., under

the calendar year method, an employee

who adopts or gives birth to a child late

in the year would not be entitled to take

additional leave in the second calendar

year period because of the adoption or

birth of that child). Similarly, Cincinnati

Gas and Electric Company

recommended the final rules prohibit an

employee from receiving 24 weeks of

protected leave for a single FMLAcovered event (e.g., where the initial 12-

week absence ends at the same time the

next annual 12-week allotment begins).

(See also the discussion of similar

comments received on the section that

follows, § 825.201.)

The Women’s Legal Defense Fund

recommended that DOL explicitly

define the method rather than allowing

employer choices, to prevent

manipulation, and suggested the period

be calculated as the 12-month period

following commencement of an

employee’s first FMLA leave

(§ 825.200(b)(3)). If choices are allowed,

they urge that the 12-month period

rolling backward method (paragraph

(b)(4)) be rejected because it curbs

employee flexibility and is confusing to

them. The American Federation of

Teachers/National Education

Association concurred with WLDF’s

comments. The AFL–CIO and Service

Employees International Union

submitted similar views. (SEIU also

suggested clarifying that employers may

not switch methods to deny employees

leave, and that such action would

violate FMLA’s anti-interference

provisions.) The United Paperworkers

International Union suggested that the

12-month period be calculated by using

each individual employee’s anniversary

date, as employees are not eligible until

they have worked for at least 12 months,

and this would prevent employers from

manipulating the 12-month period to

avoid FMLA obligations.

Fisher & Phillips suggested that the

regulations refer to the 12-month

‘‘rolling period’’ as the default method

for employers that have not designated

a 12-month period.

The Society for Human Resource

Management questioned whether the

12-week entitlement was for each

separate reason specified under FMLA

(12 weeks for childbirth, plus 12 weeks

for a sick parent, plus 12 weeks for the

employee’s serious health condition,

etc., all in the same 12-month period),

or for all reasons (total for all events in

a 12-month period limited to 12 weeks).

This commenter also questioned

whether an employer must allow an

employee to return to work early in the

situation where the employee requested

12 weeks of leave and, three weeks into

the leave, the employee asks to return to

work.

Black, McCuskey, Sourers & Arbaugh

stated that employees of employers who

selected the calendar year should be

entitled to only five weeks of FMLA

leave for the period between August 5,

1993, and December 31, 1993. The

Department cannot agree with this line

of reasoning, which would suggest that

employees of employers who select the

calendar year would be entitled to less

leave other employees. Nor do we

believe that Congress intended that an

employee be entitled to one week of

leave for each remaining month of the

year after eligibility is established.

The final rule has been clarified in

response to several of the comments
2200 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

received. The rule notes that an

employer may be unable to choose one

method from among the available

regulatory options if a particular method

is dictated by a State family leave law.

In this regard, employers operating in

multiple States with differing State

family/medical leave provisions

affecting the 12-month calculation must

follow the method required by the State

laws. Absent a conflict with State law,

employers must select a single, uniform

policy covering its entire workforce.

Employers must inform employees of

the applicable method for determining

FMLA leave entitlement when

informing employees of their FMLA

rights. If an employer fails to designate

one of the methods, employees will be

allowed to calculate their leave

entitlement under whichever method is

most beneficial to them. The employer

in that case would subsequently be able

to designate a choice prospectively, but

would have to follow the rule for

employers wishing to change to another

alternative (i.e., give 60 days notice to

all employees, and employees retain the

full benefit of 12 weeks of leave under

whichever method yields the greatest

benefit to employees during the 60-day

transition period).

When determining the amount of

FMLA leave taken, a holiday occurring

within a week of FMLA leave has no

effect—the week is still counted as a

week of FMLA leave. If however, the

employer’s activities temporarily cease

for one or more weeks and employees

generally are not expected to report for

work (e.g., a school that closes two

weeks for the Christmas and New Year

holiday or for the summer vacation; a

plant that closes two weeks for repairs

or retooling), the days on which the

employer’s activities have ceased do not

count against an employee’s FMLA

leave entitlement.

The ‘‘rolling backward’’ method is a

snapshot of the 12-month period that

changes daily (i.e., as each new day is

added to the 12-month period, one day

from 12-months ago is eliminated).

While many comments were received

opposing this method, it has been

retained as one of the available options

because it is the one method that most

literally tracks the statutory language.

Once the 12-month period is

determined, an employee’s FMLA leave

entitlement is limited to a total of up to

12 workweeks of leave in that 12-month

period for any and all reasons that

qualify for taking leave under FMLA. If

an employer selects the calendar year as

the 12-month period, there is no

authority under the statutory language

to limit an employee’s entitlement to a

‘‘per event’’ concept. (This would be

akin to saying that if an employee under

the calendar year method suffered a

heart attack in the month of December,

that employee would no longer qualify,

once the new year arrived, to take

FMLA leave for that serious health

condition. We ardently reject this

strained interpretation.) The only

limitation the Act places on an

employee’s taking FMLA leave in a

subsequent 12-month period to care for

a newborn or newly-adopted child is

that the entitlement to leave for such

purposes expires 12 months after the

date of the birth or placement.

If an employee begins a requested 12-

week leave of absence and, three weeks

into the leave, asks to return to work

earlier than originally planned, the

employer is obligated to promptly

restore the employee. An employee may

only take FMLA leave for reasons that

qualify under the Act, and may not be

required to take more leave than is

necessary to respond to the need for

FMLA leave. If circumstances change

and the employee no longer has a need

for FMLA leave (which could include a

parent’s changed decision not to stay

home with a newborn child as long as

originally planned), the employee’s

FMLA leave is concluded and the

employee has an absolute right under

the law to be promptly restored to his

or her original or an equivalent position

of employment. This view does not

mean that employees do not also have

obligations to provide notice to the

employer of such changing

circumstances. If an employee’s status

changes and the employee is able to

return to work earlier than anticipated,

the employee should give the employer

reasonable advance notice, generally at

least two working days. This is

addressed in § 825.309(c). An employer

may also obtain such information

through periodic status reports on the

employee’s intent to return to work.

Conclusion of Leave for Birth or

Adoption (§ 825.201)

Under § 102(a)(2) of FMLA, an

employee’s entitlement to leave for a

birth or placement of a son or daughter

‘‘shall expire at the end of the 12-month

period beginning on the date of such

birth or placement’’ (emphasis added).

This section of the regulations repeated

the statutory terms with the added

qualifications that State law may

require, or an employer may permit, a

longer period; any such FMLA leave,

however, must be concluded within this

statutory 12-month period.

The Los Angeles County Metropolitan

Transportation Authority recommended

this section be revised to state clearly

that leave for the birth of a child, or

placement of a child with the employee

for adoption or foster care, must be

initiated and completed within 12

months after the birth or placement.

Nationsbank Corporation (Troutman

Sanders) stated that the termination date

for an employee’s entitlement to leave

under this section should occur 12

months after the first FMLA leave is

taken in connection with the event,

rather than 12 months after the date of

birth or placement, suggesting this

approach would be more consistent

with other regulatory provisions

allowing such leave to begin before the

actual date of birth or placement.

(Otherwise, they suggest, the 12 weeks

of leave could be spread over a period

greater than the 12-month period

provided by FMLA’s requirements.)

The Employers Association of New

Jersey questioned whether a provision

under the New Jersey law that requires

leave to commence (but it need not

conclude) within one year of the date of

birth would prevail over the FMLA.

The Women’s Legal Defense Fund

considered the language in this section

of the regulations too restrictive,

suggesting it removes scheduling

flexibility for employees. WLDF

suggested replacing ‘‘concluded’’ with

‘‘begun’’ (which, thus, would read like

the New Jersey law cited above).

The Chamber of Commerce of the

USA suggested modifications that

would limit an employee’s leave

entitlement to a single 12-week period

for the birth or placement of a child, to

make it clear that an employee is not

entitled to ‘‘stack’’ leave periods in

connection with a single birth or

placement. The Association of

Washington Cities expressed similar

views.

Our review of the statute and its

legislative history in the context of the

comments received has confirmed our

initial views on this section. The statute

clearly states that the entitlement to

leave expires at the end of one year

following the date of birth or placement

of the child. Thus, the leave must be

concluded (i.e., completed) within the

statutory entitlement period. There is no

authority to provide by regulation that

the leave need only begin within the

statutory 12-month period. If a State

provision (as is the case in New Jersey)

allows for a longer or more generous

period, the more generous State

provision would prevail but such leave

beyond what FMLA requires would not

count as FMLA leave (see § 401(b) of

FMLA, discussed below in connection

with § 825.701 of the regulations). There

is no authority to shorten the statutory

12-month period under the regulations

where an employee begins leave for the
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2201

birth or placement prior to the actual

birth of placement. Nor is there

authority to limit an employee’s

entitlement to a ‘‘per event’’ standard.

Limitation for Spouses Employed by the

Same Employer (§ 825.202)

Section 102(f) of FMLA specifically

limits the total aggregate number of

workweeks of leave to which an

‘‘eligible’’ husband and wife are both

entitled if they work for the same

employer to 12 workweeks of leave

(combined between the two spouses) if

the leave is taken for: (1) the birth of a

child; (2) the placement of a child for

adoption or foster care; or (3) to care for

a sick parent. The regulations specified

which FMLA-covered purposes for

taking leave were subject to the special

limitation, and gave examples of how

the limitation would apply when leave

taken during the 12-month period is for

both a reason subject to the limitation

and one that is not (leave for an

employee’s own serious health

condition, and ‘‘family’’ leave if it is for

care of a spouse, son, or daughter, is not

subject to the statutory limitation).

Twelve comments were received on

this section. Many commenters

misunderstood the relationship under

the statute between leave taken for a

reason subject to the combined limit of

12 weeks, and leave taken for reasons

not within the limitation. Several

commenters took issue with the

reasoning for limiting leave entitlements

for spouses employed by the same

employer. Two individuals opposed the

limitations as being discriminatory

against spouses.

Martin, Pringle, Oliver, Wallace &

Swartz and the Virginia Maryland

Delaware Association of Electric

Cooperatives both noted that the

regulations provide no guidance in

connection with siblings employed by

the same employer. The Society for

Human Resource Management noted

that two employees living together but

not legally married can each take 12

weeks for the birth or placement of a

child, and recommended revising the

regulations to provide that the 12-weektotal limitation would also apply where

both parents of a child work for the

same employer. The Ohio Public

Employer Labor Relations Association

felt that employers should be able to

limit the leave of spouses for the care of

a seriously-ill child for the same reason

spouses are limited for the birth or

adoption of a child. George Washington

University felt that care for a seriouslyill parent should entitle each spouse to

12 weeks of FMLA leave. Because

FMLA does not cover care of a parent

in-law, the Women Employed Institute

felt that both the husband and wife

should be entitled to 12 weeks of leave

in order to care for their own parent,

just as they are entitled to 12 weeks of

leave for their own illness.

Fisher & Phillips noted that when a

female employee takes leave for the

birth of a child, the leave may have a

dual purpose under FMLA. One

purpose relates to the employee’s own

serious health condition for childbirth

and recovery (§ 102(a)(1)(D) of FMLA).

The other relates to the birth and care

of a newborn child (§ 102(a)(1)(A) of

FMLA). They recommended revising the

rule to state that such ‘‘dual purpose’’

leave would always be treated as being

subject to the limitation for purposes of

the husband taking FMLA leave. Fisher

& Phillips suggested further that the

reference in the Act to ‘‘parent’’ must be

an error, that the word ‘‘child’’ must

have been intended (recommending

such a revision be made through

regulatory interpretation).

According to the legislative history,

the limitation on leave taken by spouses

who work for same employer is

intended to eliminate any employer

incentive to refuse to hire married

couples. It is our view that the statutory

provisions must be interpreted literally,

and we do not agree that the legislative

result is an error that should be altered

by regulation. DOL lacks the authority

to either add to, or subtract from, the

circumstances that are subject to the

statutory limitation of spouses who

work for the same employer. The

examples given in the regulation have

been clarified in an effort to reduce the

confusion that is apparent from the

comments received on this section of

the regulations. With respect to the

comment by Fisher & Phillips on ‘‘dual

purpose’’ leave, FMLA lacks any ‘‘ dual

purpose’’ concept. Further, the statutory

limitation must be applied literally, and

only to leave that is taken for a purpose

that is expressly subject to the

limitation. Clearly there is a period of

disability following the birth of a child,

as explicitly recognized under State

pregnancy disability laws. Disability

leave recognized under such State laws

for the birth of a child would also be

considered FMLA leave for a serious

health condition. Such leave, for one’s

own serious health condition, is not

subject to the limitation for spouses who

work for the same employer. Nor does

the limitation apply to unmarried

parents or to siblings employed by the

same employer. The regulations have

been clarified in response to the

comments received.

Intermittent and Reduced Leave

Schedules (§ 825.203)

FMLA permits eligible employees to

take leave ‘‘intermittently or on a

reduced leave schedule’’ under certain

conditions. Intermittent leave is not

available for the birth or adoption of a

child unless the employee and employer

agree otherwise. Subject to compliance

with FMLA’s ‘‘notice’’ and medical

certification provisions, and the right of

an employer to transfer an employee

temporarily to an alternative position

with equivalent pay and benefits that

better accommodates recurring periods

of leave, leave for a serious health

condition (either the employee’s or

family member’s) may be taken

intermittently or on a reduced leave

schedule when medically necessary.

The Women’s Legal Defense Fund and

the Service Employees International

Union commented that intermittent

leave should be permitted to accomplish

a placement for adoption or for foster

care prior to the actual placement

without requiring the agreement of the

employer. Section 825.112(d) of the

Interim Final Rule provides for the

taking of FMLA leave for purposes of

adoption or foster care prior to the

actual placement in situations when the

employee may be required to attend

counselling sessions, appear in court,

etc. Unlike the circumstances in

§ 825.112(c) which provide for an

expectant mother to take leave prior to

the birth of a child for prenatal care or

for her own condition, both of which are

specifically identified as being a serious

health condition, placement for

adoption or foster care is not so

identified. To provide intermittent leave

without the employer’s agreement prior

to the actual placement would be

contrary to the language contained in

§ 102(b)(1) of the statute, ‘‘In General—

Leave under subparagraph (A) (birth of

a child) or (B) (placement for adoption

of foster care) of subsection (a)(1) shall

not be taken by an employee

intermittently or on a reduced leave

schedule unless the employee and the

employer of the employee agree

otherwise.’’ We are unable to make the

suggested change in the Final Rule.

Fifteen commenters, including public

employers, public utilities, educators,

health care industry employers and

manufacturers urged that the taking of

intermittent leave in increments of one

hour or less was too burdensome. Many

recommended that leave taken

intermittently should be limited to halfdays (four hours) or full days as a

minimum. The legislative history

provides that only the time actually

taken is charged against the employee’s
2202 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

entitlement (Senate Committee on Labor

and Human Resources (S. 5), Report

103–3, January 27, 1993, pp. 27 & 29).

Otherwise, the statute and the

legislative history are silent regarding

increments of time related to

intermittent leave. In providing

guidance on this issue in the Interim

Final Rule, it seemed appropriate to

relate the increments of leave to the

employer’s own recordkeeping system

in accounting for other forms of leave or

absences. Section 825.203(d) tracks that

decision and provides that the

employer’s established recordkeeping

system controls with regard to

increments of FMLA leave of less than

one hour. (The employer may not

require leave to be taken in increments

of more than one hour.) The guidance in

the Interim Final Rule continues to be

appropriate; otherwise employees could

be required to take leave in amounts

greater than necessary, thereby eroding

the 12-week leave entitlement

unnecessarily. The Final Rule will

contain the same guidance; however,

this section will be clarified to provide

explicitly that the phrase ‘‘one hour or

less’’ is dispositive.

Five commenters expressed concern

that an employee taking intermittent

leave could spread the 12-week leave

entitlement over an extended period, up

to the full 12 month leave period. The

Equal Employment Advisory Council

suggests that the amount of intermittent

leave available be limited to four weeks

of the 12 week total available in any 12

months. The Kennedy Memorial

Hospitals suggests that a limit of six

months be placed on the period over

which intermittent leave can be

extended. The Koehler Manufacturing

Company suggests that employees

requesting intermittent leave should be

eligible for a shorter time period. Care

Providers of Minnesota point out there

is no statutory prohibition for

reasonably limiting the period of time

for intermittent leave.

The statute makes no provision for

limiting the time period over which an

employee may take leave intermittently

or on a reduced leave schedule. To the

contrary, § 102(b)(1) of the statute

provides that the taking of such leave

‘‘* * * shall not result in a reduction in

the total amount of leave to which the

employee is entitled under subsection

(a) beyond the amount of leave actually

taken.’’ After due consideration, the

Department finds that making such a

change would be contrary to the statute

and the intent of Congress.

Blue Cross and Blue Shield of Texas,

Inc. asks if due to a medical certification

an employee is limited to working eight

hours per day, and thus is unable to

work mandatory overtime hours, may

the employee be subject to disciplinary

action or may the employer charge the

unworked overtime to the employee’s

FMLA leave entitlement. The question

to be answered would be whether the

employer’s policy requires the taking of

other forms of leave (i.e., vacation or

sick leave) to cover unworked overtime.

The taking of FMLA leave is predicated

on the employee’s normal workweek

(see § 825.205 of the Interim Final Rule).

The definition of reduced leave

schedule in § 101(9) of the statute

speaks of usual number of hours per

workweek, or hours per workday

(emphasis added). If the employee’s

usual or normal workweek is greater

than 40 hours or workday is greater than

eight hours, the days or hours the

employee does not work may be charged

against the FMLA leave entitlement if

the absence is for an FMLA qualifying

reason. If, however, the overtime is

assigned/required on an ‘‘as needed’’

basis, not a part of the employee’s usual

or normal work time, or is voluntary,

the unworked overtime may not be

charged to the employee’s FMLA leave

entitlement. The employee is not subject

to disciplinary action for being unable

to work overtime as a result of

limitations contained in a medical

certification obtained for purposes of

FMLA.

The law firm of Sommer and Barnard

urges that an employee be required to

furnish evidence satisfactory to the

employer that periods of intermittent

leave requested for birth or placement of

a child before the actual birth or

placement will be used for the required

reason, and that all the leave requested/

approved will be devoted to the

purposes for which the employee was

eligible for such leave. The Final Rule

has been amended in § 825.113(d) to

permit an employer to require

reasonable documentation of a family

relationship for purposes of FMLA

leave. It would be unreasonable,

however, to expect an employee to

predict with any precision the amount

of leave that will be required in

conjunction with a birth or placement

when time spent in these activities is

largely outside the employee’s control

(e.g., attorneys, doctors, the courts,

social workers, etc.). The possibility,

moreover, that employees would lie to

their employer and not use leave for the

purposes indicated is not unique to

leave taken prior to the birth or

placement for adoption or foster care.

Such fraud should be treated like any

other fraud in connection with leave.

See also § 825.312(g). In any event,

employer permission is required for an

employee to take intermittent FMLA

leave for birth (other than medicallynecessary leave) or placement for

adoption or foster care. Consequently,

the suggested change will not be made.

Massmutual Life Insurance Company

recommends that reduced schedule

leave and intermittent leave for personal

medical leave should be limited solely

to those times which are scheduled for

treatment, recovery from treatment or

recovery from illness. The definition of

leave which may be taken intermittently

or on a reduced leave schedule basis for

an employee’s own serious condition or

the serious health condition of an

immediate family member has been

changed in § 825.203 of the Final Rule

to incorporate this suggestion. The

employee will also be entitled to take

leave intermittently or on a reduced

leave schedule for periods of disability

due to a chronic serious health

condition or to provide needed care for

an immediate family member with a

serious health condition, including

psychological care when such care

would prove beneficial to the patient.

Temporary Transfers to Alternative

Positions (§ 825.204)

If an employee needs to take

intermittent leave (e.g., for medical

treatment) or leave on a reduced leave

schedule, the employer may temporarily

transfer the employee to an available

alternative position for which the

employee is qualified and which better

accommodates recurring periods of

leave than the employee’s regular

position. The alternative position must

have equivalent pay and benefits; it

need not have equivalent duties. The

conditions of a temporary transfer may

not violate any applicable collective

bargaining agreement containing higher

standards or more generous provisions

for employees than those required by

FMLA, and employers must observe any

other applicable standards under

Federal or State laws (e.g., the ADA).

As the legislative history explains,

this provision was intended to give

greater staffing flexibility to employers

by enabling them temporarily to transfer

employees who need intermittent leave

or leave on a reduced leave schedule to

positions more suitable for recurring

periods of leave. At the same time, it

ensures that employees will not be

penalized for their need for leave by

requiring that they receive equivalent

pay and benefits during the temporary

transfer. Congress anticipated that a

reduced leave schedule would often be

perceived as desirable by employers

who would prefer to retain a trained and

experienced employee part-time for the

weeks that the employee is on leave
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2203

rather than hire a full-time temporary

replacement.

The Women Employed Institute and

Women’s Legal Defense Fund suggested

revisions to the regulations to clarify

that temporary transfers should last only

as long as an employee needs to take

leave intermittently or on a reduced

leave schedule; once the leave need

ends, the employer must then restore

the employee to his or her original or an

equivalent position.

Kaiser Permanente questioned

whether an employer could provide

‘‘pay in lieu of benefits’’ if that is the

general practice for employees who

work less than 20 hours per week.

William M. Mercer, Inc. asked if, when

a full-time employee is temporarily

transferred to a part-time reduced leave

schedule, and part-time employees

ordinarily have either reduced health

care coverage or pay higher premiums,

can the transferred employee’s benefits

be similarly reduced? Van Hoy,

Reutlinger & Taylor noted that an

employer is required to maintain the

employee’s full-time benefits (e.g., life

and disability insurance) while the

employee is working part-time on

intermittent leave but questioned, where

such policies are based on pay, whether

the employer may reduce such

benefits—if not, the regulations should

contain a stronger warning so employers

do not inadvertently reduce such

benefits. The University of California

asked for clarification of whether only

health benefits are required to be

maintained for employees who take

FMLA leave, whether they are on full

leave, reduced leave schedule,

intermittent leave, or while in an

alternative position. The ERISA

Industry Committee requested

additional clarification on the treatment

of annual bonuses, particularly whether

they may be prorated for time on leave

(a pro rata reduction would impact the

calculation of other benefits).

An employee may not be required to

take more leave than is necessary to

satisfy the employee’s need for FMLA

leave. If a full-time employee switches

to a part-time or reduced leave schedule

under FMLA, the employee must

continue to receive the same (full) level

of benefits which the employee enjoyed

before starting the FMLA leave, and may

not be required to pay more to maintain

that same level of benefits enjoyed prior

to the start of the FMLA reduced leave

schedule, regardless of any employer

policy applicable to its part-time

employees that would suggest a

different result. To permit otherwise

would result in the employee not

receiving equivalent pay and benefits as

required by FMLA. An employer may

only proportionately reduce the kinds of

benefits that are computed on the basis

of the number of hours worked during

the period, e.g., vacation or sick leave,

insurance or other benefits that are

determined by the amount of earnings.

Once an employee’s need for a reduced

leave schedule under FMLA has ended,

the employer must restore that

employee to his or her original position

or to a position that is equivalent to the

original position (with equivalent

benefits, pay, etc.). An employer may

not transfer an employee to an

alternative position in order to

discourage the employee from taking the

leave or otherwise create a hardship for

the employee (e.g., transfer to the

‘‘graveyard’’ shift; assigning an

administrative employee to perform

laborer’s work; reassigning a

headquarters staff employee to a remote

branch site, etc.). This section has been

so clarified. The relationship between

FMLA’s provisions and collective

bargaining agreements containing

greater employee rights or more

generous provisions for employees is

discussed in § 825.700.

Determining the Amount of

Intermittent/Reduced Leave (§ 825.205)

Only the amount of leave actually

taken while on an intermittent or

reduced leave schedule may be charged

as FMLA leave. This means, for

example, that if a full-time employee

who normally worked eight-hour days

switched to a half-time (four hours per

day) reduced leave schedule, only 1⁄2

week of FMLA leave could be charged

each week (and, at that rate, it would

take 24 weeks to exhaust the employee’s

FMLA leave entitlement if no other

FMLA leave were taken during the 12-

month period). For employees working

part-time or variable hours, the amount

of leave entitlement is determined on a

proportional basis by comparing the

new schedule (after starting FMLA

leave) to the normal schedule (before

starting FMLA leave). If an employee’s

schedule varies week-to-week, a weekly

average over the 12 weeks prior to

starting FMLA leave is used for

establishing the ‘‘normal’’ schedule.

California Rural Legal Assistance, Inc.

suggested that the regulations make

clear that FMLA leave may not be

charged during a week when work

would not otherwise be available. The

Society for Human Resource

Management questioned how a week of

FMLA leave would be counted for

employees who work seven days and

then are off for seven days.

An employee’s FMLA leave

entitlement may only be reduced for

time which the employee would

otherwise be required to report for duty,

but for the taking of the leave. If the

employee is not scheduled to report for

work, the time period involved may not

be counted as FMLA leave. See

§ 825.200(f).

The American Compensation

Association was not clear on how to

calculate the pro rata depletion of

FMLA leave time for an employee

presently on a reduced leave schedule

due to a disability who needs

intermittent leave, perhaps one day per

week, and asked if it would be based on

the pre-disability schedule or the

current work schedule. Chicagoland

Chamber of Commerce expressed

concern that this section might be

construed to allow an exempt employee

who normally works more than 40

hours per week to receive FMLA leave

on an intermittent or reduced leave

schedule basis in excess of his or her 12-

week entitlement, suggesting the

greatest number of hours any employee

should be entitled to receive for

intermittent or reduced leave schedule

purposes is 480 (12 weeks × 40 hours).

The Chamber of Commerce of the USA

suggested the regulation make clear that

the 12-week average rule is applied only

if an employee’s normal schedule

fluctuates, and not if it fluctuates due to

overtime hours of work.

Section 102 of FMLA states that an

eligible employee is entitled to ‘‘a total

of 12 workweeks of leave’’ during the

12-month period. The statute uses the

‘‘workweek’’ as the basis for leave

entitlement, and an employee’s normal

‘‘workweek’’ prior to the start of FMLA

leave is the controlling factor for

determining how much leave an

employee uses when switching to a

reduced leave schedule. Nothing in the

Act or its legislative history suggests

that the maximum amount of leave

available to an employee is 480 hours.

If an employee’s normal workweek

exceeds 40 hours, the calculation of

total FMLA leave available for pro rata

reduction of total leave entitlement

during intermittent leave or reduced

leave schedules should be based on the

employee’s normal workweek—even if

it exceeds 40 hours.

If an employee with a disability has

already switched to a permanently

reduced work schedule for reasons other

than FMLA, and needs leave on an

intermittent basis, the hours worked

under the current schedule would be

used for making the calculation as

provided in § 825.205(c).

‘‘541’’ Exemption (§ 825.206)

FMLA leave may be unpaid. Section

102(c) of FMLA expressly provides that

where an employee is otherwise exempt
2204 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

from the Fair Labor Standards Act’s

(FLSA) requirements for payment of

minimum wage and overtime

compensation for hours worked over 40

per week (the exemption for ‘‘executive,

administrative, and professional’’

employees under FLSA § 13(a)(1)),

compliance by an employer with

FMLA’s requirement to provide unpaid

leave shall not affect the exempt status

of the employee under the FLSA

exemption and its regulations (29 CFR

Part 541). Thus, employers can ‘‘dock’’

the pay of otherwise-exempt, salaried

employees for FMLA leave taken for

partial day absences. If an FLSA-exempt

employee needs to work a reduced leave

schedule under FMLA, the employer

may deduct from the employee’s salary

partial-day absences for any hours taken

as intermittent or reduced schedule

FMLA leave within the workweek

without causing loss of the employee’s

exempt status under 29 CFR Part 541.

By operation of the statute (FMLA), this

exception to the FLSA ‘‘salary basis’’

rule extends only to leave which

qualifies as FMLA leave (i.e., FMLAeligible employees, working for FMLAcovered employers, who take FMLA

leave only for reasons which qualify as

FMLA leave).

Twenty comments were received on

this provision. Many commenters

complained that the tension between

FMLA’s requirement to grant unpaid

leave and FLSA’s ‘‘salary basis’’ rule

prohibiting partial-day deductions from

pay for FLSA-exempt employees

discourages employers from

maintaining more generous family leave

policies that were in effect prior to

FMLA, or from extending FMLA leave

rights to non-covered or non-eligible

employees, because of the risk of

jeopardizing the exempt status of entire

classes of employees. The Personnel

Department of Whatcom County,

Washington, noted the inequitable

result under the rule that causes nonexempt employees to obtain a ‘‘better

package’’ under FMLA than exempt

employees do. In contrast, the Service

Employees International Union stated it

would have been inappropriate for DOL

to expand FMLA’s exception to the

FLSA ‘‘salary basis’’ test beyond the use

of FMLA-qualified leave. The United

Food and Commercial Workers

International Union opposed allowing

even FMLA-required deductions from

an employee’s salary without affecting

the employee’s qualifications for

exemption under the FLSA because it

permits the employer to reduce an

employee’s wages for hourly leave

without having to grant overtime pay for

hours over 40 per week. Van Hoy,

Reutlinger & Taylor recommended that

the final rule also address how

employers treat salaried but non-exempt

employees who are paid on the

‘‘fluctuating workweek’’ method for

payment of half-time overtime

compensation when FMLA leave results

in fewer than 40 hours being worked in

the workweek.

An employee subject to FLSA’s

overtime requirements who is paid on a

salary basis and whose workhours

fluctuate each week may be paid

overtime compensation under the

‘‘fluctuating workweek’’ method of

payment described in 29 CFR 778.114.

Where the employee and employer

mutually agree that the salary amount

will compensate the employee for all

straight-time earnings for whatever

hours are worked in the week, whether

few or many, payment of extra

compensation, in addition to the salary,

for all overtime hours worked at onehalf the ‘‘regular rate’’ will meet FLSA’s

overtime compensation requirements.

Because the salary covers ‘‘straighttime’’ compensation for however many

hours are worked in the workweek, the

employee’s ‘‘regular rate’’ varies each

week (determined by dividing the salary

by the number of hours worked each

week). Payment for the overtime hours

at one-half the rate computed each

week, in addition to the salary, results

in payment of time-and-one-half the

regular rate for all overtime hours

worked each week. The ‘‘fluctuating

workweek’’ method of payment for

overtime hours may not be used unless

the salary amount is enough to yield

average hourly straight-time earnings in

excess of the statutory minimum wage

for each hour worked in the weeks

when the employee works the greatest

number of hours. Typically, it is

mutually agreed by the parties under

these types of salary arrangements that

the salary will be paid as straight-time

compensation for however many or few

hours are worked, long weeks as well as

short weeks, under the circumstances of

the employment arrangement as a

whole.

Therefore, because payment of the

agreed-upon salary is required in each

short workweek as a prerequisite for

payment of overtime compensation on a

‘‘fluctuating workweek’’ basis,

employers may not dock the salary of an

employee paid on this basis who takes

FMLA leave intermittently or on a

reduced leave schedule without

abandoning the ‘‘fluctuating workweek’’

overtime formula. An employer may

either continue paying such an

employee the agreed-upon salary in any

week in which any work is performed

during the employee’s FMLA leave

period, or may choose to convert the

employee to an hourly basis of payment,

with payment of proper time-and-onehalf the hourly rate for any overtime

hours worked during the period of the

condition for which FMLA leave is

needed intermittently or on a reduced

leave schedule basis, and later restore

the salary basis of payment after the

employee’s need for intermittent or

reduced schedule FMLA leave has

concluded. If an employer chooses to

follow this exception from the

fluctuating workweek method of

overtime payment, it must do so

uniformly for all employees paid on a

fluctuating workweek basis who take

FMLA leave intermittently or on a

reduced leave schedule, and may not do

so for employees taking leave under

circumstances not covered by FMLA.

The final rule has been clarified to

reflect this policy.

While the Department recognizes the

view, as some commenters noted, that a

tension exists between partial-day

docking under the FLSA ‘‘salary basis’’

rule and the intent of FMLA to

encourage more generous family and

medical leave policies, we are

constrained by the literal language of

the statutory terms to adhere to the

policy set forth in the Interim Final

Rule. By operation of FMLA, the

statutory exception to the FLSA 541

exemption’s ‘‘salary basis’’ rule extends

only to leave qualifying as FMLA leave

that is taken by FMLA-eligible

employees employed by FMLA-covered

employers. No further revisions are

made in this section.

Paid or Unpaid Leave (§ 825.207)

FMLA requires unpaid leave,

generally. If an employer provides paid

leave of fewer than the 12 workweeks

required by FMLA, the additional weeks

necessary to attain 12 workweeks of

leave in the 12-month period may be

unpaid. FMLA also provides for

substituting appropriate paid leave for

the unpaid leave required by the Act.

An employee may elect, or an employer

may require the employee, to substitute

any of the employee’s accrued paid

vacation leave, personal leave, or family

leave if it is: (1) for the birth of a child,

and to care for such child; (2) for

placement of a child with the employee

for adoption or foster care, and to care

for such child; or, (3) to care for the

employee’s spouse, child, or parent, if

the spouse, child or parent has a serious

health condition. The legislative history

explains that ‘‘family leave’’ as used

here in FMLA refers to paid leave

provided by the employer

‘‘* * * covering the particular

circumstances for which the employee
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2205

is seeking leave under [FMLA for birth

or adoption of a child, or for the serious

health condition of an immediate family

member] * * *’’ (emphasis added).

Based on this legislative history, the

regulations similarly included a

limitation that family leave may only be

substituted ‘‘under circumstances

permitted by the employer’s family

leave plan’’ (§ 825.207(b)).

In addition, the employee may elect,

or the employer may require the

employee, to substitute any of the

employee’s accrued paid vacation leave,

personal leave, or medical or sick leave

for FMLA leave taken for the serious

health condition of an immediate family

member (spouse, child, or parent) or for

the employee’s own serious health

condition that makes the employee

unable to work, except that an employer

is not required to provide paid sick

leave or paid medical leave ‘‘in any

situation in which the employer would

not normally provide any such paid

leave.’’ (FMLA § § 102(d) (2) (A) & (B).)

These substitution provisions are

intended to allow for the specified paid

leaves that have accrued but have not

yet been taken by an employee to be

substituted for the unpaid leave

required under FMLA, in order to

mitigate the financial impact of wage

loss due to family and temporary

medical leaves. The substitution

provisions assure that an employee is

entitled to the benefits of applicable

paid leave, plus any remaining leave

time made available by FMLA on an

unpaid basis.

The State of Oregon’s Bureau of Labor

and Industries asked for clarification of

whether the employee or the employer

had the prerogative or control over the

decision to substitute paid leave for

FMLA leave. Sommer & Barnard

suggested additional guidance was

needed on employee substitution where

the employer does not require it. The

California Department of Fair

Employment and Housing

recommended the rule clearly state that

employees have the right to substitute

paid vacation during FMLA leave, and

suggested further amendments to allow

employers to require certification for

FMLA leave where an employee desires

to use paid vacation leave. The

California Teamsters Public Affairs

Council opposed permitting an

employer to force an employee to use

paid vacation or personal leave during

FMLA leave absent a specific request

from the employee to substitute such

paid leave. The Equal Employment

Advisory Council suggested the

regulations allow employers to restrict

substitution of paid vacation if the

employer policy normally restricts

vacations to certain times during the

year. Chevron and the American

Apparel Manufacturers Association, Inc.

stated that paid leave should only be

permitted at the employer’s option (or

discretion). Cincinnati Gas & Electric

Company suggested that paid leave

should be available for substitution only

under the rules of the plan which

established the paid time off.

FMLA’s substitution language

provides that ‘‘* * * an eligible

employee may elect, or an employer

may require the employee, to substitute

any of the * * *’’ appropriate paid

leave for any part of the 12-week period

of FMLA leave. Under these terms, if an

employee does not elect to substitute

appropriate paid leave when requesting

FMLA leave, the employer has the right

to require that the employee do so. An

employee always has the right to

request, in the first instance, that

appropriate paid leave be substituted.

There are no limitations, however, on

the employee’s right to elect to

substitute accrued paid vacation or

personal leave for qualifying FMLA

leave, and the employer may not limit

the timing during the year in which

paid vacation may be substituted for

FMLA-qualifying absences or impose

other limitations. If the employee does

not initially request substitution of

appropriate paid leave, the employer

retains the right to require it. An

employer may not override an

employee’s initial election to substitute

appropriate paid leave for FMLA leave,

nor place any other limitations on its

use (e.g., minimum of full days or weeks

at a time, etc. ). At the same time, in the

absence of other limiting factors (such

as a State law or an applicable collective

bargaining agreement), where an

employee does not elect substitution of

appropriate paid leave, the employee

must nevertheless accept the employer’s

decision to require it, even where the

employee would desire a different

result. The regulations have been

clarified to address these principles.

The Women’s Legal Defense Fund, 9

to 5, National Association of Working

Women, AFL–CIO, Food & Allied

Service Trades, International

Brotherhood of Teamsters, and Service

Employees International Union opposed

what they perceived as unwarranted

regulatory restrictions on the ability to

substitute paid ‘‘family leave’’ under

FMLA, and recommended deletion of

the restrictive language. We have

revised the language in § 825.207(b) to

track the language of the legislative

history, which explains the meaning of

‘‘family leave’’ in this context. The

effect of the revision, however, is the

same result as under the terms of the

Interim Final Rule.

Sixteen comments raised concerns

over the relationship and interaction

between FMLA leave and absences

caused by on-the-job, workers’

compensation injuries, and requested

further guidance. The Women

Employed Institute and the Women’s

Legal Defense Fund argued that

workers’ compensation cannot be

substituted as paid leave for FMLA

leave, even if such payments are proxies

for lost wages. Many employer

commenters argued alternatively that

employers should not only be allowed

to count the workers’ compensation

absence as FMLA leave, but they should

continue to be allowed to exercise their

rights under workers’ compensation

laws to require an employee to return to

work at restricted or ‘‘light’’ duty. The

Employers Association of Western

Massachusetts, Inc. requested

clarification of whether insured

disability plans and self-insured

disability plans are similarly considered

a form of ‘‘accrued paid leave’’ under

FMLA.

An employee who incurs a workrelated illness or injury elects whether

to receive paid leave from the employer

or worker’s compensation benefits. An

employee cannot receive both.

Therefore, where a work-related illness

or injury also causes a ‘‘serious health

condition that makes the employee

unable to perform the functions of the

position of such employee’’ within the

meaning of FMLA, and the employee

has elected to receive worker’s

compensation benefits, an employer

cannot require the employee to

substitute, under FMLA, any paid

vacation or other leave during the

absence that is covered by payments

from the State workers’ compensation

fund. Similarly, an employee cannot

elect to receive both worker’s

compensation and paid leave benefits.

Such an absence can count, however,

against an employee’s FMLA leave

entitlement if it is properly designated

at the beginning of the absence as

required by these regulations. Neither

the statute nor its legislative history

suggests that time absent from work for

work-related accidents should not run

concurrently for purposes of FMLA and

the State workers’ compensation laws

(provided the illness or injury also

meets FMLA’s definition of ‘‘serious

health condition’’). Indeed, FMLA’s

legislative history suggests that the

Congress contemplated this result—in

describing the intended meaning of

‘‘serious health condition,’’ the

Committee reports refer to ‘‘injuries

caused by serious accidents on or off the
2206 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

job’’ (among other examples). On the

other hand, payments from a State

workers’ compensation fund are not

benefits provided by the employer, nor

are they a form of ‘‘paid leave’’ provided

by the employer for purposes of FMLA’s

substitution provisions. While the time

absent from work can simultaneously

count under both FMLA and State

workers’ compensation programs,

payments provided by State workers’

compensation funds are not considered

‘‘accrued paid medical or sick leave’’

within the meaning of FMLA. In

addition, when an employee is receiving

payments from the State workers’

compensation fund, the employee may

not elect, nor may the employer require

the employee, to exhaust any form of

paid leave provided by the employer

during any portion of the absence

covered by the workers’ compensation

payments. Payments provided under

other types of plans covering temporary

disabilities (whether provided

voluntarily through insurance or under

a self-insured plan, or required to meet

State-mandated disability provisions

(e.g., pregnancy disability laws)) are to

be treated similarly under FMLA—the

time may be charged against an

employee’s FMLA leave entitlement

(provided employees are properly

notified of the designation at the

commencement of the absence and any

group health benefits are maintained by

the employer as if the employee had

continued to work, as required by these

regulations). But an employee’s receipt

of such payments precludes the

employee from electing, and prohibits

the employer from requiring,

substitution of any form of accrued paid

leave for any part of the absence covered

by such payments.

As will be discussed in further detail

in connection with § 825.702, an

employer is precluded from requiring an

employee to return to work prematurely

in a ‘‘light duty’’ assignment, instead of

taking FMLA leave, if the employee

remains unable to perform any one or

more of the essential functions of the

original position and the employee has

not yet exhausted his or her full FMLA

leave entitlement in the 12-month

period. The reference point for

determining an employee’s essential job

functions is the position held by the

employee when the need for FMLA

leave arises, i.e., when the employee’s

notice of the need for leave is given or

leave commences, whichever is earlier.

An employer may not modify a job to

eliminate essential job functions in an

effort to deny an employee his or her

FMLA leave rights. On the other hand,

FMLA does not prevent the

continuation of lawful policies under

State workers’ compensation programs

that discontinue wage replacement

payments if and when an employee

refuses to accept a medically-approved

light duty assignment. In such a case,

the employee may continue on FMLA

leave where the employee cannot

perform any one or more of the essential

functions of the employee’s former

position, and the employee would have

the right to elect to substitute

appropriate paid leave, or continue on

unpaid FMLA leave, until the employee

has exhausted his or her 12-week FMLA

leave entitlement in the 12-month

period. The regulations are clarified in

response to these comments to address

absences covered by State workers’

compensation laws.

The Chamber of Commerce of the

USA stated that employers should be

able to draft paid leave policies

expansively or restrictively, and if an

employee is unable to use paid leave,

the leave will be unpaid. The National

Restaurant Association similarly

suggested that any substituted paid

leave must be taken in accordance with

the employer’s paid leave policies.

