IV 
117TH CONGRESS 
2D SESSION 
H. RES. 1516 
Approving certain regulations to implement provisions of the Congressional 
Accountability Act of 1995 relating to the Family and Medical Leave 
Act of 1993 with respect to employees of the House of Representatives 
covered under section 202 of the Act and relating to the Fair Labor 
Standards Act of 1938 with respect to employees of the House of Rep-
resentatives covered under section 203 of the Act, and for other purposes. 
IN THE HOUSE OF REPRESENTATIVES 
DECEMBER 12, 2022 
Ms. LOFGREN submitted the following resolution; which was referred to the 
Committee on House Administration, and in addition to the Committee 
on Education and Labor, for a period to be subsequently determined by 
the Speaker, in each case for consideration of such provisions as fall with-
in the jurisdiction of the committee concerned 
RESOLUTION 
Approving certain regulations to implement provisions of the 
Congressional Accountability Act of 1995 relating to the 
Family and Medical Leave Act of 1993 with respect 
to employees of the House of Representatives covered 
under section 202 of the Act and relating to the Fair 
Labor Standards Act of 1938 with respect to employees 
of the House of Representatives covered under section 
203 of the Act, and for other purposes. 
Resolved, 
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SECTION 1. APPROVAL OF REGULATIONS RELATING TO 
FAMILY AND MEDICAL LEAVE ACT. 
(a) IN GENERAL.—The regulations described in sub-
section (b) are hereby approved, insofar as such regula-
tions apply to covered employees of the House of Rep-
resentatives under the Congressional Accountability Act of 
1995 and to the extent such regulations are consistent 
with the provisions of such Act. 
(b) REGULATIONS APPROVED.—The regulations de-
scribed in this subsection are the regulations issued by the 
Office of Congressional Workplace Rights on December 7, 
2021, under section 202(e) of the Congressional Account-
ability Act of 1995 to implement section 202 of such Act 
(relating to the application of sections 101 through 105 
of the Family and Medical Leave Act of 1993), as pub-
lished in the Congressional Record on December 7, 2021 
(Volume 167, daily edition) on pages H7230 through 
H7258, and stated as follows: 
‘‘§ 825.1 Purpose and scope 
‘‘(a) Section 202 of the Congressional Accountability 
Act (CAA) (2 U.S.C. 1312) applies the rights and protec-
tions of sections 101 through 105 of the Family and Med-
ical Leave Act of 1993 (FMLA) (29 U.S.C. 2611–2615) 
to covered employees. (The term ‘covered employee’ is de-
fined in section 101(3) of the CAA (2 U.S.C. 1301(3)). 
See 825.102 of these regulations for that definition.) The 
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purpose of this part is to set forth the regulations to carry 
out the provisions of section 202 of the CAA. 
‘‘(b) These regulations are issued by the Board of Di-
rectors (Board) of the Office of Congressional Workplace 
Rights, pursuant to sections 202(d) and 304 of the CAA, 
which direct the Board to promulgate regulations imple-
menting section 202 that are ‘the same as substantive reg-
ulations promulgated by the Secretary of Labor to imple-
ment the statutory provisions referred to in subsection (a) 
øof section 202 of the CAA¿ except insofar as the Board 
may determine, for good cause shown . . . that a modifica-
tion of such regulations would be more effective for the 
implementation of the rights and protections under this 
section.’. The regulations issued by the Board herein are 
on all matters for which section 202 of the CAA requires 
regulations to be issued. Specifically, it is the Board’s con-
sidered judgment, based on the information available to 
it at the time of the promulgation of these regulations, 
that, with the exception of regulations adopted and set 
forth herein, there are no other ‘substantive regulations 
promulgated by the Secretary of Labor to implement the 
statutory provisions referred to in subsection (a) øof sec-
tion 202 of the CAA¿.’. 
‘‘(c) On December 20, 2019, Congress enacted the 
Federal Employee Paid Leave Act (subtitle A of title 
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LXXVI of division F of the National Defense Authoriza-
tion Act for Fiscal Year 2020, Public Law 116–92, De-
cember 20, 2019) (FEPLA). FEPLA amended the FMLA 
to allow most Federal employees, including eligible em-
ployees in the legislative branch, to substitute up to 12 
weeks of paid parental leave (PPL) for unpaid FMLA 
leave granted in connection with the birth of an employee’s 
son or daughter or for the placement of a son or daughter 
with an employee for adoption or foster care. 
In order to implement FEPLA in the legislative branch, 
the Board is amending its substantive FMLA regulations 
pursuant to the CAA rulemaking procedures set forth at 
sections 202(d) and 304 of the CAA. The Secretary of 
Labor has not promulgated FEPLA regulations, however, 
because FEPLA does not extend PPL to private sector 
employees or other employees directly covered by FMLA 
title I. The Board has determined that these cir-
cumstances constitute good cause for modification of its 
substantive FMLA regulations in order to effectively im-
plement FEPLA’s rights and protections to covered em-
ployees in the legislative branch. 
‘‘(d) In promulgating these regulations, the Board 
has made certain technical and nomenclature changes to 
the regulations as promulgated by the Secretary. Such 
changes are intended to make the provisions adopted ac-
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cord more naturally to situations in the legislative branch. 
However, by making these changes, the Board does not 
intend a substantive difference between these regulations 
and those of the Secretary from which they are derived. 
Moreover, such changes, in and of themselves, are not in-
tended to constitute an interpretation of the regulation or 
of the statutory provisions of the CAA upon which they 
are based. 
‘‘(e) Pursuant to section 304(b)(4) of the CAA, (2 
U.S.C. 1384(b)(4)), the Board of Directors is required to 
recommend to Congress a method of approval for these 
regulations. As the Board has adopted the same regula-
tions for the Senate, the House of Representatives, and 
the other covered entities and facilities, it therefore rec-
ommends that the adopted regulations be approved by 
concurrent resolution of the Congress. 
‘‘Subpart A—Coverage Under The Family And Med-
ical Leave Act, As Made Applicable By The Con-
gressional Accountability Act 
‘‘§ 825.100 The Family and Medical Leave Act 
‘‘(a) The Family and Medical Leave Act of 1993 
(FMLA), as made applicable by the Congressional Ac-
countability Act (CAA), allows eligible employees of an 
employing office to take job-protected, unpaid leave, or to 
substitute appropriate paid leave if the employee has 
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earned or accrued it, for up to a total of 12 workweeks 
in any 12 months (See 825.200(b)) because of the birth 
of a child and to care for the newborn child, because of 
the placement of a child with the employee for adoption 
or foster care, because the employee is needed to care for 
a family member (child, spouse, or parent) with a serious 
health condition, because the employee’s own serious 
health condition makes the employee unable to perform 
the functions of his or her job, or because of any qualifying 
exigency arising out of the fact that the employee’s spouse, 
son, daughter, or parent is a military member on active 
duty or call to covered active duty status (or has been noti-
fied of an impending call or order to covered active duty). 
In addition, eligible employees of a covered employing of-
fice may take job-protected, unpaid leave, or substitute ap-
propriate paid leave if the employee has earned or accrued 
it, for up to a total of 26 workweeks in a single 12–month 
period to care for a covered servicemember with a serious 
injury or illness. In certain cases, FMLA leave may be 
taken on an intermittent basis rather than all at once, or 
the employee may work a part-time schedule. 
‘‘(b) An employee on FMLA leave is also entitled to 
have health benefits maintained while on leave as if the 
employee had continued to work instead of taking the 
leave. If an employee was paying all or part of the pre-
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mium payments prior to leave, the employee would con-
tinue to pay his or her share during the leave period. Sub-
ject to 825.208(k), the employing office or a disbursing 
or other financial office may recover its share only if the 
employee does not return to work for a reason other than 
the serious health condition of the employee or the employ-
ee’s covered family member, the serious injury or illness 
of a covered servicemember, or another reason beyond the 
employee’s control. 
‘‘(c) An employee generally has a right to return to 
the same position or an equivalent position with equivalent 
pay, benefits, and working conditions at the conclusion of 
the leave. The taking of FMLA leave cannot result in the 
loss of any benefit that accrued prior to the start of the 
leave. 
‘‘(d) The employing office generally has a right to ad-
vance notice from the employee. In addition, the employing 
office may require an employee to submit certification to 
substantiate that the leave is due to the serious health 
condition of the employee or the employee’s covered family 
member, due to the serious injury or illness of a covered 
servicemember, or because of a qualifying exigency. Fail-
ure to comply with these requirements may result in a 
delay in the start of FMLA leave. Pursuant to a uniformly 
applied policy, the employing office may also require that 
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an employee present a certification of fitness to return to 
work when the absence was caused by the employee’s seri-
ous health condition (See 825.312 and 825.313)). The em-
ploying office may delay restoring the employee to employ-
ment without such certificate relating to the health condi-
tion which caused the employee’s absence. 
‘‘§ 825.101 Purpose of the FMLA 
‘‘(a) FMLA is intended to allow employees to balance 
their work and family life by taking reasonable unpaid 
leave for medical reasons, for the birth or adoption of a 
child, for the care of a child, spouse, or parent who has 
a serious health condition, for the care of a covered serv-
icemember with a serious injury or illness, or because of 
a qualifying exigency arising out of the fact that the em-
ployee’s spouse, son, daughter, or parent is a military 
member on covered active duty or call to covered active 
duty status. The FMLA is intended to balance the de-
mands of the workplace with the needs of families, to pro-
mote the stability and economic security of families, and 
to promote national interests in preserving family integ-
rity. It was intended that the FMLA accomplish these 
purposes in a manner that accommodates the legitimate 
interests of employing offices, and in a manner consistent 
with the Equal Protection Clause of the Fourteenth 
Amendment in minimizing the potential for employment 
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discrimination on the basis of sex, while promoting equal 
employment opportunity for men and women. 
‘‘(b) The FMLA was predicated on two fundamental 
concerns—the needs of the American workforce, and the 
development of high-performance organizations. Increas-
ingly, America’s children and elderly are dependent upon 
family members who must spend long hours at work. 
When a family emergency arises, requiring workers to at-
tend to seriously-ill children or parents, or to newly-born 
or adopted infants, or even to their own serious illness, 
workers need reassurance that they will not be asked to 
choose between continuing their employment, and meeting 
their personal and family obligations or tending to vital 
needs at home. 
‘‘(c) The FMLA is both intended and expected to 
benefit employing offices as well as their employees. A di-
rect correlation exists between stability in the family and 
productivity in the workplace. FMLA will encourage the 
development of high-performance organizations. When 
workers can count on durable links to their workplace they 
are able to make their own full commitments to their jobs. 
The record of hearings on family and medical leave indi-
cate the powerful productive advantages of stable work-
place relationships, and the comparatively small costs of 
guaranteeing that those relationships will not be dissolved 
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while workers attend to pressing family health obligations 
or their own serious illness. 
‘‘§ 825.102 Definitions 
‘‘For purposes of this part: 
‘‘(1) ADA means the Americans with Disabil-
ities Act (42 U.S.C. 12101 et seq., as amended), as 
made applicable by the Congressional Accountability 
Act. 
‘‘(2) Birth means the delivery of a child. When 
the term ‘birth’ under this subpart is used in con-
nection with the use of leave before birth, it refers 
to an anticipated birth. 
‘‘(3) CAA means the Congressional Account-
ability Act of 1995 (Pub. Law 104–1, 109 Stat. 3, 
2 U.S.C. 1301 et seq., as amended). 
‘‘(4) COBRA means the continuation coverage 
requirements of Title X of the Consolidated Omni-
bus Budget Reconciliation Act of 1986 (Pub. Law 
99–272, title X, section 10002; 100 Stat. 227; 29 
U.S.C. 1161–1168). 
‘‘(5) Contingency operation means a military 
operation that: 
‘‘(A) Is designated by the Secretary of De-
fense as an operation in which members of the 
Armed Forces are or may become involved in 
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military 
actions, 
operations, 
or 
hostilities 
against an enemy of the United States or 
against an opposing military force; or 
‘‘(B) Results in the call or order to, or re-
tention on, active duty of members of the uni-
formed services under section 688, 12301(a), 
12302, 12304, 12305, or 12406 of Title 10 of 
the United States Code, chapter 15 of Title 10 
of the United States Code, or any other provi-
sion of law during a war or during a national 
emergency declared by the President or Con-
gress. See also 825.126(a)(2). 
‘‘(6) Continuing treatment by a health care pro-
vider means any one of the following: 
‘‘(A) Incapacity and treatment. A period of 
incapacity of more than three consecutive, full 
calendar days, and any subsequent treatment or 
period of incapacity relating to the same condi-
tion, that also involves: 
‘‘(i) Treatment two or more times, 
within 30 days of the first day of inca-
pacity, unless extenuating circumstances 
exist, by a health care provider, by a nurse 
under direct supervision of a health care 
provider, or by a provider of health care 
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services (e.g., physical therapist) under or-
ders of, or on referral by, a health care 
provider; or 
‘‘(ii) Treatment by a health care pro-
vider on at least one occasion, which re-
sults in a regimen of continuing treatment 
under the supervision of the health care 
provider. 
‘‘(iii) The requirement in paragraphs 
(i) and (ii) of this definition for treatment 
by a health care provider means an in-per-
son visit to a health care provider. The 
first in-person treatment visit must take 
place within seven days of the first day of 
incapacity. 
‘‘(iv) Whether additional treatment 
visits or a regimen of continuing treatment 
is necessary within the 30-day period shall 
be determined by the health care provider. 
