Title: Approving certain regulations to implement provisions of the Congressional Accountability Act of 1995 relating to the Family and Medical Leave Act of 1993 with respect to employees of the House of Representatives covered under section 202 of the Act and relating to the Fair Labor Standards Act of 1938 with respect to employees of the House of Representatives covered under section 203 of the Act, and for other purposes.
Policy area: Congress

Summary:
This resolution approves specified regulations that implement various workplace protections and programs established under current law for congressional employees, including those relating to family and medical leave.

[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[H. Res. 1516 Introduced in House (IH)]

<DOC>






117th CONGRESS
  2d Session
H. RES. 1516

     Approving certain regulations to implement provisions of the 
  Congressional Accountability Act of 1995 relating to the Family and 
  Medical Leave Act of 1993 with respect to employees of the House of 
 Representatives covered under section 202 of the Act and relating to 
 the Fair Labor Standards Act of 1938 with respect to employees of the 
House of Representatives covered under section 203 of the Act, and for 
                            other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           December 12, 2022

 Ms. Lofgren submitted the following resolution; which was referred to 
the Committee on House Administration, and in addition to the Committee 
 on Education and Labor, for a period to be subsequently determined by 
the Speaker, in each case for consideration of such provisions as fall 
           within the jurisdiction of the committee concerned

_______________________________________________________________________

                               RESOLUTION


 
     Approving certain regulations to implement provisions of the 
  Congressional Accountability Act of 1995 relating to the Family and 
  Medical Leave Act of 1993 with respect to employees of the House of 
 Representatives covered under section 202 of the Act and relating to 
 the Fair Labor Standards Act of 1938 with respect to employees of the 
House of Representatives covered under section 203 of the Act, and for 
                            other purposes.

    Resolved,

SECTION 1. APPROVAL OF REGULATIONS RELATING TO FAMILY AND MEDICAL LEAVE 
              ACT.

    (a) In General.--The regulations described in subsection (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 described 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 Accountability Act of 1995 to implement section 202 of 
such Act (relating to the application of sections 101 through 105 of 
the Family and Medical Leave Act of 1993), as published in the 
Congressional Record on December 7, 2021 (Volume 167, daily edition) on 
pages H7230 through H7258, and stated as follows:
``Sec. 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 employees. (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 section 202 of the 
CAA.
    ``(b) These regulations are issued by the Board of Directors 
(Board) of the Office of Congressional Workplace Rights, pursuant to 
sections 202(d) and 304 of the CAA, which direct the Board to 
promulgate regulations implementing section 202 that are `the same as 
substantive regulations promulgated by the Secretary of Labor to 
implement the statutory provisions referred to in subsection (a) [of 
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 is the Board's considered judgment, based on 
the information available to it at the time of the promulgation of 
these regulations, that, with the exception of regulations adopted and 
set forth herein, there are no other `substantive regulations 
promulgated by the Secretary of Labor to implement the statutory 
provisions referred to in subsection (a) [of section 202 of the CAA].'.
    ``(c) On December 20, 2019, Congress enacted the Federal Employee 
Paid Leave Act (subtitle A of title LXXVI of division F of the National 
Defense Authorization Act for Fiscal Year 2020, Public Law 116-92, 
December 20, 2019) (FEPLA). FEPLA amended the FMLA to allow most 
Federal 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 placement of a son or daughter with an 
employee for adoption or foster care.
In order to implement FEPLA in the legislative branch, the Board is 
amending its substantive FMLA regulations pursuant to the CAA 
rulemaking procedures set forth at sections 202(d) and 304 of the CAA. 
The Secretary of Labor has not promulgated FEPLA regulations, however, 
because FEPLA does not extend PPL to private sector employees or other 
employees directly covered by FMLA title I. The Board has determined 
that these circumstances constitute good cause for modification of its 
substantive FMLA regulations in order to effectively implement FEPLA's 
rights and protections to covered employees in the legislative branch.
    ``(d) In promulgating these regulations, the Board has made certain 
technical and nomenclature changes to the regulations as promulgated by 
the Secretary. Such changes are intended to make the provisions adopted 
accord more naturally to situations in the legislative branch. However, 
by making these changes, the Board does not intend a substantive 
difference between these regulations and those of the Secretary from 
which they are derived. Moreover, such changes, in and of themselves, 
are not intended to constitute an interpretation of the regulation or 
of the statutory provisions of the CAA upon which they are based.
    ``(e) Pursuant to section 304(b)(4) of the CAA, (2 U.S.C. 
1384(b)(4)), the Board of Directors is required to recommend to 
Congress a method of approval for these regulations. As the Board has 
adopted the same 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.

 ``Subpart A--Coverage Under The Family And Medical Leave Act, As Made 
           Applicable By The Congressional Accountability Act