Fisher & Phillips considered the

regulations contradictory and

inconsistent with FMLA, because they

allow employees to substitute paid

vacation or personal leave for unpaid

FMLA leave while prohibiting

employers from imposing any

limitations, yet also state that employees

may be required to comply with

requirements of the employer’s leave

plan. Fisher & Phillips suggested that all

of an employer’s normal restrictions on

the use of paid leave should continue to

apply when paid leave is substituted for

FMLA leave, because FMLA does not

require the use of paid leave. Sommer

& Barnard and Fisher & Phillips also

objected to § 825.207(g), which restricts

an employer’s ability to request notice

and certification for FMLA leave where

the employee substitutes paid leave and

the employer’s normal leave policies do

not require notice or certification (the

employee may only be required under

the Interim Final Rule to comply with

the less-stringent requirements of an

employer’s plan, and not any more

stringent notice or certification

requirements of FMLA, unless the paid

leave period is followed by unpaid

FMLA leave). These two commenters

and United HealthCare Corporation

suggested employers be allowed to deny

FMLA leave unless FMLA’s notice and

certification requirements are met,

whether the leave is unpaid or

substituted paid leave, to assure

employers of their statutory rights and

avoid confusion for employees. The

University of California asked that DOL

clarify how the employer confirms that

requested time off to care for an ill

family member or for personal illness

qualifies as FMLA leave if the employer

cannot confirm the request by asking for

medical certification.

In response to the comments, this

section is clarified. When paid leave is

substituted for unpaid FMLA leave, and

an employer has less stringent

procedural requirements for taking that

kind of leave than those of FMLA, only

those less stringent requirements may be

applied. An employee who complies

with the employer’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 failed to comply with

stricter requirements of FMLA.

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 employer’s sick leave program.

Appropriate revisions have been made

in the notice and certification

provisions of §§ 825.302(g), 825.305(e),

and 825.306(c). An employer of course

may make revisions to its leave program

to require notice or certification that

corresponds to FMLA requirements, or

may treat paid and unpaid leave

differently, provided the program is not

amended in a discriminatory manner

that treats employees on FMLA leave

differently from other, similarly

situated, employees.

The State of Nevada’s Department of

Personnel recommended the regulations

be revised to allow substitution of

compensatory time-off for unpaid FMLA

leave. The Town of Normal (Illinois)

suggested the employer should be able

to require an employee to take

compensatory time for FMLA leave.

Montgomery County (Maryland)

recommended that DOL’s interpretative

ruling that prohibits employers from

using compensatory time as FMLA leave

be included in the regulations.

The use of compensatory time off is

severely restricted under the Fair Labor

Standards Act (FLSA) in ways that are

incompatible with FMLA’s substitution

provisions. First, ‘‘comp’’ time is not a

form of accrued paid leave mentioned in

the FMLA or legislative history for

purposes of substitution. It is also not a

benefit provided by the employer.

Rather, it is an alternative form for

paying public employees (only) for

overtime hours worked. The public

employee’s ‘‘comp time bank’’ is not the

property of the employer to control, but
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2207

rather belongs to the employee. If a

public employee terminates

employment, any unused comp time

must be ‘‘cashed out.’’ Thus, FMLA’s

provisions allowing an employer to

unilaterally require substitution would

conflict with FLSA’s rules on public

employees’ use of comp time only

pursuant to an agreement or

understanding between the employer

and the employee (or the employee’s

representative) reached before the

performance of the work. A public

employee who has accrued comp time

off must also be permitted to use the

time ‘‘within a reasonable period after

making the request if the use of

compensatory time does not unduly

disrupt the operations of the public

agency’’ (FLSA § 7(o), emphasis added).

To the extent that the conditions under

which an employee may take comp time

off are contained in an agreement or

understanding, the terms of the

agreement or understanding govern the

meaning of ‘‘reasonable period’’ (29 CFR

§ 553.25). An agency may turn down an

employee’s request for comp time off

under FLSA if it would be unduly

disruptive to the agency’s operations.

The employer’s right to control an

employee’s use of comp time, including

authority to decline a request for its use,

would simply be inconsistent with

FMLA’s provision authorizing the

employee to elect to substitute paid

leave (without qualification as to

whether the time taken would be

unduly disruptive). While a public

employee may certainly request the use

of comp time under FLSA for an FMLAqualifying absence, the employer may

not simultaneously charge the FLSA

comp time hours taken against the

employee’s separate FMLA leave

entitlement. To do so would amount to

charging (debiting) two separate

entitlements for a single absence.

Accordingly, public employers may not

use their employee’s FLSA ‘‘comp time’’

banks as a form of ‘‘accrued paid leave’’

for purposes of substitution under

FMLA, and this section is so revised.

Designating Paid Leave as FMLA Leave

(§ 825.208)

This section of the Interim Final Rule

placed responsibility on the employer to

designate all FMLA leave taken,

whether paid or unpaid, as FMLAqualifying, based on information

obtained directly from the employee.

Because employees may not

spontaneously explain the reasons for

taking their accrued paid vacation or

personal leave, the regulations allowed

employees to request to use their paid

leave without necessarily stating that it

was for an FMLA purpose, and if the

employer rejected the request under its

normal leave policies, the eligible

employee would be expected to come

forward in response to the employer’s

further inquiry with additional

information to enable the employer to

determine that it is FMLA leave (which

could not be denied). Employers are

required to determine and designate

‘‘up front’’ before leave starts whether

any paid leave to be taken counts

toward an employee’s FMLA leave

entitlement, and so notify the employee

‘‘immediately’’ upon learning that it

qualifies as FMLA leave (in accordance

with the employer’s ‘‘specific notice to

employees’’ obligations under

§ 825.301(c)). Only where leave had

already begun and the employer had

insufficient information to determine

whether it qualified under FMLA could

it be retroactively designated as FMLA

leave under the Interim Final Rule.

Employers were precluded in all cases

from retroactively designating any paid

leave taken as FMLA leave once the

leave had ended and the employee had

returned to work.

This section was intended to resolve

the question of FMLA designation as

early as possible in the leave request

process, to eliminate protracted ‘‘after

the fact’’ disputes. The regulations

expected disputes to be resolved

through discussions between the

employee and the employer at the

beginning of the leave rather than at the

end. Because of the possible ‘‘stacking’’

of unpaid FMLA leave entitlements in

addition to an employer’s pre-existing

leave plan, it appears that some

employers that wished to mitigate their

exposure to extended leaves by

employees have been motivated by the

provisions in the Interim Final Rule to

try to determine and count all possible

FMLA-qualifying absences as FMLA

leave (by whatever means, including

through overly-intrusive inquiries of

employees when they request to use

their accrued paid leave).

The Commission on the Status of

Women, Equal Rights Advocates, and

Gwen Moore, Majority Whip, California

Legislature objected to an employer’s

ability to inquire into the purposes of

the employee’s paid vacation or

personal leave to determine if it

qualifies under FMLA, because it allows

the employer unfettered discretion to

invade the employee’s privacy.

Federated Investors and Michigan

Consolidated Gas Company noted that

extracting the reason for an employee’s

need to be away from work could

violate the Americans With Disabilities

Act. Many employer groups, in contrast,

felt that the employer should be

permitted to conduct a reasonable

investigation to determine if leave

qualifies as FMLA leave (including

inquiring of persons other than the

employee for purposes of verification,

such as the employee’s physician).

Blue Cross and Blue Shield of Texas,

Inc. and LaMotte Company pointed out

that circumstances could arise where

the unduly restrictive structure of the

regulations disadvantages employees,

such as where an employee is about to

be disciplined for attendance problems

and time previously missed and is

precluded, due to the bar against

retroactive designation of FMLA leave,

for asserting FMLA leave as a defense.

Burroughs Wellcome Company,

Massmutual Life Insurance Company,

and several others noted the restrictive

structure was inconsistent with other

regulatory provisions that allow up to

15 days from employees to furnish

medical certification to substantiate

FMLA leaves—where leave is

unplanned and of relatively short

duration or if the employee or health

care provider delay processing the

certification, the employee could be

back at work before the employer had

sufficient information to confirm that

the leave qualified under FMLA and the

employee would lose FMLA’s benefits

and protections. Several commenters

(including the Texas Department of

Human Services) suggested that

employers be allowed to designate

FMLA leaves immediately upon the

employee’s return to work. William M.

Mercer, Inc. suggested permitting an

employer to designate leave as

qualifying under FMLA after it has

ended if the inability to designate it

during the leave resulted from the

employee refusing to give needed

information, or providing wrong

information. The Chamber of Commerce

of the USA suggested that employees be

required to declare their intention to

take FMLA leave at the beginning of an

FMLA-qualifying period, and that

employers be allowed to consider

information from third parties and be

allowed to designate leave as FMLAqualifying within 90 days following the

end of a leave period. The Equal

Employment Advisory Council

suggested similar approaches with

related rationales, noting in particular

that inquiring into the reasons for

employee leave requests for vacation

and personal days was having a negative

impact on employer-employee relations.

EEAC recommended that employees be

required to give notice of FMLA leave,

and an employer’s request for medical

certification should be deemed a

provisional designation of FMLA leave
2208 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

(subject to the employee satisfying the

certification process).

Sommer & Barnard recommended the

regulations be amended to provide that

when an employer policy requires an

employee to designate paid leave as

FMLA leave, the employee shall provide

FMLA notice and certification (if

applicable). They noted that when

§ 825.207(g) (which exempts an

employee using paid leave that is not

followed by unpaid FMLA leave from

FMLA’s notice and certification

requirements) and § 825.208(a)(1)

(relieves an employee using paid leave

from any obligation to explain the

reason for the leave unless the employer

denies the request) are linked with

§ 825.208(b) (FMLA determinations to

be based only on information furnished

directly by the employee), the rules

effectively deprive an employer of the

opportunity to make an informed

determination that paid leave will be

used for FMLA-qualifying reasons and

should be counted as FMLA unless the

employee volunteers sufficient accurate

information. Moreover, this structure

could encourage employees to withhold

information and misrepresent facts to

expand the aggregate of employer-paid

leave and FMLA’s unpaid leave

entitlement.

After careful consideration of the

many comments and objections received

on this section, the Department has

revised the regulations along the

following lines. Designation of leave as

being FMLA-qualifying is still expected

to take place ‘‘up front’’ whenever

possible. The employer’s notification to

the employee of the designation may be

oral, but must be confirmed in writing,

no later than the next regular payday

(unless less than a week remains until

the next payday). The written notice

may be in any form, including a

notation on the pay stub.

If the employer has the requisite

knowledge to determine that a leave is

for an FMLA reason at the time the

employee either gives notice of the need

for leave or it commences, and the

employer does not notify the employee

as required at that time that the leave is

being designated as FMLA leave, the

employer may not then designate the

leave as FMLA leave retroactively; it

may designate only prospectively, as of

the date of notification to the employee

of the designation, that the time is being

charged against the employee’s FMLA

leave entitlement. The employer may

not designate leave that has already

been taken as FMLA leave after the

employee returns to work, with two

exceptions: (1) if an employee is out for

an FMLA-qualifying reason and the

employer does not learn of the reason

for the leave until the employee returns

to work, the employer may designate the

leave as FMLA leave promptly (within

two business days) upon the employee’s

return to work (including a provisional

designation based on information from

the employee, subject to confirmation

upon the employer’s receipt of medical

certification if the employer requires it

and has previously notified the

employee of the requirement); or (2) if

the employer has provisionally

designated the leave under FMLA and is

awaiting receipt from the employee of

medical certification or other

‘‘reasonable documentation’’ allowed by

this amended rule to confirm that the

leave was FMLA-qualifying, or the

employer and employee are in the

process of obtaining second or third

medical opinions. If the employer does

not designate leave as FMLA leave in a

timely manner as required by the

regulations, the employer may not later

designate the absence as FMLA leave

absent the circumstances specified

above. Similarly, the employee is not

entitled to the protections of the FMLA

if the employee gives notice of the

reason for the leave later than two days

after returning to work. The regulations

are also clarified that if an absence

which begins as other than FMLA leave

later develops into an FMLA-qualifying

absence (e.g., employee takes a twoweek vacation for a ski trip and suffers

a severe accident requiring

hospitalization beginning the second

week), the entire portion of the leave

period that qualifies under FMLA may

be counted as FMLA leave (e.g., the

second week). Employers must still base

their designations of FMLA leave on

information obtained directly from the

employee or the employee’s

spokesperson (in the event the

employee is incapacitated or otherwise

designates a point of contact, e.g., an

immediate family member). If an

employee does not provide information

regarding the reason for the leave, leave

may be denied.

Designating leave as FMLA-qualifying

does not block greater ADA rights. See

§ 825.702.

Benefit Entitlements During FMLA

Leave (§ 825.209)

Eligible employees who take FMLA

leave are entitled to be restored, at the

end of their leave, to the same jobs they

held when the leave commenced, or to

an equivalent job with equivalent

employment benefits, pay, and other

terms and conditions of employment.

The taking of FMLA leave cannot result

in the loss of any employment benefit

accrued before the leave began;

however, nothing in FMLA entitles

restored employees to the accrual of

seniority or employment benefits during

the leave, or to any right, benefit, or

position of employment other than what

they would have been entitled to had

they not taken the leave. (§§ 104(a)(1),

(2), and (3) of FMLA.) In addition,

during a period of FMLA leave, the

employer must maintain coverage under

any ‘‘group health plan’’ at the level and

under the conditions coverage would

have been provided if the employee had

continued to be employed continuously

during the leave. (§ 104(c)) The

legislative history explains that this is

strictly a maintenance of benefits

provision. FMLA does not require an

employer to provide health benefits if it

does not do so at the time the employee

commences leave. The legislative

history notes further, however, that if an

employer establishes a health benefits

plan during an employee’s leave,

FMLA’s provisions should be read to

mean that the entitlement to health

benefits would commence at the same

point during the leave that employees

would have become entitled to such

benefits if still on the job.

Several commenters requested further

clarification in this section on the

impact on continued FMLA leave rights,

maintenance of health benefits, and

restoration to employment when the job

of an employee on FMLA leave is

eliminated, such as through a

department-wide downsizing or layoff.

FMLA’s legislative history explains that

the explicit limitation in FMLA

§ 104(a)(3) means that if, but for being

on leave, an employee would have been

laid off, the employee’s right to

reinstatement is whatever it would have

been had the employee not been on

leave when the layoff occurred. In order

to clarify this point, the regulations are

revised at § 825.211(c) to provide that,

except as required by COBRA and for

‘‘key’’ employees, an employer’s

obligation to maintain health benefits

during FMLA leave and to restore an

employee after the planned leave under

FMLA ceases if and when the

employee’s employment relationship

would have terminated (e.g., the

employee’s position is eliminated as

part of a nondiscriminatory reduction in

force, i.e., no transfer or reassignment

option is available to similarly-affected

employees not on FMLA leave); the

employee informs the employer

unequivocally of the employee’s intent

not to return from leave (including

when the leave would have begun if the

employee so informs the employer

before the leave begins—unless the

employee is on paid leave during the

period); the employee fails to return
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2209

from leave, and thereby terminates

employment; or the employee stays on

leave (i.e., is unable to return to work)

after exhausting his or her FMLA leave

entitlement in the 12-month period.

The Chamber of Commerce of the

USA suggested clarifications to

unambiguously state that plan changes

such as premium increases, increased

deductibles, etc., which apply to active

employees also apply to employees who

are on FMLA leave. This requirement

has been clarified.

A number of commenters requested

specific guidance in this section

regarding how particular fringe benefit

plans or practices with respect to

‘‘cafeteria plans,’’ ‘‘flexible spending

accounts,’’ and the ‘‘continuation of

health benefits provisions’’ of title X of

the Consolidated Omnibus Budget

Reconciliation Act of 1985 (COBRA)

interact with FMLA, particularly in

regard to the tax implications of such

programs. These issues cannot be

resolved through FMLA’s implementing

regulations, because they are within the

authority of the Internal Revenue

Service (IRS). Questions regarding these

matters should be directed to the IRS.

(See Notice 94–103 in Internal Revenue

Bulletin No. 1994–51, dated December

19, 1994.)

Nationsbank Corporation (Troutman

Sanders) and Southern Electric

International, Inc. (Troutman Sanders)

stated that the rule failed to specify

whether family members whose

coverage is dropped at the employee’s

election during FMLA leave may be

required to requalify for coverage upon

the employee’s return to work, and

suggested that FMLA was not intended

to exempt non-employee insureds from

requalification. An employee is entitled

to be restored to the same level of

benefits which the employee received

prior to starting the leave, including

family or dependent coverages, without

any qualifying period, physical

examination, exclusion of pre-existing

conditions, etc., and the regulations are

clarified to reflect this requirement.

The UAW International Union

recommended that this section be

amended to state that an employer may

not treat workers who take FMLA leave

in a manner that discriminates against

them—e.g., if workers on other forms of

paid or unpaid leave are entitled to have

coverage maintained for other, nonhealth plan benefits (life insurance,

disability insurance, etc.), then the

employer is required to follow its

established practice or policy for

maintaining these benefits for workers

on paid or unpaid FMLA leave. This is

addressed under the ‘‘prohibited acts’’

section of the regulations, at § 825.220.

This section has been clarified to

address employees’ entitlements to

holiday pay and other benefits while on

FMLA leave.

The law firm of Alston and Bird

recommended that the term group

health plan should not include nonemployment related health benefits paid

directly by employees through

voluntary deductions, e.g., individual

insurance policies. We agree with the

recommendation, and language has been

added to § 825.209(a) to exclude such

benefits from the definition of group

health plan, and to make clear that an

employer is not responsible for

maintaining or restoring such benefits

for employees who take FMLA leave.

Employee Payments of Health Benefit

Premiums (§ 825.210)

Because health benefits must be

maintained during FMLA leave at the

level and under the conditions coverage

would have been provided if the

employee had continued to work, any

share of group health plan premiums

which the employee had paid before

starting FMLA leave must continue to

be paid by the employee during the

leave. Any changes to premium rates

and levels of coverages or other

conditions of the plan that apply to the

employer’s active workforce also apply

to eligible employees on FMLA leave.

The regulations discuss options

available to employers for collecting

premium payments from employees on

FMLA leave. Employers must give

employees advance written notice of the

terms for payment of such premiums

during FMLA leave, and an employer

may not apply more stringent

requirements to an employee on FMLA

leave than required of employees on

other forms of unpaid leave under the

terms of the Interim Final Rule.

One option referenced in

§ 825.210(b)(4) provided that an

employer’s existing rules for payment

by employees on ‘‘leave without pay’’

could be followed, provided

prepayment (before the leave

commenced) was not required. The

State of Oregon’s Bureau of Labor and

Industry questioned whether existing

employer policies that formerly required

an employee to assume responsibility

for payment of all premiums for group

health plan coverage during unpaid

leave (both employer and employee

shares) could continue to operate under

FMLA, as § 825.210(b)(4) appeared to

imply, or did §§ 825.210 (b)(4) and (e)

refer only to the manner of payment

rather than the duty to pay the

premiums itself? The payment

obligations of employers for group

health plan premiums during FMLA

leave are subject to the same conditions

that coverage would have been provided

if the employee had continued to work;

thus, employers cannot increase the

employee’s share of premiums during

unpaid FMLA leave. The rules referred

only to the manner of collecting

premium payments.

Nationsbank Corporation and

Southern Electric International, Inc.

(Troutman Sanders) questioned whether

an employer may use different options

with different employees on a case-bycase basis for recovery of premiums

from employees during unpaid FMLA

leave or whether the employer must

choose one option and apply it

uniformly. The rules do not prohibit an

employer from using different options

on a case-by-case approach to meet the

particular needs of employees and the

employer, provided the employer does

not act in a discriminatory manner.

The Chamber of Commerce of the

USA opposed the requirement that

employer policies on FMLA leave be

equal to other leaves without pay

provided by the employer, suggesting

there is no statutory basis for this rule.

Under the Interim Final Rule, sections

105 and 402 of the Act were construed

in § 825.210(e) of these regulations and

elsewhere to prohibit an employer from

requiring more of employees (or

providing less to employees) who take

unpaid FMLA leave than the employer’s

policies require of (or provide to)

employees on other forms of unpaid

leave. We continue to believe that this

regulation represents the proper

construction of the Act.

Multi-employer Health Plans (§ 825.211)

Seven comments were received on

this section, which describes special

rules for maintenance of group health

benefits under multi-employer health

plans. The Associated General

Contractors of America (AGC)

contended that DOL wrongly concluded

that employers under multi-employer

plans must continue to make

contributions during FMLA leave and

that the legislative history, on which

DOL relies, is internally inconsistent.

AGC also urged that DOL clarify the

FMLA rights of an employee who would

have been laid off by a contributing

employer during a period of FMLA

leave but who might also have found

employment with another contributing

employer during the same period. Even

if the individual might have found other

employment with another contributing

employer, AGC contends that the

employer of the employee when the

FMLA leave commenced has no further

obligations under FMLA beyond the

date on which he or she would have
2210 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

been laid off. Constructors Association

of Western Pennsylvania filed similar

views on this point.

These last comments reflect a proper

interpretation of FMLA, as reflected

throughout the regulations. Coverage by

the group health plan must be

maintained at the level coverage would

have been provided if the employee

continued to be employed instead of

taking FMLA leave. As discussed

elsewhere in these regulations, this

means, for example, that if, but for being

on leave, an employee would have been

laid off, the employee’s rights under

FMLA, including the requirements to

maintain group health plan coverage,

are whatever they would have been had

the employee not been on leave when

the layoff occurred. And, of course,

these FMLA obligations apply only with

respect to an ‘‘eligible employee’’ who

has met the length of employment and

hours of service tests. Neither the

employer nor the multiemployer plan

has any obligation under FMLA with

respect to persons who are not ‘‘eligible

employees.’’ The regulations are revised

to clarify that group health coverage

under a multiemployer plan must be

maintained for an employee on FMLA

leave at the same level coverage was

provided when the leave commenced

until either: (1) the FMLA leave

entitlement is exhausted; (2) the

employer can show that the employee

would have been laid off and the

employment relationship terminated; or,

(3) the employee provides unequivocal

notice of an intent not to return to work.

With respect to the remaining comments

on this section, we consider that the

legislative history, as well as the

regulations, accurately reflect the intent

of the Congress that multiemployer

plans must receive contributions during

the period of an employee’s FMLA

leave, and that the rate of contribution

is the same amount as if the employee

were continuously employed, at the

same schedule, at the same wage or

salary, and otherwise under the same

terms and conditions as he or she

normally worked before going on leave,

unless a contrary result can be clearly

demonstrated by the employer (or by the

plan, where appropriate).

Failure to Timely Pay Health Plan

Premiums (§ 825.212)

This section provided that an

employer’s obligation to maintain group

health benefits ceases after an

employee’s premium payment is more

than 30 days late. The preamble

explained that coverage had to be

maintained during the 30-day grace

period. If an employer chose to drop

group health plan coverage because an

employee failed to make timely

premium payments, all other FMLA

obligations continue to apply during the

FMLA leave, including the requirement

to restore the employee to an equivalent

position after the leave with full

coverage and benefits equivalent to

what the employee would have had if

leave had not been taken and the

premium payment had not been missed.

An employee returning from FMLA

leave may not be required to meet any

qualification requirements imposed by

the plan, including any new preexisting

condition waiting period, waiting for an

open season, or passing a medical

examination for coverage to be

reinstated.

Acrux Investigation Agency, Austin

Human Resource Management

Association, HCMF (long term care

facilities), K-Products, Inc., Pathology

Medical Laboratories (Riordan &

McKinzie), Equal Employment Advisory

Council, and Society of Professional

Benefit Administrators opposed

requiring the employer to reinstate

health coverage (or dependent family

member coverage) when the employee

failed to make timely premium

payments. In effect, they argue,

individuals who take FMLA leave

receive preferential treatment over

active employees who decide to drop

coverage and then request reinstatement

of coverage, who are then subject to preexisting condition waiting periods.

FMLA § 104(a)(2) states clearly that

the taking of FMLA leave shall not

result in the loss of any employment

benefit accrued prior to the date on

which the leave commenced. To hold a

returning employee to a requirement

that he or she requalify (or possibly not

qualify) for any benefits which were

enjoyed before going on FMLA leave

would result in the loss of an

employment benefit as a result of taking

the FMLA leave. Moreover, the

employees would not be restored to an

equivalent job with equivalent benefits

upon their return from FMLA leave if

they were made subject to pre-existing

condition waiting periods. These results

would clearly violate FMLA’s statutory

standards.

The Service Employees International

Union and the AFL–CIO recommended

a provision requiring the employer to

give a notice of delinquency to the

employee when group health plan

premiums are late, which would give

the employee a reasonable opportunity

to cure the delinquency before coverage

is dropped. The Women’s Legal Defense

Fund noted that under the interim rules,

an employer could stop making

premium payments on the employee’s

behalf if the employee’s check is lost in

the mail. WLDF also suggested that the

employer be required to notify the

employee in writing and give the

employee an additional 30 days in

which to cure the delinquency, citing

regulations promulgated by OPM to

implement Title II of FMLA as a model

(5 CFR § 890.502; 58 Fed. Reg. 39607

(July 23, 1993)). The California

Department of Fair Employment and

Housing also supported a bar against

discontinuing coverage without notice

to the employee.

The Department has decided to adopt

the suggestions requiring notification to

employees before an employer may drop

group health plan coverage because of a

lack of timely premium payments.

Under the OPM regulations cited in the

comments, the employing office must

notify an employee if payment is not

received by the due date that

continuation of coverage depends upon

receipt of premium payments within 15

days (longer for employees overseas)

after receipt of the notice (or 60 days

after the date of the notice if return

receipt certification is not received by

the employing office). DOL is adopting

a similar requirement: 15 days notice

must be given that coverage will cease

if the employee’s premium payment is

more than 30 days late.

Pathology Medical Laboratories

(Riordan & McKinzie) suggested that the

rule should allow insurance coverage to

be cancelled retroactively to the first

date of the period to which the unpaid

premium relates. Fisher & Phillips,

Sommer & Barnard, William M. Mercer,

Inc., and Florida Citrus Mutual filed

similar objections to the 30-day grace

period during which group health plan

coverage must be maintained. The

California Department of Fair

Employment and Housing suggested a

rule allowing employers to discontinue

coverage when an employee is more

than one regular pay period late, as most

insurance is paid in advance on a

monthly basis and the current 30-day

rule could result in employers having to

pay two months of free coverage when

the employee fails to make the premium

payments. The State of Nevada’s

Department of Personnel said it was

unclear whether the employer’s

obligation to maintain coverage, and

under a self-insurance plan to pay

claims, only extends for the 30-day

grace period, contending an inequity

exists for an employer with a selfinsured plan to pay claims despite the

debt owed by a non-returning employee

while not placing the same requirement

on an employer with a fully-insured

plan. Wessels & Pautsch suggested that

a portion of the burden for maintaining

health insurance should be shared by
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2211

the insurance provider, e.g.,

qualification requirements or

preexisting condition waiting periods

could be waived when an employee

fails to make premium payments. Credit

Union National Association, Inc.

similarly suggested that insurance

companies be mandated to waive these

requirements. The American Apparel

Manufacturers Association, Inc.

expressed concern that the rule created

an obvious disincentive for employees

to maintain their portions of premiums

during FMLA leave, because they know

their coverage must be maintained by

the employer, and suggested that

employees be held accountable to their

employers for reasonable administrative

costs associated with reinstating

employees’ health coverage as an

incentive to the employees to continue

paying their share of premiums. The

Chamber of Commerce of the USA

concurred with the 30-day grace period

but suggested clarification that the

employer (or health plan insurer) may

hold payment of claims under the

health plan until the premium payment

is made for the coverage period to

which the claim relates. Equal

Employment Advisory Council noted

that some employees elect not to

continue health premiums while on

FMLA leave, and do not always want

coverage reinstated on the first day of

return because they would prefer not to

incur the immediate cost of premium

payments. They recommended that

benefits be reinstated on the day of

return if the employee resumes

premium payments (if applicable); and,

if the employee does not wish to resume

coverage on the day of return, the

employer should be allowed to reinstate

coverage on the date the employee

requests such reinstatement, provided

the employee satisfies all the normal

conditions that an employee not on

FMLA leave would incur when

initiating group health plan coverage.

As noted above, several revisions are

included in the final rule in response to

the comments received on this section.

With respect to voluntary action by

employees who elect to withdraw from

their group health plan coverage during

FMLA leave, and request reinstatement

at a desired future date, if their

decisions are truly voluntary and future

reinstatement on the requested date is

not barred by the terms of the plan or

the employer, FMLA would not prohibit

such employee-employer arrangements.

However, the employee may not be

required to requalify for any benefits

enjoyed prior to the start of FMLA leave

without violating the express terms of

FMLA § 104(a)(2).

Under the final rule as revised, in

order to drop group health plan

coverage for an employee whose

premium payment is late, the employer

must provide written notice to the

employee that the payment has not been

received 15 days before coverage will

cease. If the employer has established

policies regarding other forms of unpaid

leave that permit the employer to cease

coverage retroactively to the first date of

the period to which the unpaid

premium relates, the employer may

cease the employee’s coverage

retroactively in accordance with that

policy, provided the 15-day notice was

given. In the absence of such a policy

applicable to other forms of unpaid

leave, coverage for the employee ceases

at the end of the 30-day grace period

after the payment was due, again only

if the required 15-day notice has been

provided. The same rules would apply

to payment of claims under selfinsurance plans.

With respect to the remaining

comments on this section, the

Department is making no further

changes. FMLA regulates the

maintenance of group health coverage

by employers for periods of qualifying

FMLA leave, but does not extend

authority to DOL to enable requiring

insurance carriers to waive provisions

in their existing contracts with

employers or to otherwise bear a portion

of the burden for maintaining health

insurance for employees who take

FMLA leave. The suggestion that

employees be held accountable to

employers for reasonable administrative

costs associated with reinstating

employees’ health coverage as an

incentive for them to continue paying

their share of premiums similarly

cannot be adopted. Employees who

return from FMLA leave are entitled to

be restored to the same or an equivalent

position with equivalent benefits.

Requiring an employee to pay more for

the same level of benefits enjoyed

previously is not ‘‘equivalent’’ and

would violate FMLA.

Recovery of Premiums (§ 825.213)

FMLA § 104(c)(2) allows employers in

certain cases to recapture the premiums

paid for maintaining employees’ group

health plan coverage during periods of

unpaid leave under FMLA if the

employees fail to return to work after

the leave period to which the employee

is entitled has expired. This recapture

provision does not apply to ‘‘key’’

employees who are denied restoration

under FMLA § 104(b), nor to any

employee who cannot return to work

because of the continuation, recurrence,

or onset of a serious health condition—

either the employee’s own or that of an

immediate family member (spouse,

child, or parent) for whom they are

needed to care, or due to other

circumstances beyond the control of the

employee. An employer may require

medical certification to support an

employee’s claim that the qualifying

serious health condition exists. This

section of the regulations described the

statutory provisions and provided

examples of other circumstances beyond

the control of the employee. Included

was a provision that an employee must

return to work for at least 30 calendar

days to be considered to have ‘‘returned

to work’’ for purposes of this provision.

Because the statute specifies that the

recovery of premiums applies to ‘‘any

period of unpaid leave under § 102’’

when the circumstances permit, the rule

stated that an employer may not recover

its share of health insurance premiums

for any period of FMLA leave covered

by paid leave. Additional guidance was

included in § 825.213(f) concerning

‘‘non-mandatory’’ (i.e., other than

‘‘group health plan’’) benefits, e.g., life

and disability insurance, in an effort to

alert employers of the possible adverse

consequences of allowing such ‘‘nonmandatory’’ benefits to lapse during a

period of unpaid FMLA leave and the

employer’s ability to meet FMLA’s

requirement to fully restore all

employment benefits (not just group

health plan coverage) to eligible

employees who return from qualifying

FMLA leave.

Several commenters took issue with

the underlying statutory provisions

discussed in this section, over which

DOL has no control. Those comments

will not be addressed.

The ERISA Industry Committee

commented that providing for

employers to collect premiums from

non-returning employees provides no

practical benefit to employers,

suggesting that alternatives be made

available such as refundable deposits or

advance payments to cover the leave

period (advance or ‘‘pre-’’ payment was

specifically prohibited by

§ 825.210(b)(4) of the Interim Final

Rule). Pima Federal Credit Union

similarly viewed the rule as

unrealistic—an employee normally

cannot or will not repay and legal action

by the employer creates destructive,

unfavorable publicity and ‘‘ill-will,’’

harming employee morale. Loral

Defense Systems—Arizona stated it is

not feasible for most employers to

recover their portions of health

insurance premiums unless the

employee voluntarily agrees to

reimbursement arrangements.
2212 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Nationsbank Corporation (Troutman

Sanders) commented that the interim

rules do not state whether an employer

may use a different option to recover

premium payments for other welfare

benefits, such as disability insurance,

than the one selected for recovering

health premiums, or whether it must

choose one option for recovering all

types of premiums. The commenter

recommended that employers be

allowed flexibility in seeking

repayment, to maximize recovery

potential. The FMLA regulations do not

restrict the employer’s available options

for recovery. For example, a repayment

schedule of partial payments stretched

over extended pay periods to account

for individual employees’ needs and

compensation arrangements would not

be prohibited.

Six commenters (9 to 5, National

Association of Working Women;

Federally Employed Women; Women’s

Legal Defense Fund; Cumberland-Perry

Association for Retarded Citizens;

American Federation of Teachers/

National Education Association; and the

Society for Human Resource

Management) commented on the 30-day

‘‘returned to work’’ rule in this section.

The American Federation of Teachers/

National Education Association and the

Women’s Legal Defense Fund suggested

a single workweek be used (WLDF

stated that FMLA provides no basis to

allow an employer to recover premiums

when an employee returns to work for

less than 30 days). In contrast, the

Society for Human Resource

Management said that 30 days were too

short to determine whether an employee

intends to return to work for the long

term and recommended 60 days;

Cumberland-Perry Association for

Retarded Citizens also suggested 60

days, or some other demonstration of

good faith attempt to return to work to

protect employers from manipulative

employees. Federally Employed

Women, and 9 to 5, National

Association of Working Women stated

the 30-day period had no basis under

the statute and recommended instead

language that would create a rebuttable

presumption that an employee’s failure

to return is not due to a serious health

condition, which could then be

overcome by a showing that the failure

was due to a serious health condition or

other circumstances beyond the

employee’s control. (WLDF suggested

similar rebuttable presumption

language.)

In spite of requests from both sides of

this issue, the ‘‘returned to work’’

definition will remain at 30 days. As the

discussion in the legislative history on

maintenance of health benefits during

FMLA leave suggests, the purpose of the

Act is to provide ‘‘job-protected’’ leave

to eligible employees for the reasons

that qualify under the Act. Being

restored to the original or an equivalent

position of employment after returning

from FMLA leave is central to the leave

entitlement provisions, and suggests, in

a temporal sense, long-term or ‘‘quasipermanence.’’ Thus, the 30-day

requirement is not unreasonable. In

addition, if an employee transfers

directly from taking FMLA leave to

retirement (or such a transfer occurs

during the first 30 days after the

employee returns to work), the

employee is considered to have returned

to work.

The Chamber of Commerce of the

USA opposed the rule that prohibits an

employer from recovering premiums

paid to maintain group health coverage

if the employee does not return to work

for reasons beyond the employee’s

control, e.g., the employee is needed to

care for a relative or individual with a

serious health condition other than an

immediate family member. Lancaster

Laboratories requested more definition

of events that qualify as ‘‘other

circumstances beyond the employee’s

control.’’ The Women’s Legal Defense

Fund also criticized the inclusion of

examples in the negative, i.e., ones that

do not (or can never) qualify as

circumstances beyond the employee’s

control.

Examples of ‘‘circumstances beyond

the employee’s control’’ have been

clarified in the regulations. A mother’s,

or a father’s, decision not to return to

work to stay home with a healthy

newborn child would not be considered

a circumstance beyond the employee’s

control. On the other hand, if the

newborn child has a serious health

condition, such as serious birth defects

requiring immediate surgery, a parent’s

decision not to return to work in such

a case would be a circumstance beyond

his or her control.

Kaiser Permanente noted the

regulations referred only to situations

involving requalification for benefits,

but omitted situations where an event

covered by a particular kind of

insurance occurs while the employee is

on unpaid FMLA leave and coverage

has lapsed during the leave. The

commenter requested further

consideration be given to explaining

this aspect of FMLA. In one example

given by the commenter, an employee is

on unpaid leave and there is no

continuation of life insurance during the

leave. The commenter asked what

benefits, if any, the beneficiary would

be entitled to if the employee died

during the leave. In the second example,

disability insurance is discontinued for

an employee who takes unpaid FMLA

leave to care for a spouse or parent with

a serious health condition and the

employee becomes disabled during the

leave. Can the employee be denied any

disability coverage for the condition?

Under FMLA’s ‘‘restoration to

position’’ employment and benefits

protection provisions (§ 104 of the Act),

there is no obligation to maintain ‘‘nonmandatory’’ (other than group health

plan) benefits during a period of FMLA

leave by operation of FMLA itself;

therefore, an employer would not have

to incur expenses or pay for the

conditions occurring during the period

of unpaid leave when coverage lapsed

in the two examples given. However, an

employer could not exclude any benefit

previously enjoyed by the employee

who returns to work after the leave.

Accordingly, the returning employee in

the second example could not be denied

disability coverage because of any

condition which arose during the leave

and corresponding lapse of coverage.

The employer would be responsible for

providing benefits to the employee

equivalent to the level enjoyed by the

employee prior to starting the leave,

regardless of any qualifications imposed

by the plan.

Pathology Medical Laboratories

(Riordan & McKinzie) questioned the

intent of the provision in § 825.213(e) of

the Interim Final Rule requiring a selfinsured plan to provide benefits during

periods in which the employee failed to

pay the premium. In addition to being

obligated for the payment of covered

claims incurred during a period for

which the employee paid the premiums,

a self-insured plan cannot deny

payment of claims during the applicable

grace period provided by § 825.212(a),

i.e., in the absence of a specific policy

for other forms of unpaid leave,

coverage for the employee must be

maintained during the grace period and

may only cease at the end of the 30-day

grace period (provided the required 15-

day notice has been provided).

Fisher & Phillips noted that the

definition of ‘‘employment benefits’’ in

§ 825.800 includes ‘‘non-ERISA’’ plans.

If an employer makes premium

payments on behalf of employees on

FMLA leave who participate in a nonERISA plan, the plan may be converted

to ERISA status.

The definition of ‘‘employment

benefits’’ contained in the interim rule

was based on FMLA’s statutory

definition of the same term in § 101(5).

However, as discussed above, plans

meeting the specific criteria in

§ 825.209(a) will be excluded from

FMLA’s definition of covered
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2213

‘‘employment benefits,’’ to be consistent

with a similar narrow exception

followed under ERISA. Maintenance of

such individual health insurance

policies which are not considered a part

of the employer’s group health plan (as

newly defined) are the sole

responsibility of the employee, who

should make necessary arrangements

directly with the insurer for payment of

premiums during periods of unpaid

FMLA leave.

Notwithstanding these provisions, if

an employer’s payment of health or

welfare benefit premiums (as required to

comply with FMLA) changes the plan

from a non-ERISA to an ERISA-covered

plan, the result is unavoidable in light

of the statutory provisions.

William M. Mercer, Inc. suggested

that the rule specify more clearly that an

employer’s ability to recover premiums

for non-health benefits includes both

the employer and employee share,

regardless of the reason for an

employee’s failure to return to work.

An employer may elect to pay

premiums continuously (to avoid a

lapse of coverage or otherwise) for ‘‘nonhealth’’ benefits (e.g., life insurance,

disability insurance, etc.). Like the

provision in section 825.212(b)

regarding health benefits, this section

(as restructured and revised for clarity)

provides a new paragraph (b) that where

such payments have been made, and the

employee returns to work at the

conclusion of leave, the employer is

entitled to recover only the costs

incurred for paying the employee’s

share of any premiums (regardless of an

employee’s argument that he or she did

not want coverage during the leave). If

the employee fails to return to work for

any reason, the employer may also

recover only the employee’s share of

any non-health benefit costs incurred by

the employer.

Rights on Returning to Work (§ 825.214)

FMLA’s employment and benefits

protection requires that an eligible

employee be restored, upon return from

FMLA leave, to the original position

held by the employee when the leave

commenced, or to an equivalent

position with equivalent benefits, pay,

and other terms and conditions of

employment.

Equal Rights Advocates recommended

that the regulations interpret FMLA’s

restoration rights to require that the

employer first try to reinstate the

employee to the same position, and,

only if it is not available, restore the

employee to an ‘‘equivalent’’ position.

Women Employed Institute and

Women’s Legal Defense Fund suggested

that employers be required to notify

employees no later than the last day of

leave if an employer does not intend to

restore an employee to the same

position.

The State of Oregon’s Bureau of Labor

and Industries asked if an employee’s

right to reinstatement under FMLA

persists ad infinitum until the employee

is offered an equivalent position, or if it

is ever extinguished (e.g., where the

former job has been eliminated during

the leave and no equivalent positions

are available when the employee’s leave

ends). Fisher & Phillips suggested that

the regulations should enable an

employer to deny reinstatement to a

returning employee if it can

demonstrate that the job was eliminated

for business reasons (citing, for

example, where the employee’s work

can be performed by other workers) and

no other ‘‘equivalent’’ job is available

for the employee.

As explained in FMLA’s legislative

history, the standard for evaluating job

‘‘equivalence’’ under FMLA parallels

Title VII’s general prohibition against

job discrimination (42 U.S.C. 2000e–

2(a)(1)), which prohibits

‘‘discriminat[ion] * * * with respect to

[an employee’s] compensation, terms,

conditions, or privileges of

employment,’’ and is intended to be

interpreted similarly:

The committee recognizes that it will not

always be possible for an employer to restore

an employee to the precise position held

before taking leave. On the other hand,

employees would be greatly deterred from

taking leave without the assurance that upon

return from leave, they will be reinstated to

a genuinely equivalent position. Accordingly,

the bill contains an appropriately stringent

standard for assigning employees returning

from leave to jobs other than the precise

positions which they previously held.

First, the standard of ‘‘equivalence’’—not

merely ‘‘comparability’’ or ‘‘similarity’’—

necessarily requires a correspondence to the

duties and other terms, conditions and

privileges of an employee’s previous

position. Second, the standard encompasses

all ‘‘terms and conditions’’ of employment,

not just those specified. (Report from the

Committee on Labor and Human Resources

(S.5), Report 103–3, January 27, 1993, p. 29.)