‘‘(v) 
The 
term 
‘extenuating 
cir-
cumstances’ in paragraph (i) means cir-
cumstances beyond the employee’s control 
that prevent the follow-up visit from occur-
ring as planned by the health care pro-
vider. Whether a given set of cir-
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cumstances are extenuating depends on the 
facts. See also 825.115(a)(5). 
‘‘(B) Pregnancy or prenatal care. Any pe-
riod of incapacity due to pregnancy, or for pre-
natal care. See also 825.120. 
‘‘(C) Chronic conditions. Any period of in-
capacity or treatment for such incapacity due to 
a chronic serious health condition. A chronic se-
rious health condition is one which: 
‘‘(i) Requires periodic visits (defined 
as at least twice a year) for treatment by 
a health care provider, or by a nurse under 
direct supervision of a health care pro-
vider; 
‘‘(ii) Continues over an extended pe-
riod of time (including recurring episodes 
of a single underlying condition); and 
‘‘(iii) May cause episodic rather than 
a continuing period of incapacity (e.g., 
asthma, diabetes, epilepsy, etc.). 
‘‘(D) Permanent or long-term conditions. A 
period of incapacity which is permanent or 
long-term due to a condition for which treat-
ment may not be effective. The employee or 
family member must be under the continuing 
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supervision of, but need not be receiving active 
treatment by, a health care provider. Examples 
include Alzheimer’s, a severe stroke, or the ter-
minal stages of a disease. 
‘‘(E) Conditions requiring multiple treat-
ments. Any period of absence to receive multiple 
treatments (including any period of recovery 
therefrom) by a health care provider or by a 
provider of health care services under orders of, 
or on referral by, a health care provider, for: 
‘‘(i) Restorative surgery after an acci-
dent or other injury; or 
‘‘(ii) A condition that would likely re-
sult in a period of incapacity of more than 
three consecutive full calendar days in the 
absence of medical intervention or treat-
ment, such as cancer (chemotherapy, radi-
ation, etc.), severe arthritis (physical ther-
apy), kidney disease (dialysis). 
‘‘(F) Absences attributable to incapacity 
under paragraphs (A) or (B) of this definition 
qualify for FMLA leave even though the em-
ployee or the covered family member does not 
receive treatment from a health care provider 
during the absence, and even if the absence 
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does not last more than three consecutive, full 
calendar days. For example, an employee with 
asthma may be unable to report for work due 
to the onset of an asthma attack or because the 
employee’s health care provider has advised the 
employee to stay home when the pollen count 
exceeds a certain level. An employee who is 
pregnant may be unable to report to work be-
cause of severe morning sickness. 
‘‘(7) Covered active duty or call to covered active 
duty status means: 
‘‘(A) In the case of a member of the Reg-
ular Armed Forces, duty during the deployment 
of the member with the Armed Forces to a for-
eign country; and, 
‘‘(B) In the case of a member of the Re-
serve components of the Armed Forces, duty 
during the deployment of the member with the 
Armed Forces to a foreign country under a 
Federal call or order to active duty in support 
of a contingency operation pursuant to: Section 
688 of Title 10 of the United States Code, 
which authorizes ordering to active duty retired 
members of the Regular Armed Forces and 
members of the retired Reserve who retired 
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after completing at least 20 years of active 
service; Section 12301(a) of Title 10 of the 
United States Code, which authorizes ordering 
all reserve component members to active duty 
in the case of war or national emergency; Sec-
tion 12302 of Title 10 of the United States 
Code, which authorizes ordering any unit or un-
assigned member of the Ready Reserve to active 
duty; Section 12304 of Title 10 of the United 
States Code, which authorizes ordering any unit 
or unassigned member of the Selected Reserve 
and certain members of the Individual Ready 
Reserve to active duty; Section 12305 of Title 
10 of the United States Code, which authorizes 
the suspension of promotion, retirement or sep-
aration rules for certain Reserve components; 
Section 12406 of Title 10 of the United States 
Code, which authorizes calling the National 
Guard into Federal service in certain cir-
cumstances; chapter 15 of Title 10 of the 
United States Code, which authorizes calling 
the National Guard and State military into 
Federal service in the case of insurrections and 
national emergencies; or any other provision of 
law during a war or during a national emer-
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gency declared by the President or Congress so 
long as it is in support of a contingency oper-
ation. See 10 U.S.C. 101(a)(13)(B). See also 
825.126(a). 
‘‘(8) Covered employee as defined in the CAA, 
means any employee of—(1) the House of Rep-
resentatives; (2) the Senate; (3) the Office of Con-
gressional Accessibility Services; (4) the Capitol Po-
lice; (5) the Congressional Budget Office; (6) the Of-
fice of the Architect of the Capitol; (7) the Office of 
the Attending Physician; (8) the Office of Congres-
sional Workplace Rights; (9) the Library of Con-
gress; (10) the Stennis Center for Public Service; 
(11) the Office of Technology Assessment; (12) the 
China Review Commission; (13) the Congressional 
Executive China Commission; (14) the Helsinki 
Commission; or (15) the United States Commission 
on International Religious Freedom. 
‘‘(9) Covered servicemember means: 
‘‘(A) A current member of the Armed 
Forces, including a member of the National 
Guard or Reserves, who is undergoing medical 
treatment, recuperation, or therapy, is other-
wise in outpatient status, or is otherwise on the 
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temporary disability retired list, for a serious 
injury or illness, or 
‘‘(B) A covered veteran who is undergoing 
medical treatment, recuperation, or therapy for 
a serious injury or illness. 
‘‘(10) Covered veteran means an individual who 
was a member of the Armed Forces (including a 
member of the National Guard or Reserves), and 
was discharged or released under conditions other 
than dishonorable at any time during the five-year 
period prior to the first date the eligible employee 
takes FMLA leave to care for the covered veteran. 
See 825.127(b)(2). 
‘‘(11) Eligible employee as defined in the CAA, 
means: 
‘‘(A) For purposes of leave under subpara-
graphs (a)(1) or (a)(2) of section 825.112 øor 
subsections (A) or (B) of section 102(a)(1) of 
the FMLA¿, a covered employee as defined in 
the CAA. 
‘‘(B) For purposes of leave under subpara-
graphs (a)(3)–(6) of section 825.112 øor sub-
sections (C)–(F) of section 102(a)(1) of the 
FMLA¿, a covered employee who has been em-
ployed for a total of at least 12 months in any 
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employing office on the date on which any 
FMLA leave is to commence, except that an 
employing office need not consider any period of 
previous employment that occurred more than 
seven years before the date of the most recent 
hiring of the employee, unless: 
‘‘(i) The break in service is occasioned 
by the fulfillment of the employee’s Uni-
formed Services Employment and Reem-
ployment Rights Act (USERRA), 38 
U.S.C. 4301, et seq., covered service obli-
gation (the period of absence from work 
due to or necessitated by USERRA-cov-
ered service must be also counted in deter-
mining whether the employee has been em-
ployed for at least 12 months by any em-
ploying office, but this section does not 
provide any greater entitlement to the em-
ployee than would be available under the 
USERRA, as made applicable by the 
CAA); or 
‘‘(ii) A written agreement, including a 
collective bargaining agreement, exists con-
cerning the employing office’s intention to 
rehire the employee after the break in serv-
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ice (e.g., for purposes of the employee fur-
thering his or her education or for 
childrearing purposes); and 
‘‘(C) Who, on the date on which any 
FMLA leave is to commence, has met the hours 
of service requirement by having been employed 
for at least 1,250 hours of service with an em-
ploying office during the previous 12–month pe-
riod, except that: 
‘‘(i) An employee returning from ful-
filling his or her USERRA-covered service 
obligation shall be credited with the hours 
of service that would have been performed 
but for the period of absence from work 
due to or necessitated by USERRA-cov-
ered service in determining whether the 
employee met the hours of service require-
ment (accordingly, a person reemployed 
following absence from work due to or ne-
cessitated by USERRA-covered service has 
the hours that would have been worked for 
the employing office added to any hours 
actually worked during the previous 12– 
month period to meet the hours of service 
requirement); 
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‘‘(ii) To determine the hours that 
would have been worked during the period 
of absence from work due to or neces-
sitated by USERRA-covered service, the 
employee’s pre-service work schedule can 
generally be used for calculations; and 
‘‘(iii) Any service on active duty (as 
defined in 29 U.S.C. 2611(14)) by a cov-
ered employee who is a member of the Na-
tional Guard or Reserves shall be counted 
as time during which such employee has 
been employed in an employing office for 
purposes of subparagraph (C) of this sec-
tion. 
‘‘(12) Employ means to suffer or permit to 
work. 
‘‘(13) Employee means an employee as defined 
by the CAA and includes an applicant for employ-
ment and a former employee. 
‘‘(14) Employee employed in an instructional 
capacity. See the definition of Teacher in this sec-
tion. 
‘‘(15) Employee of the Capitol Police means any 
member or officer of the Capitol Police. 
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‘‘(16) Employee of the House of Representatives 
means an individual occupying a position the pay for 
which is disbursed by the Chief Administrative Offi-
cer of the House of Representatives, or another offi-
cial designated by the House of Representatives, or 
any employment position in an entity that is paid 
with funds derived from the Members’ Representa-
tional Allowance of the House of Representatives but 
not any such individual employed by any entity list-
ed in subparagraphs (3) through (9) under the defi-
nition of covered employee above. 
‘‘(17) Employee of the Office of the Architect of 
the Capitol means any employee of the Office of the 
Architect of the Capitol or the Botanic Garden. 
‘‘(18) Employee of the Senate means any em-
ployee whose pay is disbursed by the Secretary of 
the Senate, but not any such individual employed by 
any entity listed in subparagraphs (3) through (9) 
under the definition of covered employee above. 
‘‘(19) Employing Office, as defined by the CAA, 
means: 
‘‘(A) The personal office of a Member of 
the House of Representatives or of a Senator; 
‘‘(B) A committee of the House of Rep-
resentatives or the Senate or a joint committee; 
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‘‘(C) Any other office headed by a person 
with the final authority to appoint, hire, dis-
charge, and set the terms, conditions, or privi-
leges of the employment of an employee of the 
House of Representatives or the Senate; or 
‘‘(D) The Office of Congressional Accessi-
bility Services, the United States Capitol Police, 
the Congressional Budget Office, the Office of 
the Architect of the Capitol, the Office of the 
Attending Physician, the Office of Congres-
sional Workplace Rights, the Library of Con-
gress, the Stennis Center for Public Service, the 
Office of Technology Assessment, the United 
States Commission on International Religious 
Freedom, the China Review Commission, the 
Congressional Executive China Commission, 
and the Helsinki Commission. 
‘‘(20) Employment benefits means all benefits 
provided or made available to employees by an em-
ploying office, including group life insurance, health 
insurance, disability insurance, sick leave, annual 
leave, educational benefits, and pensions, regardless 
of whether such benefits are provided by a practice 
or written policy of an employing office or through 
an employee benefit plan. The term does not include 
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non-employment related obligations paid by employ-
ees through voluntary deductions such as supple-
mental insurance coverage. See also 825.209(a). 
‘‘(21) Family and medical leave means an em-
ployee’s entitlement of up to 12 workweeks (or 26 
workweeks in the case of leave under 825.127) of 
unpaid leave for certain family and medical needs, 
as prescribed under the FMLA, as made applicable 
by the CAA. 
‘‘(22) FLSA means the Fair Labor Standards 
Act (29 U.S.C. 201 et seq.), as made applicable by 
the CAA. 
‘‘(23) FMLA means the Family and Medical 
Leave Act of 1993, Public Law 103–3 (February 5, 
1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as 
amended), as made applicable by the CAA. 
‘‘(24) Group health plan means the Federal 
Employees Health Benefits Program and any other 
plan of, or contributed to by, an employing office 
(including a self-insured plan) to provide health care 
(directly or otherwise) to the employing office’s em-
ployees, former employees, or the families of such 
employees or former employees. For purposes of 
FMLA, as made applicable by the CAA, the term 
group health plan shall not include an insurance 
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program providing health coverage under which em-
ployees purchase individual policies from insurers 
provided that: 
‘‘(A) No contributions are made by the em-
ploying office; 
‘‘(B) Participation in the program is com-
pletely voluntary for employees; 
‘‘(C) 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; 
‘‘(D) The employing office receives no con-
sideration in the form of cash or otherwise in 
connection with the program, other than rea-
sonable compensation, excluding any profit, for 
administrative services actually rendered in con-
nection with payroll deduction; and 
‘‘(E) The premium charged with respect to 
such coverage does not increase in the event the 
employment relationship terminates. 
‘‘(25) Health care provider means: 
‘‘(A) The FMLA, as made applicable by 
the CAA, defines health care provider as: 
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‘‘(i) A doctor of medicine or osteop-
athy who is authorized to practice medicine 
or surgery (as appropriate) by the State in 
which the doctor practices; or 
‘‘(ii) Any other person determined by 
the Department of Labor to be capable of 
providing health care services. 