``Sec. 825.100 The Family and Medical Leave Act
    ``(a) The Family and Medical Leave Act of 1993 (FMLA), as made 
applicable by the Congressional Accountability Act (CAA), allows 
eligible employees of an employing office to take job-protected, unpaid 
leave, or to substitute appropriate paid leave if the employee has 
earned or accrued it, for up to a total of 12 workweeks in any 12 
months (See 825.200(b)) because of the birth of a child and to care for 
the newborn child, because of the placement of a child with the 
employee for adoption or foster care, because the employee is needed to 
care for a family member (child, spouse, or parent) with a serious 
health condition, because the employee's own serious health condition 
makes the employee unable to perform the functions of his or her job, 
or because of any qualifying exigency arising out of the fact that the 
employee's spouse, son, daughter, or parent is a military member on 
active duty or call to covered active duty status (or has been notified 
of an impending call or order to covered active duty). In addition, 
eligible employees of a covered employing office may take job-
protected, unpaid leave, or substitute 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 
serious injury or illness. In certain cases, FMLA leave may be taken on 
an intermittent basis rather than all at once, or the employee may work 
a part-time schedule.
    ``(b) An employee on FMLA leave is also entitled to have health 
benefits maintained while on leave as if the employee had continued to 
work instead of taking the leave. If an employee was paying all or part 
of the premium payments prior to leave, the employee would continue to 
pay his or her share during the leave period. Subject to 825.208(k), 
the employing office or a disbursing or other financial office may 
recover its share only if the employee does not return to work for a 
reason other than the serious health condition of the employee or the 
employee's covered family member, the serious injury or illness of a 
covered servicemember, or another reason beyond the employee's control.
    ``(c) An employee generally has a right to return to the same 
position or an equivalent position with equivalent pay, benefits, and 
working conditions at the conclusion of the leave. The taking of FMLA 
leave cannot result in the loss of any benefit that accrued prior to 
the start of the leave.
    ``(d) The employing office generally has a right to advance notice 
from the employee. In addition, the employing office may require an 
employee to submit certification to substantiate that the leave is due 
to the serious health condition of the employee or the employee's 
covered family member, due to the serious injury or illness of a 
covered servicemember, or because of a qualifying exigency. Failure to 
comply with these requirements may result in a delay in the start of 
FMLA leave. Pursuant to a uniformly applied policy, the employing 
office may also require that an employee present a certification of 
fitness to return to work when the absence was caused by the employee's 
serious health condition (See 825.312 and 825.313)). The employing 
office may delay restoring the employee to employment without such 
certificate relating to the health condition which caused the 
employee's absence.
``Sec. 825.101 Purpose of the FMLA
    ``(a) FMLA is intended to allow employees to balance their work and 
family life by taking reasonable unpaid leave for medical reasons, for 
the birth or adoption of a child, for the care of a child, spouse, or 
parent who has a serious health condition, for the care of a covered 
servicemember with a serious injury or illness, or because of a 
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 
call to covered active duty status. The FMLA is intended to balance the 
demands of the workplace with the needs of families, to promote the 
stability and economic security of families, and to promote national 
interests in preserving family integrity. It was intended that the FMLA 
accomplish these purposes in a manner that accommodates the legitimate 
interests of employing offices, and in a manner consistent with the 
Equal Protection Clause of the Fourteenth Amendment in minimizing the 
potential for employment discrimination on the basis of sex, while 
promoting equal employment opportunity for men and women.
    ``(b) The FMLA was predicated on two fundamental concerns--the 
needs of the American workforce, and the development of high-
performance organizations. 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 obligations or tending to vital 
needs at home.
    ``(c) The FMLA is both intended and expected to benefit employing 
offices as well as their employees. A direct correlation exists between 
stability in the family and productivity in the workplace. FMLA will 
encourage the development of high-performance organizations. When 
workers can count on durable links to their workplace they are able to 
make their own full commitments to their jobs. The record of hearings 
on family and medical leave indicate the powerful productive advantages 
of stable workplace relationships, and the comparatively small costs of 
guaranteeing that those relationships will not be dissolved while 
workers attend to pressing family health obligations or their own 
serious illness.
``Sec. 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 applicable 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 anticipated 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 requirements 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 operation 
        that:
                    ``(A) Is designated by the Secretary of Defense as 
                an operation in which members of the Armed Forces are 
                or may become involved in military actions, operations, 
                or hostilities against an enemy of the United States or 
                against an opposing military force; or
                    ``(B) Results in the call or order to, or retention 
                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 
                incapacity of more than three consecutive, full 
                calendar days, and any subsequent treatment or period 
                of incapacity relating to the same condition, that also 
                involves:
                            ``(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 
                        supervision of a health care provider, or by a 
                        provider of health care services (e.g., 
                        physical therapist) under orders of, or on 
                        referral by, a health care provider; or
                            ``(ii) Treatment by a health care provider 
                        on at least one occasion, which results in a 
                        regimen of continuing treatment under the 
                        supervision of the health care provider.
                            ``(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 
                        necessary within the 30-day period shall be 
                        determined 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).
                    ``(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 incapacity 
                or treatment for such incapacity due to a chronic 
                serious health condition. A chronic serious health 
                condition is one which:
                            ``(i) Requires periodic visits (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 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 period 
                of incapacity which is permanent or long-term due to a 
                condition for which treatment may not be effective. The 
                employee or family member must be under the continuing 
                supervision of, but need not be receiving active 
                treatment by, a health care provider. Examples include 
                Alzheimer's, a severe stroke, or the terminal stages of 
                a disease.
                    ``(E) Conditions requiring multiple treatments. Any 
                period of absence to receive multiple treatments 
                (including any period of recovery therefrom) by a 
                health care provider or by a provider of health care 
                services under orders of, or on referral by, a health 
                care provider, for:
                            ``(i) Restorative surgery after an 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 
                        cancer (chemotherapy, radiation, etc.), severe 
                        arthritis (physical therapy), kidney disease 
                        (dialysis).
                    ``(F) Absences attributable to incapacity under 
                paragraphs (A) or (B) of this definition qualify for 
                FMLA leave even though the employee or the covered 
                family member does not receive treatment from a health 
                care provider during the absence, and even if the 
                absence does not last more than three consecutive, full 
                calendar days. For example, an employee with asthma may 
                be unable to report for work due to the onset of an 
                asthma attack or because the employee's health care 
                provider has advised the employee to stay home when the 
                pollen count exceeds a certain level. An employee who 
                is pregnant may be unable to report to work because of 
                severe morning sickness.
            ``(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 country; 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 component members to active duty in the 
                case of war or national emergency; Section 12302 of 
                Title 10 of the United States Code, which authorizes 
                ordering any unit or unassigned member of the Ready 
                Reserve to active duty; Section 12304 of Title 10 of 
                the United States Code, which authorizes ordering any 
                unit or unassigned member of the Selected Reserve and 
                certain members of the Individual Ready Reserve to 
                active duty; Section 12305 of Title 10 of the United 
                States Code, which authorizes the suspension of 
                promotion, retirement or separation rules for certain 
                Reserve components; Section 12406 of Title 10 of the 
                United States Code, which authorizes calling the 
                National Guard into Federal service in certain 
                circumstances; chapter 15 of Title 10 of the United 
                States Code, which authorizes calling the National 
                Guard and State military into Federal service in the 
                case of insurrections and national emergencies; or any 
                other provision of law during a war or during a 
                national emergency declared by the President or 
                Congress so long as it is in support of a contingency 
                operation. See 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 Representatives; (2) the Senate; 
        (3) the Office of Congressional Accessibility Services; (4) the 
        Capitol Police; (5) the Congressional Budget Office; (6) the 
        Office of the Architect 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 Assessment; 
        (12) the China Review Commission; (13) the Congressional 
        Executive China Commission; (14) the Helsinki Commission; or 
        (15) the United States Commission on International Religious 
        Freedom.
            ``(9) Covered servicemember means:
                    ``(A) A current member of the Armed Forces, 
                including a member of the National Guard or Reserves, 
                who is undergoing medical treatment, recuperation, or 
                therapy, is otherwise in outpatient status, or is 
                otherwise on the temporary disability retired list, for 
                a serious injury or illness, or
                    ``(B) A covered veteran who is undergoing medical 
                treatment, recuperation, or therapy for a serious 
                injury or illness.
            ``(10) Covered veteran means an individual who was a member 
        of the Armed Forces (including a member of the National Guard 
        or Reserves), and was discharged or released under conditions 
        other than dishonorable at any time during the five-year period 
        prior to the first date the eligible employee takes FMLA leave 
        to care for the covered veteran. See 825.127(b)(2).
            ``(11) Eligible employee as defined in the CAA, means:
                    ``(A) For purposes of leave under subparagraphs 
                (a)(1) or (a)(2) of section 825.112 [or subsections (A) 
                or (B) of section 102(a)(1) of the FMLA], a covered 
                employee as defined in the CAA.
                    ``(B) For purposes of leave under subparagraphs 
                (a)(3)-(6) of section 825.112 [or subsections (C)-(F) 
                of section 102(a)(1) of the FMLA], a covered employee 
                who has been employed for a total of at least 12 months 
                in any employing office on the date on which any FMLA 
                leave is to commence, except that an employing office 
                need not consider any period of previous employment 
                that occurred more than seven years before the date of 
                the most recent hiring of the employee, unless:
                            ``(i) The break in service is occasioned by 
                        the fulfillment of the employee's 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, 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 
                        collective 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 during 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 necessitated by USERRA-covered service has 
                        the hours that would have been worked for the 
                        employing office added to any hours actually 
                        worked during the previous 12-month period to 
                        meet the hours of service requirement);
                            ``(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 
                        defined in 29 U.S.C. 2611(14)) by a covered 
                        employee who is a member of the National Guard 
                        or Reserves shall be counted as time during 
                        which such employee has been employed in an 
                        employing office for purposes of 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 capacity. See 
        the definition of Teacher in this section.
            ``(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 designated by the House of 
        Representatives, or any employment position in an entity that 
        is paid with funds derived from the Members' Representational 
        Allowance of the House of Representatives but not any such 
        individual 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 Architect 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;
                    ``(B) A committee of the House of Representatives 
                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 employment 
                of an employee of the House of Representatives or the 
                Senate; or
                    ``(D) The Office of Congressional Accessibility 
                Services, the United States Capitol Police, the 
                Congressional Budget Office, the Office of the 
                Architect of the Capitol, the Office of the Attending 
                Physician, the Office of Congressional Workplace 
                Rights, the Library of Congress, the Stennis Center for 
                Public Service, the Office of Technology Assessment, 
                the United States Commission on International Religious 
                Freedom, the China Review Commission, the Congressional 
                Executive China Commission, and the Helsinki 
                Commission.
            ``(20) Employment benefits means all benefits provided or 
        made available to employees by an employing office, including 
        group life insurance, health insurance, disability insurance, 
        sick leave, annual leave, educational benefits, and pensions, 
