H. Res. 1516 
In the House of Representatives, U. S., 
December 14, 2022. 
Resolved, 
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 regulations 
apply to covered employees of the House of Representatives 
under the Congressional Accountability Act of 1995 and to 
the extent such regulations are consistent with the provisions 
of such Act. 
(b) REGULATIONS
APPROVED.—The regulations de-
scribed in this subsection are the regulations issued by the 
Office of Congressional Workplace Rights on December 7, 
2021, under section 202(e) of the Congressional Account-
ability Act of 1995 to implement section 202 of such Act (re-
lating to the application of sections 101 through 105 of the 
Family and Medical Leave Act of 1993), as published in the 
Congressional Record on December 7, 2021 (Volume 167,
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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 protections of 
sections 101 through 105 of the Family and Medical Leave 
Act of 1993 (FMLA) (29 U.S.C. 2611–2615) to covered em-
ployees. (The term ‘covered employee’ is defined in section 
101(3) of the CAA (2 U.S.C. 1301(3)). See 825.102 of these 
regulations for that definition.) The purpose of this part is 
to set forth the regulations to carry out the provisions of sec-
tion 202 of the CAA. 
‘‘(b) These regulations are issued by the Board of Direc-
tors (Board) of the Office of Congressional Workplace Rights, 
pursuant to sections 202(d) and 304 of the CAA, which di-
rect the Board to promulgate regulations implementing sec-
tion 202 that are ‘the same as substantive regulations pro-
mulgated by the Secretary of Labor to implement the statu-
tory 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 modification of such regulations 
would be more effective for the implementation of the rights 
and protections under this section.’. The regulations issued 
by the Board herein are on all matters for which section 202 
of the CAA requires regulations to be issued. Specifically, it
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is the Board’s considered judgment, based on the information 
available to it at the time of the promulgation of these regu-
lations, 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 section 
202 of the CAA¿.’. 
‘‘(c) On December 20, 2019, Congress enacted the Fed-
eral Employee Paid Leave Act (subtitle A of title LXXVI of 
division F of the National Defense Authorization Act for Fis-
cal Year 2020, Public Law 116–92, December 20, 2019) 
(FEPLA). FEPLA amended the FMLA to allow most Fed-
eral employees, including eligible employees 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 place-
ment 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 pursu-
ant 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 em-
ployees directly covered by FMLA title I. The Board has de-
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termined that these circumstances constitute good cause for 
modification of its substantive FMLA regulations in order to 
effectively implement FEPLA’s rights and protections to cov-
ered employees in the legislative branch. 
‘‘(d) In promulgating these regulations, the Board has 
made certain technical and nomenclature changes to the reg-
ulations as promulgated by the Secretary. Such changes are 
intended to make the provisions adopted accord more natu-
rally to situations in the legislative branch. However, by mak-
ing these changes, the Board does not intend a substantive 
difference between these regulations and those of the Sec-
retary from which they are derived. Moreover, such changes, 
in and of themselves, are not intended to constitute an inter-
pretation 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 rec-
ommend to Congress a method of approval for these regula-
tions. As the Board has adopted the same regulations for the 
Senate, the House of Representatives, and the other covered 
entities and facilities, it therefore recommends that the 
adopted regulations be approved by concurrent resolution of 
the Congress.
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‘‘Subpart A—Coverage Under The Family And Medical 
Leave Act, As Made Applicable By The Congres-
sional 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 Account-
ability Act (CAA), allows eligible employees of an employing 
office to take job-protected, unpaid leave, or to substitute ap-
propriate paid leave if the employee has 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 em-
ployee is needed to care for a family member (child, spouse, 
or parent) with a serious health condition, because the em-
ployee’s own serious health condition makes the employee un-
able to perform the functions of his or her job, or because 
of any qualifying exigency arising out of the fact that the em-
ployee’s spouse, son, daughter, or parent is a military mem-
ber on active duty or call to covered active duty status (or 
has been notified of an impending call or order to covered ac-
tive duty). In addition, eligible employees of a covered em-
ploying office may take job-protected, unpaid leave, or sub-
stitute appropriate 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 seri-
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complish 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 Four-
teenth Amendment in minimizing the potential for employ-
ment 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 de-
velopment of high-performance organizations. Increasingly, 
America’s children and elderly are dependent upon family 
members who must spend long hours at work. When a family 
emergency arises, requiring workers to attend to seriously-ill 
children or parents, or to newly-born or adopted infants, or 
even to their own serious illness, workers need reassurance 
that they will not be asked to choose between continuing their 
employment, and meeting their personal and family obliga-
tions 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 direct correla-
tion exists between stability in the family and productivity in 
the workplace. FMLA will encourage the development of 
high-performance organizations. When workers can count on 
durable links to their workplace they are able to make their 
own full commitments to their jobs. The record of hearings 
on family and medical leave indicate the powerful productive
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advantages of stable workplace relationships, and the com-
paratively small costs of guaranteeing that those relationships 
will not be dissolved while workers attend to pressing family 
health obligations or their own serious illness. 
‘‘§ 825.102 Definitions 
‘‘For purposes of this part: 
‘‘(1) ADA means the Americans with Disabilities 
Act (42 U.S.C. 12101 et seq., as amended), as made ap-
plicable by the Congressional Accountability Act. 
‘‘(2) Birth means the delivery of a child. When the 
term ‘birth’ under this subpart is used in connection 
with the use of leave before birth, it refers to an antici-
pated birth. 
‘‘(3) CAA means the Congressional Accountability 
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 re-
quirements of Title X of the Consolidated Omnibus 
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 oper-
ation that: 
‘‘(A) Is designated by the Secretary of Defense 
as an operation in which members of the Armed
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Forces are or may become involved in military ac-
tions, 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 reten-
tion on, active duty of members of the uniformed 
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 provision of law during 
a war or during a national emergency declared by 
the President or Congress. See also 825.126(a)(2). 
‘‘(6) Continuing treatment by a health care provider 
means any one of the following: 
‘‘(A) Incapacity and treatment. A period of in-
capacity of more than three consecutive, full cal-
endar days, and any subsequent treatment or period 
of incapacity relating to the same condition, that 
also involves: 
‘‘(i) Treatment two or more times, within 
30 days of the first day of incapacity, unless 
extenuating circumstances exist, by a health 
care provider, by a nurse under direct super-
vision of a health care provider, or by a pro-
vider of health care services (e.g., physical
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therapist) under orders of, or on referral by, a 
health care provider; or 
‘‘(ii) Treatment by a health care provider 
on at least one occasion, which results in a reg-
imen of continuing treatment under the super-
vision 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-person 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 nec-
essary within the 30-day period shall be deter-
mined by the health care provider. 
‘‘(v) The term ‘extenuating circumstances’ 
in paragraph (i) means circumstances beyond 
the employee’s control that prevent the follow- 
up visit from occurring as planned by the 
health care provider. Whether a given set of 
circumstances are extenuating depends on the 
facts. See also 825.115(a)(5).
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‘‘(B) Pregnancy or prenatal care. Any period of 
incapacity due to pregnancy, or for prenatal care. 
See also 825.120. 
‘‘(C) Chronic conditions. Any period of inca-
pacity or treatment for such incapacity due to a 
chronic serious health condition. A chronic serious 
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 su-
pervision of a health care provider; 
‘‘(ii) Continues over an extended period of 
time (including recurring episodes of a single 
underlying condition); and 
‘‘(iii) May cause episodic rather than a 
continuing period of incapacity (e.g., asthma, 
diabetes, epilepsy, etc.). 
‘‘(D) Permanent or long-term conditions. A pe-
riod of incapacity which is permanent or long-term 
due to a condition for which treatment may not be 
effective. The employee or family member must be 
under the continuing supervision of, but need not be 
receiving active treatment by, a health care pro-
vider. Examples include Alzheimer’s, a severe 
stroke, or the terminal stages of a disease.
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‘‘(E) Conditions requiring multiple treatments. 
Any period of absence to receive multiple treat-
ments (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 accident 
or other injury; or 
‘‘(ii) A condition that would likely result 
in a period of incapacity of more than three 
consecutive full calendar days in the absence of 
medical intervention or treatment, such as can-
cer (chemotherapy, radiation, etc.), severe ar-
thritis (physical therapy), kidney disease (di-
alysis). 
‘‘(F) Absences attributable to incapacity under 
paragraphs (A) or (B) of this definition qualify for 
FMLA leave even though the employee or the cov-
ered 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 con-
secutive, full calendar days. For example, an em-
ployee with asthma may be unable to report for 
work due to the onset of an asthma attack or be-
cause the employee’s health care provider has ad-
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vised 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. 
‘‘(7) Covered active duty or call to covered active 
duty status means: 
‘‘(A) In the case of a member of the Regular 
Armed Forces, duty during the deployment of the 
member with the Armed Forces to a foreign coun-
try; and, 
‘‘(B) In the case of a member of the Reserve 
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 
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 compo-
nent members to active duty in the case of war or 
national emergency; Section 12302 of Title 10 of 
the United States Code, which authorizes ordering
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any unit or unassigned member of the Ready Re-
serve 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 
suspension 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 call-
ing the National Guard and State military into 
Federal service in the case of insurrections and na-
tional emergencies; or any other provision of law 
during a war or during a national emergency de-
clared by the President or Congress so long as it is 
in support of a contingency operation. 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 Representa-
tives; (2) the Senate; (3) the Office of Congressional Ac-
cessibility Services; (4) the Capitol Police; (5) the Con-
gressional Budget Office; (6) the Office of the Architect
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of the Capitol; (7) the Office of the Attending Physician; 
(8) the Office of Congressional Workplace Rights; (9) 
the Library of Congress; (10) the Stennis Center for 
Public Service; (11) the Office of Technology Assess-
ment; (12) the China Review Commission; (13) the Con-
gressional Executive China Commission; (14) the Hel-
sinki 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 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 
‘‘(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).
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‘‘(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 sub-
sections (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 em-
ploying office on the date on which any FMLA 
leave is to commence, except that an employing of-
fice need not consider any period of previous em-
ployment that occurred more than seven years be-
fore the date of the most recent hiring of the em-
ployee, unless: 
‘‘(i) The break in service is occasioned by 
the fulfillment of the employee’s Uniformed 
Services 
Employment 
and 
Reemployment 
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
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employed for at least 12 months by any em-
ploying office, but this section does not provide 
any greater entitlement to the employee than 
would be available under the USERRA, as 
made applicable by the CAA); or 
‘‘(ii) 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 
purposes of the employee furthering 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 employing office dur-
ing the previous 12–month period, except that: 
‘‘(i) An employee returning from fulfilling 
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-covered 
service 
in 
determining 
whether the employee met the hours of service 
requirement (accordingly, a person reemployed 
following absence from work due to or neces-
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sitated by USERRA-covered service has the 
hours that would have been worked for the em-
ploying office added to any hours actually 
worked during the previous 12–month period 
to meet the hours of service requirement); 
‘‘(ii) 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 calculations; 
and 
‘‘(iii) Any service on active duty (as de-
fined in 29 U.S.C. 2611(14)) by a covered em-
ployee 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 subparagraph 
(C) of this section. 
‘‘(12) Employ means to suffer or permit to work. 
‘‘(13) Employee means an employee as defined by 
the CAA and includes an applicant for employment and 
a former employee. 
‘‘(14) Employee employed in an instructional capac-
ity. See the definition of Teacher in this section.
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‘‘(15) Employee of the Capitol Police means any 
member or officer of the Capitol Police. 
‘‘(16) Employee of the House of Representatives 
means an individual occupying a position the pay for 
which is disbursed by the Chief Administrative Officer of 
the House of Representatives, or another official des-
ignated by the House of Representatives, or any employ-
ment position in an entity that is paid with funds de-
rived from the Members’ Representational Allowance of 
the House of Representatives but not any such indi-
vidual employed by any entity listed in subparagraphs 
(3) through (9) under the definition of covered employee 
above. 
‘‘(17) Employee of the Office of the Architect of the 
Capitol means any employee of the Office of the Archi-
tect of the Capitol or the Botanic Garden. 
‘‘(18) Employee of the Senate means any employee 
whose pay is disbursed by the Secretary of the Senate, 
but not any such individual employed by any entity listed 
in subparagraphs (3) through (9) under 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;
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‘‘(B) A committee of the House of Representa-
tives or the Senate or a joint committee; 
‘‘(C) Any other office headed by a person with 
the final authority to appoint, hire, discharge, and 
set the terms, conditions, or privileges of the em-
ployment of an employee of the House of Rep-
resentatives or the Senate; or 
‘‘(D) The Office of Congressional Accessibility 
Services, the United States Capitol Police, the Con-
gressional Budget Office, the Office of the Architect 
of the Capitol, the Office of the Attending Physi-
cian, the Office of Congressional Workplace Rights, 
the Library of Congress, the Stennis Center for 
Public Service, the Office of Technology Assess-
ment, the United States Commission on Inter-
national Religious Freedom, the China Review Com-
mission, the Congressional Executive China Com-
mission, and the Helsinki Commission. 
‘‘(20) Employment benefits means all benefits pro-
vided or made available to employees by an employing 
office, including group life insurance, health insurance, 
disability insurance, sick leave, annual leave, educational 
benefits, and pensions, regardless of whether such bene-
fits are provided by a practice or written policy of an 
employing office or through an employee benefit plan.
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The term does not include non-employment related obli-
gations paid by employees through voluntary deductions 
such as supplemental insurance coverage. See also 
825.209(a). 
‘‘(21) Family and medical leave means an employ-
ee’s entitlement of up to 12 workweeks (or 26 work-
weeks 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 Em-
ployees 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 oth-
erwise) to the employing office’s employees, former em-
ployees, or the families of such employees or former em-
ployees. For purposes of FMLA, as made applicable by 
the CAA, the term group health plan shall not include 
an insurance program providing health coverage under
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which employees purchase individual policies from insur-
ers provided that: 
‘‘(A) No contributions are made by the employ-
ing 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 consid-
eration in the form of cash or otherwise in connec-
tion with the program, other than reasonable com-
pensation, excluding any profit, for administrative 
services actually rendered in connection 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: 
‘‘(i) A doctor of medicine or osteopathy 
who is authorized to practice medicine or sur-
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gery (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 pro-
viding health care services. 
‘‘(B) Others ‘capable of providing health care 
services’ include only: 
‘‘(i) Podiatrists, dentists, clinical psycholo-
gists, optometrists, and chiropractors (limited 
to treatment consisting of manual manipula-
tion of the spine to correct a subluxation as 
demonstrated by X-ray to exist) authorized to 
practice in the State and performing within the 
scope of their practice as defined under State 
law; 
‘‘(ii) Nurse practitioners, nurse-midwives 
and clinical social workers and physician assist-
ants who are authorized to practice under 
State law and who are performing within the 
scope of their practice as defined under State 
law; 
‘‘(iii) Christian Science practitioners listed 
with the First Church of Christ, Scientist in 
Boston, Massachusetts. Where an employee or 
family member is receiving treatment from a
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Christian Science practitioner, an employee 
may not object to any requirement from an 
employing office that the employee or family 
member submit to examination (though not 
treatment) to obtain a second or third certifi-
cation from a health care provider other than 
a Christian Science practitioner except as oth-
erwise 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 sub-
stantiate 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. 
‘‘(C) The phrase ‘authorized to practice in the 
State’ as used in this section means that the pro-
vider must be authorized to diagnose and treat 
physical or mental health conditions.
