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as provided in paragraphs (f)(2) and (f)(3) of this section, 
and provided such retroactive substitution does not violate 
any applicable law or regulation. 
‘‘(2) An employee may retroactively substitute 
paid leave for leave without pay as permitted in 
paragraph (c) of this section, if the substitution is 
made in conjunction with the retroactive granting of 
leave without pay. 
‘‘(3) An employee may retroactively substitute 
transferred (donated) annual leave for leave without 
pay granted under this subpart. 
‘‘(g) Pay during leave. The pay an employee receives 
when using paid parental leave shall be the same pay the 
employee would receive if the employee were using annual 
leave. 
‘‘(h) Treatment of unused leave. If an employee has 
any unused balance of paid parental leave that remains 
at the end of the 12-month period following the birth or 
placement involved, the entitlement to the unused leave 
elapses at that time. No payment may be made for unused 
paid parental leave that has expired. Paid parental leave 
may not be considered annual leave for purposes of mak-
ing a lump-sum payment for annual leave or for any other 
purpose. The forfeiture of any unused balance of paid pa-
rental leave does not impact an employee’s ability to use 
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unpaid FMLA leave for other qualifying reasons, if eligible 
pursuant to 825.110, 825.112 and 825.200. 
‘‘(i) Employing office responsibilities. An employing 
office that has employees covered by this subpart is re-
sponsible for the proper administration of 825.208, includ-
ing the responsibility of informing employees of their enti-
tlements and obligations. 
‘‘(j) Library of Congress. The OCWR will defer to 
supplemental regulations on paid parental leave issued by 
the Library of Congress pursuant to the authority in sec-
tion 107 of the Family and Medical Leave Act of 1993, 
provided those supplemental regulations are consistent 
with the regulations in this subpart. 
‘‘(k) Work obligation. Paid parental leave under this 
subpart shall apply without regard to: 
‘‘(1) the limitations in subparagraphs (E), (F), 
or (G) of section 6382(d)(2) of title 5, United States 
Code (requiring employees of executive branch agen-
cies to agree in writing to work for the executive 
branch agency for at least 12 months after returning 
from leave); or 
‘‘(2) the limitations in 825.213 (permitting em-
ploying offices to recover an amount equal to the 
total amount of government contributions for main-
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•HRES 1516 IH 
taining such employee’s health coverage if the em-
ployee fails to return from leave). 
‘‘(l) Cases of employee incapacitation. (1) If an em-
ploying office determines that an otherwise eligible em-
ployee who could have made an election for a past leave 
period to substitute paid parental leave (as provided in 
paragraph (c) of this section) was physically or mentally 
incapable of doing so during that past period, the em-
ployee may, within 5 workdays of the employee’s return 
to duty status, make an election to substitute paid paren-
tal leave for applicable unpaid FMLA leave under para-
graph (c) of this section on a retroactive basis, provided 
such retroactive substitution does not violate any applica-
ble law or regulation. Such a retroactive election shall be 
effective on the date that such an election would have been 
effective if the employee had not been incapacitated at the 
time. 
‘‘(2) If an employing office learns that an oth-
erwise eligible employee is physically or mentally in-
capable of making an election to substitute paid pa-
rental leave (as provided in 825.207), the employing 
office must, upon the request of a personal rep-
resentative of the employee, provide conditional ap-
proval of substitution of paid parental leave for ap-
plicable unpaid FMLA leave on a prospective basis. 
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The conditional approval is based on the presump-
tion that the employee would have elected to sub-
stitute paid parental leave for the applicable unpaid 
FMLA leave. An employee may, within 5 workdays 
of the employee’s return to duty status, request to 
substitute other leave for the paid parental leave. 
‘‘(m) Cases of multiple children born or placed in the 
same time period. (1) If an employee has multiple children 
born or placed on the same day, the multiple-child birth/ 
placement event is considered to be a single event that 
triggers a single entitlement of up to 12 weeks of paid 
parental leave under paragraph (d) of this section. 
‘‘(2) If an employee has one or more children 
born or placed during the 12-month period following 
the date of an earlier birth or placement of a child 
of the employee, the provisions of this subpart shall 
be independently administered for each birth or 
placement event. 
‘‘§ 825.209 Maintenance of employee benefits 
‘‘(a) During any FMLA leave, an employing office 
must maintain the employee’s coverage under the Federal 
Employees Health Benefits Program or any group health 
plan (as defined in the Internal Revenue Code of 1986 
at 26 U.S.C. 5000(b)(1)) on the same conditions as cov-
erage would have been provided if the employee had been 
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continuously employed during the entire leave period. All 
employing offices are subject to the requirements of the 
FMLA, as made applicable by the CAA, to maintain 
health coverage. The definition of group health plan is set 
forth in 825.102. For purposes of FMLA, the term group 
health plan shall not include an insurance program pro-
viding health coverage under which employees purchase in-
dividual policies from insurers provided that: 
‘‘(1) No contributions are made by the employ-
ing office; 
‘‘(2) Participation in the program is completely 
voluntary for employees; 
‘‘(3) The sole functions of the employing office 
with respect to the program are, without endorsing 
the program, to permit the insurer to publicize the 
program to employees, to collect premiums through 
payroll deductions and to remit them to the insurer; 
‘‘(4) The employing office receives no consider-
ation in the form of cash or otherwise in connection 
with the program, other than reasonable compensa-
tion, excluding any profit, for administrative services 
actually rendered in connection with payroll deduc-
tion; and 
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‘‘(5) The premium charged with respect to such 
coverage does not increase in the event the employ-
ment relationship terminates. 
‘‘(b) The same group health plan benefits provided 
to an employee prior to taking FMLA leave must be main-
tained during the FMLA leave. For example, if family 
member coverage is provided to an employee, family mem-
ber coverage must be maintained during the FMLA leave. 
Similarly, benefit coverage during FMLA leave for medical 
care, surgical care, hospital care, dental care, eye care, 
mental health counseling, substance abuse treatment, etc., 
must be maintained during leave if provided in an employ-
ing office’s group health plan, including a supplement to 
a group health plan, whether or not provided through a 
flexible spending account or other component of a cafe-
teria plan. 
‘‘(c) If an employing office provides a new health plan 
or benefits or changes health benefits or plans while an 
employee is on FMLA leave, the employee is entitled to 
the new or changed plan/benefits to the same extent as 
if the employee were not on leave. For example, if an em-
ploying office changes a group health plan so that dental 
care becomes covered under the plan, an employee on 
FMLA leave must be given the same opportunity as other 
employees to receive (or obtain) the dental care coverage. 
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Any other plan changes (e.g., in coverage, premiums, 
deductibles, etc.) which apply to all employees of the work-
force would also apply to an employee on FMLA leave. 
‘‘(d) Notice of any opportunity to change plans or 
benefits must also be given to an employee on FMLA 
leave. If the group health plan permits an employee to 
change from single to family coverage upon the birth of 
a child or otherwise add new family members, such a 
change in benefits must be made available while an em-
ployee is on FMLA leave. If the employee requests the 
changed coverage it must be provided by the employing 
office. 
‘‘(e) An employee may choose not to retain group 
health plan coverage during FMLA leave. However, when 
an employee returns from leave, the employee is entitled 
to be reinstated on the same terms as prior to taking the 
leave, including family or dependent coverages, without 
any qualifying period, physical examination, exclusion of 
pre-existing conditions, etc. See 825.212(c). 
‘‘(f) Except as required by the Consolidated Omnibus 
Budget Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 
8905a, whichever is applicable, and for key employees (as 
discussed below), an employing office’s obligation to main-
tain health benefits during leave (and to restore the em-
ployee to the same or equivalent employment) under 
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•HRES 1516 IH 
FMLA ceases if and when the employment relationship 
would have terminated if the employee had not taken 
FMLA leave (e.g., if the employee’s position is eliminated 
as part of a nondiscriminatory reduction in force and the 
employee would not have been transferred to another posi-
tion); an employee informs the employing office of his or 
her intent not to return from leave (including before start-
ing the leave if the employing office is so informed before 
the leave starts); or the employee fails to return from leave 
or continues on leave after exhausting his or her FMLA 
leave entitlement in the 12-month period. 
‘‘(g) If a key employee (See 825.218) does not return 
from leave when notified by the employing office that sub-
stantial or grievous economic injury will result from his 
or her reinstatement, the employee’s entitlement to group 
health plan benefits continues unless and until the em-
ployee advises the employing office that the employee does 
not desire restoration to employment at the end of the 
leave period, or the FMLA leave entitlement is exhausted, 
or reinstatement is actually denied. 
‘‘(h) An employee’s entitlement to benefits other than 
group health benefits during a period of FMLA leave (e.g., 
holiday pay) is to be determined by the employing office’s 
established policy for providing such benefits when the em-
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•HRES 1516 IH 
ployee is on other forms of leave (paid or unpaid, as appro-
priate). 
‘‘§ 825.210 Employee payment of group health benefit 
premiums 
‘‘(a) Group health plan benefits must be maintained 
on the same basis as coverage would have been provided 
if the employee had been continuously employed during 
the FMLA leave period. Therefore, any share of group 
health plan premiums which had been paid by the em-
ployee prior to FMLA leave must continue to be paid by 
the employee during the FMLA leave period. If premiums 
are raised or lowered, the employee would be required to 
pay the new premium rates. Maintenance of health insur-
ance policies which are not a part of the employing office’s 
group health plan, as described in 825.209(a), are the sole 
responsibility of the employee. The employee and the in-
surer should make necessary arrangements for payment 
of premiums during periods of unpaid FMLA leave. 
‘‘(b) If the FMLA leave is substituted paid leave, the 
employee’s share of premiums must be paid by the method 
normally used during any paid leave, presumably as a pay-
roll deduction. 
‘‘(c) If FMLA leave is unpaid, the employing office 
has a number of options for obtaining payment from the 
employee. The employing office may require that payment 
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•HRES 1516 IH 
be made to the employing office or to the insurance car-
rier, but no additional charge may be added to the employ-
ee’s premium payment for administrative expenses. The 
employing office may require employees to pay their share 
of premium payments in any of the following ways: 
‘‘(1) Payment would be due at the same time 
as it would be made if by payroll deduction; 
‘‘(2) Payment would be due on the same sched-
ule as payments are made under COBRA or 5 
U.S.C. 8905a, whichever is applicable; 
‘‘(3) Payment would be prepaid pursuant to a 
cafeteria plan at the employee’s option; 
‘‘(4) The employing office’s existing rules for 
payment by employees on leave without pay would be 
followed, provided that such rules do not require 
prepayment (i.e., prior to the commencement of the 
leave) of the premiums that will become due during 
a period of unpaid FMLA leave or payment of high-
er premiums than if the employee had continued to 
work instead of taking leave; or 
‘‘(5) Another system voluntarily agreed to be-
tween the employing office and the employee, which 
may include prepayment of premiums (e.g., through 
increased payroll deductions when the need for the 
FMLA leave is foreseeable). 
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‘‘(d) The employing office must provide the employee 
with advance written notice of the terms and conditions 
under which these payments must be made. See 
825.300(c). 
‘‘(e) An employing office may not require more of an 
employee using unpaid FMLA leave than the employing 
office requires of other employees on leave without pay. 
‘‘(f) An employee who is receiving payments as a re-
sult of a workers’ compensation injury must make ar-
rangements with the employing office for payment of 
group health plan benefits when simultaneously taking 
FMLA leave. See 825.207(e). 
‘‘§ 825.211 Maintenance of benefits under multi-em-
ployer health plans 
‘‘(a) A multi-employer health plan is a plan to which 
more than one employing office is required to contribute, 
and which is maintained pursuant to one or more collective 
bargaining agreements between employee organization(s) 
and the employing offices. 
‘‘(b) An employing office under a multi-employer plan 
must continue to make contributions on behalf of an em-
ployee using FMLA leave as though the employee had 
been continuously employed, unless the plan contains an 
explicit FMLA provision for maintaining coverage such as 
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through pooled contributions by all employing offices party 
to the plan. 