        regardless of whether such benefits are provided by a practice 
        or written policy of an employing office or through an employee 
        benefit plan. The term does not include non-employment related 
        obligations paid by employees through voluntary deductions such 
        as supplemental insurance coverage. See also 825.209(a).
            ``(21) Family and medical leave means an employee's 
        entitlement of up to 12 workweeks (or 26 workweeks in the case 
        of leave under 825.127) of unpaid leave for certain family and 
        medical needs, as prescribed under the FMLA, as made applicable 
        by the CAA.
            ``(22) FLSA means the Fair Labor Standards Act (29 U.S.C. 
        201 et seq.), as made applicable by the CAA.
            ``(23) FMLA means the Family and Medical Leave Act of 1993, 
        Public Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 
        2601 et seq., as amended), as made applicable by the CAA.
            ``(24) Group health plan means the Federal Employees Health 
        Benefits Program and any other plan of, or contributed to by, 
        an employing office (including a self-insured plan) to provide 
        health care (directly or otherwise) to the employing office's 
        employees, former employees, or the families of such employees 
        or former employees. For purposes of FMLA, as made applicable 
        by the CAA, the term group health plan shall not include an 
        insurance program providing health coverage under which 
        employees purchase individual policies from insurers provided 
        that:
                    ``(A) No contributions are made by the employing 
                office;
                    ``(B) Participation in the program is completely 
                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 
                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
                    ``(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 
                        surgery (as appropriate) by the State in which 
                        the doctor practices; or
                            ``(ii) Any other person determined by the 
                        Department of Labor to be capable of providing 
                        health care services.
                    ``(B) Others `capable of providing health care 
                services' include only:
                            ``(i) Podiatrists, dentists, clinical 
                        psychologists, optometrists, and chiropractors 
                        (limited to treatment consisting of manual 
                        manipulation of the spine to correct a 
                        subluxation as demonstrated by X-ray to exist) 
                        authorized to practice in the State and 
                        performing within the scope of their practice 
                        as defined under State law;
                            ``(ii) Nurse practitioners, nurse-midwives 
                        and clinical social workers and physician 
                        assistants 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 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 certification from a health care provider 
                        other than a Christian Science practitioner 
                        except as otherwise provided under applicable 
                        State or local law or collective bargaining 
                        agreement;
                            ``(iv) Any health care provider from whom 
                        an employing office or a group health plan's 
                        benefits manager will accept certification of 
                        the existence of a serious health condition to 
                        substantiate a claim for benefits; and
                            ``(v) A health care provider listed above 
                        who practices in a country other than the 
                        United States, who is authorized to practice in 
                        accordance with the law of that country, and 
                        who is performing within the scope of his or 
                        her practice as defined under such law.
                    ``(C) The phrase `authorized to practice in the 
                State' as used in this section means that the provider 
                must be authorized to diagnose and treat physical or 
                mental health conditions.
            ``(26) Incapable of self-care means that the individual 
        requires active assistance or supervision to provide daily 
        self-care in several of the `activities of daily living' (ADLs) 
        or `instrumental activities of daily living' (IADLs). 
        Activities of daily living include adaptive activities such as 
        caring appropriately for one's grooming and hygiene, bathing, 
        dressing and eating. Instrumental activities of daily living 
        include cooking, cleaning, shopping, taking public 
        transportation, paying bills, maintaining a residence, using 
        telephones and directories, using a post office, etc.
            ``(27) Instructional employee: See the definition of 
        Teacher in this section.
            ``(28) Intermittent leave means leave taken in separate 
        periods of time due to a single illness or injury, birth, or 
        placement, rather than for one continuous period of time, and 
        may include leave of periods from an hour or more to several 
        weeks. Examples of intermittent leave would include leave taken 
        on an occasional basis for medical appointments, or leave taken 
        several days at a time spread over a period of six months, such 
        as for chemotherapy.
            ``(29) Invitational travel authorization (ITA) or 
        Invitational travel order (ITO) mean orders issued by the Armed 
        Forces to a family member to join an injured or ill 
        servicemember at his or her bedside. See also 825.310(e).
            ``(30) Key employee means a salaried FMLA-eligible employee 
        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. See also 825.217.
            ``(31) Mental disability: See the definition of Physical or 
        mental disability in this section.
            ``(32) Military caregiver leave means leave taken to care 
        for a covered servicemember with a 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 sisters, grandparents, aunts and 
        uncles, and first cousins, unless the covered servicemember has 
        specifically designated in writing another blood relative as 
        his or her nearest blood relative for purposes of military 
        caregiver leave under the FMLA. When no such designation is 
        made, and there are multiple family members with the same level 
        of 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 consecutively 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 legislative 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 
        outpatients. See also 825.127(b)(1).
            ``(36) Parent means a biological, adoptive, step or foster 
        father or mother or any other individual who stood in loco 
        parentis to the employee when the employee was a son or 
        daughter as defined below. This term does not include parents 
        `in law'.
            ``(37) Parent of a covered servicemember means a covered 
        servicemember's biological, adoptive, step or foster father or 
        mother, or any other individual who stood in loco parentis to 
        the covered servicemember. This term does not include parents 
        `in law'. See also 825.127(d)(2).
            ``(38) Physical or mental disability means a physical or 
        mental impairment that substantially limits one or more of the 
        major life activities of an individual. Regulations at 29 
        C.F.R. part 1630, issued by the Equal Employment Opportunity 
        Commission under the Americans 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 
        Regular Armed Forces or Reserves who are called up in support 
        of a contingency operation. See also 825.126(a)(2)(i).
            ``(41) Secretary means the Secretary of Labor or authorized 
        representative.
            ``(42) Serious health condition means an illness, injury, 
        impairment, or physical or mental condition that involves 
        inpatient care as defined in 825.114 or continuing treatment by 
        a health care provider as defined in 825.115. Conditions for 
        which cosmetic treatments are administered (such as most 
        treatments for acne or plastic surgery) are not serious health 
        conditions unless inpatient hospital care is required or unless 
        complications develop. Restorative dental or plastic surgery 
        after an injury or removal of cancerous growths are serious 
        health conditions provided all the other conditions of this 
        regulation are met. Mental illness or allergies may be serious 
        health conditions, but only if all the conditions of 825.113 
        are met.
            ``(43) Serious injury or illness means:
                    ``(A) In the case of a current member of the Armed 
                Forces, including a member of the National Guard or 
                Reserves, an injury or illness that was incurred by the 
                covered servicemember in the line of duty on active 
                duty in the Armed Forces or that existed before the 
                beginning of the member's active duty and was 
                aggravated by service in the line of duty on active 
                duty in the Armed Forces and that may render the 
                servicemember medically unfit to perform the duties of 
                the member's office, grade, rank, or rating; and
                    ``(B) In the case of a covered veteran, an injury 
                or illness that was incurred by the member in the line 
                of duty on active duty in the Armed Forces (or existed 
                before the beginning of the member's active duty and 
                was 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-Related 
                        Disability Rating (VASRD) of 50 percent or 
                        greater, and such VASRD rating is based, in 
                        whole or in part, on the condition 
                        precipitating the need for military caregiver 
                        leave; or
                            ``(iii) A physical or mental condition that 
                        substantially impairs the covered veteran's 
                        ability to secure or follow a substantially 
                        gainful occupation by reason of a disability or 
                        disabilities related to military service, or 
                        would do so absent treatment; or
                            ``(iv) An injury, including a psychological 
                        injury, on the basis of which the covered 
                        veteran 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 because 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 biological, 
        adopted, or foster child, stepchild, legal ward, or a child for 
        whom the employee stood in loco parentis, who is on covered 
        active duty or call to covered active duty status, and who is 
        of any age. See also 825.126(a)(5).
            ``(47) Spouse means a husband or wife. For purposes of this 
        definition, husband or wife refers to the other person with 
        whom an individual entered into marriage as defined or 
        recognized under State law for purposes of marriage in the 
        State in which the marriage was entered into or, in the case of 
        a marriage entered into outside of any State, if the marriage 
        is valid in the place where entered into and could have been 
        entered into in at least one State. This definition includes an 
        individual in a same-sex or common law marriage that either:
                    ``(A) Was entered into in a State that recognizes 
                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 instructional 
        capacity, or instructional employee) means an employee employed 
        principally in an instructional capacity by an educational 
        agency or school whose principal function is to teach and 
        instruct students in a class, a small group, or an individual 
        setting, and includes athletic coaches, driving instructors, 
        and special education assistants such as signers for the 
        hearing impaired. The term does not include teacher assistants 
        or aides who do not have as their principal function actual 
        teaching or instructing, nor auxiliary personnel such as 
        counselors, psychologists, curriculum specialists, cafeteria 
        workers, maintenance workers, bus drivers, or other primarily 
        noninstructional employees.
            ``(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.
``Sec. 825.103 [Reserved]
``Sec. 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 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 Services, 
        the United States Capitol Police, the Congressional Budget 
        Office, the Office of the Architect of the Capitol, the Office 
        of the Attending Physician, the Office of Congressional 
        Workplace Rights, the Library of Congress, the Stennis Center 
        for Public Service, the China Review Commission, the 
        Congressional Executive China Commission, the Helsinki 
        Commission, the United States Commission on International 
        Religious Freedom, and the Office of Technology Assessment.
``Sec. 825.105 [Reserved]
``Sec. 825.106 Joint employer coverage
    ``(a) Where two or more employing offices exercise some control 
over the work or working conditions of the employee, the employing 
offices may be joint employers under FMLA, as made applicable by the 
CAA. Where the employee performs work which simultaneously benefits two 
or more employing offices, or works for two or more employing offices 
at different times during the workweek, a joint employment relationship 
generally will be considered to exist in situations such as:
            ``(1) Where there is an arrangement between employing 
        offices to share an employee's services or to interchange 
        employees;
            ``(2) Where one employing office acts directly or 
        indirectly 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, directly or 
        indirectly, because one employing office controls, is 
        controlled by, or is under common control with the other 
        employing office.
    ``(b) A determination of whether or not a joint employment 
relationship exists is not determined by the application of any single 
criterion, but rather the entire relationship is to be viewed in its 
totality. For example, joint employment 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 individual to 
        work on common issues or other matters for both or all of them.
    ``(c) When employing offices employ a covered employee jointly, 
they may designate one of themselves to be the primary employing 
office, and the other or others to be the secondary employing 
office(s). Such a designation shall be made by written notice to the 
covered employee.
    ``(d) If an employing office is designated a primary employing 
office pursuant to paragraph (c) of this section, only that employing 
office is responsible for giving required notices to the covered 
employee, providing FMLA leave, and maintenance of health benefits. Job 
restoration is the primary responsibility of the primary employing 
office, and the secondary employing office(s) may, subject to the 
limitations in 825.216, be responsible for accepting the employee 
returning from FMLA leave.
    ``(e) If employing offices employ an employee jointly, but fail to 
designate a primary employing office pursuant to paragraph (c) of this 
section, then all of these 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 described in 825.302 and 825.303, to whichever of these 
employing offices the employee chooses. If the employee makes a written 
request for restoration to one of these employing offices, that 
employing office shall be primarily responsible for job restoration, 
and the other employing office(s) may, subject to the limitations in 