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‘‘(26) Incapable of self-care means that the indi-
vidual requires active assistance or supervision to pro-
vide daily self-care in several of the ‘activities of daily 
living’ (ADLs) or ‘instrumental activities of daily living’ 
(IADLs). Activities of daily living include adaptive activi-
ties such as caring appropriately for one’s grooming and 
hygiene, bathing, dressing and eating. Instrumental ac-
tivities of daily living include cooking, cleaning, shop-
ping, taking public transportation, paying bills, main-
taining 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 sepa-
rate periods of time due to a single illness or injury, 
birth, or placement, rather than for one continuous pe-
riod of time, and may include leave of periods from an 
hour or more to several weeks. Examples of intermittent 
leave would include leave taken on an occasional basis 
for medical appointments, or leave taken several days at 
a time spread over a period of six months, such as for 
chemotherapy. 
‘‘(29) Invitational travel authorization (ITA) or In-
vitational travel order (ITO) mean orders issued by the 
Armed Forces to a family member to join an injured or
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ill servicemember at his or her bedside. See also 
825.310(e). 
‘‘(30) Key employee means a salaried FMLA-eligible 
employee who is among the highest paid 10 percent of 
all the employees employed by the employing office with-
in 75 miles of the employee’s worksite. See also 825.217. 
‘‘(31) Mental disability: See the definition of Phys-
ical or mental disability in this section. 
‘‘(32) Military caregiver leave means leave taken to 
care for a covered servicemember with a serious 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 covered 
servicemember’s spouse, parent, son, or daughter, in the 
following order of priority: blood relatives who have been 
granted legal custody of the covered servicemember by 
court decree or statutory provisions, brothers and sis-
ters, grandparents, aunts and uncles, and first cousins, 
unless the covered servicemember has specifically des-
ignated 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 relationship to the covered servicemember,
•HRES 1516 EH 
all such family members shall be considered the covered 
servicemember’s next of kin and may take FMLA leave 
to provide care to the covered servicemember, either con-
secutively or simultaneously. When such designation has 
been made, the designated 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 legisla-
tive 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 established for the 
purpose of providing command and control of members 
of the Armed Forces receiving medical care as out-
patients. 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’.
•HRES 1516 EH 
‘‘(37) Parent of a covered servicemember means a 
covered servicemember’s biological, adoptive, step or fos-
ter 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 
also 
825.127(d)(2). 
‘‘(38) Physical or mental disability means a phys-
ical or mental impairment that substantially limits one 
or more of the major life activities of an individual. Reg-
ulations at 29 C.F.R. part 1630, issued by the Equal 
Employment Opportunity Commission under the Ameri-
cans with Disabilities Act (ADA), 42 U.S.C. 12101 et 
seq., as amended, provide 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. 
‘‘(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 Reserve, and 
Coast Guard Reserve, and retired members of the Reg-
ular Armed Forces or Reserves who are called up in sup-
port 
of 
a 
contingency 
operation. 
See 
also 
825.126(a)(2)(i).
•HRES 1516 EH 
‘‘(41) Secretary means the Secretary of Labor or 
authorized representative. 
‘‘(42) Serious health condition means an illness, in-
jury, impairment, or physical or mental condition that 
involves inpatient care as defined in 825.114 or con-
tinuing treatment by a health care provider as defined 
in 825.115. 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 complica-
tions 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 se-
rious 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 in-
curred by the covered servicemember in the line of 
duty on active duty in the Armed Forces or that ex-
isted 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
•HRES 1516 EH 
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 in-
jury 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 
manifested itself before or after the member became 
a veteran, and is: 
‘‘(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 servicemember 
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-Re-
lated Disability Rating (VASRD) of 50 percent 
or greater, and such VASRD rating is based, 
in whole or in part, on the condition precipi-
tating the need for military caregiver leave; or
•HRES 1516 EH 
‘‘(iii) 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 
‘‘(iv) An injury, including a psychological 
injury, on the basis of which the covered vet-
eran has been enrolled in the 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 ‘incapable of self-care be-
cause of a mental or physical disability’ at the time that 
FMLA leave is to commence. 
‘‘(45) Son or daughter of a covered servicemember 
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 employee’s bio-
•HRES 1516 EH 
logical, 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 pur-
poses of this definition, husband or wife refers to the 
other person with whom an individual entered into mar-
riage as defined or recognized under State law for pur-
poses 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 in-
dividual in a same-sex or common law marriage that ei-
ther: 
‘‘(A) Was entered into in a State that recog-
nizes 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 instruc-
tional capacity, or instructional employee) means an em-
ployee employed principally in an instructional capacity 
by an educational agency or school whose principal func-
•HRES 1516 EH 
tion is to teach and instruct students in a class, a small 
group, or an individual setting, and includes athletic 
coaches, driving instructors, and special education assist-
ants such as signers for the hearing impaired. The term 
does not include teacher assistants or aides who do not 
have as their principal function actual teaching or in-
structing, nor auxiliary personnel such as counselors, 
psychologists, curriculum specialists, cafeteria workers, 
maintenance workers, bus drivers, or other primarily 
noninstructional employees. 
‘‘(49) TRICARE is the health care program serving 
active duty servicemembers, National Guard and Reserve 
members, retirees, their families, survivors, 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 employing 
office means: 
‘‘(1) The personal office of a Member of the House 
of Representatives or of a Senator; 
‘‘(2) A committee of the House of Representatives 
or the Senate or a joint committee; 
‘‘(3) Any other office headed by a person with the 
final authority to appoint, hire, discharge, and set the
•HRES 1516 EH 
terms, conditions, or privileges of the employment of an 
employee of the House of Representatives or the Senate; 
or 
‘‘(4) The Office of Congressional Accessibility Serv-
ices, 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 Con-
gressional Workplace Rights, the Library of Congress, 
the Stennis Center for Public Service, the China Review 
Commission, the Congressional Executive China Com-
mission, 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 per-
forms work which simultaneously benefits two or more em-
ploying offices, or works for two or more employing offices 
at different times during the workweek, a joint employment 
relationship generally will be considered to exist in situations 
such as:
•HRES 1516 EH 
‘‘(1) Where there is an arrangement between em-
ploying offices to share an employee’s services or to 
interchange employees; 
‘‘(2) Where one employing office acts directly or in-
directly in the interest of the other employing office in 
relation to the employee; or 
‘‘(3) Where the employing offices are not completely 
disassociated with respect to the employee’s employment 
and may be deemed to share control of the employee, di-
rectly or indirectly, because one employing office con-
trols, is controlled by, or is under common control with 
the other employing office. 
‘‘(b) A determination of whether or not a joint employ-
ment relationship exists is not determined by the application 
of any single criterion, but rather the entire relationship is 
to be viewed in its totality. For example, joint employment 
will ordinarily be found to exist when: 
‘‘(1) An employee, who is employed by an employing 
office other than the personal office of a Member of the 
House of Representatives or of a Senator, is under the 
actual direction and control of the Member of the House 
of Representatives or Senator; or 
‘‘(2) Two or more employing offices employ an indi-
vidual to work on common issues or other matters for 
both or all of them.
•HRES 1516 EH 
‘‘(c) When employing offices employ a covered employee 
jointly, they may designate one of themselves to be the pri-
mary employing office, and the other or others to be the sec-
ondary 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 em-
ploying office pursuant to paragraph (c) of this section, only 
that employing office is responsible for giving required notices 
to the covered employee, providing FMLA leave, and mainte-
nance of health benefits. Job restoration is the primary re-
sponsibility of the primary employing office, and the sec-
ondary 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 para-
graph (c) of this section, then all of these employing offices 
shall be jointly and severally liable for giving required notices 
to the employee, for providing FMLA leave, for assuring that 
health benefits are maintained, and for job restoration. The 
employee may give notice of need for FMLA leave, as de-
scribed in 825.302 and 825.303, to whichever of these em-
ploying offices the employee chooses. If the employee makes 
a written request for restoration to one of these employing of-
fices, that employing office shall be primarily responsible for
•HRES 1516 EH 
job restoration, and the other employing office(s) may, sub-
ject to the limitations in 825.216, be responsible for accept-
ing 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 office for 
at least 12 months, and 
‘‘(2) Has been employed for at least 1,250 hours of 
service during the 12-month period immediately pre-
ceding 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 Na-
tional Guard or Reserves shall be counted as time during 
which such employee has been employed in an employing of-
fice 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 prior to
•HRES 1516 EH 
a break in service of seven years or more need not be 
counted in determining whether the employee has been 
employed by any employing office for at least 12 months. 
‘‘(2) Employment periods preceding a break in serv-
ice of more than seven years must be counted in deter-
mining whether the employee has been employed by any 
employing office for at least 12 months where: 
‘‘(A) The employee’s break in service is occa-
sioned by the fulfillment of his or her Uniformed 
Services Employment and Reemployment 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 employing office. However, this section does 
not provide any greater entitlement to the employee 
than would be available under the USERRA; or 
‘‘(B) A written agreement, including a collec-
tive bargaining agreement, exists concerning the 
employing office’s intention to rehire the employee 
after the break in service (e.g., for purposes of the 
employee furthering his or her education or for 
childrearing purposes).
•HRES 1516 EH 
‘‘(3) If an employee worked for two or more em-
ploying offices sequentially, the time worked will be ag-
gregated to determine whether it equals 12 months. 
‘‘(4) If an employee is maintained on the payroll for 
any part of a week, including any periods of paid or un-
paid leave (sick, vacation) during which other benefits or 
compensation are provided by the employing office (e.g., 
Federal Employees’ Compensation, group health plan 
benefits, etc.), the week counts as a week of employment. 
For purposes of determining whether intermittent/occa-
sional/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 of-
fices from considering employment prior to a continuous 
break in service of more than seven years when deter-
mining whether an employee has met the 12–month em-
ployment requirement. However, if an employing office 
chooses to recognize such prior employment, the employ-
ing office must do so uniformly, with respect to all em-
ployees with similar breaks in service. 
‘‘(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.
•HRES 1516 EH 
‘‘(2) Except as provided in paragraph (c)(3) of this sec-
tion, whether an employee has worked the minimum 1,250 
hours of service is determined according to the principles es-
tablished under the Fair Labor Standards Act (FLSA), as 
applied by section 203 of the CAA (2 U.S.C. 1313), for de-
termining 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 deter-
mination 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 deter-
mining the employee’s eligibility for FMLA-qualifying leave. 
Accordingly, a person reemployed 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 re-
quirement. In order to determine the hours that would have 
been worked during the period of absence from work due to
•HRES 1516 EH 
or necessitated by USERRA-covered service, the employee’s 
pre-service work schedule can generally be used for calcula-
tions. 
‘‘(4) In the event an employing office does not maintain 
an accurate record of hours worked by an employee, including 
for employees who are exempt from the overtime require-
ments of the FLSA, as made applicable by the CAA and its 
regulations, the employing office has the burden of showing 
that the employee has not worked the requisite hours. An em-
ploying office must be able to clearly demonstrate, for exam-
ple, that full time teachers (See 825.102 for definition) of an 
elementary or secondary school system, or institution of high-
er 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. 
‘‘(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 require-
ment, and in that event, any portion of the leave taken for 
an FMLA-qualifying reason after the employee meets the eli-
•HRES 1516 EH 
gibility requirement would be FMLA leave. See 825.300(b) 
for rules governing the content 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 of-
fices 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); 
‘‘(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, daugh-
ter, or parent with a serious health condition (See 
825.113 and 825.122);
•HRES 1516 EH 
‘‘(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 cov-
ered active duty status) (See 825.122 and 825.126); and 
‘‘(6) To care for a covered servicemember with a se-
rious injury or illness if the employee is the spouse, son, 
daughter, parent, or next of kin of the covered service-
member (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 mother, 
can take family leave for the birth, placement for adoption, 
or foster care of a child. 
‘‘(c) Active employee. In situations where the employing 
office/employee relationship has been interrupted, such as an 
employee who has been on layoff, the employee must be re-
called or otherwise be re-employed before being eligible for 
FMLA leave. Under such circumstances, an eligible employee 
is immediately entitled to further FMLA leave for a quali-
fying reason.
•HRES 1516 EH 
‘‘§ 825.113 Serious health condition 
‘‘(a) For purposes of FMLA, serious health condition 
entitling an employee to FMLA leave means an illness, in-
jury, impairment, or physical or mental condition that in-
volves 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, attend 
school, or perform other regular daily activities due to the se-
rious health condition, treatment therefore, or recovery there-
from. 
‘‘(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 examinations, or dental ex-
aminations. A regimen of continuing treatment includes, for 
example, a course of prescription medication (e.g., an anti-
biotic) or therapy requiring special equipment to resolve or 
alleviate the health condition (e.g., oxygen). A regimen of 
continuing treatment that includes the taking of over-the- 
counter medications such as aspirin, antihistamines, or 
salves; or bed-rest, drinking fluids, exercise, and other similar 
activities that can be initiated without a visit to a health care 
provider, is not, by itself, sufficient to constitute a regimen 
of continuing treatment for purposes of FMLA leave. 
‘‘(d) Conditions for which cosmetic treatments are ad-
ministered (such as most treatments for acne or plastic sur-
•HRES 1516 EH 
gery) are not serious health conditions unless inpatient hos-
pital care is required or unless complications develop. Ordi-
narily, unless complications arise, the common cold, the flu, 
ear aches, upset stomach, minor ulcers, headaches other than 
migraine, routine dental or orthodontia problems, periodontal 
disease, etc., are examples of conditions that do not meet the 
definition of a serious health condition and do not qualify for 
FMLA leave. Restorative dental or plastic surgery after an 
injury or removal of cancerous growths are serious health 
conditions provided all the other conditions of this regulation 
are met. Mental illness or allergies may be serious health con-
ditions, but only if all the conditions of this section are met. 
‘‘§ 825.114 Inpatient care 
‘‘Inpatient care means an overnight stay in a hospital, 
hospice, or residential medical care facility, including any pe-
riod of incapacity as defined in 825.113(b), or any subse-
quent treatment in connection with such inpatient care. 
‘‘§ 825.115 Continuing treatment 
‘‘A serious health condition involving continuing treat-
ment 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 sub-
sequent treatment or period of incapacity relating to the 
same condition, that also involves:
•HRES 1516 EH 
‘‘(1) Treatment two or more times, within 30 days 
of the first day of incapacity, unless extenuating cir-
cumstances 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 thera-
pist) under orders of, or on referral by, a health care 
provider. 
‘‘(2) Treatment by a health care provider on at 
least one occasion, which results in a regimen of con-
tinuing 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 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 regi-
men of continuing treatment is necessary within the 30- 
day period shall be determined by the health care pro-
vider. 
‘‘(5) The term extenuating circumstances in para-
graph (a)(1) of this section means circumstances beyond 
the employee’s control that prevent the follow-up visit 
from occurring as planned by the health care provider. 
Whether a given set of circumstances are extenuating
•HRES 1516 EH 
depends on the facts. For example, extenuating cir-
cumstances exist if a health care provider determines 
that a second in-person visit is needed within the 30-day 
period, but the health care provider does not have any 
available appointments 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: 
‘‘(1) 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; 
‘‘(2) Continues over an extended period of time (in-
cluding recurring episodes of a single underlying condi-
tion); and 
‘‘(3) 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 in-
capacity which is permanent or long-term due to a condition 
for which treatment may not be effective. The employee or 
family member must be under the continuing supervision of,
•HRES 1516 EH 
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 pe-
riod 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 refer-
ral by, a health care provider, for: 
‘‘(1) Restorative surgery after an accident or other 
injury; or 
‘‘(2) A condition that would likely result in a period 
of incapacity of more than three consecutive, full cal-
endar days in the absence of medical intervention or 
treatment, such as cancer (chemotherapy, radiation, 
etc.), severe arthritis (physical therapy), or kidney dis-
ease (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 ab-
sence, and even if the absence 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
•HRES 1516 EH 
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 condition 
if the conditions of 825.113 through 825.115 are met. How-
ever, FMLA leave may only be taken for treatment for sub-
stance abuse by a health care provider or by a provider of 
health care services on referral by a health care provider. On 
the other hand, absence because of the employee’s use of the 
substance, rather than for treatment, does not qualify for 
FMLA leave. 