‘‘(c) During the duration of an employee’s FMLA 
leave, coverage by the group health plan, and benefits pro-
vided pursuant to the plan, must be maintained at the 
level of coverage and benefits which were applicable to the 
employee at the time FMLA leave commenced. 
‘‘(d) An employee using FMLA leave cannot be re-
quired to use banked hours or pay a greater premium than 
the employee would have been required to pay if the em-
ployee had been continuously employed. 
‘‘(e) As provided in 825.209(f) of this part, group 
health plan coverage must be maintained for an employee 
on FMLA leave until: 
‘‘(1) The employee’s FMLA leave entitlement is 
exhausted; 
‘‘(2) The employing office can show that the 
employee would have been laid off and the employ-
ment relationship terminated; or 
‘‘(3) The employee provides unequivocal notice 
of intent not to return to work. 
‘‘§ 825.212 Employee failure to pay health plan pre-
mium payments 
‘‘(a)(1) In the absence of an established employing 
office policy providing a longer grace period, an employing 
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•HRES 1516 IH 
office’s obligations to maintain health insurance coverage 
cease under FMLA if an employee’s premium payment is 
more than 30 days late. In order to drop the coverage for 
an employee whose premium payment is late, the employ-
ing office must provide written notice to the employee that 
the payment has not been received. Such notice must be 
mailed to the employee at least 15 days before coverage 
is to cease, advising that coverage will be dropped on a 
specified date at least 15 days after the date of the letter 
unless the payment has been received by that date. If the 
employing office has established policies regarding other 
forms of unpaid leave that provide for the employing office 
to cease coverage retroactively to the date the unpaid pre-
mium payment was due, the employing office may drop 
the employee from coverage retroactively in accordance 
with that policy, provided the 15-day notice was given. In 
the absence of such a policy, coverage for the employee 
may be terminated at the end of the 30-day grace period, 
where the required 15-day notice has been provided. 
‘‘(2) An employing office has no obligation re-
garding the maintenance of a health insurance policy 
which is not a group health plan. See 825.209(a). 
‘‘(3) All other obligations of an employing office 
under FMLA would continue; for example, the em-
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•HRES 1516 IH 
ploying office continues to have an obligation to re-
instate an employee upon return from leave. 
‘‘(b) The employing office may recover the employee’s 
share of any premium payments missed by the employee 
for any FMLA leave period during which the employing 
office maintains health coverage by paying the employee’s 
share after the premium payment is missed. 
‘‘(c) If coverage lapses because an employee has not 
made required premium payments, upon the employee’s 
return from FMLA leave the employing office must still 
restore the employee to coverage/benefits equivalent to 
those the employee would have had if leave had not been 
taken and the premium payment(s) had not been missed, 
including 
family 
or 
dependent 
coverage. 
See 
825.215(d)(1)–(5). In such case, an employee may not be 
required to meet any qualification requirements imposed 
by the plan, including any new preexisting condition wait-
ing period, to wait for an open season, or to pass a medical 
examination to obtain reinstatement of coverage. If an em-
ploying office terminates an employee’s insurance in ac-
cordance with this section and fails to restore the employ-
ee’s health insurance as required by this section upon the 
employee’s return, the employing office may be liable for 
benefits lost by reason of the violation, for other actual 
monetary losses sustained as a direct result of the viola-
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•HRES 1516 IH 
tion, and for appropriate equitable relief tailored to the 
harm suffered. 
‘‘§ 825.213 Employing office recovery of benefit costs 
‘‘(a) In addition to the circumstances discussed in 
825.212(b), and subject to the exceptions provided in 
825.208(k), an employing office may recover its share of 
health plan premiums during a period of unpaid FMLA 
leave from an employee if the employee fails to return to 
work after the employee’s FMLA leave entitlement has 
been exhausted or expires, unless the reason the employee 
does not return is due to: 
‘‘(1) The continuation, recurrence, or onset of 
either a serious health condition of the employee or 
the employee’s family member, or a serious injury or 
illness of a covered servicemember, which would oth-
erwise entitle the employee to leave under FMLA; or 
‘‘(2) Other circumstances beyond the employ-
ee’s control. Examples of other circumstances be-
yond the employee’s control are necessarily broad. 
They include such situations as where a parent 
chooses to stay home with a newborn child who has 
a serious health condition; an employee’s spouse is 
unexpectedly transferred to a job location more than 
75 miles from the employee’s worksite; a relative or 
individual other than a covered family member has 
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•HRES 1516 IH 
a serious health condition and the employee is need-
ed to provide care; the employee is laid off while on 
leave; or, the employee is a key employee who de-
cides not to return to work upon being notified of 
the employing office’s intention to deny restoration 
because of substantial and grievous economic injury 
to the employing office’s operations and is not rein-
stated by the employing office. Other circumstances 
beyond the employee’s control would not include a 
situation where an employee desires to remain with 
a parent in a distant city even though the parent no 
longer requires the employee’s care, or a parent 
chooses not to return to work to stay home with a 
well, newborn child. 
‘‘(3) When an employee fails to return to work 
because of the continuation, recurrence, or onset of 
either a serious health condition of the employee or 
employee’s family member, or a serious injury or ill-
ness of a covered servicemember, thereby precluding 
the employing office from recovering its (share of) 
health benefit premium payments made on the em-
ployee’s behalf during a period of unpaid FMLA 
leave, the employing office may require medical cer-
tification of the employee’s or the family member’s 
serious 
health 
condition 
or 
the 
covered 
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•HRES 1516 IH 
servicemember’s serious injury or illness. Such cer-
tification is not required unless requested by the em-
ploying office. The cost of the certification shall be 
borne by the employee, and the employee is not enti-
tled to be paid for the time or travel costs spent in 
acquiring the certification. The employee is required 
to provide medical certification in a timely manner 
which, for purposes of this section, is within 30 days 
from the date of the employing office’s request. For 
purposes of medical certification, the employee may 
use the optional forms developed for this purpose. 
See 825.306(b), 825.310(c)–(d) and Forms A, B, 
and F. If the employing office requests medical cer-
tification and the employee does not provide such 
certification in a timely manner (within 30 days), or 
the reason for not returning to work does not meet 
the test of other circumstances beyond the employ-
ee’s control, the employing office may recover 100 
percent of the health benefit premiums it paid dur-
ing the period of unpaid FMLA leave. 
‘‘(b) Under some circumstances an employing office 
may elect to maintain other benefits, e.g., life insurance, 
disability insurance, etc., by paying the employee’s (share 
of) premiums during periods of unpaid FMLA leave. For 
example, to ensure the employing office can meet its re-
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•HRES 1516 IH 
sponsibilities to provide equivalent benefits to the em-
ployee upon return from unpaid FMLA leave, it may be 
necessary that premiums be paid continuously to avoid a 
lapse of coverage. If the employing office elects to main-
tain such benefits during the leave, at the conclusion of 
leave, the employing office is entitled to recover only the 
costs incurred for paying the employee’s share of any pre-
miums whether or not the employee returns to work. 
‘‘(c) An employee who returns to work for at least 
30 calendar days is considered to have returned to work. 
An employee who transfers directly from taking FMLA 
leave to retirement, or who retires during the first 30 days 
after the employee returns to work, is deemed to have re-
turned to work. 
‘‘(d) When an employee elects or an employing office 
requires paid leave to be substituted for FMLA leave, the 
employing office may not recover its (share of) health in-
surance or other non-health benefit premiums for any pe-
riod of FMLA leave covered by paid leave. Because paid 
leave provided under a plan covering temporary disabilities 
(including workers’ compensation) is not unpaid, recovery 
of health insurance premiums does not apply to such paid 
leave. 
‘‘(e) The amount that self-insured employing offices 
may recover is limited to only the employing office’s share 
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of allowable premiums as would be calculated under 
COBRA, excluding the two percent fee for administrative 
costs. 
‘‘(f) When an employee fails to return to work, any 
health and non-health benefit premiums which this section 
of the regulations permits an employing office to recover 
are a debt owed by the non-returning employee to the em-
ploying office. The existence of this debt caused by the 
employee’s failure to return to work does not alter the em-
ploying office’s responsibilities for health benefit coverage 
and, under a self-insurance plan, payment of claims in-
curred during the period of FMLA leave. To the extent 
recovery is allowed, the employing office may recover the 
costs through deduction from any sums due to the em-
ployee (e.g., unpaid wages, vacation pay, etc.), provided 
such deductions do not otherwise violate applicable wage 
payment or other laws. Alternatively, the employing office 
may initiate legal action against the employee to recover 
such costs. 
‘‘§ 825.214 Employee right to reinstatement 
‘‘General Rule. On return from FMLA leave, an em-
ployee is entitled to be returned to the same position the 
employee held when leave commenced, or to an equivalent 
position with equivalent benefits, pay, and other terms and 
conditions of employment. An employee is entitled to such 
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reinstatement even if the employee has been replaced or 
his or her position has been restructured to accommodate 
the employee’s absence. See also 825.106(e) for the obliga-
tions of employing offices that are joint employers. 
‘‘§ 825.215 Equivalent position 
‘‘(a) Equivalent position. An equivalent position is 
one that is virtually identical to the employee’s former po-
sition in terms of pay, benefits, and working conditions, 
including privileges, prerequisites, and status. It must in-
volve the same or substantially similar duties and respon-
sibilities, which must entail substantially equivalent skill, 
effort, responsibility, and authority. 
‘‘(b) Conditions to qualify. If an employee is no longer 
qualified for the position because of the employee’s inabil-
ity to attend a necessary course, renew a license, etc., as 
a result of the leave, the employee shall be given a reason-
able opportunity to fulfill those conditions upon return to 
work. 
‘‘(c) Equivalent Pay. (1) An employee is entitled to 
any unconditional pay increases which may have occurred 
during the FMLA leave period, such as cost of living in-
creases. Pay increases conditioned upon seniority, length 
of service, or work performed must be granted in accord-
ance with the employing office’s policy or practice with re-
spect to other employees on an equivalent leave status for 
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a reason that does not qualify as FMLA leave. An em-
ployee is entitled to be restored to a position with the same 
or equivalent pay premiums, such as a shift differential. 
If an employee departed from a position averaging ten 
hours of overtime (and corresponding overtime pay) each 
week, an employee is ordinarily entitled to such a position 
on return from FMLA leave. 
‘‘(2) Equivalent pay includes any bonus or pay-
ment, whether it is discretionary or non-discre-
tionary, made to employees consistent with the pro-
visions of paragraph (c)(1) of this section. However, 
if a bonus or other payment is based on the achieve-
ment of a specified goal such as hours worked, prod-
ucts sold or perfect attendance, and the employee 
has not met the goal due to FMLA leave, then the 
payment may be denied, unless otherwise paid to 
employees on an equivalent leave status for a reason 
that does not qualify as FMLA leave. For example, 
if an employee who used paid vacation leave for a 
non-FMLA purpose would receive the payment, then 
the employee who used paid vacation leave for an 
FMLA-protected purpose also must receive the pay-
ment. 
‘‘(d) Equivalent benefits. Benefits include all benefits 
provided or made available to employees by an employing 
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office, including group life insurance, health insurance, 
disability insurance, sick leave, annual leave, educational 
benefits, and pensions, regardless of whether such benefits 
are provided by a practice or written policy of an employ-
ing office through an employee benefit plan. 
‘‘(1) At the end of an employee’s FMLA leave, 
benefits must be resumed in the same manner and 
at the same levels as provided when the leave began, 
and subject to any changes in benefit levels that may 
have taken place during the period of FMLA leave 
affecting the entire work force, unless otherwise 
elected by the employee. Upon return from FMLA 
leave, an employee cannot be required to requalify 
for any benefits the employee enjoyed before FMLA 
leave began (including family or dependent cov-
erages). For example, if an employee was covered by 
a life insurance policy before taking leave but is not 
covered or coverage lapses during the period of un-
paid FMLA leave, the employee cannot be required 
to meet any qualifications, such as taking a physical 
examination, in order to requalify for life insurance 
upon return from leave. Accordingly, some employ-
ing offices may find it necessary to modify life insur-
ance and other benefits programs in order to restore 
employees to equivalent benefits upon return from 
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FMLA leave, make arrangements for continued pay-
ment of costs to maintain such benefits during un-
paid FMLA leave, or pay these costs subject to re-
covery from the employee on return from leave. See 
825.213(b). 