825.216, be responsible for accepting the employee returning from FMLA 
leave.
``Sec. 825.107 [Reserved]
``Sec. 825.108 [Reserved]
``Sec. 825.109 [Reserved]
``Sec. 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 preceding the 
        commencement of the leave.
    ``(b) Any service on active duty (as defined in 29 U.S.C. 2611(14)) 
by a covered employee who is a member of the National Guard or Reserves 
shall be counted as time during which such employee has been employed 
in an employing office for purposes of paragraph (a)(1) and (2) of this 
section.
    ``(c) The 12 months an employee must have been employed by any 
employing office need not be consecutive months, provided:
            ``(1) Subject to the exceptions provided in paragraph 
        (c)(2) of this section, employment periods prior to 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 service of 
        more than seven years must be counted in determining whether 
        the employee has been employed by any employing office for at 
        least 12 months where:
                    ``(A) The employee's break in service is occasioned 
                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 collective 
                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).
            ``(3) If an employee worked for two or more employing 
        offices sequentially, the time worked will be aggregated to 
        determine whether it equals 12 months.
            ``(4) If an employee is maintained on the payroll for any 
        part of a week, including any periods of paid or unpaid leave 
        (sick, vacation) during which other benefits or compensation 
        are provided by the 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/occasional/casual employment qualifies as 
        at least 12 months, 52 weeks is deemed to be equal to 12 
        months.
            ``(5) Nothing in this section prevents employing offices 
        from considering employment prior to a continuous break in 
        service of more than seven years when determining whether an 
        employee has met the 12-month employment requirement. However, 
        if an employing office chooses to recognize such prior 
        employment, the employing office must do so uniformly, with 
        respect to all employees 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.
    ``(2) Except as provided in paragraph (c)(3) of this section, 
whether an employee has worked the minimum 1,250 hours of service is 
determined according to the principles established under the Fair Labor 
Standards Act (FLSA), as applied by section 203 of the CAA (2 U.S.C. 
1313), for determining compensable hours of work. The determining 
factor is the number of hours an employee has worked for one or more 
employing offices as defined by the CAA. The determination is not 
limited by methods of recordkeeping, or by compensation agreements that 
do not accurately reflect all of the hours an employee has worked for 
or been in service to the employing office. Any accurate accounting of 
actual hours worked under the FLSA's principles, as made applicable by 
the CAA (2 U.S.C. 1313), may be used.
    ``(3) An employee returning from USERRA-covered service shall be 
credited with the hours of service that would have been performed but 
for the period of absence from work due to or necessitated by USERRA-
covered service in determining the employee's eligibility for FMLA-
qualifying leave. Accordingly, a person reemployed following USERRA-
covered service has the hours that would have been worked for the 
employing office added to any hours actually worked during the previous 
12-month period to meet the hours of service requirement. In order to 
determine the hours that would have been worked during the period of 
absence from work due to or necessitated by USERRA-covered service, the 
employee's pre-service work schedule can generally be used for 
calculations.
    ``(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 requirements 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 employing office must be able to clearly demonstrate, for example, 
that full time teachers (See 825.102 for definition) of an elementary 
or secondary school system, or institution of higher education, or 
other educational establishment or institution (who often work outside 
the classroom or at their homes) did not work 1,250 hours during the 
previous 12 months in order to claim that the teachers are not covered 
or eligible for FMLA leave.
    ``(e) The determination of whether an employee meets the hours of 
service requirement for any employing office and has been employed by 
any employing office for a total of at least 12 months, must be made as 
of the date the FMLA leave is to start. An employee may be on non-FMLA 
leave at the time he or she meets the 12-month eligibility requirement, 
and in that event, any portion of the leave taken for an FMLA-
qualifying reason after the employee meets the eligibility requirement 
would be FMLA leave. See 825.300(b) for rules governing the content of 
the eligibility notice given to employees.
``Sec. 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.
``Sec. 825.112 Qualifying reasons for leave, general rule
    ``(a) Circumstances qualifying for leave. Employing offices covered 
by FMLA as made applicable by the CAA are required to grant leave to 
eligible employees:
            ``(1) For birth of a son or daughter, and to care for the 
        newborn child (See 825.120);
            ``(2) For the placement of a son or daughter with the 
        employee for adoption or foster care and the care of such son 
        or daughter (See 825.121);
            ``(3) To care for the employee's spouse, son, daughter, or 
        parent with a serious health condition (See 825.113 and 
        825.122);
            ``(4) Because of a serious health condition that makes the 
        employee unable to perform the functions of the employee's job 
        (See 825.113 and 825.123);
            ``(5) Because of any qualifying exigency arising out of the 
        fact that the employee's spouse, son, daughter, or parent is a 
        military member on covered active duty (or has been notified of 
        an impending call or order to covered active duty status) (See 
        825.122 and 825.126); and
            ``(6) To care for a covered servicemember with a serious 
        injury or illness if the employee is the spouse, son, daughter, 
        parent, or next of kin of the covered servicemember (See 
        825.122 and 825.127).
    ``(b) Equal Application. The right to take leave under FMLA, as 
made applicable by the CAA, applies equally to male and female 
employees. A father, as well as a 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 recalled or otherwise be re-
employed before being eligible for FMLA leave. Under such 
circumstances, an eligible employee is immediately entitled to further 
FMLA leave for a qualifying reason.
``Sec. 825.113 Serious health condition
    ``(a) For purposes of FMLA, serious health condition entitling an 
employee to FMLA leave means an illness, injury, impairment, or 
physical or mental condition that involves inpatient care as defined in 
825.114 or continuing treatment by a health care provider as defined in 
825.115.
    ``(b) The term incapacity means inability to work, attend school, 
or perform other regular daily activities due to the serious health 
condition, treatment therefore, or recovery therefrom.
    ``(c) The term treatment includes (but is not limited to) 
examinations to determine if a serious health condition exists and 
evaluations of the condition. Treatment does not include routine 
physical examinations, eye examinations, or dental examinations. A 
regimen of continuing treatment includes, for example, a course of 
prescription medication (e.g., an antibiotic) or therapy requiring 
special equipment to resolve or alleviate the health condition (e.g., 
oxygen). A regimen of continuing treatment that includes the taking of 
over-the-counter medications such as aspirin, antihistamines, or 
salves; or bed-rest, drinking fluids, exercise, and other similar 
activities that can be initiated without a visit to a health care 
provider, is not, by itself, sufficient to constitute a regimen of 
continuing treatment for purposes of FMLA leave.
    ``(d) Conditions for which cosmetic treatments are administered 
(such as most treatments for acne or plastic surgery) are not serious 
health conditions unless inpatient hospital care is required or unless 
complications develop. Ordinarily, unless complications arise, the 
common cold, the flu, ear aches, upset stomach, minor ulcers, headaches 
other than migraine, routine dental or orthodontia 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 conditions, but only if all the 
conditions of this section are met.
``Sec. 825.114 Inpatient care
    ``Inpatient care means an overnight stay in a hospital, hospice, or 
residential medical care facility, including any period of incapacity 
as defined in 825.113(b), or any subsequent treatment in connection 
with such inpatient care.
``Sec. 825.115 Continuing treatment
    ``A serious health condition involving continuing treatment by a 
health care provider includes any one or more of the following:
    ``(a) Incapacity and treatment. A period of incapacity of more than 
three consecutive, full calendar days, and any subsequent treatment or 
period of incapacity relating to the same condition, that also 
involves:
            ``(1) Treatment two or more times, within 30 days of the 
        first day of incapacity, unless extenuating circumstances 
        exist, by a health care provider, by a nurse under direct 
        supervision of a health care provider, or by a provider of 
        health care services (e.g., physical therapist) 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 continuing treatment 
        under the supervision of the health care provider.
            ``(3) The requirement in paragraphs (a)(1) and (2) of this 
        section for treatment by a health care provider means an in-
        person visit to a health care provider. The first (or only) in-
        person treatment visit must take place within seven days of the 
        first day of incapacity.
            ``(4) Whether additional treatment visits or a regimen of 
        continuing treatment is necessary within the 30-day period 
        shall be determined by the health care provider.
            ``(5) The term extenuating circumstances in paragraph 
        (a)(1) of this section means 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. For example, extenuating circumstances 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 incapacity 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 provider;
            ``(2) Continues over an extended period of time (including 
        recurring episodes of a single underlying condition); and
            ``(3) May cause episodic rather than a continuing period of 
        incapacity (e.g., asthma, diabetes, epilepsy, etc.).
    ``(d) Permanent or long-term conditions. A period of incapacity 
which is permanent or long-term due to a condition for which treatment 
may not be effective. The employee or family member must be under the 
continuing supervision of, but need not be receiving active treatment 
by, a health care provider. Examples include Alzheimer's, a severe 
stroke, or the terminal stages of a disease.
    ``(e) Conditions requiring multiple treatments. Any period of 
absence to receive multiple treatments (including any period of 
recovery therefrom) by a health care provider or by a provider of 
health care services under orders of, or on referral by, a health care 
provider, for:
            ``(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 calendar days 
        in the absence of medical intervention or treatment, such as 
        cancer (chemotherapy, radiation, etc.), severe arthritis 
        (physical therapy), or kidney disease (dialysis).
    ``(f) Absences attributable to incapacity under paragraphs (b) or 
(c) of this section qualify for FMLA leave even though the employee or 
the covered family member does not receive treatment from a health care 
provider during the absence, and even if the absence does not last more 
than three consecutive, full calendar days. For example, an employee 
with asthma may be unable to report for work due to the onset of an 
asthma attack or because the employee's health care provider has 
advised the employee to stay home when the pollen count exceeds a 
certain level. An employee who is pregnant may be unable to report to 
work because of severe morning sickness.
``Sec. 825.116 [Reserved]
``Sec. 825.117 [Reserved]
``Sec. 825.118 [Reserved]
``Sec. 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. However, FMLA leave may 
only be taken for treatment for substance abuse by a health care 
provider or by a provider of health care services on referral by a 
health care provider. On the other hand, absence because of the 
employee's use of the substance, rather than for treatment, does not 
qualify for FMLA leave.
    ``(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 employing office has an established policy, applied in 
a non-discriminatory manner that has been communicated to all 
employees, that provides under certain circumstances an employee may be 
terminated for substance abuse, pursuant to that policy the employee 
may be terminated whether or not the employee is presently taking FMLA 
leave. An employee may also take FMLA leave to care for a covered 
family member who is receiving treatment for substance abuse. The 
employing office may not take action against an employee who is 
providing care for a covered family member receiving treatment for 
substance abuse.
``Sec. 825.120 Leave for pregnancy or birth
    ``(a) General rules. Eligible employees are entitled to FMLA leave 
for pregnancy or birth of a son or daughter and to care for the newborn 
child as follows:
            ``(1) Both parents are entitled to FMLA leave for the birth 
        of their child.
            ``(2) Both parents are entitled to FMLA leave to be with 
        the healthy newborn child (i.e., bonding time) during the 12-
        month period beginning on the date of birth. An employee's 
        entitlement to FMLA leave for a birth expires at the end of the 
        12-month period beginning on the date of the birth. If the 
        employing office permits bonding 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 limited to a 
        combined total of 12 weeks of leave during any 12-month period 
        if the leave is taken for birth of the employee's son or 
        daughter or to care for the child after birth, for placement of 
        a son or daughter with the employee for adoption or foster care 
        or to care for the child after placement, or to care for the 
        employee's parent with a serious health 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 
        ineligible for FMLA leave, the other spouse would be entitled 
        to a full 12 weeks of FMLA leave. Where spouses both use a 
        portion of the total 12-week FMLA leave entitlement for either 
        the birth of a child, for placement for adoption or foster 
        care, or to care for a parent, the spouses would each be 
        entitled to the difference between the amount he or she has 
        taken individually and 12 weeks for FMLA leave for other 
        purposes. For 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.
            ``(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 expectant mother is entitled to leave for incapacity 
        due to pregnancy even though she does not receive treatment 
        from a health care provider during the absence, and even if the 
        absence does not last for more than three consecutive 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 newborn child with a serious health condition, 
        even if both are employed by the same employing office, 
        provided they have not exhausted their entitlements during the 
        applicable 12-month FMLA leave period.
    ``(b) Intermittent and reduced schedule leave. An 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 
intermittent or reduced schedule leave for the birth of a child, the 
employing office may require the employee to transfer temporarily, 
during the period the intermittent or reduced leave schedule is 
required, to an available alternative position for which the employee 
is qualified and which better accommodates recurring periods of leave 