‘‘(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 exercised his or her 
right to take FMLA leave for treatment. However, if the em-
ploying office has an established policy, applied in a non-dis-
criminatory manner that has been communicated to all em-
ployees, that provides under certain circumstances an em-
ployee may be terminated for substance abuse, pursuant to 
that policy the employee may be terminated whether or not
•HRES 1516 EH 
the employee is presently taking FMLA leave. An employee 
may also take FMLA leave to care for a covered family mem-
ber who is receiving treatment for substance abuse. The em-
ploying office may not take action against an employee who 
is providing care for a covered family member receiving treat-
ment for substance abuse. 
‘‘§ 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) dur-
ing the 12-month period beginning on the date of birth. 
An employee’s entitlement to FMLA leave for a birth ex-
pires at the end of the 12-month period beginning on the 
date of the birth. If the employing office permits bond-
ing leave to be taken beyond 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 lim-
ited to a combined total of 12 weeks of leave during any
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12-month period if the leave is taken for birth of the em-
ployee’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, or to care for the employee’s parent 
with a serious health condition. This limitation on the 
total weeks of leave applies to leave taken for the rea-
sons 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 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 healthy, newborn 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.
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‘‘(4) The expectant mother is entitled to FMLA 
leave for incapacity due to pregnancy, for prenatal care, 
or for her own serious health condition following the 
birth of the child. An expectant mother may take FMLA 
leave before the birth of the child for prenatal care or 
if her condition makes her unable to work. The expect-
ant 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 consecu-
tive calendar days. 
‘‘(5) A spouse is entitled to FMLA leave if needed 
to care for a pregnant spouse who is incapacitated or if 
needed to care for her during her prenatal 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 new-
born 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.
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‘‘(b) Intermittent and reduced schedule leave. An eligible 
employee may use intermittent or reduced schedule leave 
after the birth to be with a healthy newborn child only if the 
employing office agrees. For example, an employing office 
and employee may agree to a part-time work schedule after 
the birth. If the employing office agrees to permit intermit-
tent or reduced schedule leave for the birth of a child, the 
employing office may require the employee to transfer tempo-
rarily, during the period the intermittent or reduced leave 
schedule is required, to an available alternative position for 
which the employee is qualified and which better accommo-
dates recurring periods of leave than does the employee’s reg-
ular position. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agree-
ment and Federal law (such as the Americans with Disabil-
ities Act, as made applicable by the CAA). Transfer to an al-
ternative position may include altering an existing job to bet-
ter accommodate the employee’s need for intermittent or re-
duced leave. The employing office’s agreement is not required 
for intermittent leave required by the serious health condition 
of the expectant mother or newborn child. See 825.202– 
825.205 for general rules governing the use of intermittent 
and reduced 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 absence 
from work is required for the placement for adoption or 
foster care to proceed. For example, the employee may 
be required to attend counseling sessions, appear in 
court, consult with his or her attorney or the doctor(s) 
representing the birth parent, submit to a physical ex-
amination, or travel to another 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 determining eligibility for leave for this pur-
pose. 
‘‘(2) An employee’s entitlement to leave for adop-
tion or foster care expires at the end of the 12-month 
period beginning on the date of the placement. If the 
employing office permits leave for adoption or foster care 
to be taken beyond this period, such leave will not qual-
ify 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 office may 
be limited to a combined total of 12 weeks of leave dur-
ing 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 em-
ployee’s son or daughter or to care for the child after 
birth, or to care for the employee’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 
employing office. On the other hand, if one spouse is in-
eligible for FMLA leave, the other spouse would be enti-
tled to a full 12 weeks of FMLA leave. Where spouses 
both use a portion of the total 12-week FMLA leave en-
titlement 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 example, 
if each spouse took six weeks of leave to care for a 
healthy, newly placed child, each could use an additional
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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 se-
rious 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 foster child with a serious health 
condition, even if both are employed by the same em-
ploying office, provided they have not exhausted their en-
titlements 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 ex-
ample, the employing office and employee may agree to a 
part-time work schedule after the placement for bonding pur-
poses. 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 re-
duced leave schedule is required, to an available alternative 
position for which the employee is qualified and which better 
accommodates recurring periods of leave than does the em-
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ployee’s regular position. Transfer to an alternative position 
may require compliance with any applicable collective bar-
gaining agreement and Federal law (such as the Americans 
with Disabilities Act, as made applicable by the CAA). Trans-
fer to an alternative position may include altering an existing 
job to better accommodate the employee’s need for intermit-
tent or reduced leave. The employing office’s agreement 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 instructional employees 
of schools. 
‘‘§ 825.122 Definitions of covered servicemember, spouse, 
parent, son or daughter, next of kin of a cov-
ered servicemember, adoption, foster care, 
son or daughter on covered 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: 
‘‘(1) A current member of the Armed Forces, in-
cluding a member of the National Guard or Reserves, 
who is undergoing medical treatment, recuperation or
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therapy, is otherwise in outpatient status, or is otherwise 
on the temporary disability retired list, for a serious in-
jury or illness; or 
‘‘(2) A covered veteran who is undergoing medical 
treatment, recuperation, or therapy for a serious injury 
or illness. 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). 
‘‘(b) Spouse means a husband or wife. For purposes of 
this definition, husband or wife refers to 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 mar-
riage is valid in the place where entered into and could have 
been entered into in at least one State. This definition in-
cludes an individual in a same-sex or common law marriage 
that either: 
‘‘(1) Was entered into in a State that recognizes 
such marriages; or
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‘‘(2) If entered into outside of any State, is valid in 
the place where entered into and could have been en-
tered 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 employee 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 bio-
logical, 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 individual 
requires active assistance or supervision to provide daily 
self-care in three or more of the activities of daily living 
(ADLs) or instrumental activities of daily living 
(IADLs). Activities of daily living include adaptive activi-
ties such as caring appropriately for one’s grooming and 
hygiene, bathing, dressing, and eating. Instrumental ac-
tivities of daily living include cooking, cleaning, shop-
ping, taking public transportation, paying bills, main-
•HRES 1516 EH 
taining 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. Regula-
tions at 29 C.F.R. 1630.2(h), (i), and (j), issued by the 
Equal Employment Opportunity Commission under the 
Americans with Disabilities Act (ADA), (42 U.S.C. 
12101 et seq.), provide guidance for these terms. 
‘‘(3) Persons who are ‘in loco parentis’ include 
those with day-to-day responsibilities to care for and fi-
nancially support a child, or, in the case of an employee, 
who had such responsibility for the employee when the 
employee was a child. A biological or legal relationship 
is not necessary. 
‘‘(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 granted legal custody 
of the covered servicemember by court decree or statutory 
provisions, brothers and sisters, grandparents, aunts and un-
cles, 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 care-
giver leave under the FMLA. When no such designation is
•HRES 1516 EH 
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 
covered 
servicemember’s next of kin and may take FMLA leave to 
provide care to the covered servicemember, either consecu-
tively or simultaneously. When such designation has been 
made, the designated 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 assuming 
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 determining eligibility 
for FMLA leave. See 825.121 for rules governing leave for 
adoption. 
‘‘(g) Foster care means 24-hour care for children in sub-
stitution for, and away from, their parents or guardian. Such 
placement is made by or with the agreement of the State as 
a result of a voluntary agreement between the parent or 
guardian that the child be removed from the home, or pursu-
ant 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. Al-
though foster care may be with relatives of the child, State 
action is involved in the removal of the child from parental
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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 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 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 covered 
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 par-
ents ‘in law.’ See 825.127(d)(2). 
‘‘(k) Documenting relationships. For purposes of con-
firmation of family relationship, the employing office may re-
quire the employee giving notice of the need for leave to pro-
vide reasonable documentation or statement of family rela-
tionship. 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 exam-
•HRES 1516 EH 
ine documentation such as a birth certificate, 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 posi-
tion 
‘‘(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 unable to per-
form any one of the essential functions of the employee’s po-
sition within the meaning of the Americans with Disabilities 
Act (ADA), as amended and made applicable 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 considered to be unable to per-
form the essential functions of the position during the ab-
sence for treatment. 
‘‘(b) Statement of functions. An employing office has the 
option, in requiring certification from a health care provider, 
to provide a statement of the essential functions of the em-
ployee’s position for the health care provider to review. A suf-
ficient 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 em-
ployee is unable to perform one or more essential functions 
of the employee’s position. For purposes of the FMLA, the
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essential functions of the employee’s position are to be deter-
mined 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 covered 
servicemember 
‘‘(a) The medical certification provision that an employee 
is needed to care for a family member or covered servicemem-
ber encompasses both physical and psychological care. It in-
cludes situations where, for example, because of a serious 
health condition, the family member is unable to care for his 
or her own basic medical, hygienic, or nutritional needs or 
safety, or is unable to transport himself or herself to the doc-
tor. 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 in-
patient or home care. 
‘‘(b) The term also includes situations where the em-
ployee may be needed to substitute for others who normally 
care for the family member or covered servicemember, 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.
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‘‘(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 condi-
tion of the family member or covered servicemember itself is 
intermittent, but also where the employee is only needed 
intermittently—such as where other care is normally avail-
able, 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 intermittent 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 au-
thorized to practice medicine or surgery (as appropriate) 
by the State in which the doctor practices; or 
‘‘(2) Any other person determined by the Office of 
Congressional Workplace Rights to be capable of pro-
viding health care services. 
‘‘(3) In making a determination referred to in sub-
paragraph (a)(2), and absent good cause shown to do 
otherwise, the Office of Congressional Workplace 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
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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 in-
clude only: 
‘‘(1) Podiatrists, dentists, clinical psychologists, op-
tometrists, and chiropractors (limited to treatment con-
sisting of manual manipulation of the spine to correct a 
subluxation as demonstrated by X-ray to exist) author-
ized to practice in the State and performing within the 
scope of their practice as defined under State law; 
‘‘(2) Nurse practitioners, nurse-midwives, clinical 
social workers, and physician assistants who are author-
ized to practice under State law and who are performing 
within the scope of their practice as defined under State 
law; 
‘‘(3) Christian Science Practitioners listed with the 
First Church of Christ, Scientist in Boston, Massachu-
setts. Where an employee or family member is receiving 
treatment from a Christian Science practitioner, an em-
ployee may not object to any requirement from an em-
ploying office that the employee or family member sub-
mit 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
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otherwise provided under applicable State or local law or 
collective bargaining agreement; 
‘‘(4) Any health care provider from whom an em-
ploying office or the employing office’s group health 
plan’s benefits manager will accept certification of the 
existence of a serious health condition to substantiate a 
claim for benefits; and 
‘‘(5) A health care provider listed above who prac-
tices in a country other than the United States, who is 
authorized to practice in accordance with the law of that 
country, and who is performing within the scope of his 
or her practice as defined under such law. 
‘‘(c) The phrase authorized to practice in the State as 
used in this section means that the provider must be author-
ized to diagnose and treat physical or mental health condi-
tions. 
‘‘§ 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, daugh-
ter, 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 covered 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
•HRES 1516 EH 
member with the Armed Forces to a foreign country. 
The active duty orders of a member of the Regular com-
ponents of the Armed Forces will generally 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 com-
ponents of the Armed Forces means duty during the de-
ployment of the member with the Armed Forces to a for-
eign country under a Federal call or order to active duty 
in support of a contingency operation pursuant to: sec-
tion 688 of title 10 of the United States Code, which au-
thorizes ordering to active duty retired members of the 
Regular Armed Forces and members of the retired Re-
serve who retired 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 com-
ponent members to active duty in the case of war or na-
tional emergency; section 12302 of title 10 of the United 
States Code, which authorizes ordering any unit or unas-
signed member of the Ready Reserve to active duty; sec-
tion 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 Indi-
vidual Ready Reserve to active duty; section 12305 of 
title 10 of the United States Code, which authorizes the
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suspension 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 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 insur-
rections and national emergencies; or any other provision 
of law during a war or during a national emergency de-
clared by the President or Congress so long as it is in 
support of a contingency operation. See 10 U.S.C. 
101(a)(13)(B). 
‘‘(A) For purposes of covered active duty or 
call to covered active duty status, the Reserve com-
ponents of the Armed Forces include the Army Na-
tional Guard of the United States, Army Reserve, 
Navy Reserve, Marine Corps Reserve, 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 para-
graph (a)(2). 
‘‘(B) The active duty orders of a member of 
the Reserve components will generally specify if the
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military member is serving in support of a contin-
gency operation by citation to the relevant section 
of title 10 of the United States Code and/or by ref-
erence to the specific name of the contingency oper-
ation and will specify that the deployment is to a 
foreign country. 
‘‘(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, in-
cluding 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 President 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 employee’s bio-
logical, 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:
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‘‘(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 de-
ployment; 
‘‘(B) Leave taken for this purpose can be used 
for a period of seven calendar days beginning on the 
date the military member is notified of an impend-
ing call or order to covered active duty; 
‘‘(2) Military events and related activities. 
‘‘(A) To attend any official ceremony, program, 
or event sponsored by the military that is related to 
the covered active duty or call to covered active 
duty status of the military member; and 
‘‘(B) To attend family support or assistance 
programs and informational briefings sponsored or 
promoted by the military, military service organiza-
tions, 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 pur-
poses of leave for childcare and school activities listed in 
(A) through (D) of this paragraph, a child of the mili-
tary member must be the military member’s biological, 
adopted, or foster child, stepchild, legal ward, or child
•HRES 1516 EH 
for whom the military member stands in loco parentis, 
who is either under 18 years 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 military member must be the spouse, son, 
daughter, or parent of the employee requesting quali-
fying exigency leave. 
‘‘(A) To arrange for alternative childcare for a 
child of the military member when the covered ac-
tive duty or call to covered active duty status of the 
military member necessitates a change in the exist-
ing 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 ac-
tive 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 necessitated by the 
covered active duty or call to covered active duty 
status of the military member; and
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nation of the military member’s covered active duty sta-
tus; and 
‘‘(B) To address issues that arise from the 
death of the military member while on covered ac-
tive duty status, such as meeting and recovering the 
body of the military member, making funeral ar-
rangements, and attending funeral services; 
‘‘(8) Parental care. For purposes of leave for paren-
tal care listed in (A) through (D) of this paragraph, the 
parent of the military member must be incapable of self- 
care and must be the military member’s biological, adop-
tive, step, or foster father or mother, or any other indi-
vidual who stood in loco parentis to the military member 
when the member was under 18 years of age. A parent 
who is incapable of self-care means that the parent re-
quires active assistance or supervision to provide daily 
self-care in three or more of the activities of daily living 
or instrumental activities of daily living. Activities of 
daily living include adaptive activities such as caring ap-
propriately for one’s grooming and hygiene, bathing, 
dressing, and eating. Instrumental activities of daily liv-
ing include cooking, cleaning, shopping, taking 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
•HRES 1516 EH 
military member must be the spouse, son, daughter, or 
parent of the employee requesting qualifying exigency 
leave. 
‘‘(A) To arrange for alternative care for a par-
ent of the military member when the parent is in-
capable 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 mili-
tary 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 facility 
a parent of the military member when admittance 
or transfer is necessitated by the covered active 
duty or call to covered active duty status of the 
military member; and 
‘‘(D) To attend meetings with staff at a care 
facility, such as meetings with hospice or social 
service providers for a parent of the military mem-
ber, when such meetings are necessary due to cir-
•HRES 1516 EH 
cumstances 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 covered 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 tim-
ing and duration of such leave. 
‘‘§ 825.127 Leave to care for a covered servicemember 
with a serious injury or illness (military care-
giver leave) 
‘‘(a) Eligible employees are entitled to FMLA leave to 
care for a covered servicemember with a serious illness or in-
jury. 