‘‘(2) An employee may, but is not entitled to, 
accrue any additional benefits or seniority during 
unpaid FMLA leave. Benefits accrued at the time 
leave began, however, (e.g., paid vacation, sick or 
personal leave to the extent not substituted for 
FMLA leave) must be available to an employee upon 
return from leave. 
‘‘(3) If, while on unpaid FMLA leave, an em-
ployee desires to continue life insurance, disability 
insurance, or other types of benefits for which he or 
she typically pays, the employing office is required 
to follow established policies or practices for con-
tinuing such benefits for other instances of leave 
without pay. If the employing office has no estab-
lished policy, the employee and the employing office 
are encouraged to agree upon arrangements before 
FMLA leave begins. 
‘‘(4) With respect to pension and other retire-
ment plans, any period of unpaid FMLA leave shall 
not be treated as or counted toward a break in serv-
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ice for purposes of vesting and eligibility to partici-
pate. Also, if the plan requires an employee to be 
employed on a specific date in order to be credited 
with a year of service for vesting, contributions or 
participation purposes, an employee on unpaid 
FMLA leave on that date shall be deemed to have 
been employed on that date. However, unpaid 
FMLA leave periods need not be treated as credited 
service for purposes of benefit accrual, vesting and 
eligibility to participate. 
‘‘(5) Employees on unpaid FMLA leave are to 
be treated as if they continued to work for purposes 
of changes to benefit plans. They are entitled to 
changes in benefits plans, except those which may be 
dependent upon seniority or accrual during the leave 
period, immediately upon return from leave or to the 
same extent they would have qualified if no leave 
had been taken. For example if the benefit plan is 
predicated on a pre-established number of hours 
worked each year and the employee does not have 
sufficient hours as a result of taking unpaid FMLA 
leave, the benefit is lost. (In this regard, 825.209 
addresses health benefits.) 
‘‘(e) Equivalent terms and conditions of employment. 
An equivalent position must have substantially similar du-
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ties, conditions, responsibilities, privileges, and status as 
the employee’s original position. 
‘‘(1) The employee must be reinstated to the 
same or a geographically proximate worksite (i.e., 
one that does not involve a significant increase in 
commuting time or distance) from where the em-
ployee had previously been employed. If the employ-
ee’s original worksite has been closed, the employee 
is entitled to the same rights as if the employee had 
not been on leave when the worksite closed. For ex-
ample, if an employing office transfers all employees 
from a closed worksite to a new worksite in a dif-
ferent city, the employee on leave is also entitled to 
transfer under the same conditions as if he or she 
had continued to be employed. 
‘‘(2) The employee is ordinarily entitled to re-
turn to the same shift or the same or an equivalent 
work schedule. 
‘‘(3) The employee must have the same or an 
equivalent opportunity for bonuses, and other simi-
lar discretionary and non-discretionary payments. 
‘‘(4) FMLA does not prohibit an employing of-
fice from accommodating an employee’s request to 
be restored to a different shift, schedule, or position 
which better suits the employee’s personal needs on 
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return from leave, or to offer a promotion to a bet-
ter position. However, an employee cannot be in-
duced by the employing office to accept a different 
position against the employee’s wishes. 
‘‘(f) De minimis exception. The requirement that an 
employee be restored to the same or equivalent job with 
the same or equivalent pay, benefits, and terms and condi-
tions of employment does not extend to de minimis, intan-
gible, or unmeasurable aspects of the job. 
‘‘§ 825.216 Limitations on an employee’s right to rein-
statement 
‘‘(a) An employee has no greater right to reinstate-
ment or to other benefits and conditions of employment 
than if the employee had been continuously employed dur-
ing the FMLA leave period. An employing office must be 
able to show that an employee would not otherwise have 
been employed at the time reinstatement is requested in 
order to deny restoration to employment. For example: 
‘‘(1) If an employee is laid off during the course 
of taking FMLA leave and employment is termi-
nated, the employing office’s responsibility to con-
tinue FMLA leave, maintain group health plan bene-
fits and restore the employee ceases at the time the 
employee is laid off, provided the employing office 
has no continuing obligations under a collective bar-
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gaining agreement or otherwise. An employing office 
would have the burden of proving that an employee 
would have been laid off during the FMLA leave pe-
riod and, therefore, would not be entitled to restora-
tion. Restoration to a job slated for lay-off when the 
employee’s original position is not would not meet 
the requirements of an equivalent position. 
‘‘(2) If a shift has been eliminated, or overtime 
has been decreased, an employee would not be enti-
tled to return to work that shift or the original over-
time hours upon restoration. However, if a position 
on, for example, a night shift has been filled by an-
other employee, the employee is entitled to return to 
the same shift on which employed before taking 
FMLA leave. 
‘‘(3) If an employee was hired for a specific 
term or only to perform work on a discrete project, 
the employing office has no obligation to restore the 
employee if the employment term or project is over 
and the employing office would not otherwise have 
continued to employ the employee. On the other 
hand, if an employee was hired to perform work for 
one employing office for a specific time period, and 
after that time period has ended, the work was as-
signed to another employing office, the successor 
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employing office may be required to restore the em-
ployee if it is a successor employing office. 
‘‘(b) In addition to the circumstances explained 
above, an employing office may deny job restoration to sal-
aried eligible employees (key employees, as defined in 
825.217(c)), if such denial is necessary to prevent sub-
stantial and grievous economic injury to the operations of 
the employing office; or may delay restoration to an em-
ployee who fails to provide a fitness-for-duty certificate to 
return to work under the conditions described in 825.312. 
‘‘(c) If the employee is unable to perform an essential 
function of the position because of a physical or mental 
condition, including the continuation of a serious health 
condition or an injury or illness also covered by workers’ 
compensation, the employee has no right to restoration to 
another position under the FMLA. The employing office’s 
obligations may, however, be governed by the Americans 
with Disabilities Act (ADA), as amended and as made ap-
plicable by the CAA. See 825.702. 
‘‘(d) An employee who fraudulently obtains FMLA 
leave from an employing office is not protected by the job 
restoration or maintenance of health benefits provisions 
of the FMLA, as made applicable by the CAA. 
‘‘(e) If the employing office has a uniformly-applied 
policy governing outside or supplemental employment, 
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such a policy may continue to apply to an employee while 
on FMLA leave. An employing office which does not have 
such a policy may not deny benefits to which an employee 
is entitled under FMLA, as made applicable by the CAA, 
on this basis unless the FMLA leave was fraudulently ob-
tained as in paragraph (d) of this section. 
‘‘§ 825.217 Key employee, general rule 
‘‘(a) A key employee is a salaried FMLA-eligible em-
ployee who is among the highest paid 10 percent of all 
the employees employed by the employing office within 75 
miles of the employee’s worksite. 
‘‘(b) The term salaried means paid on a salary basis, 
within the meaning of the Board’s FLSA regulations at 
part 541, implementing section 203 of the CAA (2 U.S.C. 
1313), regarding employees who may qualify as exempt 
from the minimum wage and overtime requirements of the 
FLSA, as made applicable by the CAA. 
‘‘(c) A key employee must be among the highest paid 
10 percent of all the employees—both salaried and non- 
salaried, eligible and ineligible—who are employed by the 
employing office within 75 miles of the worksite. 
‘‘(1) In determining which employees are 
among the highest paid 10 percent, year-to-date 
earnings are divided by weeks worked by the em-
ployee (including weeks in which paid leave was 
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taken). Earnings include wages, premium pay, in-
centive pay, and non-discretionary and discretionary 
bonuses. Earnings do not include incentives whose 
value is determined at some future date, e.g., bene-
fits or prerequisites. 
‘‘(2) The determination of whether a salaried 
employee is among the highest paid 10 percent shall 
be made at the time the employee gives notice of the 
need for leave. No more than 10 percent of the em-
ploying office’s employees within 75 miles of the 
worksite may be key employees. 
‘‘§ 825.218 Substantial and grievous economic injury 
‘‘(a) In order to deny restoration to a key employee, 
an employing office must determine that the restoration 
of the employee to employment will cause substantial and 
grievous economic injury to the operations of the employ-
ing office, not whether the absence of the employee will 
cause such substantial and grievous injury. 
‘‘(b) An employing office may take into account its 
ability to replace on a temporary basis (or temporarily do 
without) the employee on FMLA leave. If permanent re-
placement is unavoidable, the cost of then reinstating the 
employee can be considered in evaluating whether substan-
tial and grievous economic injury will occur from restora-
tion; in other words, the effect on the operations of the 
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employing office of reinstating the employee in an equiva-
lent position. 
‘‘(c) A precise test cannot be set for the level of hard-
ship or injury to the employing office which must be sus-
tained. If the reinstatement of a key employee threatens 
the economic viability of the employing office, that would 
constitute substantial and grievous economic injury. A 
lesser injury which causes substantial, long-term economic 
injury would also be sufficient. Minor inconveniences and 
costs that the employing office would experience in the 
normal course would certainly not constitute substantial 
and grievous economic injury. 
‘‘(d) FMLA’s substantial and grievous economic in-
jury standard is different from and more stringent than 
the undue hardship test under the ADA, as made applica-
ble by the CAA. See also 825.702. 
‘‘§ 825.219 Rights of a key employee 
‘‘(a) An employing office that believes that reinstate-
ment may be denied to a key employee, must give written 
notice to the employee at the time the employee gives no-
tice of the need for FMLA leave (or when FMLA leave 
commences, if earlier) that he or she qualifies as a key 
employee. At the same time, the employing office must 
also fully inform the employee of the potential con-
sequences with respect to reinstatement and maintenance 
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of health benefits if the employing office should determine 
that substantial and grievous economic injury to the em-
ploying office’s operations will result if the employee is re-
instated from FMLA leave. If such notice cannot be given 
immediately because of the need to determine whether the 
employee is a key employee, it shall be given as soon as 
practicable after being notified of a need for leave (or the 
commencement of leave, if earlier). It is expected that in 
most circumstances there will be no desire that an em-
ployee be denied restoration after FMLA leave and, there-
fore, there would be no need to provide such notice. How-
ever, an employing office who fails to provide such timely 
notice will lose its right to deny restoration even if sub-
stantial and grievous economic injury will result from rein-
statement. 
‘‘(b) As soon as an employing office makes a good 
faith determination, based on the facts available, that sub-
stantial and grievous economic injury to its operations will 
result if a key employee who has given notice of the need 
for FMLA leave or is using FMLA leave is reinstated, the 
employing office shall notify the employee in writing of 
its determination, that it cannot deny FMLA leave, and 
that it intends to deny restoration to employment on com-
pletion of the FMLA leave. It is anticipated that an em-
ploying office will ordinarily be able to give such notice 
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prior to the employee starting leave. The employing office 
must serve this notice either in person or by certified mail. 
This notice must explain the basis for the employing of-
fice’s finding that substantial and grievous economic in-
jury will result, and, if leave has commenced, must provide 
the employee a reasonable time in which to return to work, 
taking into account the circumstances, such as the length 
of the leave and the urgency of the need for the employee 
to return. 
‘‘(c) If an employee on leave does not return to work 
in response to the employing office’s notification of intent 
to deny restoration, the employee continues to be entitled 
to maintenance of health benefits and the employing office 
may not recover its cost of health benefit premiums. A 
key employee’s rights under FMLA continue unless and 
until the employee either gives notice that he or she no 
longer wishes to return to work, or the employing office 
actually denies reinstatement at the conclusion of the leave 
period. 
‘‘(d) After notice to an employee has been given that 
substantial and grievous economic injury will result if the 
employee is reinstated to employment, an employee is still 
entitled to request reinstatement at the end of the leave 
period even if the employee did not return to work in re-
sponse to the employing office’s notice. The employing of-
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fice must then again determine whether there will be sub-
stantial and grievous economic injury from reinstatement, 
based on the facts at that time. If it is determined that 
substantial and grievous economic injury will result, the 
employing office shall notify the employee in writing (in 
person or by certified mail) of the denial of restoration. 