Given this history, DOL lacks

authority to require an employer to first

attempt to place a returning employee in

the same position from which the

employee commenced FMLA leave, and

we do not see the utility of imposing

additional notification requirements on

employers when they simply exercise

their statutory rights to place employees

in equivalent positions. If a position to

which a returning employee is placed is

equivalent, the employee has no right to

obtain his or her original job back. On

the other hand, as an enforcement

matter, we recognize that restoring an

employee to the same position presents

strategic advantages to employers who

attempt to meet their FMLA compliance

objectives in this manner, because it

avoids what may often become

protracted disputes with employees

over the exacting ‘‘equivalence’’

standards that must be applied. It

should be noted, in response to the

comments from the State of Oregon’s

Bureau of Labor and Industries and

Fisher and Phillips, an employer has an

obligation to place the employee in the

same or an equivalent position even

where no vacancy exists. The statute

does not permit an employer to replace

an employee who takes FMLA leave or

restructure a position and then refuse to

reinstate the returning employee on the

ground that no position exists.

Furthermore, an employee’s acceptance

of a different but allegedly equivalent

job does not extinguish an employee’s

statutory rights to be restored to a truly

equivalent job or to challenge an

employer’s placement decision.

Enforcement actions may be brought

within two years after the date of the

last event constituting the alleged

violation, unless the violation is willful,

in which case a three year statute of

limitations applies. Given the

complexities involved, it may well be

advantageous for employers to restore

returning employees to their same

positions, but it cannot be a requirement

of compliance in the regulations. As

explained elsewhere in the regulations,

if, but for being on leave, an employee

would have been laid off, the

employee’s right to reinstatement is

whatever it would have been had the

employee not been on leave when the

layoff occurred. Note, too, however, that

it is a violation of FMLA’s prohibited

acts (§ 105 of the Act) for an employer

to discharge or otherwise discriminate

against an employee for exercising

rights under the Act. Thus, it would be

a prohibited act to refuse to place an

employee in the same position because

the employee had taken FMLA leave.

Similarly, an employer that eliminates

the job of an employee who takes FMLA

leave (for example, by redistributing the

work to other employees) must bear the

burden of establishing that the job

would have been eliminated, and the

employee would not otherwise have

been employed at the time of

restoration, if the employee had

continued to work instead of taking the

leave. (See § 825.216.)

Sommer & Barnard noted the

regulations did not address an

employers’s obligation to reinstate an

employee who returns to work before
2214 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

the planned expiration of the scheduled

FMLA leave without advance notice to

the employer, and suggested a minimum

of two business days advance notice be

required of the employee in such a case.

(See also §§ 825.216 and 825.309.) On

the one hand, an employee cannot be

required to take more leave than is

necessary to address the employee’s

FMLA need for leave (because it would

not qualify as FMLA leave and,

therefore, could not be charged against

the employee’s 12-week FMLA leave

entitlement during the 12-month

period). On the other hand, employees

should be able to provide reasonable

advance notice of changed

circumstances affecting the employee’s

need for FMLA leave. The suggestion a

minimum of two days advance notice be

required has been adopted in

§ 825.309(c). Also, an employer may

obtain such information in periodic

status reports from the employee.

Wessels & Pautsch commented that

employers who choose to accommodate

individuals who are not protected by

the ADA should not risk litigation by

reinstating a returning employee to less

than an equivalent position if the

position offered is all that the employee

can perform. They recommended that

the final rule note that the right of

reinstatement to the same or equivalent

position is contingent upon the

employee’s continued ability to perform

all of the essential functions of the job.

(See also § 825.215.) This point has been

clarified in this section.

The National Association of

Temporary Services, in commenting on

this section, supported adoption in the

rule of a concept that temporary

employees who find their spots filled

upon return from leave would go to the

‘‘head of the line’’ for placement by the

temporary help company under certain

circumstances. There are limitations,

however, in the application of this

‘‘head of the line’’ principle, because

some circumstances of temporary help

employment would require immediate

reinstatement under FMLA. If, for

legitimate business reasons unrelated to

the taking of FMLA leave, the client of

a temporary help company discontinues

the services of the temporary help

company (i.e., the contract under which

the employee who took FMLA leave was

working has ended), or discontinues the

services formerly performed by the

employee who took FMLA leave, and

there are no available equivalent

temporary help jobs at the same client

of the temporary help company, then

the obligation of the temporary help

employer is to find an equivalent

temporary help job to which to restore

the returning employee at another client

company. If no other equivalent

positions are available with other

clients, and if the returning employee

typically experienced ‘‘waits’’ between

jobs in the ordinary course of his or her

employment with the temporary help

placement company, then such an

employee would be entitled to priority

consideration for the next suitable

placement with other customers. On the

other hand, if the client is still using

agency employees in the same or

equivalent positions, the agency would

be required to reinstate the employee

immediately, even if it would be

required to remove another employee.

This concept has been clarified in

§ 825.106 in discussing joint

employment responsibilities of

temporary help companies and their

client firms.

The Edison Electric Institute asked if

an employer is obliged to hold a

position open for a ‘‘contract’’ employee

employed by a contractor if the contract

was originally for a period longer than

the employee’s FMLA leave time would

consume. In the Department’s view the

contractor would have the responsibility

as the primary employer of the

employee for job restoration at the

conclusion of the employee’s FMLA

leave, provided the primary employer

chooses to place the employee in that

position, rather than in an equivalent

position elsewhere. If the contract

employee’s services are still being

provided by the contractor under

contract to the secondary (customer or

client) employer, the primary

(contractor) employer could restore the

contract employee to the previous

contract in the same or an equivalent

position. Furthermore, if the secondary

(customer or client) employer attempted

to interfere with or restrain the primary

(contractor) employer’s attempts to

restore the contract employee to his or

her previous position from the start of

the leave, the secondary (client or

customer) employer would be in

violation of the ‘‘prohibited acts’’

section of the Act and regulations (see

§ 825.220). These principles are

discussed in § 825.106.

The College and University Personnel

Association recommended that colleges

and universities be permitted to

maintain flexibility to place a faculty

member in a temporary position without

equivalent duties and responsibilities

when the faculty member returns during

a term, suggesting that educational

institutions are unique because they

work on the semester or quarter system

and it disrupts students’ education if a

professor is brought back to teach

during the term. FMLA contains no

authority to grant the requested

exception by regulation. The Congress

addressed to some extent the special

circumstances of local education

agencies under § 108 of FMLA, but

chose not to include colleges and

universities within the scope of the

special rules.

Equivalent Position (§ 825.215)

An equivalent position is one that is

virtually identical to the employee’s

former position in terms of pay,

benefits, and working conditions,

including perquisites and status. This

section of the regulations, which

attempted to articulate the various

factors that have an impact on meeting

the statutory standards for

‘‘equivalence’’ under FMLA and to

present interpretations through

examples, generated numerous

comments.

Five commenters (Federally

Employed Women; Women’s Legal

Defense Fund; Food & Allied Service

Trades; International Brotherhood of

Teamsters; and Service Employees

International Union) objected to the

discussion in paragraph (a) of this

section that appeared to use the terms

‘‘equivalent’’ and ‘‘substantially

similar’’ interchangeably, and they

suggested that the regulations were

confusing the applicable standards. The

final rule has been clarified in response

to these comments. As described in the

legislative history noted above, the

standard for evaluating job

‘‘equivalence’’ under FMLA parallels

Title VII’s general prohibition against

job discrimination, and is intended to be

interpreted in a similar manner.

‘‘Equivalence’’ necessarily requires a

correspondence to the duties and other

terms, conditions and privileges of an

employee’s previous position, which is

more than mere ‘‘comparability’’ or

‘‘similarity.’’ Moreover, the intended

standard encompasses all ‘‘terms and

conditions’’ of employment, not just

those specified. Thus, several of these

commenters objected on these grounds

to the exclusion in paragraph (f) of

‘‘perceived loss of potential for future

promotional opportunities’’ and ‘‘any

increased possibility of being subject to

a future layoff’’ from what was

encompassed by ‘‘equivalent pay,

benefits and working conditions’’ under

FMLA. As requested by these

commenters, the final rule has been

clarified to indicate that an equivalent

position must have the same or

substantially similar duties, conditions,

responsibilities, privileges and status as

the original position. The references to

perceived loss of potential promotions

and increased possibility of future layoff

have been deleted from paragraph (f).
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2215

Eight commenters (Burroughs

Wellcome Company; Southern Electric

International, Inc. (Troutman Sanders);

California Department of Fair

Employment and Housing; William M.

Mercer, Inc.; Chamber of Commerce of

the USA; Society for Human Resource

Management; and Timber Operators

Council) raised questions or concerns

on the regulatory guidance on the

impact of unpaid FMLA leave on

various forms of incentive pay plans

and bonuses (e.g., perfect attendance

bonuses, sales bonuses based on

calendar year productivity, and pay

increases based on performance

reviews. 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 meets all the qualifications to

receive these types of bonuses up to the

point that FMLA leave begins, the

employee must continue to qualify for

this entitlement upon returning from

FMLA leave. In other words, the

employee may not be disqualified from

perfect attendance, safety, or similar

bonus(es) because of the taking of FMLA

leave. (See § 825.220 (b) and (c)). A

monthly production bonus, on the other

hand, does require performance by the

employee. If the employee is on FMLA

leave during the period for which the

bonus is computed, the employee is not

entitled to any greater consideration for

the bonus than other employees receive

while on paid or unpaid leave (as

appropriate) during the period. Because

restored employees are not entitled to

accrue seniority during a period of

FMLA leave, pay increases based on

performance reviews conducted after 12

months of completed service with the

employer may be delayed by the amount

of unpaid FMLA leave an employee

takes during the 12-month period (in the

absence of policies that treat other forms

of unpaid leave differently). In contrast,

a pay increase based on annual

performance reviews geared to an

employee’s ‘‘entry on board’’

anniversary date without regard to any

unpaid leave taken during the period

may not be denied or delayed (once the

employee returns from FMLA leave) to

an employee on FMLA leave on his or

her anniversary date. The regulations

have been clarified to include some of

these principles.

Fourteen commenters (Alabama

Power Company (Balch & Bingham);

Pathology Medical Laboratories

(Riordan & McKinzie); Department of

Personnel, City of Dallas; New

Hampshire Retirement System;

University of California; Hill & Barlow;

Morris R. Friedman; Willcox & Savage;

McCready and Keene, Inc; William M.

Mercer, Inc; Government Finance

Officers Association; National Council

on Teacher Retirement; National

Restaurant Association; and Virginia

Maryland Delaware Association of

Electric Cooperatives) expressed various

views on, and requested clarification of,

provisions included in paragraph (d)(4)

of this section that indicated periods of

FMLA leave would be treated as

‘‘continuous service (i.e., no break in

service) for purposes of vesting and

eligibility to participate’’ in pension and

other retirement programs. To resolve

the confusion created by this provision,

several clarifications have been

included in the final rule. Under the

FMLA, unpaid leave does not constitute

service credit—except for purposes of

‘‘break in service’’ rules because the

taking of FMLA leave cannot ‘‘* * *

result in the loss of any employment

benefit accrued prior to the date on

which the leave commenced’’

(§ 104(a)(2)). Thus, employees will not

be deemed to accrue hours of service

during periods of unpaid FMLA leave

(paid leave is counted as service credit).

Note, in addition, however, that if any

FMLA leave is also covered by special

maternity and paternity leave plan

pension break in service rules under

ERISA, the more generous rule would

apply. Paragraph (d)(4) of this section is

clarified to reflect this position.

Cincinnati Gas & Electric Company

and Austin Human Resource

Management Association asked that the

requirement for an employee to be

reinstated to the same or a

‘‘geographically proximate’’ worksite be

further defined in paragraph (e)(1) of

this section. In response, the rule is

clarified to provide that a geographically

proximate worksite is one that does not

involve a significant increase in

commuting time or distance.

Austin Human Resource Management

Association also recommended that the

rules clarify an employer’s obligation to

return an employee to an equivalent

position following FMLA leave when

the employee has medical limitations

but is not a qualified individual with a

disability under the ADA. An

employee’s right to restoration under

FMLA is dependent upon the

employee’s ability to perform all of the

essential functions of the employee’s

position. This is now addressed in

§ 825.214. (See also the discussion in

§ 825.702.) This commenter also

suggested that the final rule expressly

state that FMLA does not affect the

employer’s right to administer a light

duty return to work program for

employees off work due to injury or

illness. This is an incorrect

interpretation of FMLA’s leave

entitlement provisions and cannot be

adopted in the regulations. See the

discussion in § 825.702(d)(2). An

employer may not require an employee

to return to light duty. But the employer

is not prohibited from providing a

program under which an employee

could voluntarily return to duty before

he or she is able to perform all the

essential functions of the job. In such a

case, because an employee cannot waive

his or her FMLA rights, the employee’s

right to be restored to his or her original

or an equivalent position would

continue until 12 weeks have passed in

that 12-month period, including all

FMLA leave and the light duty period

for which the employee would

otherwise have been on leave. See the

revisions at §§ 825.220 and 825.702.

College and University Personnel

Association commented that

§ 825.215(d)(2) appeared to prohibit

employers from applying ‘‘use it or lose

it’’ policies because an employee who

takes FMLA leave is entitled to the same

benefits upon return from leave as he/

she was entitled to at the

commencement of the leave, regardless

of whether the ‘‘use it or lose it’’ date

has passed. The commenter considered

this interpretation inconsistent with

§ 825.216, which suggests an employee

has no greater right to benefits than if

the employee had been continuously

employed during the FMLA leave. The

commenter is correct that the FMLA

extends no greater right or benefit to

eligible employees than they would

receive if they worked continuously

during the FMLA leave. Consistent with

this provision, if an employee would

have ‘‘lost’’ the benefit if the employee

had been continuously employed

instead of taking FMLA leave, the

employee is not entitled to ‘‘retain’’ the

benefit simply because the employee

took FMLA leave, regardless of whether

the trigger date for ‘‘losing it’’ occurs

during a period the employee is on

FMLA leave.

The National Association of

Plumbing-Heating-Cooling Contractors

commented that for union-affiliated

employers under a collective bargaining

agreement, an eligible employee who

requests FMLA leave will be replaced

from the hiring hall. According to the

commenter, the employer has no

authority to recall a worker back to his

or her original position at the end of the

leave. As noted in § 825.700 of these

regulations and § 402 of the FMLA, the

rights established for eligible employees

by FMLA may not be diminished by any

collective bargaining agreement or any

employment benefit program or plan.
2216 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

An employer under the circumstance

described by this commenter would still

be required to reinstate the eligible

employee to the same or an equivalent

position.

Limitations on Employer’s Obligation to

Reinstate (§ 825.216)

Section 104(a)(3) of FMLA limits the

entitlement of any restored employee to

no greater right, benefit, or position of

employment than any right, benefit, or

position of employment to which the

employee would have been entitled had

the employee not taken the leave. An

employer must demonstrate that the

employee would not otherwise have

been employed when reinstatement is

requested to be able to deny restoring

the employee (for example, in the case

of a department-wide layoff affecting the

employee’s former position). Similarly,

if a shift has been eliminated or

overtime work has decreased, a

returning employee would not be

entitled to return to that shift or to work

the same overtime hours as before. In

addition, an employer may deny

reinstatement to an eligible ‘‘key’’

employee if such reinstatement would

cause substantial and grievous

economic injury to the employer’s

operations and if the employer has

complied with all the provisions of

§ 825.217; and, an employer may delay

reinstatement of an employee who fails

to furnish a fitness for duty certificate

on return to work in the circumstances

described in § 825.310, until the

certificate is furnished.

The National Association of Computer

Consultant Business commented that

while this section referred to the task of

the project being completed while an

employee is on FMLA leave and the loss

of reinstatement rights in that instance,

it did not refer to other similar

limitations, such as where a position is

eliminated or resubcontracted. The

same principles would apply in these

other instances where the position of

employment no longer exists and the

change occurs during an employee’s

FMLA leave. An employee’s rights to be

restored are the same as if the employee

had not taken the leave. The employer

must establish that the employee who

seeks reinstatement would not

otherwise have been employed if leave

had not been taken in order to deny

reinstatement. See also § 825.312(d).

Employers Association of New Jersey

asked, where an employee would have

been laid off during a period of FMLA

leave, at what point does the leave end

and the employee’s entitlement to

maintenance of group health benefits

cease? Or, where the employer makes a

bona fide determination that, because of

reduced workforce requirements, the

services of the employee on FMLA leave

will no longer be required? Similarly,

Alabama Power Company (Balch &

Bingham) requested more guidance be

given on department-wide downsizing

while an employee is on leave—must

the employee still be kept on leave for

the remainder of the planned FMLA

leave if he or she would have been

permanently laid off when the

downsizing occurred? Fisher and

Phillips also suggested the regulations

clarify that an eligible employee’s rights

to group health plan benefits end after

the date of a layoff affecting an

employee on FMLA leave. The National

Restaurant Association suggested that it

would be helpful if more examples were

included of circumstances where an

employee’s rights to job restoration and

maintenance of health benefits are

limited.

As explained in several sections of the

regulations, an eligible employee under

FMLA is entitled to no greater right of

employment than if leave had not been

taken. The legislative history points out

that if, but for being on leave, an

employee would have been laid off, the

employee’s right to reinstatement is

whatever it would have been had the

employee not been on leave at the time

of the layoff. Thus, if an employee is

laid off during an FMLA leave period,

the employer’s obligations to continue

the employee on FMLA leave, maintain

the employee’s group health plan

benefits, and restore the employee to a

position of employment, all cease at the

time the employee is laid off provided

the employer has no such obligation

under a collective bargaining agreement

or otherwise, and the employer can

demonstrate that the employee would

not have been reinstated, reassigned, or

transferred in the absence of the FMLA

leave. This section has been so clarified.

Note, too, however, an employer is

prohibited from discharging or

otherwise discriminating against an

employee for exercising rights under the

Act, and the employer that eliminates

the job of an employee who takes FMLA

leave (for example, by redistributing the

work to other employees) bears the

burden of establishing that the job

would have been eliminated, and the

employee would not otherwise have

been employed by the employer, if the

employee had continued to work

instead of taking the leave. (See also the

discussion of § 825.214, above.)

Employers Association of New Jersey

also asked whether an employer is

obligated to reinstate an employee if,

during the leave, the employee engaged

in conduct which would have resulted

in discharge if the conduct occurred

while the employee was at work. If no

such obligation exists, may the FMLA

leave and maintenance of group health

insurance be discontinued at the point

in time that the misconduct took place?

Again, an employee on FMLA leave is

entitled to no greater right of

employment than if the leave was not

taken. Provided the employer’s policies

are nondiscriminatory, are applied

uniformly to similarly-situated

employees, and violate no other laws,

regulations, or collective bargaining

agreements where applicable, sanctions

such as discharge for misconduct may

continue to be applied to the employee

on FMLA leave for actionable offenses

as if the employee had continued to

work.

‘‘Key’’ Employee Exemption (§ 825.217)

FMLA provides a limited exemption

from an employer’s requirement to

restore an employee to employment

after FMLA leave if certain factors are

met: (1) denial of restoration to

employment (but not the taking of the

leave) must be necessary to prevent

‘‘substantial and grievous economic

injury’’ to the employer’s operations; (2)

the employer must notify the employee

of its intent to deny restoration under

this exemption at the time the employer

determines that such grievous economic

injury would occur; (3) if the leave has

already commenced, the employer must

allow the employee an opportunity to

elect to return to work after receiving

the notice from the employer; and (4)

the exemption is limited to a salaried

eligible employee who is among the

highest paid 10 percent of the

employer’s workforce within 75 miles of

the facility where employed. These

provisions are statutory, as set forth in

§ 104(b) of FMLA.

Several commenters suggested

changes that would be inconsistent with

the statutory terms of the exemption,

such as increase the ‘‘top 10 percent’’ to

‘‘top 25 percent’’ or decrease it to ‘‘top

five percent,’’ or guarantee

reinstatement rights to women who

have achieved the top 10 percent status

despite the terms of the exemption, or

limit applicability of the exemption to

private sector employers only. The

Department cannot adopt regulatory

provisions for the exemption that would

run counter to the terms of the statute.

The National Association of

Plumbing-Heating-Cooling Contractors

questioned whether key employees had

to be notified of their designation as

‘‘key’’ prior to requesting FMLA leave,

suggesting that employers should be

required to do this to prevent

misunderstandings and abuses (e.g., at

the time of being hired). Under the
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2217

terms of the statute, the employer must

notify an employee ‘‘at the time the

employer determines’’ that the requisite

injury from restoration would occur.

Under § 825.217(c)(2), the determination

of whether a salaried employee is

among the top 10 percent for purposes

of the exemption is made at the time of

a request for leave. Under the ‘‘notice to

employee’’ provisions of § 825.301(c)(6),

the employer must inform a ‘‘key’’

employee in response to a request for

leave whether the employee is a ‘‘key’’

employee, and the potential

consequence that restoration may be

denied following the leave. As provided

under § 825.219, if an employer believes

reinstatement may be denied, such

written notice must be provided to the

employee at the time of the leave

request, or when the FMLA leave

commences, whichever is earlier.

Failure to provide timely notice that the

employee is a key employee and

restoration may be denied will cause

employers to lose their right to deny

restoration, even where substantial and

grievous economic injury will result

from restoring the employee.

The Society for Human Resource

Management asked whether overtime is

included when computing the highest

paid 10 percent of the workforce, and

how the determination is made when

there is a parent company and a

subsidiary involved. As detailed in

§ 825.217(c)(1), the earnings used for

this computation include wages (which

includes salaries), premium pay (which

includes ‘‘overtime’’ premium pay),

incentive pay (e.g., commissions), and

non-discretionary and discretionary

bonuses. The definition of ‘‘employer’’

in § 825.104 would control in cases

involving a parent and subsidiary. As

provided in § 825.104(c), normally the

legal entity which employs the

employees is the employer, and a

corporation is a single employer (rather

than its separate establishments or

divisions). Where one corporation has

an ownership interest in another, it is a

separate employer unless it meets the

tests for ‘‘integrated employer’’

(§ 825.104(c)(2)), in which case all

employees of the integrated employer

are considered.

Substantial and Grievous Economic

Injury (§ 825.218)

To deny restoration to a ‘‘key’’

employee, the employer must establish

that restoring the employee would cause

‘‘substantial and grievous economic

injury’’ to the employer’s operations. In

explaining the conditions for applying

the ‘‘key’’ employee exemption, the

legislative history indicated, when

measuring grievous economic harm,

‘‘* * * a factor to be considered is the

cost of losing a key employee if the

employee chooses to take the leave,

notwithstanding the determination that

restoration will be denied.’’ Numerous

commenters (Chicago Transit Authority;

Nationsbank Corporation (Troutman

Sanders) and Southern Electric

International, Inc (Troutman Sanders);

Pima Federal Credit Union; United

Federal Credit Union; Weinberg &

Green; Wessels & Pautsch; Willcox &

Savage; Credit Union National

Association, Inc; National Association

of Federal Credit Unions; and the

National Restaurant Association)

requested more specific guidelines and

further regulatory definition of the

statutory term ‘‘substantial and grievous

economic injury.’’ One commenter (IBM

Endicott/Owego Employees Federal

Credit Union) suggested further

guidance was unnecessary. The

National Association of Federal Credit

Unions noted additionally that under

the ADA, an employer’s operations

suffer an ‘‘undue hardship’’ if

accommodation to an employee would

be unduly costly, extensive, substantial,

or disruptive or would fundamentally

alter the nature or operation of the

business. This commenter suggested

these same factors under ADA could be

applied in determining whether or not

an employer’s operations would suffer

‘‘substantial and grievous economic

injury’’ by restoring a key employee to

the position. The EEOC, on the other

hand, which administers the ADA,

recommended that the FMLA rules state

that FMLA’s standard for the ‘‘key’’

employee exemption is different from

‘‘undue hardship’’ under the ADA. The

Department concurs with EEOC’s

suggestion that ‘‘substantial and

grievous economic injury’’ under FMLA

is different from ‘‘undue hardship’’

under the ADA. FMLA creates a narrow

exception to the reinstatement rights of

a key employee, whereas ADA’s

standard provides a measure of the

reasonableness of any accommodation.

Additionally, the definitions of the two

terms suggest that ‘‘substantial and

grievous economic injury’’ is more

stringent than ‘‘undue hardship.’’ The

FMLA rules define ‘‘substantial and

grievous economic injury’’ to include

‘‘substantial long-term injury.’’ Undue

hardship is defined as ‘‘significant

difficulty or expense’’ (see Appendix to

29 CFR Part 1630.2(p)). Accordingly, the

final rule is revised to clarify that the

two standards are, in fact, different, and

that FMLA’s standard is more stringent

than the ADA’s ‘‘undue hardship’’

standard. Further regulatory guidelines,

however, in the form of a more precise

test, cannot be established due to the

fact-specific circumstances that must be

evaluated on a case-by-case basis.

Rights of a Key Employee (§ 825.219)

This section detailed the guidelines

for applying the ‘‘key’’ employee

exemption, and the requirements for

employers to furnish proper and timely

notice to ‘‘key’’ employees, informing

them of the possibility that restoration

to employment may be denied. A ‘‘key’’

employee must be given a reasonable

period of time after receiving the

employer’s notice in which to elect

whether to return to work. A key

employee who takes leave is still

eligible for maintenance of group health

benefits, even after the employee has

been notified that reinstatement will be

denied. In those circumstances, the

employer may not recover the premiums

it paid to maintain such health benefits.

An employee who continues on leave

after receiving notice from the employer

is still entitled to request reinstatement

at the conclusion of the leave period,

and the employer must again determine

if substantial and grievous economic

injury will result from reinstatement

based on the facts existing at that time.

TRW Systems Federal Credit Union,

Fisher & Phillips, and the National

Restaurant Association considered the

requirements to give written notices to

key employees as provided in the

regulations to be excessive and

duplicative. The National Association of

Federal Credit Unions opposed the

requirement for a second determination

to be made, after a key employee has

already chosen to continue the leave

after receiving the employer’s first

notice that restoration will be denied.

The Chamber of Commerce

recommended that the regulations

require written notice but not mandate

a specific form of delivery (either in

person or by certified mail). The

National Restaurant Association

considered the obligations of the

employer to be so burdensome under

the regulations as to render the

exception under the Act of no practical

value.

After full consideration given to the

comments received on this section, the

Department continues to believe that the

rule properly construes the rights

intended by the Act for ‘‘key’’

employees; thus, no further

modifications have been made in

response to the comments. Section

104(b) of FMLA is intended as a narrow,

limited exemption from the otherwise

applicable restoration requirements of

the Act. The procedural requirements

set forth in the rule ensure that the

standards for the exemption have been
2218 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

properly met, i.e., based on facts

existing at the time an employee seeks

restoration to employment, the

employer must establish that denial of

restoration at that time is necessary to

prevent substantial and grievous

economic injury to the employer’s

operations.

Employee Protections and Prohibited

Acts (§ 825.220)

Section 105 of FMLA makes it

unlawful for an employer to interfere

with or restrain or deny the exercise of

any right provided by the Act. It also

makes it unlawful for an employer to

discharge or in any other manner

discriminate against any individual for

opposing any practice made unlawful

by the Act. This opposition clause is

derived from Title VII of the Civil Rights

Act of 1964 and is intended, according

to the legislative history, to be construed

in the same manner. Thus, FMLA

provides the same sorts of protections to

workers who oppose, protest, or attempt

to correct alleged violations of the

FMLA as are provided to workers under

Title VII. The regulations provided that

any violation of the FMLA or its

implementing regulations would

constitute interfering with, restraining,

or denying the exercise of rights under

the Act. ‘‘Interfering with’’ the exercise

of rights was defined to include not only

denying authorization for or

discouraging an employee to take FMLA

leave, but manipulation by the employer

to avoid responsibilities (such as

unnecessarily transferring employees

among worksites to avoid the 50-

employee threshold for employees’

eligibility). FMLA’s anti-discrimination

provisions were interpreted in the

Interim Final Rule to prohibit an

employer from requiring more of an

employee who took FMLA leave than

the employer requires of employees who

take other forms of paid or unpaid leave

(e.g., requirements to furnish written

notice or certification for use of leave).

Also, employers were prohibited from

considering an employee’s use of FMLA

leave as a negative factor in any

employment actions (e.g., promotions or

discipline), and specifically in

connection with ‘‘no fault’’ attendance

policies. Finally, the regulations

expressed DOL’s view that employees

cannot waive their rights under FMLA,

nor can employers induce employees to

waive their FMLA rights.

Ten commenters (Consolidated

Edison Company of New York, Inc.;

Dopaco, Inc.; Red Dot Corporation; Tax

Collector, Palm Beach County, Florida;

Austin Human Resource Management

Association; Equal Employment

Advisory Council; Florida Citrus

Mutual; Food Marketing Institute;

Greater Cincinnati Chamber of

Commerce (Taft Stettinius Hollister);

and the Society for Human Resource

Management) opposed the prohibitions

against counting FMLA-protected leaves

of absence in disciplinary actions and

under employers’ attendance control

policies. Some felt that FMLA should

not invalidate legitimate attendance

control programs, which are objective

and nondiscriminatory as to the reason

for a given absence, or that reasonable

attendance requirements should still be

available to employers and remain

within their prerogatives as a condition

of continued employment. Some asked

whether a distinction could be made

between counting FMLA absences

negatively for purposes of discipline or

other adverse action, and counting them

under attendance programs that reward

employees for good attendance (e.g.,

attendance bonus programs). It was

argued that employers should still be

allowed to reward employees positively

for perfect attendance, and be permitted

to exclude an employee from such an

attendance award if the employee’s

FMLA absence makes him or her

ineligible.

Employers 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 meets all the requirements

for these types of bonuses (which

contemplate the absence of an event)

before the FMLA leave begins, the

employee is entitled to continue this

accrued entitlement upon the

employee’s return from FMLA leave (the

taking of FMLA leave cannot ‘‘* * *

result in the loss of any employment

benefit accrued prior to the date on

which the leave commenced’’). Thus,

the employee may not be disqualified

for such bonus(es) merely because the

employee took FMLA leave during the

period; to do so would discriminate

against the employee for taking FMLA

leave. A monthly production bonus, on

the other hand, does require

performance by the employee during the

period of production. If the employee is

on FMLA leave during the period for

which the bonus is computed, the

employee may be excluded from

consideration for the bonus. These

principles are discussed in new

§ 825.215(c)(2).

Nationsbank Corporation (Troutman

Sanders) observed that the courts in

recent years have found that some

employees have abused or illegitimately

sought the protection of antidiscrimination statutes to avoid

legitimate discipline, and that the courts

and some administrative agencies

(including DOL) have developed

decision rules to bar such use of the law

by employees. The commenter

recommended that DOL explicitly

prohibit employee abuse or misuse of

FMLA and include sanctions for such

misconduct (e.g., discharge, payment of

attorneys’ fees or other costs).

Sections 825.216 and 825.312 discuss

at some length, as noted repeatedly

throughout this preamble, that FMLA

does not entitle any employee to any

right, benefit, or position of employment

other than any right, benefit, or position

of employment to which the employee

would have been entitled if the

employee had not taken leave under the

FMLA. Thus, FMLA cannot be used by

employees as a ‘‘shield’’ to avoid

legitimate discipline. As this basic tenet

flows from FMLA’s statutory provisions

which have already been addressed in

the regulations, it is unnecessary to

include the particular suggested

provisions to respond to these concerns.

Nationsbank Corporation (Troutman

Sanders), Southern Electric

International, Inc (Troutman Sanders),

and Chamber of Commerce of the USA

expressed concerns with the ‘‘no waiver

of rights’’ provisions included in

paragraph (d) of this section. They

recommended explicit allowance of

waivers and releases in connection with

settlement of FMLA claims and as part

of a severance package (as allowed

under Title VII and ADEA claims, for

example). The ERISA Industry

Committee raised a similar concern with

respect to the rule’s impact on early

retirement windows offered by

employers. Such windows are typically

open for a limited period of time and

require all employees accepting the offer

to be off the payroll by a certain date.

If employees on FMLA leave have the

right to participate in an early

retirement program, but may continue to

have and assert leave rights, the leave

rights could adversely affect

administration of the early retirement

program.

The Department has given careful

consideration to the comments received

on this section and has concluded that

prohibitions against employees waiving

their rights and employers inducing

employees to waive their rights

constitute sound public policy under

the FMLA, as is also the case under

other labor standards statutes such as

the FLSA. This does not prevent an

individual employee on unpaid leave
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2219

from returning to work quickly by

accepting a ‘‘light duty’’ or different

assignment. Accordingly, the final rule

is revised to allow for an employee’s

voluntary and uncoerced acceptance of

a ‘‘light duty’’ assignment. An

employee’s right to restoration to the

same or an equivalent position would

continue until 12 weeks have passed,

including all periods of FMLA leave and

the ‘‘light duty’’ period. In this

connection, see also § 825.702(d).

With respect to early-out windows for

retirement purposes, an employee on

FMLA leave may be required to give up

his or her remaining FMLA leave

entitlement to take an early-out offer

from the employer. Under these

circumstances, FMLA rights would

cease because the employment

relationship ceases, and the employee

would not otherwise have continued

employment. Further, although an

employer need not extend the window

for those employees who are out on

FMLA leave, the employer must afford

such employees the opportunity to avail

themselves of any such offer which

would have been available if they had

not been on leave.

Florida Citrus Mutual and Fisher &

Phillips took issue with the prohibition

against an employer manipulating the

size of the workforce for the purpose of

precluding employee eligibility for

FMLA leave. They suggested that

employers cannot ‘‘interfere’’ with the

rights of employees unless and until the

employees have those rights.

We disagree with the views expressed

in these comments. It is DOL’s view that

a covered employer that engages in the

manipulative behavior prohibited by the

regulatory provisions is depriving

employees of rights and entitlements

they would otherwise fully enjoy but for

the manipulative actions by the covered

employer, which is expressly

prohibited. The rule is clarified to state

that employers covered by the FMLA

may not engage in such manipulation of

the workforce for the purpose of

avoiding FMLA obligations.

The California Department of Fair

Employment and Housing

recommended revisions to paragraph (c)

of this section to reference the

consequences of an employer asking a

job applicant or the former employer of

a job applicant questions which would

reveal the employee’s use of FMLA

leave, and the consequences of making

hiring decisions based on the use of

FMLA leave. It was suggested that if

hiring decisions are among the

employment actions for which use of

FMLA leave may not be a negative

factor, then the regulations should

incorporate guidance in this area. A

reference to ‘‘prospective employees’’

has been included in paragraph (c) of

this section.

III. Subpart C, §§ 825.300–825.312

Posting Requirements (§ 825.300)

Twenty commenters took exception to

the regulatory requirement regarding the

size of the notice (poster). They felt it

was unnecessary and did not provide

any substantive benefit to employees.

The Department has determined that

it will not prescribe the precise size of

the required poster. The regulation

requires instead that the poster be large

enough to be easily read. This

requirement would be satisfied, for

example, if the poster were at least the

size of a standard 81⁄2×11 inch piece of

paper. The purpose of the poster is to

call employees’ attention to the basic

requirements of FMLA and provide

information where they may get

additional information or file a

complaint. In the past several years a

number of commercial firms have

reproduced other posters, having a

number of posters in a single set or on

a single display, and much of the

information is not legible from any

reasonable distance. If the poster does

not inform, it serves no useful purpose.

Two commenters objected to having a

provision in the regulation that allowed

employees to circumvent their notice

obligations to the employer if the

employer failed to post the notice. The

purpose of this provision is to

encourage employers to post the notice;

otherwise, how would employees know

about FMLA and their basic rights and

where to obtain additional information?

The posting requirement is not difficult

or overly burdensome for an employer,

as the Department will furnish, free of

charge, a copy of the poster which the

employer may duplicate. The

Department finds no basis to remove

this provision from the Final Rule.

The Employers Association of

Western Massachusetts, Inc.,

commented that references to applicants

for employment should be deleted from

the regulation as the statute applies only

to eligible employees.

The statute, at § 109(a), requires the

notice to be posted in conspicuous

places on the premises where notices to

employees and applicants for

employment are customarily posted.

The prohibited acts identified by the

statute in § 105 state that it is unlawful

for an employer and/or any person to

interfere with rights or discriminate

against any individual. Clearly the

prohibited acts are not limited in

application to eligible employees. The

Department is unable to make this

change as it conflicts with the statutory

language.

The Society for Human Resources

Management asked if a contractor who

has employees working at multiple sites

of other employers is required to post

the notice at each site when the

employer who controls the site has

already posted the notice. The

contractor should ensure that a notice is

posted in a conspicuous place on the

worksite where his/her employees have

access. If so, there is no need for the

contractor to post additional notices.

The Tennessee Association of

Business asked if posting the notice

satisfies all notice requirements of the

Act. The posting of the notice is but one

of the notice requirements applicable to

employers. For example, in § 825.301(b)

the employer is required to provide

written notice to an employee who

provides notice of the need for FMLA

leave regarding eight essential elements

of information that are employeespecific. There are a number of other

notice provisions throughout the

regulations.

Other Employer Notices (§ 825.301)

Four commenters made observations

regarding the requirements of

§ 825.301(a) for employers to include

their policies regarding the taking of

FMLA leave in employee handbooks, if

they have such a publication. One

commenter asked for the deadline by

which the FMLA provisions should be

included. Another objected to any

requirement to include the process to

file a complaint and advising employees

of their right to file suit. Yet another

urged the Department to provide an

acceptable statement to be included in

the employee handbook regarding

FMLA. One commenter urged that this

requirement be satisfied if the employer

incorporated the Department’s FMLA

Fact Sheet in the handbook.

It was the intent of the regulations

that if an employer provides a handbook

of employer policies, the employer’s

FMLA policies would be included in

the handbook by the effective date of

FMLA. There is no requirement that an

employer include information regarding

filing complaints or private rights of

action. The purpose of this provision is

to provide employees the opportunity to

learn from their employers of the

manner in which that employer intends

to implement FMLA and what company

policies and procedures are applicable

so that employees may make FMLA

plans fully aware of their rights and

obligations. It was anticipated that to

some large degree these policies would

be peculiar to that employer.

Consequently, it would be of little use
2220 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

to incorporate the Department’s Fact

Sheet or a Departmental statement in

the employer’s handbook for employees.

Seven commenters stated that the

notice requirements in § 825.301(c) are

burdensome, not required by the statute

and should be deleted from the

regulations. One commenter urged that

the notice required by this section

should include the consequences of

employees failing to give 30 days notice

when leave is foreseeable. Three

additional commenters urged there be

one generic notice applicable to all

employees except key employees.

The intent of this notice requirement

is to insure employees receive the

information necessary to enable them to

take FMLA leave. The employee is

entitled to know the arrangements for

payment of health insurance premiums

reached by agreement with the

employer, whether the employee will be

required to provide medical certification

for leave or fitness to return to duty, etc.

It would be inappropriate to use a

generic notice as much of the

information may be employee specific,

particularly the arrangements for

payment of insurance co-payments. The

regulation suggests employers provide

information to employees regarding

consequences of inaction. There is

nothing in the regulation that precludes

the employer from providing more

information than required, only from

providing less. The Department finds no

basis to change the requirements of this

notice provision.

Three commenters objected to a

requirement that a notice be provided

each time an employee takes leave,

especially when the employee is taking

leave intermittently.

The regulation has been amended to

provide that in most circumstances

notice need only be given once in each

six- month period, on the occasion of

the first employee notice of the need for

leave. However, if the specific

information required to be furnished in

the notice changes, notice of the

changed information must be provided

in response to a subsequent notice of

need for leave. In addition, an employer

will be required to give notice of a

requirement for medical certification, or

for a ‘‘fitness-for-duty’’ report upon the

employee’s return to work, each time

the employer receives notice of a need

for FMLA-qualifying leave. An

exception will exist, however, if the

notice given at the beginning of the sixmonth period, as well as any employee

handbooks or other written documents

regarding the employer’s leave policies,

make it clear that medical certification

or a ‘‘fitness-for-duty’’ report will be

required under the circumstances of the

employee’s leave. For example, the prior

notice and handbook (if any) might state

that certification will be required for all

sick leave of any kind, for all unpaid

sick leave, or for all sick leave longer

than a specified period. Similarly, the

notice and handbook might state that

‘‘fitness-for-duty’’ reports will be

required for all employees with back

injuries in a certain occupation.

The Women Employed Institute urged

that the notice required by § 825.301(c)

be in writing and that the notice should

be furnished to the employee no later

than the day before leave is to begin if

leave is foreseeable or as soon as

practicable if not foreseen.

The regulation has been changed to

make it clear that the notice must be in

writing. The interim final rule required

the employer to provide the notice at

the time notice of need for leave is

provided. The Final Rule will require

such notice to be provided as soon after

notice of need for leave is given as

practicable, usually one or two business

days. The requirement for written notice

simply ensures that the employee

receives critical information and

provides appropriate documentation of

the information conveyed to the

employee in the event of a dispute.

The Church of Jesus Christ of LatterDay Saints commented that an employer

should still be permitted to count an

absence as FMLA leave even if an

employee (who may be too ill) has not

requested FMLA leave for the absence.

An example was provided of an

employee who has a heart attack and

misses five weeks from work but does

not request FMLA leave. The Church

further observes that providing the

employee with the required notice when

the employee is so ill would be

uncaring.

The regulations have been revised to

permit the employer to mail the notice

to the employee’s address of record if

leave has already begun. The regulations

also provide that notice of need for

leave may be given by the employee’s

spokesperson, (e.g., spouse, adult

relative, attorney, doctor).

The California Department of Fair

Employment and Housing comments

that the regulations should be more

specific regarding the obligations of

covered employers who have no eligible

employees. Section 825.500 of the Final

Rule has been revised to specify the

obligations of covered employers who

have no eligible employees.

The regulation has also been revised

to make it clear that if an employer fails

to provide the required information, it

may not take action against an employee

for failure to comply with the

employee’s obligations required to be

set forth in the notice.

Employee Notices (to Employers) When

Leave is Foreseeable (§ 825.302)

Four commenters suggested that it be

made clear that the employee is

required to give notice of need for

FMLA leave to the employee’s

supervisor or other appropriate person,

and need not make the request to some

top official of the company.

The employee is required to provide

notice of need to take FMLA leave to the

same person(s) within the company the

employee ordinarily contacts to request

other forms of leave, usually the

employee’s supervisor. It is the

responsibility of the supervisor either to

refer the employee who needs FMLA

leave to the appropriate person, or to

alert that person to the employee’s

notice. Once the employee has provided

notice to the supervisor or other

appropriate person in the usual manner,

the employee’s obligation to provide

notice of the need for FMLA leave has

been fulfilled.

The Nationsbank Corporation

requested guidance as to the

circumstances in which an employer

may choose to waive notice

requirements. Throughout the

regulations, reference is made to the

employer’s ability to waive notice and

certification requirements. As long as

the employer’s discretion is applied in

a nondiscriminatory manner, the

employer will have complied with these

requirements.