‘‘(b) Covered servicemember means: 
‘‘(1) A current member of the Armed Forces, in-
cluding a member of the National Guard or Reserves, 
who is undergoing medical treatment, recuperation, or 
therapy, is otherwise in outpatient status; or is otherwise 
on the temporary disability retired list, for a serious in-
jury or illness. Outpatient status means the status of a 
member of the Armed Forces assigned to either a mili-
tary medical treatment facility as an outpatient or a unit 
established for the purpose of providing command and
•HRES 1516 EH 
control of members of the Armed Forces receiving med-
ical care as outpatients. 
‘‘(2) A covered veteran who is undergoing medical 
treatment, recuperation or therapy for a serious injury 
or illness. 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. 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 sec-
tion may extend beyond the five-year period. 
‘‘(3) For an individual who was a member of the 
Armed Forces (including a member of the National 
Guard or Reserves) and who was discharged or released 
under conditions other than dishonorable prior to the ef-
fective date of this Final Rule, the period between Octo-
ber 28, 2009, and the effective date of this Final Rule 
shall not count towards the determination of the five- 
year period for covered veteran status. 
‘‘(c) A serious injury or illness means:
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‘‘(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 ac-
tive duty in the Armed Forces or that 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 that may render the member medi-
cally unfit to perform the duties of the member’s office, 
grade, rank, or rating; and 
‘‘(2) In the case of a covered veteran, means an in-
jury or illness that was incurred by the member in the 
line of duty on active duty in the Armed Forces (or ex-
isted before the beginning of the member’s active duty 
and was aggravated by service in the line of duty on ac-
tive duty in the Armed Forces), and manifested itself be-
fore or after the member became a veteran, and is: 
‘‘(A) A continuation of a serious injury or ill-
ness that was incurred or aggravated when the cov-
ered 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 Department of
•HRES 1516 EH 
ter father or mother, or any other individual who stood 
in loco parentis to the covered servicemember. This term 
does not include parents ‘in law’. 
‘‘(3) 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 
granted legal custody of the servicemember by court de-
cree or statutory provisions, brothers and sisters, grand-
parents, 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 relationship to the covered servicemember, all such 
family members shall be considered the covered 
servicemember’s next of kin and may take FMLA leave 
to provide care to the covered servicemember, either con-
secutively or simultaneously. When such designation has 
been made, the designated individual shall be deemed to 
be the covered servicemember’s only next of kin. For ex-
ample, 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
•HRES 1516 EH 
servicemember’s next of kin. Alternatively, where a cov-
ered servicemember has a sibling(s) and designates 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 employing office is per-
mitted to require an employee to provide confirmation of 
covered family relationship to the covered servicemember 
pursuant to 825.122(k). 
‘‘(e) An eligible employee is entitled to 26 workweeks of 
leave to care for a covered servicemember with a serious in-
jury or illness during a single 12–month period. 
‘‘(1) The single 12-month period described in para-
graph (e) of this section begins on the first day the eligi-
ble employee takes FMLA leave to care for a covered 
servicemember and ends 12 months after that date, re-
gardless of the method used by the employing office to 
determine the employee’s 12 workweeks of leave entitle-
ment for other FMLA-qualifying 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 single 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 paragraph 
(e) of this section is to be applied on a per-covered-serv-
•HRES 1516 EH 
icemember, per-injury basis such that an eligible em-
ployee 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 service-
member with a subsequent serious injury or illness, ex-
cept that no more than 26 workweeks of leave may be 
taken within any single 12-month period. An eligible em-
ployee 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 illness. 
When an eligible employee takes leave to care for more 
than one covered servicemember or for a subsequent se-
rious injury or illness of the same covered servicemem-
ber, and the single 12-month periods corresponding to 
the different military caregiver leave entitlements over-
lap, 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 combined 
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
•HRES 1516 EH 
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 the employee’s own serious health condition; 
or because of a qualifying exigency. Thus, for example, 
an eligible employee may, during the single 12-month pe-
riod, 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 work-
weeks of FMLA leave to care for a covered servicemem-
ber. 
‘‘(4) In all circumstances, including for leave taken 
to care for a covered servicemember, the employing office 
is responsible for designating leave, paid or unpaid, as 
FMLA-qualifying, and for giving notice of the designa-
tion 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 employing office must designate such leave as leave
•HRES 1516 EH 
to care for a covered servicemember in the first instance. 
Leave that qualifies as both leave to care for a covered 
servicemember and leave taken to care for a family 
member with a serious health condition during the single 
12-month period described in paragraph (e) of this sec-
tion must not be designated and counted as both leave 
to care for a covered servicemember 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 lim-
ited to a combined total of 26 workweeks of leave during the 
single 12-month period described in paragraph (e) of this sec-
tion 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, to care for the 
employee’s parent with a serious health condition, or to care 
for a covered servicemember 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 em-
ployed by the same employing office. It would apply, for ex-
•HRES 1516 EH 
ample, even though the spouses are employed at two different 
worksites. On the other hand, if one spouse is ineligible 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 Applicable 
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 em-
ployee’s FMLA leave entitlement is limited to a total of 12 
workweeks of leave during any 12-month period for any one, 
or more, of the following reasons: 
‘‘(1) The birth of the employee’s son or daughter, 
and to care for the newborn child; 
‘‘(2) The placement with the employee of a son or 
daughter for adoption or foster care, and to care for the 
newly placed child; 
‘‘(3) To care for the employee’s spouse, son, daugh-
ter, 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
•HRES 1516 EH 
parent is a military member on covered active duty sta-
tus (or has been notified of an impending 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 para-
graph (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 anniversary 
date; 
‘‘(3) The 12-month period measured forward from 
the date any employee’s first FMLA leave under para-
graph (a) begins; or 
‘‘(4) A ‘rolling’ 12-month period measured back-
ward 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 se-
lected. 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
•HRES 1516 EH 
taken; the next 12-month period would begin the first time 
FMLA leave is taken after completion of any previous 12- 
month period. Under the method in paragraph (b)(4) of this 
section, the ‘rolling’ 12-month period, each time an employee 
takes FMLA leave the remaining leave entitlement would be 
any balance of the 12 weeks which has not been used during 
the immediately preceding 12 months. For example, if an 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 begin-
ning December 1, 2008, the employee would not be entitled 
to any additional leave until February 1, 2009. However, be-
ginning 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 employee would recoup (and 
be entitled to use) one additional day of FMLA leave each 
day for four weeks, commencing February 1, 2009. The em-
ployee would also begin to recoup additional days beginning 
on June 1, 2009, and additional 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 re-
quested, and employees taking FMLA leave on such a basis
•HRES 1516 EH 
may fall in and out of FMLA protection based on their 
FMLA usage in the prior 12 months. For example, in the ex-
ample above, if the employee needs six weeks of leave for a 
serious health condition commencing February 1, 2009, only 
the first four weeks of the leave would be FMLA-protected. 
‘‘(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 consistently and 
uniformly to all employees. An employing office wishing to 
change to another alternative is required to give at least 60 
days’ notice to all employees, and the transition must take 
place in such a way that the employees retain the full benefit 
of 12 weeks of leave under whichever method affords the 
greatest benefit to the employee. Under no circumstances 
may a new method be implemented in order to avoid the 
CAA’s FMLA leave requirements. 
‘‘(2) øReserved¿ 
‘‘(e) If an employing office fails to select one of the op-
tions in paragraph (b) of this section for measuring the 12- 
month period for the leave entitlements described in para-
graph (a), the option that provides the most beneficial out-
come for the employee will be used. The employing office may 
subsequently select an option only by providing the 60-day 
notice to all employees of the option the employing office in-
•HRES 1516 EH 
tends to implement. During the running of the 60-day period 
any other employee who needs FMLA leave may use the op-
tion providing the most beneficial outcome to that employee. 
At the conclusion of the 60-day period the employing office 
may implement the selected option. 
‘‘(f) 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 servicemember 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 be-
gins. See 825.127(e)(1). 
‘‘(g) During the single 12-month period described in 
paragraph (f), an eligible employee’s FMLA leave entitlement 
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 with-
in the week taken as FMLA leave has no effect; the 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 employee’s FMLA entitle-
ment unless the employee was otherwise scheduled and ex-
•HRES 1516 EH 
pected to work during the holiday. Similarly, if for some rea-
son the employing office’s business activity has temporarily 
ceased and employees generally are not expected to report for 
work for one or more weeks (e.g., a school closing two weeks 
for the Christmas/New Year holiday or the summer vacation 
or an employing office closing the office for repairs), the days 
the employing office’s activities have ceased do not count 
against the employee’s FMLA leave entitlement. Methods for 
determining an employee’s 12-week leave entitlement are also 
described in 825.205. 
‘‘(i)(1) If employing offices jointly employ an employee, 
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 meas-
uring the 12-month period, provided that the alternative cho-
sen is applied consistently and uniformly to all employees of 
the primary employing office including the jointly employed 
employee. 
‘‘(2) If employing offices fail to designate a primary 
employing office pursuant to 825.106(c), an employee 
jointly employed by the employing offices may, by so no-
tifying one of the employing offices, select that employ-
ing office to be the primary employing office of the em-
ployee for purposes of the application of paragraphs (d) 
and (e) of this section.
•HRES 1516 EH 
‘‘(j) If, before beginning employment with an employing 
office, an employee had been employed by another employing 
office, the subsequent employing office may count against the 
employee’s FMLA leave entitlement FMLA leave taken from 
the prior employing office, so long as the prior employing of-
fice properly designated the leave as FMLA under these regu-
lations or other applicable requirements. 
‘‘§ 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 cov-
ered 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 cov-
ered 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 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 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-
•HRES 1516 EH 
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 the spouses both use a por-
tion 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 in-
dividually and 12 weeks for FMLA leave for other purposes. 
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 schedule 
‘‘(a) Definition. FMLA leave may be taken intermit-
tently or on a reduced leave schedule under certain cir-
cumstances. Intermittent leave is FMLA leave taken in sepa-
rate blocks of time due to a single qualifying reason. A re-
duced leave schedule is a leave schedule that reduces an em-
ployee’s usual number of working hours per workweek, or 
hours per workday. A reduced leave schedule is a change in 
the employee’s schedule for a period of time, normally from 
full-time to part-time. 
‘‘(b) 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 daugh-
•HRES 1516 EH 
ter 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 in-
formation described in the certification of a serious health 
condition and in the certification of a serious injury or illness, 
if required by the employing office, addresses the medical ne-
cessity of intermittent leave or leave on a reduced leave 
schedule. See 825.306, 825.310. Leave may be taken inter-
mittently or on a reduced leave schedule when medically nec-
essary for planned and/or unanticipated medical treatment of 
a serious health condition or of a covered servicemember’s se-
rious injury or illness, or for recovery from treatment or re-
covery from 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 serious 
health condition of a spouse, parent, son, or daughter, 
for the employee’s own serious health condition, or a se-
rious injury or illness of a covered servicemember which 
requires treatment by a health care provider periodically, 
rather than for one continuous period of time, and may
•HRES 1516 EH 
include leave of periods from an hour or more to several 
weeks. Examples of intermittent leave would include 
leave taken on an occasional basis for medical appoint-
ments, or leave taken several days at a time spread over 
a period of six months, such as for chemotherapy. A 
pregnant employee may take leave intermittently for pre-
natal examinations or for her own condition, such as for 
periods of severe morning sickness. An example of an 
employee taking leave on a reduced leave schedule is an 
employee who is recovering from a serious health condi-
tion and is not strong enough to work a full-time sched-
ule. 
‘‘(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 func-
tions of the position because of a chronic serious health 
condition or a serious injury or illness of a covered serv-
icemember, even if he or she does not receive treatment 
by a health care provider. 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 intermit-
tently or on a reduced leave schedule only if the employing 
office agrees. Such a schedule reduction might occur, for ex-
ample, where an employee, with the employing office’s agree-
•HRES 1516 EH 
ment, works part-time after the birth of a child, or takes 
leave in several segments. The employing office’s agreement 
is not required, however, for leave during which the expectant 
mother has a serious health condition in connection with the 
birth of her child or if the newborn child has a serious health 
condition. See 825.204 for rules governing transfer to an al-
ternative position that better accommodates intermittent 
leave. See also 825.120 (pregnancy) and 825.121 (adoption 
and foster care). 
‘‘(d) Qualifying exigency. Leave due to a qualifying exi-
gency may be taken on an intermittent or reduced leave 
schedule basis. 
‘‘§ 825.203 Scheduling of intermittent or reduced sched-
ule leave 
‘‘Eligible employees may take FMLA leave on an inter-
mittent or reduced schedule basis when medically necessary 
due to the serious health condition of a covered family mem-
ber or the employee or the serious injury or illness of a cov-
ered servicemember. See 825.202. Eligible employees may 
also take FMLA leave on an intermittent or reduced schedule 
basis when necessary because of a qualifying exigency. If an 
employee needs leave intermittently or on a reduced leave 
schedule for planned medical treatment, then the employee 
must make a reasonable effort to schedule the treatment so 
as not to disrupt unduly the employing office’s operations.
•HRES 1516 EH 
‘‘§ 825.204 Transfer of an employee to an alternative posi-
tion during intermittent leave or reduced 
schedule leave 
‘‘(a) Transfer or reassignment. If an employee needs 
intermittent leave or leave on a reduced leave schedule that 
is foreseeable based on planned medical treatment for the em-
ployee, a family member, or a covered servicemember, includ-
ing during a period of recovery from one’s own serious health 
condition, a serious health condition of a spouse, parent, son, 
or daughter, or a serious injury or illness of a covered serv-
icemember, or if the employing office agrees to permit inter-
mittent or reduced schedule leave for the birth of a child or 
for placement of a child for adoption or foster care, the em-
ploying office may require the employee to transfer tempo-
rarily, during the period the intermittent or reduced leave 
schedule is required, to an available alternative position for 
which the employee is qualified and which better accommo-
dates recurring periods of leave than does the employee’s reg-
ular position. See 825.601 for special rules applicable to in-
structional employees of schools. 
‘‘(b) Compliance. Transfer to an alternative position may 
require compliance with any applicable collective bargaining 
agreement 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
•HRES 1516 EH 
better accommodate the employee’s need for intermittent or 
reduced scheduled leave. 
‘‘(c) Equivalent pay and benefits. The alternative posi-
tion must have equivalent pay and benefits. An alternative 
position for these purposes does not have to have equivalent 
duties. The employing office may increase the pay and bene-
fits of an existing alternative position, so as to make them 
equivalent to the pay and benefits of the employee’s regular 
job. The employing office may also transfer the employee to 
a part-time job with the same hourly rate of pay and benefits, 
provided the employee is not required to take more leave than 
is medically necessary. For example, an employee desiring to 
take leave in increments of four hours per day could be trans-
ferred to a half-time job, or could remain in the employee’s 
same job on a part-time schedule, paying the same hourly 
rate as the employee’s previous job and enjoying the same 
benefits. The employing office may not eliminate benefits 
which otherwise would not be provided to part-time employ-
ees; however, an employing office may proportionately reduce 
benefits such as vacation leave where an employing office’s 
normal practice is to base such benefits on the number of 
hours worked. 
‘‘(d) Employing office limitations. An employing office 
may not transfer the employee to an alternative position in 
order to discourage the employee from taking leave or other-
100 
•HRES 1516 EH 
wise work a hardship on the employee. For example, a white 
collar employee may not be assigned to perform laborer’s 
work; an employee working the day shift may not be reas-
signed to the graveyard shift; an employee working in the 
headquarters facility may not be reassigned to a branch a sig-
nificant distance away from the employee’s normal job loca-
tion. Any such attempt on the part of the employing office 
to make such a transfer will be held to be contrary to the 
prohibited acts provisions of the FMLA, as made applicable 
by the CAA. 
‘‘(e) Reinstatement of employee. When an employee who 
is taking leave intermittently or on a reduced leave schedule 
and has been transferred to an alternative position no longer 
needs to continue on leave and is able to return to full-time 
work, the employee must be placed in the same or equivalent 
job as the job he or she left when the leave commenced. An 
employee may not be required to take more leave than nec-
essary to address the circumstance that precipitated the need 
for leave. 