‘‘§ 825.220 Protection for employees who request 
leave or otherwise assert FMLA rights 
‘‘(a) The FMLA, as made applicable by the CAA, 
prohibits interference with an employee’s rights under the 
law, and with legal proceedings or inquiries relating to an 
employee’s rights. More specifically, the law contains the 
following employee protections: 
‘‘(1) An employing office is prohibited from 
interfering with, restraining, or denying the exercise 
of (or attempts to exercise) any rights provided by 
the FMLA, as made applicable by the CAA. 
‘‘(2) An employing office is prohibited from dis-
charging or in any other way discriminating against 
any covered employee (whether or not an eligible em-
ployee) for opposing or complaining about any un-
lawful practice under the FMLA, as made applicable 
by the CAA. 
‘‘(3) All employing offices are prohibited from 
discharging or in any other way discriminating 
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against any covered employee (whether or not an eli-
gible employee) because that covered employee has— 
‘‘(A) Filed any claim, or has instituted (or 
caused to be instituted) any proceeding under 
or related to the FMLA, as made applicable by 
the CAA; 
‘‘(B) Given, or is about to give, any infor-
mation in connection with an inquiry or pro-
ceeding relating to a right under the FMLA, as 
made applicable by the CAA; 
‘‘(C) Testified, or is about to testify, in 
any inquiry or proceeding relating to a right 
under the FMLA, as made applicable by the 
CAA. 
‘‘(b) Any violations of the FMLA, as made applicable 
by the CAA, or of these regulations constitute interfering 
with, restraining, or denying the exercise of rights pro-
vided by the FMLA, as made applicable by the CAA. An 
employing office may be liable for compensation and bene-
fits lost by reason of the violation, for other actual mone-
tary 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 
tailored to the harm suffered. See 825.400(b). Interfering 
with the exercise of an employee’s rights would include, 
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for example, not only refusing to authorize FMLA leave, 
but discouraging an employee from using such leave. It 
would also include manipulation by a covered employing 
office to avoid responsibilities under FMLA, for example: 
‘‘(1) øReserved¿ 
‘‘(2) Changing the essential functions of the job 
in order to preclude the taking of leave; or 
‘‘(3) Reducing hours available to work in order 
to avoid employee eligibility. 
‘‘(c) The FMLA’s prohibition against interference 
prohibits an employing office from discriminating or re-
taliating against an employee or prospective employee for 
having exercised or attempted to exercise FMLA rights. 
For example, if an employee on leave without pay would 
otherwise be entitled to full benefits (other than health 
benefits), the same benefits would be required to be pro-
vided to an employee on unpaid FMLA leave. By the same 
token, employing offices cannot use the taking of FMLA 
leave as a negative factor in employment actions, such as 
hiring, promotions or disciplinary actions; nor can FMLA 
leave be counted under no fault attendance policies. See 
825.215. 
‘‘(d) Employees cannot waive, nor may employing of-
fices induce employees to waive, their rights under FMLA. 
For example, employees (or their collective bargaining rep-
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resentatives) cannot trade off the right to take FMLA 
leave against some other benefit offered by the employing 
office. Except for settlement agreements covered by 1414 
and/or 1415 of the Congressional Accountability Act, this 
does not prevent the settlement or release of FMLA claims 
by employees based on past employing office conduct with-
out the approval of the Office of Congressional Workplace 
Rights or a court. Nor does it prevent an employee’s vol-
untary and uncoerced acceptance (not as a condition of 
employment) of a light duty assignment while recovering 
from a serious health condition. See 825.702(d). An em-
ployee’s acceptance of such light duty assignment does not 
constitute a waiver of the employee’s prospective rights, 
including the right to be restored to the same position the 
employee held at the time the employee’s FMLA leave 
commenced or to an equivalent position. The employee’s 
right to restoration, however, ceases at the end of the ap-
plicable 12-month FMLA leave year. 
‘‘(e) Covered employees, and not merely eligible em-
ployees, are protected from retaliation for opposing (e.g., 
filing a complaint about) any practice which is unlawful 
under the FMLA, as made applicable by the CAA. They 
are similarly protected if they oppose any practice which 
they reasonably believe to be a violation of the FMLA, 
as made applicable by the CAA, or regulations. 
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‘‘Subpart C—Employee and Employing Office Rights 
and Obligations Under The FMLA, As Made Ap-
plicable by the CAA 
‘‘§ 825.300 Employing office notice requirements 
‘‘(a)(1) If an employing office has any eligible em-
ployees and has any written guidance to employees con-
cerning employee benefits or leave rights, such as in an 
employee handbook, information concerning both entitle-
ments and employee obligations under the FMLA, as 
made applicable by the CAA, must be included in the 
handbook or other document. For example, if an employ-
ing office provides an employee handbook to all employees 
that describes the employing office’s policies regarding 
leave, wages, attendance, and similar matters, the hand-
book must incorporate information on FMLA rights and 
responsibilities and the employing office’s policies regard-
ing the FMLA, as made applicable by the CAA. Informa-
tional publications describing the provisions of the FMLA, 
as made applicable by the CAA, are available from the 
Office of Congressional Workplace Rights and may be in-
corporated in such employing office handbooks or written 
policies. 
‘‘(2) If such an employing office does not have 
written policies, manuals, or handbooks describing 
employee benefits and leave provisions, the employ-
ing office shall provide written guidance to an em-
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ployee concerning all the employee’s rights and obli-
gations under the FMLA, as made applicable by the 
CAA. This notice shall be provided to employees 
each time notice is given pursuant to paragraph (c), 
and in accordance with the provisions of that para-
graph. Employing offices may duplicate and provide 
the employee a copy of the FMLA Fact Sheet avail-
able from the Office of Congressional Workplace 
Rights to provide such guidance. 
‘‘(b) Eligibility notice. (1) When an employee re-
quests FMLA leave, or when the employing office acquires 
knowledge that an employee’s leave may be for an FMLA- 
qualifying reason, the employing office must notify the 
employee of the employee’s eligibility to take FMLA leave 
within five business days, absent extenuating cir-
cumstances. See 825.110 for definition of an eligible em-
ployee. Employee eligibility is determined (and notice must 
be provided) at the commencement of the first instance 
of leave for each FMLA-qualifying reason in the applicable 
12–month period. See 825.127(c) and 825.200(b). All 
FMLA absences for the same qualifying reason are consid-
ered a single leave and employee eligibility as to that rea-
son for leave does not change during the applicable 12- 
month period. 
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‘‘(2) The eligibility notice must state whether 
the employee is eligible for FMLA leave as defined 
in 825.110. If the employee is not eligible for FMLA 
leave, the notice must state at least one reason why 
the employee is not eligible, including as applicable 
the number of months the employee has been em-
ployed by the employing office and the hours of serv-
ice with the employing office during the 12-month 
period. Notification of eligibility may be oral or in 
writing; employing offices may use Form C to pro-
vide such notification to employees. 
‘‘(3) If, at the time an employee provides notice 
of a subsequent need for FMLA leave during the ap-
plicable 12-month period due to a different FMLA- 
qualifying reason, and the employee’s eligibility sta-
tus has not changed, no additional eligibility notice 
is required. If, however, the employee’s eligibility 
status has changed (e.g., if the employee has not 
met the hours of service requirement in the 12 
months preceding the commencement of leave for 
the subsequent qualifying reason), the employing of-
fice must notify the employee of the change in eligi-
bility status within five business days, absent ex-
tenuating circumstances. 
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‘‘(c) Rights and responsibilities notice. (1) Employing 
offices shall provide written notice detailing the specific 
expectations and obligations of the employee and explain-
ing any consequences of a failure to meet these obliga-
tions. This notice shall be provided to the employee each 
time the eligibility notice is provided pursuant to para-
graph (b) of this section. If leave has already begun, the 
notice should be mailed to the employee’s address of 
record. Such specific notice must include, as appropriate: 
‘‘(A) That the leave may be designated and 
counted against the employee’s annual FMLA 
leave entitlement if qualifying (See 825.300(c) 
and 825.301) and the applicable 12-month pe-
riod for FMLA entitlement (See 825.127(c), 
825.200(b), (f), and (g)); 
‘‘(B) Any requirements for the employee to 
furnish certification of a serious health condi-
tion, serious injury or illness, or qualifying exi-
gency arising out of covered active duty or call 
to covered active duty status, and the con-
sequences of failing to do so (See 825.305, 
825.309, 825.310, 825.313); 
‘‘(C) If applicable, the employee’s right to 
substitute paid parental leave for unpaid FMLA 
leave for a birth or placement (See 825.208) 
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and the employee’s right to substitute paid 
leave generally, whether the employing office 
will require the substitution of paid leave, the 
conditions related to any substitution, and the 
employee’s entitlement to take unpaid FMLA 
leave if the employee does not meet the condi-
tions for paid leave (See 825.207); 
‘‘(D) Any requirement for the employee to 
make any premium payments to maintain 
health benefits and the arrangements for mak-
ing such payments (See 825.210), and the pos-
sible consequences of failure to make such pay-
ments on a timely basis (i.e., the circumstances 
under which coverage may lapse); 
‘‘(E) The employee’s status as a key em-
ployee and the potential consequence that res-
toration may be denied following FMLA leave, 
explaining the conditions required for such de-
nial (See 825.218); 
‘‘(F) The employee’s right to maintenance 
of benefits during the FMLA leave and restora-
tion to the same or an equivalent job upon re-
turn from FMLA leave (See 825.214 and 
825.604); and 
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‘‘(G) The employee’s potential liability for 
payment of health insurance premiums paid by 
the employing office during the employee’s un-
paid FMLA leave if the employee fails to return 
to work after taking FMLA leave (See 825.213, 
825.208(k)). 
‘‘(2) The notice of rights and responsibilities 
may include other information—e.g., whether the 
employing office will require periodic reports of the 
employee’s status and intent to return to work—but 
is not required to do so. 
‘‘(3) The notice of rights and responsibilities 
may be accompanied by any required certification 
form. 
‘‘(4) If the specific information provided by the 
notice of rights and responsibilities changes, the em-
ploying office shall, within five business days of re-
ceipt of the employee’s first notice of need for leave 
subsequent to any change, provide written notice ref-
erencing the prior notice and setting forth any of the 
information in the notice of rights and responsibil-
ities that has changed. For example, if the initial 
leave period was paid leave and the subsequent leave 
period would be unpaid leave, the employing office 
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may need to give notice of the arrangements for 
making premium payments. 
‘‘(5) Employing offices are also expected to re-
sponsively answer questions from employees con-
cerning their rights and responsibilities under the 
FMLA, as made applicable under the CAA. 
‘‘(6) A prototype notice of rights and respon-
sibilities may be obtained in Form C, or from the 
Office of Congressional Workplace Rights. Employ-
ing offices may adapt the prototype notice as appro-
priate to meet these notice requirements. The notice 
of rights and responsibilities may be distributed elec-
tronically so long as it otherwise meets the require-
ments of this section. 
‘‘(d) Designation notice. (1) The employing office is 
responsible in all circumstances for designating leave as 
FMLA-qualifying, and for giving notice of the designation 
to the employee as provided in this section. When the em-
ploying office has enough information to determine wheth-
er the leave is being taken for a FMLA-qualifying reason 
(e.g., after receiving a certification), the employing office 
must notify the employee whether the leave will be des-
ignated and will be counted as FMLA leave within five 
business days absent extenuating circumstances. Only one 
notice of designation is required for each FMLA-quali-
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•HRES 1516 IH 
fying reason per applicable 12-month period, regardless of 
whether the leave taken due to the qualifying reason will 
be a continuous block of leave or intermittent or reduced 
schedule leave. If the employing office 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 employ-
ing office must notify the employee of that determination. 
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 em-
ployee of this designation at the time of designating the 
FMLA leave. 