‘‘(B) Others ‘capable of providing health 
care services’ include only: 
‘‘(i) Podiatrists, dentists, clinical psy-
chologists, optometrists, and chiropractors 
(limited to treatment consisting of manual 
manipulation of the spine to correct a sub-
luxation as demonstrated by X-ray to 
exist) authorized to practice in the State 
and performing within the scope of their 
practice as defined under State law; 
‘‘(ii) Nurse practitioners, nurse-mid-
wives and clinical social workers and physi-
cian assistants who are authorized to prac-
tice under State law and who are per-
forming within the scope of their practice 
as defined under State law; 
‘‘(iii) Christian Science practitioners 
listed with the First Church of Christ, Sci-
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entist in Boston, Massachusetts. Where an 
employee or family member is receiving 
treatment from a Christian Science practi-
tioner, an employee may not object to any 
requirement from an employing office that 
the employee or family member submit to 
examination (though not treatment) to ob-
tain a second or third certification from a 
health care provider other than a Christian 
Science practitioner except as otherwise 
provided under applicable State or local 
law or collective bargaining agreement; 
‘‘(iv) Any health care provider from 
whom an employing office or a group 
health plan’s benefits manager will accept 
certification of the existence of a serious 
health condition to substantiate a claim for 
benefits; and 
‘‘(v) A health care provider listed 
above who practices in a country other 
than the United States, who is authorized 
to practice in accordance with the law of 
that country, and who is performing within 
the scope of his or her practice as defined 
under such law. 
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‘‘(C) The phrase ‘authorized to practice in 
the State’ as used in this section means that 
the provider must be authorized to diagnose 
and treat physical or mental health conditions. 
‘‘(26) Incapable of self-care means that the indi-
vidual requires active assistance or supervision to 
provide daily self-care in several of the ‘activities of 
daily living’ (ADLs) or ‘instrumental activities of 
daily living’ (IADLs). Activities of daily living in-
clude adaptive activities such as caring appropriately 
for one’s grooming and hygiene, bathing, dressing 
and eating. Instrumental activities of daily living in-
clude cooking, cleaning, shopping, taking public 
transportation, paying bills, maintaining a residence, 
using telephones and directories, using a post office, 
etc. 
‘‘(27) Instructional employee: See the definition 
of Teacher in this section. 
‘‘(28) Intermittent leave means leave taken in 
separate periods of time due to a single illness or in-
jury, birth, or placement, rather than for one contin-
uous period of time, and may include leave of peri-
ods from an hour or more to several weeks. Exam-
ples of intermittent leave would include leave taken 
on an occasional basis for medical appointments, or 
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leave taken several days at a time spread over a pe-
riod of six months, such as for chemotherapy. 
‘‘(29) Invitational travel authorization (ITA) or 
Invitational travel order (ITO) mean orders issued 
by the Armed Forces to a family member to join an 
injured or ill servicemember at his or her bedside. 
See also 825.310(e). 
‘‘(30) Key employee means a salaried FMLA-el-
igible employee who is among the highest paid 10 
percent of all the employees employed by the employ-
ing office within 75 miles of the employee’s worksite. 
See also 825.217. 
‘‘(31) Mental disability: See the definition of 
Physical or mental disability in this section. 
‘‘(32) Military caregiver leave means leave 
taken to care for a covered servicemember with a se-
rious injury or illness under the Family and Medical 
Leave Act of 1993. See also 825.127. 
‘‘(33) Next of kin of a covered servicemember 
means the nearest blood relative other than the cov-
ered servicemember’s spouse, parent, son, or daugh-
ter, in the following order of priority: blood relatives 
who have been granted legal custody of the covered 
servicemember by court decree or statutory provi-
sions, brothers and sisters, grandparents, aunts and 
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uncles, and first cousins, unless the covered service-
member has specifically designated in writing an-
other blood relative as his or her nearest blood rel-
ative for purposes of military caregiver leave under 
the FMLA. When no such designation is made, and 
there are multiple family members with the same 
level of relationship to the covered servicemember, 
all such family members shall be considered the cov-
ered servicemember’s next of kin and may take 
FMLA leave to provide care to the covered service-
member, either consecutively or simultaneously. 
When such designation has been made, the des-
ignated individual shall be deemed to be the covered 
servicemember’s 
only 
next 
of 
kin. 
See 
also 
825.127(d)(3). 
‘‘(34) Office of Congressional Workplace Rights 
means the independent office established in the leg-
islative branch under section 301 of the CAA (2 
U.S.C. 1381). 
‘‘(35) Outpatient status means, with respect to 
a covered servicemember who is a current member of 
the Armed Forces, the status of a member of the 
Armed Forces assigned to either a military medical 
treatment facility as an outpatient; or a unit estab-
lished for the purpose of providing command and 
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control of members of the Armed Forces receiving 
medical care as outpatients. See also 825.127(b)(1). 
‘‘(36) Parent means a biological, adoptive, step 
or foster father or mother or any other individual 
who stood in loco parentis to the employee when the 
employee was a son or daughter as defined below. 
This term does not include parents ‘in law’. 
‘‘(37) Parent of a covered servicemember means 
a covered servicemember’s biological, adoptive, step 
or foster father or mother, or any other individual 
who stood in loco parentis to the covered service-
member. This term does not include parents ‘in law’. 
See also 825.127(d)(2). 
‘‘(38) Physical or mental disability means a 
physical or mental impairment that substantially 
limits one or more of the major life activities of an 
individual. Regulations at 29 C.F.R. part 1630, 
issued by the Equal Employment Opportunity Com-
mission under the Americans with Disabilities Act 
(ADA), 42 U.S.C. 12101 et seq., as amended, pro-
vide guidance for these terms. 
‘‘(39) Reduced leave schedule means a leave 
schedule that reduces the usual number of hours per 
workweek, or hours per workday, of an employee. 
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‘‘(40) Reserve components of the Armed Forces, 
for purposes of qualifying exigency leave, include the 
Army National Guard of the United States, Army 
Reserve, Navy Reserve, Marine Corps Reserve, Air 
National Guard of the United States, Air Force Re-
serve, and Coast Guard Reserve, and retired mem-
bers of the Regular Armed Forces or Reserves who 
are called up in support of a contingency operation. 
See also 825.126(a)(2)(i). 
‘‘(41) Secretary means the Secretary of Labor 
or authorized representative. 
‘‘(42) Serious health condition means an illness, 
injury, impairment, or physical or mental condition 
that involves inpatient care as defined in 825.114 or 
continuing treatment by a health care provider as 
defined in 825.115. Conditions for which cosmetic 
treatments are administered (such as most treat-
ments for acne or plastic surgery) are not serious 
health conditions unless inpatient hospital care is re-
quired or unless complications develop. Restorative 
dental or plastic surgery after an injury or removal 
of cancerous growths are serious health conditions 
provided all the other conditions of this regulation 
are met. Mental illness or allergies may be serious 
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health conditions, but only if all the conditions of 
825.113 are met. 
‘‘(43) Serious injury or illness means: 
‘‘(A) In the case of a current member of 
the Armed Forces, including a member of the 
National Guard or Reserves, an injury or illness 
that was incurred by the covered servicemember 
in the line of duty on active duty in the Armed 
Forces or that existed before the beginning of 
the member’s active duty and was aggravated 
by service in the line of duty on active duty in 
the Armed Forces and that may render the 
servicemember medically unfit to perform the 
duties of the member’s office, grade, rank, or 
rating; and 
‘‘(B) In the case of a covered veteran, an 
injury or illness that was incurred by the mem-
ber in the line of duty on active duty in the 
Armed Forces (or existed before the beginning 
of the member’s active duty and was aggra-
vated by service in the line of duty on active 
duty in the Armed Forces) and manifested 
itself before or after the member became a vet-
eran, and is: 
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‘‘(i) A continuation of a serious injury 
or illness that was incurred or aggravated 
when the covered veteran was a member of 
the Armed Forces and rendered the serv-
icemember unable to perform the duties of 
the servicemember’s office, grade, rank, or 
rating; or 
‘‘(ii) A physical or mental condition 
for which the covered veteran has received 
a U.S. Department of Veterans Affairs 
Service-Related 
Disability 
Rating 
(VASRD) of 50 percent or greater, and 
such VASRD rating is based, in whole or 
in part, on the condition precipitating the 
need for military caregiver leave; or 
‘‘(iii) A physical or mental condition 
that substantially impairs the covered vet-
eran’s ability to secure or follow a substan-
tially gainful occupation by reason of a dis-
ability or disabilities related to military 
service, or would do so absent treatment; 
or 
‘‘(iv) An injury, including a psycho-
logical injury, on the basis of which the 
covered veteran has been enrolled in the 
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Department of Veterans Affairs Program 
of Comprehensive Assistance for Family 
Caregivers. See also 825.127(c). 
‘‘(44) Son or daughter means a biological, 
adopted, or foster child, a stepchild, a legal ward, or 
a child of a person standing in loco parentis, who is 
either under age 18, or age 18 or older and ‘incapa-
ble of self-care because of a mental or physical dis-
ability’ at the time that FMLA leave is to com-
mence. 
‘‘(45) Son or daughter of a covered servicemem-
ber means a covered servicemember’s biological, 
adopted, or foster child, stepchild, legal ward, or a 
child for whom the covered servicemember stood in 
loco parentis, and who is of any age. See also 
825.127(d)(1). 
‘‘(46) Son or daughter on covered active duty or 
call to covered active duty status means the employ-
ee’s biological, adopted, or foster child, stepchild, 
legal ward, or a child for whom the employee stood 
in loco parentis, who is on covered active duty or call 
to covered active duty status, and who is of any age. 
See also 825.126(a)(5). 
‘‘(47) Spouse means a husband or wife. For 
purposes of this definition, husband or wife refers to 
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the other person with whom an individual entered 
into marriage as defined or recognized under State 
law for purposes of marriage in the State in which 
the marriage was entered into or, in the case of a 
marriage entered into outside of any State, if the 
marriage is valid in the place where entered into and 
could have been entered into in at least one State. 
This definition includes an individual in a same-sex 
or common law marriage that either: 
‘‘(A) Was entered into in a State that rec-
ognizes such marriages; or 
‘‘(B) If entered into outside of any State, 
is valid in the place where entered into and 
could have been entered into in at least one 
State. 
‘‘(48) Teacher (or employee employed in an in-
structional capacity, or instructional employee) 
means an employee employed principally in an in-
structional capacity by an educational agency or 
school whose principal function is to teach and in-
struct students in a class, a small group, or an indi-
vidual setting, and includes athletic coaches, driving 
instructors, and special education assistants such as 
signers for the hearing impaired. The term does not 
include teacher assistants or aides who do not have 
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as their principal function actual teaching or in-
structing, nor auxiliary personnel such as counselors, 
psychologists, curriculum specialists, cafeteria work-
ers, maintenance workers, bus drivers, or other pri-
marily noninstructional employees. 
‘‘(49) TRICARE is the health care program 
serving active duty servicemembers, National Guard 
and Reserve members, retirees, their families, sur-
vivors, and certain former spouses worldwide. 
‘‘§ 825.103 øReserved¿ 
‘‘§ 825.104 Covered employing offices 
‘‘The FMLA, as made applicable by the CAA, covers 
all employing offices. As used in the CAA, the term em-
ploying office means: 
‘‘(1) The personal office of a Member of the 
House of Representatives or of a Senator; 
‘‘(2) A committee of the House of Representa-
tives or the Senate or a joint committee; 
‘‘(3) Any other office headed by a person with 
the final authority to appoint, hire, discharge, and 
set the terms, conditions, or privileges of the employ-
ment of an employee of the House of Representa-
tives or the Senate; or 
‘‘(4) The Office of Congressional Accessibility 
Services, the United States Capitol Police, the Con-
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gressional Budget Office, the Office of the Architect 
of the Capitol, the Office of the Attending Physician, 
the Office of Congressional Workplace Rights, the 
Library of Congress, the Stennis Center for Public 
Service, the China Review Commission, the Congres-
sional Executive China Commission, the Helsinki 
Commission, the United States Commission on 
International Religious Freedom, and the Office of 
Technology Assessment. 
‘‘§ 825.105 øReserved¿ 
‘‘§ 825.106 Joint employer coverage 
‘‘(a) Where two or more employing offices exercise 
some control over the work or working conditions of the 
employee, the employing offices may be joint employers 
under FMLA, as made applicable by the CAA. Where the 
employee performs work which simultaneously benefits 
two or more employing offices, or works for two or more 
employing offices at different times during the workweek, 
a joint employment relationship generally will be consid-
ered to exist in situations such as: 
‘‘(1) Where there is an arrangement between 
employing offices to share an employee’s services or 
to interchange employees; 
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‘‘(2) Where one employing office acts directly or 
indirectly in the interest of the other employing of-
fice in relation to the employee; or 
‘‘(3) Where the employing offices are not com-
pletely disassociated with respect to the employee’s 
employment and may be deemed to share control of 
the employee, directly or indirectly, because one em-
ploying office controls, is controlled by, or is under 
common control with the other employing office. 
‘‘(b) A determination of whether or not a joint em-
ployment relationship exists is not determined by the ap-
plication of any single criterion, but rather the entire rela-
tionship is to be viewed in its totality. For example, joint 
employment will ordinarily be found to exist when: 
‘‘(1) An employee, who is employed by an em-
ploying office other than the personal office of a 
Member of the House of Representatives or of a 
Senator, is under the actual direction and control of 
the Member of the House of Representatives or Sen-
ator; or 
‘‘(2) Two or more employing offices employ an 
individual to work on common issues or other mat-
ters for both or all of them. 
‘‘(c) When employing offices employ a covered em-
ployee jointly, they may designate one of themselves to be 
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the primary employing office, and the other or others to 
be the secondary employing office(s). Such a designation 
shall be made by written notice to the covered employee. 
‘‘(d) If an employing office is designated a primary 
employing office pursuant to paragraph (c) of this section, 
only that employing office is responsible for giving re-
quired notices to the covered employee, providing FMLA 
leave, and maintenance of health benefits. Job restoration 
is the primary responsibility of the primary employing of-
fice, and the secondary employing office(s) may, subject 
to the limitations in 825.216, be responsible for accepting 
the employee returning from FMLA leave. 