‘‘§ 825.205 Increments of fmla leave for intermittent or re-
duced schedule leave 
‘‘(a) Minimum increment. (1) When an employee takes 
FMLA leave on an intermittent or reduced leave schedule 
basis, the employing office must account for the leave using 
an increment no greater than the shortest period of time that
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the employing office uses to account for use of other forms 
of leave provided that it is not greater than one hour and 
provided further that an employee’s FMLA leave entitlement 
may not be reduced by more than the amount of leave actu-
ally taken. An employing office may not require an employee 
to take more leave than is necessary to address the cir-
cumstances that precipitated the need for the leave, provided 
that the leave is counted using the shortest increment of 
leave used to account for any other type of leave. See also 
825.205(a)(2) for the physical impossibility exception, and 
825.600 and 825.601 for special rules applicable to employ-
ees of schools. If an employing office uses different incre-
ments to account for different types of leave, the employing 
office must account for FMLA leave in the smallest incre-
ment used to account for any other type of leave. For exam-
ple, if an employing office accounts for the use of annual 
leave in increments of one hour and the use of sick leave in 
increments of one-half hour, then FMLA leave use must be 
accounted for using increments no larger than one-half hour. 
If an employing office accounts for use of leave in varying in-
crements at different times of the day or shift, the employing 
office may also account for FMLA leave in varying incre-
ments, provided that the increment used for FMLA leave is 
no greater than the smallest increment used for any other 
type of leave during the period in which the FMLA leave is
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taken. If an employing office accounts for other forms of 
leave use in increments greater than one hour, the employing 
office must account for FMLA leave use in increments no 
greater than one hour. An employing office may account for 
FMLA leave in shorter increments than used for other forms 
of leave. For example, an employing office that accounts for 
other forms of leave in one hour increments may account for 
FMLA leave in a shorter increment when the employee ar-
rives at work several minutes late, and the employing office 
wants the employee to begin work immediately. Such account-
ing for FMLA leave will not alter the increment considered 
to be the shortest period used to account for other forms of 
leave or the use of FMLA leave in other circumstances. In 
all cases, employees may not be charged FMLA leave for pe-
riods during which they are working. 
‘‘(2) Where it is physically impossible for an em-
ployee using intermittent leave or working a reduced 
leave schedule to commence or end work mid-way 
through a shift, such as where a flight attendant or a 
railroad conductor is scheduled to work aboard an air-
plane or train, or a laboratory employee is unable to 
enter or leave a sealed ‘clean room’ during a certain pe-
riod of time and no equivalent position is available, the 
entire period that the employee is forced to be absent is 
designated as FMLA leave and counts against the em-
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ployee’s FMLA entitlement. The period of the physical 
impossibility is limited to the period during which the 
employing office is unable to permit the employee to 
work prior to a period of FMLA leave or return the em-
ployee to the same or equivalent position due to the 
physical impossibility after a period of FMLA leave. See 
825.214. 
‘‘(b) Calculation of leave. (1) When an employee takes 
leave on an intermittent or reduced leave schedule, only the 
amount of leave actually taken may be counted toward the 
employee’s leave entitlement. The actual workweek is the 
basis of leave entitlement. Therefore, if an employee who 
would otherwise work 40 hours a week takes off eight hours, 
the employee would use one-fifth (1/5) of a week of FMLA 
leave. Similarly, if a full-time employee who would otherwise 
work eight-hour days works four-hour days under a reduced 
leave schedule, the employee would use one half (1/2) week 
of FMLA leave each week. Where an employee works a part- 
time schedule or variable hours, the amount of FMLA leave 
that an employee uses is determined on a pro rata or propor-
tional basis. If an employee who would otherwise work 30 
hours per week, but works only 20 hours a week under a re-
duced leave schedule, the employee’s 10 hours of leave would 
constitute one-third (1/3) of a week of FMLA leave for each 
week the employee works the reduced leave schedule. An em-
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ploying office may convert these fractions to their hourly 
equivalent so long as the conversion equitably reflects the em-
ployee’s total normally scheduled hours. An employee does 
not accrue FMLA-protected leave at any particular hourly 
rate. An eligible employee is entitled to up to a total of 12 
workweeks of leave, or 26 workweeks in the case of military 
caregiver leave, and the total number of hours contained in 
those workweeks is necessarily dependent on the specific 
hours the employee would have worked but for the use of 
leave. See also 825.601 and 825.602 on special rules for 
schools. 
‘‘(2) If an employing office has made a permanent 
or long-term change in the employee’s schedule (for rea-
sons other than FMLA, and prior to the notice of need 
for FMLA leave), the hours worked under the new 
schedule are to be used for making this calculation. 
‘‘(3) If an employee’s schedule varies from week to 
week to such an extent that an employing office is un-
able to determine with any certainty how many hours 
the employee would otherwise have worked (but for the 
taking of FMLA leave), a weekly average of the hours 
worked over the 12 months prior to the beginning of the 
leave period (including any hours for which the employee 
took leave of any type) would be used for calculating the 
employee’s leave entitlement.
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‘‘(c) Overtime. If an employee would normally be re-
quired to work overtime, but is unable to do so because of 
a FMLA-qualifying reason that limits the employee’s ability 
to work overtime, the hours which the employee would have 
been required to work may be counted against the employee’s 
FMLA entitlement. In such a case, the employee is using 
intermittent or reduced schedule leave. For example, if an 
employee would normally be required to work for 48 hours 
in a particular week, but due to a serious health condition the 
employee is unable to work more than 40 hours that week, 
the employee would utilize eight hours of FMLA-protected 
leave out of the 48-hour workweek, or one-sixth (1/6) of a 
week of FMLA leave. Voluntary overtime hours that an em-
ployee does not work due to an FMLA-qualifying reason may 
not be counted against the employee’s FMLA leave entitle-
ment. 
‘‘§ 825.206 Interaction with the FLSA, as made applicable 
by the congressional accountability act 
‘‘(a) Leave taken under FMLA, as made applicable by 
the CAA, may be unpaid. If an employee is otherwise exempt 
from minimum wage and overtime requirements of the Fair 
Labor Standards Act (FLSA), as made applicable by the 
CAA, and as exempt under regulations issued by the Board, 
at part 541, providing unpaid FMLA-qualifying leave to such 
an employee will not cause the employee to lose the FLSA
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exemption. This means that under regulations currently in ef-
fect, where an employee meets the specified duties test, is 
paid on a salary basis, and is paid a salary of at least the 
amount specified in the regulations, the employing office may 
make deductions from the employee’s salary for any hours 
taken as intermittent or reduced FMLA leave within a work-
week, without affecting the exempt status of the employee. 
‘‘(b) For an employee paid in accordance with a fluc-
tuating workweek method of payment for overtime, where 
permitted by section 203 of the CAA (2 U.S.C. 1313), the 
employing office, during the period in which intermittent or 
reduced schedule FMLA leave is scheduled to be taken, may 
compensate an employee on an hourly basis and pay only for 
the hours the employee works, including time and one-half 
the employee’s regular rate for overtime hours. The change 
to payment on an hourly basis would include the entire period 
during which the employee is taking intermittent leave, in-
cluding weeks in which no leave is taken. The hourly rate 
shall be determined by dividing the employee’s weekly salary 
by the employee’s normal or average schedule of hours 
worked during weeks in which FMLA leave is not being 
taken. If an employing office chooses to follow this exception 
from the fluctuating workweek method of payment, the em-
ploying office must do so uniformly, with respect to all em-
ployees paid on a fluctuating workweek basis for whom
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•HRES 1516 EH 
FMLA leave is taken on an intermittent or reduced leave 
schedule basis. If an employing office does not elect to con-
vert the employee’s compensation to hourly pay, no deduction 
may be taken for FMLA leave absences. Once the need for 
intermittent or reduced scheduled leave is over, the employee 
may be restored to payment on a fluctuating workweek basis. 
‘‘(c) This special exception to the salary basis require-
ments of the FLSA exemption or fluctuating workweek pay-
ment requirements applies only to employees of covered em-
ploying offices who are eligible for FMLA leave, and to leave 
which qualifies as FMLA leave. Hourly or other deductions 
which are not in accordance with the Board’s FLSA regula-
tions at part 541 or with a permissible fluctuating workweek 
method of payment for overtime may not be taken, for exam-
ple, where the employee has not worked long enough to be 
eligible for FMLA leave without potentially affecting the em-
ployee’s eligibility for exemption. Nor may deductions which 
are not permitted by the Board’s FLSA regulations at part 
541 or by a permissible fluctuating workweek method of pay-
ment for overtime be taken from such an employee’s salary 
for any leave which does not qualify as FMLA leave, for ex-
ample, deductions from an employee’s pay for leave required 
under an employing office’s policy or practice for a reason 
which does not qualify as FMLA leave, e.g., leave to care for 
a grandparent or for a medical condition which does not qual-
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•HRES 1516 EH 
ify as a serious health condition or serious injury or illness; 
or for leave which is more generous than provided by the 
FMLA, as made applicable by the CAA. Employing offices 
may comply with the employing office’s own policy/practice 
under these circumstances and maintain the employee’s eligi-
bility for exemption or for the fluctuating workweek method 
of pay by not taking hourly deductions from the employee’s 
pay, in accordance with FLSA requirements, as made appli-
cable by the CAA, or may take such deductions, treating the 
employee as an hourly employee and pay overtime premium 
pay for hours worked over 40 in a workweek. 
‘‘§ 825.207 Substitution of paid leave, generally 
‘‘(a) Generally, FMLA leave is unpaid leave. However, 
under the circumstances described in this section, the FMLA, 
as made applicable by the CAA, permits an eligible employee 
to choose to substitute accrued paid leave for unpaid FMLA 
leave. Subject to 825.208, if an employee does not choose to 
substitute accrued paid leave, the employing office may re-
quire the employee to substitute accrued paid leave for un-
paid FMLA leave. The term substitute means that the paid 
leave provided by the employing office, and accrued pursuant 
to established policies of the employing office, will run con-
currently with the unpaid FMLA leave. Accordingly, the em-
ployee receives pay pursuant to the employing office’s appli-
cable paid leave policy during the period of otherwise unpaid
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FMLA leave. An employee’s ability to substitute accrued paid 
leave is determined by the terms and conditions of the em-
ploying office’s normal leave policy. When an employee choos-
es, or an employing office requires, substitution of accrued 
paid leave, the employing office must inform the employee 
that the employee must satisfy any procedural requirements 
of the paid leave policy only in connection with the receipt 
of such payment. See 825.300(c). If an employee does not 
comply with the additional requirements in an employing of-
fice’s paid leave policy, the employee is not entitled to sub-
stitute accrued paid leave, but the employee remains entitled 
to take unpaid FMLA leave. Employing offices may not dis-
criminate against employees on FMLA leave in the adminis-
tration of their paid leave policies. 
‘‘(b) If neither the employee nor the employing office 
elects to substitute paid leave for unpaid FMLA leave under 
the above conditions and circumstances, the employee will re-
main entitled to all the paid leave which is earned or accrued 
under the terms of the employing office’s plan. 
‘‘(c) If an employee uses paid leave under circumstances 
which do not qualify as FMLA leave, the leave will not count 
against the employee’s FMLA leave entitlement. For exam-
ple, paid sick leave used for a medical condition which is not 
a serious health condition or serious injury or illness does not 
count against the employee’s FMLA leave entitlement.
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‘‘(d) Leave taken pursuant to a disability leave plan 
would be considered FMLA leave for a serious health condi-
tion and counted in the leave entitlement permitted under 
FMLA if it meets the criteria set forth above in 825.112 
through 825.115. In such cases, the employing office may 
designate the leave as FMLA leave and count the leave 
against the employee’s FMLA leave entitlement. Because 
leave pursuant to a disability benefit plan is not unpaid, the 
provision for substitution of the employee’s accrued paid leave 
is inapplicable, and neither the employee nor the employing 
office may require the substitution of paid leave. However, 
employing offices and employees may agree to have paid leave 
supplement the disability plan benefits, such as in the case 
where a plan only provides replacement income for two-thirds 
of an employee’s salary. 
‘‘(e) The FMLA, as made applicable by the CAA, pro-
vides that a serious health condition may result from injury 
to the employee on or off the job. If the employing office des-
ignates the leave as FMLA leave in accordance with 
825.300(d), the leave counts against the employee’s FMLA 
leave entitlement. Because the workers’ compensation absence 
is not unpaid, the provision for substitution of the employee’s 
accrued paid leave is not applicable, and neither the employee 
nor the employing office may require the substitution of paid 
leave. However, employing offices and employees may agree,
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•HRES 1516 EH 
to have paid leave supplement workers’ compensation bene-
fits, such as in the case where workers’ compensation only 
provides replacement income for two-thirds of an employee’s 
salary. If the health care provider treating the employee for 
the workers’ compensation injury certifies the employee is 
able to return to a light duty job but is unable to return to 
the same or equivalent job, the employee may decline the em-
ploying office’s offer of a light duty job. As a result, the em-
ployee may lose workers’ compensation payments, but is enti-
tled to remain on unpaid FMLA leave until the employee’s 
FMLA leave entitlement is exhausted. As of the date work-
ers’ compensation benefits cease, the substitution provision 
becomes applicable and either the employee may elect or the 
employing office may require the use of accrued paid leave. 
See also 825.210(f), 825.216(d), 825.220(d), 825.307(a) and 
825.702 (d)(1) and (2) regarding the relationship between 
workers’ compensation absences and FMLA leave. 
‘‘(f) Under the FLSA, as made applicable by the CAA, 
an employing office always has the right to cash out an em-
ployee’s compensatory time or to require the employee to use 
the time. Therefore, if an employee requests and is permitted 
to use accrued compensatory time to receive pay for time 
taken off for an FMLA reason, or if the employing office re-
quires such use pursuant to the FLSA, the time taken may 
be counted against the employee’s FMLA leave entitlement.
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‘‘§ 825.208 Substitution of paid leave—special rule for 
paid parental leave 
‘‘(a) This section applies to births or placements occur-
ring on or after October 1, 2020. 
‘‘(b) This section provides the basis for determining the 
periods of unpaid leave for which paid parental leave or ac-
crued paid leave may be substituted in connection with: 
‘‘(1) The birth of a son or daughter, and to care 
for the newborn child (See 825.120); or 
‘‘(2) 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); 
‘‘(c) Leave connected to birth or placement. For unpaid 
leave described in paragraph (b) of this section, an employee 
may elect to substitute— 
‘‘(1) Up to 12 workweeks of paid parental leave in 
connection with the occurrence of a birth or placement, 
and 
‘‘(2) Any additional paid annual, vacation, personal, 
family, medical, or sick leave provided by the employing 
office to such employee. 
‘‘(d) Leave entitlement. Since an employee may use only 
12 weeks of unpaid FMLA leave in any 12-month period 
under 825.200(a), any use of unpaid FMLA leave not associ-
ated with paid parental leave may affect an employee’s ability 
to use the full 12 weeks of paid parental leave within a single
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12-month period. The specific amount of paid parental leave 
available will depend on when the employee uses various types 
of unpaid FMLA leave relative to any 12-month period estab-
lished under 825.200(b). 
‘‘(e) Employee entitlement to substitute. (1) An employee 
is entitled to substitute paid leave for leave without pay as 
provided in paragraph (c) of this section. 
‘‘(2) An employing office may not require that an 
employee first use all or any portion of the leave de-
scribed in subparagraph (c)(2) of this section before 
being allowed to use the leave described in subparagraph 
(c)(1) of this section. 
‘‘(3) An employing office may not require an em-
ployee to substitute paid leave for leave without pay as 
described in subparagraph (c)(2) of this section. 