than does the employee's regular position. Transfer to an alternative 
position may require compliance with any applicable collective 
bargaining agreement and Federal law (such as the Americans with 
Disabilities Act, as made applicable by the CAA). Transfer to an 
alternative position may include altering an existing job to better 
accommodate the employee's need for intermittent or reduced 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.
``Sec. 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 examination, 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 purpose.
            ``(2) An employee's entitlement to leave for adoption or 
        foster care expires at the end of the 12-month period beginning 
        on the date of the placement. If the employing office permits 
        leave for adoption or foster care to be taken beyond this 
        period, such leave will not qualify as FMLA leave. Under this 
        section, the employee is entitled to FMLA leave even if the 
        adopted or foster child does not have a serious health 
        condition.
            ``(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 during any 12-month 
        period if the leave is taken for the placement of the 
        employee's son or daughter or to care for the child after 
        placement, for the birth of the employee's son or daughter or 
        to care for the child after birth, or to care for the 
        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 
        ineligible for FMLA leave, the other spouse would be entitled 
        to a full 12 weeks of FMLA leave. Where spouses both use a 
        portion of the total 12-week FMLA leave entitlement for either 
        the birth of a child, for placement for adoption or foster 
        care, or to care for a parent, the spouses would each be 
        entitled to the difference between the amount he or she has 
        taken individually and 12 weeks for FMLA leave for other 
        purposes. For example, if each spouse took six weeks of leave 
        to care for a healthy, newly placed child, each could use an 
        additional six weeks due to his or her own serious health 
        condition or to care for a child with a serious health 
        condition.
            ``(4) An eligible employee is entitled to FMLA leave in 
        order to care for an adopted or foster child with a serious 
        health condition if the requirements of 825.113 through 825.115 
        and 825.122(d) are met. Thus, spouses may each take 12 weeks of 
        FMLA leave if needed to care for an adopted or foster child 
        with a serious health condition, even if both are employed by 
        the same employing office, provided they have not exhausted 
        their entitlements during the applicable 12-month FMLA leave 
        period.
    ``(b) Use of intermittent and reduced schedule leave. An eligible 
employee may use intermittent or reduced schedule leave after the 
placement of a healthy child for adoption or foster care only if the 
employing office agrees. Thus, for example, the employing office and 
employee may agree to a part-time work schedule after the placement for 
bonding purposes. If the employing office agrees to permit intermittent 
or reduced schedule leave for the placement for adoption or foster 
care, the employing office may require the employee to transfer 
temporarily, during the period the intermittent or reduced leave 
schedule is required, to an available alternative position for which 
the employee is qualified and which better accommodates recurring 
periods of leave than does the employee's regular position. Transfer to 
an alternative position may require compliance with any applicable 
collective bargaining agreement and Federal law (such as the Americans 
with Disabilities Act, as made applicable by the CAA). Transfer to an 
alternative position may include altering an existing job to better 
accommodate the employee's need for intermittent 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.
``Sec. 825.122 Definitions of covered servicemember, spouse, parent, 
              son or daughter, next of kin of a covered 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, including 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 injury 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 marriage is valid in the place where entered into and 
could have been entered into in at least one State. This definition 
includes an individual in a same-sex or common law marriage that 
either:
            ``(1) Was entered into in a State that recognizes such 
        marriages; or
            ``(2) If entered into outside of any State, is valid in the 
        place where entered into and could have been entered into in at 
        least one State.
    ``(c) Parent. Parent means a biological, adoptive, step, or foster 
father or mother, or any other individual who stood in loco parentis to 
the employee when the 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 biological, adopted, or foster 
child, a stepchild, a legal ward, or a child of a person standing in 
loco parentis, who is either under age 18, or age 18 or older and 
`incapable of self-care because of a mental or physical disability' at 
the time that FMLA leave is to commence.
            ``(1) Incapable of self-care means that the individual 
        requires active assistance or supervision to provide daily 
        self-care in three or more of the activities of daily living 
        (ADLs) or instrumental activities of daily living (IADLs). 
        Activities of daily living include adaptive activities such as 
        caring appropriately for one's grooming and hygiene, bathing, 
        dressing, and eating. Instrumental activities of daily living 
        include cooking, cleaning, shopping, taking public 
        transportation, paying bills, maintaining a residence, using 
        telephones and directories, using a post office, etc.
            ``(2) Physical or mental disability means a physical or 
        mental impairment that substantially limits one or more of the 
        major life activities of an individual. Regulations at 29 
        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 financially support 
        a child, or, in the case of an employee, who had such 
        responsibility for the employee when the employee was a child. 
        A biological or legal relationship is not necessary.
    ``(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 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 
consecutively 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 substitution 
for, and away from, their parents or guardian. Such placement is made 
by or with the agreement of the State as a result of a voluntary 
agreement between the parent or guardian that the child be removed from 
the home, or pursuant to a judicial determination of the necessity for 
foster care, and involves agreement between the State and foster family 
that the foster family will take care of the child. Although foster 
care may be with relatives of the child, State action is involved in 
the removal of the child from parental custody. 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 parents `in law.' See 
825.127(d)(2).
    ``(k) Documenting relationships. For purposes of confirmation of 
family relationship, the employing office may require the employee 
giving notice of the need for leave to provide reasonable documentation 
or statement of family relationship. This documentation may take the 
form of a simple statement from the employee, or a child's birth 
certificate, a court document, etc. The employing office is entitled to 
examine documentation such as a birth certificate, etc., but the 
employee is entitled to the return of the official document submitted 
for this purpose.
``Sec. 825.123 Unable to perform the functions of the position
    ``(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 perform any one of the essential 
functions of the employee's position within the meaning of the 
Americans with Disabilities Act (ADA), as amended and made 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 perform the essential 
functions of the position during the absence for treatment.
    ``(b) Statement of functions. An employing office has the option, 
in requiring certification from a health care provider, to provide a 
statement of the essential functions of the employee's position for the 
health care provider to review. A sufficient medical certification must 
specify what functions of the employee's position the employee is 
unable to perform so that the employing office can then determine 
whether the employee is unable to perform one or more essential 
functions of the employee's position. For purposes of the FMLA, the 
essential functions of the employee's position are to be determined 
with reference to the position the employee held at the time notice is 
given or leave commenced, whichever is earlier. See 825.306.
``Sec. 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 servicemember encompasses 
both physical and psychological care. It includes situations where, for 
example, because of a serious health condition, the family member is 
unable to care for his or her own basic medical, hygienic, or 
nutritional needs or safety, or is unable to transport himself or 
herself to the doctor. The term also includes providing psychological 
comfort and reassurance which would be beneficial to a child, spouse or 
parent with a serious health condition who is receiving inpatient or 
home care.
    ``(b) The term also includes situations where the employee may be 
needed to 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.
    ``(c) An employee's intermittent leave or a reduced leave schedule 
necessary to care for a family member or covered servicemember includes 
not only a situation where the condition of the family member or 
covered servicemember itself is intermittent, but also where the 
employee is only needed intermittently--such as where other care is 
normally available, or care responsibilities are shared with another 
member of the family or a third party. See 825.202-825.205 for rules 
governing the use of intermittent or reduced schedule leave.
``Sec. 825.125 Definition of health care provider
    ``(a) The FMLA, as made applicable by the CAA, defines health care 
provider as:
            ``(1) A doctor of medicine or osteopathy who is authorized 
        to practice medicine or surgery (as appropriate) by the State 
        in which the doctor practices; or
            ``(2) Any other person determined by the Office of 
        Congressional Workplace Rights to be capable of providing 
        health care services.
            ``(3) In making a determination referred to in subparagraph 
        (a)(2), and absent good cause shown to do otherwise, the Office 
        of Congressional 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 Department of Labor was not made at the request of a person 
        who was then a covered employee.
    ``(b) Others capable of providing health care services include 
only:
            ``(1) Podiatrists, dentists, clinical psychologists, 
        optometrists, and chiropractors (limited to treatment 
        consisting of manual manipulation of the spine to correct a 
        subluxation as demonstrated by X-ray to exist) authorized to 
        practice in the State and 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 authorized to 
        practice under State law and who are performing within the 
        scope of their practice as defined under State law;
            ``(3) Christian Science Practitioners listed with the First 
        Church of Christ, Scientist in Boston, Massachusetts. Where an 
        employee or family member is receiving treatment from a 
        Christian Science practitioner, an employee may not object to 
        any requirement from an employing office that the employee or 
        family member submit to examination (though not treatment) to 
        obtain a second or third certification from a health care 
        provider other than a Christian Science practitioner except as 
        otherwise provided under applicable State or local law or 
        collective bargaining agreement;
            ``(4) Any health care provider from whom an employing 
        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 practices in 
        a country other than the United States, who is authorized to 
        practice in accordance with the law of that country, and who is 
        performing within the scope of his or her practice as defined 
        under such law.
    ``(c) The phrase authorized to practice in the State as used in 
this section means that the provider must be authorized to diagnose and 
treat physical or mental health conditions.
``Sec. 825.126 Leave because of a qualifying exigency
    ``(a) Eligible employees may take FMLA leave for a qualifying 
exigency while the employee's spouse, son, daughter, or parent (the 
military member or member) is on covered active duty or call to covered 
active duty status (or has been notified of an impending call or order 
to 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 member with the Armed 
        Forces to a foreign country. The active duty orders of a member 
        of the Regular components of the Armed Forces will 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 components of the 
        Armed Forces means duty during the deployment of the member 
        with the Armed Forces to a foreign country under a Federal call 
        or order to active duty in support of a contingency 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 component members to active 
        duty in the case of war or national emergency; section 12302 of 
        title 10 of the United States Code, which authorizes ordering 
        any unit or unassigned member of the Ready Reserve to active 
        duty; section 12304 of title 10 of the United States Code, 
        which authorizes ordering any unit or unassigned member of the 
        Selected Reserve and certain members of the Individual Ready 
        Reserve to active duty; section 12305 of title 10 of the United 
        States Code, which authorizes the suspension of promotion, 
        retirement or separation rules for certain Reserve components; 
        section 12406 of title 10 of the United States Code, which 
        authorizes calling the National Guard into Federal service in 
        certain circumstances; chapter 15 of title 10 of the United 
        States Code, which authorizes calling the National Guard and 
        State military into Federal service in the case of 
        insurrections and national emergencies; or any other provision 
        of law during a war or during a national emergency declared by 
        the President or Congress so long as it is in support of a 
        contingency operation. See 10 U.S.C. 101(a)(13)(B).
                    ``(A) For purposes of covered active duty or call 
                to covered active duty status, the Reserve components 
                of the Armed Forces 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 Regular Armed Forces or Reserves who are 
                called up in support of a contingency operation 
                pursuant to one of the provisions of law identified in 
                paragraph (a)(2).
                    ``(B) The active duty orders of a member of the 
                Reserve components will generally specify if the 
                military member is serving in support of a contingency 
                operation by citation to the relevant section of title 
                10 of the United States Code and/or by reference to the 
                specific name of the contingency operation and will 
                specify that the deployment is to a foreign country.
            ``(3) Deployment of the member with the Armed Forces to a 
        foreign country means deployment to areas outside of the United 
        States, the District of Columbia, or any Territory or 
        possession of the United States, including international 
        waters.
            ``(4) A call to covered active duty for purposes of leave 
        taken because of a qualifying exigency refers to a Federal call 
        to active duty. State calls to active duty are not covered 
        unless under order of the 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 biological, 
        adopted, or foster child, stepchild, legal ward, or a child for 
        whom the employee stood in loco parentis, who is on covered 
