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•HRES 1516 EH 
determines that the leave will not be designated as FMLA- 
qualifying (e.g., if the leave is not for a reason covered by 
FMLA or the FMLA leave entitlement has been exhausted), 
the employing office must notify the employee of that deter-
mination. Subject to 825.208, if the employing office requires 
paid leave to be substituted for unpaid FMLA leave, or that 
paid leave taken under an existing leave plan be counted as 
FMLA leave, the employing office must inform the employee 
of this designation at the time of designating the FMLA 
leave. 
‘‘(2) If the employing office has sufficient informa-
tion to designate the leave as FMLA leave immediately 
after receiving notice of the employee’s need for leave, 
the employing office may provide the employee with the 
designation notice at that time. 
‘‘(3) If the employing office will require the em-
ployee to present a fitness-for-duty certification to be re-
stored to employment, the employing office must provide 
notice of such requirement with the designation notice. 
If the employing office will require that the fitness-for- 
duty certification address the employee’s ability to per-
form the essential functions of the employee’s position, 
the employing office must so indicate in the designation 
notice, and must include a list of the essential functions 
of the employee’s position. See 825.312. If the employ-
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•HRES 1516 EH 
ing office’s handbook or other written documents (if 
any) describing the employing office’s leave policies 
clearly provide that a fitness-for- duty certification will 
be required in specific circumstances (e.g., by stating 
that fitness- for-duty certification will be required in all 
cases of back injuries for employees in a certain occupa-
tion), the employing office is not required to provide 
written notice of the requirement with the designation 
notice, but must provide oral notice no later than with 
the designation notice. 
‘‘(4) The designation notice must be in writing. A 
prototype designation notice is contained in Form D 
which may be obtained from the Office of Congressional 
Workplace Rights. If the leave is not designated as 
FMLA leave because it does not meet the requirements 
of the FMLA, as made applicable by the CAA, the notice 
to the employee that the leave is not designated as 
FMLA leave may be in the form of a simple written 
statement. The designation notice may be distributed 
electronically so long as it otherwise meets the require-
ments of this section and the employing office can dem-
onstrate that the employee (who may already be on leave 
and who may not have access to employing office-pro-
vided computers) has access to the information electroni-
cally.
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•HRES 1516 EH 
‘‘(5) If the information provided by the employing 
office to the employee in the designation notice changes 
(e.g., the employee exhausts the FMLA leave entitle-
ment), the employing office shall provide, within five 
business days of receipt of the employee’s first notice of 
need for leave subsequent to any change, written notice 
of the change. 
‘‘(6) The employing office must notify the employee 
of the amount of leave counted against the employee’s 
FMLA leave entitlement and, if applicable, the employ-
ee’s paid parental leave entitlement. If the amount of 
leave needed is known at the time the employing office 
designates the leave as FMLA-qualifying, the employing 
office must notify the employee of the number of hours, 
days, or weeks that will be counted against the employ-
ee’s FMLA leave entitlement in the designation notice. 
If it is not possible to provide the hours, days, or weeks 
that will be counted against the employee’s FMLA leave 
entitlement (such as in the case of unforeseeable inter-
mittent leave), then the employing office must provide 
notice of the amount of leave counted against the em-
ployee’s FMLA leave entitlement and, if applicable, paid 
parental leave entitlement, upon the request by the em-
ployee, but no more often than once in a 30–day period 
and only if leave was taken in that period. The notice
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•HRES 1516 EH 
of the amount of leave counted against the employee’s 
FMLA entitlement and, if applicable, paid parental leave 
entitlement may be oral or in writing. If such 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). Such written 
notice may be in any form, including a notation on the 
employee’s pay stub. 
‘‘(e) Consequences of failing to provide notice. Failure to 
follow the notice requirements set forth in this section may 
constitute an interference with, restraint, or denial of the ex-
ercise of an employee’s FMLA rights. An employing office 
may be liable for compensation and benefits lost by reason of 
the violation, for other actual monetary losses sustained as a 
direct result of the violation, and for appropriate equitable or 
other relief, including employment, reinstatement, promotion, 
or any other relief tailored to the harm suffered. See 
825.400(b). 
‘‘§ 825.301 Designation of FMLA leave 
‘‘(a) Employing office responsibilities. The employing of-
fice’s decision to designate leave as FMLA-qualifying must be 
based only on information received from the employee or the 
employee’s spokesperson (e.g., if the employee is incapaci-
tated, the employee’s spouse, adult child, parent, doctor, etc.,
160 
•HRES 1516 EH 
may provide notice to the employing office of the need to take 
FMLA leave). In any circumstance where the employing of-
fice does not have sufficient information about the reason for 
an employee’s use of leave, the employing office should in-
quire further of the employee or the spokesperson to ascer-
tain whether leave is potentially FMLA-qualifying. Once the 
employing office has acquired knowledge that the leave is 
being taken for a FMLA-qualifying reason, the employing of-
fice must notify the employee as provided in 825.300(d). 
‘‘(b) Employee responsibilities. An employee giving notice 
of the need for FMLA leave does not need to expressly assert 
rights under the FMLA, as made applicable by the CAA, or 
even mention the FMLA to meet his or her obligation to pro-
vide notice, though the employee would need to state a quali-
fying reason for the needed leave and otherwise satisfy the 
notice requirements set forth in 825.302 or 825.303 depend-
ing on whether the need for leave is foreseeable or unforesee-
able. An employee giving notice of the need for FMLA leave 
must explain the reasons for the needed leave so as to allow 
the employing office to determine whether the leave qualifies 
under the FMLA, as made applicable by the CAA. If the em-
ployee fails to explain the reasons, leave may be denied. In 
many cases, in explaining the reasons for a request to use 
leave, especially when the need for the leave was unexpected 
or unforeseen, an employee will provide sufficient information
161 
•HRES 1516 EH 
for the employing office to designate the leave as FMLA 
leave. An employee using accrued paid leave may in some 
cases not spontaneously explain the reasons or their plans for 
using their accrued leave. However, if an employee requesting 
to use paid leave for a FMLA-qualifying reason does not ex-
plain the reason for the leave and the employing office denies 
the employee’s request, the employee will need to provide suf-
ficient information to establish a FMLA-qualifying reason for 
the needed leave so that the employing office is aware that 
the leave may not be denied and may designate that the paid 
leave be appropriately counted against (substituted for) the 
employee’s FMLA leave entitlement. Similarly, an employee 
using accrued paid vacation leave who seeks an extension of 
unpaid leave for a FMLA-qualifying reason will need to state 
the reason. If this is due to an event which occurred during 
the period of paid leave, the employing office may count the 
leave used after the FMLA-qualifying reason against the em-
ployee’s FMLA leave entitlement. 
‘‘(c) Disputes. If there is a dispute between an employing 
office and an employee as to whether leave qualifies as 
FMLA leave, it should be resolved through discussions be-
tween the employee and the employing office. Such discus-
sions and the decision must be documented. 
‘‘(d) Retroactive designation. Subject to 825.208, if an 
employing office does not designate leave as required by
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•HRES 1516 EH 
825.300, the employing office may retroactively designate 
leave as FMLA leave with appropriate notice to the employee 
as required by 825.300 provided that the employing office’s 
failure to timely designate leave does not cause harm or in-
jury to the employee. In all cases where leave would qualify 
for FMLA protections, an employing office and an employee 
can mutually agree that leave be retroactively designated as 
FMLA leave. 
‘‘(e) Remedies. If an employing office’s failure to timely 
designate leave in accordance with 825.300 causes the em-
ployee to suffer harm, it may constitute an interference with, 
restraint of, or denial of the exercise of an employee’s FMLA 
rights. An employing office may be liable for compensation 
and benefits lost by reason of the violation, for other actual 
monetary losses sustained as a direct result of the violation, 
and for appropriate equitable or other relief, including em-
ployment, reinstatement, promotion, or any other relief tai-
lored to the harm suffered. See 825.400(b). For example, if 
an employing office that was put on notice that an employee 
needed FMLA leave failed to designate the leave properly, 
but the employee’s own serious health condition prevented 
him or her from returning to work during that time period 
regardless of the designation, an employee may not be able 
to show that the employee suffered harm as a result of the 
employing office’s actions. However, if an employee took leave
163 
•HRES 1516 EH 
to provide care for a son or daughter with a serious health 
condition believing it would not count toward his or her 
FMLA entitlement, and the employee planned to later use 
that FMLA leave to provide care for a spouse who would 
need assistance when recovering from surgery planned for a 
later date, the employee may be able to show that harm has 
occurred as a result of the employing office’s failure to des-
ignate properly. The employee might establish this by show-
ing that he or she would have arranged for an alternative 
caregiver for the seriously-ill son or daughter if the leave had 
been designated timely. 
‘‘§ 825.302 Employee notice requirements for foreseeable 
FMLA leave 
‘‘(a) Timing of notice. An employee must provide the em-
ploying office at least 30 days advance notice before FMLA 
leave is to begin if the need for the leave is foreseeable based 
on an expected birth, placement for adoption or foster care, 
planned medical treatment for a serious health condition of 
the employee or of a family member, or the planned medical 
treatment for a serious injury or illness of a covered service-
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
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•HRES 1516 EH 
commence earlier than anticipated before the birth of a child. 
Similarly, little opportunity for notice may be given before 
placement for adoption. For foreseeable leave due to a quali-
fying exigency, notice must be provided as soon as prac-
ticable, regardless of how far in advance such leave is foresee-
able. Whether FMLA leave is to be continuous or is to be 
taken intermittently or on a reduced schedule basis, notice 
need only be given one time, but the employee shall advise 
the employing office as soon as practicable if dates of sched-
uled leave change or are extended, or were initially unknown. 
In those cases where the employee is required to provide at 
least 30 days’ notice of foreseeable leave and does not do so, 
the employee shall explain the reasons why such notice was 
not practicable upon a request from the employing office for 
such information. 
‘‘(b) As soon as practicable means as soon as both pos-
sible and practical, taking into account all of the facts and 
circumstances in the individual case. When an employee be-
comes aware of a need for FMLA leave less than 30 days in 
advance, it should be practicable for the employee to provide 
notice of the need for leave either the same day or the next 
business day. In all cases, however, the determination of 
when an employee could practicably provide notice must take 
into account the individual facts and circumstances.
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•HRES 1516 EH 
‘‘(c) Content of notice. An employee shall provide at least 
verbal notice sufficient to make the employing office aware 
that the employee needs FMLA-qualifying leave, and the an-
ticipated timing and duration of the leave. Depending on the 
situation, such information may include that a condition ren-
ders the employee unable to perform the functions of the job; 
that the employee is pregnant or has been hospitalized over-
night; whether the employee or the employee’s family member 
is under the continuing care of a health care provider; if the 
leave is due to a qualifying exigency, that a military member 
is on covered active duty or call to covered active duty status 
(or has been notified of an impending call or order to covered 
active duty), and that the requested leave is for one of the 
reasons listed in 825.126(b); if the leave is for a family mem-
ber, that the condition renders the family member unable to 
perform daily activities, or that the family member is a cov-
ered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an em-
ployee seeks leave for the first time for a FMLA-qualifying 
reason, the employee need not expressly assert rights under 
the FMLA, as made applicable by the CAA, or even mention 
the FMLA. When an employee seeks leave due to a FMLA- 
qualifying reason, for which the employing office has pre-
viously provided FMLA-protected leave, the employee must 
specifically reference the qualifying reason for leave or the
166 
•HRES 1516 EH 
need for FMLA leave. In all cases, the employing office 
should inquire further of the employee if it is necessary to 
have more information about whether FMLA leave is being 
sought by the employee, and obtain the necessary details of 
the leave to be taken. In the case of medical conditions, the 
employing office may find it necessary to inquire further to 
determine if the leave is because of a serious health condition 
and may request medical certification to support the need for 
such leave. See 825.305. An employing office may also re-
quest certification to support the need for leave for a quali-
fying exigency or for military caregiver leave. See 825.309, 
825.310. When an employee has been previously certified for 
leave due to more than one FMLA-qualifying reason, the em-
ploying office may need to inquire further to determine for 
which qualifying reason the leave is needed. An employee has 
an obligation to respond to an employing office’s questions 
designed to determine whether an absence is potentially 
FMLA-qualifying. Failure to respond to reasonable employing 
office inquiries regarding the leave request may result in de-
nial of FMLA protection if the employing office is unable to 
determine whether the leave is FMLA-qualifying. 
‘‘(d) Complying with the employing office policy. An em-
ploying office may require an employee to comply with the 
employing office’s usual and customary notice and procedural 
requirements for requesting leave, absent unusual cir-
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•HRES 1516 EH 
cumstances. For example, an employing office may require 
that written notice set forth the reasons for the requested 
leave, the anticipated duration of the leave, and the antici-
pated start of the leave. An employee also may be required 
by an employing office’s policy to contact a specific indi-
vidual. Unusual circumstances would include situations such 
as when an employee is unable to comply with the employing 
office’s policy that requests for leave should be made by con-
tacting a specific number because on the day the employee 
needs to provide notice of his or her need for FMLA leave 
there is no one to answer the call-in number and the voice 
mail box is full. Where an employee does not comply with the 
employing office’s usual notice and procedural requirements, 
and no unusual circumstances justify the failure to comply, 
FMLA-protected leave may be delayed or denied. However, 
FMLA-protected leave may not be delayed or denied where 
the employing office’s policy requires notice to be given soon-
er than set forth in paragraph (a) of this section and the em-
ployee provides timely notice as set forth in paragraph (a) of 
this section. 
‘‘(e) Scheduling planned medical treatment. When plan-
ning medical treatment, the employee must consult with the 
employing office and make a reasonable effort to schedule the 
treatment so as not to disrupt unduly the employing office’s 
operations, subject to the approval of the health care pro-
168 
•HRES 1516 EH 
vider. Employees are ordinarily expected to consult with their 
employing offices prior to the scheduling of treatment in 
order to work out a treatment schedule which best suits the 
needs of both the employing office and the employee. For ex-
ample, if an employee who provides notice of the need to take 
FMLA leave on an intermittent basis for planned medical 
treatment neglects to consult with the employing office to 
make a reasonable effort to arrange the schedule of treat-
ments so as not to unduly disrupt the employing office’s oper-
ations, the employing office may initiate discussions with the 
employee and require the employee to attempt to make such 
arrangements, subject to the approval of the health care pro-
vider. See 825.203 and 825.205. 
‘‘(f) Intermittent leave or leave on a reduced leave sched-
ule must be medically necessary due to a serious health con-
dition or a serious injury or illness. An employee shall advise 
the employing office, upon request, of the reasons why the 
intermittent/reduced leave schedule is necessary and of the 
schedule for treatment, if applicable. The employee and em-
ploying office shall attempt to work out a schedule for such 
leave that meets the employee’s needs without unduly dis-
rupting the employing office’s operations, subject to the ap-
proval of the health care provider. 
‘‘(g) An employing office may waive employees’ FMLA 
notice requirements. See 825.304(e).
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•HRES 1516 EH 
‘‘§ 825.303 Employee notice requirements for unforesee-
able FMLA leave 
‘‘(a) Timing of notice. When the approximate timing of 
the need for leave is not foreseeable, an employee must pro-
vide notice to the employing office as soon as practicable 
under the facts and circumstances of the particular case. It 
generally should be practicable for the employee to provide 
notice of leave that is unforeseeable within the time pre-
scribed by the employing office’s usual and customary notice 
requirements applicable to such leave. See 825.303(c). Notice 
may be given by the employee’s spokesperson (e.g., spouse, 
adult family member, or other responsible party) if the em-
ployee is unable to do so personally. For example, if an em-
ployee’s child has a severe asthma attack and the employee 
takes the child to the emergency room, the employee would 
not be required to leave his or her child in order to report 
the absence while the child is receiving emergency treatment. 
However, if the child’s asthma attack required only the use 
of an inhaler at home followed by a period of rest, the em-
ployee would be expected to call the employing office prompt-
ly after ensuring the child has used the inhaler. 
‘‘(b) Content of notice. An employee shall provide suffi-
cient information for an employing office to reasonably deter-
mine whether the FMLA may apply to the leave request. De-
pending on the situation, such information may include that 
a condition renders the employee unable to perform the func-
170 
•HRES 1516 EH 
tions of the job; that the employee is pregnant or has been 
hospitalized overnight; whether the employee or the employ-
ee’s family member is under the continuing care of a health 
care provider; if the leave is due to a qualifying exigency, that 
a military member is on covered active duty or call to covered 
active duty status (or has been notified of an impending call 
or order to covered active duty), that the requested leave is 
for one of the reasons listed in 825.126(b), and the antici-
pated duration of the absence; or if the leave is for a family 
member that the condition renders the family member unable 
to perform daily activities or that the family member is a cov-
ered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an em-
ployee seeks leave for the first time for a FMLA-qualifying 
reason, the employee need not expressly assert rights under 
the FMLA, as made applicable by the CAA, or even mention 
the FMLA. When an employee seeks leave due to a qualifying 
reason, for which the employing office has previously provided 
the employee FMLA-protected leave, the employee must spe-
cifically reference either the qualifying reason for leave or the 
need for FMLA leave. Calling in ‘sick’ without providing 
more information will not be considered sufficient notice to 
trigger an employing office’s obligations under the FMLA, as 
made applicable by the CAA. The employing office will be ex-
pected to obtain any additional required information through
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•HRES 1516 EH 
informal means. An employee has an obligation to respond to 
an employing office’s questions designed to determine wheth-
er an absence is potentially FMLA-qualifying. Failure to re-
spond to reasonable employing office inquiries office regard-
ing the leave request may result in denial of FMLA protec-
tion if the employing office is unable to determine whether 
the leave is FMLA-qualifying. 
‘‘(c) Complying with employing office policy. When the 
need for leave is not foreseeable, an employee must comply 
with the employing office’s usual and customary notice and 
procedural requirements for requesting leave, absent unusual 
circumstances. For example, an employing office may require 
employees to call a designated number or a specific individual 
to request leave. However, if an employee requires emergency 
medical treatment, he or she would not be required to follow 
the call-in procedure until his or her condition is stabilized 
and he or she has access to, and is able to use, a phone. 
Similarly, in the case of an emergency requiring leave because 
of a FMLA-qualifying reason, written advance notice pursu-
ant to an employing office’s internal rules and procedures 
may not be required when FMLA leave is involved. If an em-
ployee does not comply with the employing office’s usual no-
tice and procedural requirements, and no unusual cir-
cumstances justify the failure to comply, FMLA-protected 
leave may be delayed or denied.
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•HRES 1516 EH 
‘‘§ 825.304 Employee failure to provide notice 
‘‘(a) Proper notice required. 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 ac-
tual notice of the FMLA notice requirements. This condition 
would be satisfied by the employing office’s proper posting, 
at the worksite where the employee is employed, of the infor-
mation regarding the FMLA provided (pursuant to section 
301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by the Office of 
Congressional Workplace Rights to the employing office in a 
manner suitable for posting. 
‘‘(b) Foreseeable leave—30 days. When the need for 
FMLA leave is foreseeable at least 30 days in advance and 
an employee fails to give timely advance notice with no rea-
sonable excuse, the employing office may delay FMLA cov-
erage until 30 days after the date the employee provides no-
tice. 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 avail-
ability of a child for adoption at some unknown point in the 
future would not be sufficient to establish the leave was clear-
ly foreseeable 30 days in advance. 
‘‘(c) Foreseeable leave—less than 30 days. When the need 
for FMLA leave is foreseeable fewer than 30 days in advance 
and an employee fails to give notice as soon as practicable
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•HRES 1516 EH 
under the particular facts and circumstances, the extent to 
which an employing office may delay FMLA coverage for 
leave depends on the facts of the particular case. For exam-
ple, if an employee reasonably should have given the employ-
ing office two weeks’ notice but instead only provided one 
week’s notice, then the employing office may delay FMLA- 
protected leave for one week (thus, if the employing office 
elects to delay FMLA coverage and the employee nonetheless 
takes leave one week after providing the notice (i.e., a week 
before the two week notice period has been met) the leave will 
not be FMLA-protected). 