‘‘(2) If the employing office has sufficient infor-
mation to designate the leave as FMLA leave imme-
diately after receiving notice of the employee’s need 
for leave, the employing office may provide the em-
ployee 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 restored to employment, the employing office 
must provide notice of such requirement with the 
designation notice. If the employing office will re-
quire that the fitness-for-duty certification address 
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the employee’s ability to perform the essential func-
tions 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 em-
ployee’s position. See 825.312. If the employing of-
fice’s handbook or other written documents (if any) 
describing the employing office’s leave policies clear-
ly 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 
occupation), 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 Con-
gressional Workplace Rights. If the leave is not des-
ignated 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 no-
tice may be distributed electronically so long as it 
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otherwise meets the requirements of this section and 
the employing office can demonstrate that the em-
ployee (who may already be on leave and who may 
not have access to employing office-provided com-
puters) has access to the information electronically. 
‘‘(5) If the information provided by the employ-
ing office to the employee in the designation notice 
changes (e.g., the employee exhausts the FMLA 
leave entitlement), 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 em-
ployee of the amount of leave counted against the 
employee’s FMLA leave entitlement and, if applica-
ble, the employee’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 em-
ployee of the number of hours, days, or weeks that 
will be counted against the employee’s FMLA leave 
entitlement in the designation notice. If it is not pos-
sible to provide the hours, days, or weeks that will 
be counted against the employee’s FMLA leave enti-
tlement (such as in the case of unforeseeable inter-
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•HRES 1516 IH 
mittent leave), then the employing office must pro-
vide notice of the amount of leave counted against 
the employee’s FMLA leave entitlement and, if ap-
plicable, paid parental leave entitlement, upon the 
request by the employee, but no more often than 
once in a 30–day period and only if leave was taken 
in that period. The notice 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 fol-
lowing 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 nota-
tion 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 exercise of an employee’s FMLA rights. An employ-
ing 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 appro-
priate equitable or other relief, including employment, re-
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instatement, 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 
office’s decision to designate leave as FMLA-qualifying 
must be based only on information received from the em-
ployee or the employee’s spokesperson (e.g., if the em-
ployee is incapacitated, the employee’s spouse, adult child, 
parent, doctor, etc., may provide notice to the employing 
office of the need to take FMLA leave). In any cir-
cumstance where the employing office does not have suffi-
cient information about the reason for an employee’s use 
of leave, the employing office should inquire further of the 
employee or the spokesperson to ascertain 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 office must no-
tify 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 ex-
pressly assert rights under the FMLA, as made applicable 
by the CAA, or even mention the FMLA to meet his or 
her obligation to provide notice, though the employee 
would need to state a qualifying reason for the needed 
leave and otherwise satisfy the notice requirements set 
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forth in 825.302 or 825.303 depending on whether the 
need for leave is foreseeable or unforeseeable. An employee 
giving notice of the need for FMLA leave must explain 
the reasons for the needed leave so as to allow the employ-
ing 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 unex-
pected or unforeseen, an employee will provide sufficient 
information 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 explain the reason for the leave 
and the employing office denies the employee’s request, 
the employee will need to provide sufficient 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 em-
ployee’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 
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to state the reason. If this is due to an event which oc-
curred during the period of paid leave, the employing of-
fice may count the leave used after the FMLA-qualifying 
reason against the employee’s FMLA leave entitlement. 
‘‘(c) Disputes. If there is a dispute between an em-
ploying office and an employee as to whether leave quali-
fies as FMLA leave, it should be resolved through discus-
sions between the employee and the employing office. Such 
discussions and the decision must be documented. 
‘‘(d) Retroactive designation. Subject to 825.208, if 
an employing office does not designate leave as required 
by 825.300, the employing office may retroactively des-
ignate leave as FMLA leave with appropriate notice to the 
employee as required by 825.300 provided that the em-
ploying office’s failure to timely designate leave does not 
cause harm or injury 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 employee to suffer harm, it may constitute an inter-
ference with, restraint of, or denial of the exercise of an 
employee’s FMLA rights. An employing office may be lia-
ble for compensation and benefits lost by reason of the 
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•HRES 1516 IH 
violation, for other actual monetary losses sustained as a 
direct result of the violation, and for appropriate equitable 
or other relief, including employment, reinstatement, pro-
motion, or any other relief tailored 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 to pro-
vide care for a son or daughter with a serious health condi-
tion 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 designate properly. The employee might establish this 
by showing 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. 
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‘‘§ 825.302 Employee notice requirements for foresee-
able FMLA leave 
‘‘(a) Timing of notice. An employee must provide the 
employing office at least 30 days advance notice before 
FMLA leave is to begin if the need for the leave is foresee-
able 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 servicemember. 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 em-
ployee’s health condition may require leave to commence 
earlier than anticipated before the birth of a child. Simi-
larly, little opportunity for notice may be given before 
placement for adoption. For foreseeable leave due to a 
qualifying exigency, notice must be provided as soon as 
practicable, regardless of how far in advance such leave 
is foreseeable. 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 scheduled leave change or are extended, or were 
initially unknown. In those cases where the employee is 
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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 re-
quest from the employing office for such information. 
‘‘(b) As soon as practicable means as soon as both 
possible and practical, taking into account all of the facts 
and circumstances in the individual case. When an em-
ployee becomes aware of a need for FMLA leave less than 
30 days in advance, it should be practicable for the em-
ployee 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. 
‘‘(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 anticipated timing and duration of the leave. De-
pending on the situation, such information may include 
that a condition renders the employee unable to perform 
the functions of the job; that the employee is pregnant 
or has been hospitalized overnight; 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 
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•HRES 1516 IH 
active duty or call to covered active duty status (or has 
been notified of an impending call or order to covered ac-
tive duty), and that the requested leave is for one of the 
reasons listed in 825.126(b); if the leave is for a family 
member, that the condition renders the family member un-
able to perform daily activities, or that the family member 
is a covered servicemember with a serious injury or illness; 
and the anticipated duration of the absence, if known. 
When an employee 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 previously provided FMLA-pro-
tected leave, the employee must specifically reference the 
qualifying reason for leave or the 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 em-
ployee, 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-
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quest certification to support the need for leave for a 
qualifying 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 employing office may need to inquire further 
to determine for which qualifying reason the leave is need-
ed. An employee has an obligation to respond to an em-
ploying office’s questions designed to determine whether 
an absence is potentially FMLA-qualifying. Failure to re-
spond to reasonable employing office inquiries regarding 
the leave request may result in denial 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 
employing office may require an employee to comply with 
the employing office’s usual and customary notice and pro-
cedural requirements for requesting leave, absent unusual 
circumstances. For example, an employing office may re-
quire that written notice set forth the reasons for the re-
quested leave, the anticipated duration of the leave, and 
the anticipated start of the leave. An employee also may 
be required by an employing office’s policy to contact a 
specific individual. Unusual circumstances would include 
situations such as when an employee is unable to comply 
with the employing office’s policy that requests for leave 
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should be made by contacting 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-pro-
tected 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 sooner 
than set forth in paragraph (a) of this section and the 
employee provides timely notice as set forth in paragraph 
(a) of this section. 
‘‘(e) Scheduling planned medical treatment. When 
planning 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 provider. Employees are ordinarily ex-
pected 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 example, if an employee who 
provides notice of the need to take FMLA leave on an 
intermittent basis for planned medical treatment neglects 
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to consult with the employing office to make a reasonable 
effort to arrange the schedule of treatments so as not to 
unduly disrupt the employing office’s operations, the em-
ploying office may initiate discussions with the employee 
and require the employee to attempt to make such ar-
rangements, 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 
schedule must be medically necessary due to a serious 
health condition or a serious injury or illness. An employee 
shall advise the employing office, upon request, of the rea-
sons why the intermittent/reduced leave schedule is nec-
essary and of the schedule for treatment, if applicable. 
The employee and employing office shall attempt to work 
out a schedule for such leave that meets the employee’s 
needs without unduly disrupting the employing office’s op-
erations, subject to the approval of the health care pro-
vider. 
‘‘(g) An employing office may waive employees’ 
FMLA notice requirements. See 825.304(e). 
‘‘§ 825.303 Employee notice requirements for unfore-
seeable FMLA leave 
‘‘(a) Timing of notice. When the approximate timing 
of the need for leave is not foreseeable, an employee must 
provide notice to the employing office as soon as prac-
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ticable 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 prescribed by the employing office’s usual and cus-
tomary notice requirements applicable to such leave. See 
825.303(c). Notice may be given by the employee’s spokes-
person (e.g., spouse, adult family member, or other re-
sponsible party) if the employee is unable to do so person-
ally. For example, if an employee’s child has a severe asth-
ma attack and the employee takes the child to the emer-
gency 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 employee would 
be expected to call the employing office promptly after en-
suring the child has used the inhaler. 
‘‘(b) Content of notice. An employee shall provide suf-
ficient information for an employing office to reasonably 
determine whether the FMLA may apply to the leave re-
quest. Depending on the situation, such information may 
include that a condition renders the employee unable to 
perform the functions of the job; that the employee is 
pregnant or has been hospitalized overnight; whether the 
employee or the employee’s family member is under the 
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•HRES 1516 IH 
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 cov-
ered active duty), that the requested leave is for one of 
the reasons listed in 825.126(b), and the anticipated dura-
tion 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 
covered servicemember with a serious injury or illness; and 
the anticipated duration of the absence, if known. When 
an employee 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 specifically 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 expected to ob-
tain any additional required information through informal 
means. An employee has an obligation to respond to an 
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•HRES 1516 IH 
employing office’s questions designed to determine wheth-
er an absence is potentially FMLA-qualifying. Failure to 
respond to reasonable employing office inquiries office re-
garding the leave request may result in denial of FMLA 
protection 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-quali-
fying reason, written advance notice pursuant to an em-
ploying office’s internal rules and procedures may not be 
required when FMLA leave is involved. If an employee 
does not comply with the employing office’s usual notice 
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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‘‘§ 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 em-
ployee had actual notice of the FMLA notice require-
ments. This condition would be satisfied by the employing 
office’s proper posting, at the worksite where the employee 
is employed, of the information regarding the FMLA pro-
vided (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 reasonable excuse, the employing office may delay 
FMLA coverage until 30 days after the date the employee 
provides notice. The need for leave and the approximate 
date leave would be taken must have been clearly foresee-
able to the employee 30 days in advance of the leave. For 
example, knowledge that an employee would receive a tele-
phone call about the availability of a child for adoption 
at some unknown point in the future would not be suffi-
cient to establish the leave was clearly foreseeable 30 days 
in advance. 
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‘‘(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 under the particular facts and cir-
cumstances, the extent to which an employing office may 
delay FMLA coverage for leave depends on the facts of 
the particular case. For example, if an employee reason-
ably should have given the employing office two weeks’ no-
tice 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 accordance with 825.303, the extent to which an em-
ploying office 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 
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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 of-
fice’s own internal rules on leave notice requirements. If 
an employing office does not waive the employee’s obliga-
tions under its internal leave rules, the employing office 
may take appropriate action under its internal rules and 
procedures for failure to follow its usual and customary 
notification rules, absent unusual circumstances, as long 
as the actions are taken in a manner that does not dis-
criminate 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 employee’s own serious health condition that makes 
the employee unable to perform one or more of the essen-
tial functions of the employee’s position, be supported by 
a certification 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 exigency or to care for a covered service-
member with a serious injury or illness be supported by 
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a certification, as described in 825.309 and 825.310, re-
spectively. An employing office must give notice of a re-
quirement for certification each time a certification is re-
quired; such notice must be written notice whenever re-
quired by 825.300(c). An employing office’s oral request 
to an employee to furnish any subsequent certification 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 business days thereafter, or, in the case of 
unforeseen leave, within five business days after the leave 
commences. The employing office may request certifi-
cation at some later date if the employing office later has 
reason to question the appropriateness of the leave or its 
duration. The employee must provide the requested certifi-
cation to the employing office within 15 calendar days 
after the employing office’s request, unless it is not prac-
ticable under the particular circumstances to do so despite 
the employee’s diligent, good faith efforts or the employing 
office provides more than 15 calendar days to return the 
requested certification. 