‘‘(4) An employee may request to use annual, vaca-
tion, personal, family, medical, or sick leave for the rea-
sons described in paragraph (b) of this section without 
invoking family and medical leave, and, in that case, the 
employing office exercises its normal authority with re-
spect to approving or disapproving the timing of when 
the leave may be used. If the employing office grants the 
leave request, it must designate whether any leave grant-
ed is FMLA leave, in accordance with sections 825.300 
and 825.301.
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ment for annual leave or for any other purpose. The for-
feiture of any unused balance of paid parental leave does not 
impact an employee’s ability to use unpaid FMLA leave for 
other qualifying reasons, if eligible pursuant to 825.110, 
825.112 and 825.200. 
‘‘(i) Employing office responsibilities. An employing of-
fice that has employees covered by this subpart is responsible 
for the proper administration of 825.208, including the re-
sponsibility of informing employees of their entitlements and 
obligations. 
‘‘(j) Library of Congress. The OCWR will defer to sup-
plemental regulations on paid parental leave issued by the Li-
brary of Congress pursuant to the authority in section 107 
of the Family and Medical Leave Act of 1993, provided those 
supplemental regulations are consistent with the regulations 
in this subpart. 
‘‘(k) Work obligation. Paid parental leave under this sub-
part shall apply without regard to: 
‘‘(1) the limitations in subparagraphs (E), (F), or 
(G) of section 6382(d)(2) of title 5, United States Code 
(requiring employees of executive branch agencies to 
agree in writing to work for the executive branch agency 
for at least 12 months after returning from leave); or 
‘‘(2) the limitations in 825.213 (permitting employ-
ing offices to recover an amount equal to the total
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•HRES 1516 EH 
amount of government contributions for maintaining 
such employee’s health coverage if the employee fails to 
return from leave). 
‘‘(l) Cases of employee incapacitation. (1) If an employ-
ing office determines that an otherwise eligible employee who 
could have made an election for a past leave period to sub-
stitute paid parental leave (as provided in paragraph (c) of 
this section) was physically or mentally incapable of doing so 
during that past period, the employee may, within 5 work-
days of the employee’s return to duty status, make an elec-
tion to substitute paid parental leave for applicable unpaid 
FMLA leave under paragraph (c) of this section on a retro-
active basis, provided such retroactive substitution does not 
violate any applicable law or regulation. Such a retroactive 
election shall be effective on the date that such an election 
would have been effective if the employee had not been inca-
pacitated at the time. 
‘‘(2) If an employing office learns that an otherwise 
eligible employee is physically or mentally incapable of 
making an election to substitute paid parental leave (as 
provided in 825.207), the employing office must, upon 
the request of a personal representative of the employee, 
provide conditional approval of substitution of paid pa-
rental leave for applicable unpaid FMLA leave on a pro-
spective basis. The conditional approval is based on the
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•HRES 1516 EH 
presumption that the employee would have elected to 
substitute paid parental leave for the applicable unpaid 
FMLA leave. An employee may, within 5 workdays of 
the employee’s return to duty status, request to sub-
stitute other leave for the paid parental leave. 
‘‘(m) Cases of multiple children born or placed in the 
same time period. (1) If an employee has multiple children 
born or placed on the same day, the multiple-child birth/ 
placement event is considered to be a single event that trig-
gers a single entitlement of up to 12 weeks of paid parental 
leave under paragraph (d) of this section. 
‘‘(2) If an employee has one or more children born 
or placed during the 12-month period following the date 
of an earlier birth or placement of a child of the em-
ployee, the provisions of this subpart shall be independ-
ently administered for each birth or placement event. 
‘‘§ 825.209 Maintenance of employee benefits 
‘‘(a) During any FMLA leave, an employing office must 
maintain the employee’s coverage under the Federal Employ-
ees Health Benefits Program or any group health plan (as 
defined in the Internal Revenue Code of 1986 at 26 U.S.C. 
5000(b)(1)) on the same conditions as coverage would have 
been provided if the employee had been continuously em-
ployed during the entire leave period. All employing offices 
are subject to the requirements of the FMLA, as made appli-
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•HRES 1516 EH 
cable by the CAA, to maintain health coverage. The definition 
of group health plan is set forth in 825.102. For purposes 
of FMLA, the term group health plan shall not include an 
insurance program providing health coverage under which 
employees purchase individual policies from insurers provided 
that: 
‘‘(1) No contributions are made by the employing 
office; 
‘‘(2) Participation in the program is completely vol-
untary for employees; 
‘‘(3) The sole functions of the employing office with 
respect to the program are, without endorsing the pro-
gram, to permit the insurer to publicize the program to 
employees, to collect premiums through payroll deduc-
tions and to remit them to the insurer; 
‘‘(4) The employing office receives no consideration 
in the form of cash or otherwise in connection with the 
program, other than reasonable compensation, excluding 
any profit, for administrative services actually rendered 
in connection with payroll deduction; and 
‘‘(5) The premium charged with respect to such 
coverage does not increase in the event the employment 
relationship terminates. 
‘‘(b) The same group health plan benefits provided to an 
employee prior to taking FMLA leave must be maintained
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•HRES 1516 EH 
during the FMLA leave. For example, if family member cov-
erage is provided to an employee, family member coverage 
must be maintained during the FMLA leave. Similarly, ben-
efit coverage during FMLA leave for medical care, surgical 
care, hospital care, dental care, eye care, mental health coun-
seling, substance abuse treatment, etc., must be maintained 
during leave if provided in an employing office’s group health 
plan, including a supplement to a group health plan, whether 
or not provided through a flexible spending account or other 
component of a cafeteria plan. 
‘‘(c) If an employing office provides a new health plan 
or benefits or changes health benefits or plans while an em-
ployee is on FMLA leave, the employee is entitled to the new 
or changed plan/benefits to the same extent as if the em-
ployee were not on leave. For example, if an employing office 
changes a group health plan so that dental care becomes cov-
ered under the plan, an employee on FMLA leave must be 
given the same opportunity as other employees to receive (or 
obtain) the dental care coverage. Any other plan changes 
(e.g., in coverage, premiums, deductibles, etc.) which apply to 
all employees of the workforce would also apply to an em-
ployee on FMLA leave. 
‘‘(d) Notice of any opportunity to change plans or bene-
fits must also be given to an employee on FMLA leave. If the 
group health plan permits an employee to change from single
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•HRES 1516 EH 
to family coverage upon the birth of a child or otherwise add 
new family members, such a change in benefits must be made 
available while an employee is on FMLA leave. If the em-
ployee requests the changed coverage it must be provided by 
the employing office. 
‘‘(e) An employee may choose not to retain group health 
plan coverage during FMLA leave. However, when an em-
ployee returns from leave, the employee is entitled to be rein-
stated on the same terms as prior to taking the leave, includ-
ing family or dependent coverages, without any qualifying pe-
riod, physical examination, exclusion of pre-existing condi-
tions, etc. See 825.212(c). 
‘‘(f) Except as required by the Consolidated Omnibus 
Budget Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 
8905a, whichever is applicable, and for key employees (as dis-
cussed below), an employing office’s obligation to maintain 
health benefits during leave (and to restore the employee to 
the same or equivalent employment) under FMLA ceases if 
and when the employment relationship would have terminated 
if the employee had not taken FMLA leave (e.g., if the em-
ployee’s position is eliminated as part of a nondiscriminatory 
reduction in force and the employee would not have been 
transferred to another position); an employee informs the em-
ploying office of his or her intent not to return from leave 
(including before starting the leave if the employing office is
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•HRES 1516 EH 
so informed before the leave starts); or the employee fails to 
return from leave or continues on leave after exhausting his 
or her FMLA leave entitlement in the 12-month period. 
‘‘(g) If a key employee (See 825.218) does not return 
from leave when notified by the employing office that sub-
stantial or grievous economic injury will result from his or 
her reinstatement, the employee’s entitlement to group health 
plan benefits continues unless and until the employee advises 
the employing office that the employee does not desire res-
toration to employment at the end of the leave period, or the 
FMLA leave entitlement is exhausted, or reinstatement is ac-
tually denied. 
‘‘(h) An employee’s entitlement to benefits other than 
group health benefits during a period of FMLA leave (e.g., 
holiday pay) is to be determined by the employing office’s es-
tablished policy for providing such benefits when the em-
ployee is on other forms of leave (paid or unpaid, as appro-
priate). 
‘‘§ 825.210 Employee payment of group health benefit 
premiums 
‘‘(a) Group health plan benefits must be maintained on 
the same basis as coverage would have been provided if the 
employee had been continuously employed during the FMLA 
leave period. Therefore, any share of group health plan pre-
miums which had been paid by the employee prior to FMLA
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•HRES 1516 EH 
leave must continue to be paid by the employee during the 
FMLA leave period. If premiums are raised or lowered, the 
employee would be required to pay the new premium rates. 
Maintenance of health insurance policies which are not a part 
of the employing office’s group health plan, as described in 
825.209(a), are the sole responsibility of the employee. The 
employee and the insurer should make necessary arrange-
ments for payment of premiums during periods of unpaid 
FMLA leave. 
‘‘(b) If the FMLA leave is substituted paid leave, the 
employee’s share of premiums must be paid by the method 
normally used during any paid leave, presumably as a payroll 
deduction. 
‘‘(c) If FMLA leave is unpaid, the employing office has 
a number of options for obtaining payment from the em-
ployee. The employing office may require that payment be 
made to the employing office or to the insurance carrier, but 
no additional charge may be added to the employee’s pre-
mium payment for administrative expenses. The employing 
office may require employees to pay their share of premium 
payments in any of the following ways: 
‘‘(1) Payment would be due at the same time as it 
would be made if by payroll deduction;
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‘‘(2) Payment would be due on the same schedule 
as payments are made under COBRA or 5 U.S.C. 
8905a, whichever is applicable; 
‘‘(3) Payment would be prepaid pursuant to a cafe-
teria plan at the employee’s option; 
‘‘(4) The employing office’s existing rules for pay-
ment by employees on leave without pay would be fol-
lowed, provided that such rules do not require prepay-
ment (i.e., prior to the commencement of the leave) of 
the premiums that will become due during a period of 
unpaid FMLA leave or payment of higher premiums 
than if the employee had continued to work instead of 
taking leave; or 
‘‘(5) Another system voluntarily agreed to between 
the employing office and the employee, which may in-
clude prepayment of premiums (e.g., through increased 
payroll deductions when the need for the FMLA leave is 
foreseeable). 
‘‘(d) The employing office must provide the employee 
with advance written notice of the terms and conditions 
under which these payments must be made. See 825.300(c). 
‘‘(e) An employing office may not require more of an 
employee using unpaid FMLA leave than the employing office 
requires of other employees on leave without pay.
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‘‘(f) An employee who is receiving payments as a result 
of a workers’ compensation injury must make arrangements 
with the employing office for payment of group health plan 
benefits when simultaneously taking FMLA leave. See 
825.207(e). 
‘‘§ 825.211 Maintenance of benefits under multi-employer 
health plans 
‘‘(a) A multi-employer health plan is a plan to which 
more than one employing office is required to contribute, and 
which is maintained pursuant to one or more collective bar-
gaining agreements between employee organization(s) and the 
employing offices. 
‘‘(b) An employing office under a multi-employer plan 
must continue to make contributions on behalf of an em-
ployee using FMLA leave as though the employee had been 
continuously employed, unless the plan contains an explicit 
FMLA provision for maintaining coverage such as through 
pooled contributions by all employing offices party to the 
plan. 
‘‘(c) During the duration of an employee’s FMLA leave, 
coverage by the group health plan, and benefits provided pur-
suant to the plan, must be maintained at the level of coverage 
and benefits which were applicable to the employee at the 
time FMLA leave commenced.
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‘‘(d) An employee using FMLA leave cannot be required 
to use banked hours or pay a greater premium than the em-
ployee would have been required to pay if the employee had 
been continuously employed. 
‘‘(e) As provided in 825.209(f) of this part, group health 
plan coverage must be maintained for an employee on FMLA 
leave until: 
‘‘(1) The employee’s FMLA leave entitlement is ex-
hausted; 
‘‘(2) The employing office can show that the em-
ployee would have been laid off and the employment re-
lationship terminated; or 
‘‘(3) The employee provides unequivocal notice of 
intent not to return to work. 
‘‘§ 825.212 Employee failure to pay health plan premium 
payments 
‘‘(a)(1) In the absence of an established employing office 
policy providing a longer grace period, an employing office’s 
obligations to maintain health insurance coverage cease under 
FMLA if an employee’s premium payment is more than 30 
days late. In order to drop the coverage for an employee 
whose premium payment is late, the employing office must 
provide written notice to the employee that the payment has 
not been received. Such notice must be mailed to the em-
ployee at least 15 days before coverage is to cease, advising
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that coverage will be dropped on a specified date at least 15 
days after the date of the letter unless the payment has been 
received by that date. If the employing office has established 
policies regarding other forms of unpaid leave that provide 
for the employing office to cease coverage retroactively to the 
date the unpaid premium payment was due, the employing of-
fice may drop the employee from coverage retroactively in ac-
cordance with that policy, provided the 15-day notice was 
given. In the absence of such a policy, coverage for the em-
ployee may be terminated at the end of the 30-day grace pe-
riod, where the required 15-day notice has been provided. 
‘‘(2) An employing office has no obligation regard-
ing the maintenance of a health insurance policy which 
is not a group health plan. See 825.209(a). 
‘‘(3) All other obligations of an employing office 
under FMLA would continue; for example, the employ-
ing office continues to have an obligation to reinstate an 
employee upon return from leave. 
‘‘(b) The employing office may recover the employee’s 
share of any premium payments missed by the employee for 
any FMLA leave period during which the employing office 
maintains health coverage by paying the employee’s share 
after the premium payment is missed. 
‘‘(c) If coverage lapses because an employee has not 
made required premium payments, upon the employee’s re-
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turn from FMLA leave the employing office must still restore 
the employee to coverage/benefits equivalent to those the em-
ployee would have had if leave had not been taken and the 
premium payment(s) had not been missed, including family 
or dependent coverage. See 825.215(d)(1)–(5). In such case, 
an employee may not be required to meet any qualification 
requirements imposed by the plan, including any new pre-
existing condition waiting period, to wait for an open season, 
or to pass a medical examination to obtain reinstatement of 
coverage. If an employing office terminates an employee’s in-
surance in accordance with this section and fails to restore 
the employee’s health insurance as required by this section 
upon the employee’s return, the employing office may be lia-
ble for benefits lost by reason of the violation, for other ac-
tual monetary losses sustained as a direct result of the viola-
tion, and for appropriate equitable relief tailored to the harm 
suffered. 
‘‘§ 825.213 Employing office recovery of benefit costs 
‘‘(a) In addition to the circumstances discussed in 
825.212(b), and subject to the exceptions provided in 
825.208(k), an employing office may recover its share of 
health plan premiums during a period of unpaid FMLA leave 
from an employee if the employee fails to return to work 
after the employee’s FMLA leave entitlement has been ex-
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•HRES 1516 EH 
hausted or expires, unless the reason the employee does not 
return is due to: 
‘‘(1) The continuation, recurrence, or onset of ei-
ther a serious health condition of the employee or the 
employee’s family member, or a serious injury or illness 
of a covered servicemember, which would otherwise enti-
tle the employee to leave under FMLA; or 
‘‘(2) Other circumstances beyond the employee’s 
control. Examples of other circumstances beyond the em-
ployee’s control are necessarily broad. They include such 
situations as where a parent chooses to stay home with 
a newborn child who has a serious health condition; an 
employee’s spouse is unexpectedly transferred to a job 
location more than 75 miles from the employee’s work-
site; a relative or individual other than a covered family 
member has a serious health condition and the employee 
is needed to provide care; the employee is laid off while 
on leave; or, the employee is a key employee who decides 
not to return to work upon being notified of the employ-
ing office’s intention to deny restoration because of sub-
stantial and grievous economic injury to the employing 
office’s operations and is not reinstated by the employing 
office. Other circumstances beyond the employee’s con-
trol would not include a situation where an employee de-
sires to remain with a parent in a distant city even
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•HRES 1516 EH 
though the parent no longer requires the employee’s 
care, or a parent chooses not to return to work to stay 
home with a well, newborn child. 