‘‘(d) Unforeseeable leave. When the need for FMLA leave 
is unforeseeable and an employee fails to give notice in ac-
cordance with 825.303, the extent to which an employing of-
fice may delay FMLA coverage for leave depends on the facts 
of the particular case. For example, if it would have been 
practicable for an employee to have given the employing office 
notice of the need for leave very soon after the need arises 
consistent with the employing office’s policy, but instead the 
employee provided notice two days after the leave began, then 
the employing office may delay FMLA coverage of the leave 
by two days. 
‘‘(e) Waiver of notice. An employing office may waive 
employees’ FMLA notice obligations or the employing office’s 
own internal rules on leave notice requirements. If an employ-
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•HRES 1516 EH 
ing office does not waive the employee’s obligations under its 
internal leave rules, the employing office may take appro-
priate action under its internal rules and procedures for fail-
ure to follow its usual and customary notification rules, ab-
sent unusual circumstances, as long as the actions are taken 
in a manner that does not discriminate against employees 
taking FMLA leave and the rules are not inconsistent with 
825.303(a). 
‘‘§ 825.305 Certification, general rule 
‘‘(a) General. An employing office may require that an 
employee’s leave to care for the employee’s covered family 
member with a serious health condition, or due to the em-
ployee’s own serious health condition that makes the em-
ployee unable to perform one or more of the essential func-
tions of the employee’s position, be supported by a certifi-
cation issued by the health care provider of the employee or 
the employee’s family member. An employing office may also 
require that an employee’s leave because of a qualifying exi-
gency or to care for a covered servicemember with a serious 
injury or illness be supported by a certification, as described 
in 825.309 and 825.310, respectively. An employing office 
must give notice of a requirement for certification each time 
a certification is required; such notice must be written notice 
whenever required by 825.300(c). An employing office’s oral
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•HRES 1516 EH 
request to an employee to furnish any subsequent certifi-
cation is sufficient. 
‘‘(b) Timing. In most cases, the employing office should 
request that an employee furnish certification at the time the 
employee gives notice of the need for leave or within five busi-
ness days thereafter, or, in the case of unforeseen leave, with-
in five business days after the leave commences. The employ-
ing office may request certification at some later date if the 
employing office later has reason to question the appropriate-
ness of the leave or its duration. The employee must provide 
the requested certification to the employing office within 15 
calendar days after the employing office’s request, unless it 
is not practicable under the particular circumstances to do so 
despite the employee’s diligent, good faith efforts or the em-
ploying office provides more than 15 calendar days to return 
the requested certification. 
‘‘(c) Complete and sufficient certification. The employee 
must provide a complete and sufficient certification to the 
employing office if required by the employing office in accord-
ance with 825.306, 825.309, and 825.310. The employing of-
fice shall advise an employee whenever the employing office 
finds a certification incomplete or insufficient, and shall state 
in writing what additional information is necessary to make 
the certification complete and sufficient. A certification is 
considered incomplete if the employing office receives a cer-
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•HRES 1516 EH 
tification, but one or more of the applicable entries have not 
been completed. A certification is considered insufficient if 
the employing office receives a complete certification, but the 
information provided is vague, ambiguous, or non-responsive. 
The employing office must provide the employee with seven 
calendar days (unless not practicable under the particular cir-
cumstances despite the employee’s diligent good faith efforts) 
to cure any such deficiency. If the deficiencies specified by 
the employing office are not cured in the resubmitted certifi-
cation, the employing office may deny the taking of FMLA 
leave, in accordance with 825.313. A certification that is not 
returned to the employing office is not considered incomplete 
or insufficient, but constitutes a failure to provide certifi-
cation. 
‘‘(d) Consequences. At the time the employing office re-
quests certification, the employing office must also advise an 
employee of the anticipated consequences of an employee’s 
failure to provide adequate certification. If the employee fails 
to provide the employing office with a complete and sufficient 
certification, despite the opportunity to cure the certification 
as provided in paragraph (c) of this section, or fails to pro-
vide any certification, the employing office may deny the tak-
ing of FMLA leave, in accordance with 825.313. It is the em-
ployee’s responsibility either to furnish a complete and suffi-
cient certification or to furnish the health care provider pro-
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•HRES 1516 EH 
viding the certification with any necessary authorization from 
the employee or the employee’s family member in order for 
the health care provider to release a complete and sufficient 
certification to the employing office to support the employee’s 
FMLA request. This provision will apply in any case where 
an employing office requests a certification permitted by 
these regulations, whether it is the initial certification, a re-
certification, a second or third opinion, or a fitness-for-duty 
certificate, including any clarifications necessary to determine 
if such certifications are authentic and sufficient. See 
825.306, 825.307, 825.308, and 825.312. (e) Annual medical 
certification. Where the employee’s need for leave due to the 
employee’s own serious health condition, or the serious health 
condition of the employee’s covered family member, lasts be-
yond a single leave year (as defined in 825.200), the employ-
ing office may require the employee to provide a new medical 
certification in each subsequent leave year. Such new medical 
certifications are subject to the provisions for authentication 
and clarification set forth in 825.307, including second and 
third opinions.
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•HRES 1516 EH 
‘‘§ 825.306 Content of medical certification for leave 
taken because of an employee’s own serious 
health condition or the serious health condi-
tion of a family member 
‘‘(a) Required information. When leave is taken because 
of an employee’s own serious health condition, or the serious 
health condition of a family member, an employing office may 
require an employee to obtain a medical certification from a 
health care provider that sets forth the following information: 
‘‘(1) The name, address, telephone number, and fax 
number of the health care provider and type of medical 
practice/specialization; 
‘‘(2) The approximate date on which the serious 
health condition commenced, and its probable duration; 
‘‘(4) If the employee is the patient, information suf-
ficient to establish that the employee cannot perform the 
essential functions of the employee’s job as well as the 
nature of any other work restrictions, and the likely du-
ration of such inability (See 825.123(b)); 
‘‘(5) If the patient is a covered family member with 
a serious health condition, information sufficient to es-
tablish that the family member is in need of care, as de-
scribed in 825.124, and an estimate of the frequency 
and duration of the leave required to care for the family 
member;
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•HRES 1516 EH 
‘‘(6) If an employee requests leave on an intermit-
tent or reduced schedule basis for planned medical treat-
ment of the employee’s or a covered family member’s se-
rious health condition, information sufficient to establish 
the medical necessity for such intermittent or reduced 
schedule leave and an estimate of the dates and duration 
of such treatments and any periods of recovery; 
‘‘(7) If an employee requests leave on an intermit-
tent or reduced schedule basis for the employee’s serious 
health condition, including pregnancy, that may result in 
unforeseeable episodes of incapacity, information suffi-
cient to establish the medical necessity for such intermit-
tent or reduced schedule leave and an estimate of the 
frequency and duration of the episodes of incapacity; 
and 
‘‘(8) If an employee requests leave on an intermit-
tent or reduced schedule basis to care for a covered fam-
ily member with a serious health condition, a statement 
that such leave is medically necessary to care for the 
family member, as described in 825.124 and 825.203(b), 
which can include assisting in the family member’s re-
covery, and an estimate of the frequency and duration 
of the required leave. 
‘‘(b) The Office of Congressional Workplace Rights has 
developed two optional forms (Form A and Form B) for use
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•HRES 1516 EH 
in obtaining medical certification, including second and third 
opinions, from health care providers that meets FMLA’s cer-
tification requirements, as made applicable by the CAA. (See 
Forms A and B.) Optional Form A is for use when the em-
ployee’s need for leave is due to the employee’s own serious 
health condition. Optional Form B is for use when the em-
ployee needs leave to care for a family member with a serious 
health condition. These optional forms reflect certification re-
quirements so as to permit the health care provider to furnish 
appropriate medical information. Forms A and B are mod-
eled closely on Form WH–380E and Form WH–380F, as re-
vised, which were developed by the Department of Labor (See 
29 C.F.R. Part 825). The employing office may use the Of-
fice of Congressional Workplace Rights’s forms, or Form 
WH–380E and Form WH–380F, as revised, or another form 
containing the same basic information; however, no informa-
tion may be required beyond that specified in 825.306, 
825.307, and 825.308. In all instances the information on 
the form must relate only to the serious health condition for 
which the current need for leave exists. 
‘‘(c) If an employee is on FMLA leave running concur-
rently with a workers’ compensation absence, and the provi-
sions of the workers’ compensation statute permit the em-
ploying office or the employing office’s representative to re-
quest additional information from the employee’s workers’
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•HRES 1516 EH 
compensation health care provider, the FMLA does not pre-
vent the employing office from following the applicable work-
ers’ compensation provisions and information received under 
those provisions may be considered in determining the em-
ployee’s entitlement to FMLA-protected leave. Similarly, an 
employing office may request additional information in ac-
cordance with a paid leave policy or disability plan that re-
quires greater information to qualify for payments or bene-
fits, provided that the employing office informs the employee 
that the additional information only needs to be provided in 
connection with receipt of such payments or benefits. Any in-
formation received pursuant to such policy or plan may be 
considered in determining the employee’s entitlement to 
FMLA-protected leave. If the employee fails to provide the 
information required for receipt of such payments or benefits, 
such failure will not affect the employee’s entitlement to take 
unpaid FMLA leave. See 825.207(a). 
‘‘(d) If an employee’s serious health condition may also 
be a disability within the meaning of the Americans with Dis-
abilities Act (ADA), as amended and as made applicable by 
the CAA, the FMLA does not prevent the employing office 
from following the procedures for requesting medical informa-
tion under the ADA. Any information received pursuant to 
these procedures may be considered in determining the em-
ployee’s entitlement to FMLA-protected leave.
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•HRES 1516 EH 
‘‘(e) While an employee may choose to comply with the 
certification requirement by providing the employing office 
with an authorization, release, or waiver allowing the employ-
ing office to communicate directly with the health care pro-
vider of the employee or his or her covered family member, 
the employee may not be required to provide such an author-
ization, release, or waiver. In all instances in which certifi-
cation is requested, it is the employee’s responsibility to pro-
vide the employing office with complete and sufficient certifi-
cation and failure to do so may result in the denial of FMLA 
leave. See 825.305(d). 
‘‘§ 825.307 Authentication and clarification of medical 
certification for leave taken because of an 
employee’s own serious health condition or 
the serious health condition of a family mem-
ber; second and third opinions 
‘‘(a) Clarification and authentication. (1) If an employee 
submits a complete and sufficient certification signed by the 
health care provider, the employing office may not request 
additional information from the health care provider. How-
ever, the employing office may contact the health care pro-
vider for purposes of clarification and authentication of the 
medical certification (whether initial certification or recertifi-
cation) after the employing office has given the employee an 
opportunity to cure any deficiencies as set forth in
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•HRES 1516 EH 
825.305(c). To make such contact, the employing office must 
use a health care provider, a human resources professional, 
a leave administrator, or a management official. An employ-
ee’s direct supervisor may not contact the employee’s health 
care provider, unless the direct supervisor is also the only in-
dividual in the employing office designated to process FMLA 
requests and the direct supervisor receives specific authoriza-
tion from the employee to contact the employee’s health care 
provider. For purposes of these regulations, authentication 
means providing the health care provider with a copy of the 
certification and requesting verification that the information 
contained on the certification form was completed and/ or au-
thorized by the health care provider who signed the docu-
ment; no additional medical information may be requested. 
‘‘(2) Clarification means contacting the health care 
provider to understand the handwriting on the medical 
certification or to understand the meaning of a response. 
Employing offices may not ask health care providers for 
additional information beyond that required by the cer-
tification form. The requirements of the Health Insur-
ance Portability and Accountability Act (HIPAA) Pri-
vacy Rule, (See 45 C.F.R. parts 160 and 164), which 
governs the privacy of individually-identifiable health in-
formation created or held by HIPAA-covered entities, 
must be satisfied when individually-identifiable health in-
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•HRES 1516 EH 
formation of an employee is shared with an employing 
office by a HIPAA-covered health care provider. If an 
employee chooses not to provide the employing office 
with authorization allowing the employing office to clar-
ify the certification with the health care provider, and 
does not otherwise clarify the certification, the employing 
office may deny the taking of FMLA leave if the certifi-
cation is unclear. See 825.305(d). It is the employee’s 
responsibility to provide the employing office with a com-
plete and sufficient certification and to clarify the certifi-
cation if necessary. 
‘‘(b) Second Opinion. (1) An employing office that has 
reason to doubt the validity of a medical certification may re-
quire the employee to obtain a second opinion at the employ-
ing office’s expense. Pending receipt of the second (or third) 
medical opinion, the employee is provisionally entitled to the 
benefits of the FMLA, as made applicable by the CAA, in-
cluding maintenance of group health benefits. If the certifi-
cations do not ultimately establish the employee’s entitlement 
to FMLA leave, the leave shall not be designated as FMLA 
leave and may be treated as paid or unpaid leave under the 
employing office’s established leave policies. In addition, the 
consequences set forth in 825.305(d) will apply if the em-
ployee or the employee’s family member fails to authorize his 
or her health care provider to release all relevant medical in-
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•HRES 1516 EH 
formation pertaining to the serious health condition at issue 
if requested by the health care provider designated to provide 
a second opinion in order to render a sufficient and complete 
second opinion. 
‘‘(2) The employing office is permitted to designate 
the health care provider to furnish the second opinion, 
but the selected health care provider may not be em-
ployed on a regular basis by the employing office. The 
employing office may not regularly contract with or oth-
erwise regularly utilize the services of the health care 
provider furnishing the second opinion unless the em-
ploying office is located in an area where access to 
health care is extremely limited (e.g., a rural area where 
no more than one or two doctors practice in the relevant 
specialty in the vicinity). 
‘‘(c) Third opinion. If the opinions of the employee’s and 
the employing office’s designated health care providers differ, 
the employing office may require the employee to obtain cer-
tification from a third health care provider, again at the em-
ploying office’s expense. This third opinion shall be final and 
binding. The third health care provider must be designated 
or approved jointly by the employing office and the employee. 
The employing office and the employee must each act in good 
faith to attempt to reach agreement on whom to select for 
the third opinion provider. If the employing office does not
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•HRES 1516 EH 
attempt in good faith to reach agreement, the employing of-
fice will be bound by the first certification. If the employee 
does not attempt in good faith to reach agreement, the em-
ployee will be bound by the second certification. For example, 
an employee who refuses to agree to see a doctor in the spe-
cialty in question may be failing to act in good faith. On the 
other hand, an employing office that refuses to agree to any 
doctor on a list of specialists in the appropriate field provided 
by the employee and whom the employee has not previously 
consulted may be failing to act in good faith. In addition, the 
consequences set forth in 825.305(d) will apply if the em-
ployee or the employee’s family member fails to authorize his 
or her health care provider to release all relevant medical in-
formation pertaining to the serious health condition at issue 
if requested by the health care provider designated to provide 
a third opinion in order to render a sufficient and complete 
third opinion. 
‘‘(d) Copies of opinions. The employing office is required 
to provide the employee with a copy of the second and third 
medical opinions, where applicable, upon request by the em-
ployee. Requested copies are to be provided within five busi-
ness days unless extenuating circumstances prevent such ac-
tion. 
‘‘(e) Travel expenses. If the employing office requires the 
employee to obtain either a second or third opinion the em-
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•HRES 1516 EH 
ploying office must reimburse an employee or family member 
for any reasonable ‘out of pocket’ travel expenses incurred to 
obtain the second and third medical opinions. The employing 
office may not require the employee or family member to 
travel outside normal commuting distance for purposes of ob-
taining the second or third medical opinions except in very 
unusual circumstances. 
‘‘(f) Medical certification abroad. In circumstances in 
which the employee or a family member is visiting in another 
country, or a family member resides in another country, and 
a serious health condition develops, the employing office shall 
accept a medical certification as well as second and third 
opinions from a health care provider who practices in that 
country. Where a certification by a foreign health care pro-
vider is in a language other than English, the employee must 
provide the employing office with a written translation of the 
certification upon request. 
‘‘§ 825.308 Recertifications for leave taken because of an 
employee’s own serious health condition or 
the serious health condition of a family mem-
ber 
‘‘(a) 30-day rule. An employing office may request recer-
tification no more often than every 30 days and only in con-
nection with an absence by the employee, unless paragraphs 
(b) or (c) of this section apply.
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•HRES 1516 EH 
‘‘(b) More than 30 days. If the medical certification indi-
cates that the minimum duration of the condition is more 
than 30 days, an employing office must wait until that min-
imum duration expires before requesting a recertification, un-
less paragraph (c) of this section applies. For example, if the 
medical certification states that an employee will be unable 
to work, whether continuously or on an intermittent basis, for 
40 days, the employing office must wait 40 days before re-
questing a recertification. In all cases, an employing office 
may request a recertification of a medical condition every six 
months in connection with an absence by the employee. Ac-
cordingly, even if the medical certification indicates that the 
employee will need intermittent or reduced schedule leave for 
a period in excess of six months (e.g., for a lifetime condi-
tion), the employing office would be permitted to request re-
certification every six months in connection with an absence. 
‘‘(c) Less than 30 days. An employing office may request 
recertification in less than 30 days if: 
‘‘(1) The employee requests an extension of leave; 
‘‘(2) Circumstances described by the previous cer-
tification have changed significantly (e.g., the duration 
or frequency of the absence, the nature or severity of the 
illness, complications). For example, if a medical certifi-
cation stated that an employee would need leave for one 
to two days when the employee suffered a migraine
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•HRES 1516 EH 
headache and the employee’s absences for his or her last 
two migraines lasted four days each, then the increased 
duration of absence might constitute a significant 
change in circumstances allowing the employing office to 
request a recertification in less than 30 days. Likewise, 
if an employee had a pattern of using unscheduled 
FMLA leave for migraines in conjunction with his or her 
scheduled days off, then the timing of the absences also 
might constitute a significant change in circumstances 
sufficient for an employing office to request a recertifi-
cation more frequently than every 30 days; or 
‘‘(3) The employing office receives information that 
casts doubt upon the employee’s stated reason for the 
absence or the continuing validity of the certification. 
For example, if an employee is on FMLA leave for four 
weeks due to the employee’s knee surgery, including re-
cuperation, and the employee plays in company softball 
league games during the employee’s third week of 
FMLA leave, such information might be sufficient to 
cast doubt upon the continuing validity of the certifi-
cation allowing the employing office to request a recer-
tification in less than 30 days. 
‘‘(d) Timing. The employee must provide the requested 
recertification to the employing office within the time frame 
requested by the employing office (which must allow at least
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•HRES 1516 EH 
15 calendar days after the employing office’s request), unless 
it is not practicable under the particular circumstances to do 
so despite the employee’s diligent, good faith efforts. 
‘‘(e) Content. The employing office may ask for the same 
information when obtaining recertification as that permitted 
for the original certification as set forth in 825.306. The em-
ployee has the same obligations to participate and cooperate 
(including providing a complete and sufficient certification or 
adequate authorization to the health care provider) in the re-
certification process as in the initial certification process. See 
825.305(d). As part of the information allowed to be obtained 
on recertification for leave taken because of a serious health 
condition, the employing office may provide the health care 
provider with a record of the employee’s absence pattern and 
ask the health care provider if the serious health condition 
and need for leave is consistent with such a pattern. 
‘‘(f) Any recertification requested by the employing office 
shall be at the employee’s expense unless the employing office 
provides otherwise. No second or third opinion on recertifi-
cation may be required. 