‘‘(c) Complete and sufficient certification. The em-
ployee must provide a complete and sufficient certification 
to the employing office if required by the employing office 
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in accordance with 825.306, 825.309, and 825.310. The 
employing office shall advise an employee whenever the 
employing office finds a certification incomplete or insuffi-
cient, and shall state in writing what additional informa-
tion is necessary to make the certification complete and 
sufficient. A certification is considered incomplete if the 
employing office receives a certification, but one or more 
of the applicable entries have not been completed. A cer-
tification is considered insufficient if the employing office 
receives a complete certification, but the information pro-
vided is vague, ambiguous, or non-responsive. The employ-
ing office must provide the employee with seven calendar 
days (unless not practicable under the particular cir-
cumstances despite the employee’s diligent good faith ef-
forts) to cure any such deficiency. If the deficiencies speci-
fied by the employing office are not cured in the resub-
mitted certification, the employing office may deny the 
taking of FMLA leave, in accordance with 825.313. A cer-
tification that is not returned to the employing office is 
not considered incomplete or insufficient, but constitutes 
a failure to provide certification. 
‘‘(d) Consequences. At the time the employing office 
requests certification, the employing office must also ad-
vise an employee of the anticipated consequences of an em-
ployee’s failure to provide adequate certification. If the 
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•HRES 1516 IH 
employee fails to provide the employing office with a com-
plete and sufficient certification, despite the opportunity 
to cure the certification as provided in paragraph (c) of 
this section, or fails to provide any certification, the em-
ploying office may deny the taking of FMLA leave, in ac-
cordance with 825.313. It is the employee’s responsibility 
either to furnish a complete and sufficient certification or 
to furnish the health care provider providing the certifi-
cation 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 certifi-
cation 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 per-
mitted by these regulations, whether it is the initial certifi-
cation, a recertification, 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 em-
ployee’s need for leave due to the employee’s own serious 
health condition, or the serious health condition of the em-
ployee’s covered family member, lasts beyond a single 
leave year (as defined in 825.200), the employing office 
may require the employee to provide a new medical certifi-
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cation in each subsequent leave year. Such new medical 
certifications are subject to the provisions for authentica-
tion and clarification set forth in 825.307, including sec-
ond and third opinions. 
‘‘§ 825.306 Content of medical certification for leave 
taken because of an employee’s own seri-
ous health condition or the serious health 
condition of a family member 
‘‘(a) Required information. When leave is taken be-
cause of an employee’s own serious health condition, or 
the serious health condition of a family member, an em-
ploying 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 dura-
tion; 
‘‘(4) If the employee is the patient, information 
sufficient to establish that the employee cannot per-
form the essential functions of the employee’s job as 
well as the nature of any other work restrictions, 
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and the likely duration of such inability (See 
825.123(b)); 
‘‘(5) If the patient is a covered family member 
with a serious health condition, information suffi-
cient to establish that the family member is in need 
of care, as described in 825.124, and an estimate of 
the frequency and duration of the leave required to 
care for the family member; 
‘‘(6) If an employee requests leave on an inter-
mittent or reduced schedule basis for planned med-
ical treatment of the employee’s or a covered family 
member’s serious health condition, information suffi-
cient to establish the medical necessity for such 
intermittent or reduced schedule leave and an esti-
mate of the dates and duration of such treatments 
and any periods of recovery; 
‘‘(7) If an employee requests leave on an inter-
mittent or reduced schedule basis for the employee’s 
serious health condition, including pregnancy, that 
may result in unforeseeable episodes of incapacity, 
information sufficient to establish the medical neces-
sity for such intermittent or reduced schedule leave 
and an estimate of the frequency and duration of 
the episodes of incapacity; and 
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‘‘(8) If an employee requests leave on an inter-
mittent or reduced schedule basis to care for a cov-
ered family 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 recovery, 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 in obtaining medical certification, including second 
and third opinions, from health care providers that meets 
FMLA’s certification requirements, as made applicable by 
the CAA. (See Forms A and B.) Optional Form A is for 
use when the employee’s need for leave is due to the em-
ployee’s own serious health condition. Optional Form B 
is for use when the employee needs leave to care for a 
family member with a serious health condition. These op-
tional forms reflect certification requirements so as to per-
mit the health care provider to furnish appropriate med-
ical information. Forms A and B are modeled closely on 
Form WH–380E and Form WH–380F, as revised, which 
were developed by the Department of Labor (See 29 
C.F.R. Part 825). The employing office may use the Office 
of Congressional Workplace Rights’s forms, or Form WH– 
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380E and Form WH–380F, as revised, or another form 
containing the same basic information; however, no infor-
mation 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 con-
currently with a workers’ compensation absence, and the 
provisions of the workers’ compensation statute permit the 
employing office or the employing office’s representative 
to request additional information from the employee’s 
workers’ compensation health care provider, the FMLA 
does not prevent the employing office from following the 
applicable workers’ compensation provisions and informa-
tion received under those provisions may be considered in 
determining the employee’s entitlement to FMLA-pro-
tected leave. Similarly, an employing office may request 
additional information in accordance with a paid leave pol-
icy or disability plan that requires greater information to 
qualify for payments or benefits, provided that the employ-
ing office informs the employee that the additional infor-
mation only needs to be provided in connection with re-
ceipt of such payments or benefits. Any information re-
ceived pursuant to such policy or plan may be considered 
in determining the employee’s entitlement to FMLA-pro-
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•HRES 1516 IH 
tected leave. If the employee fails to provide the informa-
tion 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 Disabilities Act (ADA), as amended and as made ap-
plicable by the CAA, the FMLA does not prevent the em-
ploying office from following the procedures for requesting 
medical information under the ADA. Any information re-
ceived pursuant to these procedures may be considered in 
determining the employee’s entitlement to FMLA-pro-
tected leave. 
‘‘(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 employing office to communicate directly with the 
health care provider of the employee or his or her covered 
family member, the employee may not be required to pro-
vide such an authorization, release, or waiver. In all in-
stances in which certification is requested, it is the em-
ployee’s responsibility to provide the employing office with 
complete and sufficient certification and failure to do so 
may result in the denial of FMLA leave. See 825.305(d). 
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‘‘§ 825.307 Authentication and clarification of medical 
certification for leave taken because of 
an employee’s own serious health condi-
tion or the serious health condition of a 
family member; second and third opin-
ions 
‘‘(a) Clarification and authentication. (1) If an em-
ployee 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. However, the employing office may contact 
the health care provider for purposes of clarification and 
authentication of the medical certification (whether initial 
certification or recertification) after the employing office 
has given the employee an opportunity to cure any defi-
ciencies as set forth in 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 employee’s direct supervisor may 
not contact the employee’s health care provider, unless the 
direct supervisor is also the only individual in the employ-
ing office designated to process FMLA requests and the 
direct supervisor receives specific authorization 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 cer-
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•HRES 1516 IH 
tification and requesting verification that the information 
contained on the certification form was completed and/ or 
authorized by the health care provider who signed the doc-
ument; no additional medical information may be re-
quested. 
‘‘(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 certification form. The require-
ments of the Health Insurance Portability and Ac-
countability Act (HIPAA) Privacy Rule, (See 45 
C.F.R. parts 160 and 164), which governs the pri-
vacy of individually-identifiable health information 
created or held by HIPAA-covered entities, must be 
satisfied when individually-identifiable health infor-
mation 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 of-
fice to clarify the certification with the health care 
provider, and does not otherwise clarify the certifi-
cation, the employing office may deny the taking of 
FMLA leave if the certification is unclear. See 
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•HRES 1516 IH 
825.305(d). It is the employee’s responsibility to 
provide the employing office with a complete and 
sufficient certification and to clarify the certification 
if necessary. 
‘‘(b) Second Opinion. (1) An employing office that 
has reason to doubt the validity of a medical certification 
may require the employee to obtain a second opinion at 
the employing office’s expense. Pending receipt of the sec-
ond (or third) medical opinion, the employee is provision-
ally entitled to the benefits of the FMLA, as made applica-
ble by the CAA, including maintenance of group health 
benefits. If the certifications do not ultimately establish 
the employee’s entitlement to FMLA leave, the leave shall 
not be designated as FMLA leave and may be treated as 
paid or unpaid leave under the employing office’s estab-
lished leave policies. In addition, the consequences set 
forth in 825.305(d) will apply if the employee or the em-
ployee’s family member fails to authorize his or her health 
care provider to release all relevant medical information 
pertaining to the serious health condition at issue if re-
quested by the health care provider designated to provide 
a second opinion in order to render a sufficient and com-
plete second opinion. 
‘‘(2) The employing office is permitted to des-
ignate the health care provider to furnish the second 
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opinion, but the selected health care provider may 
not be employed on a regular basis by the employing 
office. The employing office may not regularly con-
tract with or otherwise regularly utilize the services 
of the health care provider furnishing the second 
opinion unless the employing office is located in an 
area where access to health care is extremely limited 
(e.g., a rural area where no more than one or two 
doctors practice in the relevant specialty in the vicin-
ity). 
‘‘(c) Third opinion. If the opinions of the employee’s 
and the employing office’s designated health care pro-
viders differ, the employing office may require the em-
ployee to obtain certification from a third health care pro-
vider, again at the employing office’s expense. This third 
opinion shall be final and binding. The third health care 
provider must be designated or approved jointly by the em-
ploying office and the employee. The employing office and 
the employee must each act in good faith to attempt to 
reach agreement on whom to select for the third opinion 
provider. If the employing office does not attempt in good 
faith to reach agreement, the employing office will be 
bound by the first certification. If the employee does not 
attempt in good faith to reach agreement, the employee 
will be bound by the second certification. For example, an 
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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 employee or the employee’s 
family member fails to authorize his or her health care 
provider to release all relevant medical information per-
taining 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 re-
quired to provide the employee with a copy of the second 
and third medical opinions, where applicable, upon request 
by the employee. Requested copies are to be provided with-
in five business days unless extenuating circumstances 
prevent such action. 
‘‘(e) Travel expenses. If the employing office requires 
the employee to obtain either a second or third opinion 
the employing office must reimburse an employee or fam-
ily member for any reasonable ‘out of pocket’ travel ex-
penses incurred to obtain the second and third medical 
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opinions. The employing office may not require the em-
ployee or family member to travel outside normal com-
muting distance for purposes of obtaining the second or 
third medical opinions except in very unusual cir-
cumstances. 
‘‘(f) Medical certification abroad. In circumstances in 
which the employee or a family member is visiting in an-
other country, or a family member resides in another 
country, and a serious health condition develops, the em-
ploying 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 provider is in a language other than 
English, the employee must provide the employing office 
with a written translation of the certification upon re-
quest. 
‘‘§ 825.308 Recertifications for leave taken because of 
an employee’s own serious health condi-
tion or the serious health condition of a 
family member 
‘‘(a) 30-day rule. An employing office may request re-
certification no more often than every 30 days and only 
in connection with an absence by the employee, unless 
paragraphs (b) or (c) of this section apply. 
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‘‘(b) More than 30 days. If the medical certification 
indicates that the minimum duration of the condition is 
more than 30 days, an employing office must wait until 
that minimum duration expires before requesting a recer-
tification, unless paragraph (c) of this section applies. For 
example, if the medical certification states that an em-
ployee will be unable to work, whether continuously or on 
an intermittent basis, for 40 days, the employing office 
must wait 40 days before requesting 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. Accordingly, even if the med-
ical certification indicates that the employee will need 
intermittent or reduced schedule leave for a period in ex-
cess of six months (e.g., for a lifetime condition), the em-
ploying office would be permitted to request recertification 
every six months in connection with an absence. 
‘‘(c) Less than 30 days. An employing office may re-
quest recertification in less than 30 days if: 
‘‘(1) The employee requests an extension of 
leave; 
‘‘(2) Circumstances described by the previous 
certification have changed significantly (e.g., the du-
ration or frequency of the absence, the nature or se-
verity of the illness, complications). For example, if 
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a medical certification stated that an employee 
would need leave for one to two days when the em-
ployee suffered a migraine headache and the employ-
ee’s absences for his or her last two migraines lasted 
four days each, then the increased duration of ab-
sence might constitute a significant change in cir-
cumstances 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 cir-
cumstances sufficient for an employing office to re-
quest a recertification 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 cer-
tification. For example, if an employee is on FMLA 
leave for four weeks due to the employee’s knee sur-
gery, including recuperation, and the employee plays 
in company softball league games during the employ-
ee’s third week of FMLA leave, such information 
might be sufficient to cast doubt upon the con-
tinuing validity of the certification allowing the em-
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ploying office to request a recertification in less than 
30 days. 