‘‘(e) If employing offices employ an employee jointly, 
but fail to designate a primary employing office pursuant 
to paragraph (c) of this section, then all of these employ-
ing offices shall be jointly and severally liable for giving 
required notices to the employee, for providing FMLA 
leave, for assuring that health benefits are maintained, 
and for job restoration. The employee may give notice of 
need for FMLA leave, as described in 825.302 and 
825.303, to whichever of these employing offices the em-
ployee chooses. If the employee makes a written request 
for restoration to one of these employing offices, that em-
ploying office shall be primarily responsible for job res-
toration, and the other employing office(s) may, subject 
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to the limitations in 825.216, be responsible for accepting 
the employee returning from FMLA leave. 
‘‘§ 825.107 øReserved¿ 
‘‘§ 825.108 øReserved¿ 
‘‘§ 825.109 øReserved¿ 
‘‘§ 825.110 Eligible employee, general rule 
‘‘(a) Subject to the exceptions provided in 825.111, 
an eligible employee is a covered employee of an employing 
office who: 
‘‘(1) Has been employed by any employing of-
fice for at least 12 months, and 
‘‘(2) Has been employed for at least 1,250 
hours of service during the 12-month period imme-
diately preceding the commencement of the leave. 
‘‘(b) Any service on active duty (as defined in 29 
U.S.C. 2611(14)) by a covered employee who is a member 
of the National Guard or Reserves shall be counted as 
time during which such employee has been employed in 
an employing office for purposes of paragraph (a)(1) and 
(2) of this section. 
‘‘(c) The 12 months an employee must have been em-
ployed by any employing office need not be consecutive 
months, provided: 
‘‘(1) Subject to the exceptions provided in para-
graph (c)(2) of this section, employment periods 
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prior to a break in service of seven years or more 
need not be counted in determining whether the em-
ployee has been employed by any employing office 
for at least 12 months. 
‘‘(2) Employment periods preceding a break in 
service of more than seven years must be counted in 
determining whether the employee has been em-
ployed by any employing office for at least 12 
months where: 
‘‘(A) The employee’s break in service is oc-
casioned by the fulfillment of his or her Uni-
formed Services Employment and Reemploy-
ment Rights Act (USERRA), 38 U.S.C. 4301, 
et seq., covered service obligation. The period of 
absence from work due to or necessitated by 
USERRA-covered service must be also counted 
in determining whether the employee has been 
employed for at least 12 months by any employ-
ing office. However, this section does not pro-
vide any greater entitlement to the employee 
than would be available under the USERRA; or 
‘‘(B) A written agreement, including a col-
lective bargaining agreement, exists concerning 
the employing office’s intention to rehire the 
employee after the break in service (e.g., for 
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purposes of the employee furthering his or her 
education or for childrearing purposes). 
‘‘(3) If an employee worked for two or more 
employing offices sequentially, the time worked will 
be aggregated to determine whether it equals 12 
months. 
‘‘(4) If an employee is maintained on the pay-
roll for any part of a week, including any periods of 
paid or unpaid leave (sick, vacation) during which 
other benefits or compensation are provided by the 
employing office (e.g., Federal Employees’ Com-
pensation, group health plan benefits, etc.), the week 
counts as a week of employment. For purposes of 
determining whether intermittent/occasional/casual 
employment qualifies as at least 12 months, 52 
weeks is deemed to be equal to 12 months. 
‘‘(5) Nothing in this section prevents employing 
offices from considering employment prior to a con-
tinuous break in service of more than seven years 
when determining whether an employee has met the 
12–month employment requirement. However, if an 
employing office chooses to recognize such prior em-
ployment, the employing office must do so uniformly, 
with respect to all employees with similar breaks in 
service. 
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‘‘(d)(1) If an employee was employed by two or more 
employing offices, either sequentially or concurrently, the 
hours of service will be aggregated to determine whether 
the minimum of 1,250 hours has been reached. 
‘‘(2) Except as provided in paragraph (c)(3) of this 
section, whether an employee has worked the minimum 
1,250 hours of service is determined according to the prin-
ciples established under the Fair Labor Standards Act 
(FLSA), as applied by section 203 of the CAA (2 U.S.C. 
1313), for determining compensable hours of work. The 
determining factor is the number of hours an employee 
has worked for one or more employing offices as defined 
by the CAA. The determination is not limited by methods 
of recordkeeping, or by compensation agreements that do 
not accurately reflect all of the hours an employee has 
worked for or been in service to the employing office. Any 
accurate accounting of actual hours worked under the 
FLSA’s principles, as made applicable by the CAA (2 
U.S.C. 1313), may be used. 
‘‘(3) An employee returning from USERRA-covered 
service shall be credited with the hours of service that 
would have been performed but for the period of absence 
from work due to or necessitated by USERRA-covered 
service in determining the employee’s eligibility for 
FMLA-qualifying leave. Accordingly, a person reemployed 
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following USERRA-covered service has the hours that 
would have been worked for the employing office added 
to any hours actually worked during the previous 12– 
month period to meet the hours of service requirement. 
In order to determine the hours that would have been 
worked during the period of absence from work due to or 
necessitated by USERRA-covered service, the employee’s 
pre-service work schedule can generally be used for cal-
culations. 
‘‘(4) In the event an employing office does not main-
tain an accurate record of hours worked by an employee, 
including for employees who are exempt from the overtime 
requirements of the FLSA, as made applicable by the 
CAA and its regulations, the employing office has the bur-
den of showing that the employee has not worked the req-
uisite hours. An employing office must be able to clearly 
demonstrate, for example, that full time teachers (See 
825.102 for definition) of an elementary or secondary 
school system, or institution of higher education, or other 
educational establishment or institution (who often work 
outside the classroom or at their homes) did not work 
1,250 hours during the previous 12 months in order to 
claim that the teachers are not covered or eligible for 
FMLA leave. 
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‘‘(e) The determination of whether an employee meets 
the hours of service requirement for any employing office 
and has been employed by any employing office for a total 
of at least 12 months, must be made as of the date the 
FMLA leave is to start. An employee may be on non- 
FMLA leave at the time he or she meets the 12-month 
eligibility requirement, and in that event, any portion of 
the leave taken for an FMLA-qualifying reason after the 
employee meets the eligibility requirement would be 
FMLA leave. See 825.300(b) for rules governing the con-
tent of the eligibility notice given to employees. 
‘‘§ 825.111 Eligible employee, birth or placement 
‘‘For purposes of leave under subparagraphs (A) or 
(B) of section 102(a)(1) of the FMLA, 29 U.S.C. 
2612(a)(1)(A) or (B): 
‘‘(1) an eligible employee is a covered employee 
of an employing office; and 
‘‘(2) the eligibility requirements of section 
825.110 shall not apply. See also 825.120-21. 
‘‘§ 825.112 Qualifying reasons for leave, general rule 
‘‘(a) Circumstances qualifying for leave. Employing 
offices covered by FMLA as made applicable by the CAA 
are required to grant leave to eligible employees: 
‘‘(1) For birth of a son or daughter, and to 
care for the newborn child (See 825.120); 
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‘‘(2) For the placement of a son or daughter 
with the employee for adoption or foster care and 
the care of such son or daughter (See 825.121); 
‘‘(3) To care for the employee’s spouse, son, 
daughter, or parent with a serious health condition 
(See 825.113 and 825.122); 
‘‘(4) Because of a serious health condition that 
makes the employee unable to perform the functions 
of the employee’s job (See 825.113 and 825.123); 
‘‘(5) Because of any qualifying exigency arising 
out of the fact that the employee’s spouse, son, 
daughter, or parent is a military member on covered 
active duty (or has been notified of an impending 
call or order to covered active duty status) (See 
825.122 and 825.126); and 
‘‘(6) To care for a covered servicemember with 
a serious injury or illness if the employee is the 
spouse, son, daughter, parent, or next of kin of the 
covered servicemember (See 825.122 and 825.127). 
‘‘(b) Equal Application. The right to take leave under 
FMLA, as made applicable by the CAA, applies equally 
to male and female employees. A father, as well as a moth-
er, can take family leave for the birth, placement for adop-
tion, or foster care of a child. 
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‘‘(c) Active employee. In situations where the employ-
ing office/employee relationship has been interrupted, such 
as an employee who has been on layoff, the employee must 
be recalled or otherwise be re-employed before being eligi-
ble for FMLA leave. Under such circumstances, an eligible 
employee is immediately entitled to further FMLA leave 
for a qualifying reason. 
‘‘§ 825.113 Serious health condition 
‘‘(a) For purposes of FMLA, serious health condition 
entitling an employee to FMLA leave means an illness, 
injury, impairment, or physical or mental condition that 
involves inpatient care as defined in 825.114 or continuing 
treatment by a health care provider as defined in 825.115. 
‘‘(b) The term incapacity means inability to work, at-
tend school, or perform other regular daily activities due 
to the serious health condition, treatment therefore, or re-
covery therefrom. 
‘‘(c) The term treatment includes (but is not limited 
to) examinations to determine if a serious health condition 
exists and evaluations of the condition. Treatment does 
not include routine physical examinations, eye examina-
tions, or dental examinations. A regimen of continuing 
treatment includes, for example, a course of prescription 
medication (e.g., an antibiotic) or therapy requiring spe-
cial equipment to resolve or alleviate the health condition 
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(e.g., oxygen). A regimen of continuing treatment that in-
cludes the taking of over-the-counter medications such as 
aspirin, antihistamines, or salves; or bed-rest, drinking 
fluids, exercise, and other similar activities that can be ini-
tiated without a visit to a health care provider, is not, by 
itself, sufficient to constitute a regimen of continuing 
treatment for purposes of FMLA leave. 
‘‘(d) Conditions for which cosmetic treatments are 
administered (such as most treatments for acne or plastic 
surgery) are not serious health conditions unless inpatient 
hospital care is required or unless complications develop. 
Ordinarily, unless complications arise, the common cold, 
the flu, ear aches, upset stomach, minor ulcers, headaches 
other than migraine, routine dental or orthodontia prob-
lems, periodontal disease, etc., are examples of conditions 
that do not meet the definition of a serious health condi-
tion and do not qualify for FMLA leave. Restorative den-
tal or plastic surgery after an injury or removal of can-
cerous growths are serious health conditions provided all 
the other conditions of this regulation are met. Mental ill-
ness or allergies may be serious health conditions, but only 
if all the conditions of this section are met. 
‘‘§ 825.114 Inpatient care 
‘‘Inpatient care means an overnight stay in a hos-
pital, hospice, or residential medical care facility, including 
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any period of incapacity as defined in 825.113(b), or any 
subsequent treatment in connection with such inpatient 
care. 
‘‘§ 825.115 Continuing treatment 
‘‘A serious health condition involving continuing 
treatment by a health care provider includes any one or 
more of the following: 
‘‘(a) Incapacity and treatment. A period of incapacity 
of more than three consecutive, full calendar days, and 
any subsequent treatment or period of incapacity relating 
to the same condition, that also involves: 
‘‘(1) Treatment two or more times, within 30 
days of the first day of incapacity, unless extenu-
ating circumstances exist, by a health care provider, 
by a nurse under direct supervision of a health care 
provider, or by a provider of health care services 
(e.g., physical therapist) under orders of, or on re-
ferral by, a health care provider. 
‘‘(2) Treatment by a health care provider on at 
least one occasion, which results in a regimen of 
continuing treatment under the supervision of the 
health care provider. 
‘‘(3) The requirement in paragraphs (a)(1) and 
(2) of this section for treatment by a health care 
provider means an in-person visit to a health care 
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provider. The first (or only) in-person treatment 
visit must take place within seven days of the first 
day of incapacity. 
‘‘(4) Whether additional treatment visits or a 
regimen of continuing treatment is necessary within 
the 30-day period shall be determined by the health 
care provider. 
‘‘(5) The term extenuating circumstances in 
paragraph (a)(1) of this section means cir-
cumstances beyond the employee’s control that pre-
vent the follow-up visit from occurring as planned by 
the health care provider. Whether a given set of cir-
cumstances are extenuating depends on the facts. 
For example, extenuating circumstances exist if a 
health care provider determines that a second in-per-
son visit is needed within the 30-day period, but the 
health care provider does not have any available ap-
pointments during that time period. 
‘‘(b) Pregnancy or prenatal care. Any period of inca-
pacity due to pregnancy, or for prenatal care. See also 
825.120. 
‘‘(c) Chronic conditions. Any period of incapacity or 
treatment for such incapacity due to a chronic serious 
health condition. A chronic serious health condition is one 
which: 
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‘‘(1) Requires periodic visits (defined as at least 
twice a year) for treatment by a health care pro-
vider, or by a nurse under direct supervision of a 
health care provider; 
‘‘(2) Continues over an extended period of time 
(including recurring episodes of a single underlying 
condition); and 
‘‘(3) May cause episodic rather than a con-
tinuing period of incapacity (e.g., asthma, diabetes, 
epilepsy, etc.). 
‘‘(d) Permanent or long-term conditions. A period of 
incapacity which is permanent or long-term due to a condi-
tion for which treatment may not be effective. The em-
ployee or family member must be under the continuing 
supervision of, but need not be receiving active treatment 
by, a health care provider. Examples include Alzheimer’s, 
a severe stroke, or the terminal stages of a disease. 