‘‘§ 825.309 Certification for leave taken because of a 
qualifying exigency 
‘‘(a) Active Duty Orders. The first time an employee re-
quests leave because of a qualifying exigency arising out of 
the covered active duty or call to covered active duty status
191 
•HRES 1516 EH 
(or notification of an impending call or order to covered ac-
tive duty) of a military member (See 825.126(a)), an employ-
ing office may require the employee to provide a copy of the 
military member’s active duty orders or other documentation 
issued by the military which indicates that the military mem-
ber is on covered active duty or call to covered active duty 
status, and the dates of the military member’s covered active 
duty service. This information need only be provided to the 
employing office once. A copy of new active duty orders or 
other documentation issued by the military may be required 
by the employing office if the need for leave because of a 
qualifying exigency arises out of a different covered active 
duty or call to covered active duty status (or notification of 
an impending call or order to covered active duty) of the 
same or a different military member; 
‘‘(b) Required information. An employing office may re-
quire that leave for any qualifying exigency specified in 
825.126 be supported by a certification from the employee 
that sets forth the following information: 
‘‘(1) A statement or description, signed by the em-
ployee, of appropriate facts regarding the qualifying exi-
gency for which FMLA leave is requested. The facts 
must be sufficient to support the need for leave. Such 
facts should include information on the type of quali-
fying exigency for which leave is requested and any
192 
•HRES 1516 EH 
available written documentation which supports the re-
quest for leave; such documentation, for example, may 
include a copy of a meeting announcement for informa-
tional briefings sponsored by the military, a document 
confirming an appointment with a counselor or school of-
ficial, or a copy of a bill for services for the handling of 
legal or financial affairs; 
‘‘(2) The approximate date on which the qualifying 
exigency commenced or will commence; 
‘‘(3) If an employee requests leave because of a 
qualifying exigency for a single, continuous period of 
time, the beginning and end dates for such absence; 
‘‘(4) If an employee requests leave because of a 
qualifying exigency on an intermittent or reduced sched-
ule basis, an estimate of the frequency and duration of 
the qualifying exigency; 
‘‘(5) If the qualifying exigency involves meeting 
with a third party, appropriate contact information for 
the individual or entity with whom the employee is meet-
ing (such as the name, title, organization, address, tele-
phone number, fax number, and email address) and a 
brief description of the purpose of the meeting; and 
‘‘(6) If the qualifying exigency involves Rest and 
Recuperation leave, a copy of the military member’s Rest 
and Recuperation orders, or other documentation issued
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•HRES 1516 EH 
by the military which indicates that the military member 
has been granted Rest and Recuperation leave, and the 
dates of the military member’s Rest and Recuperation 
leave. 
‘‘(c) The Office of Congressional Workplace Rights has 
developed an optional form (Form E) for employees’ use in 
obtaining a certification that meets FMLA’s certification re-
quirements. This optional form reflects certification require-
ments so as to permit the employee to furnish appropriate in-
formation to support his or her request for leave because of 
a qualifying exigency. Form E, or Form WH–384 (developed 
by the Department of Labor), or another form containing the 
same basic information, may be used by the employing office; 
however, no information may be required beyond that speci-
fied in this section. 
‘‘(d) Verification. If an employee submits a complete and 
sufficient certification to support his or her request for leave 
because of a qualifying exigency, the employing office may 
not request additional information from the employee. How-
ever, if the qualifying exigency involves meeting with a third 
party, the employing office may contact the individual or enti-
ty with whom the employee is meeting for purposes of 
verifying a meeting or appointment schedule and the nature 
of the meeting between the employee and the specified indi-
vidual or entity. The employee’s permission is not required in
194 
•HRES 1516 EH 
order to verify meetings or appointments with third parties, 
but no additional information may be requested by the em-
ploying office. An employing office also may contact an ap-
propriate unit of the Department of Defense to request 
verification that a military member is on covered active duty 
or call to covered active duty status (or has been notified of 
an impending call or order to covered active duty); no addi-
tional information may be requested and the employee’s per-
mission is not required. 
‘‘§ 825.310 Certification for leave taken to care for a cov-
ered 
servicemember 
(military 
caregiver 
leave) 
‘‘(a) Required information from health care provider. 
When leave is taken to care for a covered servicemember with 
a serious injury or illness, an employing office may require 
an employee to obtain a certification completed by an author-
ized health care provider of the covered servicemember. For 
purposes of leave taken to care for a covered servicemember, 
any one of the following health care providers may complete 
such a certification: 
‘‘(1) A United States Department of Defense 
(‘DOD’) health care provider; 
‘‘(2) A United States Department of Veterans Af-
fairs (‘VA’) health care provider;
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•HRES 1516 EH 
‘‘(3) A DOD TRICARE network authorized private 
health care provider; 
‘‘(4) A DOD non-network TRICARE authorized 
private health care provider; or 
‘‘(5) Any health care provider as defined in 
825.125. 
‘‘(b) If the authorized health care provider is unable to 
make certain military-related determinations outlined below, 
the authorized health care provider may rely on determina-
tions from an authorized DOD representative (such as a 
DOD recovery care coordinator) or an authorized VA rep-
resentative. An employing office may request that the health 
care provider provide the following information: 
‘‘(1) The name, address, and appropriate contact 
information (telephone number, fax number, and/or 
email address) of the health care provider, the type of 
medical practice, the medical specialty, and whether the 
health care provider is one of the following: 
‘‘(A) A DOD health care provider; 
‘‘(B) A VA health care provider; 
‘‘(C) A DOD TRICARE network authorized 
private health care provider; 
‘‘(D) A DOD non-network TRICARE author-
ized private health care provider; or
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•HRES 1516 EH 
‘‘(E) A health care provider as defined in 
825.125. 
‘‘(2) Whether the covered servicemember’s injury or 
illness was incurred in the line of duty on active duty or, 
if not, whether the covered servicemember’s injury or ill-
ness existed before the beginning of the servicemember’s 
active duty and was aggravated by service in the line of 
duty on active duty; 
‘‘(3) The approximate date on which the serious in-
jury or illness commenced, or was aggravated, and its 
probable duration; 
‘‘(4) A statement or description of appropriate med-
ical facts regarding the covered servicemember’s health 
condition for which FMLA leave is requested. The med-
ical facts must be sufficient to support the need for 
leave. 
‘‘(A) In the case of a current member of the 
Armed Forces, such medical facts must include in-
formation on whether the injury or illness may 
render the covered servicemember medically unfit to 
perform the duties of the servicemember’s office, 
grade, rank, or rating and whether the member is 
receiving medical treatment, recuperation, or ther-
apy;
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•HRES 1516 EH 
‘‘(B) In the case of a covered veteran, such 
medical facts must include: 
‘‘(i) Information on whether the veteran is 
receiving medical treatment, recuperation, or 
therapy for an injury or illness that is the con-
tinuation of an injury or illness that was in-
curred or aggravated when the covered veteran 
was a member of the Armed Forces and ren-
dered the servicemember medically unfit to 
perform the duties of the servicemember’s of-
fice, grade, rank, or rating; or 
‘‘(ii) Information on whether the veteran 
is receiving medical treatment, recuperation, or 
therapy for an injury or illness that is a phys-
ical or mental condition for which the covered 
veteran has received a U.S. Department of 
Veterans Affairs Service-Related Disability 
Rating (VASRD) of 50 percent or greater, and 
that such VASRD rating is based, in whole or 
in part, on the condition precipitating the need 
for military caregiver leave; or 
‘‘(iii) Information on whether the veteran 
is receiving medical treatment, recuperation, or 
therapy for an injury or illness that is a phys-
ical or mental condition that substantially im-
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•HRES 1516 EH 
pairs the covered veteran’s ability to secure or 
follow a substantially gainful occupation by 
reason of a disability or disabilities related to 
military service, or would do so absent treat-
ment; or 
‘‘(iv) Documentation of enrollment in the 
Department of Veterans Affairs Program of 
Comprehensive Assistance for Family Care-
givers. 
‘‘(5) Information sufficient to establish that the 
covered servicemember is in need of care, as described 
in 825.124, and whether the covered servicemember will 
need care for a single continuous period of time, includ-
ing any time for treatment and recovery, and an esti-
mate as to the beginning and ending dates for this pe-
riod of time; 
‘‘(6) If an employee requests leave on an intermit-
tent or reduced schedule basis for planned medical treat-
ment appointments for the covered servicemember, 
whether there is a medical necessity for the covered serv-
icemember to have such periodic care and an estimate of 
the treatment schedule of such appointments; 
‘‘(7) If an employee requests leave on an intermit-
tent or reduced schedule basis to care for a covered serv-
icemember other than for planned medical treatment
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•HRES 1516 EH 
(e.g., episodic flare-ups of a medical condition), whether 
there is a medical necessity for the covered servicemem-
ber to have such periodic care, which can include assist-
ing in the covered servicemember’s recovery, and an esti-
mate of the frequency and duration of the periodic care. 
‘‘(c) Required information from employee and/ or cov-
ered servicemember. In addition to the information that may 
be requested under 825.310(b), an employing office may also 
request that such certification set forth the following informa-
tion provided by an employee and/or covered servicemember: 
‘‘(1) The name and address of the employing office 
of the employee requesting leave to care for a covered 
servicemember, the name of the employee requesting 
such leave, and the name of the covered servicemember 
for whom the employee is requesting leave to care; 
‘‘(2) The relationship of the employee to the covered 
servicemember for whom the employee is requesting 
leave to care; 
‘‘(3) Whether the covered servicemember is a cur-
rent member of the Armed Forces, the National Guard 
or Reserves, and the covered servicemember’s military 
branch, rank, and current unit assignment; 
‘‘(4) Whether the covered servicemember is assigned 
to a military medical facility as an outpatient or to a 
unit established for the purpose of providing command
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•HRES 1516 EH 
and control of members of the Armed Forces receiving 
medical care as outpatients (such as a medical hold or 
warrior transition unit), and the name of the medical 
treatment facility or unit; 
‘‘(5) Whether the covered servicemember is on the 
temporary disability retired list; 
‘‘(6) Whether the covered servicemember is a vet-
eran, the date of separation from military service, and 
whether the separation was other than dishonorable. The 
employing office may require the employee to provide 
documentation issued by the military which indicates 
that the covered servicemember is a veteran, the date of 
separation, and that the separation is other than dishon-
orable. Where an employing office requires such docu-
mentation, an employee may provide a copy of the vet-
eran’s Certificate of Release or Discharge from Active 
Duty issued by the U.S. Department of Defense (DD 
Form 214) or other proof of veteran status. See 
825.127(c)(2). 
‘‘(7) A description of the care to be provided to the 
covered servicemember and an estimate of the leave 
needed to provide the care. 
‘‘(d) The Office of Congressional Workplace Rights has 
developed an optional form (Form F) for employees’ use in 
obtaining certification that meets FMLA’s certification re-
201 
•HRES 1516 EH 
quirements. This optional form reflects certification require-
ments so as to permit the employee to furnish appropriate in-
formation to support his or her request for leave to care for 
a covered servicemember with a serious injury or illness. 
Form F, or Form WH–385 (developed by the Department of 
Labor), or another form containing the same basic informa-
tion, may be used by the employing office; however, no infor-
mation may be required beyond that specified in this section. 
In all instances the information on the certification must re-
late only to the serious injury or illness for which the current 
need for leave exists. An employing office may seek authen-
tication and/or clarification of the certification under 
825.307. Second and third opinions under 825.307 are not 
permitted for leave to care for a covered servicemember when 
the certification has been completed by one of the types of 
healthcare providers identified in section 825.310(a)(1–4). 
However, second and third opinions under 825.307 are per-
mitted when the certification has been completed by a health 
care provider as defined in 825.125 that is not one of the 
types identified in 825.310(a)(1)–(4). Additionally, recertifi-
cations under 825.308 are not permitted for leave to care for 
a covered servicemember. An employing office may require an 
employee to provide confirmation of covered family relation-
ship to the seriously injured or ill servicemember pursuant to 
825.122(k) of the FMLA.
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•HRES 1516 EH 
‘‘(e) An employing office requiring an employee to sub-
mit a certification for leave to care for a covered servicemem-
ber must accept as sufficient certification, in lieu of the Of-
fice of Congressional Workplace Rights’s optional certification 
form (Form F) or an employing office’s own certification 
form, invitational travel orders (ITOs) or invitational travel 
authorizations (ITAs) issued to any family member to join an 
injured or ill servicemember at his or her bedside. An ITO 
or ITA is sufficient certification for the duration of time 
specified in the ITO or ITA. During that time period, an eli-
gible employee may take leave to care for the covered service-
member in a continuous block of time or on an intermittent 
basis. An eligible employee who provides an ITO or ITA to 
support his or her request for leave may not be required to 
provide any additional or separate certification that leave 
taken on an intermittent basis during the period of time spec-
ified in the ITO or ITA is medically necessary. An ITO or 
ITA is sufficient certification for an employee entitled to take 
FMLA leave to care for a covered servicemember regardless 
of whether the employee is named in the order or authoriza-
tion. 
‘‘(1) If an employee will need leave to care for a 
covered servicemember beyond the expiration date speci-
fied in an ITO or ITA, an employing office may request 
that the employee have one of the authorized health care
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•HRES 1516 EH 
providers listed under 825.310(a) complete the Office of 
Congressional Workplace Rights optional certification 
form (Form F) or an employing office’s own form, as 
requisite certification for the remainder of the employ-
ee’s necessary leave period. 
‘‘(2) An employing office may seek authentication 
and clarification of the ITO or ITA under 825.307. An 
employing office may not utilize the second or third 
opinion process outlined in 825.307 or the recertification 
process under 825.308 during the period of time in 
which leave is supported by an ITO or ITA. 
‘‘(3) An employing office may require an employee 
to provide confirmation of covered family relationship to 
the seriously injured or ill servicemember pursuant to 
825.122(k) when an employee supports his or her re-
quest for FMLA leave with a copy of an ITO or ITA. 
‘‘(f) An employing office requiring an employee to sub-
mit a certification for leave to care for a covered servicemem-
ber 
must 
accept 
as 
sufficient 
certification 
of 
the 
servicemember’s serious injury or illness documentation indi-
cating the servicemember’s enrollment in the Department of 
Veterans Affairs Program of Comprehensive Assistance for 
Family Caregivers. Such documentation is sufficient certifi-
cation of the servicemember’s serious injury or illness to sup-
port the employee’s request for military caregiver leave re-
204 
•HRES 1516 EH 
gardless of whether the employee is the named caregiver in 
the enrollment documentation. 
‘‘(1) An employing office may seek authentication 
and clarification of the documentation indicating the 
servicemember’s enrollment in the Department of Vet-
erans Affairs Program of Comprehensive Assistance for 
Family Caregivers under 825.307. An employing office 
may not utilize the second or third opinion process out-
lined in 825.307 or the recertification process under 
825.308 when the servicemember’s serious injury or ill-
ness is shown by documentation of enrollment in this 
program. 
‘‘(2) An employing office may require an employee 
to provide confirmation of covered family relationship to 
the seriously injured or ill servicemember pursuant to 
825.122(k) when an employee supports his or her re-
quest for FMLA leave with a copy of such enrollment 
documentation. An employing office may also require an 
employee to provide documentation, such as a veteran’s 
Form DD–214, showing that the discharge was other 
than dishonorable and the date of the veteran’s dis-
charge. 
‘‘(g) Where medical certification is requested by an em-
ploying office, an employee may not be held liable for admin-
istrative delays in the issuance of military documents, despite
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•HRES 1516 EH 
the employee’s diligent, good-faith efforts to obtain such doc-
uments. See 825.305(b). In all instances in which certifi-
cation is requested, it is the employee’s responsibility to pro-
vide the employing office with complete and sufficient certifi-
cation and failure to do so may result in the denial of FMLA 
leave. See 825.305(d). 
‘‘§ 825.311 Intent to return to work 
‘‘(a) An employing office may require an employee on 
FMLA leave to report periodically on the employee’s status 
and intent to return to work. The employing office’s policy 
regarding such reports may not be discriminatory and must 
take into account all of the relevant facts and circumstances 
related to the individual employee’s leave situation. 
‘‘(b) If an employee gives unequivocal notice of intent 
not to return to work, the employing office’s obligations 
under FMLA, as made applicable by the CAA, to maintain 
health benefits (subject to COBRA requirements) and to re-
store 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
206 
•HRES 1516 EH 
take more FMLA leave than necessary to resolve the cir-
cumstance that precipitated the need for leave. In both of 
these situations, the employing office may require that the 
employee provide the employing office reasonable notice (i.e., 
within two business days) of the changed circumstances 
where foreseeable. The employing office may also obtain in-
formation on such changed circumstances through requested 
status reports. 
‘‘§ 825.312 Fitness-for-duty certification 
‘‘(a) As a condition of restoring an employee whose 
FMLA leave was occasioned by the employee’s own serious 
health condition that made the employee unable to perform 
the employee’s job, an employing office may have a uni-
formly-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. The employee has 
the same obligations to participate and cooperate (including 
providing a complete and sufficient certification or providing 
sufficient authorization to the health care provider to provide 
the information directly to the employing office) in the fit-
ness-for-duty certification process as in the initial certifi-
cation process. See 825.305(d).
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•HRES 1516 EH 
‘‘(b) An employing office may seek a fitness-for-duty cer-
tification only with regard to the particular health condition 
that caused the employee’s need for FMLA leave. The certifi-
cation from the employee’s health care provider must certify 
that the employee is able to resume work. Additionally, an 
employing office may require that the certification specifically 
address the employee’s ability to perform the essential func-
tions of the employee’s job. In order to require such a certifi-
cation, an employing office must provide an employee with a 
list of the essential functions of the employee’s job no later 
than with the designation notice required by 825.300(d), and 
must indicate in the designation notice that the certification 
must address the employee’s ability to perform those essential 
functions. If the employing office satisfies these requirements, 
the employee’s health care provider must certify that the em-
ployee can perform the identified essential functions of his or 
her job. Following the procedures set forth in 825.307(a), the 
employing office may contact the employee’s health care pro-
vider for purposes of clarifying and authenticating the fit-
ness-for-duty certification. Clarification may be requested 
only for the serious health condition for which FMLA leave 
was taken. The employing office may not delay the employ-
ee’s return to work while contact with the health care pro-
vider is being made. No second or third opinions on a fitness- 
for-duty certification may be required.
208 
•HRES 1516 EH 
‘‘(c) 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. 
‘‘(d) The designation notice required in 825.300(d) shall 
advise the employee if the employing office will require a fit-
ness-for-duty certification to return to work and whether that 
fitness-for-duty certification must address the employee’s 
ability to perform the essential functions of the employee’s 
job. 
‘‘(e) An employing office may delay restoration to em-
ployment until an employee submits a required fitness-for- 
duty certification unless the employing office has failed to 
provide the notice required in paragraph (d) of this section. 
If an employing office provides the notice required, an em-
ployee who does not provide a fitness-for-duty certification or 
request additional FMLA leave is no longer entitled to rein-
statement under the FMLA. See 825.313(d). 
‘‘(f) An employing office is not entitled to a certification 
of fitness to return to duty for each absence taken on an 
intermittent or reduced leave schedule. However, an employ-
ing office is entitled to a certification of fitness to return to 
duty for such absences up to once every 30 days if reasonable 
safety concerns exist regarding the employee’s ability to per-
form his or her duties, based on the serious health condition 
for which the employee took such leave. If an employing of-
209 
•HRES 1516 EH 
fice chooses to require a fitness-for-duty certification under 
such circumstances, the employing office shall inform the em-
ployee at the same time it issues the designation notice that 
for each subsequent instance of intermittent or reduced 
schedule leave, the employee will be required to submit a fit-
ness-for-duty certification unless one has already been sub-
mitted within the past 30 days. Alternatively, an employing 
office can set a different interval for requiring a fitness-for- 
duty certification as long as it does not exceed once every 30 
days and as long as the employing office advises the employee 
of the requirement in advance of the employee taking the 
intermittent or reduced schedule leave. The employing office 
may not terminate the employment of the employee while 
awaiting such a certification of fitness to return to duty for 
an intermittent or reduced schedule leave absence. Reason-
able safety concerns means a reasonable belief of significant 
risk of harm to the individual employee or others. In deter-
mining whether reasonable safety concerns exist, an employ-
ing office should consider the nature and severity of the po-
tential harm and the likelihood that potential harm will 
occur. 
‘‘(g) If the terms of a collective bargaining agreement 
govern an employee’s return to work, those provisions shall 
be applied.
210 
•HRES 1516 EH 
‘‘(h) Requirements under the Americans with Disabilities 
Act (ADA), as amended and as made applicable by the CAA, 
apply. After an employee returns from FMLA leave, the ADA 
requires any medical examination at an employing office’s ex-
pense by the employing office’s health care provider be job- 
related and consistent with business necessity. For example, 
an attorney could not be required to submit to a medical ex-
amination or inquiry just because her leg had been ampu-
tated. The essential functions of an attorney’s job do not re-
quire use of both legs; therefore such an inquiry would not 
be job related. An employing office may require a warehouse 
laborer, whose back impairment affects the ability to lift, to 
be examined by an orthopedist, but may not require this em-
ployee to submit to an HIV test where the test is not related 
to either the essential functions of his or her job or to his/ 
her impairment. If an employee’s serious health condition 
may also be a disability within the meaning of the ADA, as 
made applicable by the CAA, the FMLA does not prevent the 
employing office from following the procedures for requesting 
medical information under the ADA. 