‘‘(d) Timing. The employee must provide the re-
quested recertification to the employing office within the 
time frame requested by the employing office (which must 
allow at least 15 calendar days after the employing office’s 
request), unless it is not practicable under the particular 
circumstances to do so despite the employee’s diligent, 
good faith efforts. 
‘‘(e) 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 employee has the same obligations to par-
ticipate and cooperate (including providing a complete and 
sufficient certification or adequate authorization to the 
health care provider) in the recertification 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 em-
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ploying office provides otherwise. No second or third opin-
ion on recertification may be required. 
‘‘§ 825.309 Certification for leave taken because of a 
qualifying exigency 
‘‘(a) Active Duty Orders. The first time an employee 
requests leave because of a qualifying exigency arising out 
of the covered active duty or call to covered active duty 
status (or notification of an impending call or order to 
covered active duty) of a military member (See 
825.126(a)), an employing office may require the em-
ployee to provide a copy of the military member’s active 
duty orders or other documentation issued by the military 
which indicates that the military member 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 doc-
umentation issued by the military may be required by the 
employing office if the need for leave because of a quali-
fying 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 
require that leave for any qualifying exigency specified in 
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825.126 be supported by a certification from the employee 
that sets forth the following information: 
‘‘(1) A statement or description, signed by the 
employee, of appropriate facts regarding the quali-
fying exigency 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 qualifying exigency for which leave is re-
quested and any available written documentation 
which supports the request for leave; such docu-
mentation, for example, may include a copy of a 
meeting announcement for informational briefings 
sponsored by the military, a document confirming an 
appointment with a counselor or school official, or a 
copy of a bill for services for the handling of legal 
or financial affairs; 
‘‘(2) The approximate date on which the quali-
fying 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 
schedule basis, an estimate of the frequency and du-
ration of the qualifying exigency; 
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‘‘(5) If the qualifying exigency involves meeting 
with a third party, appropriate contact information 
for the individual or entity with whom the employee 
is meeting (such as the name, title, organization, ad-
dress, telephone number, fax number, and email ad-
dress) 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 mem-
ber’s Rest and Recuperation orders, or other docu-
mentation issued 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 certifi-
cation requirements. This optional form reflects certifi-
cation requirements so as to permit the employee to fur-
nish appropriate information 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 informa-
tion may be required beyond that specified in this section. 
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‘‘(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. However, if the qualifying exigency involves 
meeting with a third party, the employing office may con-
tact the individual or entity with whom the employee is 
meeting for purposes of verifying a meeting or appoint-
ment schedule and the nature of the meeting between the 
employee and the specified individual or entity. The em-
ployee’s permission is not required in order to verify meet-
ings or appointments with third parties, but no additional 
information may be requested by the employing office. An 
employing office also may contact an appropriate unit of 
the Department of Defense to request verification that a 
military member is on covered active duty or call to cov-
ered active duty status (or has been notified of an impend-
ing call or order to covered active duty); no additional in-
formation may be requested and the employee’s permis-
sion is not required. 
‘‘§ 825.310 Certification for leave taken to care for a 
covered servicemember (military care-
giver leave) 
‘‘(a) Required information from health care provider. 
When leave is taken to care for a covered servicemember 
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with a serious injury or illness, an employing office may 
require an employee to obtain a certification completed by 
an authorized health care provider of the covered service-
member. For purposes of leave taken to care for a covered 
servicemember, any one of the following health care pro-
viders may complete such a certification: 
‘‘(1) A United States Department of Defense 
(‘DOD’) health care provider; 
‘‘(2) A United States Department of Veterans 
Affairs (‘VA’) health care provider; 
‘‘(3) A DOD TRICARE network authorized 
private health care provider; 
‘‘(4) A DOD non-network TRICARE author-
ized 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 de-
terminations from an authorized DOD representative 
(such as a DOD recovery care coordinator) or an author-
ized VA representative. An employing office may request 
that the health care provider provide the following infor-
mation: 
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‘‘(1) The name, address, and appropriate con-
tact 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 author-
ized private health care provider; 
‘‘(D) A DOD non-network TRICARE au-
thorized private health care provider; or 
‘‘(E) A health care provider as defined in 
825.125. 
‘‘(2) Whether the covered servicemember’s in-
jury or illness was incurred in the line of duty on 
active duty or, if not, whether the covered 
servicemember’s injury or illness existed before the 
beginning of the servicemember’s active duty and 
was aggravated by service in the line of duty on ac-
tive duty; 
‘‘(3) The approximate date on which the serious 
injury or illness commenced, or was aggravated, and 
its probable duration; 
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‘‘(4) A statement or description of appropriate 
medical facts regarding the covered servicemember’s 
health condition for which FMLA leave is requested. 
The medical 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 in-
clude information on whether the injury or ill-
ness 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 therapy; 
‘‘(B) In the case of a covered veteran, such 
medical facts must include: 
‘‘(i) Information on whether the vet-
eran is receiving medical treatment, recu-
peration, or therapy for an injury or illness 
that is the continuation of an injury or ill-
ness that was incurred or aggravated when 
the covered veteran was a member of the 
Armed Forces and rendered the service-
member medically unfit to perform the du-
ties of the servicemember’s office, grade, 
rank, or rating; or 
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‘‘(ii) Information on whether the vet-
eran is receiving medical treatment, recu-
peration, or therapy for an injury or illness 
that is a physical or mental condition for 
which the covered veteran has received a 
U.S. Department of Veterans Affairs Serv-
ice-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 vet-
eran is receiving medical treatment, recu-
peration, or therapy for an injury or illness 
that is a physical or mental condition that 
substantially impairs 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 treatment; or 
‘‘(iv) Documentation of enrollment in 
the Department of Veterans Affairs Pro-
gram of Comprehensive Assistance for 
Family Caregivers. 
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‘‘(5) Information sufficient to establish that the 
covered servicemember is in need of care, as de-
scribed in 825.124, and whether the covered service-
member will need care for a single continuous period 
of time, including any time for treatment and recov-
ery, and an estimate as to the beginning and ending 
dates for this period of time; 
‘‘(6) If an employee requests leave on an inter-
mittent or reduced schedule basis for planned med-
ical treatment appointments for the covered service-
member, whether there is a medical necessity for the 
covered servicemember to have such periodic care 
and an estimate of the treatment schedule of such 
appointments; 
‘‘(7) If an employee requests leave on an inter-
mittent or reduced schedule basis to care for a cov-
ered servicemember other than for planned medical 
treatment (e.g., episodic flare-ups of a medical con-
dition), whether there is a medical necessity for the 
covered servicemember to have such periodic care, 
which 
can 
include 
assisting 
in 
the 
covered 
servicemember’s recovery, and an estimate 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 
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may be requested under 825.310(b), an employing office 
may also request that such certification set forth the fol-
lowing information provided by an employee and/or cov-
ered 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 re-
questing 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 re-
questing leave to care; 
‘‘(3) Whether the covered servicemember is a 
current 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 as-
signed to a military medical facility as an outpatient 
or to a unit established for the purpose of providing 
command 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; 
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‘‘(5) Whether the covered servicemember is on 
the temporary disability retired list; 
‘‘(6) Whether the covered servicemember is a 
veteran, the date of separation from military service, 
and whether the separation was other than dishonor-
able. 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 separa-
tion is other than dishonorable. Where an employing 
office requires such documentation, an employee 
may provide a copy of the veteran’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 certifi-
cation requirements. This optional form reflects certifi-
cation requirements so as to permit the employee to fur-
nish appropriate information to support his or her request 
for leave to care for a covered servicemember with a seri-
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•HRES 1516 IH 
ous injury or illness. Form F, or Form WH–385 (devel-
oped by the Department of Labor), or another form con-
taining the same basic information, may be used by the 
employing office; however, no information may be required 
beyond that specified in this section. In all instances the 
information on the certification must relate only to the 
serious injury or illness for which the current need for 
leave exists. An employing office may seek authentication 
and/or clarification of the certification under 825.307. 
Second and third opinions under 825.307 are not per-
mitted 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 
permitted 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, 
recertifications 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 cov-
ered family relationship to the seriously injured or ill serv-
icemember pursuant to 825.122(k) of the FMLA. 
‘‘(e) An employing office requiring an employee to 
submit a certification for leave to care for a covered serv-
icemember must accept as sufficient certification, in lieu 
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•HRES 1516 IH 
of the Office of Congressional Workplace Rights’s optional 
certification form (Form F) or an employing office’s own 
certification form, invitational travel orders (ITOs) or in-
vitational travel authorizations (ITAs) issued to any fam-
ily 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. Dur-
ing that time period, an eligible employee may take leave 
to care for the covered servicemember in a continuous 
block of time or on an intermittent basis. An eligible em-
ployee who provides an ITO or ITA to support his or her 
request for leave may not be required to provide any addi-
tional or separate certification that leave taken on an 
intermittent basis during the period of time specified 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 regard-
less of whether the employee is named in the order or au-
thorization. 
‘‘(1) If an employee will need leave to care for 
a covered servicemember beyond the expiration date 
specified in an ITO or ITA, an employing office may 
request that the employee have one of the authorized 
health care providers listed under 825.310(a) com-
plete the Office of Congressional Workplace Rights 
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•HRES 1516 IH 
optional certification form (Form F) or an employ-
ing office’s own form, as requisite certification for 
the remainder of the employee’s necessary leave pe-
riod. 
‘‘(2) An employing office may seek authentica-
tion 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 em-
ployee to provide confirmation of covered family re-
lationship to the seriously injured or ill servicemem-
ber pursuant to 825.122(k) when an employee sup-
ports his or her request for FMLA leave with a copy 
of an ITO or ITA. 
‘‘(f) An employing office requiring an employee to 
submit a certification for leave to care for a covered serv-
icemember must accept as sufficient certification of the 
servicemember’s serious injury or illness documentation 
indicating the servicemember’s enrollment in the Depart-
ment of Veterans Affairs Program of Comprehensive As-
sistance for Family Caregivers. Such documentation is 
sufficient certification of the servicemember’s serious in-
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•HRES 1516 IH 
jury or illness to support the employee’s request for mili-
tary caregiver leave regardless of whether the employee is 
the named caregiver in the enrollment documentation. 
‘‘(1) An employing office may seek authentica-
tion and clarification of the documentation indi-
cating the servicemember’s enrollment in the De-
partment of Veterans Affairs Program of Com-
prehensive Assistance for Family Caregivers 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 when 
the servicemember’s serious injury or illness is 
shown by documentation of enrollment in this pro-
gram. 
‘‘(2) An employing office may require an em-
ployee to provide confirmation of covered family re-
lationship to the seriously injured or ill servicemem-
ber pursuant to 825.122(k) when an employee sup-
ports his or her request for FMLA leave with a copy 
of such enrollment documentation. An employing of-
fice may also require an employee to provide docu-
mentation, such as a veteran’s Form DD–214, show-
ing that the discharge was other than dishonorable 
and the date of the veteran’s discharge. 
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‘‘(g) Where medical certification is requested by an 
employing office, an employee may not be held liable for 
administrative delays in the issuance of military docu-
ments, despite the employee’s diligent, good-faith efforts 
to obtain such documents. See 825.305(b). In all instances 
in which certification is requested, it is the employee’s re-
sponsibility to provide the employing office with complete 
and sufficient certification 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 
restore the employee cease. However, these obligations 
continue if an employee indicates he or she may be unable 
to return to work but expresses a continuing desire to do 
so. 
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‘‘(c) It may be necessary for an employee to take 
more leave than originally anticipated. Conversely, an em-
ployee may discover after beginning leave that the cir-
cumstances have changed and the amount of leave origi-
nally anticipated is no longer necessary. An employee may 
not be required to take more FMLA leave than necessary 
to resolve the circumstance that precipitated the need for 
leave. In both of these situations, the employing office may 
require that the employee provide the employing office rea-
sonable notice (i.e., within two business days) of the 
changed circumstances where foreseeable. The employing 
office may also obtain information on such changed cir-
cumstances 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 per-
form the employee’s job, an employing office may have a 
uniformly-applied policy or practice that requires all simi-
larly-situated employees (i.e., same occupation, same seri-
ous 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 partici-
pate and cooperate (including providing a complete and 
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sufficient certification or providing sufficient authorization 
to the health care provider to provide the information di-
rectly to the employing office) in the fitness-for-duty cer-
tification process as in the initial certification process. See 
825.305(d). 