‘‘(3) When an employee fails to return to work be-
cause of the continuation, recurrence, or onset of either 
a serious health condition of the employee or employee’s 
family member, or a serious injury or illness of a covered 
servicemember, thereby precluding the employing office 
from recovering its (share of) health benefit premium 
payments made on the employee’s behalf during a period 
of unpaid FMLA leave, the employing office may require 
medical certification of the employee’s or the family 
member’s serious health condition or the covered 
servicemember’s serious injury or illness. Such certifi-
cation is not required unless requested by the employing 
office. The cost of the certification shall be borne by the 
employee, and the employee is not entitled to be paid for 
the time or travel costs spent in acquiring the certifi-
cation. The employee is required to provide medical cer-
tification in a timely manner which, for purposes of this 
section, is within 30 days from the date of the employing 
office’s request. For purposes of medical certification, 
the employee may use the optional forms developed for 
this purpose. See 825.306(b), 825.310(c)–(d) and Forms 
A, B, and F. If the employing office requests medical
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•HRES 1516 EH 
certification and the employee does not provide such cer-
tification in a timely manner (within 30 days), or the 
reason for not returning to work does not meet the test 
of other circumstances beyond the employee’s control, 
the employing office may recover 100 percent of the 
health benefit premiums it paid during the period of un-
paid FMLA leave. 
‘‘(b) Under some circumstances an employing office may 
elect to maintain other benefits, e.g., life insurance, disability 
insurance, etc., by paying the employee’s (share of) premiums 
during periods of unpaid FMLA leave. For example, to en-
sure the employing office can meet its responsibilities to pro-
vide equivalent benefits to the employee upon return from un-
paid FMLA leave, it may be necessary that premiums be paid 
continuously to avoid a lapse of coverage. If the employing 
office elects to maintain such benefits during the leave, at the 
conclusion of leave, the employing office is entitled to recover 
only the costs incurred for paying the employee’s share of any 
premiums whether or not the employee returns to work. 
‘‘(c) An employee who returns to work for at least 30 
calendar days is considered to have returned to work. An em-
ployee who transfers directly from taking FMLA leave to re-
tirement, or who retires during the first 30 days after the 
employee returns to work, is deemed to have returned to 
work.
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•HRES 1516 EH 
‘‘(d) When an employee elects or an employing office re-
quires paid leave to be substituted for FMLA leave, the em-
ploying office may not recover its (share of) health insurance 
or other non-health benefit premiums for any period of 
FMLA leave covered by paid leave. Because paid leave pro-
vided under a plan covering temporary disabilities (including 
workers’ compensation) is not unpaid, recovery of health in-
surance premiums does not apply to such paid leave. 
‘‘(e) The amount that self-insured employing offices may 
recover is limited to only the employing office’s share of al-
lowable premiums as would be calculated under COBRA, ex-
cluding the two percent fee for administrative costs. 
‘‘(f) When an employee fails to return to work, any 
health and non-health benefit premiums which this section of 
the regulations permits an employing office to recover are a 
debt owed by the non-returning employee to the employing of-
fice. The existence of this debt caused by the employee’s fail-
ure to return to work does not alter the employing office’s 
responsibilities for health benefit coverage and, under a self- 
insurance plan, payment of claims incurred during the period 
of FMLA leave. To the extent recovery is allowed, the em-
ploying office may recover the costs through deduction from 
any sums due to the employee (e.g., unpaid wages, vacation 
pay, etc.), provided such deductions do not otherwise violate 
applicable wage payment or other laws. Alternatively, the em-
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•HRES 1516 EH 
ploying office may initiate legal action against the employee 
to recover such costs. 
‘‘§ 825.214 Employee right to reinstatement 
‘‘General Rule. On return from FMLA leave, an em-
ployee is entitled to be returned to the same position the em-
ployee held when leave commenced, or to an equivalent posi-
tion with equivalent benefits, pay, and other terms and condi-
tions of employment. An employee is entitled to such rein-
statement even if the employee has been replaced or his or 
her position has been restructured to accommodate the em-
ployee’s absence. See also 825.106(e) for the obligations of 
employing offices that are joint employers. 
‘‘§ 825.215 Equivalent position 
‘‘(a) Equivalent position. An equivalent position is one 
that is virtually identical to the employee’s former position in 
terms of pay, benefits, and working conditions, including 
privileges, prerequisites, and status. It must involve the same 
or substantially similar duties and responsibilities, which 
must entail substantially equivalent skill, effort, responsi-
bility, and authority. 
‘‘(b) Conditions to qualify. If an employee is no longer 
qualified for the position because of the employee’s inability 
to attend a necessary course, renew a license, etc., as a result 
of the leave, the employee shall be given a reasonable oppor-
tunity to fulfill those conditions upon return to work.
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•HRES 1516 EH 
‘‘(c) Equivalent Pay. (1) An employee is entitled to any 
unconditional pay increases which may have occurred during 
the FMLA leave period, such as cost of living increases. Pay 
increases conditioned upon seniority, length of service, or 
work performed must be granted in accordance with the em-
ploying office’s policy or practice with respect to other em-
ployees on an equivalent leave status for a reason that does 
not qualify as FMLA leave. An employee is entitled to be re-
stored to a position with the same or equivalent pay pre-
miums, such as a shift differential. If an employee departed 
from a position averaging ten hours of overtime (and cor-
responding overtime pay) each week, an employee is ordi-
narily entitled to such a position on return from FMLA leave. 
‘‘(2) Equivalent pay includes any bonus or payment, 
whether it is discretionary or non-discretionary, made to 
employees consistent with the provisions of paragraph 
(c)(1) of this section. However, if a bonus or other pay-
ment is based on the achievement of a specified goal 
such as hours worked, products sold or perfect attend-
ance, and the employee has not met the goal due to 
FMLA leave, then the payment may be denied, unless 
otherwise paid to employees on an equivalent leave sta-
tus for a reason that does not qualify as FMLA leave. 
For example, if an employee who used paid vacation 
leave for a non-FMLA purpose would receive the pay-
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•HRES 1516 EH 
ment, then the employee who used paid vacation leave 
for an FMLA-protected purpose also must receive the 
payment. 
‘‘(d) Equivalent benefits. Benefits include all benefits 
provided or made available to employees by an employing of-
fice, including group life insurance, health insurance, dis-
ability insurance, sick leave, annual leave, educational bene-
fits, and pensions, regardless of whether such benefits are 
provided by a practice or written policy of an employing office 
through an employee benefit plan. 
‘‘(1) At the end of an employee’s FMLA leave, ben-
efits must be resumed in the same manner and at the 
same levels as provided when the leave began, and sub-
ject to any changes in benefit levels that may have taken 
place during the period of FMLA leave affecting the en-
tire work force, unless otherwise elected by the employee. 
Upon return from FMLA leave, an employee cannot be 
required to requalify for any benefits the employee en-
joyed before FMLA leave began (including family or de-
pendent coverages). For example, if an employee was 
covered by a life insurance policy before taking leave but 
is not covered or coverage lapses during the period of 
unpaid FMLA leave, the employee cannot be required to 
meet any qualifications, such as taking a physical exam-
ination, in order to requalify for life insurance upon re-
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•HRES 1516 EH 
turn from leave. Accordingly, some employing offices 
may find it necessary to modify life insurance and other 
benefits programs in order to restore employees to equiv-
alent benefits upon return from FMLA leave, make ar-
rangements for continued payment of costs to maintain 
such benefits during unpaid FMLA leave, or pay these 
costs subject to recovery from the employee on return 
from leave. See 825.213(b). 
‘‘(2) An employee may, but is not entitled to, accrue 
any additional benefits or seniority during unpaid FMLA 
leave. Benefits accrued at the time leave began, however, 
(e.g., paid vacation, sick or personal leave to the extent 
not substituted for FMLA leave) must be available to an 
employee upon return from leave. 
‘‘(3) If, while on unpaid FMLA leave, an employee 
desires to continue life insurance, disability insurance, or 
other types of benefits for which he or she typically pays, 
the employing office is required to follow established 
policies or practices for continuing such benefits for 
other instances of leave without pay. If the employing of-
fice has no established policy, the employee and the em-
ploying office are encouraged to agree upon arrange-
ments before FMLA leave begins. 
‘‘(4) With respect to pension and other retirement 
plans, any period of unpaid FMLA leave shall not be
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•HRES 1516 EH 
treated as or counted toward a break in service for pur-
poses of vesting and eligibility to participate. Also, if the 
plan requires an employee to be employed on a specific 
date in order to be credited with a year of service for 
vesting, contributions or participation purposes, an em-
ployee on unpaid FMLA leave on that date shall be 
deemed to have been employed on that date. However, 
unpaid FMLA leave periods need not be treated as cred-
ited service for purposes of benefit accrual, vesting and 
eligibility to participate. 
‘‘(5) Employees on unpaid FMLA leave are to be 
treated as if they continued to work for purposes of 
changes to benefit plans. They are entitled to changes in 
benefits plans, except those which may be dependent 
upon seniority or accrual during the leave period, imme-
diately upon return from leave or to the same extent 
they would have qualified if no leave had been taken. 
For example if the benefit plan is predicated on a pre- 
established number of hours worked each year and the 
employee does not have sufficient hours as a result of 
taking unpaid FMLA leave, the benefit is lost. (In this 
regard, 825.209 addresses health benefits.) 
‘‘(e) Equivalent terms and conditions of employment. An 
equivalent position must have substantially similar duties,
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•HRES 1516 EH 
conditions, responsibilities, privileges, and status as the em-
ployee’s original position. 
‘‘(1) The employee must be reinstated to the same 
or a geographically proximate worksite (i.e., one that 
does not involve a significant increase in commuting 
time or distance) from where the employee had pre-
viously been employed. If the employee’s original work-
site has been closed, the employee is entitled to the same 
rights as if the employee had not been on leave when the 
worksite closed. For example, if an employing office 
transfers all employees from a closed worksite to a new 
worksite in a different city, the employee on leave is also 
entitled to transfer under the same conditions as if he 
or she had continued to be employed. 
‘‘(2) The employee is ordinarily entitled to return to 
the same shift or the same or an equivalent work sched-
ule. 
‘‘(3) The employee must have the same or an equiv-
alent opportunity for bonuses, and other similar discre-
tionary and non-discretionary payments. 
‘‘(4) FMLA does not prohibit an employing office 
from accommodating an employee’s request to be re-
stored to a different shift, schedule, or position which 
better suits the employee’s personal needs on return 
from leave, or to offer a promotion to a better position.
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•HRES 1516 EH 
However, an employee cannot be induced by the employ-
ing office to accept a different position against the em-
ployee’s wishes. 
‘‘(f) De minimis exception. The requirement that an em-
ployee be restored to the same or equivalent job with the 
same or equivalent pay, benefits, and terms and conditions of 
employment does not extend to de minimis, intangible, or 
unmeasurable aspects of the job. 
‘‘§ 825.216 Limitations on an employee’s right to rein-
statement 
‘‘(a) An employee has no greater right to reinstatement 
or to other benefits and conditions of employment than if the 
employee had been continuously employed during the FMLA 
leave period. An employing office must be able to show that 
an employee would not otherwise have been employed at the 
time reinstatement is requested in order to deny restoration 
to employment. For example: 
‘‘(1) If an employee is laid off during the course of 
taking FMLA leave and employment is terminated, the 
employing office’s responsibility to continue FMLA 
leave, maintain group health plan benefits and restore 
the employee ceases at the time the employee is laid off, 
provided the employing office has no continuing obliga-
tions under a collective bargaining agreement or other-
wise. An employing office would have the burden of prov-
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•HRES 1516 EH 
ing that an employee would have been laid off during the 
FMLA leave period and, therefore, would not be entitled 
to restoration. Restoration to a job slated for lay-off 
when the employee’s original position is not would not 
meet the requirements of an equivalent position. 
‘‘(2) If a shift has been eliminated, or overtime has 
been decreased, an employee would not be entitled to re-
turn to work that shift or the original overtime hours 
upon restoration. However, if a position on, for example, 
a night shift has been filled by another employee, the 
employee is entitled to return to the same shift on which 
employed before taking FMLA leave. 
‘‘(3) If an employee was hired for a specific term 
or only to perform work on a discrete project, the em-
ploying office has no obligation to restore the employee 
if the employment term or project is over and the em-
ploying office would not otherwise have continued to em-
ploy the employee. On the other hand, if an employee 
was hired to perform work for one employing office for 
a specific time period, and after that time period has 
ended, the work was assigned to another employing of-
fice, the successor employing office may be required to 
restore the employee if it is a successor employing office. 
‘‘(b) In addition to the circumstances explained above, 
an employing office may deny job restoration to salaried eligi-
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•HRES 1516 EH 
ble employees (key employees, as defined in 825.217(c)), if 
such denial is necessary to prevent substantial and grievous 
economic injury to the operations of the employing office; or 
may delay restoration to an employee who fails to provide a 
fitness-for-duty certificate to return to work under the condi-
tions described in 825.312. 
‘‘(c) If the employee is unable to perform an essential 
function of the position because of a physical or mental con-
dition, including the continuation of a serious health condi-
tion or an injury or illness also covered by workers’ com-
pensation, the employee has no right to restoration to another 
position under the FMLA. The employing office’s obligations 
may, however, be governed by the Americans with Disabilities 
Act (ADA), as amended and as made applicable by the CAA. 
See 825.702. 
‘‘(d) An employee who fraudulently obtains FMLA leave 
from an employing office is not protected by the job restora-
tion or maintenance of health benefits provisions of the 
FMLA, as made applicable by the CAA. 
‘‘(e) If the employing office has a uniformly-applied pol-
icy governing outside or supplemental employment, such a 
policy may continue to apply to an employee while on FMLA 
leave. An employing office which does not have such a policy 
may not deny benefits to which an employee is entitled under 
FMLA, as made applicable by the CAA, on this basis unless
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•HRES 1516 EH 
the FMLA leave was fraudulently obtained as in paragraph 
(d) of this section. 
‘‘§ 825.217 Key employee, general rule 
‘‘(a) A key employee is a salaried FMLA-eligible em-
ployee who is among the highest paid 10 percent of all the 
employees employed by the employing office within 75 miles 
of the employee’s worksite. 
‘‘(b) The term salaried means paid on a salary basis, 
within the meaning of the Board’s FLSA regulations at part 
541, implementing section 203 of the CAA (2 U.S.C. 1313), 
regarding employees who may qualify as exempt from the 
minimum wage and overtime requirements of the FLSA, as 
made applicable by the CAA. 
‘‘(c) A key employee must be among the highest paid 10 
percent of all the employees—both salaried and non-salaried, 
eligible and ineligible—who are employed by the employing 
office within 75 miles of the worksite. 
‘‘(1) In determining which employees are among the 
highest paid 10 percent, year-to-date earnings are di-
vided by weeks worked by the employee (including weeks 
in which paid leave was taken). Earnings include wages, 
premium pay, incentive pay, and non-discretionary and 
discretionary bonuses. Earnings do not include incentives 
whose value is determined at some future date, e.g., ben-
efits or prerequisites.
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•HRES 1516 EH 
‘‘(2) The determination of whether a salaried em-
ployee is among the highest paid 10 percent shall be 
made at the time the employee gives notice of the need 
for leave. No more than 10 percent of the employing of-
fice’s employees within 75 miles of the worksite may be 
key employees. 