        active duty or call to covered active duty status, and who is 
        of any age.
    ``(b) An eligible employee may take FMLA leave for one or more of 
the following qualifying exigencies:
            ``(1) Short-notice deployment.  (A) To address any issue 
        that arises from the fact that the military member is notified 
        of an impending call or order to covered active duty seven or 
        less calendar days prior to the date of deployment;
                    ``(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 impending 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 
                organizations, or the American Red Cross that are 
                related to the covered active duty or call to covered 
                active duty status of the military member;
            ``(3) Childcare and school activities. For the purposes of 
        leave for childcare and school activities listed in (A) through 
        (D) of this paragraph, a child of the military member must be 
        the military member's biological, adopted, or foster child, 
        stepchild, legal ward, or child for whom the military member 
        stands in loco parentis, who is either under 18 years 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 qualifying exigency leave.
                    ``(A) To arrange for alternative childcare for a 
                child of the military member when the covered active 
                duty or call to covered active duty status of the 
                military member necessitates a change in the existing 
                childcare arrangement;
                    ``(B) To provide childcare for a child of the 
                military member on an urgent, immediate need basis (but 
                not on a routine, regular, or everyday basis) when the 
                need to provide such care arises from the covered 
                active duty or call to covered active duty status of 
                the military member;
                    ``(C) To enroll in or transfer to a new school or 
                day care facility a child of the military member when 
                enrollment or transfer is 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 school or 
                a daycare facility, such as meetings with school 
                officials regarding disciplinary measures, parent-
                teacher conferences, or meetings with school 
                counselors, for a child of the military member, when 
                such meetings are necessary due to circumstances 
                arising from the covered active duty or call to covered 
                active duty status of the military member;
            ``(4) Financial and legal arrangements.  (A) To make or 
        update financial or legal arrangements to address the military 
        member's absence while on covered active duty or call to 
        covered active duty status, such as preparing and executing 
        financial and healthcare powers of attorney, transferring bank 
        account signature authority, enrolling in the Defense 
        Enrollment Eligibility Reporting System (DEERS), obtaining 
        military identification cards, or preparing or updating a will 
        or living trust; and
                    ``(B) To act as the military member's 
                representative before a Federal, State, or local agency 
                for purposes of obtaining, arranging, or appealing 
                military service benefits while the military member is 
                on covered active duty or call to covered active duty 
                status, and for a period of 90 days following the 
                termination of the military member's covered active 
                duty status;
            ``(5) Counseling. To attend counseling provided by someone 
        other than a health care provider, for oneself, for the 
        military member, or for the biological, adopted, or foster 
        child, a stepchild, or a legal ward of the military member, or 
        a child for whom the military member stands in loco parentis, 
        who is either under age 18, or age 18 or older and incapable of 
        self-care because of a mental or physical disability at the 
        time that FMLA leave is to commence, provided that the need for 
        counseling arises from the covered active duty or call to 
        covered active duty status of the military member;
            ``(6) Rest and Recuperation.  (A) To spend time with the 
        military member who is on short-term, temporary, Rest and 
        Recuperation leave during the period of deployment;
                    ``(B) Leave taken for this purpose can be used for 
                a period of 15 calendar days beginning on the date the 
                military member commences each instance of Rest and 
                Recuperation leave;
            ``(7) Post-deployment activities. (A) To attend arrival 
        ceremonies, reintegration briefings and events, and any other 
        official ceremony or program sponsored by the military for a 
        period of 90 days following the termination of the military 
        member's covered active duty status; and
                    ``(B) To address issues that arise from the death 
                of the military member while on covered active duty 
                status, such as meeting and recovering the body of the 
                military member, making funeral arrangements, and 
                attending funeral services;
            ``(8) Parental care. For purposes of leave for parental 
        care listed in (A) through (D) of this paragraph, the parent of 
        the military member must be incapable of self-care and must be 
        the military member's biological, adoptive, step, or foster 
        father or mother, or any other individual who stood in loco 
        parentis to the military member when the member was under 18 
        years of age. A parent who is incapable of self-care means that 
        the parent requires active assistance or supervision to provide 
        daily self-care in three or more of the activities of daily 
        living or instrumental activities of daily living. Activities 
        of daily living include adaptive activities such as caring 
        appropriately for one's grooming and hygiene, bathing, 
        dressing, and eating. Instrumental activities of daily living 
        include cooking, cleaning, shopping, taking public 
        transportation, paying bills, maintaining a residence, using 
        telephones and directories, using a post office, etc. As with 
        all instances of qualifying exigency leave, the 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 parent 
                of the military member when the parent is incapable of 
                self-care and the covered active duty or call to 
                covered active duty status of the military member 
                necessitates a change in the existing care arrangement 
                for the parent;
                    ``(B) To provide care for a parent of the military 
                member on an urgent, immediate need basis (but not on a 
                routine, regular, or everyday basis) when the parent is 
                incapable of self-care and the need to provide such 
                care arises from the covered active duty or call to 
                covered active duty status of the military member;
                    ``(C) To admit to or transfer to a care 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 member, 
                when such meetings are necessary due to circumstances 
                arising from the covered active duty or call to covered 
                active duty status of the military member but not for 
                routine or regular meetings;
            ``(9) Additional activities. To address other events which 
        arise out of the military member's 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 timing and duration of such 
        leave.
``Sec. 825.127 Leave to care for a covered servicemember with a serious 
              injury or illness (military caregiver leave)
    ``(a) Eligible employees are entitled to FMLA leave to care for a 
covered servicemember with a serious illness or injury.
    ``(b) Covered servicemember means:
            ``(1) A current member of the Armed Forces, including a 
        member of the National Guard or 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 injury or illness. Outpatient 
        status means 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 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 section may extend 
        beyond the five-year period.
            ``(3) For an individual who was a member of the Armed 
        Forces (including a member of the National Guard or Reserves) 
        and who was discharged or released under conditions other than 
        dishonorable prior to the effective date of this Final Rule, 
        the period between October 28, 2009, and the effective date of 
        this Final Rule shall not count towards the determination of 
        the five-year period for covered veteran status.
    ``(c) A serious injury or illness means:
            ``(1) In the case of a current member of the Armed Forces, 
        including a member of the National Guard or Reserves, means an 
        injury or illness that was incurred by the covered 
        servicemember in the line of duty on active duty in the Armed 
        Forces or that existed before the beginning of the member's 
        active duty and was aggravated by service in the line of duty 
        on active duty in the Armed Forces, and that may render the 
        member medically unfit to perform the duties of the member's 
        office, grade, rank, or rating; and
            ``(2) In the case of a covered veteran, means an injury or 
        illness that was incurred by the member in the line of duty on 
        active duty in the Armed Forces (or existed before the 
        beginning of the member's active 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:
                    ``(A) A continuation of a serious injury or illness 
                that was incurred or aggravated when the covered 
                veteran was a member of the Armed Forces and rendered 
                the servicemember unable to perform the duties of the 
                servicemember's office, grade, rank, or rating; or
                    ``(B) A physical or mental condition for which the 
                covered veteran has received a Department of Veterans 
                Affairs Service-Related Disability Rating (VASRD) of 50 
                percent or greater, and such VASRD rating is based, in 
                whole or in part, on the condition precipitating the 
                need for military caregiver leave; or
                    ``(C) A physical or mental condition that 
                substantially impairs the covered veteran's ability to 
                secure or follow a substantially gainful occupation by 
                reason of a disability or disabilities related to 
                military service, or would do so absent treatment; or
                    ``(D) An injury, including a psychological injury, 
                on the basis of which the covered veteran has been 
                enrolled in the Department of Veterans Affairs Program 
                of Comprehensive Assistance for Family Caregivers.
    ``(d) In order to care for a covered servicemember, an eligible 
employee must be the spouse, son, daughter, or parent, or next of kin 
of a covered servicemember.
            ``(1) Son or daughter of a covered 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.
            ``(2) Parent of a covered servicemember means a covered 
        servicemember's biological, adoptive, step, or foster father or 
        mother, or any other individual who stood in loco parentis to 
        the covered 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 decree or statutory provisions, 
        brothers and sisters, grandparents, aunts and uncles, and first 
        cousins, unless the covered servicemember has specifically 
        designated in writing another blood relative as his or her 
        nearest blood relative for purposes of military caregiver leave 
        under the FMLA. When no such designation is made, and there are 
        multiple family members with the same level of 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 
        consecutively 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 example, if a 
        covered servicemember has three siblings and has not designated 
        a blood relative to provide care, all three siblings would be 
        considered the covered servicemember's next of kin. 
        Alternatively, where a covered servicemember has a sibling(s) 
        and 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 
        permitted 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 injury or illness 
during a single 12-month period.
            ``(1) The single 12-month period described in paragraph (e) 
        of this section begins on the first day the eligible employee 
        takes FMLA leave to care for a covered servicemember and ends 
        12 months after that date, regardless of the method used by the 
        employing office to determine the employee's 12 workweeks of 
        leave entitlement 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-servicemember, 
        per-injury basis such that an eligible employee may be entitled 
        to take more than one period of 26 workweeks of leave if the 
        leave is to care for different covered servicemembers or to 
        care for the same servicemember with a subsequent serious 
        injury or illness, except that no more than 26 workweeks of 
        leave may be taken within any single 12-month period. An 
        eligible employee may take more than one period of 26 workweeks 
        of leave to care for a covered servicemember with more than one 
        serious injury or illness only when the serious injury or 
        illness is a subsequent serious injury or illness. When an 
        eligible employee takes leave to care for more than one covered 
        servicemember or for a subsequent serious injury or illness of 
        the same covered servicemember, and the single 12-month periods 
        corresponding to the different military caregiver leave 
        entitlements overlap, the employee is limited to taking no more 
        than 26 workweeks of leave in each single 12-month period.
            ``(3) An eligible employee is entitled to a 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 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 period, take 16 workweeks of 
        FMLA leave to care for a covered servicemember and 10 workweeks 
        of FMLA leave to care for a newborn child. However, the 
        employee may not take more than 12 weeks of FMLA leave to care 
        for the newborn child during the single 12-month period, even 
        if the employee takes fewer than 14 workweeks of FMLA leave to 
        care for a covered servicemember.
            ``(4) In all circumstances, including for leave taken to 
        care for a covered servicemember, the employing office is 
        responsible for designating leave, paid or unpaid, as FMLA-
        qualifying, and for giving notice of the designation to the 
        employee as provided in 825.300. In the case of leave that 
        qualifies as both leave to care for a covered servicemember and 
        leave to care for a family member with a serious health 
        condition during the single 12-month period described in 
        paragraph (e) of this section, the employing office must 
        designate such leave as leave 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 section 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 limited to a combined total of 
26 workweeks of leave during the single 12-month period described in 
paragraph (e) of this section if the leave is taken for birth of the 
employee's son or daughter or to care for the child after birth, for 
placement of a son or daughter with the 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 employed by the same employing 
office. It would apply, for example, even though the spouses are 
employed at two different worksites. On the other hand, if one spouse 
is ineligible 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