Fisher and Phillips observed that the

regulations do not address the

employee’s obligation to provide notice

of any needed extension to leave already

requested and underway. Sommer and

Barnard also took issue with the notice

requirements regarding an extension of

leave, and suggested that the regulations

should be amended to provide that an

employee on FMLA leave who fails to

report to work at the expiration of the

leave and fails to give FMLA notice of

the need for extension of the leave prior

to its expiration shall not be entitled to

the job restoration protections of the Act

or the regulations, unless it was

impossible to give such notice prior to

expiration of the leave and the

employee thereafter gives the earliest

and best notice possible. The regulation

has been amended in § 825.309(c) to

provide that an employee shall advise

the employer if leave needs to be

extended. In addition, the employer

may obtain such information from

employees through status reports.

Section 825.302(g) has also been

revised to clarify employee notice

obligations when the employer’s paid
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2221

leave plan contains lesser obligations

and paid leave is substituted for unpaid

FMLA leave. An employer may not

impose FMLA’s stricter notice

requirements if the employer’s

applicable leave plan allows less

advance notice for the type of leave

being substituted. See, also,

§ 825.207(h).

The Department also notes that the

regulations continue to provide that

although an employee is only required

by FMLA to give oral notice of the need

for leave, an employer may require an

employee to comply with its usual and

customary notice requirements,

including a requirement of written

notice. If an employee fails to give

written notice in these circumstances,

an employer may not deny or delay

leave, but may take appropriate

disciplinary action.

Employee Notices (to Employer) When

Leave is Not Foreseeable (§ 825.303)

The Women’s Legal Defense Fund

suggested that section (a) be amended to

reflect that an employee may not be

foreclosed from beginning leave even if

one or two days’ notice is not possible.

The final rule has been amended to

include guidance that notice should be

given as soon as practicable.

Two commenters indicated that

verbal notice is not sufficient and the

employer should be permitted to require

a written notice, requesting leave and

providing a general reason for the leave

if FMLA. They suggested that if an

employee needs to request the leave in

an emergency, oral notice should be

sufficient but only if the employee

confirms that request in writing within

two working days.

Nothing in the regulations prohibits

an employer from requiring written

notice to take or request leave if this is

the employer’s usual procedure. The

employer may request written notice for

all leave. The employer, however, may

not deny or delay FMLA-qualifying

leave when the employee provides

verbal notice as soon as practicable.

Having a hard and fast rule that the

employee must give written notice or

confirm the verbal notification within

one or two working days would work an

unnecessary hardship on many

employees who have taken leave for a

medical emergency and are not in a

position to provide written notice either

due to their own serious health

condition, or that of an immediate

family member.

Employer’s Recourse When Employee

Fails To Provide Notice (§ 825.304)

Seven commenters provided

observations regarding this section. Four

of the commenters urged that an

employer not be permitted to deny leave

under any circumstances when the

employee fails to provide adequate

notice, but only delay the leave. They

further stated that the employer should

be permitted to delay the leave only if

the employer can show that the

activities of the business were

prejudiced by the employee’s failure to

provide adequate notice. They

questioned the extent of an employer’s

right to take disciplinary action in the

event adequate notice is not provided

and urged that the employer be

prohibited from denying leave or

discharging the employee for inadequate

notice. One commenter asked for a

definition of the term as soon as

practicable.

Section 102(e) of the statute sets out

obligations of the employee to provide

notice to the employer of the need to

take leave in both foreseeable and

unforeseeable circumstances. As this is

an affirmative responsibility of the

employee it would be inappropriate to

require the employer to show any

prejudice resulting from an employee’s

failure to provide adequate notice. As

used in the regulation, as soon as

practicable is further explained as

within one or two business days unless

that is not feasible. The regulation is

revised to provide that an employer may

delay (rather than deny) leave where

required notice has not been given.

Medical Certification of Serious Health

Conditions (§ 825.305)

The Community Legal Services, Inc.

commented that low income workers

may be unable to persuade health care

providers to provide medical

certifications. They urge an exception

for such workers if obtaining the

certification is not practicable under the

particular circumstances despite the

employee’s diligent, good faith efforts,

and a similar exception that would

excuse a person’s inability to produce a

certification or all the information

requested by the employer because of

non-cooperation by the health care

provider. If an employee under these

circumstances is unable to provide a

complete certification, the employer

could request a second opinion at the

employer’s expense, they suggest.

Further, any employer that requires a

certification should provide a copy to

the employee.

The provision for medical

certification at the request of the

employer is a basic qualification for

FMLA leave. It is the employee’s

responsibility to provide such

certification. The Final Rule has been

amended in § 825.311(b) to provide that

if an employee never produces the

requested certification, the leave is not

FMLA leave. It is the employee’s

responsibility to find a health care

provider that will provide a complete

certification. As the employee is

providing the certification to the

employer, if the employee wishes to

have a copy he/she may make a copy

before submission to the employer. The

regulation has been amended to provide

for copies of a second or third opinion

to be provided by the employer to the

employee upon the employee’s request.

Eight commenters observed that

providing a minimum of 15 days for the

employee to provide medical

certification is unreasonable. In some

cases the certification would not be

provided until the leave is over if the

leave is only for a short period of time,

and the employee would have returned

to work, thereby denying the employer

the opportunity to obtain second and

third opinions where appropriate and

designating the leave as FMLA leave

after the employee has returned to work.

Several alternatives were proposed,

from allowing the employer to define an

acceptable time frame to allowing only

one week to provide the certification.

The regulations have been amended

in § 825.305(a)(2) to track the statute

more closely. Ordinarily, when leave is

foreseeable and at least 30 days notice

has been provided, the employee should

provide the medical certification before

the commencement of leave. If the need

for leave does not allow for this, the

employee should provide the

certification within the time frames

established by the employer for

submission of the certification, which

must allow at least 15 days after the

employer’s request. Section 825.208 of

the regulations has been amended to

enable the employer to make a

preliminary designation of leave when

the certification was not provided prior

to the commencement of leave, or the

employer is awaiting a second or third

opinion, and to confirm or withdraw the

designation depending upon the results

of the medical opinions even though the

employee has returned to work. The

Department believes that the

requirement to provide the certification

in no less than 15 days is reasonable as

the employee has no control over the

timing of the health care provider’s

completion of the certification form.

Two law firms, Fisher and Phillips

and Sommer and Barnard, observed the

regulations are silent regarding time

frames for submission of

recertifications. Section 825.308 has

been amended to clarify that

recertifications are subject to the same
2222 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

15-day time frames as the original

certification.

Section 825.305(e) has also been

revised to clarify the certification

requirements when the employer’s paid

leave plan contains lesser obligations

and paid leave is substituted for unpaid

FMLA leave. If the employer’s sick or

medical leave plan contains less

stringent certification requirements than

those of FMLA, and paid sick, vacation,

personal or family leave is substituted

for unpaid FMLA leave as provided in

§ 825.207, only the employer’s less

stringent sick leave certification

requirements may be imposed. See, also,

§ 825.207(h).

Information Required in Medical

Certifications (§ 825.306)

Ten commenters questioned the

necessity for the health care provider to

provide a diagnosis when providing a

medical certification of the existence of

a serious health condition, and

suggested that providing appropriate

medical facts is sufficient for this

purpose. The Women’s Legal Defense

Fund comments were reasonably

representative of these commenters.

They observed that the optional

certification form provides more

information to the employer than

statutorily required (for example,

diagnosis and regimen of treatment),

and that inquiries regarding such

matters may be a violation of the ADA.

They noted that health care providers

may be reluctant to provide detailed

medical information due to ethical and

privacy concerns, and expressed

concerns regarding confidentiality and

employee waivers. They recommended

that the form include space for an

employee signature which would

provide a limited waiver from the

employee to release the information to

the employer for purposes of FMLA

leave only.

Other commenters questioned the

absence of a box to check on the form

to indicate that an employee has been

prescribed medicine, an indication of

continuing treatment under the Interim

Final Rule. The Hyman Construction

Co. observed that it would be helpful if

the form provided space for the health

care provider’s address and telephone

number. Still others wanted the health

care provider’s Employer Identification

Number and Social Security Number.

After a review of these comments, and

significant revisions to the definition of

‘‘serious health condition’’ in § 825.114

of the regulations, this section and Form

WH–380 have been completely revised.

In general, the purpose of the revisions

is to allow employers to obtain

information from a health care provider

to verify that an employee in fact has a

serious health condition, and the likely

periods of absence by the employee, but

no unnecessary information. The form

has been revised, for example, to require

certification as to which aspect of the

definition applies, and to state the

medical facts to support the definition.

The regulation and form no longer

provide for diagnosis, and make clear,

consistent with the ADA and privacy

concerns, that all information on the

form relates only to the condition for

which the employee is taking FMLA

leave. However, it is considered

necessary to include information

regarding the regimen of treatment in

general terms (e.g., prescription drugs)

since this is one of the specific

requirements of a serious health

condition under § 825.114(a)(2)(i)(B).

The suggestion that the health care

provider be required to furnish an

Employer Identification Number and/or

Social Security Number has not been

adopted. The optional medical

certification form is not a substitute for

an insurance claims form; its use is

intended for purposes of confirming the

existence of a serious health condition,

and thus the need for FMLA leave. The

information provided by the form is

required to be kept confidential by the

employer and it would be inappropriate

for the employer to place this form into

the ordinary business process for

insurance claims.

The Department has not adopted the

suggestion that a waiver by the

employee is necessary for FMLA

purposes. The process provides for the

health care provider to release the

information to the patient (employee or

family member). The employee then

releases the information (form) to the

employer. There should be no concern

regarding ethical or confidential

considerations, as the health care

provider’s release is to the patient. The

employee may choose to withhold the

certification from the employer. In so

doing, however, the opportunity to take

FMLA leave is sacrificed, but that

would be the employee’s decision. In

the more than 12 months that have

elapsed since the Interim Final Rule

became effective, the Department has

received no feedback that the absence of

an employee waiver on the optional

medical certification form has created

any difficulty for the health care

community, employers, or employees.

The Equal Employment Opportunity

Commission provided comments

regarding the medical certification

process. EEOC suggested that questions

5 and 6 of the form are too broad.

Question 5 asks for the probable

duration of a condition. EEOC

recommended the question be revised to

ask the probable duration of the

condition for which the leave is

requested, and suggested Question 6 is

overly broad for the same reason, i.e.,

asking about the regimen of treatment to

be prescribed. Question 5 has been

revised. Question 6 has not been deleted

because the information is necessary to

determine if a serious health condition

exists. However, the form makes clear

that all information relates to the

condition for which leave is needed.

The Burroughs Wellcome Company

and Joan L. Kalafatas observed that

sometimes employers need other

medical information for purposes other

than FMLA leave, and suggested that

the FMLA regulations indicate that

other information may be requested

although it may not be used to make

decisions required under FMLA. The

Department disagrees with this

comment. If the employer needs

medical information for some other

purpose, the employer needs to make an

additional, perhaps simultaneous,

request.

Massmutual Life Insurance Company

recommends an employer with a paid

leave program be allowed to use a single

certification form for FMLA and paid

leave purposes, asking that the form be

permitted to include information in

addition to that identified by the FMLA

regulations only if the additional

information would be used to verify

eligibility for paid leave. It would not be

appropriate to permit employers to

request additional medical information

to support an employee’s desire to

substitute accrued paid leave for FMLA

leave. The regulations provide that any

such requirements may not be more

stringent than those required by FMLA.

If the commenter is referring to

eligibility for benefit plans rather than

paid leave, the Department has included

a provision in the Final Rule that if an

employee must meet higher standards to

qualify for payments from an employee

benefit plan, e.g., a disability benefit

plan, the employee is required to

comply with the requirements of the

benefit plan in order to receive

payments. The employee may choose

not to meet the higher standards of the

benefit plan and thereby not receive

payments from the plan; however, the

employee continues to be entitled to

FMLA leave. Section 825.207(d) has

been amended to incorporate this

guidance.

The California Department of Fair

Employment and Housing urged that

§ 825.306(b) be amended to reflect that

collection of this information by the

employer is discretionary and that it is

appropriate for the employer to comply
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2223

with State or local law. California law

does not permit an employer to require

that the medical certification specify the

serious health condition which led to

the leave request. Section 825.701 of the

regulations provides guidance to

employers regarding the responsibility

to comply with applicable State statutes.

If the provisions of the State statute are

more beneficial to the employee or more

restrictive in terms of the rights of the

employer (such as by prohibiting a

requirement that more medical

information be required), the employer

must comply with that State statute.

The law firm of Fisher and Phillips

contended that the provision that

employers may use another type of

medical certification only if no

additional information is required is not

supported by FMLA § 104(c)(3). The

Department disagrees, with one

exception. The provisions of § 104(c)(3)

relate to the circumstances when an

employee is unable to return from

FMLA leave due to the onset or

continuation of a serious health

condition. The information required by

this section of the statute and the

regulations is the maximum which can

be requested. Nothing in § 104(c)(3)

implies that an employer may ask for

more information than is required by

§ 825.306. Section 825.207(d) has been

amended to permit the employer to

request a greater amount of information

if required in order for an employee to

qualify for payments from an employer

benefit plan, or in the event the

employee is on a worker’s compensation

absence and the applicable worker’s

compensation statute permits the

employer to acquire additional

information.

Michael Meaney suggested that

certification of a disability should be

strictly limited to medical doctors

(M.D.s). The Department is unable to

adopt this suggestion in light of the

guidance provided by the Congress and

the Department’s deliberations over the

definition of a health care provider. For

example, FMLA’s legislative history

indicates clear Congressional intent that

Christian Science Practitioners be

included in the definition of health care

provider. These individuals are clearly

not M.D.s. In considering the types of

health care providers available to the

general population, particularly those

who live in rural areas which do not

have ready access to a doctor (MD), but

regularly rely on nurse practitioners and

midwives, the Department concluded

that it is appropriate to include these

professions in the definition of a health

care provider. Rather than further limit

the definition of a health care provider

in § 825.118 of the regulations, the Final

Rule expands the practitioners that may

qualify as health care providers.

This section has also been revised to

clarify the certification requirements

when the employer’s paid leave plan

contains lesser obligations. Only the

employer’s lesser certification

requirements may be imposed when

paid leave is substituted for FMLA

leave, as provided in § 825.306(c). See

also § 825.207(h).

Adequacy of Medical Certification

(§ 835.307)

Six commenters (four working women

advocacy groups and two unions) urged

that when an employer requires a

second or third medical opinion, not

only the costs of obtaining the opinion

by the health care provider be at the

employer’s expense, but because the

employee is expending time at the

employer’s direction, the employer

should also be required to pay the

employee for the time spent in acquiring

the required medical opinions. The

Department has considered these

comments carefully but has concluded

that Congress did not intend that

employees on unpaid FMLA leave be

paid for the time spent obtaining second

and third medical opinions. Section

825.307(d) has been amended, however,

to make it clear that an employer must

in all cases reimburse an employee or

family member for any reasonable ‘‘outof-pocket’’ travel expenses incurred in

obtaining the required second and third

opinions.

The Equal Rights Advocates requested

an exception be provided where

obtaining the second or third opinion

for an immediate family member would

be onerous. Further, they suggest that

when the employer requires a second or

third medical opinion and the

employee’s leave has already begun, the

employee should be allowed to continue

on leave and the employer should be

restrained from demanding

reimbursement for insurance premiums.

If the third opinion disputes the original

medical certification, the employee may

be required to return to work; the

employer may not take any unfavorable

action against the employee; the

employer shall not be entitled to

reimbursement for insurance premiums

paid during the leave; and, the

employee’s FMLA leave entitlement

shall be reduced by the period of leave

actually taken.

The third medical opinion becomes

necessary only when the second

opinion disagrees with the original

opinion. In the suggestion, the third

opinion now agrees with the second,

which means that either the employee

or the employee’s family member does

not or did not have a serious health

condition. If a serious health condition

did not exist, the employee was not

entitled to take any FMLA leave, as the

absence was not for an FMLA reason.

Thus, the employer is prohibited from

charging or deducting the time of the

absence from the employee’s FMLA

leave entitlement, and the employee

does not have the rights and protections

of the statute for that absence. The

Department is unable to incorporate this

suggestion in the regulations. The

Department agrees, however, that

pending the ultimate resolution of the

employee’s entitlement to leave through

the certification process, the employee

is provisionally entitled to the benefits

of the Act, including maintenance of

group health benefits. If the

certifications do not ultimately establish

the employee’s entitlement to FMLA

leave, the leave will not be counted as

FMLA-qualifying and may be treated as

paid or unpaid leave under the

employer’s established leave policies.

This section is so revised.

The Equal Rights Advocates further

suggest that the second and third

medical opinion should only be allowed

if it is not unduly burdensome to the

family member. The right of the

employer to require a second medical

opinion when the employer has reason

to question the validity of the original

medical certification is statutory.

Consequently, the employer is entitled

to the second opinion, and the third

opinion if the second opinion disagrees

with the original opinion. The

alternative is for the employee to forego

FMLA leave. However, § 825.307 has

been amended to provide that an

employer may not ordinarily require an

employee to travel outside normal

commuting distances in obtaining the

required opinions.

The Women Employed Institute and

Women’s Legal Defense Fund suggest

that when an employer requires a

second or third medical opinion, the

employee should be provided a copy of

the results. The Department agrees and

has added § 825.307(c)(1) to require the

employer, upon request from the

employee, to provide copies within two

business days.

Nineteen commenters commented on

the provision that prohibits an employer

from obtaining a second medical

opinion from a health care provider that

the employer employs or regularly

utilizes. Several of the commenters are

large hospital facilities or Health

Maintenance Organizations (HMOs)

who have large numbers of doctors

either on the payroll or with whom they

regularly contract to provide medical

care to their patients. Kaiser Permanente
2224 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

suggested that only those health care

providers whom the employer regularly

employs to provide employee medical

exams be excluded. Kennedy Memorial

Hospitals suggested the regulations be

changed to allow an employer-affiliated

physician to render a second opinion

and to require a neutral physician

provide a third opinion if necessary.

Koehler Manufacturing Company

recommended that a health care

provider regularly employed by the

employer be allowed to provide the

second medical opinion as this health

care provider would be familiar with the

job duties and responsibilities. Other

commenters suggested that an employee

be required to be examined by the

employer’s medical department. United

Healthcare Corporation operates HMOs

and has contractual relationships with

the majority of physicians within a

given area, and suggests it is virtually

impossible to comply with this

requirement. Section 103(c)(2) of the

Act provides that a health care provider

designated or approved to provide a

second medical opinion shall not be

employed on a regular basis by the

employer, which is a statutory

prohibition. The Department is unable

to adopt the suggestions.

Ten commenters were critical of the

provision in § 825.307(a) that prohibits

an employer from making any contact

with the employee’s health care

provider to obtain additional

information, including the health care

provider’s address and telephone

number. They indicated this prohibition

worked against the interests of both the

employee and the employer. The

absence of the opportunity of the

employer’s health care provider

contacting the employee’s health care

provider potentially creates additional,

unnecessary costs for the employer and

unnecessary discomfort for the

employee who may be on leave for a

serious health condition, leaving as the

only recourse obtaining a second

medical opinion. After review of these

comments the Department agrees to

some extent that a total prohibition on

contact with the employee’s health care

provider is not in the best interests of

both parties in many cases. Employers

have observed that if they could only

talk with the employee’s health care

provider to ask one or two clarifying

questions, the initial medical

certification could be accepted without

resorting to a second, and maybe a third,

opinion. The regulations have been

amended in § 825.307(a) and in

§ 825.310(b) (certification of fitness-forduty) to permit a health care provider

representing the employer to contact the

employee’s health care provider for

purposes of clarifying the information in

the medical certification or confirming

that it was provided by the health care

provider. The inquiry may not seek

additional information regarding the

employee’s condition. Such contact may

only be made with the employee’s or

family member’s permission as

appropriate. If the employee refuses to

give permission, the employer may then

require certification from a second

health care provider. The optional

medical certification form is being

amended to include the health care

provider’s address and telephone

number. Further, if the FMLA leave is

running concurrently with a workers’

compensation absence under State

provisions that permit the employer or

employer’s representative to have direct

contacts with the health care provider

treating the workers’ compensation

injury or illness, such authorized direct

contacts with the health care provider

are not prohibited under FMLA (unless

the employee chooses to forego the

workers’ compensation claim). This

contact may only be made by a health

care provider representing the

employer, as most employers are not

medically qualified to pose clarifying

questions to the employee’s health care

provider. Further, a number of

commenters have expressed concern

regarding the privacy of the employee

and the ethical considerations of the

employee’s health care provider

furnishing information to a non-medical

person (the employer). By requiring the

employee’s permission (or where

following authorized procedures under

workers’ compensation laws) and

limiting the contact to a health care

provider, both these considerations and

concerns will be addressed. It should be

noted that although the regulations do

not require that the employee’s

permission be obtained in writing, a

prudent employer should follow such a

practice.

Seventeen commenters addressed the

issue of the third medical opinion. One

commenter observed that the employer/

employee should be able to use a health

care provider (HCP) that is employed by

the employer. Others suggested a

number of processes to select the health

care provider to provide the third

opinion, such as: select the third health

care provider on the basis of the

worker’s compensation statute; the

choice should be the employer’s alone

as the opinion is obtained at the

employer’s expense; either the

employee or employer submit a list of

from three to five health care providers

to the other and let the other party select

one from the list; the selection should

be made by the first and second health

care providers; the local medical society

should be allowed to make the

selection; obtain a list of seven to 10

health care providers and let the

employer and employee each strike

names until only one is left. Two

commenters stated that the provision

currently in the Interim Final Rule is

reasonable.

The Department has thoroughly

reviewed the comments and finds there

are a number of viable methods for

selecting the third health care provider.

The current regulations place no

limitation on the method for selecting

the third HCP and it seems appropriate

to continue to provide the employer and

employee flexibility to use any mutually

agreeable method. The Final Rule will

incorporate the provision of the current

rule without change. It should be noted

that the prohibition against using a

health care provider regularly employed

by the employer does not apply to the

selection of the health care provider to

render the third medical opinion

(subject to the agreement of the

employee).

Fisher and Phillips observed that the

regulations are silent on medical

certification when the health care

provider is located in another country.

The observation is accurate. Since the

regulations became effective, a number

of issues have arisen when the

employee or a member of the

employee’s immediate family (e.g.,

parent) is visiting or living in a country

other than the United States. The

Department has added a provision to

§ 825.305(a) to address this issue. In

essence, the employer must accept a

medical certification from a health care

provider who is licensed to practice in

that country, and make arrangements for

second and third opinions, if required,

with health care providers in that

country.

The Edison Electric Institute asked

when a second or third medical opinion

is sought, what kind of information may

the employer request? The Department

has designed the optional medical form

to be used for all three of the medical

opinions as needed. If the employer

chooses not to use the optional form for

the second and third opinion, the

information that may be requested is

limited to that contained on the form

and in § 825.306 of the regulations.

Subsequent Recertifications of Medical

Conditions (§ 825.308)

Thirteen commenters addressed the

request for comments in the Interim

Final Rule regarding the appropriate

length of time that a medical
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2225

certification should be valid. Two

commenters suggested that no time

frame should be established, but that it

should be dictated by the nature of the

employee’s condition and any changes

in the condition (e.g., the employer

should determine when another

certification would be appropriate).

Several commenters suggested that an

employer should not be required to rely

on any certification that was obtained

over six months prior to the current

notice of need for FMLA leave. Three of

the commenters indicated that an

employee should be able to use a

medical certification that had been

obtained within the past six months or

a year. Another commenter observed

that permitting the use of non-current

certifications would provide the

potential for abuse. The law firm of

Sommer and Barnard suggested a

maximum of 12 weeks for the life of the

validity of the certification under any

circumstances, including the taking of

leave intermittently or on a reduced

leave schedule. They referred to the

provisions in this section that permit

the employer to request recertification

every 30 days. The longest time of

validity of the certification suggested by

any commenter was one year.

Seventeen commenters raised

concerns on the particular

circumstances that permit an employer

to require recertifications. The majority

of the commenters indicated that

permitting a recertification every 30

days is not reasonable as contemplated

by the statute. Others indicated that

limiting the recertification to every 30

days was too long; some suggested 15

days instead of 30 days. Some urged

that the recertification should be

obtained at the employer’s expense. One

commenter asked what recourse the

employer has when the employee does

not provide the requested

recertification.

After a review of all the comments the

Department agrees that permitting the

employer to routinely request

recertification every 30 days is not

reasonable in some circumstances.

Section 825.308 has been changed to

provide that where a certification

provides a minimum duration of more

than 30 days, the employer may not

obtain recertification until that

minimum period has passed unless the

circumstances specified in the

regulations are present. For chronic

conditions, recertification is ordinarily

permitted every 30 days, but only in

connection with an absence. Exceptions

are provided only if circumstances have

changed significantly or the employer

has reason to believe the employee was

not absent for the reason indicated.

Because the statute does not provide for

second or third opinions for

recertifications, no such opinions may

be required. The recertification must be

obtained at the employee’s expense

unless the employer voluntarily chooses

to pay for the recertification itself.

Congress specifically required the

second and third opinions to be

obtained at the employer’s expense.

Congress did not include such a

requirement regarding recertifications;

consequently, there is no basis for the

Department to impose the costs on the

employer by regulation. If the employee

fails to provide the recertification

within 15 days when it was practicable

to do so, the employer may delay further

FMLA leave until the recertification is

provided.

Notice of Intent To Return to Work

(§ 825.309)

Employees may be required to report

periodically on their status and intent to

return to work while on FMLA leave

provided the employer’s policy

regarding such reports is not

discriminatory. The Women’s Legal

Defense Fund asked that the term

‘‘discriminatory’’ be defined and that

the regulations set out how often an

employer may request status reports.

They also urged that the regulations

state that employers may not require

reports in a manner that discriminates

on the basis of gender, race, etc.

The statute already provides a

prohibition regarding discrimination.

There are a number of references in the

regulations to Title VII of the Civil

Rights Act which prohibits

discrimination based on sex, race, etc.

Since the statute became effective

there has been no feedback to the

Department indicating difficulties with

the aspect of discrimination pursuant to

either FMLA or Title VII. The

regulations presently state that, with

regard to reasonableness, the employer

must take into account all the relevant

circumstances and facts related to the

individual’s leave situation. Clearly, it is

the intent of the statute and the

regulations that employers not use the

entitlement to require status reports in

a manner that is burdensome and

disruptive to the employee while on

FMLA leave. The intent is that such

requests be reasonable under the

existing circumstances. An employer

who misuses or abuses this provision

may be found to have engaged in

prohibited acts under the statute. It does

not seem appropriate or necessary to

repeat the prohibitions of Title VII in

these regulations. This section will

remain unchanged in the Final Rule.

Three commenters requested

clarification regarding the employee’s

status when the employee fails to return

at the conclusion of the leave or after 12

weeks of absence.

If the employee does not return to

work at the conclusion of the planned

leave, the employee should give the

employer reasonable notice of the need

for an extension if less than 12 weeks of

FMLA leave been exhausted in the 12-

month period. If the employee is unable

to or does not return to work at the end

of 12 weeks of FMLA leave, all

entitlements and rights under FMLA

cease at that time; the employee is no

longer entitled to any further restoration

rights under FMLA, and the employer is

no longer required to maintain group

health benefits pursuant to FMLA.

The law firm of Black, McCluskey,

Sourers and Arbaugh, suggest that an

employee who does not provide a status

report after being given notice should be

considered not intending to return to

work.

The determination would be

dependent upon all the facts in the

specific case. The commenter assumes

that the employee has received the

notice. Perhaps the employee is in

another city caring for a parent and does

not receive a request mailed to the

employee’s home. It is simply not

possible to state a general rule regarding

this circumstance; it is dependent on all

the facts. Clearly, the failure to respond

does not constitute unequivocal notice

in all cases.

The Texas Department of Human

Services asked for a definition of

‘‘unequivocal,’’ and whether it meant a

written statement. The definition of this

term is that it is understandable in only

one way with no expression of

uncertainty, i.e., distinct, plain,

absolute, clear. It has nothing to do with

whether the notice is written or verbal.

The law firm of Fisher and Phillips

urges that the regulations should clarify

whether employees who request FMLA

leave in excess of 12 weeks are entitled

to any FMLA leave and whether they

are entitled to maintenance of group

health coverage.

The fact that the employee requests a

greater amount of leave than the 12-

week entitlement under FMLA does not

negate his/her right to FMLA leave. The

employee would be entitled to take 12

weeks FMLA leave with full rights and

protections including maintenance of

group health insurance. The employee’s

status would be reexamined at the end

of the 12-week FMLA entitlement.

The law firm of Sommer and Barnard

urges that the regulations provide that,

if an employee wishes to return to work

prior to the anticipated end of the leave
2226 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

period, the employee be required to give

the employer at least one or two days

notice.

The Department agrees that an

employee should give reasonable notice

to the employer where early return to

work is foreseeable, and the regulations

have been revised in paragraph (c) of

this section to provide for a minimum

of two days notice from the employee.

Employers may also obtain this

information through status reports from

employees.

The Society for Human Resource

Management asked if an employer may

require certification from an employee

for adoption or birth of a child upon

return to work? May an employer

require certification from a father for

bonding leave? The answer to both

questions is affirmative; however, the

employer’s request for documentation

must be reasonable, and should be

obtained at the beginning of the leave

rather than at the conclusion. The

regulations have been changed in

§ 825.113 to provide for such reasonable

documentation of the reason for FMLA

leave.

Return to Work Medical Certification/

Fitness-for-Duty (§ 825.310)

Six commenters objected to the

language of the regulations that provides

for a fitness-to-return-to-work

certification pursuant to an employer’s

uniformly-applied policy. They also

expressed concern regarding the

implications resulting from ADA

requirements.

The Department agrees with some of

these concerns. This section of the

regulations has been changed to make it

clear that the requirement of uniformity

applies only to employees in similar

circumstances (i.e., the same

occupation, suffering from the same

serious health condition). Furthermore,

pursuant to ADA, the requirement for

such a physical must be job-related and

consistent with business necessity.

Two commenters urged that the

fitness-for-duty certification be obtained

at the employer’s expense.

The statute clearly requires the

employer to bear the costs of the second

and third medical opinions. The

Congress made no such provision for

recertifications or fitness-for-duty

certifications. The Department is unable

to assign these costs to the employer in

the absence of statutory language.

Four commenters urged that the

regulations provide for second and third

medical opinions on fitness-for-duty

certifications as in the case of the

original medical certification.

The statute expressly provides for

second and third medical opinions

regarding the original medical

certification. No such provision is

contained in the statute for the fitnessfor-duty certification. The Department is

unable to incorporate this suggestion in

the Final Rule.

Four commenters urged that the

employer be permitted to confirm the

employee’s fitness-for-duty with an

examination by the in-house medical

department. This may be particularly

relevant with regard to an employee

returning from drug abuse treatment

who may be subject to periodic followup examinations after returning to work.

The regulations do not prohibit the

employer from requiring the employee

to submit to an examination after

returning to work, provided such

examination is job related and

consistent with business necessity in

accordance with ADA guidelines.

However, an employer may not deny

return to work to an employee who has

been absent on FMLA leave pending

such an ‘‘in-house’’ examination. The

statute provides the employee must only

provide the employer with certification

from the employee’s health care

provider to qualify to return to work.

Any examination by the employer’s

medical staff may take place the first

day of the employee’s return to work.

Failure To Satisfy Medical Certification

Requirements (§ 825.311)

The law firm of Sommer and Barnard

observes that the regulations provide

that an employer may require that an

employee’s request for leave be

supported by certification. If the

employee fails to furnish certification

then surely the employer should be able

to deny the entire leave, not simply the

continuation of leave. Two commenters

urge that if an employee fails to provide

the required certification, not only

should continuation of leave be denied,

but the employee should be subject to

disciplinary action by the employer.

The Department agrees with this

analysis, and has modified § 825.311 to

state that if the employee never provides

the certification then the leave is not

FMLA leave. If the leave taken by the

employee is not FMLA leave, the

employee does not enjoy the protections

of the statute.

The Society of Professional Benefit

Administrators expressed concern

regarding the relationship between

worker’s compensation statutes and

FMLA. As discussed above, the Final

Rule has been changed in § 825.207 to

address worker’s compensation

absences and FMLA.

Refusal to Provide FMLA Leave or

Reinstatement (§ 825.312)

The Department of Civil Service, State

of New York comments that in the event

the employee requests to return to work

prior to the agreed date, the employer

should not be required to reinstate the

employee immediately but should be

given a reasonable period to make the

necessary arrangements.

The Department has clarified this

issue in §§ 825.309(c) and 825.312(e) of

the regulations. An employee may not

be required to take more FMLA leave

than necessary to address the

circumstances for which leave was

taken. If the employee finds the

circumstance has been resolved more

quickly than anticipated initially, the

employee shall provide the employer

reasonable notice—two business days if

feasible. The employer is required to

restore the employee where such notice

is given, unless two days notice was not

feasible—for example, where the

employee receives a release from the

health care provider to return to work

immediately, and that release is

obtained earlier than anticipated.

The law firm of Sommer and Barnard

commented regarding the requirement

that when taking intermittent leave for

planned medical treatments the

employee should make a reasonable

effort to arrange the treatments so as not

to unduly disrupt the employer’s

operations. Section 825.312 fails to

recognize this employee obligation or

assign a consequence for its breach.

The Department concurs to some

degree. It should be kept in mind that

the employee does not always have

alternatives to the dates of planned

medical treatment as this is largely in

the control of the health care provider.

Section 825.302(d) has been modified in

a manner that should lead to greater

communication between the employee

and the employer regarding this issue.

The Employers Association of New

Jersey asks if an eligible employee who

has accumulated an unacceptable

number of absences and has been given

a final warning that provides that any

absence within the next 30 days will

result in immediate discharge may take

FMLA leave to care for an ill spouse.

An eligible employee who has not

exhausted his/her 12-week FMLA leave

entitlement would be entitled to take

leave under these circumstances if all

the requirements of the statute are met.

The employee would be required to

provide adequate notice of the need for

leave, 30 days in advance if foreseeable

or as soon as practicable, and if required

by the employer, medical certification

confirming the existence of the spouse’s
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2227

serious health condition. The employer

may not take adverse action against the

employee by denying leave or taking

other disciplinary actions for having

taken FMLA leave. The taking of FMLA

leave may not be counted against the

employee under the employer’s

attendance policy. See § 825.220.

The Equal Employment Advisory

Council suggests that it be made clear

that employee misconduct prior, during

or after FMLA leave that violates

company policy is subject to the

consequences of the employer’s

policies.

The Department wishes to make clear

that FMLA is not a sanctuary for the

employee who has violated or is in

violation of company policies. A basic

tenet of FMLA is that the employee who

takes FMLA leave is to be treated no

differently than if the employee had

continued to work. For example, if the

employer has a non-discriminatory

policy that the second time the

employer becomes aware that an

employee has engaged in the illegal use

of drugs, the employee will be

terminated, the fact that the employee is

on FMLA leave will not shield the

employee from the continued

application of that policy (i.e.,

termination).

The Society for Human Resource

Management (SHRM) asked whether an

employee who is on FMLA leave and

who resigns in the middle of the leave

has to be kept on the payroll until the

leave period is over.

No. The regulations provide that once

an employee gives the employer

unequivocal notice that the employee

does not intend to return to work at the

conclusion of leave, the employee may

be terminated and FMLA leave ends, as

well as the obligation for maintenance

of health benefits, and the employer

need not keep the employee on the

payroll after receiving such notice.

SHRM asked where an employee who

is pregnant requests FMLA leave, but

the health care provider declines to

certify that the employee is unable to

work as a result of the serious health

condition (ongoing pregnancy), what

action should the employer take?

In this circumstance the employee

does not qualify as being unable to work

as a result of her condition, and the

employer could deny the use of FMLA

leave.

SHRM asked how an employer was

supposed to manage absenteeism if the

employee continues to claim leave taken

is covered by FMLA?

The Final Rule attempts to address

some of these issues. An employer is

entitled to request medical certification

and recertification in connection with

serious health conditions. The Final

Rule provides that, if an employee never

provides the medical certification, the

absence is not FMLA leave;

consequently, the leave is not protected

by the FMLA. The Final Rule further

provides that the employer may require

documentation from the employee to

confirm family relationships, as in the

case of leave for birth or placement of

a child for adoption or foster care. The

Department believes there are a number

of tools available to employers under

the regulations that will serve to

discourage employee abuse of FMLA

leave, in addition to the basic concept

that the 12 weeks of leave mandated by

FMLA are unpaid.

The Koehler Manufacturing Company

comments that it is unclear whether an

employee may earn W–2 wages with

some other employer while on FMLA

leave.

The Department addressed this issue

in the Interim Final Rule. Section

825.312(h) provides that whether an

employee may engage in outside

employment during FMLA leave is

dependent upon the employer’s

established policy regarding outside

employment. For example, the employer

may require that all outside

employment be pre-approved by the

employer. If so, employment while on

FMLA leave would be subject to this

policy. This provision will remain

unchanged in the Final Rule.

The Service Employees International

Union took issue with the provision in

§ 825.312(h) applying the employer’s

policy regarding outside employment to

periods of FMLA leave. SEIU

maintained that there is no statutory

basis for this provision, and that it

constitutes the imposition of additional

requirements on the taking of FMLA

leave.

The Department does not agree with

this view. As noted previously, a basic

tenet under FMLA is that an employee

on FMLA leave is entitled to no greater

right, benefit, or position of employment

than if the employee continued to work

and had not taken the leave (see

§ 104(a)(3)(B) of the Act). While an

employee is on FMLA leave, there

continues to be an employment

relationship, the employer is

maintaining group health benefits and

possibly other benefits, and the

employee is entitled to return to the

same or an equivalent job.

Consequently, the employer’s

employment policies continue to apply

to an employee on FMLA leave in the

same manner as they would apply to an

employee who continues to work, or is

absent while on some other form of

leave.

It is important to point out that the

regulations do not prohibit outside

employment by the employee on FMLA

leave except as a result of the

employer’s established policies. In the

absence of such a policy the employee

may do as he/she chooses. However,

taking outside employment during a

period of FMLA leave may in some

cases cast doubt on the validity of an

employee’s need for leave, particularly

if the leave was being taken for the

employee’s own serious health

condition.

IV. Subpart D—Enforcement

Mechanisms

Employee Rights When FMLA Has Been

Violated (§§ 825.400–825.404)

Federally Employed Women, 9 to 5,

National Association of Working

Women, Women’s Legal Defense Fund,

the Food and Allied Service Trades

(FAST) and the United Food and

Commercial Workers International

Union (UFCW), suggest that the Interim

Final Rule fails to include a complaint

procedure that provides expedited relief

and that the rule does not include

injunctive relief as one of the available

remedies in an employee’s private court

action. The Women’s Legal Defense

Fund and FAST urge that § 825.400(c)

be amended to include ‘‘other equitable

relief as appropriate.’’ FAST points out

that the expedited procedure is

important, particularly if the employer

fails to maintain group health insurance

and the employee has a serious health

condition which heightens the need for

medical benefits.

The provision for an expedited

complaint procedure is not a regulatory

issue, but rather is an internal agency

administrative enforcement issue. In

any event, such an expedited procedure

was adopted under FMLA in

appropriate circumstances, and will

continue to be used as an effective

enforcement tool in carrying out the

Department’s responsibilities pursuant

to FMLA. The statute at § 107(a)(2)

makes no provision for an eligible

employee to seek equitable relief

through an injunctive action. Such an

action is available only for the Secretary

in § 107(d). The suggestion will not be

incorporated into the Final Rule, as it

has no statutory basis.

In the event the employer violates

FMLA by failing to maintain the group

health benefits as required, and

dropping the employee’s coverage, the

employer in effect becomes self-insured

and liable for any medical expenses

incurred by the employee that would

have been covered by the group health

plan. With respect to the comment that
2228 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

the rule be amended to include

equitable relief, although the current

rule, at § 825.400(c), includes such relief

(‘‘employment, reinstatement and

promotion’’), the language has been

clarified.

The Personnel Management Systems,

Inc., urges that an employee be

permitted to file a civil suit only after

the Department has had an opportunity

resolve the issue. The statute places no

requirement that an employee exhaust

administrative remedies before being

authorized to file a private suit, as under

Title VII. The legislative history

confirms such a result. Therefore, no

change will be made in the Final Rule.

The Chamber of Commerce of the

USA questions the statutory basis for

allowing an employee or another person

to file a complaint with the Secretary of

Labor, stating that only the affected

employee should be permitted to file a

complaint. The legislative history

provides guidance on enforcement of

the statute. FMLA’s enforcement

scheme is modeled after the FLSA,

which has been in effect since 1938.

Thus, FMLA creates no new agency or

enforcement procedures, but instead

relies on the time-tested FLSA

procedures already established by the

Department of Labor. Report from the

Committee on Labor and Human

Resources (S. 5), Report 103–3, January

27, 1993, pp. 35–36. The Department, in

its enforcement of FLSA, has accepted

complaints from employees as well as

other persons who may have knowledge

of the circumstances (e.g., a relative of

the employee, a Collective Bargaining

Unit representative, a competitor, etc.).

The Nevada Power Company and the

Edison Electric Institute suggest that

punitive damages should be limited to

those involving willful violations of the

law. The statute does not explicitly

provide for punitive damages, which

would be available only if otherwise

provided by law. Section

107(a)(1)(A)(iii) provides for an

additional amount as liquidated

damages to the amount awarded,

including interest. An employer may

avoid the liquidated damages if the

employer can show to the satisfaction of

the court that the violation was in good

faith and the employer had reasonable

grounds for believing that the action

taken was not a violation of the statute.

The regulations cannot limit the

employer’s liability for violations of the

statute, when no such limitation is

provided under the law.

The United Paperworkers

International Union urges that the

regulations require employers to justify

significant changes in employment

levels, thereby discouraging such

manipulations to avoid coverage. There

is no basis in the statute for requiring

such action on the part of employers.

However, § 825.220(b)(1) of the

regulation has been amended to advise

covered employers that such

manipulation will be viewed as a

violation of the acts prohibited by the

statute and the regulations.