‘‘(e) Conditions requiring multiple treatments. Any 
period of absence to receive multiple treatments (including 
any period of recovery therefrom) by a health care pro-
vider or by a provider of health care services under orders 
of, or on referral by, a health care provider, for: 
‘‘(1) Restorative surgery after an accident or 
other injury; or 
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‘‘(2) A condition that would likely result in a 
period of incapacity of more than three consecutive, 
full calendar days in the absence of medical inter-
vention or treatment, such as cancer (chemotherapy, 
radiation, etc.), severe arthritis (physical therapy), 
or kidney disease (dialysis). 
‘‘(f) Absences attributable to incapacity under para-
graphs (b) or (c) of this section qualify for FMLA leave 
even though the employee or the covered family member 
does not receive treatment from a health care provider 
during the absence, and even if the absence does not last 
more than three consecutive, full calendar days. For exam-
ple, an employee with asthma may be unable to report for 
work due to the onset of an asthma attack or because the 
employee’s health care provider has advised the employee 
to stay home when the pollen count exceeds a certain level. 
An employee who is pregnant may be unable to report to 
work because of severe morning sickness. 
‘‘§ 825.116 øReserved¿ 
‘‘§ 825.117 øReserved¿ 
‘‘§ 825.118 øReserved¿ 
‘‘§ 825.119 Leave for treatment of substance abuse 
‘‘(a) Substance abuse may be a serious health condi-
tion if the conditions of 825.113 through 825.115 are met. 
However, FMLA leave may only be taken for treatment 
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for substance abuse by a health care provider or by a pro-
vider of health care services on referral by a health care 
provider. On the other hand, absence because of the em-
ployee’s use of the substance, rather than for treatment, 
does not qualify for FMLA leave. 
‘‘(b) Treatment for substance abuse does not prevent 
an employing office from taking employment action 
against an employee. The employing office may not take 
action against the employee because the employee has ex-
ercised his or her right to take FMLA leave for treatment. 
However, if the employing office has an established policy, 
applied in a non-discriminatory manner that has been 
communicated to all employees, that provides under cer-
tain circumstances an employee may be terminated for 
substance abuse, pursuant to that policy the employee may 
be terminated whether or not the employee is presently 
taking FMLA leave. An employee may also take FMLA 
leave to care for a covered family member who is receiving 
treatment for substance abuse. The employing office may 
not take action against an employee who is providing care 
for a covered family member receiving treatment for sub-
stance abuse. 
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‘‘§ 825.120 Leave for pregnancy or birth 
‘‘(a) General rules. Eligible employees are entitled to 
FMLA leave for pregnancy or birth of a son or daughter 
and to care for the newborn child as follows: 
‘‘(1) Both parents are entitled to FMLA leave 
for the birth of their child. 
‘‘(2) Both parents are entitled to FMLA leave 
to be with the healthy newborn child (i.e., bonding 
time) during the 12-month period beginning on the 
date of birth. An employee’s entitlement to FMLA 
leave for a birth expires at the end of the 12-month 
period beginning on the date of the birth. If the em-
ploying office permits bonding leave to be taken be-
yond this period, such leave will not qualify as 
FMLA leave. Under this section, both parents are 
entitled to FMLA leave even if the newborn does not 
have a serious health condition. 
‘‘(3) Spouses who are eligible for FMLA leave 
and are employed by the same employing office may 
be limited to a combined total of 12 weeks of leave 
during any 12-month period if the leave is taken for 
birth of the employee’s son or daughter or to care 
for the child after birth, for placement of a son or 
daughter with the employee for adoption or foster 
care or to care for the child after placement, or to 
care for the employee’s parent with a serious health 
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condition. This limitation on the total weeks of leave 
applies to leave taken for the reasons specified as 
long as the spouses are employed by the same em-
ploying office. It would apply, for example, even 
though the spouses are employed at two different 
worksites of an employing office. On the other hand, 
if one spouse is ineligible for FMLA leave, the other 
spouse would be entitled to a full 12 weeks of 
FMLA leave. Where spouses both use a portion of 
the total 12-week FMLA leave entitlement for either 
the birth of a child, for placement for adoption or 
foster care, or to care for a parent, the spouses 
would each be entitled to the difference between the 
amount he or she has taken individually and 12 
weeks for FMLA leave for other purposes. For ex-
ample, if each spouse took six weeks of leave to care 
for a healthy, newborn child, each could use an addi-
tional six weeks due to his or her own serious health 
condition or to care for a child with a serious health 
condition. 
‘‘(4) The expectant mother is entitled to FMLA 
leave for incapacity due to pregnancy, for prenatal 
care, or for her own serious health condition fol-
lowing the birth of the child. An expectant mother 
may take FMLA leave before the birth of the child 
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for prenatal care or if her condition makes her un-
able to work. The expectant mother is entitled to 
leave for incapacity due to pregnancy even though 
she does not receive treatment from a health care 
provider during the absence, and even if the absence 
does not last for more than three consecutive cal-
endar days. 
‘‘(5) A spouse is entitled to FMLA leave if 
needed to care for a pregnant spouse who is inca-
pacitated or if needed to care for her during her pre-
natal care, or if needed to care for her following the 
birth of a child if she has a serious health condition. 
See 825.124. 
‘‘(6) Both parents are entitled to FMLA leave 
if needed to care for a child with a serious health 
condition if the requirements of 825.113 through 
825.115 and 825.122(d) are met. Thus, spouses 
may each take 12 weeks of FMLA leave if needed 
to care for their newborn child with a serious health 
condition, even if both are employed by the same 
employing office, provided they have not exhausted 
their entitlements during the applicable 12-month 
FMLA leave period. 
‘‘(b) Intermittent and reduced schedule leave. An eligi-
ble employee may use intermittent or reduced schedule 
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leave after the birth to be with a healthy newborn child 
only if the employing office agrees. For example, an em-
ploying office and employee may agree to a part-time work 
schedule after the birth. If the employing office agrees to 
permit intermittent or reduced schedule leave for the birth 
of a child, the employing office may require the employee 
to transfer temporarily, during the period the intermittent 
or reduced leave schedule is required, to an available alter-
native position for which the employee is qualified and 
which better accommodates recurring periods of leave than 
does the employee’s regular position. Transfer to an alter-
native position may require compliance with any applicable 
collective bargaining agreement and Federal law (such as 
the Americans with Disabilities Act, as made applicable 
by the CAA). Transfer to an alternative position may in-
clude altering an existing job to better accommodate the 
employee’s need for intermittent or reduced leave. The em-
ploying office’s agreement is not required for intermittent 
leave required by the serious health condition of the ex-
pectant mother or newborn child. See 825.202–825.205 
for general rules governing the use of intermittent and re-
duced schedule leave. See 825.121 for rules governing 
leave for adoption or foster care. See 825.601 for special 
rules applicable to instructional employees of schools. 
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‘‘§ 825.121 Leave for adoption or foster care 
‘‘(a) General rules. Eligible employees are entitled to 
FMLA leave for placement with the employee of a son or 
daughter for adoption or foster care and to care for the 
newly placed child as follows: 
‘‘(1) Employees may take FMLA leave before 
the actual placement or adoption of a child if an ab-
sence from work is required for the placement for 
adoption or foster care to proceed. For example, the 
employee may be required to attend counseling ses-
sions, appear in court, consult with his or her attor-
ney or the doctor(s) representing the birth parent, 
submit to a physical examination, or travel to an-
other country to complete an adoption. The source 
of an adopted child (e.g., whether from a licensed 
placement agency or otherwise) is not a factor in de-
termining eligibility for leave for this purpose. 
‘‘(2) An employee’s entitlement to leave for 
adoption or foster care expires at the end of the 12- 
month period beginning on the date of the place-
ment. If the employing office permits leave for adop-
tion or foster care to be taken beyond this period, 
such leave will not qualify as FMLA leave. Under 
this section, the employee is entitled to FMLA leave 
even if the adopted or foster child does not have a 
serious health condition. 
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‘‘(3) Spouses who are eligible for FMLA leave 
and are employed by the same covered employing of-
fice may be limited to a combined total of 12 weeks 
of leave during any 12-month period if the leave is 
taken for the placement of the employee’s son or 
daughter or to care for the child after placement, for 
the birth of the employee’s son or daughter or to 
care for the child after birth, or to care for the em-
ployee’s parent with a serious health condition. This 
limitation on the total weeks of leave applies to leave 
taken for the reasons specified as long as the 
spouses are employed by the same employing office. 
It would apply, for example, even though the spouses 
are employed at two different worksites of an em-
ploying office. On the other hand, if one spouse is 
ineligible for FMLA leave, the other spouse would be 
entitled to a full 12 weeks of FMLA leave. Where 
spouses both use a portion of the total 12-week 
FMLA leave entitlement for either the birth of a 
child, for placement for adoption or foster care, or 
to care for a parent, the spouses would each be enti-
tled to the difference between the amount he or she 
has taken individually and 12 weeks for FMLA leave 
for other purposes. For example, if each spouse took 
six weeks of leave to care for a healthy, newly placed 
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child, each could use an additional six weeks due to 
his or her own serious health condition or to care for 
a child with a serious health condition. 
‘‘(4) An eligible employee is entitled to FMLA 
leave in order to care for an adopted or foster child 
with a serious health condition if the requirements 
of 825.113 through 825.115 and 825.122(d) are 
met. Thus, spouses may each take 12 weeks of 
FMLA leave if needed to care for an adopted or fos-
ter child with a serious health condition, even if both 
are employed by the same employing office, provided 
they have not exhausted their entitlements during 
the applicable 12-month FMLA leave period. 
‘‘(b) Use of intermittent and reduced schedule leave. 
An eligible employee may use intermittent or reduced 
schedule leave after the placement of a healthy child for 
adoption or foster care only if the employing office agrees. 
Thus, for example, the employing office and employee may 
agree to a part-time work schedule after the placement 
for bonding purposes. If the employing office agrees to 
permit intermittent or reduced schedule leave for the 
placement for adoption or foster care, the employing office 
may require the employee to transfer temporarily, during 
the period the intermittent or reduced leave schedule is 
required, to an available alternative position for which the 
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employee is qualified and which better accommodates re-
curring periods of leave than does the employee’s regular 
position. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agree-
ment and Federal law (such as the Americans with Dis-
abilities Act, as made applicable by the CAA). Transfer 
to an alternative position may include altering an existing 
job to better accommodate the employee’s need for inter-
mittent or reduced leave. The employing office’s agree-
ment is not required for intermittent leave required by the 
serious health condition of the adopted or foster child. See 
825.202–825.205 for general rules governing the use of 
intermittent and reduced schedule leave. See 825.120 for 
general rules governing leave for pregnancy and birth of 
a child. See 825.601 for special rules applicable to instruc-
tional employees of schools. 
‘‘§ 825.122 Definitions of covered servicemember, 
spouse, parent, son or daughter, next of 
kin of a covered servicemember, adop-
tion, foster care, son or daughter on cov-
ered active duty or call to covered active 
duty status, son or daughter of a covered 
servicemember, and parent of a covered 
servicemember 
‘‘(a) Covered servicemember means: 
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‘‘(1) A current member of the Armed Forces, 
including a member of the National Guard or Re-
serves, who is undergoing medical treatment, recu-
peration or therapy, is otherwise in outpatient sta-
tus, or is otherwise on the temporary disability re-
tired list, for a serious injury or illness; or 
‘‘(2) A covered veteran who is undergoing med-
ical treatment, recuperation, or therapy for a serious 
injury or illness. Covered veteran means an indi-
vidual who was a member of the Armed Forces (in-
cluding a member of the National Guard or Re-
serves), and was discharged or released under condi-
tions other than dishonorable at any time during the 
five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered 
veteran. See 825.127(b)(2). 
‘‘(b) Spouse means a husband or wife. For purposes 
of this definition, husband or wife refers to the other per-
son with whom an individual entered into marriage as de-
fined or recognized under State law for purposes of mar-
riage in the State in which the marriage was entered into 
or, in the case of a marriage entered into outside of any 
State, if the marriage is valid in the place where entered 
into and could have been entered into in at least one State. 
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This definition includes an individual in a same-sex or 
common law marriage that either: 
‘‘(1) Was entered into in a State that recog-
nizes such marriages; or 
‘‘(2) If entered into outside of any State, is 
valid in the place where entered into and could have 
been entered into in at least one State. 
‘‘(c) Parent. Parent means a biological, adoptive, 
step, or foster father or mother, or any other individual 
who stood in loco parentis to the employee when the em-
ployee was a son or daughter as defined in paragraph (d) 
of this section. This term does not include parents ‘in law’. 
‘‘(d) Son or daughter. For purposes of FMLA leave 
taken for birth or adoption, or to care for a family member 
with a serious health condition, son or daughter means 
a biological, adopted, or foster child, a stepchild, a legal 
ward, or a child of a person standing in loco parentis, who 
is either under age 18, or age 18 or older and ‘incapable 
of self-care because of a mental or physical disability’ at 
the time that FMLA leave is to commence. 
‘‘(1) Incapable of self-care means that the indi-
vidual requires active assistance or supervision to 
provide daily self-care in three or more of the activi-
ties of daily living (ADLs) or instrumental activities 
of daily living (IADLs). Activities of daily living in-
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clude adaptive activities such as caring appropriately 
for one’s grooming and hygiene, bathing, dressing, 
and eating. Instrumental activities of daily living in-
clude cooking, cleaning, shopping, taking public 
transportation, paying bills, maintaining a residence, 
using telephones and directories, using a post office, 
etc. 
‘‘(2) Physical or mental disability means a 
physical or mental impairment that substantially 
limits one or more of the major life activities of an 
individual. Regulations at 29 C.F.R. 1630.2(h), (i), 
and (j), issued by the Equal Employment Oppor-
tunity Commission under the Americans with Dis-
abilities Act (ADA), (42 U.S.C. 12101 et seq.), pro-
vide guidance for these terms. 