‘‘§ 825.313 Failure to provide certification 
‘‘(a) Foreseeable leave. In the case of foreseeable leave, 
if an employee fails to provide certification in a timely man-
ner as required by 825.305, then an employing office may 
deny FMLA coverage until the required certification is pro-
211 
•HRES 1516 EH 
vided. For example, if an employee has 15 days to provide 
a certification and does not provide the certification for 45 
days without sufficient reason for the delay, the employing of-
fice can deny FMLA protections for the 30-day period fol-
lowing the expiration of the 15-day time period, if the em-
ployee takes leave during such period. 
‘‘(b) Unforeseeable leave. In the case of unforeseeable 
leave, an employing office may deny FMLA coverage for the 
requested leave if the employee fails to provide a certification 
within 15 calendar days from receipt of the request for cer-
tification unless not practicable due to extenuating cir-
cumstances. For example, in the case of a medical emergency, 
it may not be practicable for an employee to provide the re-
quired certification within 15 calendar days. Absent such ex-
tenuating circumstances, if the employee fails to timely re-
turn the certification, the employing office can deny FMLA 
protections for the leave following the expiration of the 15- 
day time period until a sufficient certification is provided. If 
the employee never produces the certification, the leave is not 
FMLA leave. 
‘‘(c) Recertification. An employee must provide recertifi-
cation within the time requested by the employing office 
(which must allow at least 15 calendar days after the re-
quest) or as soon as practicable under the particular facts 
and circumstances. If an employee fails to provide a recertifi-
212 
•HRES 1516 EH 
cation within a reasonable time under the particular facts 
and circumstances, then the employing office may deny con-
tinuation of the FMLA leave protections until the employee 
produces a sufficient recertification. If the employee never 
produces the recertification, the leave is not FMLA leave. Re-
certification does not apply to leave taken for a qualifying ex-
igency or to care for a covered servicemember. 
‘‘(d) Fitness-for-duty certification. When requested by 
the employing office pursuant to a uniformly applied policy 
for similarly-situated employees, the employee must provide 
medical certification, at the time the employee seeks rein-
statement 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 825.312(a)) if the employing of-
fice has provided the required notice (see 825.300(e)); the 
employing office may delay restoration until the certification 
is provided. Unless the employee provides either a fitness-for- 
duty certification or a new medical certification for a serious 
health condition at the time FMLA leave is concluded, the 
employee may be terminated. See also 825.213(a)(3). 
‘‘Subpart D—Administrative Process 
‘‘§ 825.400 Administrative process, general rules 
‘‘(a) The Procedural Rules of the Office of Congressional 
Workplace Rights set forth the procedures that apply to the 
administrative process for considering and resolving alleged
213 
•HRES 1516 EH 
violations of the laws made applicable by the CAA, including 
the FMLA. The Rules include procedures for filing claims 
and participating in administrative dispute resolution pro-
ceedings at the Office of Congressional Workplace Rights, in-
cluding procedures for the conduct of hearings and for ap-
peals to the Board of Directors. The Procedural Rules also 
address other matters of general applicability to the dispute 
resolution process and to the operations of the Office. 
‘‘(b) If an employing office has violated one or more pro-
visions of FMLA, as incorporated by the CAA, and if justi-
fied by the facts of a particular case, an employee may re-
ceive one or more of the following: wages, employment bene-
fits, 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 di-
rect result of the violation, such as the cost of providing care, 
up to a sum equal to 26 weeks of wages for the employee in 
a case involving leave to care for a covered servicemember or 
12 weeks of wages for the employee in a case involving leave 
for any other FMLA qualifying reason. In addition, the em-
ployee may be entitled to interest on such sum, calculated at 
the prevailing rate. An amount equaling the preceding sums 
may also be awarded as liquidated damages unless such 
amount is reduced by the hearing officer or the Board be-
214 
•HRES 1516 EH 
cause the violation was in good faith and the employing office 
had reasonable grounds for believing the employer had not 
violated the CAA. When appropriate, the employee may also 
obtain appropriate equitable relief, such as employment, rein-
statement and promotion. When the employing office is found 
in violation, the employee may recover a reasonable attorney’s 
fee, reasonable expert witness fees, and other costs as would 
be appropriate if awarded under section 2000e–5(k) of title 
42. 
‘‘(c) The Procedural Rules of the Office of Congressional 
Workplace Rights are found at 165 Cong. Rec. H4896 (daily 
ed. June 19, 2019) and 165 Cong. Rec. S4105 (daily ed. 
June 19, 2019), and may also be found on the Office’s 
website at www.ocwr.gov. 
‘‘§ 825.401 øReserved¿ 
‘‘§ 825.402 øReserved¿ 
‘‘§ 825.403 øReserved¿ 
‘‘§ 825.404 øReserved¿ 
‘‘Subpart E—øReserved¿ 
‘‘Subpart F—Special Rules Applicable to Employees of 
Schools 
‘‘§ 825.600 Special rules for school employees, definitions 
‘‘(a) Certain special rules apply to employees of local 
educational agencies, including public school boards and ele-
mentary schools under their jurisdiction, and private elemen-
215 
•HRES 1516 EH 
tary and secondary schools. The special rules do not apply to 
other kinds of educational institutions, such as colleges and 
universities, trade schools, and preschools. 
‘‘(b) Educational institutions are covered by FMLA, as 
made applicable by the CAA (and these special rules). The 
usual requirements for employees to be eligible do apply. 
‘‘(c) The special rules affect the taking of intermittent 
leave or leave on a reduced leave schedule, or leave near the 
end of an academic term (semester), by instructional employ-
ees. Instructional employees are those whose principal func-
tion 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 in-
clude auxiliary personnel such as counselors, psychologists, or 
curriculum specialists. It also does not include cafeteria work-
ers, maintenance workers, or bus drivers. 
‘‘(d) Special rules which apply to restoration to an equiv-
alent position apply to all employees of local educational 
agencies.
216 
•HRES 1516 EH 
‘‘§ 825.601 Special rules for school employees, limitations 
on intermittent leave 
‘‘(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 va-
cation when the employee would not have been required to re-
port 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 nor-
mally 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 with a serious health condi-
tion, to care for a covered servicemember, or for the em-
ployee’s own serious health condition, which is foresee-
able based on planned medical treatment, and the em-
ployee would be on leave for more than 20 percent of the 
total number of working days over the period the leave 
would extend, the employing office may require the em-
ployee to choose either to: 
‘‘(A) Take leave for a period or periods of a 
particular duration, not greater than the duration 
of the planned treatment; or
217 
•HRES 1516 EH 
‘‘(B) Transfer temporarily to an available al-
ternative position for which the employee is quali-
fied, 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 pe-
riod over which the leave extends. For example, if an in-
structional 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 per-
cent or less of the working days during the leave period 
would not be subject to transfer to an alternative posi-
tion. 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 unin-
terrupted period of leave. 
‘‘(b) If an instructional employee does not give required 
notice of foreseeable FMLA leave (See 825.302) to be taken 
intermittently or on a reduced leave schedule, the employing 
office may require the employee to take leave of a particular 
duration, or to transfer temporarily to an alternative position.
218 
•HRES 1516 EH 
Alternatively, the employing office may require the employee 
to delay the taking of leave until the notice provision is met. 
‘‘§ 825.602 Special rules for school employees, limitations 
on leave near the end of an academic term 
‘‘(a) There are also different rules for instructional em-
ployees who begin leave more than five weeks before the end 
of a term, less than five weeks before the end of a term, and 
less than three weeks before the end of a term. Regular rules 
apply except in circumstances when: 
‘‘(1) An instructional employee begins leave more 
than five weeks before the end of a term. The employing 
office may require the employee to continue taking leave 
until the end of the term if— 
‘‘(A) The leave will last at least three weeks, 
and 
‘‘(B) The employee would return to work dur-
ing the three-week period before the end of the 
term. 
‘‘(2) The employee begins leave during the five-week 
period before the end of a term because of the birth of 
a son or daughter; the placement of a son or daughter 
for adoption or foster care; to care for a spouse, son, 
daughter, or parent with a serious health condition; or 
to care for a covered servicemember. The employing of-
219 
•HRES 1516 EH 
fice may require the employee to continue taking leave 
until the end of the term if— 
‘‘(A) The leave will last more than two weeks, 
and 
‘‘(B) The employee would return to work dur-
ing the two-week period before the end of the term. 
‘‘(3) The employee begins leave during the three- 
week period before the end of a term because of the 
birth of a son or daughter; the placement of a son or 
daughter for adoption or foster care; to care for a 
spouse, son, daughter, or parent with a serious health 
condition; or to care for a covered servicemember. The 
employing office may require the employee to continue 
taking leave until the end of the term if the leave will 
last more than five working days. 
‘‘(b) For purposes of these provisions, academic term 
means the school semester, which typically ends near the end 
of the calendar year and the end of spring each school year. 
In no case may a school have more than two academic terms 
or semesters each year for purposes of FMLA, as made appli-
cable by the CAA. An example of leave falling within these 
provisions would be where an employee plans two weeks of 
leave to care for a family member which will begin three 
weeks before the end of the term. In that situation, the em-
220 
•HRES 1516 EH 
ploying office could require the employee to stay out on leave 
until the end of the term. 
‘‘§ 825.603 Special rules for school employees, duration of 
FMLA leave 
‘‘(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 entitle-
ment. The employing office has the option not to require the 
employee to stay on leave until the end of the school term. 
Therefore, any additional leave required by the employing of-
fice to the end of the school term is not counted as FMLA 
leave; however, the employing office shall be required to 
maintain the employee’s group health insurance and restore 
the employee to the same or equivalent job including other 
benefits at the conclusion of the leave. 
‘‘§ 825.604 Special rules for school employees, restoration 
to an equivalent position 
‘‘ The determination of how an employee is to be re-
stored to an equivalent position upon return from FMLA 
leave will be made on the basis of ‘established school board
221 
•HRES 1516 EH 
policies and practices, private school policies and practices, 
and collective bargaining agreements.’ The ‘established poli-
cies’ 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 clear-
ly explain the employee’s restoration rights upon return from 
leave. Any established policy which is used as the basis for 
restoration of an employee to an equivalent position must 
provide substantially the same protections as provided in the 
FMLA, as made applicable by the CAA, for reinstated em-
ployees. 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 addi-
tional licensure or certification. 
‘‘Subpart G—Effect of Other Laws, Employing Office 
Practices, and Collective Bargaining Agreements on 
Employee Rights Under the FMLA, As Made Applica-
ble By the CAA 
‘‘§ 825.700 Interaction with employing office’s policies 
‘‘(a) An employing office must observe any employment 
benefit program or plan that provides greater family or med-
ical leave rights to employees than the rights established by 
the FMLA. Conversely, the rights established by the FMLA,
222 
•HRES 1516 EH 
as made applicable by the CAA, may not be diminished by 
any employment benefit program or plan. For example, a 
provision of a collective bargaining agreement (CBA) which 
provides for reinstatement to a position that is not equivalent 
because of seniority (e.g., provides lesser pay) is superseded 
by FMLA. If an employing office provides greater unpaid 
family leave rights than are afforded by FMLA, the employ-
ing office is not required to extend additional rights afforded 
by FMLA, such as maintenance of health benefits (other 
than through COBRA or 5 U.S.C. 8905a, whichever is appli-
cable), to the additional leave period not covered by FMLA. 
‘‘(b) Nothing in the FMLA, as made applicable by the 
CAA, prevents an employing office from amending existing 
leave and employee benefit programs, provided they comply 
with FMLA, as made applicable by the CAA. However, noth-
ing in the FMLA, as made applicable by the CAA, is in-
tended to discourage employing offices from adopting or re-
taining more generous leave policies. 
‘‘§ 825.701 øReserved¿ 
‘‘§ 825.702 Interaction with anti-discrimination laws, as 
applied by section 201 of the CAA 
‘‘(a) Nothing in the FMLA modifies or affects any appli-
cable law prohibiting discrimination on the basis of race, reli-
gion, color, national origin, sex, age, or disability (e.g., title 
VII of the Civil Rights Act of 1964, as amended by the Preg-
223 
•HRES 1516 EH 
nancy Discrimination Act and as made applicable by the 
CAA). FMLA’s legislative history explains that FMLA is ‘not 
intended to modify or affect the Rehabilitation Act of 1973, 
as amended, the regulations concerning employment which 
have been promulgated pursuant to that statute, or the 
Americans with Disabilities Act of 1990 [as amended] or the 
regulations issued under that act. Thus, the leave provisions 
of the [FMLA] are wholly distinct from the reasonable ac-
commodation obligations of employers covered under the 
[ADA] . . . or the Federal government itself. The purpose of 
the FMLA, as applied by the CAA, is to make leave available 
to eligible employees and [employing offices] within its cov-
erage, and not to limit already existing rights and protection.’ 
S. Rep. No. 3, 103d Cong., 1st Sess. 38 (1993). An employ-
ing office must therefore provide leave under whichever statu-
tory 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 stat-
utes (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 Air-
lines, 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 dis-
ability within the meaning of the Americans with Disabilities
224 
•HRES 1516 EH 
Act (ADA), as made applicable by the CAA, the employing 
office must make reasonable accommodations, etc., barring 
undue hardship, in accordance with the ADA. At the same 
time, the employing office must afford an employee his or her 
FMLA rights, as made applicable by the CAA. ADA’s ‘dis-
ability’ and FMLA’s ‘serious health condition’ are different 
concepts, and must be analyzed separately. FMLA entitles el-
igible employees to 12 weeks of leave in any 12-month period 
due to their own serious health condition, whereas the ADA 
allows an indeterminate amount of leave, barring undue hard-
ship, as a reasonable accommodation. FMLA requires em-
ploying offices to maintain employees’ group health plan cov-
erage during FMLA leave on the same conditions as coverage 
would have been provided if the employee had been continu-
ously employed during the leave period, whereas ADA does 
not require maintenance of health insurance unless other em-
ployees 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 dis-
ability with a part-time job with no health benefits, assuming 
the employing office did not ordinarily provide health insur-
ance for part-time employees. However, FMLA would permit 
an employee to work a reduced leave schedule until the equiv-
alent of 12 workweeks of leave were used, with group health
225 
•HRES 1516 EH 
benefits maintained during this period. FMLA permits an 
employing office to temporarily transfer an employee who is 
taking leave intermittently or on a reduced leave schedule to 
an alternative position, whereas the ADA allows an accommo-
dation 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 pos-
sible in the employee’s present position, or an accommodation 
in the employee’s present position would cause an undue 
hardship. The examples in the following paragraphs of this 
section demonstrate how the two laws would interact with re-
spect to a qualified individual with a disability. 
‘‘(2) A qualified individual with a disability who is 
also an eligible employee entitled to FMLA leave re-
quests 10 weeks of medical leave as a reasonable accom-
modation, which the employing office grants because it 
is not an undue hardship. The employing office advises 
the employee that the 10 weeks of leave is also being 
designated as FMLA leave and will count towards the 
employee’s FMLA leave entitlement. This designation 
does not prevent the parties from also treating the leave 
as a reasonable accommodation and reinstating the em-
ployee 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
226 
•HRES 1516 EH 
time, the employee would be entitled under FMLA to 
have the employing office maintain group health plan 
coverage during the leave, as that requirement provides 
the greater right to the employee. 
‘‘(3) If the same employee needed to work part-time 
(a reduced leave schedule) after returning to his or her 
same job, the employee would still be entitled under 
FMLA to have group health plan coverage maintained 
for the remainder of the two-week equivalent of FMLA 
leave entitlement, notwithstanding an employing office 
policy that part-time employees do not receive health in-
surance. 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 FMLA’s 
provision for temporary assignment to a different alter-
native position would not apply. 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
228 
•HRES 1516 EH 
also qualifies as a serious health condition under FMLA. 
The workers’ compensation absence and FMLA leave 
may run concurrently (subject to proper notice and des-
ignation by the employing office). At some point the 
health care provider providing medical care pursuant to 
the workers’ compensation injury may certify the em-
ployee is able to return to work in a light duty position. 
If the employing office offers such a position, the em-
ployee is permitted but not required to accept the posi-
tion. See 825.220(d). As a result, the employee may no 
longer qualify for payments from the workers’ compensa-
tion benefit plan, but the employee is entitled to con-
tinue on unpaid FMLA leave either until the employee 
is able to return to the same or equivalent job the em-
ployee left or until the 12-week FMLA leave entitlement 
is exhausted. See 825.207(e). If the employee returning 
from the workers’ compensation injury is a qualified in-
dividual with a disability, he or she will have rights 
under the ADA, as made applicable by the CAA. 
‘‘(e) If an employing office requires certifications of an 
employee’s fitness for duty to return to work, as permitted 
by FMLA under a uniform policy, it must comply with the 
ADA requirement that a fitness for duty physical be job-re-
lated and consistent with business necessity.
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•HRES 1516 EH 
‘‘(f) Under Title VII of the Civil Rights Act of 1964, as 
amended by the Pregnancy Discrimination Act, and as made 
applicable by the CAA, an employing office should provide the 
same benefits for women who are pregnant as the employing 
office provides to other employees with short-term disabilities. 
Because Title VII does not require employees to be employed 
for a certain period of time to be protected, an employee em-
ployed for less than 12 months by the employing office may 
not be denied maternity leave if the employing office normally 
provides short-term disability benefits to employees with the 
same tenure who are experiencing other short-term disabil-
ities. 
‘‘(g) Under the Uniformed Services Employment and 
Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. 
4301, et seq., veterans are entitled to receive all rights and 
benefits of employment that they would have obtained if they 
had been continuously employed. Therefore, under USERRA, 
a returning servicemember would be eligible for FMLA leave 
if the months and hours that he or she would have worked 
for the civilian employing office during the period of absence 
due to or necessitated by USERRA-covered service, combined 
with the months employed and the hours actually worked, 
meet the FMLA eligibility threshold of 12 months of employ-
ment 
and 
the 
hours 
of 
service 
requirement. 
See 
825.110(b)(2)(i) and (c)(2) and 825.802(c).
230 
•HRES 1516 EH 
‘‘(h) For further information on Federal antidiscrimina-
tion laws applied by section 201 of the CAA (2 U.S.C. 1311), 
including Title VII, the Rehabilitation Act, and the ADA, in-
dividuals are encouraged to contact the Office of Congres-
sional Workplace Rights. 
‘‘Subpart H—øReserved¿’’. 
SEC. 2. APPROVAL OF REGULATIONS RELATING TO FAIR LABOR 
STANDARDS ACT. 
(a) IN GENERAL.—The regulations described in sub-
section (b) are hereby approved, insofar as such regulations 
apply to covered employees of the House of Representatives 
under the Congressional Accountability Act of 1995 and to 
the extent such regulations are consistent with the provisions 
of such Act. 
(b) REGULATIONS
APPROVED.—The regulations de-
scribed in this subsection are the regulations issued by the 
Office of Congressional Workplace Rights on September 28, 
2022, under section 203(c)(2) of the Congressional Account-
ability Act of 1995 to implement section 203 of such Act (re-
lating to the application of overtime requirements under the 
Fair Labor Standards Act of 1938), as published in the Con-
gressional Record on September 28, 2022 (Volume 168, daily 
edition) on pages H8203 through H8217, and stated as fol-
lows:
231 
•HRES 1516 EH 
‘‘PART 541—DEFINING AND DELIMITING THE EXEMP-
TIONS FOR EXECUTIVE, ADMINISTRATIVE, PRO-
FESSIONAL, AND COMPUTER øAND OUTSIDE 
SALES¿ EMPLOYEES 
‘‘Subpart A—General Regulations (§§541.0-541.4) 
‘‘§ 541.0 Introductory statement 
‘‘(a) Section 13(a)(1) of the Fair Labor Standards Act, 
as amended, provides an exemption from the Act’s minimum 
wage and overtime requirements for any employee employed 
in a bona fide executive, administrative, or professional ca-
pacity (including any employee employed in the capacity of 
academic administrative personnel or teacher in elementary 
or secondary schools)ø, or in the capacity of an outside sales 
employee, as such terms are defined and delimited from time 
to time by regulations of the Secretary, subject to the provi-
sions of the Administrative Procedure Act.¿<< and applies 
to covered employees by virtue of section 225(e)(1) of the 
CAA, as amended, 2 U.S.C. 1361(e)(1).>> Section 
13(a)(17) of the Act provides an exemption from the min-
imum wage and overtime requirements for computer systems 
analysts, computer programmers, software engineers, and 
other similarly skilled computer employees << and applies to 
covered employees by virtue of section 225(e)(1) of the CAA, 
as amended, 2 U.S.C. 1361(e)(1)>>. 