V. Subpart E—Records (§ 825.500)

Nine commenters, including the

Women’s Legal Defense Fund (WLDF)

and the EEOC, expressed concern about

maintaining the confidentiality of

medical records. WLDF urged that

separate files be maintained to protect

the confidentiality of ADA records, and

EEOC said that having one confidential

medical file for both laws (FMLA and

ADA) may not always satisfy the ADA

confidentiality requirements. EEOC

stated that ADA protects all

‘‘information * * * regarding * * *

medical condition or history of any

employee,’’ (see 29 CFR § 1630.14(c)(1)),

which would include all employee

medical information regardless of the

form or manner in which it is provided,

whereas the FMLA rule would be

limited to ‘‘records and documents

relating to medical certifications,

recertifications or medical histories of

employees or employees’ family

members.’’ According to EEOC, if all

medical information is kept confidential

under FMLA like under ADA,

maintaining only one confidential

medical file would satisfy the ADA

provided employers administer the

exceptions to the confidentiality

requirement in conformance with ADA

requirements (e.g., employers would

have to provide supervisors or managers

only with the specific information

‘‘regarding necessary restrictions on the

work or duties of an employee’’

(§ 825.500(g)(1)), and deny them free

access to the entire medical files of

employees). Section 825.500(g) has been

amended to require that medical records

created for purposes of FMLA and ADA

must be maintained in accordance with

ADA’s confidentiality rules on medical

information.

Nine commenters expressed concern

regarding the recordkeeping burden

imposed by FMLA. The LaMotte

Company specifically took issue with

the estimate provided in the Interim

Final Rule of 3 minutes per response,

observing that, in their opinion, the

requirements would take much longer.

They estimate each certified letter

would require one hour to prepare in

addition to copying and sending. In

addition, they experienced numerous

telephone inquiries from employees and

pointed out that time is also necessary

for training of supervisors and

managers. The Human Resources

Department, Village of Schaumberg,

Illinois, also took issue with threeminute burden estimate. They observed

that calculating hours of unpaid leave

and the number of hours worked versus

hours of FMLA leave, determination of

FMLA versus other types of leave, and

creating a system to collect employees’

share of benefits all required

significantly more time than three

minutes. Most other commenters simply

expressed the opinion that FMLA

recordkeeping requirements are

burdensome. The ‘‘three minutes per

response’’ is an estimate of the annual

recordkeeping burden per employee, to

record and/or file records required by

the regulations that are not otherwise

required by law or would otherwise be

kept as a customary prudent business

practice. It does not include the

preparation of employee notices

required by the regulations,

determination of employee eligibility, or

procedures for payment of health

benefits during FMLA leave.

The LaMotte Company observed that

they had received statements from

employees who believe that instead of

making arrangements for others to take

care of their children when they have

minor colds, sore throats, or ear

infections, they may now stay home

with the child because they don’t have

to worry about saving sick leave for a

truly serious health condition, and

because FMLA may not be counted

against their ‘‘point’’ system. Section

825.114 contains the definition of a

serious health condition. The

regulations provide that an employer

may require an employee to provide a

medical certification with regard to a

serious health condition for a member of

the employee’s immediate family

(child). If the certification does not

confirm the existence of a serious health

condition as defined under FMLA, or

the employee fails to provide the

certification when requested, the leave

is not FMLA leave.

The California Department of Fair

Employment and Housing and the

Chesapeake Farm Credit object to the

requirement for a covered employer

who has no eligible employees to

comply with the recordkeeping

requirements of this section. Section

825.500(c) will be changed in the Final

Rule to require the covered employer

with no eligible employees to post the

notice required in § 825.300 and to

maintain only the basic payroll

information (i.e., name, address,

occupation, rate or basis of pay, daily

and weekly hours, etc.) already required

under FLSA. These data are required to
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2229

enable the covered employer to

determine employee eligibility, when

necessary. Once the covered employer

has eligible employees, the additional

records required by § 825.500(d) must

be maintained.

Florida Citrus Mutual observes this

section does not address the question of

records to be maintained by joint

employers. The records to be kept by

primary employers and covered

secondary employers in a joint

employment situation should be listed

separately, they contend.

The regulations have been revised to

provide that a covered secondary

employer in a joint employment

situation need only keep basic payroll

records with respect to its secondary

employees. Other records are not

necessary because the secondary

employer’s responsibilities in a joint

employment relationship are only to

reinstate the employee under the

circumstances set forth in § 825.106(a)

and to not violate any of the prohibited

acts of the statute.

VI. Subpart F—Special Rules for Local

Education Employees

Limitations on Intermittent Leave or

Leave on a Reduced Leave Schedule

(§ 825.601)

The Women’s Legal Defense Fund and

the American Federation of Teachers/

National Education Association stated

that the instructional employee who

takes intermittent leave amounting to 20

percent or less of the working days

during the period of leave should not be

subject to the usual rules for taking

intermittent leave in §§ 825.117 and

825.204. The employer does not have a

right to transfer the employee to an

alternative position under this

circumstance. They suggest that the

third sentence of paragraph (a)(2) of this

section be deleted.

The statute at § 108(c)(1) gives the

educational employer the right to

require the employee either to take leave

of a particular duration not to exceed

the duration of planned medical

treatment or to transfer to an alternative

position that better accommodates

recurring periods of leave. The statute is

silent regarding the circumstances when

the employee takes intermittent leave

for 20 per cent or less of the total

number of working days in the period

during which the leave would extend.

After further consideration the

Department agrees that § 108 of the Act

provides the only provision applicable

to instructional employees and,

therefore, an educational employer does

not have the latitude to transfer an

instructional employee to an alternative

position in this circumstance. The Final

Rule will reflect this change.

Leave Taken for ‘‘Periods of a Particular

Duration’’ (§ 825.603)

Federally Employed Women, the

Women’s Legal Defense Fund and the

American Federation of Teachers/

National Education Association objected

to the provision in paragraph (a) of this

section which states that leave that is

required by the employer for either a

particular duration or until the end of

the school term is to be counted as

FMLA leave. They view this provision

to be doubly penalizing when the

employee is required to take more leave

than desired or medically necessary,

and then to have that ‘‘extra’’ leave

count against his or her FMLA leave

entitlement. They urge that this

provision be changed to reflect that such

leave is to be counted against the FMLA

entitlement only if the employee

chooses rather than is required to take

additional leave.

The legislative history provides the

following guidance: Whenever a teacher

is required to extend his or her leave

under section 108(c) or (d), such leave

would be treated as other leave under

the act, with the same rights to

employment and benefits protection

contained in section 104. Report from

the Committee on Labor and Human

Resources (S. 5), Report 103–3, January

27, 1993, p. 37. However, the

Department agrees that because the

employer had the option of not

requiring the employee to take leave

until the end of the term, the leave

should not count against the 12-week

entitlement.

The Chicagoland Chamber of

Commerce, et al., commented that all

periods of leave taken by school

employees should count as FMLA leave,

including any period of leave that

occurs outside the school term. For

example, if an instructional employee

begins a six-week leave two weeks

before the school term ends, the entire

six-week period should count as FMLA

leave.

The Department disagrees. An

absence taken when the employee

would not otherwise be required to

report for duty is not leave, FMLA or

otherwise. For example, the regulations

do not require an employee, who

normally works Monday through

Friday, and is taking intermittent leave,

to have counted as leave the weekend

days (i.e., Saturday and Sunday). If the

employee(s), absent FMLA, would not

have otherwise been required to take

some form of leave to cover the absence,

then the absence is not to be counted

against the employee’s FMLA leave

entitlement. Section 825.200(f) has been

added to the Final Rule to clarify this

issue.

Restoration to ‘‘Equivalent Position’’

(§ 825.604)

The Women’s Legal Defense Fund and

the American Federation of Teachers/

National Education Association urged

that this section be clarified in the Final

Rule to make it clear that restoration of

an employee at the conclusion of FMLA

leave based on existing policies and

practices of a school board must provide

substantially the same protections as

provided in the statute for other

reinstated employees. Specifically, the

school board may not restore the

employee to a position which would

require any additional licensure or

certification, or would result in

substantially increased commuting time.

The Department agrees with the

suggestion that the regulation prohibit

restoration to a position requiring

additional licensure. While as a general

matter restoration must be to a

geographically proximate location, a

school board policy may deviate from

this requirement provided the deviation

does not result in substantially less

employee protections. Therefore,

commuting time will not be mentioned

in the rule.

VII. Subpart G—How Other Laws,

Employer Practices, and Collective

Bargaining Agreements Affect

Employees’ FMLA Rights

More Generous Employer Benefits Than

FMLA Requires (§ 825.700)

Nothing in FMLA diminishes an

employer’s obligation under a collective

bargaining agreement (CBA) or

employment benefit program or plan to

provide greater family or medical leave

rights to employees than the rights

established under FMLA (FMLA

§ 402(a)), nor may the rights established

under FMLA be diminished by any such

CBA or plan (FMLA § 402(b)).

This section of the regulations

described the interaction between

FMLA and employer plans and CBAs.

Included were provisions to describe

FMLA’s delayed effective date for CBAs

in effect on August 5, 1993—FMLA

would not apply until February 5, 1994,

or the expiration date of the CBA,

whichever occurred earlier. For CBAs

subject to the Railway Labor Act and

other CBAs which have no expiration

date for the general terms, but which

may be reopened at specified times (e.g.,

to amend wages and benefits), the date

of the first amendment after August 5,

1993, and before February 5, 1994, was
2230 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

considered the effective date for

purposes of FMLA.

The State of Oregon’s Bureau of Labor

and Industries, State of Oklahoma’s

Office of Personnel Management, Fisher

& Phillips, and College and University

Personnel Association raised questions

or offered comments on whether ‘‘more

generous’’ family or medical leave

provided pursuant to contract or an

employer policy may be counted against

an employee’s 12-week FMLA leave

entitlement under circumstances where

either the employees would not yet be

eligible for FMLA leave, or the leave is

for a reason that does not qualify as

FMLA leave (e.g., employers adopt leave

policies that mirror FMLA but relax

eligibility requirements or the definition

of serious health condition, or expand

the ‘‘family member’’ definition to

include in-laws and domestic partners).

To reduce the incentive for employers to

eliminate such ‘‘more generous’’

policies, these commenters contend that

DOL should allow employers to count

such leave towards FMLA leave

entitlements.

Leave granted under circumstances

that do not meet FMLA’s coverage,

eligibility, or specified reasons for

FMLA-qualifying leave may not be

counted against FMLA’s 12-week

entitlement. However, employers may

designate paid leave as FMLA leave and

offset the maximum entitlements under

the employer’s more generous policies

to the extent the leave qualifies as

FMLA leave.

Sommer & Barnard questioned

whether FMLA’s 12 weeks of leave must

be added to longer periods of employerprovided leave (e.g., disability leave); or,

alternatively, whether employers may

offset FMLA’s leave entitlement against

the longer periods of employer-provided

leave. To the extent that a particular

absence recognized under the employerprovided plan also qualifies as FMLA

leave, and the leave is designated by the

employer in accordance with § 825.207

and § 825.208, the absence may be

counted concurrently under both FMLA

and the employer’s plan (e.g., a

disability that is covered by the

employer’s disability leave plan which

also meets FMLA’s definition of

‘‘serious health condition that makes the

employee unable to perform the

functions of the position’’).

The Chamber of Commerce of the

USA commented that the language in

paragraph (c) of this section provided a

reasonable construction of the Act’s

effective date for CBAs subject to the

Railway Labor Act and other CBAs

which do not have an expiration date

for the general terms, but which may be

reopened between August 5, 1993, and

February 5, 1994, to amend wages and

benefits. The example given, however,

of a contract reopening to amend wages

and benefits wrongly suggests that a

contract reopened for any other reason

also should be considered terminated

for FMLA effective date purposes, the

Chamber contended. Any reopening not

pertaining to benefits should not be

construed as a termination of the

agreement according to this comment.

We disagree with the interpretation

suggested by this comment. Any

reopening of the CBAs subject to this

rule, which is specifically limited to

CBAs subject to the Railway Labor Act

and other CBAs which do not have an

expiration date for the general terms, for

the first time after August 5, 1993, shall

be considered the termination date of

the CBA for purposes of FMLA’s

effective date.

The Contract Services Association of

America questioned whether the costs

associated with FMLA’s requirements to

maintain group health benefits during

periods of FMLA leave could be

credited by a contractor towards

meeting its fringe benefit requirements

under wage determinations issued

pursuant to the McNamara-O’Hara

Service Contract Act (SCA), or are they

excluded as are other statutorilymandated benefits such as FICA,

workers’ compensation, etc.? Because

SCA excludes any benefit otherwise

required by Federal, State, or local law

to be provided by the employer to an

employee, such costs may not be

claimed as a credit for purposes of

meeting the contractor’s fringe benefit

obligations to employees under the

SCA. In any event, SCA credit may only

be taken for contributions that cover

periods when work is performed.

The Contract Services Association

also asked whether cash-equivalent

payments made in lieu of furnishing

bona fide health and welfare benefits to

an SCA-covered employee have to

continue when the employee is on

FMLA leave. Such cash equivalent

payments do not have to continue while

the employee is on unpaid FMLA leave.

State Family and Medical Leave Laws

and FMLA (§ 825.701)

Nothing in FMLA supersedes ‘‘any

provision of any State or local law that

provides greater family or medical leave

rights’’ than the rights under FMLA (see

FMLA § 401(b)). Because of this

statutory ‘‘non-preemption’’ language,

the determination of which law applies

(State versus Federal) in a particular

situation must be examined on a

provision-by-provision basis. Where the

requisite coverage or applicability

standards of both laws are met and the

laws contain differing provisions, an

analysis must be made of both laws,

provision-by-provision, to determine

which standard(s) from each law will

apply to the particular situation. The

standard providing the greater right or

more generous benefit to the employee

from each law (provision-by-provision)

will apply. Note, however, that leave

taken for a reason specified in both the

Federal and State law may be

simultaneously counted against the

employee’s entitlement under both

laws. This section of the regulations

attempted to demonstrate the

interaction between FMLA and State

laws with examples. Numerous

comments were received suggesting

there may be considerable confusion

over the ‘‘provision-by-provision’’

analysis that must be conducted in each

particular case.

Employers Association of New Jersey

recommended guidelines be included in

the regulations for applying FMLA and

State law in the following manner:

If an employee takes leave for a

purpose which is recognized under only

one of the two laws, rights and

obligations are governed by that law

alone, and the amount of leave taken

cannot be charged against the amount of

leave which may be allowed under the

other law.

If an employee takes leave for a

purpose which is recognized under both

the FMLA and a State law, the employee

is entitled to the benefits of whichever

law is the most favorable to the

employee and the amount of leave taken

is charged against the amount which is

allowed under each law.

The availability of benefits under

either law is subject to the limitations of

that law with respect to the duration of

leave, type of leave, etc.

The Equal Rights Advocates suggested

additional examples where a State law

is silent on an issue addressed by

FMLA. If an employee is ‘‘eligible’’

under both FMLA and a State or local

law, and the State or local law is silent

on a provision contained in FMLA, and

if the FMLA provision is restrictive (as

to employee rights or benefits), then the

State or local law would govern as to

that provision. If the FMLA provision is

not restrictive (or extends a right,

benefit or privilege to employees), then

the FMLA would govern as to that

provision. For example, a State law that

grants employers the right to deny the

taking of leave to high-level executives

could not be applied to any FMLAeligible employees, because FMLA

extends to all eligible employees the

entitlement to leave for qualifying

reasons. If the same State law contained

a provision mandating that all
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2231

employees who take leave be restored to

employment when the leave ends, then

FMLA’s ‘‘key’’ employee exemption

could not be applied to deny an

employee reinstatement (i.e., the

Federal law would not apply at the time

of reinstatement).

The guidelines and interpretations

suggested above by the Employers

Association of New Jersey and the Equal

Rights Advocates correctly construe the

relationship between FMLA and other

State laws, which have been included

here for guidance.

Chicagoland Chamber of Commerce

commented that, with respect to

substantive provisions such as

eligibility and coverage requirements,

amount of leave, benefits and

employment protections, and

substitution requirements, the more

generous or expansive provisions

between the FMLA and the State law

should apply and be considered to offset

or simultaneously satisfy overlapping

but less generous provisions. ‘‘More

generous’’ should be determined on a

‘‘common sense, quantitative basis,’’

they contend, such as where a State law

allows up to 16 weeks of leave for a

serious health condition in any year and

FMLA allows 12 weeks, the State law

maximum would apply. They

recommended the regulations specify

that differences in more generous

substantive provisions in State law

cannot be combined with other less

restrictive provisions in FMLA, and vice

versa. With respect to procedural

provisions, such as notification of leave,

certification requirements, and other

procedural requirements, the

commenter recommended that the

provisions of FMLA and its

implementing regulations should be

applied in all cases because of the

administrative difficulty in trying to

determine if State or Federal provisions

are more or less generous. The

Louisiana Health Care Alliance (Phelps

Dunbar) similarly suggested that any

State law procedural regulations which

are inconsistent with FMLA should be

preempted.

FMLA provides that it shall not

supersede ‘‘any provision’’ of any State

or local law that provides greater family

or medical leave ‘‘rights’’ than under

FMLA. There is no basis under this

language or the legislative history to

distinguish between procedural

provisions that extend greater rights to

employees and substantive provisions

that provide more generous family or

medical leave benefits to employees.

The Women’s Legal Defense Fund

recommended the regulations address

the interaction between FMLA and State

workers’ compensation laws. The State

of Oregon’s Bureau of Labor and

Industries asked if State workers’

compensation laws qualify under FMLA

as a ‘‘State * * * law that provides

greater * * * medical leave rights

* * *’’

If a State workers’ compensation law

provides a job guarantee to workers out

of work temporarily due to occupational

injuries that is more generous than

FMLA’s job restoration provisions, such

law is a ‘‘State * * * law that provides

greater * * * medical leave rights

* * *’’ and would govern an

employee’s reinstatement. On the other

hand, where such occupational injuries

also meet FMLA’s definition of ‘‘serious

health condition that makes the

employee unable to perform the

functions of the position,’’ the employer

would have to maintain the injured

employee’s group health benefits under

the same terms and conditions as if the

employee had continued to work during

the workers’ compensation-related leave

of absence (at least for the duration of

the employee’s remaining FMLA leave

entitlement in the 12-month period).

The Association of Washington Cities

commented that an employee could take

12 weeks of FMLA-qualifying leave for

a purpose other than the birth or

adoption of a child and still be eligible

under applicable State law to another

(subsequent) 12 weeks of ‘‘parenting’’

leave, which could enable an employee

to take 24 weeks of leave in a single

year. Under the terms of the applicable

statutes, this is true.

The State of Oregon’s Bureau of Labor

and Industries noted that Oregon’s

parental leave law provides a 12-week

window following the birth of a child

for the use of parental leave, and asked

if an employee’s use of 12 weeks of

parental leave within the first 12 weeks

following the birth exhausts the parent’s

Federal right to take parental leave

within the first year. An employee

‘‘eligible’’ under both the Federal and

State law would exhaust both

entitlements simultaneously within that

12-week period. Note, however, that if

the employee used fewer than 12 weeks

during that initial 12-week period

following the birth, the employee could

use the remainder of his or her Federal

leave entitlement under FMLA within

one year after the birth. This commenter

also pointed out that a parent must

share a state leave entitlement with his

or her spouse regardless of whether they

work for separate employers. Under

FMLA, each FMLA-’’eligible’’ spouse

would retain a Federal entitlement

equal to 12 weeks minus their portion

of the State leave taken.

The University of California observed

that, under California law, employers

may not obtain second or third opinions

except in the case of an employee’s own

serious health condition. Thus, because

FMLA was intended to permit Christian

Science practitioner certification,

employers would not be able to obtain

second or third medical opinions in

connection with the serious health

condition of a spouse, child or parent.

Under the applicable statutes, this

would be true.

Downs Rachlin & Martin stated that,

under Vermont’s Parental and Family

Leave Act, an employee may use

accrued sick leave or vacation leave, not

to exceed six weeks, consistent with

existing policy. ‘‘Utilization of accrued

vacation leave shall not extend the leave

provided therein.’’ The commenter

questioned whether the Federal law

provided a more generous benefit. The

answer is ‘‘Yes’’ with respect to FMLA’s

more generous substitution provisions

and the length of the allowable leave

period.

Hill & Barlow pointed out that the

Massachusetts maternity leave statute

entitles an eligible employee to up to

eight weeks of leave for the purpose of

giving birth or for adopting a child.

They asked if an employee had used 12

weeks of FMLA leave earlier in the year

for a purpose other than giving birth or

adopting a child, would the employee

still be eligible to the State leave

entitlement? The answer is ‘‘Yes.’’

The Corporation for Public

Broadcasting objected to having to

comply with both FMLA and State law

where one law’s benefit is not clearly

more generous than the other. They,

together with the Equal Employment

Advisory Council and the Electronics

Industries Association, also questioned

the provision entitling an employee to

use leave under Federal and State or

local law concurrently, and thus to take

a total amount of leave which may

exceed the already generous amount

allowed by either law. The Corporation

for Public Broadcasting suggested a

Federal preemption if permitted or the

lobbying of Congress to obtain such

authority. California Bankers

Association similarly suggested DOL

include language to preempt all State

law in this area or allow an employee

to take only the greater of the leaves

available (to prevent ‘‘piggybacking’’

leave under both FMLA and State law).

National Association of PlumbingHeating-Cooling Contractors suggested

that ‘‘cafeteria-style’’ programs where

different standards and/or benefits from

each or both the Federal and State laws

are selected to form a separate, hybrid

leave plan should be strictly prohibited,

and likewise urged that the issue of

preemption be revisited.
2232 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Given the literal language of FMLA,

DOL has no authority to preempt State

laws to the extent they provide more

generous leave rights to employees. The

results about which the majority of the

comments complained occur by

operation of law (FMLA and State

family and medical leave laws), and

cannot be mitigated by regulation. Only

editorial changes have been included in

this section of the regulations in

response to the comments, in order to

clarify examples and provide additional

guidance.

Federal and State Anti-discrimination

Laws (§ 825.702)

Nothing in FMLA modifies or affects

any Federal or State law prohibiting

discrimination on the basis of race,

religion, color, national origin, sex, age,

or disability (see FMLA § 401(a)). The

stated purpose of the FMLA in this

regard, according to its legislative

history, was to make leave available to

eligible employees within its coverage,

and not to limit already existing rights

and protection under applicable antidiscrimination statutes (for example,

Title VII of the Civil Rights Act of 1964,

as amended by the Pregnancy

Discrimination Act; and the Americans

with Disabilities Act (ADA)). This

section included examples of how

FMLA would interact with the ADA

with respect to a qualified individual

with a disability as defined under that

Act.

Comments from U.S. Senators Dodd

and Kerry (sponsors of both FMLA and

ADA), in a letter to the EEOC dated

November 22, 1993, make clear that

congressional intent was for both Acts

to be applied simultaneously, and that

an employer must comply with

whichever statutory provision provides

the greater rights to employees. In

keeping with that statutory intent,

FMLA § 401 should not be interpreted

in any way as limiting or forcing an

election of rights under FMLA or ADA.

Similarly, comments from U.S.

Representatives Williams and Ford

(Committee on Education and Labor), in

a letter to the EEOC dated November 19,

1993, explained that congressional

intent, in the case of an employee with

a serious health condition under FMLA

who is also a qualified individual with

a disability under ADA, was for the

FMLA and ADA to be applied in a

manner that assured the most generous

provisions of both would apply. The

statutes provide simultaneous

protection and at all times an employer

is required to comply with both laws.

The Department concurs with this

interpretation of the FMLA as it relates

to the ADA and other discrimination

laws. In summary, providing the ‘‘more

beneficial’’ rights or protections does

not undermine an employer’s obligation

to observe the requirements of both

statutes. Satisfying any or all FMLA

requirements, including granting an

employee 12 weeks of leave and

restoring the employee to the same job,

does not absolve an employer of any

potential ADA responsibilities to that

employee (and vice versa).

Several commenters (G.M. Smith

Associates, Inc; Personnel Management

Systems, Inc; Chamber of Commerce of

the USA; Equal Employment Advisory

Council; and Louisiana Health Care

Alliance (Phelps Dunbar)) urged a

contrary view, that compliance with

FMLA should constitute or substitute

for compliance with ADA, to simplify

the burdens of multiple compliance

obligations. Some stated that employers

evaluating ‘‘undue hardship’’ under

ADA need not disregard the cost and

disruption of FMLA leave already taken

by an employee. This point was also

raised by Personnel Management

Systems, Inc. and Chamber of

Commerce of the USA. The Department

has been advised by the EEOC that the

ADA, unlike the FMLA, considers the

burden on an employer for purposes of

evaluating the feasibility of employee

medical leave. Cost and disruption to

the employer are directly relevant to the

factors listed in ADA’s regulatory

definition of ‘‘undue hardship.’’

Therefore, according to EEOC,

employers may consider FMLA leave

already taken when deciding whether

ADA accommodation leave in excess of

12 weeks poses an undue hardship. This

does not mean, however, that more than

12 weeks of leave automatically poses

an undue hardship under the ADA.

According to EEOC, employers must

apply the full ADA undue hardship

analysis to each individual case to

determine whether or not leave in

excess of 12 weeks poses an undue

hardship.

An employee’s right to be restored to

the same or an equivalent position

under FMLA applies to the job which

the employee held at the time of the

request for FMLA leave, even if that job

differs from the job held previously due

to a reasonable accommodation under

ADA. (This point was raised by the

Chamber of Commerce of the USA.) The

‘‘essential functions’’ of the position

would also be those of the position held

at the time of the request for leave. An

employer may not change the essential

functions of an employee’s job in order

to deny the employee the taking of

FMLA leave. However, this does not

prevent an employee from voluntarily

ending his or her leave and accepting an

alternative position uncoerced and not

as a condition of employment. The

employee would then retain the right to

be restored to the position held by the

employee at the time the FMLA leave

was requested (or commenced) until 12

weeks have passed, including all FMLA

leave taken and the period the employee

returned to ‘‘light duty.’’ When an

employer violates both FMLA and ADA,

an employee may be able to recover

under either or both statutes (but may

not be awarded double relief for the

same loss).

VIII. Subpart H—Definitions (§ 825.800)

The Women’s Legal Defense Fund

urges that all definitions that are

modified in the text of the regulations

be modified similarly in Subpart H.

Certainly the Department intends to

maintain the integrity of this Subpart,

and any material modifications will be

incorporated.

The law firm of Alston and Bird

recommended that the term group

health plan should not include nonemployment related benefits paid by

employees through voluntary

deductions, e.g., individual insurance

policies. We agreed with the

recommendation and language has been

added to § 825.209(a)(1) to exclude such

benefits from the definition of group

health plan, and make clear an

employer is not responsible for

maintaining or restoring such benefits

for employees who take FMLA leave.

The American Association of Retired

Persons (AARP) took issue with the

definition of ‘‘parent’’ in this section

and stated there is nothing in the

statutory language or the legislative

history that required the exclusion of

parents in-law. We disagree, as

discussed above in connection with

§ 825.113. Section 101(7) of the statute

defines parent as the biological parent of

an employee or an individual who stood

in loco parentis to an employee when

the employee was a son or daughter.

There is no language in the legislative

history to indicate Congress

contemplated expanding the definition

beyond the plain meaning of the words.

In the Final Rule, the sentence, ‘‘This

term does not include parents ‘in-law’ ’’,

will be removed from the definition of

‘‘parent’’ in § 825.800, but not from the

explanatory guidance in § 825.113. This

is being done not because we agree with

AARP but rather because the language

in the statute and the regulation are

clear regarding the term and the

additional sentence is unnecessary.

The law firm of Fisher and Phillips

urged that the Final Rule should clarify

whether employees of a U.S. employer

who are employed in the territories and
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2233

possessions of the United States may be

eligible employees. The law firm asks

for the same clarification with regard to

employees working in countries other

than the United States. Sections

825.105(a) and 825.800 in the Final Rule

will be amended to reflect that

employees employed within any State

of the United States, the District of

Columbia or any territory or possession

of the United States are subject to FMLA

and may be eligible employees.

Employees employed outside these

areas are not counted for purposes of

determining employer coverage and

may not become eligible employees as

FMLA does not apply.

The Personnel Management Systems,

Inc., and the Credit Union National

Association, Inc., suggest that only

eligible employees should be counted in

determining whether an employer has

50 or more employees for FMLA

coverage purposes. The language of the

statute, in § 101(2) defines the term

‘‘Eligible Employee.’’ In paragraph (3) of

that section, the statute defines

‘‘Employee’’ as having the same

meaning as the definition found in

section 3 of the Fair Labor Standards

Act. Section 101(4) of the statute defines

‘‘ ‘Employer’ as any person * * * who

employs 50 or more employees * * *’’

(emphasis added). If Congress had

intended to limit the count for

determining coverage to eligible

employees only, it could have included

that language ‘‘50 or more eligible

employees.’’ The legislative history

indicates clearly Congress’ intent to

count all employees. The Department is

unable to incorporate the desired

change.

The Medical Group Management

Association recommends that the

definition of employee should not

include equity owners (partners) of

corporations who are both employers

and employees. These individuals

should be excluded from the count of

employees even though their names

appear on the payroll.

Persons who are partners in a

business are not employees for purposes

of the FMLA because partners are not

included within the definition of

employee under the FLSA. The

definition of ‘‘employer’’ in § 101(4) of

the FMLA means any person engaged in

commerce or in any industry or activity

affecting commerce who employs 50 or

more employees, etc., and includes any

person who acts, directly or indirectly,

in the interest of an employer to any of

the employees of the employer. Section

101(8) defines ‘‘person’’ to have the

same meaning as in § 3(a) of the FLSA,

which means an individual,

partnership, association, corporation

* * * (etc.). Partners are not to be

included in the count of employees for

coverage or eligibility, even if their

names appear on the payroll. However,

equity owners (e.g., stockholders) of a

corporation may also be employees of

the corporation and, as such, when their

names appear on the payroll, are

included in such employee counts and

they may also become eligible

employees. No change will be made in

the Final Rule in this regard as the

determination of whether such an

individual is an employee is case

specific.

The National Community Mental

Healthcare Council observes that the

definition of an individual who is

incapable of self-care is deficient in that

it only addresses activities of daily

living (ADLs), which relate to physical

incapacity, but does not address those

with mental illness. They recommend

the definition be expanded to include

‘‘instrumental activities of daily living’’

(IADLs). Their recommendation is

appropriate and the language in the

Final Rule in § 825.113(c)(1) has been

amended to include IADLs.

The Council also urges that the

definition of health care provider (HCP)

be expanded to mental health

professionals and mental health

services. The definition of HCP has been

amended to include any HCP from

whom the employer or a group health

plan’s benefits manager will accept

certifications. This change should

address this concern.

IX. Appendix B, Appendix C, and

Appendix E

A number of comments which raised

concerns about Form WH–380, the

optional form to obtain medical

certification, have been addressed above

and will not be repeated herein.

Three commenters, including The

First Church of Christ, Scientist, offered

alternative forms to be used for the

medical certification. The concern of the

Christian Scientists was that they are

unable to provide a medical diagnosis of

the employee. As the Department has

already decided to revise the medical

certification form, the concerns of these

commenters will be addressed by the

revision to the extent appropriate in

keeping with the statutory language.

Further, we believe having separate or

special forms for differing kinds of

health care providers would prove

confusing, and may, in fact, result in

more requests for second and third

medical opinions.

G.M. Smith Associates, Inc.,

recommends the form include a letter

from the employee to the health care

provider that requests referral to a board

certified specialist if necessary. The

form should ask the health care provider

if going to work will harm the employee

and whether the illness/injury

precludes the employee from travel or

being at work. If either of these

questions are answered affirmatively,

the health care provider would provide

a date on which the employee will be

available for limited duties.

There is no statutory basis for

obtaining the additional information

requested by this commenter. For

example, § 825.702 provides that an

employee may not be required to accept

a light or limited duty position. The

Department is unable to add the

requested information to the form as it

does not comport with the statutory

provisions.

Appendix C

The Women’s Legal Defense Fund

points out that information is not

included on the notice that notes

potential application of either more

beneficial State statutes or more

beneficial provisions of a Collective

Bargaining Agreement. They

recommend separate notices for

employers in each of the States that give

broader rights. They suggest a statement

in the notice that employees should

consult with union representatives, that

notices be provided to employers in

Spanish, that the Department develop

materials for employees on how to

obtain FMLA leave, and that the

Department install an 800-hotline

number for FMLA inquiries and

complaints.

The purpose of the notice is to outline

the essential provisions and protections

of FMLA to employees, much in the

same manner as the notice for FLSA.

The size of the poster, whether 81⁄2

inches x 11 inches (the size of the

FMLA poster) or 14 inches x 17 inches

(the size of the FLSA poster), would not

accommodate every possible nuance of

the FMLA. Employees are advised to

contact the nearest office of the Wage

and Hour Division for additional or

more specific information. The notice

has been available in Spanish for some

time. The Department has published

State/Federal comparisons of family and

medical leave statutes. These

informational materials are available to

employees as well as employers, thus,

separate notices for each State are

unnecessary. The Department has

published a Fact Sheet and a Guide to

Compliance with the FMLA for use by

employees and employers alike to

obtain more specific, non-technical

information regarding the statute.

Section 825.301(a)(2) instructs

employers they may use the
2234 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

1The State of Small Business: A Report of the

President Transmitted to the Congress (1991),

Together with The Annual Report on Small

Business and Competition of the U.S. Small

Business Administration (United States

Government Printing Office, Washington, D.C.,

1991), p. 19. A more detailed breakdown also used

by SBA is: under 20 employees, very small; 20–99,

small; 100–499, medium-sized; and over 500, large.

On the other hand, the size standard established by

SBA at 13 CFR § 121.601 is 500 employees for most

industries.

2U.S. Department of the Treasury, Internal

Revenue Service, SOI Bulletin (Spring 1990) Table

19; reprinted by SBA in The State of Small Business

(1991), Ibid., p. 21.

3U.S. Department of Commerce, Bureau of the

Census, Current Population Survey, 1990. These

tabulations contain firms with employees only; the

self-employed were excluded. The self-employed

would not constitute a covered ‘‘employer’’ for

purposes of the FMLA and, therefore, these

tabulations tend to understate the actual number of

‘‘small’’ businesses that are excluded from FMLA’s

coverage and overstate the proportion of small

businesses that are covered by the FMLA.

4This 92.4 percent figure appears misleading to

us for measuring the universe of employers at issue

for purposes of this analysis in that it excludes the

very substantial number of small businesses

employing fewer than 50 employees which would

not be covered by the FMLA and, therefore, would

not be impacted by the rule.

5Not every employee of a covered employer is

eligible for FMLA leave. To be eligible, an employee

must work for a covered employer and have worked

for at least 12 months and 1,250 hours in the 12

months preceding the leave, and work at a location

where the employer employs at least 50 employees

within 75 miles of the worksite. § 101(2) of FMLA;

29 CFR § 825.110.

6U.S. Department of Commerce, Bureau of the

Census, County Business Patterns, 1990 (CPB–90–

1), issued January 1993, Table 1b. These tabulations

exclude most government and railroad employees,

and self-employed persons.

Department’s Fact Sheet for general

distribution to employees when the

employer does not have an employee

handbook in which FMLA policies have

been incorporated. The Department has

made no final decision on the viability

of installing an 800 number.

Appendix E

The Department had promised earlier

that if the IRS published guidance

concerning the relationship between

FMLA and certain aspects of the tax

code, e.g., COBRA, the Department

would include the IRS guidance as an

appendix to the final rule. IRS

published guidance concerning COBRA

in Notice 94–103, appearing in Internal

Revenue Bulletin No. 1994–51, dated

December 19, 1994. A copy of the notice

is attached to the regulation as

Appendix E.

X. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

Public Law 96–354 (94 Stat. 1164; 5

U.S.C. 601 et seq.), Federal agencies are

required to analyze the anticipated

impact of proposed rules on small

entities. Because FMLA applies only to

private employers of 50 or more

employees (and to all public agencies

regardless of the number of employees

employed), it covers only the larger

private employers—in total, about five

percent of all possible employers, or

approximately 300,000. Also, FMLA

requires covered employers to grant

only unpaid leave to eligible employees

for specified reasons. For these reasons,

the Department concluded that the

implementing rules likely would not

have a ‘‘significant economic impact on

a substantial number of small entities’’

within the meaning of the Regulatory

Flexibility Act. The Acting Chief

Counsel for Advocacy of the U.S. Small

Business Administration (SBA) filed

official comments on the interim final

FMLA rules which disagreed with

DOL’s conclusion. SBA contended

essentially that the FMLA regulations

will have a significant impact on all

businesses covered by the FMLA, the

vast majority of which, SBA contends,

are small.

The definition of ‘‘small’’ business

varies considerably, depending upon

the policy issues and circumstances

under review, the industry being

studied, and the measures used. SBA

generally uses employment data as a

basis for size comparisons, with firms

having fewer than 100 employees or

fewer than 500 employees defined as

small.1

Statistics published by the Internal

Revenue Service indicate that in 1990,

of the estimated 20.4 million business

tax returns that were filed (4.4 million

for corporations, 1.8 million for

partnerships, and 14.2 million for sole

proprietorships), fewer than 7,000

would qualify as large businesses if an

employment measure of 500 employees

or less were used to define small and

medium-sized businesses.2 The SBA

stated in its comments that, based upon

1990 Census tabulations, there are

105,720 firms which employ between 50

and 99 employees; 55,249 firms which

employ between 100 and 249

employees; and 14,999 firms which

employ between 250 and 499

employees, providing a total of 175,968

businesses with fewer than 500

employees.3 Thus, the SBA suggests that

if an employment measure of 500

employees is used to define ‘‘small’’

businesses, 92.4 percent of all those

businesses which are affected by the

FMLA and its implementing regulations

are ‘‘small’’ businesses.4

In fact, however, this analysis

overstates the number of ‘‘small’’

businesses that are actually affected by

FMLA’s requirements because they

must grant unpaid leave only to

employees who are defined as ‘‘eligible’’

under the law. It is conceivable, for

example, that a covered ‘‘small’’

business with 250 employees working at

several geographically dispersed

worksites would have no employees

who are eligible to take FMLA leave

(because there would be fewer than 50

employees working within 75 miles of

each worksite). Similarly, an employer

with a very transient workforce, with all

part-time employees, may have no

eligible employees.5

Assuming the appropriateness of the

500-employee criterion applied by SBA

to define ‘‘small’’ businesses for

purposes of FMLA, and acknowledging

that there are a number of small

businesses that would be covered by the

FMLA rules, we note that the Congress,

in selecting the 50-employee coverage

threshold, frequently characterized the

new legislation as exempting smaller

businesses and applying only to larger

ones. We also note the overwhelming

majority of small businesses that are not

subject to the FMLA. Information

compiled by the U.S. Department of

Commerce and reported in County

Business Patterns, 1990, indicates that

there are 5,862,938 establishments

employing between one and 49

employees; 175,375 establishments

employing between 50 and 99

employees; 97,742 establishments

employing between 100 and 249

employees; 24,334 establishments

employing between 250 and 499

employees; 9,592 establishments

employing between 500 and 999

employees; and 5,582 employing 1,000

or more employees.6 These numbers

confirm the Department’s earlier

estimates that roughly five percent (i.e.,

312,625) of all establishments would be

covered by FMLA at the 50-employee

coverage threshold. Moreover, these

numbers suggest further that, if SBA’s

500-employee threshold for defining

‘‘small’’ businesses is applied, less than

five percent of all small businesses

would be covered by the FMLA, while

more than 95 percent of all small

businesses would be exempted from

FMLA coverage.

In addition, William M. Mercer,

Incorporated and the Institute of

Industrial Relations at the University of

California, Berkeley jointly conducted a

survey of nearly 300 employers on the

FMLA in November 1993. This report

notes that, before FMLA was passed,

there was opposition to mandated leave

based on the idea that small business

would be negatively impacted by such

leave. However, small employers (those

with less than 200 employees) who
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2235

7The Department’s Women’s Bureau has also

distributed to the public a comparison of State

maternity/family leave laws since June 1993.

responded to this survey were not

significantly more likely to anticipate

major financial costs or great

administrative difficulty in complying

with the FMLA than large employers. In

response to questions on the Californiamandated family leave law (in effect

since January 1992), small employers

reported the lowest level of utilization

of family leave and no higher direct and

indirect financial costs than did larger

employers. In fact, the only employers

that reported any ‘‘major costs’’

associated with California-mandated

leave were those that employed 5,000 or

more employees. A greater percentage of

large employers had experienced

disagreements with employees over

family leave issues. Large employers,

however, were also most likely to note

a beneficial effect on absenteeism,

employee morale, public relations, and

supervisory relationships as a result of

mandated leave. Small employers, in

contrast, were most likely to note a

beneficial effect on worker productivity

and co-worker relationships.

For its part, the Department made a

conscious effort to adopt the least

burdensome regulatory alternatives

(consistent with the statute) in order to

reduce the burden on all employers,

including small employers. In

particular, recordkeeping requirements

were kept to the minimum level

necessary for confirming employer

compliance with FMLA’s statutory leave

provisions. In addition, to ease

administrative burdens on all

employers, including small entities,

employee notification requirements that

apply when employees request FMLA

leave were summarized in § 825.301(c)

of the regulations, and DOL made

available a prototype notice which

employers could adapt for their own use

to meet the specific notice requirements

(see § 825.301 (c)(8)).

The Department also engaged in

extensive education and outreach

efforts. We prepared and made available

a Fact Sheet and a Compliance Guide to

the FMLA, to assist all employers in

understanding and meeting their

compliance obligations. Because FMLA

does not diminish any greater family or

medical leave rights provided by State

or local law, DOL also prepared and

distributed comparisons of State and

Federal family and medical leave laws,

indicating which law provided the

greater employee rights or benefits for

compliance purposes.7

Thus, DOL continues to believe that

the extraordinary measures which it has

taken in connection with the

implementation of the FMLA will ease

the burdens of compliance on all

employers, including small employers,

and that compliance with the FMLA

will not have a significant economic

impact on a substantial number of small

entities. This conclusion is reinforced

by available research which shows that

costs associated with implementing the

FMLA are not significant for covered

businesses including covered ‘‘small’’

entities with eligible employees.

In conclusion, even assuming a 500-

employee size standard, only 5 percent

of small employers are covered by

FMLA. Based on our review of the

studies conducted, the Department

concludes, therefore, that the FMLA

rules would not likely have a significant

economic impact on a substantial

number of small entities.