‘‘(3) Persons who are ‘in loco parentis’ include 
those with day-to-day responsibilities to care for and 
financially support a child, or, in the case of an em-
ployee, who had such responsibility for the employee 
when the employee was a child. A biological or legal 
relationship is not necessary. 
‘‘(e) Next of kin of a covered servicemember means 
the nearest blood relative other than the covered 
servicemember’s spouse, parent, son, or daughter, in the 
following order of priority: blood relatives who have been 
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granted legal custody of the covered servicemember by 
court decree or statutory provisions, brothers and sisters, 
grandparents, aunts and uncles, and first cousins, unless 
the covered servicemember has specifically designated in 
writing another blood relative as his or her nearest blood 
relative for purposes of military caregiver leave under the 
FMLA. When no such designation is made, and there are 
multiple family members with the same level of relation-
ship to the covered servicemember, all such family mem-
bers shall be considered the covered servicemember’s next 
of kin and may take FMLA leave to provide care to the 
covered servicemember, either consecutively or simulta-
neously. When such designation has been made, the des-
ignated individual shall be deemed to be the covered 
servicemember’s only next of kin. See 825.127(d)(3). 
‘‘(f) Adoption means legally and permanently assum-
ing the responsibility of raising a child as one’s own. The 
source of an adopted child (e.g., whether from a licensed 
placement agency or otherwise) is not a factor in deter-
mining eligibility for FMLA leave. See 825.121 for rules 
governing leave for adoption. 
‘‘(g) Foster care means 24-hour care for children in 
substitution for, and away from, their parents or guard-
ian. Such placement is made by or with the agreement 
of the State as a result of a voluntary agreement between 
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the parent or guardian that the child be removed from 
the home, or pursuant to a judicial determination of the 
necessity for foster care, and involves agreement between 
the State and foster family that the foster family will take 
care of the child. Although foster care may be with rel-
atives of the child, State action is involved in the removal 
of the child from parental custody. See 825.121 for rules 
governing leave for foster care. 
‘‘(h) Son or daughter on covered active duty or call 
to covered active duty status means the employee’s biologi-
cal, adopted, or foster child, stepchild, legal ward, or a 
child for whom the employee stood in loco parentis, who 
is on covered active duty or call to covered active duty 
status, and who is of any age. See 825.126(a)(5). 
‘‘(i) Son or daughter of a covered servicemember 
means the covered servicemember’s biological, adopted, or 
foster child, stepchild, legal ward, or a child for whom the 
covered servicemember stood in loco parentis, and who is 
of any age. See 825.127(d)(1). 
‘‘(j) Parent of a covered servicemember means a cov-
ered servicemember’s biological, adoptive, step, or foster 
father or mother, or any other individual who stood in loco 
parentis to the covered servicemember. This term does not 
include parents ‘in law.’ See 825.127(d)(2). 
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‘‘(k) Documenting relationships. For purposes of con-
firmation of family relationship, the employing office may 
require the employee giving notice of the need for leave 
to provide reasonable documentation or statement of fam-
ily relationship. This documentation may take the form 
of a simple statement from the employee, or a child’s birth 
certificate, a court document, etc. The employing office is 
entitled to examine documentation such as a birth certifi-
cate, etc., but the employee is entitled to the return of 
the official document submitted for this purpose. 
‘‘§ 825.123 Unable to perform the functions of the po-
sition 
‘‘(a) Definition. An employee is unable to perform the 
functions of the position where the health care provider 
finds that the employee is unable to work at all or is un-
able to perform any one of the essential functions of the 
employee’s position within the meaning of the Americans 
with Disabilities Act (ADA), as amended and made appli-
cable by section 201(a) of the CAA (2 U.S.C. 1311(a)(3)). 
An employee who must be absent from work to receive 
medical treatment for a serious health condition is consid-
ered to be unable to perform the essential functions of the 
position during the absence for treatment. 
‘‘(b) Statement of functions. An employing office has 
the option, in requiring certification from a health care 
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provider, to provide a statement of the essential functions 
of the employee’s position for the health care provider to 
review. A sufficient medical certification must specify what 
functions of the employee’s position the employee is unable 
to perform so that the employing office can then determine 
whether the employee is unable to perform one or more 
essential functions of the employee’s position. For pur-
poses of the FMLA, the essential functions of the employ-
ee’s position are to be determined with reference to the 
position the employee held at the time notice is given or 
leave commenced, whichever is earlier. See 825.306. 
‘‘§ 825.124 Needed to care for a family member or cov-
ered servicemember 
‘‘(a) The medical certification provision that an em-
ployee is needed to care for a family member or covered 
servicemember encompasses both physical and psycho-
logical care. It includes situations where, for example, be-
cause of a serious health condition, the family member is 
unable to care for his or her own basic medical, hygienic, 
or nutritional needs or safety, or is unable to transport 
himself or herself to the doctor. The term also includes 
providing psychological comfort and reassurance which 
would be beneficial to a child, spouse or parent with a 
serious health condition who is receiving inpatient or home 
care. 
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‘‘(b) The term also includes situations where the em-
ployee may be needed to substitute for others who nor-
mally care for the family member or covered servicemem-
ber, or to make arrangements for changes in care, such 
as transfer to a nursing home. The employee need not be 
the only individual or family member available to care for 
the family member or covered servicemember. 
‘‘(c) An employee’s intermittent leave or a reduced 
leave schedule necessary to care for a family member or 
covered servicemember includes not only a situation where 
the condition of the family member or covered servicemem-
ber itself is intermittent, but also where the employee is 
only needed intermittently—such as where other care is 
normally available, or care responsibilities are shared with 
another member of the family or a third party. See 
825.202–825.205 for rules governing the use of intermit-
tent or reduced schedule leave. 
‘‘§ 825.125 Definition of health care provider 
‘‘(a) The FMLA, as made applicable by the CAA, de-
fines health care provider as: 
‘‘(1) A doctor of medicine or osteopathy who is 
authorized to practice medicine or surgery (as ap-
propriate) by the State in which the doctor prac-
tices; or 
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‘‘(2) Any other person determined by the Office 
of Congressional Workplace Rights to be capable of 
providing health care services. 
‘‘(3) In making a determination referred to in 
subparagraph (a)(2), and absent good cause shown 
to do otherwise, the Office of Congressional Work-
place Rights will follow any determination made by 
the Department of Labor (under section 101(6)(B) 
of FMLA (29 U.S.C. 2611(6)(B))) that a person is 
capable of providing health care services, provided 
the determination by the Department of Labor was 
not made at the request of a person who was then 
a covered employee. 
‘‘(b) Others capable of providing health care services 
include only: 
‘‘(1) Podiatrists, dentists, clinical psychologists, 
optometrists, and chiropractors (limited to treatment 
consisting of manual manipulation of the spine to 
correct a subluxation as demonstrated by X-ray to 
exist) authorized to practice in the State and per-
forming within the scope of their practice as defined 
under State law; 
‘‘(2) Nurse practitioners, nurse-midwives, clin-
ical social workers, and physician assistants who are 
authorized to practice under State law and who are 
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performing within the scope of their practice as de-
fined under State law; 
‘‘(3) Christian Science Practitioners listed with 
the First Church of Christ, Scientist in Boston, 
Massachusetts. Where an employee or family mem-
ber is receiving treatment from a Christian Science 
practitioner, an employee may not object to any re-
quirement from an employing office that the em-
ployee or family member submit to examination 
(though not treatment) to obtain a second or third 
certification from a health care provider other than 
a Christian Science practitioner except as otherwise 
provided under applicable State or local law or col-
lective bargaining agreement; 
‘‘(4) Any health care provider from whom an 
employing office or the employing office’s group 
health plan’s benefits manager will accept certifi-
cation of the existence of a serious health condition 
to substantiate a claim for benefits; and 
‘‘(5) A health care provider listed above who 
practices in a country other than the United States, 
who is authorized to practice in accordance with the 
law of that country, and who is performing within 
the scope of his or her practice as defined under 
such law. 
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‘‘(c) The phrase authorized to practice in the State 
as used in this section means that the provider must be 
authorized to diagnose and treat physical or mental health 
conditions. 
‘‘§ 825.126 Leave because of a qualifying exigency 
‘‘(a) Eligible employees may take FMLA leave for a 
qualifying exigency while the employee’s spouse, son, 
daughter, or parent (the military member or 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). 
‘‘(1) Covered active duty or call to covered active 
duty status in the case of a member of the Regular 
Armed Forces means duty during the deployment of 
the member with the Armed Forces to a foreign 
country. The active duty orders of a member of the 
Regular components of the Armed Forces will gen-
erally specify if the member is deployed to a foreign 
country. 
‘‘(2) Covered active duty or call to covered active 
duty status in the case of a member of the Reserve 
components of the Armed Forces means duty during 
the deployment of the member with the Armed 
Forces to a foreign country under a Federal call or 
order to active duty in support of a contingency op-
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eration pursuant to: section 688 of title 10 of the 
United States Code, which authorizes ordering to ac-
tive duty retired members of the Regular Armed 
Forces and members of the retired Reserve who re-
tired after completing at least 20 years of active 
service; section 12301(a) of title 10 of the United 
States Code, which authorizes ordering all reserve 
component members to active duty in the case of 
war or national emergency; section 12302 of title 10 
of the United States Code, which authorizes order-
ing any unit or unassigned member of the Ready 
Reserve to active duty; section 12304 of title 10 of 
the United States Code, which authorizes ordering 
any unit or unassigned member of the Selected Re-
serve and certain members of the Individual Ready 
Reserve to active duty; section 12305 of title 10 of 
the United States Code, which authorizes the sus-
pension of promotion, retirement or separation rules 
for certain Reserve components; section 12406 of 
title 10 of the United States Code, which authorizes 
calling the National Guard into Federal service in 
certain circumstances; chapter 15 of title 10 of the 
United States Code, which authorizes calling the 
National Guard and State military into Federal 
service in the case of insurrections and national 
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emergencies; or any other provision of law during a 
war or during a national emergency declared by the 
President or Congress so long as it is in support of 
a 
contingency 
operation. 
See 
U.S.C. 
101(a)(13)(B). 
‘‘(A) For purposes of covered active duty 
or call to covered active duty status, the Re-
serve components of the Armed Forces include 
the Army National Guard of the United States, 
Army Reserve, Navy Reserve, Marine Corps Re-
serve, Air National Guard of the United States, 
Air Force Reserve, and Coast Guard Reserve, 
and retired members of the Regular Armed 
Forces or Reserves who are called up in support 
of a contingency operation pursuant to one of 
the provisions of law identified in paragraph 
(a)(2). 
‘‘(B) The active duty orders of a member 
of the Reserve components will generally specify 
if the military member is serving in support of 
a contingency operation by citation to the rel-
evant section of title 10 of the United States 
Code and/or by reference to the specific name 
of the contingency operation and will specify 
that the deployment is to a foreign country. 
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‘‘(3) Deployment of the member with the Armed 
Forces to a foreign country means deployment to 
areas outside of the United States, the District of 
Columbia, or any Territory or possession of the 
United States, including international waters. 
‘‘(4) A call to covered active duty for purposes 
of leave taken because of a qualifying exigency refers 
to a Federal call to active duty. State calls to active 
duty are not covered unless under order of the Presi-
dent of the United States pursuant to one of the 
provisions of law identified in paragraph (a)(2) of 
this section. 
‘‘(5) Son or daughter on covered active duty or 
call to covered active duty status means the employ-
ee’s biological, adopted, or foster child, stepchild, 
legal ward, or a child for whom the employee stood 
in loco parentis, who is on covered active duty or call 
to covered active duty status, and who is of any age. 
‘‘(b) An eligible employee may take FMLA leave for 
one or more of the following qualifying exigencies: 
‘‘(1) Short-notice deployment. (A) To address 
any issue that arises from the fact that the military 
member is notified of an impending call or order to 
covered active duty seven or less calendar days prior 
to the date of deployment; 
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‘‘(B) Leave taken for this purpose can be 
used for a period of seven calendar days begin-
ning on the date the military member is notified 
of an impending call or order to covered active 
duty; 
‘‘(2) Military events and related activities. 
‘‘(A) To attend any official ceremony, pro-
gram, or event sponsored by the military that 
is related to the covered active duty or call to 
covered active duty status of the military mem-
ber; and 
‘‘(B) To attend family support or assist-
ance programs and informational briefings 
sponsored or promoted by the military, military 
service organizations, or the American Red 
Cross that are related to the covered active 
duty or call to covered active duty status of the 
military member; 
‘‘(3) Childcare and school activities. For the 
purposes of leave for childcare and school activities 
listed in (A) through (D) of this paragraph, a child 
of the military member must be the military mem-
ber’s biological, adopted, or foster child, stepchild, 
legal ward, or child for whom the military member 
stands in loco parentis, who is either under 18 years 
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of age or 18 years of age or older and incapable of 
self-care because of a mental or physical disability at 
the time that FMLA leave is to commence. As with 
all instances of qualifying exigency leave, the mili-
tary member must be the spouse, son, daughter, or 
parent of the employee requesting qualifying exi-
gency leave. 