``Sec. 825.200 Amount of leave
    ``(a) Except in the case of leave to care for a covered 
servicemember with a serious injury or illness, an eligible employee's 
FMLA leave entitlement is limited to a total of 12 workweeks of leave 
during any 12-month period for any one, or more, of the following 
reasons:
            ``(1) The birth of the employee's son or daughter, and to 
        care for the newborn child;
            ``(2) The placement with the employee of a son or daughter 
        for adoption or foster care, and to care for the newly placed 
        child;
            ``(3) To care for the employee's spouse, son, daughter, or 
        parent with a serious health condition;
            ``(4) Because of a serious health condition that makes the 
        employee unable to perform one or more of the essential 
        functions of his or her job; and
            ``(5) Because of any qualifying exigency arising out of the 
        fact that the employee's spouse, son, daughter, or parent is a 
        military member on covered active duty status (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 paragraph (a) of this section 
occurs:
            ``(1) The calendar year;
            ``(2) Any fixed 12-month leave year, such as a fiscal year 
        or a year starting on an employee's anniversary date;
            ``(3) The 12-month period measured forward from the date 
        any employee's first FMLA leave under paragraph (a) begins; or
            ``(4) A `rolling' 12-month period measured backward from 
        the date an employee uses any FMLA leave as described in 
        paragraph (a).
    ``(c) Under methods in paragraphs (b)(1) and (b)(2) of this section 
an employee would be entitled to up to 12 weeks of FMLA leave at any 
time in the fixed 12-month period selected. An employee could, 
therefore, take 12 weeks of leave at the end of the year and 12 weeks 
at the beginning of the following year. Under the method in paragraph 
(b)(3) of this section, an employee would be entitled to 12 weeks of 
leave during the year beginning on the first date FMLA leave is taken; 
the next 12-month period would begin the first time FMLA leave is taken 
after completion of any previous 12-month period. Under the method in 
paragraph (b)(4) of this section, the `rolling' 12-month period, each 
time an employee takes FMLA leave the remaining leave entitlement would 
be any balance of the 12 weeks which has not been used during the 
immediately preceding 12 months. For example, if an employee has taken 
eight weeks of leave during the past 12 months, an additional four 
weeks of leave could be taken. If an employee used four weeks beginning 
February 1, 2008, four weeks beginning June 1, 2008, and four weeks 
beginning December 1, 2008, the employee would not be entitled to any 
additional leave until February 1, 2009. However, beginning on February 
1, 2009, the employee would again be eligible to take FMLA leave, 
recouping the right to take the leave in the same manner and amounts in 
which it was used in the previous year. Thus, the employee would recoup 
(and be entitled to use) one additional day of FMLA leave each day for 
four weeks, commencing February 1, 2009. The employee would also begin 
to 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 
requested, and employees taking FMLA leave on such a basis may fall in 
and out of FMLA protection based on their FMLA usage in the prior 12 
months. For example, in the example above, if the employee needs six 
weeks of leave for a 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) [Reserved]
    ``(e) If an employing office fails to select one of the options in 
paragraph (b) of this section for measuring the 12-month period for the 
leave entitlements described in paragraph (a), the option that provides 
the most beneficial outcome 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 
intends to implement. During the running of the 60-day period any other 
employee who needs FMLA leave may use the option providing the most 
beneficial outcome to that employee. At the conclusion of the 60-day 
period the 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 begins. 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 within 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 
entitlement unless the employee was otherwise scheduled and expected to 
work during the holiday. Similarly, if for some reason 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 measuring the 12-month period, 
provided that the alternative chosen 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 notifying one of 
        the employing offices, select that employing office to be the 
        primary employing office of the employee for purposes of the 
        application of paragraphs (d) and (e) of this section.
    ``(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 office properly designated the leave as FMLA 
under these regulations or other applicable requirements.
``Sec. 825.201 Leave to care for a parent
    ``(a) General rule. An eligible employee is entitled to FMLA leave 
if needed to care for the employee's parent with a serious health 
condition. Care for parents-in-law is not covered by the FMLA. See 
825.122(c) for definition of parent.
    ``(b) Same employing office limitation. Spouses who are eligible 
for FMLA leave and are employed by the same covered employing office 
may be limited to a combined total of 12 weeks of leave during any 12-
month period if the leave is taken to care for the employee's parent 
with a serious health condition, for the birth of the employee's 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 employing office. On the other hand, if one spouse is 
ineligible for FMLA leave, the other spouse would be entitled to a full 
12 weeks of FMLA leave. Where the spouses both use a portion of the 
total 12-week FMLA leave entitlement for either the birth of a child, 
for placement for adoption or foster care, or to care for a parent, the 
spouses would each be entitled to the difference between the amount he 
or she has taken individually and 12 weeks for FMLA leave for other 
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).
``Sec. 825.202 Intermittent leave or reduced leave schedule
    ``(a) Definition. FMLA leave may be taken intermittently or on a 
reduced leave schedule under certain circumstances. Intermittent leave 
is FMLA leave taken in separate blocks of time due to a single 
qualifying reason. A reduced leave schedule is a leave schedule that 
reduces an employee's usual number of working hours per workweek, or 
hours per workday. A reduced leave schedule is a change in the 
employee's schedule for a period of time, normally from full-time to 
part-time.
    ``(b) Medical necessity. For intermittent leave or leave on a 
reduced leave schedule taken because of one's own serious health 
condition, to care for a spouse, parent, son, or daughter with a 
serious health condition, or to care for a covered servicemember with a 
serious injury or illness, there must be a medical need for leave and 
it must be that such medical need can be best accommodated through an 
intermittent or reduced leave schedule. The treatment regimen and other 
information described in the 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 necessity of 
intermittent leave or leave on a reduced leave schedule. See 825.306, 
825.310. Leave may be taken intermittently or on a reduced leave 
schedule when medically necessary for planned and/or unanticipated 
medical treatment of a serious health condition or of a covered 
servicemember's serious injury or illness, or for recovery from 
treatment or recovery from 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 serious 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 include leave of periods 
        from an hour or more to several weeks. Examples of intermittent 
        leave would include leave taken on an occasional basis for 
        medical appointments, or leave taken several days at a time 
        spread over a period of six months, such as for chemotherapy. A 
        pregnant employee may take leave intermittently for prenatal 
        examinations or for her own condition, such as for periods of 
        severe morning sickness. An example of an employee taking leave 
        on a reduced leave schedule is an employee who is recovering 
        from a serious health condition and is not strong enough to 
        work a full-time schedule.
            ``(2) Intermittent or reduced schedule leave may be taken 
        for absences where the employee or family member is 
        incapacitated or unable to perform the essential functions of 
        the position because of a chronic serious health condition or a 
        serious injury or illness of a covered servicemember, 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 intermittently or on a reduced leave 
schedule only if the employing office agrees. Such a schedule reduction 
might occur, for example, where an employee, with the employing 
office's agreement, works part-time after the birth of a child, or 
takes leave in several segments. The employing office's agreement is 
not required, however, for leave 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 alternative 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 exigency may 
be taken on an intermittent or reduced leave schedule basis.
``Sec. 825.203 Scheduling of intermittent or reduced schedule leave
    ``Eligible employees may take FMLA leave on an intermittent or 
reduced schedule basis when medically necessary due to the serious 
health condition of a covered family member or the employee or the 
serious injury or illness of a covered 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.
``Sec. 825.204 Transfer of an employee to an alternative position 
              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 employee, a family member, or a 
covered servicemember, including 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 
servicemember, or if the employing office agrees to permit intermittent 
or reduced schedule leave for the birth of a child or for placement of 
a child for adoption or foster care, the employing office may require 
the employee to transfer temporarily, during the period the 
intermittent or reduced leave schedule is required, to an available 
alternative position for which the employee is qualified and which 
better accommodates recurring periods of leave than does the employee's 
regular position. See 825.601 for special rules applicable to 
instructional employees of schools.
    ``(b) Compliance. Transfer to an alternative position may require 
compliance with any applicable collective bargaining agreement and 
Federal law (such as the Americans with Disabilities Act, as made 
applicable by the CAA). Transfer to an alternative position may include 
altering an existing job to better accommodate the employee's need for 
intermittent or reduced scheduled leave.
    ``(c) Equivalent pay and benefits. The alternative position 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 benefits 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 transferred to a half-time 
job, or could remain in the employee's same job on a part-time 
schedule, paying the same hourly rate as the employee's previous job 
and enjoying the same benefits. The employing office may not eliminate 
benefits which otherwise would not be provided to part-time employees; 
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 otherwise work a hardship on the 
employee. For example, a white collar employee may not be assigned to 
perform laborer's work; an employee working the day shift may not be 
reassigned to the graveyard shift; an employee working in the 
headquarters facility may not be reassigned to a branch a significant 
distance away from the employee's normal job location. Any such attempt 
on the part of the 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 necessary to address the circumstance that precipitated the need 
for leave.
``Sec. 825.205 Increments of fmla leave for intermittent or reduced 
              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 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 actually taken. An 
employing office may not require an employee to take more leave than is 
necessary to address the circumstances 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 employees of 
schools. If an employing office uses different increments to account 
for different types of leave, the employing office must account for 
FMLA leave in the smallest increment used to account for any other type 
of leave. For example, 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 increments at different times of 
the day or shift, the employing office may also account for FMLA leave 
in varying increments, 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 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 arrives at work several minutes 
late, and the employing office wants the employee to begin work 
immediately. Such accounting 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 periods 
during which they are working.
            ``(2) Where it is physically impossible for an employee 
        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 airplane or train, or a laboratory employee is unable 
        to enter or leave a sealed `clean room' during a certain period 
        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 employee'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 employee 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 
proportional basis. If an employee who would otherwise work 30 hours 
per week, but works only 20 hours a week under a reduced 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 employing office may convert these fractions 
to their hourly equivalent so long as the conversion equitably reflects 
the employee'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 reasons other than 
        FMLA, and prior to the notice of need for FMLA leave), the 
        hours worked under the new schedule are to be used for making 
        this calculation.
            ``(3) If an employee's schedule varies from week to week to 
        such an extent that an employing office is unable 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.
    ``(c) Overtime. If an employee would normally be required 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 employee does 
not work due to an FMLA-qualifying reason may not be counted against 
the employee's FMLA leave entitlement.
``Sec. 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 exemption. This 
means that under regulations currently in effect, where an employee 
meets the specified duties test, is paid on a salary basis, and is paid 
a salary of at least the amount specified in the regulations, the 
employing office may make deductions from the employee's salary for any 
hours taken as intermittent or reduced FMLA leave within a workweek, 
without affecting the exempt status of the employee.
    ``(b) For an employee paid in accordance with a fluctuating 
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, including weeks in which no leave is 
taken. The hourly rate shall be determined by dividing the employee's 
weekly salary by the employee's normal or average schedule of hours 
worked during weeks in which FMLA leave is not being taken. If an 
employing office chooses to follow this exception from the fluctuating 
workweek method of payment, the employing office must do so uniformly, 
with respect to all employees paid on a fluctuating workweek basis for 
whom FMLA leave is taken on an intermittent or reduced leave schedule 
basis. If an employing office does not elect to convert the employee's 
compensation to hourly pay, no deduction may be taken for FMLA leave 
absences. Once the need for intermittent or reduced scheduled leave is 
over, the employee may be restored to payment on a fluctuating workweek 
basis.
    ``(c) This special exception to the salary basis requirements of 
the FLSA exemption or fluctuating workweek payment requirements applies 
only to employees of covered employing 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 
regulations at part 541 or with a permissible fluctuating workweek 
method of payment for overtime may not be taken, for example, where the 
employee has not worked long enough to be eligible for FMLA leave 
without potentially affecting the employee's eligibility for exemption. 
Nor may deductions which are not permitted by the Board's FLSA 
regulations at part 541 or by a permissible fluctuating workweek method 
of payment for overtime be taken from such an employee's salary for any 
leave which does not qualify as FMLA leave, for example, deductions 
from an employee's pay for leave required under 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 qualify 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 eligibility for exemption or for the 
fluctuating workweek method of pay by not taking hourly deductions from 
the employee's pay, in accordance with FLSA requirements, as made 
applicable 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.
``Sec. 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 require the employee to substitute accrued paid 
leave for unpaid 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 concurrently 
with the unpaid FMLA leave. Accordingly, the employee receives pay 
pursuant to the employing office's applicable paid leave policy during 
the period of otherwise unpaid FMLA leave. An employee's ability to 
substitute accrued paid leave is determined by the terms and conditions 
of the employing office's normal leave policy. When an employee 
chooses, 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 office's paid leave policy, the employee is not entitled to 
substitute accrued paid leave, but the employee remains entitled to 
take unpaid FMLA leave. Employing offices may not discriminate against 
employees on FMLA leave in the administration 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 remain 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 example, 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.
    ``(d) Leave taken pursuant to a disability leave plan would be 
considered FMLA leave for a serious health condition 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, provides that a 
serious health condition may result from injury to the employee on or 
off the job. If the employing office designates 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, to have paid leave 
supplement workers' compensation benefits, 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 employing office's 
offer of a light duty job. As a result, the employee may lose workers' 
compensation payments, but is entitled to remain on unpaid FMLA leave 
until the employee's FMLA leave entitlement is exhausted. As of the 
date workers' 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 employee'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 
requires such use pursuant to the FLSA, the time taken may be counted 
against the employee's FMLA leave entitlement.
``Sec. 825.208 Substitution of paid leave--special rule for paid 
              parental leave
    ``(a) This section applies to births or placements occurring 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 accrued 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 associated with paid parental leave may affect an 
employee's ability to use the full 12 weeks of paid parental leave 
within a single 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 established 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 described 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 employee 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, vacation, 
        personal, family, medical, or sick leave for the reasons 
        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 respect 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 granted is FMLA leave, in 
        accordance with sections 825.300 and 825.301.
    ``(f) Notification by employee and retroactive substitution. (1) An 
employee must notify the employing office of the employee's election to 
substitute paid leave for leave without pay under this section prior to 
the date such paid leave commences (i.e., no retroactive substitution), 
except as provided in paragraphs (f)(2) and (f)(3) of this section, and 
provided such retroactive substitution does not violate any applicable 