‘‘(b) An employing office may seek a fitness-for-duty 
certification only with regard to the particular health con-
dition that caused the employee’s need for FMLA leave. 
The certification 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 cer-
tification specifically address the employee’s ability to per-
form the essential functions of the employee’s job. In order 
to require such a certification, 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 em-
ployee’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 employ-
ee’s health care provider for purposes of clarifying and au-
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thenticating the fitness-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 employee’s return to work while contact with 
the health care provider is being made. No second or third 
opinions on a fitness-for-duty certification may be re-
quired. 
‘‘(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 certifi-
cation. 
‘‘(d) The designation notice required in 825.300(d) 
shall advise the employee if the employing office will re-
quire a fitness-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 sec-
tion. If an employing office provides the notice required, 
an employee who does not provide a fitness-for-duty cer-
tification or request additional FMLA leave is no longer 
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entitled to reinstatement under the FMLA. See 
825.313(d). 
‘‘(f) An employing office is not entitled to a certifi-
cation of fitness to return to duty for each absence taken 
on an intermittent or reduced leave schedule. However, an 
employing 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 employ-
ee’s ability to perform his or her duties, based on the seri-
ous health condition for which the employee took such 
leave. If an employing office chooses to require a fitness- 
for-duty certification under such circumstances, the em-
ploying office shall inform the employee at the same time 
it issues the designation notice that for each subsequent 
instance of intermittent or reduced schedule leave, the em-
ployee will be required to submit a fitness-for-duty certifi-
cation unless one has already been submitted within the 
past 30 days. Alternatively, an employing office can set 
a different interval for requiring a fitness-for-duty certifi-
cation 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 of-
fice may not terminate the employment of the employee 
while awaiting such a certification of fitness to return to 
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duty for an intermittent or reduced schedule leave ab-
sence. Reasonable safety concerns means a reasonable be-
lief of significant risk of harm to the individual employee 
or others. In determining whether reasonable safety con-
cerns exist, an employing office should consider the nature 
and severity of the potential 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. 
‘‘(h) Requirements under the Americans with Disabil-
ities 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 expense 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 examination or inquiry just because 
her leg had been amputated. The essential functions of 
an attorney’s job do not require use of both legs; therefore 
such an inquiry would not be job related. An employing 
office may require a warehouse laborer, whose back im-
pairment affects the ability to lift, to be examined by an 
orthopedist, but may not require this employee to submit 
to an HIV test where the test is not related to either the 
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essential functions of his or her job or to his/her impair-
ment. 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 re-
questing 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 
manner as required by 825.305, then an employing office 
may deny FMLA coverage until the required certification 
is provided. For example, if an employee has 15 days to 
provide a certification and does not provide the certifi-
cation for 45 days without sufficient reason for the delay, 
the employing office can deny FMLA protections for the 
30-day period following the expiration of the 15-day time 
period, if the employee 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 cer-
tification within 15 calendar days from receipt of the re-
quest for certification unless not practicable due to extenu-
ating circumstances. For example, in the case of a medical 
emergency, it may not be practicable for an employee to 
provide the required certification within 15 calendar days. 
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Absent such extenuating circumstances, if the employee 
fails to timely return the certification, the employing office 
can deny FMLA protections for the leave following the 
expiration of the 15-day time period until a sufficient cer-
tification is provided. If the employee never produces the 
certification, the leave is not FMLA leave. 
‘‘(c) Recertification. An employee must provide recer-
tification 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 recer-
tification within a reasonable time under the particular 
facts and circumstances, then the employing office may 
deny continuation of the FMLA leave protections until the 
employee produces a sufficient recertification. If the em-
ployee never produces the recertification, the leave is not 
FMLA leave. Recertification does not apply to leave taken 
for a qualifying exigency or to care for a covered service-
member. 
‘‘(d) Fitness-for-duty certification. When requested by 
the employing office pursuant to a uniformly applied pol-
icy for similarly-situated employees, the employee must 
provide medical certification, at the time the employee 
seeks reinstatement at the end of FMLA leave taken for 
the employee’s serious health condition, that the employee 
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is fit for duty and able to return to work (see 825.312(a)) 
if the employing office has provided the required notice 
(see 825.300(e)); the employing office may delay restora-
tion 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 ter-
minated. See also 825.213(a)(3). 
‘‘Subpart D—Administrative Process 
‘‘§ 825.400 Administrative process, general rules 
‘‘(a) The Procedural Rules of the Office of Congres-
sional Workplace Rights set forth the procedures that 
apply to the administrative process for considering and re-
solving alleged violations of the laws made applicable by 
the CAA, including the FMLA. The Rules include proce-
dures for filing claims and participating in administrative 
dispute resolution proceedings at the Office of Congres-
sional Workplace Rights, including procedures for the con-
duct of hearings and for appeals to the Board of Directors. 
The Procedural Rules also address other matters of gen-
eral applicability to the dispute resolution process and to 
the operations of the Office. 
‘‘(b) If an employing office has violated one or more 
provisions of FMLA, as incorporated by the CAA, and if 
justified by the facts of a particular case, an employee may 
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•HRES 1516 IH 
receive one or more of the following: wages, employment 
benefits, or other compensation denied or lost to such em-
ployee by reason of the violation; or, where no such tan-
gible loss has occurred, such as when FMLA leave was 
unlawfully denied, any actual monetary loss sustained by 
the employee as a direct result of the violation, such as 
the cost of providing care, up to a sum equal to 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 employee may be enti-
tled 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 because the 
violation was in good faith and the employing office had 
reasonable grounds for believing the employer had not vio-
lated the CAA. When appropriate, the employee may also 
obtain appropriate equitable relief, such as employment, 
reinstatement and promotion. When the employing office 
is found in violation, the employee may recover a reason-
able attorney’s fee, reasonable expert witness fees, and 
other costs as would be appropriate if awarded under sec-
tion 2000e–5(k) of title 42. 
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‘‘(c) The Procedural Rules of the Office of Congres-
sional 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, defini-
tions 
‘‘(a) Certain special rules apply to employees of local 
educational agencies, including public school boards and 
elementary schools under their jurisdiction, and private el-
ementary 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. 
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‘‘(c) The special rules affect the taking of intermit-
tent leave or leave on a reduced leave schedule, or leave 
near the end of an academic term (semester), by instruc-
tional employees. Instructional employees are those whose 
principal function is to teach and instruct students in a 
class, a small group, or an individual setting. This term 
includes not only teachers, but also athletic coaches, driv-
ing 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 teach-
ing or instructing, nor does it include auxiliary personnel 
such as counselors, psychologists, or curriculum special-
ists. It also does not include cafeteria workers, mainte-
nance workers, or bus drivers. 
‘‘(d) Special rules which apply to restoration to an 
equivalent position apply to all employees of local edu-
cational agencies. 
‘‘§ 825.601 Special rules for school employees, limita-
tions 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 dur-
ing the summer vacation when the employee would not 
have been required to report for duty is not counted 
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against the employee’s FMLA leave entitlement. An in-
structional employee who is on FMLA leave at the end 
of the school year must be provided with any benefits over 
the summer vacation that employees would normally re-
ceive 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 sched-
ule to care for a family member with a serious 
health condition, to care for a covered servicemem-
ber, or for the employee’s own serious health condi-
tion, which is foreseeable based on planned medical 
treatment, and the employee would be on leave for 
more than 20 percent of the total number of work-
ing days over the period the leave would extend, the 
employing office may require the employee to choose 
either to: 
‘‘(A) Take leave for a period or periods of 
a particular duration, not greater than the du-
ration of the planned treatment; or 
‘‘(B) Transfer temporarily to an available 
alternative position for which the employee is 
qualified, which has equivalent pay and benefits 
and which better accommodates recurring peri-
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ods of leave than does the employee’s regular 
position. 
‘‘(2) These rules apply only to a leave involving 
more than 20 percent of the working days during 
the period over which the leave extends. For exam-
ple, if an instructional employee who normally works 
five days each week needs to take two days of 
FMLA leave per week over a period of several 
weeks, the special rules would apply. Employees tak-
ing leave which constitutes 20 percent or less of the 
working days during the leave period would not be 
subject to transfer to an alternative position. Periods 
of a particular duration means a block, or blocks, of 
time beginning no earlier than the first day for 
which leave is needed and ending no later than the 
last day on which leave is needed, and may include 
one uninterrupted period of leave. 
‘‘(b) If an instructional employee does not give re-
quired notice of foreseeable FMLA leave (See 825.302) 
to be taken intermittently or on a reduced leave schedule, 
the employing office may require the employee to take 
leave of a particular duration, or to transfer temporarily 
to an alternative position. Alternatively, the employing of-
fice may require the employee to delay the taking of leave 
until the notice provision is met. 
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‘‘§ 825.602 Special rules for school employees, limita-
tions on leave near the end of an aca-
demic term 
‘‘(a) There are also different rules for instructional 
employees who begin leave more than five weeks before 
the end of a term, less than five weeks before the end 
of a term, and less than three weeks before the end of 
a term. Regular rules apply except in circumstances when: 
‘‘(1) An instructional employee begins leave 
more than five weeks before the end of a term. The 
employing office may require the employee to con-
tinue 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 
during 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 service-
member. The employing office may require the em-
ployee to continue taking leave until the end of the 
term if— 
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•HRES 1516 IH 
‘‘(A) The leave will last more than two 
weeks, and 
‘‘(B) The employee would return to work 
during 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 aca-
demic terms or semesters each year for purposes of 
FMLA, as made applicable by the CAA. An example of 
leave falling within these provisions would be where an em-
ployee plans two weeks of leave to care for a family mem-
ber which will begin three weeks before the end of the 
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term. In that situation, the employing office could require 
the employee to stay out on leave until the end of the term. 
‘‘§ 825.603 Special rules for school employees, dura-
tion of FMLA leave 
‘‘(a) If an employee chooses to take leave for periods 
of a particular duration in the case of intermittent or re-
duced schedule leave, the entire period of leave taken will 
count as FMLA leave. 
‘‘(b) In the case of an employee who is required to 
take leave until the end of an academic term, only the 
period of leave until the employee is ready and able to 
return to work shall be charged against the employee’s 
FMLA leave entitlement. The employing office has the op-
tion not to require the employee to stay on leave until the 
end of the school term. Therefore, any additional leave re-
quired by the employing office to the end of the school 
term is not counted as FMLA leave; however, the employ-
ing 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 con-
clusion of the leave. 
‘‘§ 825.604 Special rules for school employees, restora-
tion to an equivalent position 
‘‘ The determination of how an employee is to be re-
stored to an equivalent position upon return from FMLA 
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leave will be made on the basis of ‘established school board 
policies and practices, private school policies and practices, 
and collective bargaining agreements.’ The ‘established 
policies’ and collective bargaining agreements used as a 
basis for restoration must be in writing, must be made 
known to the employee prior to the taking of FMLA leave, 
and must clearly explain the employee’s restoration rights 
upon return from leave. Any established policy which is 
used as the basis for restoration of an employee to an 
equivalent position must provide substantially the same 
protections as provided in the FMLA, as made applicable 
by the CAA, for reinstated employees. See 825.215. In 
other words, the policy or collective bargaining agreement 
must provide for restoration to an equivalent position with 
equivalent employment benefits, pay, and other terms and 
conditions of employment. For example, an employee may 
not be restored to a position requiring additional licensure 
or certification. 
‘‘Subpart G—Effect of Other Laws, Employing Office 
Practices, and Collective Bargaining Agree-
ments on Employee Rights Under the FMLA, As 
Made Applicable By the CAA 
‘‘§ 825.700 Interaction with employing office’s policies 
‘‘(a) An employing office must observe any employ-
ment benefit program or plan that provides greater family 
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