Because of its belief that FMLA

significantly impacts a substantial

number of small entities, the SBA also

suggested in its comments a number of

regulatory alternatives in certain areas

that it believed would ease the burden

on small entities, as follows:

Exclude Part-time Employees When

Determining Employer Coverage Under

FMLA: The SBA suggested that DOL

reduce the coverage of small businesses

by changing the 50-employee threshold

for coverage to exclude part-time

workers from the count. Because small

entities employ more part-time workers

than larger firms, SBA stated that

inclusion of part-time employees will

increase the coverage of the FMLA to

firms ‘‘that otherwise might not have

been covered.’’ FMLA’s coverage criteria

are statutory and, as specifically stated

in the legislative history, it was the clear

intention of the Congress that all

employees of an employer are to be

included in the count, including parttime employees. (‘‘It is not necessary

that every employee actually perform

work on each working day to be counted

for this purpose. * * * Similarly, parttime employees and employees on

leaves of absence would be counted as

‘employed for each working day’ so long

as they are on the employer’s payroll for

each day of the workweek.’’ Report of

the Committee on Labor and Human

Resources (S.5), Senate Report 103–3

(January 27, 1993), p. 22.)

Clarify Definitions of ‘‘Serious Health

Condition’’ and ‘‘Medical Necessity’’ for

FMLA Leave: SBA observed that the

definition of ‘‘serious health condition’’

(which is statutory) was broadly

inclusive, and suggested that employers

would be required to look to FMLA’s

legislative history in order to determine

whether an employee’s condition is

considered a ‘‘medical necessity’’ that

justifies FMLA leave. SBA mistakenly

presumes that this is a judgment that the

statute and regulations permit an

employer to make. If the health

condition meets the definition in the

regulations at § 825.114 and, as

provided in §§ 825.305–825.307, an

employee furnishes a completed DOLprescribed medical certification from

the health care provider, the only

recourse available to an employer that

doubts the validity of the certification is

to request a second medical opinion at

the employer’s expense. Employers may

not substitute their personal judgments

for the test in the regulations or the

medical opinions of the health care

providers of employees or their family

members to determine whether an

employee is entitled to FMLA leave for

a serious health condition.

Expand the ‘‘Key Employee’’

Definition to Include Job Descriptions

Instead of Salary: Under the ‘‘key

employee’’ exception, employers may

deny job restoration in certain cases (see

§§ 825.217–825.219). SBA

recommended that DOL expand the

regulatory definition of ‘‘key employee’’

to include an employee’s job description

in lieu of salary, because there may be

situations, particularly in small entities,

where lower salaried employees

perform on-going employment functions

that are vital to the business and prevent

economic injury to the employer’s

operation but must be reinstated due to

the comparatively low salary that is

paid. We note first that it seems unlikely

that an employer would not want to

restore such an employee to

employment if the employee performs

the vital role indicated, but that is

beside the point. The provisions

applicable to the ‘‘key employee’’

exception are statutory and state,

specifically, that the employees affected

must be ‘‘* * * a salaried eligible

employee who is among the highest

paid 10 percent of the employees

employed by the employer within 75

miles of the facility at which the

employee is employed’’ (see § 104(b)(2)

of the FMLA). There is no authority

under these provisions of the law to

ignore the salary paid to ‘‘key

employees.’’ SBA’s suggestion directly

contravenes the statute and cannot be

adopted by regulation.

Require a Four-Hour Minimum

Absence for Intermittent (or Reduced

Leave) Schedules: FMLA allows eligible

employees to take leave intermittently

or on a reduced leave schedule in

certain cases. The regulations state that

an employer may not limit the period of

intermittent leave to a minimum

number of hours. SBA stated that DOL

could significantly reduce the impact of
2236 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

the FMLA on small entities by imposing

a minimum leave requirement, and

suggested a four-hour minimum would

both enable an employee to work a halfday and permit the employer to ease

administrative burdens in complying

with the FMLA regulations. Permitting

an employer to impose a four-hour

minimum absence requirement would

unnecessarily and impermissibly erode

an employee’s FMLA leave entitlement

for reasons not contemplated under

FMLA (see also the discussion of

§ 825.203, above). Section 102(b)(1) of

the FMLA provides that ‘‘* * * [t]he

taking of leave intermittently or on a

reduced leave schedule pursuant to this

paragraph shall not result in a reduction

in the total amount of leave to which the

employee is entitled * * * beyond the

amount of leave actually taken.’’ An

employee may only take FMLA leave for

reasons that qualify under the Act, and

may not be charged more leave than is

necessary to address the need for FMLA

leave. Time that an employee is directed

by the employer to be absent (and not

requested or required by the employee)

in excess of what the employee requires

for an FMLA purpose would not qualify

as FMLA leave and, therefore, may not

be charged against the employee’s

FMLA leave entitlement.

‘‘Small’’ Business Handbook: SBA

also suggested that DOL consider

providing a handbook detailing

compliance requirements for small

entities, i.e., comparisons of State and

Federal family and medical leave

benefits and a summary of employee

notification requirements, to ease

administrative burdens on small

entities. As noted above, we prepared

and distributed comparisons of State

and Federal family and medical leave

laws, indicating which law provided the

greater employee rights or benefits for

compliance purposes, and distributed

Fact Sheets and Compliance Guides

which summarized compliance

requirements.

In conclusion, the Department

believes that the available data and

studies on the cost impact of the FMLA

generally support the Department’s

conclusion that the implementing

regulations will likely not have a

significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act. The regulatory revisions

suggested by the SBA to ease

compliance requirements for small

entities are inconsistent with the statute

or its legislative history and cannot be

adopted by regulation.

XI. Executive Order 12866

The Department prepared an analysis

of the anticipated cost impact of the

FMLA rules to meet the regulatory

impact analysis (cost/benefit)

requirements of former Executive Order

12291 on Federal Regulations. The

Department’s analysis was principally

based on previous analyses of the cost

impact of prior versions of FMLA

legislation pending before the U.S.

Congress which were conducted by the

U.S. General Accounting Office (GAO).

The GAO’s latest report on FMLA

legislation, updated to reflect the 1993

enactment, estimated the cost to

employers of maintaining health

insurance coverage for workers on

unpaid family and medical leave at

$674 million per year (GAO/HRD–93–

14R; February 1, 1993). The GAO’s

estimates assumed that employers

would experience no measurable costs

under the law beyond those of

maintaining group health insurance

during periods of permitted absences,

based on a survey of selected firms in

the Detroit, Michigan and Charleston,

South Carolina areas. It was the GAO’s

view that its estimates likely overstated

actual costs to employers for leave

granted under the new law because the

GAO could not adjust for the mitigating

influence of pre-existing leave policies

already provided by employers either

voluntarily or to comply with other

mandates such as State or local laws or

collective bargaining agreements (34

States, the District of Columbia, and

Puerto Rico provide for some type of

job-protected leave guarantee by law).

While several commenters expressed

a general view that FMLA would have

an adverse impact on business, or

summarized previous studies that tried

to measure the economic impact of

FMLA, only one comment was received

concerning DOL’s impact analysis

included in the preamble to the Interim

Final Rule (the Department specifically

requested comments on the estimates of

the impact of the FMLA and the

implementing regulations). The Los

Angeles County Metropolitan

Transportation Authority disagreed with

GAO’s estimates of cost to employers of

complying with various FMLA

provisions. This commenter believed

the cost estimates are significantly

understated because they do not take

into account the productivity losses

while employees are out on leave, and

the costs of hiring and training

temporary replacement workers. The

Department pointed out in the preamble

to the Interim Final Rule (58 FR 31811;

June 4, 1993) that quantifying the

impact of the FMLA is highly

dependent on numerous assumptions

which are severely constrained by

limitations in available data. The

regulatory impact analysis noted the

existence of differing views on this

issue, citing specifically the Minority

Views contained in the House Report

(H.R. Rept. 103–8, 103d Cong., 1st Sess.,

p. 60), which characterized the GAO

estimates as understated either because

assumptions were inconsistent with the

legislative provisions or with the

conclusions of other studies. The

preamble to the Interim Final Rule

noted in particular the issues of

productivity losses and training costs

for temporary replacements cited in

studies by the former American Society

for Personnel Administrators (now the

Society for Human Resource

Management) and the SBA.

Furthermore, studies prepared

subsequent to the June 1993 Interim

Final FMLA rules suggest that our

initial assessment of GAO’s estimates as

being reasonable remains valid.

The Senate Committee on Labor and

Human Resources noted from testimony

by the Commissioner of the Oregon

Bureau of Labor and Industries that

employers in the State of Oregon, when

confronted with implementing similar

requirements at the State level, reported

little or no difficulty in implementing

the law, and none had reduced other

existing benefits to comply with the

new statutory family leave requirements

(Report of the Committee on Labor and

Human Resources (S.5), Report 103–3,

January 27, 1993, p. 14).

Further, according to a three-year

study conducted in Minnesota, Oregon,

Rhode Island, and Wisconsin by the

Families and Work Institute, sizable

majorities of covered employers

reported that the State laws were neither

costly nor burdensome to implement

(Ibid.). This study suggested that the

availability of unpaid leave required by

the new State laws had no impact on the

length of leave taken by working

mothers and only a slight impact on the

length of leaves taken by fathers. The

survey found that most companies, even

the smallest, already offered

considerable amounts of leave to

working mothers. Small companies

granted leave as often as larger

companies. Even among companies

with fewer than 10 employees, 79

percent indicated they guaranteed the

jobs of women who took leave. The

survey found that, prior to passage of

the State laws, 83 percent of all

employers surveyed provided jobguaranteed leave to biological mothers

for childbirth, and 67 percent of those

maintained health benefits during the

maternity leave. Sixty percent of all
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2237

employers similarly allowed fathers

time off for newborns. Among other

highlights from the survey, 91 percent of

employers interviewed in the four States

reported no difficulty with

implementation of the State parental

leave laws; the majority of employers

reported no increase in costs for

training, administration or

unemployment insurance as a result of

the State laws; 67 percent reported they

most often relied on other employees to

do the work of an employee on leave,

while 23 percent reported they most

often hired a temporary replacement; 94

percent reported that the leave laws had

not forced them to reduce other benefits

in order to pay for maintaining the

health benefits of parents on leave; the

percentage of working women who took

unpaid leave for the birth of a child (78

percent) was unaffected by the

enactment of the State laws; and the

average duration of the leaves remained

virtually unchanged by enactment of the

State laws.

In a 1990 study by Professors Eileen

Trzcinski and William Alpert

commissioned by the SBA, a nationwide

survey of business executives examined

the impact on businesses of providing

family and medical leave. The SBA

study found that the costs of

permanently replacing an employee are

significantly greater than the costs of

granting an employee’s request for

leave—terminations due to illness,

disability, pregnancy, and childbirth

cost employers from $1,131 to $3,152

per termination, compared to $.97 to

$97.78 per week for granting workers’

requests for leave (dependent on size of

employer and managerial status of

employee). Ibid., p. 17.

A 1992 study by the Families and

Work Institute also concluded that

providing unpaid parental leave is more

cost-effective for employers than

permanently replacing employees—20

percent of the employee’s annual salary,

compared to 75 percent to 150 percent

for permanently replacing an employee

(Ibid.).

The Senate Committee Report

concluded that additional costs to

employers as a result of FMLA are

minimal; that there is no evidence of

greater business losses where State laws

require similar family and medical

leave; and, based on a 1989 GAO study

of similar legislation, there would be no

measurable net costs to business from

replacing workers or lost productivity

(costs result exclusively from

continuation of health insurance

coverage for employees on unpaid

leave). Ibid., p. 42.

In addition to the findings of the

studies identified by the Senate

committee report, according to a

September 1993 survey of benefit

managers by Hewitt Associates, an

international consulting firm, most

employers offer more generous leave

policies than required by the FMLA.

Nearly all (95 percent) of the 628

participants indicated that their policies

go beyond the minimum requirements

of the law. Nine of ten employers (92

percent) continue benefits other than

health care for employees while on

FMLA leave. Nearly half of the

employers (45 percent) extend FMLA

leave to employees at locations with

fewer than 50 employees within 75

miles, 44 percent allow longer than 12

weeks of leave, and 30 percent allow

FMLA leave for employees with less

than 12 months of service. Most

employers expect only a small

percentage of employees to avail

themselves of their FMLA policies in

any given year. Nine of ten employers

expect less than 5 percent of their

employees to take FMLA leave in a

given year; three of ten employers

expect less than one percent of their

employees to take FMLA leave in a year.

In addition, as discussed above,

William M. Mercer, Incorporated and

the Institute of Industrial Relations at

the University of California, Berkeley

jointly conducted a survey of nearly 300

employers on the FMLA in November

1993. The only employers that reported

any ‘‘major costs’’ associated with

California-mandated leave were those

that employed 5,000 or more employees.

A greater percentage of large employers

had experienced disagreements with

employees over family leave issues.

Large employers, however, were also

most likely to note a beneficial effect on

absenteeism, employee morale, public

relations, and supervisory relationships

as a result of mandated leave. Small

employers, in contrast, were most likely

to note a beneficial effect on worker

productivity and co-worker

relationships.

A full discussion of alternatives

considered is included in the preamble

to the regulations, set forth above, under

each of the relevant sections.

XI. Document Preparation

This document was prepared under

the direction and control of Maria

Echaveste, Administrator, Wage and

Hour Division, Employment Standards

Administration, U.S. Department of

Labor.

XII. List of Subjects in 29 CFR Part 825

Employee benefit plans, Health,

Health insurance, Labor management

relations, Maternal and child health,

Teachers.

Signed in Washington, DC, this 30th day of

December, 1994.

Robert B. Reich,

Secretary of Labor.

Title 29, Chapter V, Subchapter C,

‘‘Other Laws’’, is amended by revising

Part 825 to read as follows:

PART 825—THE FAMILY AND

MEDICAL LEAVE ACT OF 1993

Subpart A—What is the Family and Medical

Leave Act, and to Whom Does It Apply?

Sec.

825.100 What is the Family and Medical

Leave Act?

825.101 What is the purpose of the Act?

825.102 When was the Act effective?

825.103 How did the Act affect leave in

progress on, or taken before, the effective

date of the Act?

825.104 What employers are covered by the

Act?

825.105 In determining whether an

employer is covered by FMLA, what

does it mean to employ 50 or more

employees for each working day during

each of 20 or more calendar workweeks

in the current or preceding calendar

year?

825.106 How is ‘‘joint employment’’ treated

under FMLA?

825.107 What is meant by ‘‘successor in

interest’’?

825.108 What is a ‘‘public agency’’?

825.109 Are Federal agencies covered by

these regulations?

825.110 Which employees are ‘‘eligible’’ to

take leave under FMLA?

825.111 In determining if an employee is

‘‘eligible’’ under FMLA, how is the

determination made whether the

employer employs 50 employees within

75 miles of the worksite where the

employee needing leave is employed?

825.112 Under what kinds of circumstances

are employers 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 the 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’’?
2238 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Subpart B—What Leave Is an Employee

Entitled to Take Under the Family and

Medical Leave 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 employer?

825.203 Does FMLA leave have to be taken

all at once, or can it be taken in parts?

825.204 May an employer 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 employer deduct hourly

amounts from an employee’s salary,

when providing unpaid leave under

FMLA, without affecting the employee’s

qualifications for exemption as an

executive, administrative, or professional

employee, or when utilizing the

fluctuating workweek method for

payment of overtime compensation,

under the Fair Labor Standards Act?

825.207 Is FMLA leave paid or unpaid?

825.208 Under what circumstances may an

employer designate leave, paid or

unpaid, as FMLA leave and, as a result,

count it 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 health benefit

premiums?

825.211 What special health benefits

maintenance rules apply to multiemployer health plans?

825.212 What are the consequences of an

employee’s failure to make timely health

plan premium payments?

825.213 May an employer recover costs it

incurred for maintaining ‘‘group health

plan’’ or 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

employer’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 FMLA Rights and Obligations, and

What Can an Employer Require of an

Employee?

825.300 What posting requirements does

the Act place on employers?

825.301 What other notices to employees

are required of employers under the

FMLA?

825.302 What notice does an employee

have to give an employer when the need

for FMLA leave is foreseeable?

825.303 What are the requirements for an

employee to furnish notice to an

employer where the need for FMLA

leave is not foreseeable?

825.304 What recourse do employers 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 employer do if it

questions the adequacy of a medical

certification?

825.308 Under what circumstances may an

employer request subsequent

recertifications of medical conditions?

825.309 What notice may an employer

require regarding an employee’s intent to

return to work?

825.310 Under what circumstances may an

employer require that an employee

submit a medical certification that the

employee is able (or unable) to return to

work (e.g., a ‘‘fitness-for-duty’’ report)?

825.311 What happens if an employee fails

to satisfy the medical certification

requirements?

825.312 Under what circumstances may a

covered employer refuse to provide

FMLA leave or reinstatement to eligible

employees?

Subpart D—What Enforcement Mechanisms

Does FMLA Provide?

825.400 What may employees do who

believe that their rights under FMLA

have been violated?

825.401 Where may an employee file a

complaint of FMLA violations with the

Federal government?

825.402 How is an employer notified of a

violation of the posting requirement?

825.403 How may an employer appeal the

assessment of a penalty for willful

violation of the posting requirement?

825.404 What are the consequences of an

employer not paying the penalty

assessment after a final order is issued?

Subpart E—What Records Must be Kept to

Comply With the FMLA?

825.500 What Records must an employer

keep to comply with the FMLA?

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, Employer

Practices, and Collective Bargaining

Agreements Affect Employee Rights Under

FMLA?

825.700 What if an employer provides more

generous benefits than required by

FMLA?

825.701 Do State laws providing family and

medical leave still apply?

825.702 How does FMLA affect Federal and

State anti-discrimination laws?

Subpart H—Definitions

825.800 Definitions.

Appendix A to Part 825—Index

Appendix B to Part 825—Certification

of Health Care Provider

Appendix C to Part 825—Notice to

Employees of Rights under FMLA (WH

Publication 1420)

Appendix D to Part 825—Prototype

Notice: Employer Response to

Employee Request for Family and

Medical Leave (Form WH–381)

Appendix E to Part 825—IRS Notice

Discussing Relationship Between FMLA

and COBRA

Authority: 29 U.S.C. 2654; Secretary’s

Order 1–93 (58 FR 21190).

Subpart A—What is the Family and

Medical Leave Act, and to Whom Does

It Apply?

§ 825.100 What is the Family and Medical

Leave Act?

(a) The Family and Medical Leave Act

of 1993 (FMLA or Act) allows ‘‘eligible’’

employees of a covered employer to take

job-protected, unpaid leave, or to

substitute appropriate paid leave if the

employee has earned or accrued it, for

up to a total of 12 workweeks in any 12

months because of the birth of a child

and to care for the newborn child,

because of the placement of a child with

the employee for adoption or foster care,

because the employee is needed to care

for a family member (child, spouse, or

parent) with a serious health condition,

or because the employee’s own serious

health condition makes the employee

unable to perform the functions of his

or her job (see § 825.306(a)(3)). In

certain cases, this leave may be taken on

an intermittent basis rather than all at

once, or the employee may work a parttime schedule.

(b) An employee on FMLA leave is

also entitled to have health benefits
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2239

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

employer 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 employer has a right to 30

days advance notice from the employee

where practicable. In addition, the

employer 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 employer may also require

that an employee present a certification

of fitness to return to work when the

absence was caused by the employee’s

serious health condition (see

§ 825.311(c)). The employer may delay

restoring the employee to employment

without such certificate relating to the

health condition which caused the

employee’s absence.

§ 825.101 What is the purpose of the Act?

(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 Act 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 Act

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 seriouslyill children or parents, or to newly-born

or adopted infants, or even to their own

serious illness, workers need

reassurance that they will not be asked

to choose between continuing their

employment, and meeting their personal

and family obligations or tending to

vital needs at home.

(c) The FMLA is both intended and

expected to benefit employers as well as

their employees. A direct correlation

exists between stability in the family

and productivity in the workplace.

FMLA will encourage the development

of high-performance organizations.

When workers can count on durable

links to their workplace they are able to

make their own full commitments to

their jobs. The record of hearings on

family and medical leave indicate the

powerful productive advantages of

stable workplace relationships, and the

comparatively small costs of

guaranteeing that those relationships

will not be dissolved while workers

attend to pressing family health

obligations or their own serious illness.

§ 825.102 When was the Act effective?

(a) The Act became effective on

August 5, 1993, for most employers. If

a collective bargaining agreement was in

effect on that date, the Act’s effective

date was delayed until February 5, 1994,

or the date the agreement expired,

whichever date occurred sooner. This

delayed effective date was applicable

only to employees covered by a

collective bargaining agreement that was

in effect on August 5, 1993, and not, for

example, to employees outside the

bargaining unit. Application of FMLA to

collective bargaining agreements is

discussed further in § 825.700(c).

(b) The period prior to the Act’s

effective date must be considered in

determining employer coverage and

employee eligibility. For example, as

discussed further below, an employer

with no collective bargaining

agreements in effect as of August 5,

1993, must count employees/workweeks

for calendar year 1992 and calendar year

1993. If 50 or more employees were

employed during 20 or more workweeks

in either 1992 or 1993(through August

5, 1993), the employer was covered

under FMLA on August 5, 1993. If not,

the employer was not covered on

August 5, 1993, but must continue to

monitor employment levels each

workweek remaining in 1993 and

thereafter to determine if and when it

might become covered.

§ 825.103 How did the Act affect leave in

progress on, or taken before, the effective

date of the Act?

(a) An eligible employee’s right to

take FMLA leave began on the date that

the Act went into effect for the employer

(see the discussion of differing effective

dates for collective bargaining

agreements in §§ 825.102(a) and

825.700(c)). Any leave taken prior to the

Act’s effective date may not be counted

for purposes of FMLA. If leave

qualifying as FMLA leave was

underway prior to the effective date of

the Act and continued after the Act’s

effective date, only that portion of leave

taken on or after the Act’s effective date

may be counted against the employee’s

leave entitlement under the FMLA.

(b) If an employer-approved leave was

underway when the Act took effect, no

further notice would be required of the

employee unless the employee

requested 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 of the statute.

(c) Starting on the Act’s effective date,

an employee is entitled to FMLA leave

if the reason for the leave is qualifying

under the Act, even if the event

occasioning the need for leave (e.g., the

birth of a child) occurred before the

effective date (so long as any other

requirements are satisfied).

§ 825.104 What employers are covered by

the Act?

(a) An employer covered by FMLA is

any person engaged in commerce or in

any industry or activity affecting

commerce, who employs 50 or more

employees for each working day during

each of 20 or more calendar workweeks

in the current or preceding calendar

year. Employers covered by FMLA also

include any person acting, directly or

indirectly, in the interest of a covered

employer to any of the employees of the

employer, any successor in interest of a

covered employer, and any public

agency. Public agencies are covered

employers without regard to the number

of employees employed. Public as well

as private elementary and secondary

schools are also covered employers

without regard to the number of

employees employed. (See § 825.600.)

(b) The terms ‘‘commerce’’ and

‘‘industry affecting commerce’’ are
2240 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

defined in accordance with section

501(1) and (3) of the Labor Management

Relations Act of 1947 (LMRA) (29 U.S.C.

142 (1) and (3)), as set forth in the

definitions at section 825.800 of this

part. For purposes of the FMLA,

employers who meet the 50-employee

coverage test are deemed to be engaged

in commerce or in an industry or

activity affecting commerce.

(c) Normally the legal entity which

employs the employee is the employer

under FMLA. Applying this principle, a

corporation is a single employer rather

than its separate establishments or

divisions.

(1) Where one corporation has an

ownership interest in another

corporation, it is a separate employer

unless it meets the ‘‘joint employment’’

test discussed in § 825.106, or the

‘‘integrated employer’’ test contained in

paragraph (c)(2) of this section.

(2) Separate entities will be deemed to

be parts of a single employer for

purposes of FMLA if they meet the

‘‘integrated employer’’ test. Where this

test is met, the employees of all entities

making up the integrated employer will

be counted in determining employer

coverage and employee eligibility. 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 ownership/

financial control.

(d) An ‘‘employer’’ includes any

person who acts directly or indirectly in

the interest of an employer to any of the

employer’s employees. The definition of

‘‘employer’’ in section 3(d) of the Fair

Labor Standards Act (FLSA), 29 U.S.C.

203(d), similarly includes any person

acting directly or indirectly in the

interest of an employer in relation to an

employee. As under the FLSA,

individuals such as corporate officers

‘‘acting in the interest of an employer’’

are individually liable for any violations

of the requirements of FMLA.

§ 825.105 In determining whether an

employer is covered by FMLA, what does it

mean to employ 50 or more employees for

each working day during each of 20 or more

calendar workweeks in the current or

preceding calendar year?

(a) The definition of ‘‘employ’’ for

purposes of FMLA is taken from the Fair

Labor Standards Act, § 3(g). The courts

have made it clear that the employment

relationship under the FLSA is broader

than the traditional common law

concept of master and servant. The

difference between the employment

relationship under the FLSA and that

under the common law arises from the

fact that the term ‘‘employ’’ as defined

in the Act includes ‘‘to suffer or permit

to work’’. The courts have indicated

that, while ‘‘to permit’’ requires a more

positive action than ‘‘to suffer’’, both

terms imply much less positive action

than required by the common law. Mere

knowledge by an employer of work

done for the employer by another is

sufficient to create the employment

relationship under the Act. The courts

have said that there is no definition that

solves all problems as to the limitations

of the employer-employee relationship

under the Act; and that determination of

the relation cannot be based on

‘‘isolated factors’’ or upon a single

characteristic or ‘‘technical concepts’’,

but depends ‘‘upon the circumstances of

the whole activity’’ including the

underlying ‘‘economic reality.’’ In

general an employee, as distinguished

from an independent contractor who is

engaged in a business of his/her own, is

one who ‘‘follows the usual path of an

employee’’ and is dependent on the

business which he/she serves.

(b) Any employee whose name

appears on the employer’s payroll will

be considered employed each working

day of the calendar week, and must be

counted whether or not any

compensation is received for the week.

However, the FMLA applies only to

employees who are employed within

any State of the United States, the

District of Columbia or any Territory or

possession of the United States.

Employees who are employed outside

these areas are not counted for purposes

of determining employer coverage or

employee eligibility.

(c) Employees on paid or unpaid

leave, including FMLA leave, leaves of

absence, disciplinary suspension, etc.,

are counted as long as the employer has

a reasonable expectation that the

employee will later return to active

employment. If there is no employer/

employee relationship (as when an

employee is laid off, whether

temporarily or permanently) such

individual is not counted. Part-time

employees, like full-time employees, are

considered to be employed each

working day of the calendar week, as

long as they are maintained on the

payroll.

(d) An employee who does not begin

to work for an employer until after the

first working day of a calendar week, or

who terminates employment before the

last working day of a calendar week, is

not considered employed on each

working day of that calendar week.

(e) A private employer is covered if it

maintained 50 or more employees on

the payroll during 20 or more calendar

workweeks (not necessarily consecutive

workweeks) in either the current or the

preceding calendar year.

(f) Once a private employer meets the

50 employees/20 workweeks threshold,

the employer remains covered until it

reaches a future point where it no longer

has employed 50 employees for 20

(nonconsecutive) workweeks in the

current and preceding calendar year.

For example, if an employer who met

the 50 employees/20 workweeks test in

the calendar year as of August 5, 1993,

subsequently dropped below 50

employees before the end of 1993 and

continued to employ fewer than 50

employees in all workweeks throughout

calendar year 1994, the employer would

continue to be covered throughout

calendar year 1994 because it met the

coverage criteria for 20 workweeks of

the preceding (i.e., 1993) calendar year.

§ 825.106 How is ‘‘joint employment’’

treated under FMLA?

(a) Where two or more businesses

exercise some control over the work or

working conditions of the employee, the

businesses may be joint employers

under FMLA. Joint employers may be

separate and distinct entities with

separate owners, managers and

facilities. Where the employee performs

work which simultaneously benefits

two or more employers, or works for

two or more employers 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 employers to share an

employee’s services or to interchange

employees;

(2) Where one employer acts directly

or indirectly in the interest of the other

employer in relation to the employee;

or,

(3) Where the employers 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 employer controls, is

controlled by, or is under common

control with the other employer.

(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
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2241

will ordinarily be found to exist when

a temporary or leasing agency supplies

employees to a second employer.

(c) In joint employment relationships,

only the primary employer is

responsible for giving required notices

to its employees, providing FMLA leave,

and maintenance of health benefits.

Factors considered in determining

which is the ‘‘primary’’ employer

include authority/responsibility to hire

and fire, assign/place the employee,

make payroll, and provide employment

benefits. For employees of temporary

help or leasing agencies, for example,

the placement agency most commonly

would be the primary employer.

(d) Employees jointly employed by

two employers must be counted by both

employers, whether or not maintained

on one of the employer’s payroll, in

determining employer coverage and

employee eligibility. For example, an

employer who jointly employs 15

workers from a leasing or temporary

help agency and 40 permanent workers

is covered by FMLA. An employee on

leave who is working for a secondary

employer is considered employed by the

secondary employer, and must be

counted for coverage and eligibility

purposes, as long as the employer has a

reasonable expectation that that

employee will return to employment

with that employer.

(e) Job restoration is the primary

responsibility of the primary employer.

The secondary employer is responsible

for accepting the employee returning

from FMLA leave in place of the

replacement employee if the secondary

employer continues to utilize an

employee from the temporary or leasing

agency, and the agency chooses to place

the employee with the secondary

employer. A secondary employer is also

responsible for compliance with the

prohibited acts provisions with respect

to its temporary/leased employees,

whether or not the secondary employer

is covered by FMLA (see § 825.220(a)).

The prohibited acts include prohibitions

against interfering with an employee’s

attempt to exercise rights under the Act,

or discharging or discriminating against

an employee for opposing a practice

which is unlawful under FMLA. A

covered secondary employer will be

responsible for compliance with all the

provisions of the FMLA with respect to

its regular, permanent workforce.

§ 825.107 What is meant by ‘‘successor in

interest’’?

(a) For purposes of FMLA, in

determining whether an employer is

covered because it is a ‘‘successor in

interest’’ to a covered employer, the

factors used under Title VII of the Civil

Rights Act and the Vietnam Era

Veterans’ Adjustment Act will be

considered. However, unlike Title VII,

whether the successor has notice of the

employee’s claim is not a consideration.

Notice may be relevant, however, in

determining successor liability for

violations of the predecessor. The

factors to be considered include:

(1) Substantial continuity of the same

business operations;

(2) Use of the same plant;

(3) Continuity of the work force;

(4) Similarity of jobs and working

conditions;

(5) Similarity of supervisory personnel;

(6) Similarity in machinery, equipment,

and production methods;

(7) Similarity of products or services; and

(8) The ability of the predecessor to

provide relief.

(b) A determination of whether or not

a ‘‘successor in interest’’ exists is not

determined by the application of any

single criterion, but rather the entire

circumstances are to be viewed in their

totality.

(c) When an employer is a ‘‘successor

in interest,’’ employees’ entitlements are

the same as if the employment by the

predecessor and successor were

continuous employment by a single

employer. For example, the successor,

whether or not it meets FMLA coverage

criteria, must grant leave for eligible

employees who had provided

appropriate notice to the predecessor, or

continue leave begun while employed

by the predecessor, including

maintenance of group health benefits

during the leave and job restoration at

the conclusion of the leave. A successor

which meets FMLA’s coverage criteria

must count periods of employment and

hours worked for the predecessor for

purposes of determining employee

eligibility for FMLA leave.

§ 825.108 What is a ‘‘public agency’’?

(a) An ‘‘employer’’ under FMLA

includes any ‘‘public agency,’’ as

defined in section 3(x) of the Fair Labor

Standards Act, 29 U.S.C. 203(x). Section

3(x) of the FLSA defines ‘‘public

agency’’ as the government of the

United States; the government of a State

or political subdivision of a State; or an

agency of the United States, a State, or

a political subdivision of a State, or any

interstate governmental agency. ‘‘State’’

is further defined in Section 3(c) of the

FLSA to include any State of the United

States, the District of Columbia, or any

Territory or possession of the United

States.

(b) The determination of whether an

entity is a ‘‘public’’ agency, as

distinguished from a private employer,

is determined by whether the agency

has taxing authority, or whether the

chief administrative officer or board,

etc., is elected by the voters-at-large or

their appointment is subject to approval

by an elected official.

(c)(1) A State or a political

subdivision of a State constitutes a

single public agency and, therefore, a

single employer for purposes of

determining employee eligibility. For

example, a State is a single employer; a

county is a single employer; a city or

town is a single employer. Where there

is any question about whether a public

entity is a public agency, as

distinguished from a part of another

public agency, the U.S. Bureau of the

Census’ ‘‘Census of Governments’’ will

be determinative, except for new

entities formed since the most recent

publication of the ‘‘Census.’’ For new

entities, the criteria used by the Bureau

of Census will be used to determine

whether an entity is a public agency or

a part of another agency, including

existence as an organized entity,

governmental character, and substantial

autonomy of the entity.

(2) The Census Bureau takes a census

of governments at 5-year intervals.

Volume I, Government Organization,

contains the official counts of the

number of State and local governments.

It includes tabulations of governments

by State, type of government, size, and

county location. Also produced is a

universe list of governmental units,

classified according to type of

government. Copies of Volume I,

Government Organization, and

subsequent volumes are available from

the Superintendent of Documents, U.S.

Government Printing Office,

Washington, D.C., 20402, U.S.

Department of Commerce District

Offices, or can be found in Regional and

selective depository libraries. For a list

of all depository libraries, write to the

Government Printing Office, 710 N.

Capitol St., NW, Washington, D.C.

20402.

(d) All public agencies are covered by

FMLA regardless of the number of

employees; they are not subject to the

coverage threshold of 50 employees

carried on the payroll each day for 20

or more weeks in a year. However,

employees of public agencies must meet

all of the requirements of eligibility,

including the requirement that the

employer (e.g., State) employ 50

employees at the worksite or within 75

miles.

§ 825.109 Are Federal agencies covered by

these regulations?

(a) Most employees of the government

of the United States, if they are covered

by the FMLA, are covered under Title II

of the FMLA (incorporated in Title V,
2242 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Chapter 63, Subchapter 5 of the United

States Code) which is administered by

the U.S. Office of Personnel

Management (OPM). OPM has separate

regulations at 5 CFR Part 630, Subpart

L. In addition, employees of the Senate

and House of Representatives are

covered by Title V of the FMLA.

(b) The Federal Executive Branch

employees within the jurisdiction of

these regulations include:

(1) Employees of the Postal Service;

(2) Employees of the Postal Rate

Commission;

(3) A part-time employee who does

not have an established regular tour of

duty during the administrative

workweek; and,

(4) An employee serving under an

intermittent appointment or temporary

appointment with a time limitation of

one year or less.

(c) Employees of other Federal

executive agencies are also covered by

these regulations if they are not covered

by Title II of FMLA.

(d) Employees of the legislative or

judicial branch of the United States are

covered by these regulations only if they

are employed in a unit which has

employees in the competitive service.

Examples include employees of the

Government Printing Office and the U.S.

Tax Court.

(e) For employees covered by these

regulations, the U.S. Government

constitutes a single employer for

purposes of determining employee

eligibility. These employees must meet

all of the requirements for eligibility,

including the requirement that the

Federal Government employ 50

employees at the worksite or within 75

miles.

§ 825.110 Which employees are ‘‘eligible’’

to take leave under FMLA?

(a) An ‘‘eligible employee’’ is an

employee of a covered employer who:

(1) Has been employed by the

employer for at least 12 months, and

(2) Has been employed for at least

1,250 hours of service during the 12-

month period immediately preceding

the commencement of the leave, and

(3) Is employed at a worksite where

50 or more employees are employed by

the employer within 75 miles of that

worksite. (See § 825.105(a) regarding

employees who work outside the U.S.)

(b) The 12 months an employee must

have been employed by the employer

need not be consecutive 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) 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) for determining

compensable hours of work (see 29 CFR

Part 785). The determining factor is the

number of hours an employee has

worked for the employer within the

meaning of the FLSA. The

determination is not limited by methods

of recordkeeping, or by compensation

agreements that do not accurately reflect

all of the hours an employee has worked

for or been in service to the employer.

Any accurate accounting of actual hours

worked under FLSA’s principles may be

used. In the event an employer does not

maintain an accurate record of hours

worked by an employee, including for

employees who are exempt from FLSA’s

requirement that a record be kept of

their hours worked (e.g., bona fide

executive, administrative, and

professional employees as defined in

FLSA Regulations, 29 CFR Part 541), the

employer has the burden of showing

that the employee has not worked the

requisite hours. In the event the

employer is unable to meet this burden

the employee is deemed to have met

this test. See also § 825.500(e). For this

purpose, full-time teachers (see

§ 825.800 for definition) of an

elementary or secondary school system,

or institution of higher education, or

other educational establishment or

institution are deemed to meet the 1,250

hour test. An employer 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 the employer

for at least 1,250 hours in the past 12

months and has been employed by the

employer for a total of at least 12

months must be made as of the date

leave commences. If an employee

notifies the employer of need for FMLA

leave before the employee meets these

eligibility criteria, the employer 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 employer

confirms eligibility at the time the

notice for leave is received, the

employer may not subsequently

challenge the employee’s eligibility. In

the latter case, if the employer 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 employer does

advise. If the employer 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 employer 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 employer 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 FMLA’s

effective date must be considered in

determining employee’s eligibility.

(f) Whether 50 employees are

employed within 75 miles to ascertain

an employee’s eligibility for FMLA

benefits is determined when the

employee gives notice of the need for

leave. Whether the leave is to be taken

at one time or on an intermittent or

reduced leave schedule basis, once an

employee is determined eligible in

response to that notice of the need for

leave, the employee’s eligibility is not

affected by any subsequent change in

the number of employees employed at

or within 75 miles of the employee’s

worksite, for that specific notice of the

need for leave. Similarly, an employer

may not terminate employee leave that

has already started if the employeecount drops below 50. For example, if

an employer employs 60 employees in

August, but expects that the number of

employees will drop to 40 in December,

the employer must grant FMLA benefits

to an otherwise eligible employee who

gives notice of the need for leave in

August for a period of leave to begin in

December.

§ 825.111 In determining if an employee is

‘‘eligible’’ under FMLA, how is the

determination made whether the employer

employs 50 employees within 75 miles of

the worksite where the employee needing

leave is employed?

(a) Generally, a worksite can refer to

either a single location or a group of

contiguous locations. Structures which

form a campus or industrial park, or

separate facilities in proximity with one

another, may be considered a single site
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2243

of employment. On the other hand,

there may be several single sites of

employment within a single building,

such as an office building, if separate

employers conduct activities within the

building. For example, an office

building with 50 different businesses as

tenants will contain 50 sites of

employment. The offices of each

employer will be considered separate

sites of employment for purposes of

FMLA. An employee’s worksite under

FMLA will ordinarily be the site the

employee reports to or, if none, from

which the employee’s work is assigned.

(1) Separate buildings or areas which

are not directly connected or in

immediate proximity are a single

worksite if they are in reasonable

geographic proximity, are used for the

same purpose, and share the same staff

and equipment. For example, if an

employer manages a number of

warehouses in a metropolitan area but

regularly shifts or rotates the same

employees from one building to another,

the multiple warehouses would be a

single worksite.

(2) For employees with no fixed

worksite, e.g., construction workers,

transportation workers (e.g., truck

drivers, seamen, pilots), salespersons,

etc., the ‘‘worksite’’ is the site to which

they are assigned as their home base,

from which their work is assigned, or to

which they report. For example, if a

construction company headquartered in

New Jersey opened a construction site

in Ohio, and set up a mobile trailer on

the construction site as the company’s

on-site office, the construction site in

Ohio would be the worksite for any

employees hired locally who report to

the mobile trailer/company office daily

for work assignments, etc. If that

construction company also sent

personnel such as job superintendents,

foremen, engineers, an office manager,

etc., from New Jersey to the job site in

Ohio, those workers sent from New

Jersey continue to have the headquarters

in New Jersey as their ‘‘worksite.’’ The

workers who have New Jersey as their

worksite would not be counted in

determining eligibility of employees

whose home base is the Ohio worksite,

but would be counted in determining

eligibility of employees whose home

base is New Jersey. For transportation

employees, their worksite is the

terminal to which they are assigned,

report for work, depart, and return after

completion of a work assignment. For

example, an airline pilot may work for

an airline with headquarters in New

York, but the pilot regularly reports for

duty and originates or begins flights

from the company’s facilities located in

an airport in Chicago and returns to

Chicago at the completion of one or

more flights to go off duty. The pilot’s

worksite is the facility in Chicago. An

employee’s personal residence is not a

worksite in the case of employees such

as salespersons who travel a sales

territory and who generally leave to

work and return from work to their

personal residence, or employees who

work at home, as under the new concept

of flexiplace. Rather, their worksite is

the office to which the report and from

which assignments are made.

(3) For purposes of determining that

employee’s eligibility, when an

employee is jointly employed by two or

more employers (see § 825.106), the

employee’s worksite is the primary

employer’s office from which the

employee is assigned or reports. The

employee is also counted by the

secondary employer to determine

eligibility for the secondary employer’s

full-time or permanent employees.

(b) The 75-mile distance is measured

by surface miles, using surface

transportation over public streets, roads,

highways and waterways, by the

shortest route from the facility where

the eligible employee needing leave is

employed. Absent available surface

transportation between worksites, the

distance is measured by using the most

frequently utilized mode of

transportation (e.g., airline miles).

(c) The determination of how many

employees are employed within 75

miles of the worksite of an employee is

based on the number of employees

maintained on the payroll. Employees of

educational institutions who are

employed permanently or who are

under contract are ‘‘maintained on the

payroll’’ during any portion of the year

when school is not in session. See

§ 825.105(b).

§ 825.112 Under what kinds of

circumstances are employers required to

grant family or medical leave?

(a) Employers covered by FMLA 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 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) Employers covered by FMLA 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

counselling 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 § 825.114 are met.

However, treatment for substance abuse

does not prevent an employer from

taking employment action against an

employee. The employer 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 employer has an

established policy, applied in a nondiscriminatory manner that has been

communicated to all employees, that

provides under certain circumstances an

employee may be terminated for
2244 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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 employer may not take

action against an employee who is

providing care for an immediate family

member receiving treatment for

substance abuse.

§ 825.113 What do ‘‘spouse,’’ ‘‘parent,’’

and ‘‘son or daughter’’ mean for purposes

of an employee qualifying to take FMLA

leave?

(a) Spouse means a husband or wife

as defined or recognized under State

law for purposes of marriage in the State

where the employee resides, including

common law marriage in States where it

is recognized.

(b) Parent means a biological parent or

an individual who stands or stood in

loco parentis to an employee when the

employee was a son or daughter as

defined in (c) below. This term does not

include parents ‘‘in law’’.