‘‘§ 825.218 Substantial and grievous economic injury 
‘‘(a) In order to deny restoration to a key employee, an 
employing office must determine that the restoration of the 
employee to employment will cause substantial and grievous 
economic injury to the operations of the employing office, not 
whether the absence of the employee will cause such substan-
tial and grievous injury. 
‘‘(b) An employing office may take into account its abil-
ity to replace on a temporary basis (or temporarily do with-
out) the employee on FMLA leave. If permanent replacement 
is unavoidable, the cost of then reinstating the employee can 
be considered in evaluating whether substantial and grievous 
economic injury will occur from restoration; in other words, 
the effect on the operations of the employing office of rein-
stating the employee in an equivalent position. 
‘‘(c) A precise test cannot be set for the level of hardship 
or injury to the employing office which must be sustained. If 
the reinstatement of a key employee threatens the economic 
viability of the employing office, that would constitute sub-
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•HRES 1516 EH 
stantial and grievous economic injury. A lesser injury which 
causes substantial, long-term economic injury would also be 
sufficient. Minor inconveniences and costs that the employing 
office would experience in the normal course would certainly 
not constitute substantial and grievous economic injury. 
‘‘(d) FMLA’s substantial and grievous economic injury 
standard is different from and more stringent than the undue 
hardship test under the ADA, as made applicable by the 
CAA. See also 825.702. 
‘‘§ 825.219 Rights of a key employee 
‘‘(a) An employing office that believes that reinstatement 
may be denied to a key employee, must give written notice 
to the employee at the time the employee gives notice of the 
need for FMLA leave (or when FMLA leave commences, if 
earlier) that he or she qualifies as a key employee. At the 
same time, the employing office must also fully inform the 
employee of the potential consequences with respect to rein-
statement and maintenance of health benefits if the employ-
ing office should determine that substantial and grievous eco-
nomic injury to the employing office’s operations will result 
if the employee is reinstated from FMLA leave. If such notice 
cannot be given immediately because of the need to determine 
whether the employee is a key employee, it shall be given as 
soon as practicable after being notified of a need for leave (or 
the commencement of leave, if earlier). It is expected that in
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•HRES 1516 EH 
most circumstances there will be no desire that an employee 
be denied restoration after FMLA leave and, therefore, there 
would be no need to provide such notice. However, an em-
ploying office who fails to provide such timely notice will lose 
its right to deny restoration even if substantial and grievous 
economic injury will result from reinstatement. 
‘‘(b) As soon as an employing office makes a good faith 
determination, based on the facts available, that substantial 
and grievous economic injury to its operations will result if 
a key employee who has given notice of the need for FMLA 
leave or is using FMLA leave is reinstated, the employing of-
fice shall notify the employee in writing of its determination, 
that it cannot deny FMLA leave, and that it intends to deny 
restoration to employment on completion of the FMLA leave. 
It is anticipated that an employing office will ordinarily be 
able to give such notice prior to the employee starting leave. 
The employing office must serve this notice either in person 
or by certified mail. This notice must explain the basis for 
the employing office’s finding that substantial and grievous 
economic injury will result, and, if leave has commenced, 
must provide the employee a reasonable time in which to re-
turn to work, taking into account the circumstances, such as 
the length of the leave and the urgency of the need for the 
employee to return.
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•HRES 1516 EH 
‘‘(c) If an employee on leave does not return to work in 
response to the employing office’s notification of intent to 
deny restoration, the employee continues to be entitled to 
maintenance of health benefits and the employing office may 
not recover its cost of health benefit premiums. A key em-
ployee’s rights under FMLA continue unless and until the 
employee either gives notice that he or she no longer wishes 
to return to work, or the employing office actually denies re-
instatement at the conclusion of the leave period. 
‘‘(d) After notice to an employee has been given that 
substantial and grievous economic injury will result if the em-
ployee is reinstated to employment, an employee is still enti-
tled to request reinstatement at the end of the leave period 
even if the employee did not return to work in response to 
the employing office’s notice. The employing office must then 
again determine whether there will be substantial and griev-
ous economic injury from reinstatement, based on the facts 
at that time. If it is determined that substantial and grievous 
economic injury will result, the employing office shall notify 
the employee in writing (in person or by certified mail) of the 
denial of restoration. 
‘‘§ 825.220 Protection for employees who request leave or 
otherwise assert FMLA rights 
‘‘(a) The FMLA, as made applicable by the CAA, pro-
hibits interference with an employee’s rights under the law,
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•HRES 1516 EH 
and with legal proceedings or inquiries relating to an employ-
ee’s rights. More specifically, the law contains the following 
employee protections: 
‘‘(1) An employing office is prohibited from inter-
fering with, restraining, or denying the exercise of (or 
attempts to exercise) any rights provided by the FMLA, 
as made applicable by the CAA. 
‘‘(2) An employing office is prohibited from dis-
charging or in any other way discriminating against any 
covered employee (whether or not an eligible employee) 
for opposing or complaining about any unlawful practice 
under the FMLA, as made applicable by the CAA. 
‘‘(3) All employing offices are prohibited from dis-
charging or in any other way discriminating against any 
covered employee (whether or not an eligible employee) 
because that covered employee has— 
‘‘(A) Filed any claim, or has instituted (or 
caused to be instituted) any proceeding under or re-
lated to the FMLA, as made applicable by the CAA; 
‘‘(B) Given, or is about to give, any informa-
tion in connection with an inquiry or proceeding re-
lating to a right under the FMLA, as made applica-
ble by the CAA;
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‘‘(C) Testified, or is about to testify, in any in-
quiry or proceeding relating to a right under the 
FMLA, as made applicable by the CAA. 
‘‘(b) Any violations of the FMLA, as made applicable by 
the CAA, or of these regulations constitute interfering with, 
restraining, or denying the exercise of rights provided by the 
FMLA, as made applicable by the CAA. An employing office 
may be liable for compensation and benefits lost by reason of 
the violation, for other actual monetary losses sustained as a 
direct result of the violation, and for appropriate equitable or 
other relief, including employment, reinstatement, promotion, 
or any other relief tailored to the harm suffered. See 
825.400(b). Interfering with the exercise of an employee’s 
rights would include, for example, not only refusing to au-
thorize FMLA leave, but discouraging an employee from 
using such leave. It would also include manipulation by a cov-
ered employing office to avoid responsibilities under FMLA, 
for example: 
‘‘(1) øReserved¿ 
‘‘(2) Changing the essential functions of the job in 
order to preclude the taking of leave; or 
‘‘(3) Reducing hours available to work in order to 
avoid employee eligibility. 
‘‘(c) The FMLA’s prohibition against interference pro-
hibits an employing office from discriminating or retaliating
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against an employee or prospective employee for having exer-
cised or attempted to exercise FMLA rights. For example, if 
an employee on leave without pay would otherwise be entitled 
to full benefits (other than health benefits), the same benefits 
would be required to be provided to an employee on unpaid 
FMLA leave. By the same token, employing offices cannot 
use the taking of FMLA leave as a negative factor in employ-
ment actions, such as hiring, promotions or disciplinary ac-
tions; nor can FMLA leave be counted under no fault attend-
ance policies. See 825.215. 
‘‘(d) Employees cannot waive, nor may employing offices 
induce employees to waive, their rights under FMLA. For ex-
ample, employees (or their collective bargaining representa-
tives) cannot trade off the right to take FMLA leave against 
some other benefit offered by the employing office. Except for 
settlement agreements covered by 1414 and/or 1415 of the 
Congressional Accountability Act, this does not prevent the 
settlement or release of FMLA claims by employees based on 
past employing office conduct without the approval of the Of-
fice of Congressional Workplace Rights or a court. Nor does 
it prevent an employee’s voluntary and uncoerced acceptance 
(not as a condition of employment) of a light duty assignment 
while recovering from a serious health condition. See 
825.702(d). An employee’s acceptance of such light duty as-
signment does not constitute a waiver of the employee’s pro-
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spective rights, including the right to be restored to the same 
position the employee held at the time the employee’s FMLA 
leave commenced or to an equivalent position. The employee’s 
right to restoration, however, ceases at the end of the applica-
ble 12-month FMLA leave year. 
‘‘(e) Covered employees, and not merely eligible employ-
ees, are protected from retaliation for opposing (e.g., filing a 
complaint about) any practice which is unlawful under the 
FMLA, as made applicable by the CAA. They are similarly 
protected if they oppose any practice which they reasonably 
believe to be a violation of the FMLA, as made applicable by 
the CAA, or regulations. 
‘‘Subpart C—Employee and Employing Office Rights and 
Obligations Under The FMLA, As Made Applicable 
by the CAA 
‘‘§ 825.300 Employing office notice requirements 
‘‘(a)(1) If an employing office has any eligible employees 
and has any written guidance to employees concerning em-
ployee benefits or leave rights, such as in an employee hand-
book, information concerning both entitlements and employee 
obligations under the FMLA, as made applicable by the CAA, 
must be included in the handbook or other document. For ex-
ample, if an employing office provides an employee handbook 
to all employees that describes the employing office’s policies 
regarding leave, wages, attendance, and similar matters, the
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handbook must incorporate information on FMLA rights and 
responsibilities and the employing office’s policies regarding 
the FMLA, as made applicable by the CAA. Informational 
publications describing the provisions of the FMLA, as made 
applicable by the CAA, are available from the Office of Con-
gressional Workplace Rights and may be incorporated in such 
employing office handbooks or written policies. 
‘‘(2) If such an employing office does not have writ-
ten policies, manuals, or handbooks describing employee 
benefits and leave provisions, the employing office shall 
provide written guidance to an employee concerning all 
the employee’s rights and obligations under the FMLA, 
as made applicable by the CAA. This notice shall be pro-
vided to employees each time notice is given pursuant to 
paragraph (c), and in accordance with the provisions of 
that paragraph. Employing offices may duplicate and 
provide the employee a copy of the FMLA Fact Sheet 
available from the Office of Congressional Workplace 
Rights to provide such guidance. 
‘‘(b) Eligibility notice. (1) When an employee requests 
FMLA leave, or when the employing office acquires knowl-
edge that an employee’s leave may be for an FMLA-quali-
fying reason, the employing office must notify the employee 
of the employee’s eligibility to take FMLA leave within five 
business 
days, 
absent 
extenuating 
circumstances. 
See
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•HRES 1516 EH 
825.110 for definition of an eligible employee. Employee eligi-
bility is determined (and notice must be provided) at the 
commencement of the first instance of leave for each FMLA- 
qualifying reason in the applicable 12–month period. See 
825.127(c) and 825.200(b). All FMLA absences for the same 
qualifying reason are considered a single leave and employee 
eligibility as to that reason for leave does not change during 
the applicable 12-month period. 
‘‘(2) The eligibility notice must state whether the 
employee is eligible for FMLA leave as defined in 
825.110. If the employee is not eligible for FMLA leave, 
the notice must state at least one reason why the em-
ployee is not eligible, including as applicable the number 
of months the employee has been employed by the em-
ploying office and the hours of service with the employ-
ing office during the 12-month period. Notification of 
eligibility may be oral or in writing; employing offices 
may use Form C to provide such notification to employ-
ees. 
‘‘(3) If, at the time an employee provides notice of 
a subsequent need for FMLA leave during the applicable 
12-month period due to a different FMLA-qualifying 
reason, and the employee’s eligibility status has not 
changed, no additional eligibility notice is required. If, 
however, the employee’s eligibility status has changed
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(e.g., if the employee has not met the hours of service 
requirement in the 12 months preceding the commence-
ment of leave for the subsequent qualifying reason), the 
employing office must notify the employee of the change 
in eligibility status within five business days, absent ex-
tenuating circumstances. 
‘‘(c) Rights and responsibilities notice. (1) Employing of-
fices shall provide written notice detailing the specific expec-
tations and obligations of the employee and explaining any 
consequences of a failure to meet these obligations. This no-
tice shall be provided to the employee each time the eligibility 
notice is provided pursuant to paragraph (b) of this section. 
If leave has already begun, the notice should be mailed to the 
employee’s address of record. Such specific notice must in-
clude, as appropriate: 
‘‘(A) That the leave may be designated and 
counted against the employee’s annual FMLA leave 
entitlement if qualifying (See 825.300(c) and 
825.301) and the applicable 12-month period for 
FMLA entitlement (See 825.127(c), 825.200(b), 
(f), and (g)); 
‘‘(B) Any requirements for the employee to 
furnish certification of a serious health condition, 
serious injury or illness, or qualifying exigency aris-
ing out of covered active duty or call to covered ac-
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tive duty status, and the consequences of failing to 
do so (See 825.305, 825.309, 825.310, 825.313); 
‘‘(C) If applicable, the employee’s right to sub-
stitute paid parental leave for unpaid FMLA leave 
for a birth or placement (See 825.208) and the em-
ployee’s right to substitute paid leave generally, 
whether the employing office will require the substi-
tution of paid leave, the conditions related to any 
substitution, and the employee’s entitlement to take 
unpaid FMLA leave if the employee does not meet 
the conditions for paid leave (See 825.207); 
‘‘(D) Any requirement for the employee to 
make any premium payments to maintain health 
benefits and the arrangements for making such 
payments (See 825.210), and the possible con-
sequences of failure to make such payments on a 
timely basis (i.e., the circumstances under which 
coverage may lapse); 
‘‘(E) The employee’s status as a key employee 
and the potential consequence that restoration may 
be denied following FMLA leave, explaining the 
conditions required for such denial (See 825.218); 
‘‘(F) The employee’s right to maintenance of 
benefits during the FMLA leave and restoration to
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•HRES 1516 EH 
the same or an equivalent job upon return from 
FMLA leave (See 825.214 and 825.604); and 
‘‘(G) The employee’s potential liability for pay-
ment of health insurance premiums paid by the em-
ploying office during the employee’s unpaid FMLA 
leave if the employee fails to return to work after 
taking FMLA leave (See 825.213, 825.208(k)). 
‘‘(2) The notice of rights and responsibilities may 
include other information—e.g., whether the employing 
office will require periodic reports of the employee’s sta-
tus and intent to return to work—but is not required to 
do so. 
‘‘(3) The notice of rights and responsibilities may 
be accompanied by any required certification form. 
‘‘(4) If the specific information provided by the no-
tice of rights and responsibilities changes, the employing 
office shall, within five business days of receipt of the 
employee’s first notice of need for leave subsequent to 
any change, provide written notice referencing the prior 
notice and setting forth any of the information in the 
notice of rights and responsibilities that has changed. 
For example, if the initial leave period was paid leave 
and the subsequent leave period would be unpaid leave, 
the employing office may need to give notice of the ar-
rangements for making premium payments.
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•HRES 1516 EH 
‘‘(5) Employing offices are also expected to respon-
sively answer questions from employees concerning their 
rights and responsibilities under the FMLA, as made ap-
plicable under the CAA. 
‘‘(6) A prototype notice of rights and responsibil-
ities may be obtained in Form C, or from the Office of 
Congressional Workplace Rights. Employing offices may 
adapt the prototype notice as appropriate to meet these 
notice requirements. The notice of rights and respon-
sibilities may be distributed electronically so long as it 
otherwise meets the requirements of this section. 
‘‘(d) Designation notice. (1) The employing office is re-
sponsible in all circumstances for designating leave as 
FMLA-qualifying, and for giving notice of the designation to 
the employee as provided in this section. When the employing 
office has enough information to determine whether the leave 
is being taken for a FMLA-qualifying reason (e.g., after re-
ceiving a certification), the employing office must notify the 
employee whether the leave will be designated and will be 
counted as FMLA leave within five business days absent ex-
tenuating circumstances. Only one notice of designation is re-
quired for each FMLA-qualifying reason per applicable 12- 
month period, regardless of whether the leave taken due to 
the qualifying reason will be a continuous block of leave or 
intermittent or reduced schedule leave. If the employing office