‘‘(b) The requirements for these exemptions are con-
tained in this part as follows: executive employees, subpart B;
232 
•HRES 1516 EH 
administrative employees, subpart C; professional employees, 
subpart D; computer employees, subpart Eø; outside sales 
employees, subpart F¿. Subpart G contains regulations re-
garding salary requirements applicable to most of the exemp-
tions, including salary levels and the salary basis test. Sub-
part G also contains a provision for exempting certain highly 
compensated employees. Subpart H contains definitions and 
other miscellaneous provisions applicable to all or several of 
the exemptions. 
‘‘(c) Effective July 1, 1972, the Fair Labor Standards 
Act was amended to include within the protection of the 
equal pay provisions those employees exempt from the min-
imum wage and overtime pay provisions as bona fide execu-
tive, administrative, and professional employees (including 
any employee employed in the capacity of academic adminis-
trative personnel or teacher in elementary or secondary 
schools)ø, or in the capacity of an outside sales employee 
under section 13(a)(1) of the Act¿. The equal pay provisions 
in section 6(d) of the Fair Labor Standards Act are adminis-
tered and enforced by the øUnited States Equal Employment 
Opportunity Commission¿<<Office of Congressional Work-
place Rights>>. 
‘‘§ 541.1 Terms used in regulations 
‘‘Act means the Fair Labor Standards Act of 1938, as 
amended. øAdministrator means the Administrator of the
233 
•HRES 1516 EH 
Wage and Hour Division, United States Department of 
Labor. The Secretary of Labor has delegated to the Adminis-
trator the functions vested in the Secretary under sections 
13(a)(1) and 13(a)(17) of the Fair Labor Standards Act.¿ 
<<CAA means Congressional Accountability Act of 1995, as 
amended. Office means the Office of Congressional Work-
place Rights. Employee means a ‘covered employee’ as de-
fined in section 101(a)(3) through (a)(8) of the CAA, 2 
U.S.C. 1301(a)(3) through (a)(8), but not an ‘intern’ as de-
fined in section 203(a)(2) of the CAA, 2 U.S.C. 1313(a)(2). 
Employer, company, business, or enterprise each mean an 
‘employing office’ as defined in section 101(a)(9) of the CAA, 
2 U.S.C. 1301(a)(9).>> 
‘‘§ 541.2 Job titles insufficient 
‘‘A job title alone is insufficient to establish the exempt 
status of an employee. The exempt or nonexempt status of 
any particular employee must be determined on the basis of 
whether the employee’s salary and duties meet the require-
ments of the regulations in this part. 
‘‘§ 541.3 Scope of the section 13(a)(1) exemptions 
‘‘(a) The section 13(a)(1) exemptions and the regula-
tions in this part do not apply to manual laborers or other 
‘blue collar’ workers who perform work involving repetitive 
operations with their hands, physical skill and energy. Such 
nonexempt ‘blue collar’ employees gain the skills and knowl-
234 
•HRES 1516 EH 
edge required for performance of their routine manual and 
physical work through apprenticeships and on-the-job train-
ing, not through the prolonged course of specialized intellec-
tual instruction required for exempt learned professional em-
ployees such as medical doctors, architects and archeologists. 
Thus, for example, non-management production-line employ-
ees and non-management employees in maintenance, con-
struction and similar occupations such as carpenters, elec-
tricians, mechanics, plumbers, iron workers, craftsmen, oper-
ating engineers, longshoremen, construction workers and la-
borers are entitled to minimum wage and overtime premium 
pay under the Fair Labor Standards Act, and are not exempt 
under the regulations in this part no matter how highly paid 
they might be. 
‘‘(b)(1) The section 13(a)(1) exemptions and the regula-
tions in this part also do not apply to police officers, detec-
tives, ødeputy sheriffs, state troopers, highway patrol offi-
cers,¿ investigators, inspectors, øcorrectional officers, parole 
or probation officers,¿ park rangers, fire fighters, para-
medics, emergency medical technicians, ambulance personnel, 
rescue workers, hazardous materials workers and similar em-
ployees, regardless of rank or pay level, who perform work 
such as preventing, controlling or extinguishing fires of any 
type; rescuing fire, crime or accident victims; preventing or 
detecting crimes; conducting investigations or inspections for
235 
•HRES 1516 EH 
violations of law; performing surveillance; pursuing, restrain-
ing and apprehending suspects; detaining or supervising sus-
pected and convicted criminals, including those on probation 
or 
parole; 
interviewing 
witnesses; 
interrogating 
and 
fingerprinting suspects; preparing investigative reports; or 
other similar work. 
‘‘(2) Such employees do not qualify as exempt executive 
employees because their primary duty is not management of 
the øenterprise¿ <<employing office>> in which the em-
ployee is employed or a customarily recognized department or 
subdivision thereof as required under §541.100. Thus, for ex-
ample, a police officer or fire fighter whose primary duty is 
to investigate crimes or fight fires is not exempt under sec-
tion 13(a)(1) of the Act merely because the police officer or 
fire fighter also directs the work of other employees in the 
conduct of an investigation or fighting a fire. 
‘‘(3) Such employees do not qualify as exempt adminis-
trative employees because their primary duty is not the per-
formance of work directly related to the management or gen-
eral business operations of the employer or the employer’s 
customers<<, constituents or stakeholders>> as required 
under §541.200. 
‘‘(4) Such employees do not qualify as exempt profes-
sionals because their primary duty is not the performance of 
work requiring knowledge of an advanced type in a field of
236 
•HRES 1516 EH 
science or learning customarily acquired by a prolonged 
course of specialized intellectual instruction or the perform-
ance of work requiring invention, imagination, originality or 
talent in a recognized field of artistic or creative endeavor as 
required under §541.300. Although some police officers, fire 
fighters, paramedics, emergency medical technicians and 
similar employees have college degrees, a specialized academic 
degree is not a standard prerequisite for employment in such 
occupations. 
‘‘§ 541.4 Other laws and collective bargaining agreements 
‘‘The Fair Labor Standards Act provides minimum 
standards that may be exceeded, but cannot be waived or re-
duced. Employers must comply, for example, with any 
Federalø, State or municipal¿ laws, regulations or ordinances 
establishing a higher minimum wage or lower maximum 
workweek than those established under the Act. Similarly, 
employers, on their own initiative or under a collective bar-
gaining agreement with a labor union, are not precluded by 
the Act from providing a wage higher than the statutory min-
imum, a shorter workweek than the statutory maximum, or 
a higher overtime premium (double time, for example) than 
provided by the Act. While collective bargaining agreements 
cannot waive or reduce the Act’s protections, nothing in the 
Act or the regulations in this part relieves employers from
237 
•HRES 1516 EH 
their contractual obligations under collective bargaining 
agreements. 
‘‘Subpart B—Executive Employees (§§541.100-541.106) 
‘‘§ 541.100 General rule for executive employees 
‘‘(a) The term ‘employee employed in a bona fide execu-
tive capacity’ in section 13(a)(1) of the Act shall mean any 
employee: 
‘‘(1) Compensated on a salary basis pursuant to 
§541.600 at a rate of not less than $684 per week ø(or 
$455 per week if employed in the Commonwealth of the 
Northern Mariana Islands, Guam, Puerto Rico, or the 
U.S. Virgin Islands by employers other than the Federal 
government, or $380 per week if employed in American 
Samoa by employers other than the Federal govern-
ment)¿, exclusive of board, lodging or other facilities; 
‘‘(2) Whose primary duty is management of the 
øenterprise¿ <<employing office>> in which the em-
ployee is employed or of a customarily recognized depart-
ment or subdivision thereof; 
‘‘(3) Who customarily and regularly directs the 
work of two or more other employees; and 
‘‘(4) Who has the authority to hire or fire other em-
ployees or whose suggestions and recommendations as to 
the hiring, firing, advancement, promotion or any other
238 
•HRES 1516 EH 
change of status of other employees are given particular 
weight. 
‘‘(b) The phrase ‘salary basis’ is defined at §541.602; 
‘board, lodging or other facilities’ is defined at §541.606; 
‘primary duty’ is defined at §541.700; and ‘customarily and 
regularly’ is defined at §541.701. 
ø‘‘§ 541.101 Business owner 
‘‘The term ‘employee employed in a bona fide executive 
capacity’ in section 13(a)(1) of the Act also includes any em-
ployee who owns at least a bona fide 20-percent equity inter-
est in the enterprise in which the employee is employed, re-
gardless of whether the business is a corporate or other type 
of organization, and who is actively engaged in its manage-
ment. The term ‘management’ is defined in §541.102. The 
requirements of Subpart G (salary requirements) of this part 
do not apply to the business owners described in this sec-
tion.¿ 
‘‘§ 541.102 Management 
‘‘Generally, ‘management’ includes, but is not limited to, 
activities such as interviewing, selecting, and training of em-
ployees; setting and adjusting their rates of pay and hours 
of work; directing the work of employees; maintaining pro-
duction or sales records for use in supervision or control; ap-
praising employees’ productivity and efficiency for the pur-
pose of recommending promotions or other changes in status;
239 
•HRES 1516 EH 
handling employee complaints and grievances; disciplining 
employees; planning the work; determining the techniques to 
be used; apportioning the work among the employees; deter-
mining the type of materials, supplies, machinery, equipment 
or tools to be used or merchandise to be bought, stocked and 
sold; controlling the flow and distribution of materials or 
merchandise and supplies; providing for the safety and secu-
rity of the employees or the property; planning and control-
ling the budget; and monitoring or implementing legal com-
pliance measures. 
‘‘§ 541.103 Department or subdivision 
‘‘(a) The phrase ‘a customarily recognized department or 
subdivision’ is intended to distinguish between a mere collec-
tion of employees assigned from time to time to a specific job 
or series of jobs and a unit with permanent status and func-
tion. A customarily recognized department or subdivision 
must have a permanent status and a continuing function. For 
example, a large employer’s human resources department 
might have subdivisions for labor relations, pensions and 
other benefits, equal employment opportunity, and personnel 
management, each of which has a permanent status and 
function. 
‘‘(b) When an øenterprise¿ <<employing office>> has 
more than one øestablishment¿ <<location>>, the em-
ployee in charge of each øestablishment¿ <<location>>
240 
•HRES 1516 EH 
may be considered in charge of a recognized subdivision of 
the øenterprise¿ <<employing office>>. 
‘‘(c) A recognized department or subdivision need not be 
physically within the employer’s establishment and may move 
from place to place. The mere fact that the employee works 
in more than one location does not invalidate the exemption 
if other factors show that the employee is actually in charge 
of a recognized unit with a continuing function in the organi-
zation. 
‘‘(d) Continuity of the same subordinate personnel is not 
essential to the existence of a recognized unit with a con-
tinuing function. An otherwise exempt employee will not lose 
the exemption merely because the employee draws and super-
vises workers from a pool or supervises a team of workers 
drawn from other recognized units, if other factors are 
present that indicate that the employee is in charge of a rec-
ognized unit with a continuing function. 
‘‘§ 541.104 Two or more other employees 
‘‘(a) To qualify as an exempt executive under §541.100, 
the employee must customarily and regularly direct the work 
of two or more other employees. The phrase ‘two or more 
other employees’ means two full-time employees or their 
equivalent. One full-time and two half-time employees, for ex-
ample, are equivalent to two full-time employees. Four half- 
time employees are also equivalent.
241 
•HRES 1516 EH 
‘‘(b) The supervision can be distributed among two, 
three or more employees, but each such employee must cus-
tomarily and regularly direct the work of two or more other 
full-time employees or the equivalent. Thus, for example, a 
department with five full-time nonexempt workers may have 
up to two exempt supervisors if each such supervisor custom-
arily and regularly directs the work of two of those workers. 
‘‘(c) An employee who merely assists the manager of a 
particular department and supervises two or more employees 
only in the actual manager’s absence does not meet this re-
quirement. 
‘‘(d) Hours worked by an employee cannot be credited 
more than once for different executives. Thus, a shared re-
sponsibility for the supervision of the same two employees in 
the same department does not satisfy this requirement. How-
ever, a full-time employee who works four hours for one su-
pervisor and four hours for a different supervisor, for exam-
ple, can be credited as a half-time employee for both super-
visors. 
‘‘§ 541.105 Particular weight 
‘‘To determine whether an employee’s suggestions and 
recommendations are given ‘particular weight,’ factors to be 
considered include, but are not limited to, whether it is part 
of the employee’s job duties to make such suggestions and 
recommendations; the frequency with which such suggestions
242 
•HRES 1516 EH 
and recommendations are made or requested; and the fre-
quency with which the employee’s suggestions and rec-
ommendations are relied upon. Generally, an executive’s sug-
gestions and recommendations must pertain to employees 
whom the executive customarily and regularly directs. It does 
not include an occasional suggestion with regard to the 
change in status of a co-worker. An employee’s suggestions 
and recommendations may still be deemed to have ‘particular 
weight’ even if a higher level manager’s recommendation has 
more importance and even if the employee does not have au-
thority to make the ultimate decision as to the employee’s 
change in status. 
‘‘§ 541.106 Concurrent duties 
‘‘(a) Concurrent performance of exempt and nonexempt 
work does not disqualify an employee from the executive ex-
emption if the requirements of §541.100 are otherwise met. 
Whether an employee meets the requirements of §541.100 
when the employee performs concurrent duties is determined 
on a case-by-case basis and based on the factors set forth in 
§541.700. Generally, exempt executives make the decision re-
garding when to perform nonexempt duties and remain re-
sponsible for the success or failure of business operations 
under their management while performing the nonexempt 
work. In contrast, the nonexempt employee generally is di-
rected by a supervisor to perform the exempt work or per-
243 
•HRES 1516 EH 
forms the exempt work for defined time periods. An employee 
whose primary duty is ordinary production work or routine, 
recurrent or repetitive tasks cannot qualify for exemption as 
an executive. 
‘‘(b) For example, an assistant manager in a retail es-
tablishment may perform work such as serving customers, 
cooking food, stocking shelves and cleaning the establishment, 
but performance of such nonexempt work does not preclude 
the exemption if the assistant manager’s primary duty is 
management. An assistant manager can supervise employees 
and serve customers at the same time without losing the ex-
emption. An exempt employee can also simultaneously direct 
the work of other employees and stock shelves. 
‘‘(c) In contrast, a relief supervisor or working super-
visor whose primary duty is performing nonexempt work on 
the production line in a manufacturing plant does not become 
exempt merely because the nonexempt production line em-
ployee occasionally has some responsibility for directing the 
work of other nonexempt production line employees when, for 
example, the exempt supervisor is unavailable. Similarly, an 
employee whose primary duty is to work as an electrician is 
not an exempt executive even if the employee also directs the 
work of other employees on the job site, orders parts and ma-
terials for the job, and handles requests from the prime con-
tractor.
244 
•HRES 1516 EH 
‘‘Subpart C—Administrative Employees (§§541.200- 
541.204) 
‘‘§ 541.200 General rule for administrative employees 
‘‘(a) The term ‘employee employed in a bona fide admin-
istrative capacity’ in section 13(a)(1) of the Act shall mean 
any employee: 
‘‘(1) Compensated on a salary or fee basis pursuant 
to §541.600 at a rate of not less than $684 per week 
ø(or $455 per week if employed in the Commonwealth 
of the Northern Mariana Islands, Guam, Puerto Rico, or 
the U.S. Virgin Islands by employers other than the 
Federal government, or $380 per week if employed in 
American Samoa by employers other than the Federal 
government)¿, exclusive of board, lodging or other facili-
ties; 
‘‘(2) Whose primary duty is the performance of of-
fice or non-manual work directly related to the manage-
ment or general business operations of the employer or 
the 
employer’s 
customers<<, 
constituents 
or 
stakeholders>>; and 
‘‘(3) Whose primary duty includes the exercise of 
discretion and independent judgment with respect to 
matters of significance. 
‘‘(b) The term ‘salary basis’ is defined at §541.602; ‘fee 
basis’ is defined at §541.605; ‘board, lodging or other facili-
245 
•HRES 1516 EH 
ties’ is defined at §541.606; and ‘primary duty’ is defined at 
§541.700. 
‘‘§ 541.201 Directly related to management or general 
business operations 
‘‘(a) To qualify for the administrative exemption, an em-
ployee’s primary duty must be the performance of work di-
rectly related to the management or general business oper-
ations of the employer or the employer’s customers<<, con-
stituents or stakeholders>>. The phrase ‘directly related to 
the management or general business operations’ refers to the 
type of work performed by the employee. To meet this re-
quirement, an employee must perform work directly related 
to assisting with the running or servicing of the [business] 
<<employing office>>, as distinguished, for example, from 
working on a manufacturing production line or selling a prod-
uct in a retail or service establishment. 
‘‘(b) Work directly related to management or general 
business operations includes, but is not limited to, work in 
functional areas such as tax; finance; accounting; budgeting; 
auditing; insurance; quality control; purchasing; procurement; 
advertising; marketing; research; safety and health; personnel 
management; human resources; employee benefits; labor rela-
tions; public relations, government relations; computer net-
work, internet and database administration; legal and regu-
latory compliance; and similar activities. Some of these activi-
246 
•HRES 1516 EH 
ties may be performed by employees who also would qualify 
for another exemption. 
‘‘(c) An employee may qualify for the administrative ex-
emption if the employee’s primary duty is the performance of 
work directly related to the management or general business 
operations of the employer’s customers<<, constituents and/ 
or stakeholders>>. Thus, for example, employees acting as 
advisers or consultants to their employer’s øclients or¿ 
customer<<, constituents or stakeholders>> (as tax experts 
or financial consultants, for example) may be exempt. 
‘‘§ 541.202 Discretion and independent judgment 
‘‘(a) To qualify for the administrative exemption, an em-
ployee’s primary duty must include the exercise of discretion 
and independent judgment with respect to matters of signifi-
cance. In general, the exercise of discretion and independent 
judgment involves the comparison and the evaluation of pos-
sible courses of conduct, and acting or making a decision 
after the various possibilities have been considered. The term 
‘matters of significance’ refers to the level of importance or 
consequence of the work performed. 
‘‘(b) The phrase ‘discretion and independent judgment’ 
must be applied in the light of all the facts involved in the 
particular employment situation in which the question arises. 
Factors to consider when determining whether an employee 
exercises discretion and independent judgment with respect to
247 
•HRES 1516 EH 
matters of significance include, but are not limited to: wheth-
er the employee has authority to formulate, affect, interpret, 
or implement management policies or operating practices; 
whether the employee carries out major assignments in con-
ducting the operations of the øbusiness¿ <<employing 
office>>; whether the employee performs work that affects 
business operations <<of the employing office>>to a sub-
stantial degree, even if the employee’s assignments are re-
lated to operation of a particular segment of the øbusiness¿ 
<<employing office>>; whether the employee has authority 
to commit the employer in matters that have significant fi-
nancial impact; whether the employee has authority to waive 
or deviate from established policies and procedures without 
prior approval; whether the employee has authority to nego-
tiate and bind the øcompany¿<<employing office>> on sig-
nificant matters; whether the employee provides consultation 
or expert advice to management; whether the employee is in-
volved 
in 
planning 
longer 
short-term 
øbusiness¿ 
<<employing office>> objectives; whether the employee in-
vestigates and resolves matters of significance on behalf of 
management; and whether the employee represents the øcom-
pany¿<<employing office>> in handling complaints, arbi-
trating disputes or resolving grievances. 