‘‘(A) To arrange for alternative childcare 
for a child of the military member when the 
covered active duty or call to covered active 
duty status of the military member necessitates 
a change in the existing childcare arrangement; 
‘‘(B) To provide childcare for a child of the 
military member on an urgent, immediate need 
basis (but not on a routine, regular, or everyday 
basis) when the need to provide such care arises 
from the covered active duty or call to covered 
active duty status of the military member; 
‘‘(C) To enroll in or transfer to a new 
school or day care facility a child of the military 
member when enrollment or transfer is neces-
sitated by the covered active duty or call to cov-
ered active duty status of the military member; 
and 
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‘‘(D) To attend meetings with staff at a 
school or a daycare facility, such as meetings 
with school officials regarding disciplinary 
measures, parent-teacher conferences, or meet-
ings with school counselors, for a child of the 
military member, when such meetings are nec-
essary due to circumstances arising from the 
covered active duty or call to covered active 
duty status of the military member; 
‘‘(4) Financial and legal arrangements. (A) To 
make or update financial or legal arrangements to 
address the military member’s absence while on cov-
ered active duty or call to covered active duty status, 
such as preparing and executing financial and 
healthcare powers of attorney, transferring bank ac-
count signature authority, enrolling in the Defense 
Enrollment Eligibility Reporting System (DEERS), 
obtaining military identification cards, or preparing 
or updating a will or living trust; and 
‘‘(B) To act as the military member’s rep-
resentative before a Federal, State, or local 
agency for purposes of obtaining, arranging, or 
appealing military service benefits while the 
military member is on covered active duty or 
call to covered active duty status, and for a pe-
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riod of 90 days following the termination of the 
military member’s covered active duty status; 
‘‘(5) Counseling. To attend counseling provided 
by someone other than a health care provider, for 
oneself, for the military member, or for the biologi-
cal, adopted, or foster child, a stepchild, or a legal 
ward of the military member, or a child for whom 
the military member stands in loco parentis, who is 
either under age 18, or age 18 or older and incapa-
ble of self-care because of a mental or physical dis-
ability at the time that FMLA leave is to commence, 
provided that the need for counseling arises from the 
covered active duty or call to covered active duty sta-
tus of the military member; 
‘‘(6) Rest and Recuperation. (A) To spend time 
with the military member who is on short-term, tem-
porary, Rest and Recuperation leave during the pe-
riod of deployment; 
‘‘(B) Leave taken for this purpose can be 
used for a period of 15 calendar days beginning 
on the date the military member commences 
each instance of Rest and Recuperation leave; 
‘‘(7) Post-deployment activities. (A) To attend 
arrival ceremonies, reintegration briefings and 
events, and any other official ceremony or program 
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sponsored by the military for a period of 90 days fol-
lowing the termination of the military member’s cov-
ered active duty status; and 
‘‘(B) To address issues that arise from the 
death of the military member while on covered 
active duty status, such as meeting and recov-
ering the body of the military member, making 
funeral arrangements, and attending funeral 
services; 
‘‘(8) Parental care. For purposes of leave for 
parental care listed in (A) through (D) of this para-
graph, the parent of the military member must be 
incapable of self-care and must be the military mem-
ber’s biological, adoptive, step, or foster father or 
mother, or any other individual who stood in loco 
parentis to the military member when the member 
was under 18 years of age. A parent who is incapa-
ble of self-care means that the parent requires active 
assistance or supervision to provide daily self-care in 
three or more of the activities of daily living or in-
strumental activities of daily living. Activities of 
daily living include adaptive activities such as caring 
appropriately for one’s grooming and hygiene, bath-
ing, dressing, and eating. Instrumental activities of 
daily living include cooking, cleaning, shopping, tak-
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ing public transportation, paying bills, maintaining a 
residence, using telephones and directories, using a 
post office, etc. As with all instances of qualifying 
exigency leave, the military member must be the 
spouse, son, daughter, or parent of the employee re-
questing qualifying exigency leave. 
‘‘(A) To arrange for alternative care for a 
parent of the military member when the parent 
is incapable of self-care and the covered active 
duty or call to covered active duty status of the 
military member necessitates a change in the 
existing care arrangement for the parent; 
‘‘(B) To provide care for a parent of the 
military member on an urgent, immediate need 
basis (but not on a routine, regular, or everyday 
basis) when the parent is incapable of self-care 
and the need to provide such care arises from 
the covered active duty or call to covered active 
duty status of the military member; 
‘‘(C) To admit to or transfer to a care fa-
cility a parent of the military member when ad-
mittance or transfer is necessitated by the cov-
ered active duty or call to covered active duty 
status of the military member; and 
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‘‘(D) To attend meetings with staff at a 
care facility, such as meetings with hospice or 
social service providers for a parent of the mili-
tary member, when such meetings are necessary 
due to circumstances arising from the covered 
active duty or call to covered active duty status 
of the military member but not for routine or 
regular meetings; 
‘‘(9) Additional activities. To address other 
events which arise out of the military member’s cov-
ered active duty or call to covered active duty status 
provided that the employing office and employee 
agree that such leave shall qualify as an exigency, 
and agree to both the timing and duration of such 
leave. 
‘‘§ 825.127 Leave to care for a covered servicemember 
with a serious injury or illness (military 
caregiver leave) 
‘‘(a) Eligible employees are entitled to FMLA leave 
to care for a covered servicemember with a serious illness 
or injury. 
‘‘(b) Covered servicemember means: 
‘‘(1) A current member of the Armed Forces, 
including a member of the National Guard or Re-
serves, who is undergoing medical treatment, recu-
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peration, or therapy, is otherwise in outpatient sta-
tus; or is otherwise on the temporary disability re-
tired list, for a serious injury or illness. Outpatient 
status means the status of a member of the Armed 
Forces assigned to either a military medical treat-
ment facility as an outpatient or a unit established 
for the purpose of providing command and control of 
members of the Armed Forces receiving medical care 
as outpatients. 
‘‘(2) A covered veteran who is undergoing med-
ical treatment, recuperation or therapy for a serious 
injury or illness. Covered veteran means an indi-
vidual who was a member of the Armed Forces (in-
cluding a member of the National Guard or Re-
serves), and was discharged or released under condi-
tions other than dishonorable at any time during the 
five-year period prior to the first date the eligible 
employee takes FMLA leave to care for the covered 
veteran. An eligible employee must commence leave 
to care for a covered veteran within five years of the 
veteran’s active duty service, but the single 12- 
month period described in paragraph (e)(1) of this 
section may extend beyond the five-year period. 
‘‘(3) For an individual who was a member of 
the Armed Forces (including a member of the Na-
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tional Guard or Reserves) and who was discharged 
or released under conditions other than dishonorable 
prior to the effective date of this Final Rule, the pe-
riod between October 28, 2009, and the effective 
date of this Final Rule shall not count towards the 
determination of the five-year period for covered vet-
eran status. 
‘‘(c) A serious injury or illness means: 
‘‘(1) In the case of a current member of the 
Armed Forces, including a member of the National 
Guard or Reserves, means an injury or illness that 
was incurred by the covered servicemember in the 
line of duty on active duty in the Armed Forces or 
that existed before the beginning of the member’s 
active duty and was aggravated by service in the line 
of duty on active duty in the Armed Forces, and 
that may render the member medically unfit to per-
form the duties of the member’s office, grade, rank, 
or rating; and 
‘‘(2) In the case of a covered veteran, means an 
injury or illness that was incurred by the member in 
the line of duty on active duty in the Armed Forces 
(or existed before the beginning of the member’s ac-
tive duty and was aggravated by service in the line 
of duty on active duty in the Armed Forces), and 
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manifested itself before or after the member became 
a veteran, and is: 
‘‘(A) A continuation of a serious injury or 
illness that was incurred or aggravated when 
the covered veteran was a member of the 
Armed Forces and rendered the servicemember 
unable 
to 
perform 
the 
duties 
of 
the 
servicemember’s office, grade, rank, or rating; 
or 
‘‘(B) A physical or mental condition for 
which the covered veteran has received a De-
partment of Veterans Affairs Service-Related 
Disability Rating (VASRD) of 50 percent or 
greater, and such VASRD rating is based, in 
whole or in part, on the condition precipitating 
the need for military caregiver leave; or 
‘‘(C) A physical or mental condition that 
substantially impairs the covered veteran’s abil-
ity to secure or follow a substantially gainful 
occupation by reason of a disability or disabil-
ities related to military service, or would do so 
absent treatment; or 
‘‘(D) An injury, including a psychological 
injury, on the basis of which the covered vet-
eran has been enrolled in the Department of 
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Veterans Affairs Program of Comprehensive 
Assistance for Family Caregivers. 
‘‘(d) In order to care for a covered servicemember, 
an eligible employee must be the spouse, son, daughter, 
or parent, or next of kin of a covered servicemember. 
‘‘(1) Son or daughter of a covered servicemem-
ber means the covered servicemember’s biological, 
adopted, or foster child, stepchild, legal ward, or a 
child for whom the covered servicemember stood in 
loco parentis, and who is of any age. 
‘‘(2) Parent of a covered servicemember means 
a covered servicemember’s biological, adoptive, step, 
or foster father or mother, or any other individual 
who stood in loco parentis to the covered service-
member. This term does not include parents ‘in law’. 
‘‘(3) Next of kin of a covered servicemember 
means the nearest blood relative, other than the cov-
ered servicemember’s spouse, parent, son, or daugh-
ter, in the following order of priority: blood relatives 
who have been granted legal custody of the service-
member by court decree or statutory provisions, 
brothers and sisters, grandparents, aunts and un-
cles, and first cousins, unless the covered service-
member has specifically designated in writing an-
other blood relative as his or her nearest blood rel-
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ative for purposes of military caregiver leave under 
the FMLA. When no such designation is made, and 
there are multiple family members with the same 
level of relationship to the covered servicemember, 
all such family members shall be considered the cov-
ered servicemember’s next of kin and may take 
FMLA leave to provide care to the covered service-
member, either consecutively or simultaneously. 
When such designation has been made, the des-
ignated individual shall be deemed to be the covered 
servicemember’s only next of kin. For example, if a 
covered servicemember has three siblings and has 
not designated a blood relative to provide care, all 
three siblings would be considered the covered 
servicemember’s next of kin. Alternatively, where a 
covered servicemember has a sibling(s) and des-
ignates a cousin as his or her next of kin for FMLA 
purposes, then only the designated cousin is eligible 
as the covered servicemember’s next of kin. An em-
ploying office is permitted to require an employee to 
provide confirmation of covered family relationship 
to 
the 
covered 
servicemember 
pursuant 
to 
825.122(k). 
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‘‘(e) An eligible employee is entitled to 26 workweeks 
of leave to care for a covered servicemember with a serious 
injury or illness during a single 12–month period. 
‘‘(1) The single 12-month period described in 
paragraph (e) of this section begins on the first day 
the eligible employee takes FMLA leave to care for 
a covered servicemember and ends 12 months after 
that date, regardless of the method used by the em-
ploying office to determine the employee’s 12 work-
weeks of leave entitlement for other FMLA-quali-
fying reasons. If an eligible employee does not take 
all of his or her 26 workweeks of leave entitlement 
to care for a covered servicemember during this sin-
gle 12-month period, the remaining part of his or 
her 26 workweeks of leave entitlement to care for 
the covered servicemember is forfeited. 
‘‘(2) The leave entitlement described in para-
graph (e) of this section is to be applied on a per- 
covered-servicemember, per-injury basis such that an 
eligible employee may be entitled to take more than 
one period of 26 workweeks of leave if the leave is 
to care for different covered servicemembers or to 
care for the same servicemember with a subsequent 
serious injury or illness, except that no more than 
26 workweeks of leave may be taken within any sin-
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gle 12-month period. An eligible employee may take 
more than one period of 26 workweeks of leave to 
care for a covered servicemember with more than 
one serious injury or illness only when the serious 
injury or illness is a subsequent serious injury or ill-
ness. When an eligible employee takes leave to care 
for more than one covered servicemember or for a 
subsequent serious injury or illness of the same cov-
ered servicemember, and the single 12-month peri-
ods corresponding to the different military caregiver 
leave entitlements overlap, the employee is limited to 
taking no more than 26 workweeks of leave in each 
single 12-month period. 
‘‘(3) An eligible employee is entitled to a com-
bined total of 26 workweeks of leave for any FMLA- 
qualifying reason during the single 12-month period 
described in paragraph (e) of this section, provided 
that the employee is entitled to no more than 12 
workweeks of leave for one or more of the following: 
in connection with the birth of a son or daughter of 
the employee and in order to care for such son or 
daughter; in connection with the placement of a son 
or daughter with the employee for adoption or foster 
care; in order to care for the spouse, son, daughter, 
or parent with a serious health condition; because of 
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the employee’s own serious health condition; or be-
cause of a qualifying exigency. Thus, for example, an 
eligible employee may, during the single 12-month 
period, take 16 workweeks of FMLA leave to care 
for a covered servicemember and 10 workweeks of 
FMLA leave to care for a newborn child. However, 
the employee may not take more than 12 weeks of 
FMLA leave to care for the newborn child during 
the single 12-month period, even if the employee 
takes fewer than 14 workweeks of FMLA leave to 
care for a covered servicemember. 
‘‘(4) In all circumstances, including for leave 
taken to care for a covered servicemember, the em-
ploying office is responsible for designating leave, 
paid or unpaid, as FMLA-qualifying, and for giving 
notice of the designation to the employee as provided 
in 825.300. In the case of leave that qualifies as 
both leave to care for a covered servicemember and 
leave to care for a family member with a serious 
health condition during the single 12-month period 
described in paragraph (e) of this section, the em-
ploying office must designate such leave as leave to 
care for a covered servicemember in the first in-
stance. Leave that qualifies as both leave to care for 
a covered servicemember and leave taken to care for 
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a family member with a serious health condition 
during the single 12-month period described in para-
graph (e) of this section must not be designated and 
counted as both leave to care for a covered service-
member and leave to care for a family member with 
a serious health condition. As is the case with leave 
taken for other qualifying reasons, employing offices 
may retroactively designate leave as leave to care for 
a covered servicemember pursuant to 825.301(d). 