(c) Son or daughter means a

biological, adopted, or foster child, a

stepchild, a legal ward, or a child of a

person standing in loco parentis, who is

either under age 18, or age 18 or older

and ‘‘incapable of self-care because of a

mental or physical disability.’’

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

the individual requires active assistance

or supervision to provide daily self-care

in three or more of the ‘‘activities of

daily living’’ (ADLs) or ‘‘instrumental

activities of daily living’’ (IADLs).

Activities of daily living include

adaptive activities such as caring

appropriately for one’s grooming and

hygiene, bathing, dressing and eating.

Instrumental activities of daily living

include cooking, cleaning, shopping,

taking public transportation, paying

bills, maintaining a residence, using

telephones and directories, using a post

office, etc.

(2) ‘‘Physical or mental disability’’

means a physical or mental impairment

that substantially limits one or more of

the major life activities of an individual.

Regulations at 29 CFR § 1630.2(h), (i),

and (j), issued by the Equal Employment

Opportunity Commission under the

Americans with Disabilities Act (ADA),

42 U.S.C. 12101 et seq., define these

terms.

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

include those with day-to-day

responsibilities to care for and

financially support a child or, in the

case of an employee, who had such

responsibility for the employee when

the employee was a child. A biological

or legal relationship is not necessary.

(d) For purposes of confirmation of

family relationship, the employer 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

employer is entitled to examine

documentation such as a birth

certificate, etc., but the employee is

entitled to the return of the official

document submitted for this purpose.

§ 825.114 What is a ‘‘serious health

condition’’ entitling an employee to FMLA

leave?

(a) For purposes of FMLA, ‘‘serious

health condition’’ entitling an employee

to FMLA leave means an illness, injury,

impairment, or physical or mental

condition that involves:

(1) Inpatient care (i.e., an overnight

stay) in a hospital, hospice, or

residential medical care facility,

including any period of incapacity (for

purposes of this section, defined to

mean inability to work, attend school or

perform other regular daily activities

due to the serious health condition,

treatment therefor, or recovery

therefrom), or any subsequent treatment

in connection with such inpatient care;

or

(2) Continuing treatment by a health

care provider. A serious health

condition involving continuing

treatment by a health care provider

includes any one or more of the

following:

(i) A period of incapacity (i.e.,

inability to work, attend school or

perform other regular daily activities

due to the serious health condition,

treatment therefor, or recovery

therefrom) of more than three

consecutive calendar days, and any

subsequent treatment or period of

incapacity relating to the same

condition, that also involves:

(A) Treatment two or more times by

a health care provider, by a nurse or

physician’s assistant under direct

supervision of a health care provider, or

by a provider of health care services

(e.g., physical therapist) under orders of,

or on referral by, a health care provider;

or

(B) Treatment by a health care

provider on at least one occasion which

results in a regimen of continuing

treatment under the supervision of the

health care provider.

(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
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2245

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.

§ 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),

42 USC 12101 et seq., and the

regulations at 29 CFR § 1630.2(n). 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 employer has

the option, in requiring certification

from a health care provider, to provide

a statement of the essential functions of

the employee’s position for the health

care provider to review. For purposes of

FMLA, the essential functions of the

employee’s position are to be

determined with reference to the

position the employee held at the time

notice is given or leave commenced,

whichever is earlier.

§ 825.116 What does it mean that an

employee is ‘‘needed to care for’’ a family

member?

(a) The medical certification provision

that an employee is ‘‘needed to care for’’

a family member encompasses both

physical and psychological care. It

includes situations where, for example,

because of a serious health condition,

the family member is unable to care for

his or her own basic medical, hygienic,

or nutritional needs or safety, or is

unable to transport himself or herself to

the doctor, etc. The term also includes

providing psychological comfort and

reassurance which would be beneficial

to a child, spouse or parent with a

serious health condition who is

receiving inpatient or home care.

(b) The term also includes situations

where the employee may be needed to

fill in for others who are caring for the

family member, or to make

arrangements for changes in care, such

as transfer to a nursing home.

(c) An employee’s intermittent leave

or a reduced leave schedule necessary to

care for a family member includes not

only a situation where the family

member’s condition itself is

intermittent, but also where the

employee is only needed

intermittently—such as where other

care is normally available, or care

responsibilities are shared with another

member of the family or a third party.

§ 825.117 For an employee seeking

intermittent FMLA leave or leave on a

reduced leave schedule, what is meant by

‘‘the medical necessity for’’ such leave?

For intermittent leave or leave on a

reduced leave schedule, there must be a

medical need for leave (as distinguished

from voluntary treatments and

procedures) and it must be that such

medical need can be best

accommodated through an intermittent

or reduced leave schedule. The

treatment regimen and other

information described in the

certification of a serious health

condition (see § 825.306) meets the

requirement for certification of the

medical necessity of intermittent leave

or leave on a reduced leave schedule.

Employees needing intermittent FMLA

leave or leave on a reduced leave

schedule must attempt to schedule their

leave so as not to disrupt the employer’s

operations. In addition, an employer

may assign an employee to an

alternative position with equivalent pay

and benefits that better accommodates

the employee’s intermittent or reduced

leave schedule.

§ 825.118 What is a ‘‘health care

provider’’?

(a) The Act defines ‘‘health care

provider’’ as:

(1) A doctor of medicine or

osteopathy who is authorized to practice

medicine or surgery (as appropriate) by

the State in which the doctor practices;

or

(2) Any other person determined by

the Secretary to be capable of providing

health care services.

(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, nursemidwives 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

employer 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 employer or the employer’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
2246 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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?

§ 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 employer 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, a year required by

State law, 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 August 5, 1993).

(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, 1994, four weeks beginning

June 1, 1994, and four weeks beginning

December 1, 1994, the employee would

not be entitled to any additional leave

until February 1, 1995. However,

beginning on February 1, 1995, 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) Employers 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 employer 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 Act’s leave requirements.

(2) An exception to this required

uniformity would apply in the case of

a multi-State employer who has eligible

employees in a State which has a family

and medical leave statute. The State

may require a single method of

determining the period during which

use of the leave entitlement is

measured. This method may conflict

with the method chosen by the

employer to determine ‘‘any 12 months’’

for purposes of the Federal statute. The

employer may comply with the State

provision for all employees employed

within that State, and uniformly use

another method provided by this

regulation for all other employees.

(e) If an employer 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 employer

may subsequently select an option only

by providing the 60-day notice to all

employees of the option the employer

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

employer 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 employer’s business activity

has temporarily ceased and employees

generally are not expected to report for

work for one or more weeks (e.g., a

school closing two weeks for the

Christmas/New Year holiday or the

summer vacation or an employer closing

the plant for retooling or repairs), the

days the employer’s activities have

ceased do not count against the

employee’s FMLA leave entitlement.

Methods for determining an employee’s

12-week leave entitlement are also

described in § 825.205.

§ 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 state law

allows, or the employer permits, leave

to be taken for a longer period. Any

such FMLA leave must be concluded

within this one-year period. However,

see § 825.701 regarding non-FMLA leave

which may be available under

applicable State laws.

§ 825.202 How much leave may a husband

and wife take if they are employed by the

same employer?

(a) A husband and wife who are

eligible for FMLA leave and are

employed by the same covered

employer 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 employer.’’

It would apply, for example, even

though the spouses are employed at two

different worksites of an employer

located more than 75 miles from each

other, or by two different operating

divisions of the same company. 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.
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2247

(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 or parent with a serious

health condition. Note, too, that many

State pregnancy disability laws specify

a period of disability either before or

after the birth of a child; such periods

would also be considered FMLA leave

for a serious health condition of the

mother, and would not be subject to the

combined limit.

§ 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 fulltime 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 employer agrees.

Such a schedule reduction might occur,

for example, where an employee, with

the employer’s agreement, works parttime after the birth of a child, or takes

leave in several segments. The

employer’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

employer may limit leave increments to

the shortest period of time that the

employer’s payroll system uses to

account for absences or use of leave,

provided it is one hour or less. For

example, an employee might take two

hours off for a medical appointment, or

might work a reduced day of four hours

over a period of several weeks while

recuperating from an illness. An

employee may not be required to take

more FMLA leave than necessary to

address the circumstance that

precipitated the need for the leave,

except as provided in §§ 825.601 and

825.602.

§ 825.204 May an employer 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

employer 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 employer

may require the employee to transfer

temporarily, during the period the

intermittent or reduced leave schedule

is required, to an available alternative

position for which the employee is

qualified and which better

accommodates recurring periods of

leave than does the employee’s regular

position. See § 825.601 for special rules

applicable to instructional employees of

schools.

(b) Transfer to an alternative position

may require compliance with any

applicable collective bargaining

agreement, federal law (such as the

Americans with Disabilities Act), and

State law. 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 employer 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 employer

may also transfer the employee to a parttime 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 employer may

not eliminate benefits which otherwise

would not be provided to part-time

employees; however, an employer may

proportionately reduce benefits such as

vacation leave where an employer’s

normal practice is to base such benefits

on the number of hours worked.

(d) An employer 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

employer to make such a transfer will be

held to be contrary to the prohibited

acts of the FMLA.

(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
2248 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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.

§ 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 employer 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.

§ 825.206 May an employer deduct hourly

amounts from an employee’s salary, when

providing unpaid leave under FMLA,

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 may be

unpaid. If an employee is otherwise

exempt from minimum wage and

overtime requirements of the Fair Labor

Standards Act (FLSA) as a salaried

executive, administrative, or

professional employee (under

regulations issued by the Secretary), 29

CFR Part 541, providing unpaid FMLAqualifying 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 employer 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 employer provides FMLA

leave, whether paid or unpaid, and

maintains records required by this part

regarding FMLA leave, will not be

relevant to the determination whether

an employee is exempt within the

meaning of 29 CFR Part 541.

(b) For an employee paid in

accordance with the fluctuating

workweek method of payment for

overtime (see 29 CFR 778.114), the

employer, 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 employer chooses

to follow this exception from the

fluctuating workweek method of

payment, the employer 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 employer 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

work week basis.

(c) This special exception to the

‘‘salary basis’’ requirements of the FLSA

exemption or fluctuating workweek

payment requirements applies only to

employees of covered employers 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 29 CFR Part 541 or 29 CFR

§ 778.114 may not be taken, for

example, from the salary of an employee

who works for an employer with fewer

than 50 employees, or 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

29 CFR Part 541 or 29 CFR § 778.114 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 State law or under an

employer’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,

such as leave in excess of 12 weeks in

a year. Employers may comply with

State law or the employer’s own policy/

practice under these circumstances and

maintain the employee’s eligibility for

exemption or for the fluctuating

workweek method of pay by not taking

hourly deductions from the employee’s

pay, in accordance with FLSA

requirements, or may take such

deductions, treating the employee as an

‘‘hourly’’ employee and pay overtime

premium pay for hours worked over 40

in a workweek.

§ 825.207 Is FMLA leave paid or unpaid?

(a) Generally, FMLA leave is unpaid.

However, under the circumstances

described in this section, FMLA 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

employer 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 employer

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
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2249

employer’s leave plan allows use of

family leave to care for a child but not

for a parent, the employer 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

employer’s usual requirements for the

use of sick/medical leave. An employer

is not required to allow substitution of

paid sick or medical leave for unpaid

FMLA leave ‘‘in any situation’’ where

the employer’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 employer’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 employer’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. Because the

leave pursuant to a temporary disability

benefit plan is not unpaid, the provision

for substitution of paid leave is

inapplicable. However, the employer

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

employer’s temporary disability plan are

more stringent than those of FMLA, 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 Act provides that a serious

health condition may result from injury

to the employee ‘‘on or off’’ the job.

Either the employee or the employer

may choose to have the employee’s

FMLA 12-week leave entitlement 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

employer’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 employer may require the

use of accrued paid leave. See also

§§ 825.210(f), 825.216(d), 825.220(d),

825.307(a)(1) and 825.702(d) (1) and (2)

regarding the relationship between

workers’ compensation absences and

FMLA leave.

(e) Paid vacation or personal leave,

including leave earned or accrued under

plans allowing ‘‘paid time off,’’ may be

substituted, at either the employee’s or

the employer’s option, for any qualified

FMLA leave. No limitations may be

placed by the employer on substitution

of paid vacation or personal leave for

these purposes.

(f) If neither the employee nor the

employer 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 employer’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 employer

elects to substitute paid leave (of any

type) for unpaid FMLA leave under

circumstances permitted by these

regulations, and the employer’s

procedural requirements for taking that

kind of leave are less stringent than the

requirements of FMLA (e.g., notice or

certification requirements), only the less

stringent requirements may be imposed.

An employee who complies with an

employer’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.

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 employer’s sick leave program. See

§§ 825.302(g), 825.305(e) and

825.306(c).

(i) Section 7(o) of the Fair Labor

Standards Act (FLSA) permits public

employers under prescribed

circumstances to substitute

compensatory time off accrued at one

and one-half hours for each overtime

hour worked in lieu of paying cash to

an employee when the employee works

overtime hours as prescribed by the Act.

There are limits to the amounts of hours

of compensatory time an employee may

accumulate depending upon whether

the employee works in fire protection or

law enforcement (480 hours) or

elsewhere for a public agency (240

hours). Compensatory time off is not a

form of accrued paid leave that an

employer 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 employer permits

the accrual to be used in compliance

with regulations, 29 CFR 553.25, the

absence which is paid from the

employee’s accrued compensatory time

‘‘account’’ may not be counted against

the employee’s FMLA leave entitlement.

§ 825.208 Under what circumstances may

an employer designate leave, paid or

unpaid, as FMLA leave and, as a result,

count it against the employee’s total FMLA

leave entitlement?

(a) In all circumstances, it is the

employer’s responsibility to designate

leave, paid or unpaid, as FMLAqualifying, 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

employer’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 employer of the

need to take FMLA leave). In any

circumstance where the employer does

not have sufficient information about

the reason for an employee’s use of paid

leave, the employer should inquire

further of the employee or the

spokesperson to ascertain whether the

paid leave is potentially FMLAqualifying.

(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 employer to determine

that the leave qualifies under the Act. If
2250 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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 employer to designate the paid leave

as FMLA leave. An employee using

accrued paid leave, especially vacation

or personal leave, may in some cases not

spontaneously explain the reasons or

their plans for using their accrued leave.

(2) As noted in § 825.302(c), an

employee giving notice of the need for

unpaid FMLA leave does not need to

expressly assert rights under the Act 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

employer 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 employer’s

established policy or practice—and the

employer 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 employer 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 employer may count

the leave used after the FMLAqualifying event against the employee’s

12-week entitlement.

(b)(1) Once the employer has acquired

knowledge that the leave is being taken

for an FMLA required reason, the

employer 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 employer and an

employee as to whether paid leave

qualifies as FMLA leave, it should be

resolved through discussions between

the employee and the employer. Such

discussions and the decision must be

documented.

(2) The employer’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 employer 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

employer within two business days of

the time the employee gives notice of

the need for leave, or, where the

employer does not initially have

sufficient information to make a

determination, when the employer

determines that the leave qualifies as

FMLA leave if this happens later. The

employer’s designation must be made

before the leave starts, unless the

employer does not have sufficient

information as to the employee’s reason

for taking the leave until after the leave

commenced. If the employer 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

employer 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 Act, 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 employer 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

employer 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 employer 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) Employers 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 employer 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 employer 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 and has not been

so designated by the employer, but the

employee desires that the leave be

counted as FMLA leave, the employee

must notify the employer within two

business days of returning to work that

the leave was for an FMLA reason. In

the absence of such timely notification

by the employee, the employee may not

subsequently assert FMLA protections

for the absence.

(2) If the employer knows the reason

for the leave but has not been able to

confirm that the leave qualifies under

FMLA, or where the employer 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 employer

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 employer must

withdraw the designation (with written

notice to the employee).

§ 825.209 Is an employee entitled to

benefits while using FMLA leave?

(a) During any FMLA leave, an

employer must maintain the employee’s

coverage under 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 employers

covered by FMLA, including public
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2251

agencies, are subject to the Act’s

requirements to maintain health

coverage. The definition of ‘‘group

health plan’’ is set forth in § 825.800.

For purposes of FMLA, the term ‘‘group

health plan’’ shall not include an

insurance program providing health

coverage under which employees

purchase individual policies from

insurers provided that:

(1) no contributions are made by the

employer;

(2) participation in the program is

completely voluntary for employees;

(3) the sole functions of the employer

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 employer 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 employer’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 employer 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

employer 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 employer.

(e) An employee may choose not to

retain group health plan coverage

during FMLA leave. However, when an

employee returns from leave, the

employee is entitled to be reinstated on

the same terms as prior to taking the

leave, including family or dependent

coverages, without any qualifying

period, physical examination, exclusion

of pre- existing conditions, etc. See

§ 825.212(b).

(f) Except as required by the

Consolidated Omnibus Budget

Reconciliation Act of 1986 (COBRA)

and for ‘‘key’’ employees (as discussed

below), an employer’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 employer of his or

her intent not to return from leave

(including before starting the leave if the

employer is so informed before the leave

starts); or the employee fails to return

from leave or continues on leave after

exhausting his or her FMLA leave

entitlement in the 12-month period.

(g) If a ‘‘key employee’’ (see § 825.218)

does not return from leave when

notified by the employer 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 employer 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

employer’s established policy for

providing such benefits when the

employee is on other forms of leave

(paid or unpaid, as appropriate).

§ 825.210 How may employees on FMLA

leave pay their share of group health benefit

premiums?

(a) Group health plan benefits must be

maintained on the same basis as

coverage would have been provided if

the employee had been continuously

employed during the FMLA leave

period. Therefore, any share of group

health plan premiums which had been

paid by the employee prior to FMLA

leave must continue to be paid by the

employee during the FMLA leave

period. If premiums are raised or

lowered, the employee would be

required to pay the new premium rates.

Maintenance of health insurance

policies which are not a part of the

employer’s group health plan, as

described in § 825.209(a)(1), 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

employer has a number of options for

obtaining payment from the employee.

The employer may require that payment

be made to the employer or to the

insurance carrier, but no additional

charge may be added to the employee’s

premium payment for administrative

expenses. The employer 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;

(3) Payment would be prepaid

pursuant to a cafeteria plan at the

employee’s option;

(4) The employer’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 employer and the

employee, which may include

prepayment of premiums (e.g., through

increased payroll deductions when the

need for the FMLA leave is foreseeable).
2252 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

(d) The employer must provide the

employee with advance written notice

of the terms and conditions under

which these payments must be made.

(See § 825.301.)

(e) An employer may not require more

of an employee using FMLA leave than

the employer 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 employer for

payment of group health plan benefits

when simultaneously taking unpaid

FMLA leave. See paragraph (c) of this

section and § 825.207(d)(1).

§ 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 employer under a multiemployer plan must continue to make

contributions on behalf of an employee

using FMLA leave as though the

employee had been continuously

employed, unless the plan contains an

explicit FMLA provision for

maintaining coverage such as through

pooled contributions by all employers

party to the plan.

(c) During the duration of an

employee’s FMLA leave, coverage by

the group health plan, and benefits

provided pursuant to the plan, must be

maintained at the level of coverage and

benefits which were applicable to the

employee at the time FMLA leave

commenced.

(d) An employee using FMLA leave

cannot be required to use ‘‘banked’’

hours or pay a greater premium than the

employee would have been required to

pay if the employee had been

continuously employed.

(e) As provided in § 825.209(f) of this

part, group health plan coverage must

be maintained for an employee on

FMLA leave until:

(1) the employee’s FMLA leave

entitlement is exhausted;

(2) the employer can show that the

employee would have been laid off and

the employment relationship

terminated; or,

(3) the employee provides

unequivocal notice of intent not to

return to work.

§ 825.212 What are the consequences of

an employee’s failure to make timely health

plan premium payments?

(a)(1) In the absence of an established

employer policy providing a longer

grace period, an employer’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 employer 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

employer has established policies

regarding other forms of unpaid leave

that provide for the employer to cease

coverage retroactively to the date the

unpaid premium payment was due, the

employer 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 employer has no obligation

regarding the maintenance of a health

insurance policy which is not a ‘‘group

health plan.’’ See § 825.209(a).

(3) All other obligations of an

employer under FMLA would continue;

for example, the employer continues to

have an obligation to reinstate an

employee upon return from leave.

(b) The employer may recover the

employee’s share of any premium

payments missed by the employee for

any FMLA leave period during which

the employer 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

employer must still restore the

employee to coverage/benefits

equivalent to those the employee would

have had if leave had not been taken

and the premium payment(s) had not

been missed, including family or

dependent coverage. See

§ 825.215(d)(1)–(5). In such case, an

employee may not be required to meet

any qualification requirements imposed

by the plan, including any new

preexisting condition waiting period, to

wait for an open season, or to pass a

medical examination to obtain

reinstatement of coverage.

§ 825.213 May an employer 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 § 825.212(b), an employer

may recover its share of health plan

premiums during a period of unpaid

FMLA leave from an employee if the

employee fails to return to work after

the employee’s FMLA leave entitlement

has been exhausted or expires, unless

the reason the employee does not return

is due to:

(1) The continuation, recurrence, or

onset of a serious health condition of

the employee or the employee’s family

member which would otherwise entitle

the employee to leave under FMLA; or

(2) Other circumstances beyond the

employee’s control. Examples of ‘‘other

circumstances beyond the employee’s

control’’ are necessarily broad. They

include such situations as where a

parent chooses to stay home with a

newborn child who has a serious health

condition; an employee’s spouse is

unexpectedly transferred to a job

location more than 75 miles from the

employee’s worksite; a relative or

individual other than 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 employer’s intention to deny

restoration because of substantial and

grievous economic injury to the

employer’s operations and is not

reinstated by the employer. Other

circumstances beyond the employee’s

control would not include a situation

where an employee desires to remain

with a parent in a distant city even

though the parent no longer requires the

employee’s care, or a parent chooses not

to return to work to stay home with a

well, newborn child.

(3) When an employee fails to return

to work because of the continuation,

recurrence, or onset of a serious health

condition, thereby precluding the

employer from recovering its (share of)

health benefit premium payments made

on the employee’s behalf during a

period of unpaid FMLA leave, the

employer 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

employer. 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 employer’s request. For purposes

of medical certification, the employee
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2253

may use the optional DOL form

developed for this purpose (see

§ 825.306(a) and Appendix B of this

part). If the employer 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 employer

may recover 100% of the health benefit

premiums it paid during the period of

unpaid FMLA leave.

(b) Under some circumstances an

employer 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 employer 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 employer elects to

maintain such benefits during the leave,

at the conclusion of leave, the employer

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

employer requires paid leave to be

substituted for FMLA leave, the

employer 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

employers may recover is limited to

only the employer’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 employer to

recover are a debt owed by the nonreturning employee to the employer.

The existence of this debt caused by the

employee’s failure to return to work

does not alter the employer’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 employer may

recover the costs through deduction

from any sums due to the employee

(e.g., unpaid wages, vacation pay, profit

sharing, etc.), provided such deductions

do not otherwise violate applicable

Federal or State wage payment or other

laws. Alternatively, the employer may

initiate legal action against the

employee to recover such costs.

§ 825.214 What are an employee’s rights

on returning to work from FMLA leave?

(a) On return from FMLA leave, an

employee is entitled to be returned to

the same position the employee held

when leave commenced, or to an

equivalent position with equivalent

benefits, pay, and other terms and

conditions of employment. An

employee is entitled to such

reinstatement even if the employee has

been replaced or his or her position has

been restructured to accommodate the

employee’s absence. See also

§ 825.106(f) for the obligations of joint

employers.

(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

employer’s obligations may be governed

by the Americans with Disabilities Act

(ADA). See § 825.702.

§ 825.215 What is an equivalent position?

(a) An equivalent position is one that

is virtually identical to the employee’s

former position in terms of pay, benefits

and working conditions, including

privileges, perquisites and status. It

must involve the same or substantially

similar duties and responsibilities,

which must entail substantially

equivalent skill, effort, responsibility,

and authority.

(b) If an employee is no longer

qualified for the position because of the

employee’s inability to attend a

necessary course, renew a license, fly a

minimum number of hours, etc., as a

result of the leave, the employee shall

be given a reasonable opportunity to

fulfill those conditions upon return to

work.

(c) Equivalent Pay. (1) An employee is

entitled to any unconditional pay

increases which may have occurred

during the FMLA leave period, such as

cost of living increases. Pay increases

conditioned upon seniority, length of

service, or work performed would not

have to be granted unless it is the

employer’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 employers pay bonuses in

different forms to employees for jobrelated performance such as for perfect

attendance, safety (absence of injuries or

accidents on the job) and exceeding

production goals. Bonuses for perfect

attendance and safety do not require

performance by the employee but rather

contemplate the absence of occurrences.

To the extent an employee who takes

FMLA leave had met all the

requirements for either or both of these

bonuses before FMLA leave began, the

employee is entitled to continue this

entitlement upon return from FMLA

leave, that is, the employee may not be

disqualified for the bonus(es) for the

taking of FMLA leave. See § 825.220 (b)

and (c). A monthly production bonus,

on the other hand does require

performance by the employee. If the

employee is on FMLA leave during any

part of the period for which the bonus

is computed, the employee is entitled to

the same consideration for the bonus as

other employees on paid or unpaid

leave (as appropriate). See paragraph

(d)(2) of this section.

(d) Equivalent Benefits. ‘‘Benefits’’

include all benefits provided or made

available to employees by an employer,

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

employer through an employee benefit

plan as defined in Section 3(3) of the

Employee Retirement Income Security

Act of 1974, 29 U.S.C. 1002(3).

(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
2254 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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

employers may find it necessary to

modify life insurance and other benefits

programs in order to restore employees

to equivalent benefits upon return from

FMLA leave, make arrangements for

continued payment of costs to maintain

such benefits during unpaid FMLA

leave, or pay these costs subject to

recovery from the employee on return

from leave. See § 825.213(b).

(2) An employee may, but is not

entitled to, accrue any additional

benefits or seniority during unpaid

FMLA leave. Benefits accrued at the

time leave began, however, (e.g., paid

vacation, sick or personal leave to the

extent not substituted for FMLA leave)

must be available to an employee upon

return from leave.

(3) If, while on unpaid FMLA leave,

an employee desires to continue life

insurance, disability insurance, or other

types of benefits for which he or she

typically pays, the employer is required

to follow established policies or

practices for continuing such benefits

for other instances of leave without pay.

If the employer has no established

policy, the employee and the employer

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 preestablished number of hours worked

each year and the employee does not

have sufficient hours as a result of

taking unpaid FMLA leave, the benefit

is lost. (In this regard, § 825.209

addresses health benefits.)

(e) Equivalent Terms and Conditions

of Employment. An equivalent position

must have substantially similar duties,

conditions, responsibilities, privileges

and status as the employee’s original

position.

(1) The employee must be reinstated

to the same or a geographically

proximate worksite (i.e., one that does

not involve a significant increase in

commuting time or distance) from

where the employee had previously

been employed. If the employee’s

original worksite has been closed, the

employee is entitled to the same rights

as if the employee had not been on leave

when the worksite closed. For example,

if an employer 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, profit-sharing, and other

similar discretionary and nondiscretionary payments.

(4) FMLA does not prohibit an

employer 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 employer 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.

§ 825.216 Are there any limitations on an

employer’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 employer 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

employer’s responsibility to continue

FMLA leave, maintain group health

plan benefits and restore the employee

cease at the time the employee is laid

off, provided the employer has no

continuing obligations under a

collective bargaining agreement or

otherwise. An employer 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 employer has no

obligation to restore the employee if the

employment term or project is over and

the employer would not otherwise have

continued to employ the employee. On

the other hand, if an employee was

hired to perform work on a contract, and

after that contract period the contract

was awarded to another contractor, the

successor contractor may be required to

restore the employee if it is a successor

employer. See § 825.107.

(c) In addition to the circumstances

explained above, an employer may deny

job restoration to salaried eligible

employees (‘‘key employees,’’ as defined

in paragraph (c) of § 825.217) if such

denial is necessary to prevent

substantial and grievous economic

injury to the operations of the employer;

or may delay restoration to an employee

who fails to provide a fitness for duty

certificate to return to work under the

conditions described in § 825.310.

(d) If the employee has been on a

workers’ compensation absence during

which FMLA leave has been taken

concurrently, and after 12 weeks of

FMLA leave the employee is unable to

return to work, the employee no longer

has the protections of FMLA and must

look to the workers’ compensation

statute or ADA for any relief or

protections.
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2255

§ 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 employer

within 75 miles of the employee’s

worksite.

(b) The term ‘‘salaried’’ means ‘‘paid

on a salary basis,’’ as defined in 29 CFR

541.118. This is the Department of

Labor regulation defining employees

who may qualify as exempt from the

minimum wage and overtime

requirements of the FLSA 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 employer

within 75 miles of the worksite.

(1) In determining which employees

are among the highest paid 10 percent,

year-to-date earnings are divided by

weeks worked by the employee

(including weeks in which paid leave

was taken). Earnings include wages,

premium pay, incentive pay, and nondiscretionary and discretionary bonuses.

Earnings do not include incentives

whose value is determined at some

future date, e.g., stock options, or

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 employer’s employees within 75

miles of the worksite may be ‘‘key

employees.’’

§ 825.218 What does ‘‘substantial and

grievous economic injury’’ mean?

(a) In order to deny restoration to a

key employee, an employer must

determine that the restoration of the

employee to employment will cause

‘‘substantial and grievous economic

injury’’ to the operations of the

employer, not whether the absence of

the employee will cause such

substantial and grievous injury.

(b) An employer 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 company

of reinstating the employee in an

equivalent position.

(c) A precise test cannot be set for the

level of hardship or injury to the

employer which must be sustained. If

the reinstatement of a ‘‘key employee’’

threatens the economic viability of the

firm, that would constitute ‘‘substantial

and grievous economic injury.’’ A lesser

injury which causes substantial, longterm economic injury would also be

sufficient. Minor inconveniences and

costs that the employer would

experience in the normal course of

doing business 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 § 825.702).

§ 825.219 What are the rights of a key

employee?

(a) An employer who 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

employer must also fully inform the

employee of the potential consequences

with respect to reinstatement and

maintenance of health benefits if the

employer should determine that

substantial and grievous economic

injury to the employer’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

employer 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 employer 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 employer 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 employer will

ordinarily be able to give such notice

prior to the employee starting leave. The

employer must serve this notice either

in person or by certified mail. This

notice must explain the basis for the

employer’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

employer’s notification of intent to deny

restoration, the employee continues to

be entitled to maintenance of health

benefits and the employer may not

recover its cost of health benefit

premiums. A key employee’s rights

under FMLA continue unless and until

the employee either gives notice that he

or she no longer wishes to return to

work, or the employer 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

employer’s notice. The employer 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 employer shall

notify the employee in writing (in

person or by certified mail) of the denial

of restoration.

§ 825.220 How are employees protected

who request leave or otherwise assert

FMLA rights?

(a) The FMLA 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 employer is prohibited from

interfering with, restraining, or denying

the exercise of (or attempts to exercise)

any rights provided by the Act.

(2) An employer is prohibited from

discharging or in any other way

discriminating against any person

(whether or not an employee) for

opposing or complaining about any

unlawful practice under the Act.

(3) All persons (whether or not

employers) are prohibited from

discharging or in any other way

discriminating against any person
2256 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

(whether or not an employee) because

that person has—

(i) Filed any charge, or has instituted

(or caused to be instituted) any

proceeding under or related to this Act;

(ii) Given, or is about to give, any

information in connection with an

inquiry or proceeding relating to a right

under this Act;

(iii) Testified, or is about to testify, in

any inquiry or proceeding relating to a

right under this Act.

(b) Any violations of the Act or of

these regulations constitute interfering

with, restraining, or denying the

exercise of rights provided by the Act.

‘‘Interfering with’’ the exercise of an

employee’s rights would include, for

example, not only refusing to authorize

FMLA leave, but discouraging an

employee from using such leave. It

would also include manipulation by a

covered employer to avoid

responsibilities under FMLA, for

example:

(1) transferring employees from one

worksite to another for the purpose of

reducing worksites, or to keep

worksites, below the 50-employee

threshold for employee eligibility under

the Act;

(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 employer 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,

employers 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

employers 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

employer. This does not prevent an

employee’s voluntary and uncoerced

acceptance (not as a condition of

employment) of a ‘‘light duty’’

assignment while recovering from a

serious health condition (see

§ 825.702(d)). In such a circumstance

the employee’s right to restoration to the

same or an equivalent position is

available until 12 weeks have passed

within the 12-month period, including

all FMLA leave taken and the period of

‘‘light duty.’’

(e) Individuals, and not merely

employees, are protected from

retaliation for opposing (e.g., file a

complaint about) any practice which is

unlawful under the Act. They are

similarly protected if they oppose any

practice which they reasonably believe

to be a violation of the Act or

regulations.

Subpart C—How do Employees Learn

of Their FMLA Rights and Obligations,

and What Can an Employer Require of

an Employee?

§ 825.300 What posting requirements does

the Act place on employers?

(a) Every employer covered by the

FMLA is required to post and keep

posted on its premises, in conspicuous

places where employees are employed,

whether or not it has any ‘‘eligible’’

employees, a notice explaining the Act’s

provisions and providing information

concerning the procedures for filing

complaints of violations of the Act with

the Wage and Hour Division. The notice

must be posted prominently where it

can be readily seen by employees and

applicants for employment. Employers

may duplicate the text of the notice

contained in Appendix C of this part, or

copies of the required notice may be

obtained from local offices of the Wage

and Hour Division. The poster and the

text must be large enough to be easily

read and contain fully legible text.

(b) An employer that willfully violates

the posting requirement may be

assessed a civil money penalty by the

Wage and Hour Division not to exceed

$100 for each separate offense.

Furthermore, an employer that fails to

post the required notice cannot take any

adverse action against an employee,

including denying FMLA leave, for

failing to furnish the employer with

advance notice of a need to take FMLA

leave.

(c) Where an employer’s workforce is

comprised of a significant portion of

workers who are not literate in English,

the employer shall be responsible for

providing the notice in a language in

which the employees are literate.

§ 825.301 What other notices to employees

are required of employers under the FMLA?

(a)(1) If an FMLA-covered employer

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

FMLA entitlements and employee

obligations under the FMLA must be

included in the handbook or other

document. For example, if an employer

provides an employee handbook to all

employees that describes the employer’s

policies regarding leave, wages,

attendance, and similar matters, the

handbook must incorporate information

on FMLA rights and responsibilities and

the employer’s policies regarding the

FMLA. Informational publications

describing the Act’s provisions are

available from local offices of the Wage

and Hour Division and may be

incorporated in such employer

handbooks or written policies.

(2) If such an employer does not have

written policies, manuals, or handbooks

describing employee benefits and leave

provisions, the employer shall provide

written guidance to an employee

concerning all the employee’s rights and

obligations under the FMLA. 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.

Employers may duplicate and provide

the employee a copy of the FMLA Fact

Sheet available from the nearest office of

the Wage and Hour Division to provide

such guidance.

(b)(1) The employer 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 (see § 825.300(c)).

Such specific notice must include, as

appropriate:

(i) that the leave will be counted

against the employee’s annual FMLA

leave entitlement (see § 825.208);

(ii) any requirements for the employee

to furnish medical certification of a

serious health condition and the

consequences of failing to do so (see

§ 825.305);

(iii) the employee’s right to substitute

paid leave and whether the employer

will require the substitution of paid

leave, and the conditions related to any

substitution;

(iv) any requirement for the employee

to make any premium payments to

maintain health benefits and the

arrangements for making such payments

(see § 825.210), and the possible

consequences of failure to make such

payments on a timely basis (i.e., the

circumstances under which coverage

may lapse);

(v) any requirement for the employee

to present a fitness-for-duty certificate to

be restored to employment (see

§ 825.309);
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2257

(vi) the employee’s status as a ‘‘key

employee’’ and the potential

consequence that restoration may be

denied following FMLA leave,

explaining the conditions required for

such denial (see § 825.218);

(vii) the employee’s right to

restoration to the same or an equivalent

job upon return from leave (see

§§ 825.214 and 825.604); and,

(viii) the employee’s potential liability

for payment of health insurance

premiums paid by the employer during

the employee’s unpaid FMLA leave if

the employee fails to return to work

after taking FMLA leave (see § 825.213).

(2) The specific notice may include

other information—e.g., whether the

employer 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 local offices of the

Department of Labor’s Wage and Hour

Division, which employers 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 sixmonth period that an employee gives

notice of the need for FMLA leave (if

FMLA leave is taken during the sixmonth 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

employer 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 employer may need to

give notice of the arrangements for

making premium payments.

(2)(i) Except as provided in

subparagraph (ii), if the employer 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-months period and the

employer handbook or other written

documents (if any) describing the

employer’s leave policies, clearly

provided that certification or a ‘‘fitnessfor-duty’’ report would be required (e.g.,

by stating that certification would be

required in all cases, by stating that

certification would be required in all

cases in which leave of more than a

specified number of days is taken, or by

stating that a ‘‘fitness-for-duty’’ report

would be required in all cases for back

injuries for employees in a certain

occupation). Where subsequent written

notice is not required, at least oral

notice shall be provided. (See

§ 825.305(a).)

(d) Employers are also expected to

responsively answer questions from

employees concerning their rights and

responsibilities under the FMLA.

(e) Employers furnishing FMLArequired notices to sensory impaired

individuals must also comply with all

applicable requirements under Federal

or State law.

(f) If an employer fails to provide

notice in accordance with the

provisions of this section, the employer

may not take action against an employee

for failure to comply with any provision

required to be set forth in the notice.

§ 825.302 What notice does an employee

have to give an employer when the need for

FMLA leave is foreseeable?

(a) An employee must provide the

employer 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 employer 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 employer 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

employer 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 or even

mention the FMLA, but may only state

that leave is needed for an expected

birth or adoption, for example. The

employer 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 employer may find it

necessary to inquire further to

determine if the leave is because of a

serious health condition and may

request medical certification to support

the need for such leave (see § 825.305).

(d) An employer may also require an

employee to comply with the

employer’s usual and customary notice

and procedural requirements for

requesting leave. For example, an

employer 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 employer

procedures will not permit an employer

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

employer and make a reasonable effort

to schedule the leave so as not to

disrupt unduly the employer’s

operations, subject to the approval of

the health care provider. Employees are

ordinarily expected to consult with their

employers prior to the scheduling of

treatment in order to work out a

treatment schedule which best suits the

needs of both the employer 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 employer to make a reasonable

attempt to arrange the schedule of

treatments so as not to unduly disrupt

the employer’s operations, the employer

may initiate discussions with the

employee and require the employee to

attempt to make such arrangements,
2258 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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 employer,

upon request, of the reasons why the

intermittent/reduced leave schedule is

necessary and of the schedule for

treatment, if applicable. The employee

and employer shall attempt to work out

a schedule which meets the employee’s

needs without unduly disrupting the

employer’s operations, subject to the

approval of the health care provider.

(g) An employer may waive

employees’ FMLA notice requirements.

In addition, an employer may not

require compliance with stricter FMLA

notice requirements where the

provisions of a collective bargaining

agreement, State law, or applicable

leave plan allow less advance notice to

the employer. For example, if an

employee (or employer) elects to

substitute paid vacation leave for

unpaid FMLA leave (see § 825.207), and

the employer’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 employer imposes lesser

notice requirements on employees

taking leave without pay.

§ 825.303 What are the requirements for an

employee to furnish notice to an employer

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

employer 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 employer 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

employer’s internal rules and

procedures may not be required when

FMLA leave is involved.

(b) The employee should provide

notice to the employer 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 or even mention

the FMLA, but may only state that leave

is needed. The employer will be

expected to obtain any additional

required information through informal

means. The employee or spokesperson

will be expected to provide more

information when it can readily be

accomplished as a practical matter,

taking into consideration the exigencies

of the situation.

§ 825.304 What recourse do employers

have if employees fail to provide the

required notice?

(a) An employer may waive

employees’ FMLA notice obligations or

the employer’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

employer may delay the taking of FMLA

leave until at least 30 days after the date

the employee provides notice to the

employer 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 employer’s proper

posting of the required notice at the

worksite where the employee is

employed. Furthermore, the need for

leave and the approximate date leave

would be taken must have been clearly

foreseeable to the employee 30 days in

advance of the leave. For example,

knowledge that an employee would

receive a telephone call about the

availability of a child for adoption at

some unknown point in the future

would not be sufficient.

§ 825.305 When must an employee provide

medical certification to support FMLA

leave?

(a) An employer 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 employer must give notice

of a requirement for medical

certification each time a certification is

required; such notice must be written

notice whenever required by § 825.301.

An employer’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 employer

within the time frame requested by the

employer (which must allow at least 15

calendar days after the employer’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 employer 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 employer may request

certification at some later date if the

employer later has reason to question

the appropriateness of the leave or its

duration.

(d) At the time the employer requests

certification, the employer must also

advise an employee of the anticipated

consequences of an employee’s failure

to provide adequate certification. The

employer shall advise an employee

whenever the employer finds a

certification incomplete, and provide

the employee a reasonable opportunity

to cure any such deficiency.

(e) If the employer’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

employer elects to substitute paid sick,

vacation, personal or family leave for

unpaid FMLA leave where authorized

(see § 825.207), only the employer’s less

stringent sick leave certification

requirements may be imposed.

§ 825.306 How much information may be

required in medical certifications of a

serious health condition?

(a) DOL has developed an optional

form (Form WH–380, as revised) 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.
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2259

(b) Form WH–380, as revised, or

another form containing the same basic

information, may be used by the

employer; 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 § 825.114), if any,

applies to the patient’s condition, and

the medical facts which support the

certification, including a brief statement

as to how the medical facts meet the

criteria of the definition.

(2)(i) The approximate date the

serious health condition commenced,

and its probable duration, including the

probable duration of the patient’s

present incapacity (defined to mean

inability to work, attend school or

perform other regular daily activities

due to the serious health condition,

treatment therefor, or recovery

therefrom) if different.

(ii) Whether it will be necessary for

the employee to take leave

intermittently or to work on a reduced

leave schedule basis (i.e., part-time) as

a result of the serious health condition

(see § 825.117 and § 825.203), and if so,

the probable duration of such schedule.

(iii) If the condition is pregnancy or

a chronic condition within the meaning

of § 825.114(a)(2)(iii), whether the

patient is presently incapacitated and

the likely duration and frequency of

episodes of incapacity.

(3)(i)(A) If additional treatments will

be required for the condition, an

estimate of the probable number of such

treatments.