‘‘(c) The exercise of discretion and independent judg-
ment implies that the employee has authority to make an
248 
•HRES 1516 EH 
independent choice, free from immediate direction or super-
vision. However, employees can exercise discretion and inde-
pendent judgment even if their decisions or recommendations 
are reviewed at a higher level. Thus, the term ‘discretion and 
independent judgment’ does not require that the decisions 
made by an employee have a finality that goes with unlimited 
authority and a complete absence of review. The decisions 
made as a result of the exercise of discretion and independent 
judgment may consist of recommendations for action rather 
than the actual taking of action. The fact that an employee’s 
decision may be subject to review and that upon occasion the 
decisions are revised or reversed after review does not mean 
that the employee is not exercising discretion and inde-
pendent judgment. For example, the policies formulated by 
the øcredit¿ manager of a<<n>> ølarge corpora-
tion¿<<employing office>> may be subject to review by 
higher øcompany¿<<employing office>> officials who may 
approve or disapprove these policies. The ømanagement con-
sultant¿ <<department director>> who has made a study 
of the operations of a øbusiness¿ <<department>> and 
who has drawn a proposed change in organization may have 
the plan reviewed or revised by superiors before it is øsub-
mitted to the client¿<<approved>>. 
‘‘(d) An employer’s volume of øbusiness¿ <<work>> 
may make it necessary to employ a number of employees to
249 
•HRES 1516 EH 
perform the same or similar work. The fact that many em-
ployees perform identical work or work of the same relative 
importance does not mean that the work of each such em-
ployee does not involve the exercise of discretion and inde-
pendent judgment with respect to matters of significance. 
‘‘(e) The exercise of discretion and independent judg-
ment must be more than the use of skill in applying well-es-
tablished techniques, procedures or specific standards de-
scribed in manuals or other sources. See also §541.704 re-
garding use of manuals. The exercise of discretion and inde-
pendent judgment also does not include clerical or secretarial 
work, recording or tabulating data, or performing other me-
chanical, repetitive, recurrent or routine work. An employee 
who simply tabulates data is not exempt, even if labeled as 
a ‘statistician.’ 
‘‘(f) An employee does not exercise discretion and inde-
pendent judgment with respect to matters of significance 
merely because the employer will experience financial losses 
if the employee fails to perform the job properly. For exam-
ple, a messenger who is entrusted with carrying large sums 
of money does not exercise discretion and independent judg-
ment with respect to matters of significance even though seri-
ous consequences may flow from the employee’s neglect. Simi-
larly, an employee who operates very expensive equipment 
does not exercise discretion and independent judgment with
250 
•HRES 1516 EH 
respect to matters of significance merely because improper 
performance of the employee’s duties may cause serious fi-
nancial loss to the employer. 
‘‘§ 541.203 Administrative exemption examples 
‘‘(a) øInsurance claims adjusters¿<<Employees who in-
vestigate claims>> generally meet the duties requirements 
for the administrative exemptionø, whether they work for an 
insurance company or other type of company,¿ if their duties 
include activities such as interviewing øinsureds,¿ witnesses 
øand physicians¿; inspecting property damage; reviewing fac-
tual information to prepare damage estimates; evaluating and 
making recommendations regarding coverage of claims; deter-
mining liability and total value of a claim; negotiating settle-
ments; and making recommendations regarding litigation. 
‘‘(b) Employees in øthe¿ financial services øindustry¿ 
generally meet the duties requirements for the administrative 
exemption if their duties include work such as collecting and 
analyzing information regarding the customer’s income, as-
sets, investments or debts; determining which financial prod-
ucts best meet the customer’s needs and financial cir-
cumstances; advising the customer regarding the advantages 
and disadvantages of different financial products; and mar-
keting, servicing or promoting the employer’s financial prod-
ucts. However, an employee whose primary duty is selling fi-
251 
•HRES 1516 EH 
nancial products does not qualify for the administrative ex-
emption. 
‘‘(c) An employee who leads a team of other employees 
assigned to complete major projects for the employer (such 
as øpurchasing, selling or closing all or part of the business,¿ 
negotiating a real estate transaction or a collective bargaining 
agreement, or designing and implementing productivity im-
provements) generally meets the duties requirements for the 
administrative exemption, even if the employee does not have 
direct supervisory responsibility over the other employees on 
the team. 
‘‘(d) An executive assistant or administrative assistant to 
a øbusiness owner or senior executive of a large busi-
ness¿<<senior 
management 
official 
of 
an 
employing 
office>> generally meets the duties requirements for the ad-
ministrative exemption if such employee, without specific in-
structions or prescribed procedures, has been delegated au-
thority regarding matters of significance. 
‘‘(e) Human resources managers who formulate, inter-
pret or implement employment policies and management con-
sultants who study the operations of a øbusiness¿ 
<<employing office>> and propose changes in organization 
generally meet the duties requirements for the administrative 
exemption. However, personnel clerks who ‘screen’ applicants 
to obtain data regarding their minimum qualifications and
252 
•HRES 1516 EH 
fitness for employment generally do not meet the duties re-
quirements for the administrative exemption. Such personnel 
clerks typically will reject all applicants who do not meet min-
imum standards for the particular job or for employment by 
the øcompany¿ <<employing office>>. The minimum 
standards are usually set by the exempt human resources 
manager or other øcompany¿ <<employing office>> offi-
cials, and the decision to hire from the group of qualified ap-
plicants who do meet the minimum standards is similarly 
made by the exempt human resources manager or other 
øcompany¿ <<employing office>> officials. Thus, when the 
interviewing and screening functions are performed by the 
human resources manager or personnel manager who makes 
the hiring decision or makes recommendations for hiring 
from the pool of qualified applicants, such duties constitute 
exempt work, even though routine, because this work is di-
rectly and closely related to the employee’s exempt functions. 
‘‘(f) Purchasing agents with authority to bind the øcom-
pany¿ <<employing office>> on significant purchases gen-
erally meet the duties requirements for the administrative ex-
emption even if they must consult with top management offi-
cials when making a purchase commitment for øraw¿ mate-
rials in excess of the contemplated øplant¿ needs. 
‘‘(g) Ordinary inspection work generally does not meet 
the duties requirements for the administrative exemption. In-
253 
•HRES 1516 EH 
spectors normally perform specialized work along standard-
ized lines involving well-established techniques and procedures 
which may have been catalogued and described in manuals or 
other sources. Such inspectors rely on techniques and skills 
acquired by special training or experience. They have some 
leeway in the performance of their work but only within close-
ly prescribed limits. 
‘‘(h) Employees usually called examiners or graders, 
such as employees that grade lumber, generally do not meet 
the duties requirements for the administrative exemption. 
Such employees usually perform work involving the compari-
son of products with established standards which are fre-
quently catalogued. Often, after continued reference to the 
written standards, or through experience, the employee ac-
quires sufficient knowledge so that reference to written stand-
ards is unnecessary. The substitution of the employee’s mem-
ory for a manual of standards does not convert the character 
of the work performed to exempt work requiring the exercise 
of discretion and independent judgment. 
‘‘(i) øComparison shopping performed by an employee of 
a retail store who merely reports to the buyer the prices at 
a competitor’s store does not qualify for the administrative 
exemption. However, the buyer who evaluates such reports on 
competitor prices to set the employer’s prices generally meets
254 
•HRES 1516 EH 
the duties requirements for the administrative exemp-
tion.¿<<Reserved.>> 
‘‘(j) øPublic sector i¿<<I>>nspectors or investigators 
of various types, such as fire prevention or safety, building 
or construction, health or sanitation, environmental or soils 
specialists and similar employees, generally do not meet the 
duties requirements for the administrative exemption because 
their work typically does not involve work directly related to 
the management or general business operations of the em-
ployer. Such employees also do not qualify for the administra-
tive exemption because their work involves the use of skills 
and technical abilities in gathering factual information, apply-
ing known standards or prescribed procedures, determining 
which procedure to follow, or determining whether prescribed 
standards or criteria are met. 
‘‘§ 541.204 Educational establishments 
‘‘(a) The term ‘employee employed in a bona fide admin-
istrative capacity’ in section 13(a)(1) of the Act also includes 
employees: 
‘‘(1) Compensated on a salary or fee basis at a rate 
of not less than $684 per week ø(or $455 per week if 
employed in the Commonwealth of the Northern Mar-
iana Islands, Guam, Puerto Rico, or the U.S. Virgin Is-
lands by employers other than the Federal government, 
or $380 per week if employed in American Samoa by
255 
•HRES 1516 EH 
employers other than the Federal government)¿, exclu-
sive of board, lodging, or other facilities; or on a salary 
basis which is at least equal to the entrance salary for 
teachers in the educational establishment by which em-
ployed; and 
‘‘(2) Whose primary duty is performing administra-
tive functions directly related to academic instruction or 
training in an educational establishment or department 
or subdivision thereof. 
‘‘(b) The term ‘educational establishment’ means an ele-
mentary or secondary school system, an institution of higher 
education or other educational institution. Sections 3(v) and 
3(w) of the Act define elementary and secondary schools as 
those day or residential schools that provide elementary or 
secondary education, as determined under State law. Under 
the laws of most States, such education includes the curricu-
lums in grades 1 through 12; under many it includes also the 
introductory programs in kindergarten. Such education in 
some States may also include nursery school programs in ele-
mentary education and junior college curriculums in sec-
ondary education. The term ‘other educational establishment’ 
includes special schools for mentally or physically disabled or 
gifted children, regardless of any classification of such schools 
as elementary, secondary or higher. Factors relevant in deter-
mining whether post-secondary career programs are edu-
256 
•HRES 1516 EH 
cational institutions include whether the school is licensed by 
a state agency responsible for the state’s educational system 
or accredited by a nationally recognized accrediting organiza-
tion for career schools. Also, for purposes of the exemption, 
no distinction is drawn between public and private schools, or 
between those operated for profit and those that are not for 
profit. 
‘‘(c) The phrase ‘performing administrative functions di-
rectly related to academic instruction or training’ means work 
related to the academic operations and functions in a school 
rather than to administration along the lines of general busi-
ness operations. Such academic administrative functions in-
clude operations directly in the field of education. Jobs relat-
ing to areas outside the educational field are not within the 
definition of academic administration. 
‘‘(1) Employees engaged in academic administrative 
functions include: the superintendent or other head of an 
elementary or secondary school system, and any assist-
ants, responsible for administration of such matters as 
curriculum, quality and methods of instructing, meas-
uring and testing the learning potential and achievement 
of students, establishing and maintaining academic and 
grading standards, and other aspects of the teaching 
program; the principal and any vice-principals respon-
sible for the operation of an elementary or secondary
257 
•HRES 1516 EH 
school; department heads in institutions of higher edu-
cation responsible for the administration of the mathe-
matics department, the English department, the foreign 
language department, etc.; academic counselors who per-
form work such as administering school testing pro-
grams, assisting students with academic problems and 
advising students concerning degree requirements; and 
other employees with similar responsibilities. 
‘‘(2) Jobs relating to building management and 
maintenance, jobs relating to the health of the students, 
and academic staff such as social workers, psychologists, 
lunch room managers or dietitians do not perform aca-
demic administrative functions. Although such work is 
not considered academic administration, such employees 
may qualify for exemption under §541.200 or under 
other sections of this part, provided the requirements for 
such exemptions are met. 
‘‘Subpart D—Professional Employees (§§541.300-541.304) 
‘‘§ 541.300 General rule for professional employees 
‘‘(a) The term ‘employee employed in a bona fide profes-
sional capacity’ in section 13(a)(1) of the Act shall mean any 
employee: 
‘‘(1) Compensated on a salary or fee basis pursuant 
to §541.600 at a rate of not less than $684 per week 
ø(or $455 per week if employed in the Commonwealth
258 
•HRES 1516 EH 
of the Northern Mariana Islands, Guam, Puerto Rico, or 
the U.S. Virgin Islands by employers other than the 
Federal government, or $380 per week if employed in 
American Samoa by employers other than the Federal 
government)¿, exclusive of board, lodging or other facili-
ties; and 
‘‘(2) Whose primary duty is the performance of 
work: 
‘‘(i) Requiring knowledge of an advanced type 
in a field of science or learning customarily acquired 
by a prolonged course of specialized intellectual in-
struction; or 
‘‘(ii) Requiring invention, imagination, origi-
nality or talent in a recognized field of artistic or 
creative endeavor. 
‘‘(b) The term ‘salary basis’ is defined at §541.602; ‘fee 
basis’ is defined at §541.605; ‘board, lodging or other facili-
ties’ is defined at §541.606; and ‘primary duty’ is defined at 
§541.700. 
‘‘§ 541.301 Learned professionals 
‘‘(a) To qualify for the learned professional exemption, 
an employee’s primary duty must be the performance of work 
requiring advanced knowledge in a field of science or learning 
customarily acquired by a prolonged course of specialized in-
259 
•HRES 1516 EH 
tellectual instruction. This primary duty test includes three 
elements: 
‘‘(1) The employee must perform work requiring ad-
vanced knowledge; 
‘‘(2) The advanced knowledge must be in a field of 
science or learning; and 
‘‘(3) The advanced knowledge must be customarily 
acquired by a prolonged course of specialized intellectual 
instruction. 
‘‘(b) The phrase ‘work requiring advanced knowledge’ 
means work which is predominantly intellectual in character, 
and which includes work requiring the consistent exercise of 
discretion and judgment, as distinguished from performance 
of routine mental, manual, mechanical or physical work. An 
employee who performs work requiring advanced knowledge 
generally uses the advanced knowledge to analyze, interpret 
or make deductions from varying facts or circumstances. Ad-
vanced knowledge cannot be attained at the high school level. 
‘‘(c) The phrase ‘field of science or learning’ includes the 
traditional professions of law, medicine, theology, accounting, 
actuarial computation, engineering, architecture, teaching, 
various types of physical, chemical and biological sciences, 
pharmacy and other similar occupations that have a recog-
nized professional status as distinguished from the mechan-
ical arts or skilled trades where in some instances the knowl-
260 
•HRES 1516 EH 
edge is of a fairly advanced type, but is not in a field of 
science or learning. 
‘‘(d) The phrase ‘customarily acquired by a prolonged 
course of specialized intellectual instruction’ restricts the ex-
emption to professions where specialized academic training is 
a standard prerequisite for entrance into the profession. The 
best prima facie evidence that an employee meets this re-
quirement is possession of the appropriate academic degree. 
However, the word ‘customarily’ means that the exemption is 
also available to employees in such professions who have sub-
stantially the same knowledge level and perform substantially 
the same work as the degreed employees, but who attained 
the advanced knowledge through a combination of work expe-
rience and intellectual instruction. Thus, for example, the 
learned professional exemption is available to the occasional 
lawyer who has not gone to law school, or the occasional 
chemist who is not the possessor of a degree in chemistry. 
However, the learned professional exemption is not available 
for occupations that customarily may be performed with only 
the general knowledge acquired by an academic degree in any 
field, with knowledge acquired through an apprenticeship, or 
with training in the performance of routine mental, manual, 
mechanical or physical processes. The learned professional ex-
emption also does not apply to occupations in which most em-
263 
•HRES 1516 EH 
vanced specialized academic degree is not a standard pre-
requisite for entry into the field. Although many paralegals 
possess general four-year advanced degrees, most specialized 
paralegal programs are two-year associate degree programs 
from a community college or equivalent institution. However, 
the learned professional exemption is available for paralegals 
who possess advanced specialized degrees in other profes-
sional fields and apply advanced knowledge in that field in 
the performance of their duties. For example, if a law firm 
hires an engineer as a paralegal to provide expert advice on 
product liability cases or to assist on patent matters, that en-
gineer would qualify for exemption. 
‘‘(8) Athletic trainers. Athletic trainers who have suc-
cessfully completed four academic years of pre-professional 
and professional study in a specialized curriculum accredited 
by the Commission on Accreditation of Allied Health Edu-
cation Programs and who are certified by the Board of Cer-
tification of the National Athletic Trainers Association Board 
of Certification generally meet the duties requirements for 
the learned professional exemption. 
ø‘‘(9) Funeral directors or embalmers. Licensed funeral 
directors and embalmers who are licensed by and working in 
a state that requires successful completion of four academic 
years of pre-professional and professional study, including 
graduation from a college of mortuary science accredited by
264 
•HRES 1516 EH 
the American Board of Funeral Service Education, generally 
meet the duties requirements for the learned professional ex-
emption.¿ 
‘‘(f) The areas in which the professional exemption may 
be available are expanding. As knowledge is developed, aca-
demic training is broadened and specialized degrees are of-
fered in new and diverse fields, thus creating new specialists 
in particular fields of science or learning. When an advanced 
specialized degree has become a standard requirement for a 
particular occupation, that occupation may have acquired the 
characteristics of a learned profession. Accrediting and certi-
fying organizations similar to those listed in paragraphs 
(e)(1), (e)(3), (e)(4) and (e)(8) of this section also may be 
created in the future. Such organizations may develop similar 
specialized curriculums and certification programs which, if a 
standard requirement for a particular occupation, may indi-
cate that the occupation has acquired the characteristics of 
a learned profession. 
‘‘§ 541.302 Creative professionals 
‘‘(a) To qualify for the creative professional exemption, 
an employee’s primary duty must be the performance of work 
requiring invention, imagination, originality or talent in a rec-
ognized field of artistic or creative endeavor as opposed to 
routine mental, manual, mechanical or physical work. The ex-
emption does not apply to work which can be produced by a
265 
•HRES 1516 EH 
person with general manual or intellectual ability and train-
ing. 
‘‘(b) To qualify for exemption as a creative professional, 
the work performed must be ‘in a recognized field of artistic 
or creative endeavor.’ This includes such fields as music, 
writing, acting and the graphic arts. 
‘‘(c) The requirement of ‘invention, imagination, origi-
nality or talent’ distinguishes the creative professions from 
work that primarily depends on intelligence, diligence and ac-
curacy. The duties of employees vary widely, and exemption 
as a creative professional depends on the extent of the inven-
tion, imagination, originality or talent exercised by the em-
ployee. Determination of exempt creative professional status, 
therefore, must be made on a case-by-case basis. This re-
quirement generally is met by actors, musicians, composers, 
conductors, and soloists; painters who at most are given the 
subject matter of their painting; cartoonists who are merely 
told the title or underlying concept of a cartoon and must 
rely on their own creative ability to express the concept; es-
sayists, novelists, short-story writers and screen-play writers 
who choose their own subjects and hand in a finished piece 
of work to their employers (the majority of such persons are, 
of course, not employees but self-employed); and persons 
holding the more responsible writing positions in advertising 
agencies. This requirement generally is not met by a person
266 
•HRES 1516 EH 
who is employed as a copyist, as an ‘animator’ of motion-pic-
ture cartoons, or as a retoucher of photographs, since such 
work is not properly described as creative in character. 
‘‘(d) Journalists may satisfy the duties requirements for 
the creative professional exemption if their primary duty is 
work requiring invention, imagination, originality or talent, as 
opposed to work which depends primarily on intelligence, dili-
gence and accuracy. Employees of newspapers, magazines, 
television and other media are not exempt creative profes-
sionals if they only collect, organize and record information 
that is routine or already public, or if they do not contribute 
a unique interpretation or analysis to a news product. Thus, 
for example, newspaper reporters who merely rewrite press 
releases or who write standard recounts of public information 
by gathering facts on routine community events are not ex-
empt creative professionals. Reporters also do not qualify as 
exempt creative professionals if their work product is subject 
to substantial control by the employer. However, journalists 
may qualify as exempt creative professionals if their primary 
duty is performing on the air in radio, television or other 
electronic media; conducting investigative interviews; ana-
lyzing or interpreting public events; writing editorials, opinion 
columns or other commentary; or acting as a narrator or 
commentator.
267 
•HRES 1516 EH 
‘‘§ 541.303 Teachers 
‘‘(a) The term ‘employee employed in a bona fide profes-
sional capacity’ in section 13(a)(1) of the Act also means any 
employee with a primary duty of teaching, tutoring, instruct-
ing or lecturing in the activity of imparting knowledge and 
who is employed and engaged in this activity as a teacher in 
an educational establishment by which the employee is em-
ployed. The term ‘educational establishment’ is defined in 
§541.204(b). 