‘‘(f) Spouses who are eligible for FMLA leave and 
are employed by the same covered employing office may 
be limited to a combined total of 26 workweeks of leave 
during the single 12-month period described in paragraph 
(e) of this section if the leave is taken for birth of the 
employee’s son or daughter or to care for the child after 
birth, for placement of a son or daughter with the em-
ployee for adoption or foster care, or to care for the child 
after placement, to care for the employee’s parent with 
a serious health condition, or to care for a covered service-
member with a serious injury or illness. This limitation 
on the total weeks of leave applies to leave taken for the 
reasons specified as long as the spouses are employed by 
the same employing office. It would apply, for example, 
even though the spouses are employed at two different 
worksites. On the other hand, if one spouse is ineligible 
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for FMLA leave, the other spouse would be entitled to a 
full 26 workweeks of FMLA leave. 
‘‘Subpart B—Employee Leave Entitlements Under 
The Family And Medical Leave Act, As Made Ap-
plicable By The Congressional Accountability 
Act 
‘‘§ 825.200 Amount of leave 
‘‘(a) Except in the case of leave to care for a covered 
servicemember with a serious injury or illness, an eligible 
employee’s FMLA leave entitlement is limited to a total 
of 12 workweeks of leave during any 12-month period for 
any one, or more, of the following reasons: 
‘‘(1) The birth of the employee’s son or daugh-
ter, and to care for the newborn child; 
‘‘(2) The placement with the employee of a son 
or daughter for adoption or foster care, and to care 
for the newly placed child; 
‘‘(3) To care for the employee’s spouse, son, 
daughter, or parent with a serious health condition; 
‘‘(4) Because of a serious health condition that 
makes the employee unable to perform one or more 
of the essential functions of his or her job; and 
‘‘(5) Because of any qualifying exigency arising 
out of the fact that the employee’s spouse, son, 
daughter, or parent is a military member on covered 
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active duty status (or has been notified of an im-
pending call or order to covered active duty). 
‘‘(b) An employing office is permitted to choose any 
one of the following methods for determining the 12- 
month period in which the 12 weeks of leave entitlement 
described in paragraph (a) of this section occurs: 
‘‘(1) The calendar year; 
‘‘(2) Any fixed 12-month leave year, such as a 
fiscal year or a year starting on an employee’s anni-
versary date; 
‘‘(3) The 12-month period measured forward 
from the date any employee’s first FMLA leave 
under paragraph (a) begins; or 
‘‘(4) A ‘rolling’ 12-month period measured 
backward from the date an employee uses any 
FMLA leave as described in paragraph (a). 
‘‘(c) Under methods in paragraphs (b)(1) and (b)(2) 
of this section an employee would be entitled to up to 12 
weeks of FMLA leave at any time in the fixed 12-month 
period selected. An employee could, therefore, take 12 
weeks of leave at the end of the year and 12 weeks at 
the beginning of the following year. Under the method in 
paragraph (b)(3) of this section, an employee would be 
entitled to 12 weeks of leave during the year beginning 
on the first date FMLA leave is taken; the next 12-month 
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period would begin the first time FMLA leave is taken 
after completion of any previous 12-month period. Under 
the method in paragraph (b)(4) of this section, the ‘roll-
ing’ 12-month period, each time an employee takes FMLA 
leave the remaining leave entitlement would be any bal-
ance of the 12 weeks which has not been used during the 
immediately preceding 12 months. For example, if an em-
ployee has taken eight weeks of leave during the past 12 
months, an additional four weeks of leave could be taken. 
If an employee used four weeks beginning February 1, 
2008, four weeks beginning June 1, 2008, and four weeks 
beginning December 1, 2008, the employee would not be 
entitled to any additional leave until February 1, 2009. 
However, beginning on February 1, 2009, the employee 
would again be eligible to take FMLA leave, recouping the 
right to take the leave in the same manner and amounts 
in which it was used in the previous year. Thus, the em-
ployee would recoup (and be entitled to use) one additional 
day of FMLA leave each day for four weeks, commencing 
February 1, 2009. The employee would also begin to re-
coup additional days beginning on June 1, 2009, and addi-
tional days beginning on December 1, 2009. Accordingly, 
employing offices using the rolling 12-month period may 
need to calculate whether the employee is entitled to take 
FMLA leave each time that leave is requested, and em-
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ployees taking FMLA leave on such a basis may fall in 
and out of FMLA protection based on their FMLA usage 
in the prior 12 months. For example, in the example 
above, if the employee needs six weeks of leave for a seri-
ous health condition commencing February 1, 2009, only 
the first four weeks of the leave would be FMLA-pro-
tected. 
‘‘(d)(1) Employing offices will be allowed to choose 
any one of the alternatives in paragraph (b) of this section 
for the leave entitlements described in paragraph (a) of 
this section provided the alternative chosen is applied con-
sistently and uniformly to all employees. An employing of-
fice wishing to change to another alternative is required 
to give at least 60 days’ notice to all employees, and the 
transition must take place in such a way that the employ-
ees retain the full benefit of 12 weeks of leave under 
whichever method affords the greatest benefit to the em-
ployee. Under no circumstances may a new method be im-
plemented in order to avoid the CAA’s FMLA leave re-
quirements. 
‘‘(2) øReserved¿ 
‘‘(e) If an employing office fails to select one of the 
options in paragraph (b) of this section for measuring the 
12-month period for the leave entitlements described in 
paragraph (a), the option that provides the most beneficial 
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outcome for the employee will be used. The employing of-
fice may subsequently select an option only by providing 
the 60-day notice to all employees of the option the em-
ploying office intends to implement. During the running 
of the 60-day period any other employee who needs FMLA 
leave may use the option providing the most beneficial out-
come to that employee. At the conclusion of the 60-day 
period the employing office may implement the selected 
option. 
‘‘(f) An eligible employee’s FMLA leave entitlement 
is limited to a total of 26 workweeks of leave during a 
single 12-month period to care for a covered servicemem-
ber with a serious injury or illness. An employing office 
shall determine the single 12- month period in which the 
26 weeks of leave entitlement described in this paragraph 
occurs using the 12-month period measured forward from 
the date an employee’s first FMLA leave to care for the 
covered servicemember begins. See 825.127(e)(1). 
‘‘(g) During the single 12-month period described in 
paragraph (f), an eligible employee’s FMLA leave entitle-
ment is limited to a combined total of 26 workweeks of 
FMLA leave for any qualifying reason. See 825.127(e)(3). 
‘‘(h) For purposes of determining the amount of leave 
used by an employee, the fact that a holiday may occur 
within the week taken as FMLA leave has no effect; the 
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week is counted as a week of FMLA leave. However, if 
an employee is using FMLA leave in increments of less 
than one week, the holiday will not count against the em-
ployee’s FMLA entitlement unless the employee was oth-
erwise scheduled and expected to work during the holiday. 
Similarly, if for some reason the employing office’s busi-
ness activity has temporarily ceased and employees gen-
erally are not expected to report for work for one or more 
weeks (e.g., a school closing two weeks for the Christmas/ 
New Year holiday or the summer vacation or an employing 
office closing the office for repairs), the days the employ-
ing office’s activities have ceased do not count against the 
employee’s FMLA leave entitlement. Methods for deter-
mining an employee’s 12-week leave entitlement are also 
described in 825.205. 
‘‘(i)(1) If employing offices jointly employ an em-
ployee, and if they designate a primary employing office 
pursuant to 825.106(c), the primary employing office may 
choose any one of the alternatives in paragraph (b) of this 
section for measuring the 12-month period, provided that 
the alternative chosen is applied consistently and uni-
formly to all employees of the primary employing office 
including the jointly employed employee. 
‘‘(2) If employing offices fail to designate a pri-
mary employing office pursuant to 825.106(c), an 
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employee jointly employed by the employing offices 
may, by so notifying one of the employing offices, se-
lect that employing office to be the primary employ-
ing office of the employee for purposes of the appli-
cation of paragraphs (d) and (e) of this section. 
‘‘(j) If, before beginning employment with an employ-
ing office, an employee had been employed by another em-
ploying office, the subsequent employing office may count 
against the employee’s FMLA leave entitlement FMLA 
leave taken from the prior employing office, so long as 
the prior employing office properly designated the leave 
as FMLA under these regulations or other applicable re-
quirements. 
‘‘§ 825.201 Leave to care for a parent 
‘‘(a) General rule. An eligible employee is entitled to 
FMLA leave if needed to care for the employee’s parent 
with a serious health condition. Care for parents-in-law 
is not covered by the FMLA. See 825.122(c) for definition 
of parent. 
‘‘(b) Same employing office limitation. Spouses who 
are eligible for FMLA leave and are employed by the same 
covered employing office may be limited to a combined 
total of 12 weeks of leave during any 12-month period if 
the leave is taken to care for the employee’s parent with 
a serious health condition, for the birth of the employee’s 
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son or daughter or to care for the child after the birth, 
or for placement of a son or daughter with the employee 
for adoption or foster care or to care for the child after 
placement. This limitation on the total weeks of leave ap-
plies to leave taken for the reasons specified as long as 
the spouses are employed by the same employing office. 
It would apply, for example, even though the spouses are 
employed at two different worksites of an employing office. 
On the other hand, if one spouse is ineligible for FMLA 
leave, the other spouse would be entitled to a full 12 weeks 
of FMLA leave. Where the spouses both use a portion of 
the total 12-week FMLA leave entitlement for either the 
birth of a child, for placement for adoption or foster care, 
or to care for a parent, the spouses would each be entitled 
to the difference between the amount he or she has taken 
individually and 12 weeks for FMLA leave for other pur-
poses. For example, if each spouse took six weeks of leave 
to care for a parent, each could use an additional six weeks 
due to his or her own serious health condition or to care 
for a child with a serious health condition. See also 
825.127(d). 
‘‘§ 825.202 Intermittent leave or reduced leave sched-
ule 
‘‘(a) Definition. FMLA leave may be taken intermit-
tently or on a reduced leave schedule under certain cir-
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cumstances. Intermittent leave is FMLA leave taken in 
separate blocks of time due to a single qualifying reason. 
A reduced leave schedule is a leave schedule that reduces 
an employee’s usual number of working hours per work-
week, or hours per workday. A reduced leave schedule is 
a change in the employee’s schedule for a period of time, 
normally from full-time to part-time. 
‘‘(b) Medical necessity. For intermittent leave or leave 
on a reduced leave schedule taken because of one’s own 
serious health condition, to care for a spouse, parent, son, 
or daughter with a serious health condition, or to care for 
a covered servicemember with a serious injury or illness, 
there must be a medical need for leave and it must be 
that such medical need can be best accommodated through 
an intermittent or reduced leave schedule. The treatment 
regimen and other information described in the certifi-
cation of a serious health condition and in the certification 
of a serious injury or illness, if required by the employing 
office, addresses the medical necessity of intermittent 
leave or leave on a reduced leave schedule. See 825.306, 
825.310. Leave may be taken intermittently or on a re-
duced leave schedule when medically necessary for planned 
and/or unanticipated medical treatment of a serious health 
condition or of a covered servicemember’s serious injury 
or illness, or for recovery from treatment or recovery from 
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a serious health condition or a covered servicemember’s 
serious injury or illness. It may also be taken to provide 
care or psychological comfort to a covered family member 
with a serious health condition or a covered servicemember 
with a serious injury or illness. 
‘‘(1) Intermittent leave may be taken for a seri-
ous health condition of a spouse, parent, son, or 
daughter, for the employee’s own serious health con-
dition, or a serious injury or illness of a covered 
servicemember which requires treatment by a health 
care provider periodically, rather than for one con-
tinuous period of time, and may include leave of pe-
riods from an hour or more to several weeks. Exam-
ples of intermittent leave would include leave taken 
on an occasional basis for medical appointments, or 
leave taken several days at a time spread over a pe-
riod of six months, such as for chemotherapy. A 
pregnant employee may take leave intermittently for 
prenatal examinations or for her own condition, such 
as for periods of severe morning sickness. An exam-
ple of an employee taking leave on a reduced leave 
schedule is an employee who is recovering from a se-
rious health condition and is not strong enough to 
work a full-time schedule. 
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‘‘(2) Intermittent or reduced schedule leave 
may be taken for absences where the employee or 
family member is incapacitated or unable to perform 
the essential functions of the position because of a 
chronic serious health condition or a serious injury 
or illness of a covered servicemember, even if he or 
she does not receive treatment by a health care pro-
vider. See 825.113 and 825.127. 
‘‘(c) Birth or placement. When leave is taken after 
the birth of a healthy child or placement of a healthy child 
for adoption or foster care, an employee may take leave 
intermittently or on a reduced leave schedule only if the 
employing office agrees. Such a schedule reduction might 
occur, for example, where an employee, with the employing 
office’s agreement, works part-time after the birth of a 
child, or takes leave in several segments. The employing 
office’s agreement is not required, however, for leave dur-
ing which the expectant mother has a serious health condi-
tion in connection with the birth of her child or if the new-
born child has a serious health condition. See 825.204 for 
rules governing transfer to an alternative position that 
better accommodates intermittent leave. See also 825.120 
(pregnancy) and 825.121 (adoption and foster care). 
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