(B) If the patient’s incapacity will be

intermittent, or will require a reduced

leave schedule, an estimate of the

probable number and interval between

such treatments, actual or estimated

dates of treatment if known, and period

required for recovery if any.

(ii) If any of the treatments referred to

in subparagraph (i) will be provided by

another provider of health services (e.g.,

physical therapist), the nature of the

treatments.

(iii) If a regimen of continuing

treatment by the patient is required

under the supervision of the health care

provider, a general description of the

regimen (see § 825.114(b)).

(4) If medical leave is required for the

employee’s absence from work because

of the employee’s own condition

(including absences due to pregnancy or

a chronic condition), whether the

employee:

(i) Is unable to perform work of any

kind;

(ii) Is unable to perform any one or

more of the essential functions of the

employee’s position, including a

statement of the essential functions the

employee is unable to perform (see

§ 825.115), based on either information

provided on a statement from the

employer 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 employer’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

employer elects to substitute paid sick,

vacation, personal or family leave for

unpaid FMLA leave where authorized

(see § 825.207), only the employer’s

lesser sick leave certification

requirements may be imposed.

§ 825.307 What may an employer 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 employer may not request

additional information from the

employee’s health care provider.

However, a health care provider

representing the employer 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 employer or the

employer’s representative to have direct

contact with the employee’s workers’

compensation health care provider, the

employer may follow the workers’

compensation provisions.

(2) An employer who has reason to

doubt the validity of a medical

certification may require the employee

to obtain a second opinion at the

employer’s expense. Pending receipt of

the second (or third) medical opinion,

the employee is provisionally entitled to

the benefits of the Act, 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 employer’s established leave

policies. The employer 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

employer. See also § 825.305(a)(3).

(b) The employer may not regularly

contract with or otherwise regularly

utilize the services of the health care

provider furnishing the second opinion

unless the employer 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 employer’s designated health

care providers differ, the employer may

require the employee to obtain

certification from a third health care

provider, again at the employer’s

expense. This third opinion shall be

final and binding. The third health care

provider must be designated or

approved jointly by the employer and

the employee. The employer 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 employer does not attempt in good

faith to reach agreement, the employer

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 employer 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 employer is required to

provide the employee with a copy of the

second and third medical opinions,

where applicable, upon request by the
2260 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

employee. Requested copies are to be

provided within two business days

unless extenuating circumstances

prevent such action.

(e) If the employer requires the

employee to obtain either a second or

third opinion the employer 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 employer may not require

the employee or family member to travel

outside normal commuting distance for

purposes of obtaining the second or

third medical opinions except in very

unusual circumstances.

(f) In circumstances when the

employee or a family member is visiting

in another country, or a family member

resides in another country, and a serious

health condition develops, the employer

shall accept a medical certification as

well as second and third opinions from

a health care provider who practices in

that country.

§ 825.308 Under what circumstances may

an employer request subsequent

recertifications of medical conditions?

(a) For pregnancy, chronic, or

permanent/long-term conditions under

continuing supervision of a health care

provider (as defined in

§ 825.114(a)(2)(ii), (iii) or (iv)), an

employer 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 employer 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

employer 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 employer 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

employer 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 employer receives information

that casts doubt upon the continuing

validity of the certification.

(d) The employee must provide the

requested recertification to the employer

within the time frame requested by the

employer (which must allow at least 15

calendar days after the employer’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 employer shall be at the employee’s

expense unless the employer provides

otherwise. No second or third opinion

on recertification may be required.

§ 825.309 What notice may an employer

require regarding an employee’s intent to

return to work?

(a) An employer may require an

employee on FMLA leave to report

periodically on the employee’s status

and intent to return to work. The

employer’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 employer’s obligations under FMLA

to maintain health benefits (subject to

COBRA requirements) and to restore the

employee cease. However, these

obligations continue if an employee

indicates he or she may be unable to

return to work but expresses a

continuing desire to do so.

(c) It may be necessary for an

employee to take more leave than

originally anticipated. Conversely, an

employee may discover after beginning

leave that the circumstances have

changed and the amount of leave

originally anticipated is no longer

necessary. An employee may not be

required to take more FMLA leave than

necessary to resolve the circumstance

that precipitated the need for leave. In

both of these situations, the employer

may require that the employee provide

the employer reasonable notice

(i.e.,within two business days) of the

changed circumstances where

foreseeable. The employer may also

obtain information on such changed

circumstances through requested status

reports.

§ 825.310 Under what circumstances may

an employer 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 employer 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 State or local law or 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)

that any return-to-work physical be jobrelated 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 employer 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 employer may seek fitness-forduty 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 employer

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 employer 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
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2261

the time or travel costs spent in

acquiring the certification.

(e) The notice that employers are

required to give to each employee giving

notice of the need for FMLA leave

regarding their FMLA rights and

obligations (see § 825.301) shall advise

the employee if the employer will

require fitness-for-duty certification to

return to work. If the employer has a

handbook explaining employment

policies and benefits, the handbook

should explain the employer’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-forduty certification will be required either

at the time notice of the need for leave

is given or immediately after leave

commences and the employer 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 employer’s practice or policy. No

second or third fitness-for-duty

certification may be required.

(f) An employer may delay restoration

to employment until an employee

submits a required fitness-for-duty

certification unless the employer has

failed to provide the notices required in

paragraph (c) of this section.

(g) An employer is not entitled to

certification of fitness to return to duty

when the employee takes intermittent

leave as described in § 825.203.

(h) When an employee is unable to

return to work after FMLA leave

because of the continuation, recurrence,

or onset of the employee’s or family

member’s serious health condition,

thereby preventing the employer from

recovering its share of health benefit

premium payments made on the

employee’s behalf during a period of

unpaid FMLA leave, the employer may

require medical certification of the

employee’s or the family member’s

serious health condition. (See

§ 825.213(a)(3).) The cost of the

certification shall be borne by the

employee and the employee is not

entitled to be paid for the time or travel

costs spent in acquiring the

certification.

§ 825.311 What happens if an employee

fails to satisfy the medical certification and/

or recertification requirements?

(a) In the case of foreseeable leave, an

employer may delay the taking of FMLA

leave to an employee who fails to

provide timely certification after being

requested by the employer 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

employer (which must allow at least 15

days after the employer’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 employer 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 employer

pursuant to a uniformly applied policy

for similarly-situated employees, the

employee must provide medical

certification at the time the employee

seeks reinstatement at the end of FMLA

leave taken for the employee’s serious

health condition, that the employee is

fit for duty and able to return to work

(see § 825.310(a)) if the employer has

provided the required notice (see

§ 825.301(c); the employer may delay

restoration until the certification is

provided. In this situation, unless the

employee provides either a fitness-forduty certification or a new medical

certification for a serious health

condition at the time FMLA leave is

concluded, the employee may be

terminated. See also § 825.213(a)(3).

§ 825.312 Under what circumstances may

a covered employer 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 employer

may delay the taking of FMLA leave

until 30 days after the date the

employee provides notice to the

employer of the need for FMLA leave.

(See § 825.302.)

(b) If an employee fails to provide in

a timely manner a requested medical

certification to substantiate the need for

FMLA leave due to a serious health

condition, an employer may delay

continuation of FMLA leave until an

employee submits the certificate. (See

§§ 825.305 and 825.310.) 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 employer may

delay restoration until the employee

submits the certificate. (See §§ 825.309

and 825.310.)

(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 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 employer

must be able to show, when an

employee requests restoration, that the

employee would not otherwise have

been employed if leave had not been

taken in order to deny restoration to

employment. (See § 825.216.)

(e) An employer may require an

employee on FMLA leave to report

periodically on the employee’s status

and intention to return to work. (See

§ 825.309.) If an employee

unequivocally advises the employer

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 employer two business

days notice where feasible; the

employer is required to restore the

employee once such notice is given, or

where such prior notice was not

feasible.

(f) An employer 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 employer’s

operations. The employer must notify

the employee of the employee’s status as

a ‘‘key employee’’ and of the employer’s

intent to deny reinstatement on that

basis when the employer makes these

determinations. If leave has started, the

employee must be given a reasonable
2262 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

opportunity to return to work after being

so notified. (See § 825.220.)

(g) An employee who fraudulently

obtains FMLA leave from an employer

is not protected by FMLA’s job

restoration or maintenance of health

benefits provisions.

(h) If the employer has a uniformlyapplied policy governing outside or

supplemental employment, such a

policy may continue to apply to an

employee while on FMLA leave. An

employer which does not have such a

policy may not deny benefits to which

an employee is entitled under FMLA on

this basis unless the FMLA leave was

fraudulently obtained as in paragraph

(g) of this section.

Subpart D—What Enforcement

Mechanisms Does FMLA Provide?

§ 825.400 What can employees do who

believe that their rights under FMLA have

been violated?

(a) The employee has the choice of:

(1) Filing, or having another person

file on his or her behalf, a complaint

with the Secretary of Labor, or

(2) Filing a private lawsuit pursuant

to section 107 of FMLA.

(b) If the employee files a private

lawsuit, it must be filed within two

years after the last action which the

employee contends was in violation of

the Act, or three years if the violation

was willful.

(c) If an employer has violated one or

more provisions of FMLA, and if

justified by the facts of a particular case,

an employee may receive one or more

of the following: wages, employment

benefits, or other compensation denied

or lost to such employee by reason of

the violation; or, where no such tangible

loss has occurred, such as when FMLA

leave was unlawfully denied, any actual

monetary loss sustained by the

employee as a direct result of the

violation, such as the cost of providing

care, up to a sum equal to 12 weeks of

wages for the employee. In addition, the

employee may be entitled to interest on

such sum, calculated at the prevailing

rate. An amount equalling the preceding

sums may also be awarded as liquidated

damages unless such amount is reduced

by the court because the violation was

in good faith and the employer had

reasonable grounds for believing the

employer had not violated the Act.

When appropriate, the employee may

also obtain appropriate equitable relief,

such as employment, reinstatement and

promotion. When the employer is found

in violation, the employee may recover

a reasonable attorney’s fee, reasonable

expert witness fees, and other costs of

the action from the employer in

addition to any judgment awarded by

the court.

§ 825.401 Where may an employee file a

complaint of FMLA violations with the

Federal government?

(a) A complaint may be filed in

person, by mail or by telephone, with

the Wage and Hour Division,

Employment Standards Administration,

U.S. Department of Labor. A complaint

may be filed at any local office of the

Wage and Hour Division; the address

and telephone number of local offices

may be found in telephone directories.

(b) A complaint filed with the

Secretary of Labor should be filed

within a reasonable time of when the

employee discovers that his or her

FMLA rights have been violated. In no

event may a complaint be filed more

than two years after the action which is

alleged to be a violation of FMLA

occurred, or three years in the case of

a willful violation.

(c) No particular form of complaint is

required, except that a complaint must

be reduced to writing and should

include a full statement of the acts and/

or omissions, with pertinent dates,

which are believed to constitute the

violation.

§ 825.402 How is an employer notified of a

violation of the posting requirement?

Section 825.300 describes the

requirements for covered employers to

post a notice for employees that

explains the Act’s provisions. If a

representative of the Department of

Labor determines that an employer has

committed a willful violation of this

posting requirement, and that the

imposition of a civil money penalty for

such violation is appropriate, the

representative may issue and serve a

notice of penalty on such employer in

person or by certified mail. Where

service by certified mail is not accepted,

notice shall be deemed received on the

date of attempted delivery. Where

service is not accepted, the notice may

be served by regular mail.

§ 825.403 How may an employer appeal

the assessment of a penalty for willful

violation of the posting requirement?

(a) An employer may obtain a review

of the assessment of penalty from the

Wage and Hour Regional Administrator

for the region in which the alleged

violation(s) occurred. If the employer

does not seek such a review or fails to

do so in a timely manner, the notice of

the penalty constitutes the final ruling

of the Secretary of Labor.

(b) To obtain review, an employer

may file a petition with the Wage and

Hour Regional Administrator for the

region in which the alleged violations

occurred. No particular form of petition

for review is required, except that the

petition must be in writing, should

contain the legal and factual bases for

the petition, and must be mailed to the

Regional Administrator within 15 days

of receipt of the notice of penalty. The

employer may request an oral hearing

which may be conducted by telephone.

(c) The decision of the Regional

Administrator constitutes the final order

of the Secretary.

§ 825.404 What are the consequences of

an employer not paying the penalty

assessment after a final order is issued?

The Regional Administrator may seek

to recover the unpaid penalty pursuant

to the Debt Collection Act (DCA), 31

U.S.C. 3711 et seq., and, in addition to

seeking recovery of the unpaid final

order, may seek interest and penalties as

provided under the DCA. The final

order may also be referred to the

Solicitor of Labor for collection. The

Secretary may file suit in any court of

competent jurisdiction to recover the

monies due as a result of the unpaid

final order, interest, and penalties.

Subpart E—What Records Must Be

Kept to Comply With the FMLA?

§ 825.500 What records must an employer

keep to comply with the FMLA?

(a) FMLA provides that covered

employers shall make, keep, and

preserve records pertaining to their

obligations under the Act in accordance

with the recordkeeping requirements of

section 11(c) of the Fair Labor Standards

Act (FLSA) and in accordance with

these regulations. FMLA also restricts

the authority of the Department of Labor

to require any employer or plan, fund or

program to submit books or records

more than once during any 12-month

period unless the Department has

reasonable cause to believe a violation

of the FMLA exists or the DOL is

investigating a complaint. These

regulations establish no requirement for

the submission of any records unless

specifically requested by a Departmental

official.

(b) Form of records. No particular

order or form of records is required.

These regulations establish no

requirement that any employer revise its

computerized payroll or personnel

records systems to comply. However,

employers must keep the records

specified by these regulations for no less

than three years and make them

available for inspection, copying, and

transcription by representatives of the

Department of Labor upon request. The

records may be maintained and

preserved on microfilm or other basic

source document of an automated data
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2263

processing memory provided that

adequate projection or viewing

equipment is available, that the

reproductions are clear and identifiable

by date or pay period, and that

extensions or transcriptions of the

information required herein can be and

are made available upon request.

Records kept in computer form must be

made available for transcription or

copying.

(c) Items required. Covered employers

who have eligible employees must

maintain records that must disclose the

following:

(1) Basic payroll and identifying

employee data, including name,

address, and occupation; rate or basis of

pay and terms of compensation; daily

and weekly hours worked per pay

period; additions to or deductions from

wages; and total compensation paid.

(2) Dates FMLA leave is taken by

FMLA eligible employees (e.g., available

from time records, requests for leave,

etc., if so designated). Leave must be

designated in records as FMLA leave;

leave so designated may not include

leave required under State law or an

employer plan which is not also covered

by FMLA.

(3) If FMLA leave is taken by eligible

employees in increments of less than

one full day, the hours of the leave.

(4) Copies of employee notices of

leave furnished to the employer under

FMLA, if in writing, and copies of all

general and specific written notices

given to employees as required under

FMLA and these regulations (see

§ 825.301(c)). Copies may be maintained

in employee personnel files.

(5) Any documents (including written

and electronic records) describing

employee benefits or employer policies

and practices regarding the taking of

paid and unpaid leaves.

(6) Premium payments of employee

benefits.

(7) Records of any dispute between

the employer and an eligible employee

regarding designation of leave as FMLA

leave, including any written statement

from the employer or employee of the

reasons for the designation and for the

disagreement.

(d) Covered employers with no

eligible employees must maintain the

records set forth in paragraph (c)(1)

above.

(e) Covered employers in a joint

employment situation (see § 825.106)

must keep all the records required by

paragraph (c) of this section with

respect to any primary employees, and

must keep the records required by

paragraph (c)(1) with respect to any

secondary employees.

(f) If FMLA-eligible employees are not

subject to FLSA’s recordkeeping

regulations for purposes of minimum

wage or overtime compliance (i.e., not

covered by or exempt from FLSA), an

employer need not keep a record of

actual hours worked (as otherwise

required under FLSA, 29 CFR

516.2(a)(7)), provided that:

(1) eligibility for FMLA leave is

presumed for any employee who has

been employed for at least 12 months;

and

(2) with respect to employees who

take FMLA leave intermittently or on a

reduced leave schedule, the employer

and employee agree on the employee’s

normal schedule or average hours

worked each week and reduce their

agreement to a written record

maintained in accordance with

paragraph (b) of this section.

(g) Records and documents relating to

medical certifications, recertifications or

medical histories of employees or

employees’ family members, created for

purposes of FMLA, shall be maintained

as confidential medical records in

separate files/records from the usual

personnel files, and if ADA is also

applicable, such records shall be

maintained in conformance with ADA

confidentiality requirements (see 29

CFR § 1630.14(c)(1)), except that:

(1) Supervisors and managers may be

informed regarding necessary

restrictions on the work or duties of an

employee and necessary

accommodations;

(2) First aid and safety personnel may

be informed (when appropriate) if the

employee’s physical or medical

condition might require emergency

treatment; and

(3) Government officials investigating

compliance with FMLA (or other

pertinent law) shall be provided

relevant information upon request.

Subpart F—What Special Rules Apply

to Employees of Schools?

§ 825.600 To whom do the special rules

apply?

(a) Certain special rules apply to

employees of ‘‘local educational

agencies,’’ including public school

boards and elementary and secondary

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 (and these special

rules) and the Act’s 50-employee

coverage test does not apply. The usual

requirements for employees to be

‘‘eligible’’ do apply, however, including

employment at a worksite where at least

50 employees are employed within 75

miles. For example, employees of a rural

school would not be eligible for FMLA

leave if the school has fewer than 50

employees and there are no other

schools under the jurisdiction of the

same employer (usually, a school board)

within 75 miles.

(c) The special rules affect the taking

of intermittent leave or leave on a

reduced leave schedule, or leave near

the end of an academic term (semester),

by instructional employees.

‘‘Instructional employees’’ are those

whose principal function is to teach and

instruct students in a class, a small

group, or an individual setting. This

term includes not only teachers, but also

athletic coaches, driving instructors,

and special education assistants such as

signers for the hearing impaired. It does

not include, and the special rules do not

apply to, teacher assistants or aides who

do not have as their principal job actual

teaching or instructing, nor does it

include auxiliary personnel such as

counselors, psychologists, or curriculum

specialists. It also does not include

cafeteria workers, maintenance workers,

or bus drivers.

(d) Special rules which apply to

restoration to an equivalent position

apply to all employees of local

educational agencies.

§ 825.601 What limitations apply to the

taking of intermittent leave or leave on a

reduced leave schedule?

(a) Leave taken for a period that ends

with the school year and begins the next

semester is leave taken consecutively

rather than intermittently. The period

during the summer vacation when the

employee would not have been required

to report for duty is not counted against

the employee’s FMLA leave entitlement.

An instructional employee who is on

FMLA leave at the end of the school

year must be provided with any benefits

over the summer vacation that

employees would normally receive if

they had been working at the end of the

school year.

(1) If an eligible instructional

employee needs intermittent leave or

leave on a reduced leave schedule to

care for a family member, or for the

employee’s own serious health

condition, which is foreseeable based on

planned medical treatment, and the

employee would be on leave for more

than 20 percent of the total number of

working days over the period the leave

would extend, the employer may

require the employee to choose either

to:
2264 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

(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 § 825.302) to be taken

intermittently or on a reduced leave

schedule, the employer may require the

employee to take leave of a particular

duration, or to transfer temporarily to an

alternative position. Alternatively, the

employer may require the employee to

delay the taking of leave until the notice

provision is met. See § 825.207(h).

§ 825.602 What limitations apply to the

taking of leave near the end of an academic

term?

(a) There are also different rules for

instructional employees who begin

leave more than five weeks before the

end of a term, less than five weeks

before the end of a term, and less than

three weeks before the end of a term.

Regular rules apply except in

circumstances when:

(1) An instructional employee begins

leave more than five weeks before the

end of a term. The employer may

require the employee to continue taking

leave until the end of the term if—

(i) The leave will last at least three

weeks, and

(ii) The employee would return to

work during the three-week period

before the end of the term.

(2) The employee begins leave for a

purpose other than the employee’s own

serious health condition during the fiveweek period before the end of a term.

The employer 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 employer 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. 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 employer

could require the employee to stay out

on leave until the end of the term.

§ 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 employer 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 employer to the end of

the school term is not counted as FMLA

leave; however, the employer shall be

required to maintain the employee’s

group health insurance and restore the

employee to the same or equivalent job

including other benefits at the

conclusion of the leave.

§ 825.604 What special rules apply to

restoration to ‘‘an equivalent position?’’

The determination of how an

employee is to be restored to ‘‘an

equivalent position’’ upon return from

FMLA leave will be made on the basis

of ‘‘established school board policies

and practices, private school policies

and practices, and collective bargaining

agreements.’’ The ‘‘established policies’’

and collective bargaining agreements

used as a basis for restoration must be

in writing, must be made known to the

employee prior to the taking of FMLA

leave, and must clearly explain the

employee’s restoration rights upon

return from leave. Any established

policy which is used as the basis for

restoration of an employee to ‘‘an

equivalent position’’ must provide

substantially the same protections as

provided in the Act for reinstated

employees. See § 825.215. In other

words, the policy or collective

bargaining agreement must provide for

restoration to an ‘‘equivalent position’’

with equivalent employment benefits,

pay, and other terms and conditions of

employment. For example, an employee

may not be restored to a position

requiring additional licensure or

certification.

Subpart G—How Do Other Laws,

Employer Practices, and Collective

Bargaining Agreements Affect

Employee Rights Under FMLA?

§ 825.700 What if an employer provides

more generous benefits than required by

FMLA?

(a) An employer 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 Act may

not be diminished by any employment

benefit program or plan. For example, a

provision of a 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 employer provides greater

unpaid family leave rights than are

afforded by FMLA, the employer is not

required to extend additional rights

afforded by FMLA, such as maintenance

of health benefits (other than through

COBRA), to the additional leave period

not covered by FMLA. If an employee

takes paid or unpaid leave and the

employer does not designate the leave

as FMLA leave, the leave taken does not

count against an employee’s FMLA

entitlement.

(b) Nothing in this Act prevents an

employer from amending existing leave

and employee benefit programs,

provided they comply with FMLA.

However, nothing in the Act is intended

to discourage employers from adopting

or retaining more generous leave

policies.

(c)(1) The Act does not apply to

employees under a collective bargaining

agreement (CBA) in effect on August 5,

1993, until February 5, 1994, or the date

the agreement terminates (i.e., its
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2265

expiration date), whichever is earlier.

Thus, if the CBA contains family or

medical leave benefits, whether greater

or less than those under the Act, such

benefits are not disturbed until the Act’s

provisions begin to apply to employees

under that agreement. A CBA which

provides no family or medical leave

rights also continues in effect. For CBAs

subject to the Railway Labor Act and

other CBAs which do not have an

expiration date for the general terms,

but which may be reopened at specified

times, e.g., to amend wages and benefits,

the first time the agreement is amended

after August 5, 1993, shall be considered

the termination date of the CBA, and the

effective date for FMLA.

(2) As discussed in § 825.102(b), the

period prior to the Act’s delayed

effective date must be considered in

determining employer coverage and

employee eligibility for FMLA leave.

§ 825.701 Do State laws providing family

and medical leave still apply?

(a) Nothing in FMLA supersedes any

provision of State or local law that

provides greater family or medical leave

rights than those provided by FMLA.

The Department of Labor will not,

however, enforce State family or

medical leave laws, and States may not

enforce the FMLA. Employees are not

required to designate whether the leave

they are taking is FMLA leave or leave

under State law, and an employer must

comply with the appropriate

(applicable) provisions of both. An

employer covered by one law and not

the other has to comply only with the

law under which it is covered.

Similarly, an employee eligible under

only one law must receive benefits in

accordance with that law. If leave

qualifies for FMLA leave and leave

under State law, the leave used counts

against the employee’s entitlement

under both laws. Examples of the

interaction between FMLA and State

laws include:

(1) If State law provides 16 weeks of

leave entitlement over two years, an

employee would be entitled to take 16

weeks one year under State law and 12

weeks the next year under FMLA.

Health benefits maintenance under

FMLA would be applicable only to the

first 12 weeks of leave entitlement each

year. If the employee took 12 weeks the

first year, the employee would be

entitled to a maximum of 12 weeks the

second year under FMLA (not 16

weeks). An employee would not be

entitled to 28 weeks in one year.

(2) If State law provides half-pay for

employees temporarily disabled because

of pregnancy for six weeks, the

employee would be entitled to an

additional six weeks of unpaid FMLA

leave (or accrued paid leave).

(3) A shorter notice period under

State law must be allowed by the

employer unless an employer has

already provided, or the employee is

requesting, more leave than required

under State law.

(4) If State law provides for only one

medical certification, no additional

certifications may be required by the

employer unless the employer has

already provided, or the employee is

requesting, more leave than required

under State law.

(5) If State law provides six weeks of

leave, which may include leave to care

for a seriously-ill grandparent or a

‘‘spouse equivalent,’’ and leave was

used for that purpose, the employee is

still entitled to 12 weeks of FMLA leave,

as the leave used was provided for a

purpose not covered by FMLA. If FMLA

leave is used first for a purpose also

provided under State law, and State

leave has thereby been exhausted, the

employer would not be required to

provide additional leave to care for the

grandparent or ‘‘spouse equivalent.’’

(6) If State law prohibits mandatory

leave beyond the actual period of

pregnancy disability, an instructional

employee of an educational agency

subject to special FMLA rules may not

be required to remain on leave until the

end of the academic term, as permitted

by FMLA under certain circumstances.

(See Subpart F of this part.)

§ 825.702 How does FMLA affect Federal

and State anti-discrimination laws?

(a) Nothing in FMLA modifies or

affects any Federal or State 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).

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],

employers who receive Federal financial

assistance, employers who contract with

the Federal government, or the Federal

government itself. The purpose of the

FMLA is to make leave available to

eligible employees and employers

within its coverage, and not to limit

already existing rights and protection.’’

S. Rep. No. 3, 103d Cong., 1st Sess. 38

(1993). An employer must therefore

provide leave under whichever statutory

provision provides the greater rights to

employees. When an employer violates

both FMLA and a discrimination law,

an employee may be able to recover

under either or both statutes (double

relief may not be awarded for the same

loss; when remedies coincide a claimant

may be allowed to utilize whichever

avenue of relief is desired (Laffey v.

Northwest Airlines, Inc., 567 F.2d 429,

445 (D.C. Cir. 1976), cert. denied, 434

U.S. 1086 (1978))).

(b) If an employee is a qualified

individual with a disability within the

meaning of the Americans with

Disabilities Act (ADA), the employer

must make reasonable accommodations,

etc., barring undue hardship, in

accordance with the ADA. At the same

time, the employer 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 employers 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 employer

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 employer

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
2266 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

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

employer grants because it is not an

undue hardship. The employer 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 employer 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 employer 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 employer to part-time

employees.

(4) At the end of the FMLA leave

entitlement, an employer 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 employer’s FMLA

obligations would be satisfied if the

employer 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 employer 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 employer 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 employer offer an

employee the opportunity to take such

a position. An employer may not change

the essential functions of the job in

order to deny FMLA leave. See

§ 825.220(b).

(2) An employee may be on a workers’

compensation absence due to an on-thejob 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 employer). 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

employer offers such a position, the

employee is permitted but not required

to accept the position (see § 825.220(d)).

As a result, the employee may no longer

qualify for payments from the workers’

compensation benefit plan, but the

employee is entitled to continue on

unpaid FMLA leave either until the

employee is able to return to the same

or equivalent job the employee left or

until the 12-week FMLA leave

entitlement is exhausted. See

§ 825.207(d)(1). 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 employer 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 jobrelated and consistent with business

necessity.

(f) Under Title VII of the Civil Rights

Act of 1964, as amended by the

Pregnancy Discrimination Act, an

employer should provide the same

benefits for women who are pregnant as

the employer provides to other

employees with short-term disabilities.

Because Title VII does not require

employees to be employed for a certain

period of time to be protected, an

employee employed for less than 12

months by the employer (and, therefore,

not an ‘‘eligible’’ employee under

FMLA) may not be denied maternity

leave if the employer 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

antidiscrimination laws, including Title

VII and the ADA, individuals are

encouraged to contact the nearest office

of the U.S. Equal Employment

Opportunity Commission.

Subpart H—Definitions

§ 825.800 Definitions.

For purposes of this part:

Act or 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.)

ADA means the Americans With

Disabilities Act (42 USC 12101 et seq.)

Administrator means the

Administrator of the Wage and Hour

Division, Employment Standards

Administration, U.S. Department of

Labor, and includes any official of the

Wage and Hour Division authorized to

perform any of the functions of the

Administrator under this part.

COBRA means the continuation

coverage requirements of Title X of the

Consolidated Omnibus Budget

Reconciliation Act of 1986, As

Amended (Pub.L. 99–272, title X,

section 10002; 100 Stat 227; 29 U.S.C.

1161–1168).

Commerce and industry or activity

affecting commerce mean any activity,

business, or industry in commerce or in

which a labor dispute would hinder or

obstruct commerce or the free flow of

commerce, and include ‘‘commerce’’

and any ‘‘industry affecting commerce’’

as defined in sections 501(1) and 501(3)

of the Labor Management Relations Act

of 1947, 29 U.S.C. 142(1) and (3).

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
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2267

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).

Eligible employee means:

(1) An employee who has been

employed for a total of at least 12

months by the employer on the date on

which any FMLA leave is to commence;

and

(2) Who, on the date on which any

FMLA leave is to commence, has been

employed for at least 1,250 hours of

service with such employer during the

previous 12-month period; and

(3) Who is employed in any State of

the United States, the District of

Columbia or any Territories or

possession of the United States.

(4) Excludes any Federal officer or

employee covered under subchapter V

of chapter 63 of title 5, United States

Code; and

(5) Excludes any employee of the U.S.

Senate or the U.S. House of

Representatives covered under title V of

the FMLA; and

(6) Excludes any employee who is

employed at a worksite at which the

employer employs fewer than 50

employees if the total number of

employees employed by that employer

within 75 miles of that worksite is also

fewer than 50.

(7) Excludes any employee employed

in any country other than the United

States or any Territory or possession of

the United States.

Employ means to suffer or permit to

work.

Employee has the meaning given the

same term as defined in section 3(e) of

the Fair Labor Standards Act, 29 U.S.C.

203(e), as follows:

(1) The term ‘‘employee’’ means any

individual employed by an employer;

(2) In the case of an individual

employed by a public agency,

‘‘employee’’ means—

(i) Any individual employed by the

Government of the United States—

(A) As a civilian in the military

departments (as defined in section 102

of Title 5, United States Code),

(B) In any executive agency (as

defined in section 105 of Title 5, United

States Code), excluding any Federal

officer or employee covered under

subchapter V of chapter 63 of Title 5,

United States Code,

(C) In any unit of the legislative or

judicial branch of the Government

which has positions in the competitive

service, excluding any employee of the

U.S. Senate or U.S. House of

Representatives who is covered under

Title V of FMLA,

(D) In a nonappropriated fund

instrumentality under the jurisdiction of

the Armed Forces, or

(ii) Any individual employed by the

United States Postal Service or the

Postal Rate Commission; and

(iii) Any individual employed by a

State, political subdivision of a State, or

an interstate governmental agency, other

than such an individual—

(A) Who is not subject to the civil

service laws of the State, political

subdivision, or agency which employs

the employee; and

(B) Who—

(1) Holds a public elective office of

that State, political subdivision, or

agency,

(2) Is selected by the holder of such

an office to be a member of his personal

staff,

(3) Is appointed by such an

officeholder to serve on a policymaking

level,

(4) Is an immediate adviser to such an

officeholder with respect to the

constitutional or legal powers of the

office of such officeholder, or

(5) Is an employee in the legislative

branch or legislative body of that State,

political subdivision, or agency and is

not employed by the legislative library

of such State, political subdivision, or

agency.

Employee employed in an

instructional capacity. See Teacher.

Employer means any person engaged

in commerce or in an industry or

activity affecting commerce who

employs 50 or more employees for each

working day during each of 20 or more

calendar workweeks in the current or

preceding calendar year, and includes—

(1) Any person who acts, directly or

indirectly, in the interest of an employer

to any of the employees of such

employer;

(2) Any successor in interest of an

employer; and

(3) Any public agency.

Employment benefits means all

benefits provided or made available to

employees by an employer, 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 employer or

through an ‘‘employee benefit plan’’ as

defined in section 3(3) of the Employee

Retirement Income Security Act of 1974,

29 U.S.C. 1002(3). The term does not

include non-employment related

obligations paid by employees through

voluntary deductions such as

supplemental insurance coverage. (See

§ 825.209(a)).

FLSA means the Fair Labor Standards

Act (29 U.S.C. 201 et seq.).

Group health plan means any plan of,

or contributed to by, an employer

(including a self-insured plan) to

provide health care (directly or

otherwise) to the employer’s employees,

former employees, or the families of

such employees or former employees.

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:
2268 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

(1) No contributions are made by the

employer;

(2) Participation in the program is

completely voluntary for employees;

(3) The sole functions of the employer

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 employer 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, nursemidwives 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 employer 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.

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.

Person means an individual,

partnership, association, corporation,

business trust, legal representative, or

any organized group of persons, and

includes a public agency for purposes of

this part.

Physical or mental disability means a

physical or mental impairment that

substantially limits one or more of the

major life activities of an individual.

Regulations at 29 CFR Part 1630.2(h), (i),

and (j), issued by the Equal Employment

Opportunity Commission under the

Americans with Disabilities Act (ADA),

42 U.S.C. 12101 et seq., define these

terms.

Public agency means the government

of the United States; the government of

a State or political subdivision thereof;

any agency of the United States

(including the United States Postal

Service and Postal Rate Commission), a

State, or a political subdivision of a

State, or any interstate governmental

agency. Under section 101(5)(B) of the

Act, a public agency is considered to be

a ‘‘person’’ engaged in commerce or in

an industry or activity affecting

commerce within the meaning of the

Act.

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 therefore, 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,
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2269

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, 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—Index

The citations listed in this Appendix are to

sections in 29 CFR Part 825.

1,250 hours of service 825.110, 825.800

12 workweeks of leave 825.200, 825.202,

825.205

12-month period 825.110, 825.200, 825.201,

825.202, 825.500, 825.800

20 or more calendar workweeks 825.104(a),

825.105, 825.108(d), 825.800

50 or more employees 825.102, 825.105,

825.106(f), 825.108(d), 825.109(e),

825.111(d), 825.600(b)

75 miles of worksite/radius 825.108(d),

825.109(e), 825.110, 825.111, 825.202(b),

825.213(a), 825.217, 825.600(b), 825.800

Academic term 825.600(c), 825.602, 825.603,

825.701(a)

Adoption 825.100(a), 825.101(a), 825.112,

825.200(a), 825.201, 825.202(a), 825.203,

825.207(b), 825.302, 825.304(c)

Alternative position 825.117, 825.204,

825.601

Americans with Disabilities Act 825.113(c),

825.115, 825.204(b), 825.215(b),

825.310(b), 825.702(b), 825.800 as soon

as practicable 825.219(a), 825.302,

825.303

Birth/birth of a child 825.100(a), 825.101(a),

825.103(c), 825.112, 825.200(a), 825.201,

825.202, 825.203, 825.207, 825.209(d),

825.302(a), 825.302(c)

Certification requirements 825.207(g),

825.305, 825.306, 825.310, 825.311

Christian science practitioners 825.118(b),

825.800

COBRA 825.209(f), 825.210(c), 825.213(d),

825.309(b), 825.700(a), 825.800

Collective bargaining agreements 825.102(a),

825.211(a), 825.604, 825.700

Commerce 825.104, 825.800

Complaint 825.220, 825.400, 825.401,

825.500(a)

Continuing treatment by a health care

provider 825.114, 825.800

Definitions 825.800

Designate paid leave as FMLA 825.208

Disability insurance 825.213(f), 825.215(d)

Discharging 825.106(f), 825.220

Discriminating 825.106(f), 825.220

Educational institutions 825.111(c), 825.600

Effective date 825.102, 825.103, 825.110(e),

825.700(c)

Eligible employee 825.100, 825.110, 825.111,

825.112, 825.200, 825.202, 825.206(b),

825.207, 825.216(c), 825.217, 825.312,

825.600(b), 825.601, 825.800

Employer 825.104, 825.105, 825.106,

825.107, 825.108, 825.109, 825.111,

825.800

Enforcement 825.400–825.404

Equivalent benefits 825.213(f), 825.214,

825.215(d)

Equivalent pay 825.100(c), 825.117,

825.204(c), 825.215, 825.601(a),

825.702(c)

Eequivalent position 825.100(c), 825.214,

825.215, 825.218(b), 825.604, 825.702(c)

Farm Credit Administration 825.109(b)

Fitness for duty 825.216(c), 825.310,

825.702(e)

Foster care 825.100(a), 825.112, 825.200(a),

825.201, 825.202(a), 825.203(a),

825.207(b), 825.302(a)

Government Printing Office 825.109(d)

Group health plan 825.209, 825.213, 825.800

Health benefits 825.100(b), 825.106(e),

825.209, 825.210, 825.211, 825.212,

825.215(d), 825.219, 825.220(c),

825.301(c), 825.309, 825.312, 825.603,

825.700, 825.702(c)

Health care provider 825.100(d), 825.114,

825.115, 825.118, 825.302, 825.305,

825.306, 825.307, 825.310(a), 825.800

Health plan premiums 825.210, 825.213(a)

Husband and wife 825.202

In loco parentis 825.113, 825.800

Incapable of self-care 825.113(c), 825.800
2270 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Industry affecting commerce 825.104,

825.800

Instructional employee 825.601, 825.602,

825.604, 825.701(f), 825.800

Integrated employer 825.104(c)

Intermittent leave 825.116(c), 825.117,

825.203, 825.302(f), 825.600(c), 825.601,

825.800

Joint employment 825.104(c), 825.105,

825.106

Key employee 825.209(g), 825.213(a),

825.217, 825.218, 825.219, 825.301(c),

825.312(f)

Library of Congress 825.109(b), 825.800

Life insurance 825.213(f), 825.215(d),

825.800

Maintain health benefits 825.209, 825.212,

825.215(d), 825.301(c), 825.309, 825.603

Medical certification 825.116, 825.213(a),

825.301(c), 825.302(c), 825.305, 825.306,

825.307, 825.308, 825.310, 825.311,

825.312(b), 825.701(d)

Medical necessity 825.114(d), 825.117,

825.306(d)

Multi-employer health plans 825.211

Needed to care for 825.100(a), 825.114(d),

825.116, 825.207(c)

Not foreseeable 825.303, 825.311(b)

Notice 825.100(d), 825.103(b), 825.110(d),

825.200(d), 825.207(g), 825.208(a),

825.208(c), 825.209(d), 825.210(e),

825.219(a), 825.219(b), 825.220(c),

825.300, 825.301(c), 825.302, 825.303,

825.304, 825.309, 825.310(c), 825.310(d),

825.312(a), 825.402, 825.403(b),

825.601(b), 825.701(a)

Notice requirements 825.110(d), 825.301(c),

825.302(g), 825.304(a), 825.304(e),

825.601(b)

Paid leave 825.100(a), 825.207, 825.208,

825.210, 825.213(c), 825.217(c),

825.219(c), 825.301(c), 825.304(d),

825.700(a), 825.701(a)

Parent 825.100(a), 825.101(a), 825.112,

825.113, 825.116(a), 825.200(a),

825.202(a), 825.207(b), 825.213(a),

825.305(a), 825.306(d), 825.800

Physical or mental disability 825.113(c),

825.114, 825.215(b), 825.500(e), 825.800

Placement of a child 825.100(a), 825.201,

825.203(a), 825.207(b)

Postal Rate Commission 825.109(b), 825.800

Posting requirement 825.300, 825.402

Premium payments 825.100(b), 825.210,

825.212, 825.213(f), 825.301(c),

825.308(d), 825.500(c)

Private employer 825.105, 825.108(b)

Public agency 825.104(a), 825.108, 825.109,

825.800

Recertification 825.301(c), 825.308

Records 825.110(c), 825.206(a), 825.500

Reduced leave schedule 825.111(d),

825.114(d), 825.116(c), 825.117, 825.203,

825.205, 825.302(f), 825.306(d),

825.500(c), 825.601, 825.702(c), 825.800

Restoration 825.100(d), 825.106(e),

825.209(g), 825.213(a), 825.216, 825.218,

825.219, 825.301(c), 825.311(c), 825.312

Returning to work 825.214

Right to reinstatement 825.100(c), 825.209(g),

825.214(b), 825.216(a), 825.219,

825.301(c), 825.311(c), 825.312, 825.400,

825.700

Secondary employer 825.106(f)

Serious health condition 825.100, 825.101(a),

825.112(a), 825.114, 825.116(a),

825.200(a), 825.202(a), 825.203,

825.204(a), 825.206(b), 825.207, 825.213,

825.215(b), 825.301(c), 825.302, 825.303,

825.305, 825.306, 825.308(d), 825.310(a),

825.311(c), 825.312(b), 825.601(a),

825.602(a), 825.800

Son or daughter 825.112(a), 825.113(c),

825.202(a), 825.800

Spouse 825.100(a), 825.101(a), 825.112(a),

825.113(a), 825.200(a), 825.202,

825.213(a), 825.303(b), 825.305(a),

825.306(d), 825.701(a), 825.800

State laws 825.701

Substantial and grievous economic injury

825.213(a), 825.216(c), 825.218, 825.219,

825.312(f)

Successor in interest 825.104(a), 825.107,

825.800

Teacher(s) 825.110(c), 825.600(c), 825.800

U.S. Tax Court 825.109(b)

Unpaid leave 825.100, 825.101(a), 825.105(b),

825.206, 825.208, 825.601(b)

Waive rights 825.220(d)

Workers’ compensation 825.207(d)(1),

825.210(f), 825.216(d), 825.307(a)(1),

825.720(d)(1)

Worksite 825.108(d), 825.110(a), 825.111,

825.213(a), 825.214(e), 825.217,

825.220(b), 825.304(c), 825.800

BILLING CODE 4510–27–P
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2271

Appendix B to Part 825—Certification of Physician or Practitioner (Optional Form WH–380)
2272 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2273
2274 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2275

Appendix C to Part 825—Notice to Employees of Rights under FMLA (WH Publication 1420)
2276 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Appendix D to Part 825—Prototype Notice: Employer Response to Employee Request for Family and Medical Leave

(Form WH–381)
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2277
2278 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Appendix E to Part 825—IRS Notice Discussing Relationship Between FMLA and COBRA
Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations 2279

[FR Doc. 94–32342 Filed 12–30–94; 3:44 pm]

BILLING CODE 4510–27–P