‘‘(b) Exempt teachers include, but are not limited to: 
Regular academic teachers; teachers of kindergarten or nurs-
ery school pupils; teachers of gifted or disabled children; 
teachers of skilled and semi-skilled trades and occupations; 
teachers engaged in automobile driving instruction; aircraft 
flight instructors; home economics teachers; and vocal or in-
strumental music instructors. Those faculty members who are 
engaged as teachers but also spend a considerable amount of 
their time in extracurricular activities such as coaching ath-
letic teams or acting as moderators or advisors in such areas 
as drama, speech, debate or journalism are engaged in teach-
ing. Such activities are a recognized part of the schools’ re-
sponsibility in contributing to the educational development of 
the student. 
‘‘(c) The possession of an elementary or secondary 
teacher’s certificate provides a clear means of identifying the 
individuals contemplated as being within the scope of the ex-
268 
•HRES 1516 EH 
emption for teaching professionals. Teachers who possess a 
teaching certificate qualify for the exemption regardless of 
the terminology (e.g., permanent, conditional, standard, pro-
visional, temporary, emergency, or unlimited) used by the 
State to refer to different kinds of certificates. However, pri-
vate schools and public schools are not uniform in requiring 
a certificate for employment as an elementary or secondary 
school teacher, and a teacher’s certificate is not generally 
necessary for employment in institutions of higher education 
or other educational establishments. Therefore, a teacher who 
is not certified may be considered for exemption, provided 
that such individual is employed as a teacher by the employ-
ing school or school system. 
‘‘(d) The requirements of §541.300 and Subpart G (sal-
ary requirements) of this part do not apply to the teaching 
professionals described in this section. 
‘‘§ 541.304 Practice of law or medicine 
‘‘(a) The term ‘employee employed in a bona fide profes-
sional capacity’ in section 13(a)(1) of the Act also shall 
mean: 
‘‘(1) Any employee who is the holder of a valid li-
cense or certificate permitting the practice of law or 
medicine or any of their branches and is actually en-
gaged in the practice thereof; and
269 
•HRES 1516 EH 
‘‘(2) Any employee who is the holder of the req-
uisite academic degree for the general practice of medi-
cine and is engaged in an internship or resident program 
pursuant to the practice of the profession. 
‘‘(b) In the case of medicine, the exemption applies to 
physicians and other practitioners licensed and practicing in 
the field of medical science and healing or any of the medical 
specialties practiced by physicians or practitioners. The term 
‘physicians’ includes medical doctors including general practi-
tioners and specialists, osteopathic physicians (doctors of os-
teopathy), podiatrists, dentists (doctors of dental medicine), 
and optometrists (doctors of optometry or bachelors of 
science in optometry). 
‘‘(c) Employees engaged in internship or resident pro-
grams, whether or not licensed to practice prior to commence-
ment of the program, qualify as exempt professionals if they 
enter such internship or resident programs after the earning 
of the appropriate degree required for the general practice of 
their profession. 
‘‘(d) The requirements of §541.300 and subpart G (sal-
ary requirements) of this part do not apply to the employees 
described in this section.
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•HRES 1516 EH 
‘‘Subpart E—Computer Employees (§§541.400-541.402) 
‘‘§ 541.400 General rule for computer employees 
‘‘(a) Computer systems analysts, computer program-
mers, software engineers or other similarly skilled workers in 
the computer field are eligible for exemption as professionals 
under section 13(a)(1) of the Act and under section 
13(a)(17) of the Act. Because job titles vary widely and 
change quickly in the computer industry, job titles are not de-
terminative of the applicability of this exemption. 
‘‘(b) The section 13(a)(1)exemption applies to any com-
puter employee who is compensated on a salary or fee basis 
at a rate of not less than $684 per week ø(or $455 per week 
if employed in the Commonwealth of the Northern Mariana 
Islands, Guam, Puerto Rico, or the U.S. Virgin Islands by 
employers other than the Federal government, or $380 per 
week if employed in American Samoa by employers other 
than the Federal government)¿, exclusive of board, lodging, 
or other facilities. 
‘‘The section 13(a)(17) exemption applies to any com-
puter employee compensated on an hourly basis at a rate of 
not less than $27.63 an hour. In addition, under either sec-
tion 13(a)(1) or section 13(a)(17) of the Act, the exemptions 
apply only to computer employees whose primary duty con-
sists of: 
‘‘(1) The application of systems analysis techniques 
and procedures, including consulting with users, to de-
271 
•HRES 1516 EH 
termine hardware, software or system functional speci-
fications; 
‘‘(2) The design, development, documentation, anal-
ysis, creation, testing or modification of computer sys-
tems or programs, including prototypes, based on and 
related to user or system design specifications; 
‘‘(3) The design, documentation, testing, creation or 
modification of computer programs related to machine 
operating systems; or 
‘‘(4) A combination of the aforementioned duties, 
the performance of which requires the same level of 
skills. 
‘‘(c) The term ‘salary basis’ is defined at §541.602; ‘fee 
basis’ is defined at §541.605; ‘board, lodging or other facili-
ties’ is defined at §541.606; and ‘primary duty’ is defined at 
§541.700. 
‘‘§ 541.401 Computer manufacture and repair 
‘‘The exemption for employees in computer occupations 
does not include employees engaged in the manufacture or re-
pair of computer hardware and related equipment. Employees 
whose work is highly dependent upon, or facilitated by, the 
use of computers and computer software programs (e.g., engi-
neers, drafters and others skilled in computer-aided design 
software), but who are not primarily engaged in computer 
systems analysis and programming or other similarly skilled
272 
•HRES 1516 EH 
computer-related occupations identified in §541.400(b), are 
also not exempt computer professionals. 
‘‘§ 541.402 Executive and administrative computer em-
ployees 
‘‘Computer employees within the scope of this exemp-
tion, as well as those employees not within its scope, may also 
have executive and administrative duties which qualify the 
employees for exemption under subpart B or subpart C of 
this part. For example, systems analysts and computer pro-
grammers generally meet the duties requirements for the ad-
ministrative exemption if their primary duty includes work 
such as planning, scheduling, and coordinating activities re-
quired to develop systems to solve complex business, scientific 
or engineering problems of the employer or the employer’s 
customers<<, constituents or stakeholders>>. Similarly, a 
senior or lead computer programmer who manages the work 
of two or more other programmers in a customarily recog-
nized department or subdivision of the employer, and whose 
recommendations as to the hiring, firing, advancement, pro-
motion or other change of status of the other programmers 
are given particular weight, generally meets the duties re-
quirements for the executive exemption.
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•HRES 1516 EH 
‘‘Subpart F—<<Reserved>> 
ø‘‘Subpart F—Outside Sales Employees (§§541.500- 
541.504)¿ 
ø‘‘§ 541.500 General rule for outside sales employees 
ø‘‘(a) The term ‘employee employed in the capacity of 
outside salesman’ in section 13(a)(1) of the Act shall mean 
any employee:¿ 
ø‘‘(1) Whose primary duty is:¿ 
ø‘‘(i) making sales within the meaning of sec-
tion 3(k) of the Act, or¿ 
ø‘‘(ii) obtaining orders or contracts for services 
or for the use of facilities for which a consideration 
will be paid by the client or customer; and¿ 
ø‘‘(2) Who is customarily and regularly engaged 
away from the employer’s place or places of business in 
performing such primary duty.¿ 
ø‘‘(b) The term ‘primary duty’ is defined at §541.700. 
In determining the primary duty of an outside sales em-
ployee, work performed incidental to and in conjunction with 
the employee’s own outside sales or solicitations, including in-
cidental deliveries and collections, shall be regarded as ex-
empt outside sales work. Other work that furthers the em-
ployee’s sales efforts also shall be regarded as exempt work 
including, for example, writing sales reports, updating or re-
vising the employee’s sales or display catalogue, planning 
itineraries and attending sales conferences.¿
274 
•HRES 1516 EH 
ø‘‘(c) The requirements of subpart G (salary require-
ments) of this part do not apply to the outside sales employ-
ees described in this section.¿ 
ø‘‘§ 541.501 Making sales or obtaining orders 
ø‘‘(a) Section 541.500 requires that the employee be en-
gaged in:¿ 
ø‘‘(1) Making sales within the meaning of section 
3(k) of the Act, or¿ 
ø‘‘(2) Obtaining orders or contracts for services or 
for the use of facilities.¿ 
ø‘‘(b) Sales within the meaning of section 3(k) of the 
Act include the transfer of title to tangible property, and in 
certain cases, of tangible and valuable evidences of intangible 
property. Section 3(k) of the Act states that ‘sale’ or ‘sell’ in-
cludes any sale, exchange, contract to sell, consignment for 
sale, shipment for sale, or other disposition.¿ 
ø‘‘(c) Exempt outside sales work includes not only the 
sales of commodities, but also ‘obtaining orders or contracts 
for services or for the use of facilities for which a consider-
ation will be paid by the client or customer.’ Obtaining orders 
for ‘the use of facilities’ includes the selling of time on radio 
or television, the solicitation of advertising for newspapers 
and other periodicals, and the solicitation of freight for rail-
roads and other transportation agencies.¿
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ø‘‘(d) The word ‘services’ extends the outside sales ex-
emption to employees who sell or take orders for a service, 
which may be performed for the customer by someone other 
than the person taking the order.¿ 
ø‘‘§ 541.502 Away from employer’s place of business 
‘‘An outside sales employee must be customarily and 
regularly engaged ‘away from the employer’s place or places 
of business.’ The outside sales employee is an employee who 
makes sales at the customer’s place of business or, if selling 
door-to-door, at the customer’s home. Outside sales does not 
include sales made by mail, telephone or the Internet unless 
such contact is used merely as an adjunct to personal calls. 
Thus, any fixed site, whether home or office, used by a sales-
person as a headquarters or for telephonic solicitation of sales 
is considered one of the employer’s places of business, even 
though the employer is not in any formal sense the owner or 
tenant of the property. However, an outside sales employee 
does not lose the exemption by displaying samples in hotel 
sample rooms during trips from city to city; these sample 
rooms should not be considered as the employer’s places of 
business. Similarly, an outside sales employee does not lose 
the exemption by displaying the employer’s products at a 
trade show. If selling actually occurs, rather than just sales 
promotion, trade shows of short duration (i.e., one or two
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•HRES 1516 EH 
weeks) should not be considered as the employer’s place of 
business.¿ 
ø‘‘§ 541.503 Promotion work 
ø‘‘(a) Promotion work is one type of activity often per-
formed by persons who make sales, which may or may not 
be exempt outside sales work, depending upon the cir-
cumstances under which it is performed. Promotional work 
that is actually performed incidental to and in conjunction 
with an employee’s own outside sales or solicitations is ex-
empt work. On the other hand, promotional work that is inci-
dental to sales made, or to be made, by someone else is not 
exempt outside sales work. An employee who does not satisfy 
the requirements of this subpart may still qualify as an ex-
empt employee under other subparts of this rule.¿ 
ø‘‘(b) A manufacturer’s representative, for example, may 
perform various types of promotional activities such as put-
ting up displays and posters, removing damaged or spoiled 
stock from the merchant’s shelves or rearranging the mer-
chandise. Such an employee can be considered an exempt out-
side sales employee if the employee’s primary duty is making 
sales or contracts. Promotion activities directed toward con-
summation of the employee’s own sales are exempt. Pro-
motional activities designed to stimulate sales that will be 
made by someone else are not exempt outside sales work.¿
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ø‘‘(c) Another example is a company representative who 
visits chain stores, arranges the merchandise on shelves, re-
plenishes stock by replacing old with new merchandise, sets 
up displays and consults with the store manager when inven-
tory runs low, but does not obtain a commitment for addi-
tional purchases. The arrangement of merchandise on the 
shelves or the replenishing of stock is not exempt work unless 
it is incidental to and in conjunction with the employee’s own 
outside sales. Because the employee in this instance does not 
consummate the sale nor direct efforts toward the consumma-
tion of a sale, the work is not exempt outside sales work.¿ 
ø‘‘§ 541.504 Drivers who sell 
ø‘‘(a) Drivers who deliver products and also sell such 
products may qualify as exempt outside sales employees only 
if the employee has a primary duty of making sales. In deter-
mining the primary duty of drivers who sell, work performed 
incidental to and in conjunction with the employee’s own out-
side sales or solicitations, including loading, driving or deliv-
ering products, shall be regarded as exempt outside sales 
work.¿ 
ø‘‘(b) Several factors should be considered in deter-
mining if a driver has a primary duty of making sales, includ-
ing, but not limited to: a comparison of the driver’s duties 
with those of other employees engaged as truck drivers and 
as salespersons; possession of a selling or solicitor’s license
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•HRES 1516 EH 
when such license is required by law or ordinances; presence 
or absence of customary or contractual arrangements con-
cerning amounts of products to be delivered; description of 
the employee’s occupation in collective bargaining agree-
ments; the employer’s specifications as to qualifications for 
hiring; sales training; attendance at sales conferences; method 
of payment; and proportion of earnings directly attributable 
to sales.¿ 
ø‘‘(c) Drivers who may qualify as exempt outside sales 
employees include:¿ 
ø‘‘(1) A driver who provides the only sales contact 
between the employer and the customers visited, who 
calls on customers and takes orders for products, who 
delivers products from stock in the employee’s vehicle or 
procures and delivers the product to the customer on a 
later trip, and who receives compensation commensurate 
with the volume of products sold.¿ 
ø‘‘(2) A driver who obtains or solicits orders for the 
employer’s products from persons who have authority to 
commit the customer for purchases.¿ 
ø‘‘(3) A driver who calls on new prospects for cus-
tomers along the employee’s route and attempts to con-
vince them of the desirability of accepting regular deliv-
ery of goods.¿
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•HRES 1516 EH 
ø‘‘(4) A driver who calls on established customers 
along the route and persuades regular customers to ac-
cept delivery of increased amounts of goods or of new 
products, even though the initial sale or agreement for 
delivery was made by someone else.¿ 
ø‘‘(d) Drivers who generally would not qualify as exempt 
outside sales employees include:¿ 
ø‘‘(1) A route driver whose primary duty is to 
transport products sold by the employer through vending 
machines and to keep such machines stocked, in good 
operating condition, and in good locations.¿ 
ø‘‘(2) A driver who often calls on established cus-
tomers day after day or week after week, delivering a 
quantity of the employer’s products at each call when 
the sale was not significantly affected by solicitations of 
the customer by the delivering driver or the amount of 
the sale is determined by the volume of the customer’s 
sales since the previous delivery.¿ 
ø‘‘(3) A driver primarily engaged in making deliv-
eries to customers and performing activities intended to 
promote sales by customers (including placing point-of- 
sale and other advertising materials, price stamping 
commodities, arranging merchandise on shelves, in cool-
ers or in cabinets, rotating stock according to date, and 
cleaning and otherwise servicing display cases), unless
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•HRES 1516 EH 
such work is in furtherance of the driver’s own sales ef-
forts.¿ 
‘‘Subpart G—Salary Requirements (§§541.600-541.607) 
‘‘§ 541.600 Amount of salary required 
‘‘(a) To qualify as an exempt executive, administrative 
or professional employee under section 13(a)(1) of the Act, 
an employee must be compensated on a salary basis at a rate 
of not less than $684 per week ø(or $455 per week if em-
ployed in the Commonwealth of the Northern Mariana Is-
lands, Guam, Puerto Rico, or the U.S. Virgin Islands by em-
ployers other than the Federal Government, or $380 per 
week if employed in American Samoa by employers other 
than the Federal Government)¿, exclusive of board, lodging 
or other facilities. Administrative and professional employees 
may also be paid on a fee basis, as defined in §541.605. 
‘‘(b) The required amount of compensation per week 
may be translated into equivalent amounts for periods longer 
than one week. For example, the $684-per-week requirement 
will be met if the employee is compensated biweekly on a sal-
ary basis of not less than $1,368, semimonthly on a salary 
basis of not less than $1,482, or monthly on a salary basis 
of not less than $2,964. However, the shortest period of pay-
ment that will meet this compensation requirement is one 
week.
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•HRES 1516 EH 
‘‘(c) In the case of academic administrative employees, 
the compensation requirement also may be met by compensa-
tion on a salary basis at a rate at least equal to the entrance 
salary for teachers in the educational establishment by which 
the employee is employed, as provided in §541.204(a)(1). 
‘‘(d) In the case of computer employees, the compensa-
tion requirement also may be met by compensation on an 
hourly basis at a rate not less than $27.63 an hour, as pro-
vided in §541.400(b). 
‘‘(e) In the case of professional employees, the com-
pensation requirements in this section shall not apply to em-
ployees engaged as teachers (see §541.303); employees who 
hold a valid license or certificate permitting the practice of 
law or medicine or any of their branches and are actually en-
gaged in the practice thereof (see §541.304); or to employees 
who hold the requisite academic degree for the general prac-
tice of medicine and are engaged in an internship or resident 
program pursuant to the practice of the profession (see 
§541.304). In the case of medical occupations, the exception 
from the salary or fee requirement does not apply to phar-
macists, nurses, therapists, technologists, sanitarians, dieti-
tians, social workers, psychologists, psychometrists, or other 
professions which service the medical profession.
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•HRES 1516 EH 
‘‘§ 541.601 Highly compensated employees 
‘‘(a)(1) Beginning on øJanuary 1, 2020¿<<the effec-
tive date of these Substantive Regulations>>, an employee 
with total annual compensation of at least $107,432 is 
deemed exempt under section 13(a)(1) of the Act if the em-
ployee customarily and regularly performs any one or more 
of the exempt duties or responsibilities of an executive, ad-
ministrative or professional employee as identified in subparts 
B, C or D of this part. 
‘‘(2) Where the annual period covers periods both prior 
to and after øJanuary 1, 2020¿<<the effective date of these 
Substantive Regulations>>, the amount of total annual com-
pensation due will be determined on a proportional basis. 
‘‘(b)(1) ‘Total annual compensation’ must include at 
least $684 per week paid on a salary or fee basis as set forth 
in §541.602 and 541.605, except that §541.602(a)(3) shall 
not apply to highly compensated employees. Total annual 
compensation may also include commissions, nondiscretionary 
bonuses and other nondiscretionary compensation earned dur-
ing a 52-week period. Total annual compensation does not in-
clude board, lodging and other facilities as defined in 
§541.606, and does not include payments for medical insur-
ance, payments for life insurance, contributions to retirement 
plans and the cost of other fringe benefits. 
‘‘(2) If an employee’s total annual compensation does 
not total at least the amount specified in the applicable sub-
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•HRES 1516 EH 
section of paragraph (a) by the last pay period of the 52- 
week period, the employer may, during the last pay period or 
within one month after the end of the 52-week period, make 
one final payment sufficient to achieve the required level. For 
example, for a 52-week period øbeginning January 1, 2020¿, 
an employee may earn $90,000 in base salary, and the em-
ployer may anticipate øbased upon past sales¿ that the em-
ployee also will earn $17,432 in øcommissions¿<<other 
payments>>. However, ødue to poor sales¿ in the final 
quarter of the year, the employee actually only earns $12,000 
in øcommissions¿<<other payments>>. In this situation, 
the employer may within one month after the end of the year 
make a payment of at least $5,432 to the employee. Any such 
final payment made after the end of the 52-week period may 
count only toward the prior year’s total annual compensation 
and not toward the total annual compensation in the year it 
was paid. If the employer fails to make such a payment, the 
employee does not qualify as a highly compensated employee, 
but may still qualify as exempt under subparts B, C, or D 
of this part. 
‘‘(3) An employee who does not work a full year for the 
employer, either because the employee is newly hired after the 
beginning of the year or ends the employment before the end 
of the year, may qualify for exemption under this section if 
the employee receives a pro rata portion of the minimum
284 
•HRES 1516 EH 
amount established in paragraph (a) of this section, based 
upon the number of weeks that the employee will be or has 
been employed. An employer may make one final payment as 
under paragraph (b)(2) of this section within one month after 
the end of employment. 
‘‘(4) The employer may utilize any 52-week period as the 
year, such as a calendar year, a fiscal year, or an anniversary 
of hire year. If the employer does not identify some other 
year period in advance, the calendar year will apply. 
‘‘(c) A high level of compensation is a strong indicator 
of an employee’s exempt status, thus eliminating the need for 
a detailed analysis of the employee’s job duties. Thus, a high-
ly compensated employee will qualify for exemption if the em-
ployee customarily and regularly performs any one or more 
of the exempt duties or responsibilities of an executive, ad-
ministrative or professional employee identified in subparts 
B, C or D of this part. An employee may qualify as a highly 
compensated executive employee, for example, if the employee 
customarily and regularly directs the work of two or more 
other employees, even though the employee does not meet all 
of the other requirements for the executive exemption under 
§541.100. 
‘‘(d) This section applies only to employees whose pri-
mary duty includes performing office or non-manual work. 
Thus, for example, non-management production-line workers
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•HRES 1516 EH 
and non-management employees in maintenance, construction 
and similar occupations such as carpenters, electricians, me-
chanics, plumbers, iron workers, craftsmen, operating engi-
neers, longshoremen, construction workers, laborers and other 
employees who perform work involving repetitive operations 
with their hands, physical skill and energy are not exempt 
under this section no matter how highly paid they might be. 
‘‘§ 541.602 Salary basis 
‘‘(a) General rule. An employee will be considered to be 
paid on a ‘salary basis’ within the meaning of this part if the 
employee regularly receives each pay period on a weekly, or 
less frequent basis, a predetermined amount constituting all 
or part of the employee’s compensation, which amount is not 
subject to reduction because of variations in the quality or 
quantity of the work performed. 
‘‘(1) Subject to the exceptions provided in para-
graph (b) of this section, an exempt employee must re-
ceive the full salary for any week in which the employee 
performs any work without regard to the number of days 
or hours worked. Exempt employees need not be paid for 
any workweek in which they perform no work. 
‘‘(2) An employee is not paid on a salary basis if 
deductions from the employee’s predetermined com-
pensation are made for absences occasioned by the em-
ployer or by the operating requirements of the øbusi-
286 
•HRES 1516 EH 
ness¿ <<employing office>>. If the employee is ready, 
willing and able to work, deductions may not be made 
for time when work is not available. 
‘‘(3) Up to ten percent of the salary amount re-
quired by §541.600(a) may be satisfied by the payment 
of nondiscretionary bonuses, incentives and commissions, 
that are paid annually or more frequently. The employer 
may utilize any 52-week period as the year, such as a 
calendar year, a fiscal year, or an anniversary of hire 
year. If the employer does not identify some other year 
period in advance, the calendar year will apply. This pro-
vision does not apply to highly compensated employees 
under §541.601. 
‘‘(i) If by the last pay period of the 52-week 
period the sum of the employee’s weekly salary plus 
nondiscretionary bonus, incentive, and commission 
payments received is less than 52 times the weekly 
salary amount required by §541.600(a), the em-
ployer may make one final payment sufficient to 
achieve the required level no later than the next pay 
period after the end of the year. Any such final pay-
ment made after the end of the 52-week period may 
count only toward the prior year’s salary amount 
and not toward the salary amount in the year it 
was paid.
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•HRES 1516 EH 
‘‘(ii) An employee who does not work a full 52- 
week period for the employer, either because the 
employee is newly hired after the beginning of this 
period or ends the employment before the end of 
this period, may qualify for exemption if the em-
ployee receives a pro rata portion of the minimum 
amount established in paragraph (a)(3) of this sec-
tion, based upon the number of weeks that the em-
ployee will be or has been employed. An employer 
may make one final payment as under paragraph 
(a)(3)(i) of this section within one pay period after 
the end of employment. 
‘‘(b) Exceptions. The prohibition against deductions 
from pay in the salary basis requirement is subject to the fol-
lowing exceptions: 
‘‘(1) Deductions from pay may be made when an 
exempt employee is absent from work for one or more 
full days for personal reasons, other than sickness or 
disability. Thus, if an employee is absent for two full 
days to handle personal affairs, the employee’s salaried 
status will not be affected if deductions are made from 
the salary for two full-day absences. However, if an ex-
empt employee is absent for one and a half days for per-
sonal reasons, the employer can deduct only for the one 
full-day absence.
288 
•HRES 1516 EH 
‘‘(2) Deductions from pay may be made for ab-
sences of one or more full days occasioned by sickness 
or disability (including work-related accidents) if the de-
duction is made in accordance with a bona fide plan, pol-
icy or practice of providing compensation for loss of sal-
ary occasioned by such sickness or disability. The em-
ployer is not required to pay any portion of the employ-
ee’s salary for full-day absences for which the employee 
receives compensation under the plan, policy or practice. 
Deductions for such full-day absences also may be made 
before the employee has qualified under the plan, policy 
or practice, and after the employee has exhausted the 
leave allowance thereunder. Thus, for example, if an em-
ployer maintains a short-term disability insurance plan 
providing salary replacement for 12 weeks starting on 
the fourth day of absence, the employer may make de-
ductions from pay for the three days of absence before 
the employee qualifies for benefits under the plan; for 
the twelve weeks in which the employee receives salary 
replacement benefits under the plan; and for absences 
after the employee has exhausted the 12 weeks of salary 
replacement benefits. øSimilarly, an employer may make 
deductions from pay for absences of one or more full 
days if salary replacement benefits are provided under a
289 
•HRES 1516 EH 
State disability insurance law or under a State workers’ 
compensation law.¿ 
‘‘(3) While an employer cannot make deductions 
from pay for absences of an exempt employee occasioned 
by jury duty, attendance as a witness or temporary mili-
tary leave, the employer can offset any amounts received 
by an employee as jury fees, witness fees or military pay 
for a particular week against the salary due for that par-
ticular week without loss of the exemption. 
‘‘(4) Deductions from pay of exempt employees may 
be made for penalties imposed in good faith for infrac-
tions of safety rules of major significance. Safety rules 
of major significance include those relating to the pre-
vention of serious danger in the workplace or to other 
employees, such as rules prohibiting smoking in explosive 
plants, oil refineries and coal mines. 
‘‘(5) Deductions from pay of exempt employees may 
be made for unpaid disciplinary suspensions of one or 
more full days imposed in good faith for infractions of 
workplace conduct rules. Such suspensions must be im-
posed pursuant to a written policy applicable to all em-
ployees. Thus, for example, an employer may suspend an 
exempt employee without pay for three days for violating 
a generally applicable written policy prohibiting sexual 
harassment. Similarly, an employer may suspend an ex-
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•HRES 1516 EH 
empt employee without pay for twelve days for violating 
a generally applicable written policy prohibiting work-
place violence. 
‘‘(6) An employer is not required to pay the full sal-
ary in the initial or terminal week of employment. Rath-
er, an employer may pay a proportionate part of an em-
ployee’s full salary for the time actually worked in the 
first and last week of employment. In such weeks, the 
payment of an hourly or daily equivalent of the employ-
ee’s full salary for the time actually worked will meet the 
requirement. However, employees are not paid on a sal-
ary basis within the meaning of these regulations if they 
are employed occasionally for a few days, and the em-
ployer pays them a proportionate part of the weekly sal-
ary when so employed. 
‘‘(7) An employer is not required to pay the full sal-
ary for weeks in which an exempt employee takes unpaid 
leave under the Family and Medical Leave Act. Rather, 
when an exempt employee takes unpaid leave under the 
Family and Medical Leave Act, an employer may pay a 
proportionate part of the full salary for time actually 
worked. For example, if an employee who normally 
works 40 hours per week uses four hours of unpaid leave 
under the Family and Medical Leave Act, the employer
291 
•HRES 1516 EH 
could deduct 10 percent of the employee’s normal salary 
that week. 
‘‘(c) When calculating the amount of a deduction from 
pay allowed under paragraph (b) of this section, the employer 
may use the hourly or daily equivalent of the employee’s full 
weekly salary or any other amount proportional to the time 
actually missed by the employee. A deduction from pay as a 
penalty for violations of major safety rules under paragraph 
(b)(4) of this section may be made in any amount. 
‘‘§ 541.603 Effect of improper deductions from salary 
‘‘(a) An employer who makes improper deductions from 
salary shall lose the exemption if the facts demonstrate that 
the employer did not intend to pay employees on a salary 
basis. An actual practice of making improper deductions dem-
onstrates that the employer did not intend to pay employees 
on a salary basis. The factors to consider when determining 
whether an employer has an actual practice of making im-
proper deductions include, but are not limited to: the number 
of improper deductions, particularly as compared to the num-
ber of employee infractions warranting discipline; the time pe-
riod during which the employer made improper deductions; 
the number and geographic location of employees whose sal-
ary was improperly reduced; the number and geographic loca-
tion of managers responsible for taking the improper deduc-
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•HRES 1516 EH 
tions; and whether the employer has a clearly communicated 
policy permitting or prohibiting improper deductions. 
‘‘(b) If the facts demonstrate that the employer has an 
actual practice of making improper deductions, the exemption 
is lost during the time period in which the improper deduc-
tions were made for employees in the same job classification 
working for the same managers responsible for the actual im-
proper deductions. Employees in different job classifications 
or who work for different managers do not lose their status 
as exempt employees. Thus, for example, if a manager øat a 
company facility¿ routinely docks the pay of engineers at that 
facility for partial-day personal absences, then all engineers 
at that facility whose pay could have been improperly docked 
by the manager would lose the exemption; engineers at other 
facilities or working for other managers, however, would re-
main exempt. 
‘‘(c) Improper deductions that are either isolated or in-
advertent will not result in loss of the exemption for any em-
ployees subject to such improper deductions, if the employer 
reimburses the employees for such improper deductions. 
‘‘(d) If an employer has a clearly communicated policy 
that prohibits the improper pay deductions specified in 
§541.602(a) and includes a complaint mechanism, reimburses 
employees for any improper deductions and makes a good 
faith commitment to comply in the future, such employer will
293 
•HRES 1516 EH 
not lose the exemption for any employees unless the employer 
willfully violates the policy by continuing to make improper 
deductions after receiving employee complaints. If an em-
ployer fails to reimburse employees for any improper deduc-
tions or continues to make improper deductions after receiv-
ing employee complaints, the exemption is lost during the 
time period in which the improper deductions were made for 
employees in the same job classification working for the same 
managers responsible for the actual improper deductions. The 
best evidence of a clearly communicated policy is a written 
policy that was distributed to employees prior to the improper 
pay deductions by, for example, providing a copy of the policy 
to employees at the time of hire, publishing the policy in an 
employee handbook or publishing the policy on the employer’s 
Intranet. 
‘‘(e) This section shall not be construed in an unduly 
technical manner so as to defeat the exemption. 
‘‘§ 541.604 Minimum guarantee plus extras 
‘‘(a) An employer may provide an exempt employee with 
additional compensation without losing the exemption or vio-
lating the salary basis requirement, if the employment ar-
rangement also includes a guarantee of at least the minimum 
weekly-required amount paid on a salary basis. Thus, for ex-
ample, an exempt employee guaranteed at least $684 each 
week paid on a salary basis may also receive additional com-
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•HRES 1516 EH 
pensation of a one percent commission on sales. An exempt 
employee also may receive a percentage of the sales or profits 
of the employer if the employment arrangement also includes 
a guarantee of at least $684 each week paid on a salary 
basis. Similarly, the exemption is not lost if an exempt em-
ployee who is guaranteed at least $684 each week paid on a 
salary basis also receives additional compensation based on 
hours worked for work beyond the normal workweek. Such 
additional compensation may be paid on any basis (e.g., flat 
sum, bonus payment, straight-time hourly amount, time and 
one-half or any other basis), and may include paid time off. 
‘‘(b) An exempt employee’s earnings may be computed 
on an hourly, a daily or a shift basis, without losing the ex-
emption or violating the salary basis requirement, if the em-
ployment arrangement also includes a guarantee of at least 
the minimum weekly required amount paid on a salary basis 
regardless of the number of hours, days or shifts worked, and 
a reasonable relationship exists between the guaranteed 
amount and the amount actually earned. The reasonable rela-
tionship test will be met if the weekly guarantee is roughly 
equivalent to the employee’s usual earnings at the assigned 
hourly, daily or shift rate for the employee’s normal sched-
uled workweek. Thus, for example, an exempt employee guar-
anteed compensation of at least $725 for any week in which 
the employee performs any work, and who normally works
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•HRES 1516 EH 
four or five shifts each week, may be paid $210 per shift 
without violating the $684-per-week salary basis requirement. 
The reasonable relationship requirement applies only if the 
employee’s pay is computed on an hourly, daily or shift basis. 
It does not apply, for example, to an exempt store manager 
paid a guaranteed salary per week that exceeds the current 
salary level who also receives a commission of one-half per-
cent of all sales in the store or five percent of the store’s 
profits, which in some weeks may total as much as, or even 
more than, the guaranteed salary. 
‘‘§ 541.605 Fee basis 
‘‘(a) Administrative and professional employees may be 
paid on a fee basis, rather than on a salary basis. An em-
ployee will be considered to be paid on a ‘fee basis’ within 
the meaning of these regulations if the employee is paid an 
agreed sum for a single job regardless of the time required 
for its completion. These payments resemble piecework pay-
ments with the important distinction that generally a ‘fee’ is 
paid for the kind of job that is unique rather than for a se-
ries of jobs repeated an indefinite number of times and for 
which payment on an identical basis is made over and over 
again. Payments based on the number of hours or days 
worked and not on the accomplishment of a given single task 
are not considered payments on a fee basis.
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•HRES 1516 EH 
‘‘(b) To determine whether the fee payment meets the 
minimum amount of salary required for exemption under 
these regulations, the amount paid to the employee will be 
tested by determining the time worked on the job and wheth-
er the fee payment is at a rate that would amount to at least 
the minimum salary per week, as required by §541.600(a) 
and 541.602(a), if the employee worked 40 hours. Thus, an 
artist paid $350 for a picture that took 20 hours to complete 
meets the $684 minimum salary requirement for exemption 
since earnings at this rate would yield the artist $700 if 40 
hours were worked. 
‘‘§ 541.606 Board, lodging or other facilities 
‘‘(a) To qualify for exemption under section 13(a)(1) of 
the Act, an employee must earn the minimum salary amount 
set forth in §541.600, ‘exclusive of board, lodging or other fa-
cilities.’ The phrase ‘exclusive of board, lodging or other fa-
cilities’ means ‘free and clear’ or independent of any claimed 
credit for non-cash items of value that an employer may pro-
vide to an employee. Thus, the costs incurred by an employer 
to provide an employee with board, lodging or other facilities 
may not count towards the minimum salary amount required 
for exemption under this part 541. Such separate trans-
actions are not prohibited between employers and their ex-
empt employees, but the costs to employers associated with 
such transactions may not be considered when determining if
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•HRES 1516 EH 
an employee has received the full required minimum salary 
payment. 
‘‘(b) Regulations defining what constitutes ‘board, lodg-
ing, or other facilities’ are contained in 29 CFR part 531. As 
described in 29 CFR 531.32, the term ‘other facilities’ refers 
to items similar to board and lodging, such as meals fur-
nished at company restaurants or cafeterias or by hospitals, 
hotels, or restaurants to their employees; meals, dormitory 
rooms, and tuition furnished by a college to its student em-
ployees; merchandise furnished at company stores or com-
missaries, including articles of food, clothing, and household 
effects; housing furnished for dwelling purposes; and trans-
portation furnished to employees for ordinary commuting be-
tween their homes and work. 
ø‘‘§ 541.607 Reserved by 85 FR 34970 Effective: June 8, 
2020 <<541.607 - Reserved.>> 
‘‘Subpart H—Definitions and Miscellaneous Provisions 
(§§541.700-541.710) 
‘‘§ 541.700 Primary duty 
‘‘(a) To qualify for exemption under this part, an em-
ployee’s ‘primary duty’ must be the performance of exempt 
work. The term ‘primary duty’ means the principal, main, 
major or most important duty that the employee performs. 
Determination of an employee’s primary duty must be based 
on all the facts in a particular case, with the major emphasis
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on the character of the employee’s job as a whole. Factors 
to consider when determining the primary duty of an em-
ployee include, but are not limited to, the relative importance 
of the exempt duties as compared with other types of duties; 
the amount of time spent performing exempt work; the em-
ployee’s relative freedom from direct supervision; and the re-
lationship between the employee’s salary and the wages paid 
to other employees for the kind of nonexempt work performed 
by the employee. 
‘‘(b) The amount of time spent performing exempt work 
can be a useful guide in determining whether exempt work 
is the primary duty of an employee. Thus, employees who 
spend more than 50 percent of their time performing exempt 
work will generally satisfy the primary duty requirement. 
Time alone, however, is not the sole test, and nothing in this 
section requires that exempt employees spend more than 50 
percent of their time performing exempt work. Employees 
who do not spend more than 50 percent of their time per-
forming exempt duties may nonetheless meet the primary 
duty requirement if the other factors support such a conclu-
sion. 
‘‘(c) Thus, for example, assistant managers in a retail 
establishment who perform exempt executive work such as su-
pervising and directing the work of other employees, ordering 
merchandise, managing the budget and authorizing payment
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of bills may have management as their primary duty even if 
the assistant managers spend more than 50 percent of the 
time performing nonexempt work such as running the cash 
register. However, if such assistant managers are closely su-
pervised and earn little more than the nonexempt employees, 
the assistant managers generally would not satisfy the pri-
mary duty requirement. 
‘‘§ 541.701 Customarily and regularly 
‘‘The phrase ‘customarily and regularly’ means a fre-
quency that must be greater than occasional but which, of 
course, may be less than constant. Tasks or work performed 
‘customarily and regularly’ includes work normally and recur-
rently performed every workweek; it does not include isolated 
or one-time tasks. 
‘‘§ 541.702 Exempt and nonexempt work 
‘‘The term ‘exempt work’ means all work described in 
§541.100, 541.101, 541.200, 541.300, 541.301, 541.302, 
541.303, 541.304, <<and>> 541.400 øand 541.500¿, and 
the activities directly and closely related to such work. All 
other work is considered ‘nonexempt.’ 
‘‘§ 541.703 Directly and closely related 
‘‘(a) Work that is ‘directly and closely related’ to the 
performance of exempt work is also considered exempt work. 
The phrase ‘directly and closely related’ means tasks that are 
related to exempt duties and that contribute to or facilitate
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performance of exempt work. Thus, ‘directly and closely re-
lated’ work may include physical tasks and menial tasks that 
arise out of exempt duties, and the routine work without 
which the exempt employee’s exempt work cannot be per-
formed properly. Work ‘directly and closely related’ to the 
performance of exempt duties may also include record-
keeping; monitoring and adjusting machinery; taking notes; 
using the computer to create documents or presentations; 
opening the mail for the purpose of reading it and making 
decisions; and using a photocopier or fax machine. Work is 
not ‘directly and closely related’ if the work is remotely re-
lated or completely unrelated to exempt duties. 
‘‘(b) The following examples further illustrate the type 
of work that is and is not normally considered as directly and 
closely related to exempt work: 
‘‘(1) Keeping time, production or sales records for 
subordinates is work directly and closely related to an 
exempt executive’s function of managing a department 
and supervising employees. 
‘‘(2) The distribution of materials, merchandise or 
supplies to maintain control of the flow of and expendi-
tures for such items is directly and closely related to the 
performance of exempt duties. 
‘‘(3) A supervisor who spot checks and examines 
the work of subordinates to determine whether they are
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performing their duties properly, and whether the prod-
uct is satisfactory, is performing work which is directly 
and closely related to managerial and supervisory func-
tions, so long as the checking is distinguishable from the 
work ordinarily performed by a nonexempt inspector. 
‘‘(4) A supervisor who sets up a machine may be 
engaged in exempt work, depending upon the nature of 
the industry and the operation. In some cases the setup 
work, or adjustment of the machine for a particular job, 
is typically performed by the same employees who oper-
ate the machine. Such setup work is part of the produc-
tion operation and is not exempt. In other cases, the set-
ting up of the work is a highly skilled operation which 
the ordinary production worker or machine tender typi-
cally does not perform. In large plants, non-supervisors 
may perform such work. However, particularly in small 
plants, such work may be a regular duty of the executive 
and is directly and closely related to the executive’s re-
sponsibility for the work performance of subordinates 
and for the adequacy of the final product. Under such 
circumstances, it is exempt work. 
‘‘(5) A department manager in a retail or service 
establishment who walks about the sales floor observing 
the work of sales personnel under the employee’s super-
vision to determine the effectiveness of their sales tech-