law or regulation.
            ``(2) An employee may retroactively substitute paid leave 
        for leave without pay as permitted in paragraph (c) of this 
        section, if the substitution is made in conjunction with the 
        retroactive granting of leave without pay.
            ``(3) An employee may retroactively substitute transferred 
        (donated) annual leave for leave without pay granted under this 
        subpart.
    ``(g) Pay during leave. The pay an employee receives when using 
paid parental leave shall be the same pay the employee would receive if 
the employee were using annual leave.
    ``(h) Treatment of unused leave. If an employee has any unused 
balance of paid parental leave that remains at the end of the 12-month 
period following the birth or placement involved, the entitlement to 
the unused leave elapses at that time. No payment may be made for 
unused paid parental leave that has expired. Paid parental leave may 
not be considered annual leave for purposes of making a lump-sum 
payment for annual leave or for any other purpose. The forfeiture 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 office that 
has employees covered by this subpart is responsible for the proper 
administration of 825.208, including the responsibility of informing 
employees of their entitlements and obligations.
    ``(j) Library of Congress. The OCWR will defer to supplemental 
regulations on paid parental leave issued by the Library of Congress 
pursuant to the authority in 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 subpart shall 
apply without regard to:
            ``(1) the limitations in subparagraphs (E), (F), or (G) of 
        section 6382(d)(2) of title 5, United States Code (requiring 
        employees of executive branch 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 employing 
        offices to recover an amount equal to the total 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 employing office 
determines that an otherwise eligible employee who could have made an 
election for a past leave period to substitute paid parental leave (as 
provided in paragraph (c) of this section) was physically or mentally 
incapable of doing so during that past period, the employee may, within 
5 workdays of the employee's return to duty status, make an election to 
substitute paid parental leave for applicable unpaid FMLA leave under 
paragraph (c) of this section on a retroactive 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 incapacitated 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 parental leave for applicable 
        unpaid FMLA leave on a prospective basis. The conditional 
        approval is based on the 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 
        substitute other leave for the paid parental leave.
    ``(m) Cases of multiple children born or placed in the same time 
period.  (1) If an employee has multiple children born or placed on the 
same day, the multiple-child birth/placement event is considered to be 
a single event that triggers a single entitlement of up to 12 weeks of 
paid parental leave under paragraph (d) of this section.
            ``(2) If an employee has one or more children born or 
        placed during the 12-month period following the date of an 
        earlier birth or placement of a child of the employee, the 
        provisions of this subpart shall be independently administered 
        for each birth or placement event.
``Sec. 825.209 Maintenance of employee benefits
    ``(a) During any FMLA leave, an employing office must maintain the 
employee's coverage under the Federal Employees Health Benefits Program 
or any group health plan (as defined in the Internal Revenue Code of 
1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as coverage would 
have been provided if the employee had been continuously employed 
during the entire leave period. All employing offices are subject to 
the requirements of the FMLA, as made applicable by the CAA, to 
maintain health coverage. The definition of group health plan is set 
forth in 825.102. For purposes of FMLA, the term group health plan 
shall not include an insurance program 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 voluntary 
        for employees;
            ``(3) The sole functions of the employing office with 
        respect to the program are, without endorsing the program, to 
        permit the insurer to publicize the program to employees, to 
        collect premiums through payroll deductions and to remit them 
        to the insurer;
            ``(4) The employing office receives no consideration in the 
        form of cash or otherwise in connection with the program, other 
        than reasonable compensation, excluding any profit, for 
        administrative services actually rendered in connection with 
        payroll deduction; and
            ``(5) The premium charged with respect to such coverage 
        does not increase in the event the employment relationship 
        terminates.
    ``(b) The same group health plan benefits provided to an employee 
prior to taking FMLA leave must be maintained during the FMLA leave. 
For example, if family member coverage is provided to an employee, 
family member coverage must be maintained during the FMLA leave. 
Similarly, benefit coverage during FMLA leave for medical care, 
surgical care, hospital care, dental care, eye care, mental health 
counseling, substance abuse treatment, etc., must be maintained during 
leave if provided in an 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 employee is on FMLA leave, 
the employee is entitled to the new or changed plan/benefits to the 
same extent as if the employee were not on leave. For example, if an 
employing office changes a group health plan so that dental care 
becomes covered under the plan, an employee on FMLA leave must be given 
the same opportunity as other employees to receive (or obtain) the 
dental care coverage. Any other plan changes (e.g., in coverage, 
premiums, deductibles, etc.) which apply to all employees of the 
workforce would also apply to an employee on FMLA leave.
    ``(d) Notice of any opportunity to change plans or benefits must 
also be given to an employee on FMLA leave. If the group health plan 
permits an employee to change from single to family coverage upon the 
birth of a child or otherwise add new family members, such a change in 
benefits must be made available while an employee is on FMLA leave. If 
the employee requests the changed coverage it must be provided by the 
employing office.
    ``(e) An employee may choose not to retain group health plan 
coverage during FMLA leave. However, when an employee returns from 
leave, the employee is entitled to be reinstated on the same terms as 
prior to taking the leave, including family or dependent coverages, 
without any qualifying period, physical examination, exclusion of pre-
existing conditions, etc. See 825.212(c).
    ``(f) Except as required by the Consolidated Omnibus Budget 
Reconciliation Act of 1986 (COBRA) or 5 U.S.C. 8905a, whichever is 
applicable, and for key employees (as discussed below), an employing 
office's obligation to maintain health benefits during leave (and to 
restore the employee to the same or equivalent employment) under FMLA 
ceases if and when the employment relationship would have terminated if 
the employee had not taken FMLA leave (e.g., if the employee's position 
is eliminated as part of a nondiscriminatory reduction in force and the 
employee would not have been transferred to another position); an 
employee informs the employing office of his or her intent not to 
return from leave (including before starting the leave if the employing 
office is so informed before the leave starts); or the employee fails 
to return from leave or continues on leave after exhausting his or her 
FMLA leave entitlement in the 12-month period.
    ``(g) If a key employee (See 825.218) does not return from leave 
when notified by the employing office that substantial or grievous 
economic injury will result from his or her reinstatement, the 
employee's entitlement to group health plan benefits continues unless 
and until the employee advises the employing office that the employee 
does not desire restoration to employment at the end of the leave 
period, or the FMLA leave entitlement is exhausted, or reinstatement is 
actually denied.
    ``(h) An employee's entitlement to benefits other than group health 
benefits during a period of FMLA leave (e.g., holiday pay) is to be 
determined by the employing office's established policy for providing 
such benefits when the employee is on other forms of leave (paid or 
unpaid, as appropriate).
``Sec. 825.210 Employee payment of group health benefit premiums
    ``(a) Group health plan benefits must be maintained on the same 
basis as coverage would have been provided if the employee had been 
continuously employed during the FMLA leave period. Therefore, any 
share of group health plan premiums which had been paid by the employee 
prior to FMLA leave must continue to be paid by the employee during the 
FMLA leave period. If premiums are raised or lowered, the employee 
would be required to pay the new premium rates. Maintenance of health 
insurance policies which are not a part of the 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 
arrangements for payment of premiums during periods of unpaid FMLA 
leave.
    ``(b) If the FMLA leave is substituted paid leave, the employee's 
share of premiums must be paid by the method normally used during any 
paid leave, presumably as a payroll deduction.
    ``(c) If FMLA leave is unpaid, the employing office has a number of 
options for obtaining payment from the employee. 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 premium payment for administrative expenses. The employing 
office may require employees to pay their share of premium payments in 
any of the following ways:
            ``(1) Payment would be due at the same time as it would be 
        made if by payroll deduction;
            ``(2) Payment would be due on the same schedule as payments 
        are made under COBRA or 5 U.S.C. 8905a, whichever is 
        applicable;
            ``(3) Payment would be prepaid pursuant to a cafeteria plan 
        at the employee's option;
            ``(4) The employing office's existing rules for payment by 
        employees on leave without pay would be followed, provided that 
        such rules do not require prepayment (i.e., prior to the 
        commencement of the leave) of the premiums that will become due 
        during a period of unpaid FMLA leave or payment of 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 include 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.
    ``(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).
``Sec. 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 bargaining agreements between 
employee organization(s) and the employing offices.
    ``(b) An employing office under a multi-employer plan must continue 
to make contributions on behalf of an employee using FMLA leave as 
though the employee had been continuously employed, unless the plan 
contains an explicit FMLA provision for maintaining coverage such as 
through pooled contributions by all 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 pursuant to the plan, must 
be maintained at the level of coverage and benefits which were 
applicable to the employee at the time FMLA leave commenced.
    ``(d) An employee using FMLA leave cannot be required to use banked 
hours or pay a greater premium than the employee would have been 
required to pay if the employee had been continuously employed.
    ``(e) As provided in 825.209(f) of this part, group health plan 
coverage must be maintained for an employee on FMLA leave until:
            ``(1) The employee's FMLA leave entitlement is exhausted;
            ``(2) The employing office can show that the employee would 
        have been laid off and the employment relationship terminated; 
        or
            ``(3) The employee provides unequivocal notice of intent 
        not to return to work.
``Sec. 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 employee at least 
15 days before coverage is to cease, advising that coverage will be 
dropped on a specified date at least 15 days after the date of the 
letter unless the payment has been received by that date. If the 
employing office has established policies regarding other forms of 
unpaid leave that provide for the employing office to cease coverage 
retroactively to the date the unpaid premium payment was due, the 
employing office may drop the employee from coverage retroactively in 
accordance with that policy, provided the 15-day notice was given. In 
the absence of such a policy, coverage for the employee may be 
terminated at the end of the 30-day grace period, where the required 
15-day notice has been provided.
            ``(2) An employing office has no obligation regarding the 
        maintenance of a health insurance policy which is not a group 
        health plan. See 825.209(a).
            ``(3) All other obligations of an employing office under 
        FMLA would continue; for example, the employing 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 return from FMLA leave the 
employing office must still restore the employee to coverage/benefits 
equivalent to those the employee would have had if leave had not been 
taken and the premium payment(s) had not been missed, including family 
or dependent coverage. See 825.215(d)(1)-(5). In such case, an employee 
may not be required to meet any qualification requirements imposed by 
the plan, including any new preexisting condition 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 insurance 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 liable for 
benefits lost by reason of the violation, for other actual monetary 
losses sustained as a direct result of the violation, and for 
appropriate equitable relief tailored to the harm suffered.
``Sec. 825.213 Employing office recovery of benefit costs
    ``(a) In addition to the circumstances discussed in 825.212(b), and 
subject to the exceptions provided in 825.208(k), an employing office 
may recover its share of health plan premiums during a period of unpaid 
FMLA leave from an employee if the employee fails to return to work 
after the employee's FMLA leave entitlement has been exhausted or 
expires, unless the reason the employee does not return is due to:
            ``(1) The continuation, recurrence, or onset of either a 
        serious health condition of the employee or the employee's 
        family member, or a serious injury or illness of a covered 
        servicemember, which would otherwise entitle the employee to 
        leave under FMLA; or
            ``(2) Other circumstances beyond the employee's control. 
        Examples of other circumstances beyond the employee's control 
        are necessarily broad. They include such situations as where a 
        parent chooses to stay home with a newborn child who has a 
        serious health condition; an employee's spouse is unexpectedly 
        transferred to a job location more than 75 miles from the 
        employee's worksite; a relative or individual other than 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 employing 
        office's intention to deny restoration because of substantial 
        and grievous economic injury to the employing office's 
        operations and is not reinstated by the employing office. Other 
        circumstances beyond the employee's control would not include a 
        situation where an employee desires to remain with a parent in 
        a distant city even though the parent no longer requires the 
        employee's care, or a parent chooses not to return to work to 
        stay home with a well, newborn child.
            ``(3) When an employee fails to return to work because of 
        the continuation, recurrence, or onset of either a serious 
        health condition of the employee or employee's family member, 
        or a serious injury or 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 
        certification 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 certification. The 
        employee is required to provide medical certification in a 
        timely manner which, for purposes of this section, is within 30 
        days from the date of the employing office's request. For 
        purposes of medical certification, the employee may use the 
        optional forms developed for this purpose. See 825.306(b), 
        825.310(c)-(d) and Forms A, B, and F. If the employing office 
        requests medical certification and the employee does not 
        provide such certification in a timely manner (within 30 days), 
        or the reason for not returning to work does not meet the test 
        of other circumstances beyond the employee's control, the 
        employing office may recover 100 percent of the health benefit 
        premiums it paid during the period of unpaid FMLA leave.
    ``(b) Under some circumstances an employing office may elect to 
maintain other benefits, e.g., life insurance, disability insurance, 
etc., by paying the employee's (share of) premiums during periods of 
unpaid FMLA leave. For example, to ensure the employing office can meet 
its responsibilities to provide equivalent benefits to the employee 
upon return from unpaid FMLA leave, it may be necessary that premiums 
be paid continuously to avoid a lapse of coverage. If the 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 employee who transfers 
directly from taking FMLA leave to retirement, or who retires during 
the first 30 days after the employee returns to work, is deemed to have 
returned to work.
    ``(d) When an employee elects or an employing office requires paid 
leave to be substituted for FMLA leave, the employing 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 provided under a plan covering temporary disabilities 
(including workers' compensation) is not unpaid, recovery of health 
insurance premiums does not apply to such paid leave.
    ``(e) The amount that self-insured employing offices may recover is 
limited to only the employing office's share of allowable premiums as 
would be calculated under COBRA, excluding the two percent fee for 
administrative costs.
    ``(f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits 
an employing office to recover are a debt owed by the non-returning 
employee to the employing office. The existence of this debt caused by 
the employee's failure 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 employing 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 employing office may initiate legal action against 
the employee to recover such costs.
``Sec. 825.214 Employee right to reinstatement
    ``General Rule. On return from FMLA leave, an employee is entitled 
to be returned to the same position the employee held when leave 
commenced, or to an equivalent position with equivalent benefits, pay, 
and other terms and conditions of employment. An employee is entitled 
to such reinstatement even if the employee has been replaced or his or 
her position has been restructured to accommodate the employee's 
absence. See also 825.106(e) for the obligations of employing offices 
that are joint employers.
``Sec. 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, responsibility, 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 opportunity to fulfill those 
conditions upon return to work.
    ``(c) Equivalent Pay. (1) An employee is entitled to any 
unconditional pay increases which may have occurred during the FMLA 
leave period, such as cost of living increases. Pay increases 
conditioned upon seniority, length of service, or work performed must 
be granted in accordance with the employing office's policy or practice 
with respect to other employees on an equivalent leave status for a 
reason that does not qualify as FMLA leave. An employee is entitled to 
be restored to a position with the same or equivalent pay premiums, 
such as a shift differential. If an employee departed from a position 
averaging ten hours of overtime (and corresponding overtime pay) each 
week, an employee is ordinarily entitled to such a position on return 
from FMLA leave.
            ``(2) 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 payment is based on the 
        achievement of a specified goal such as hours worked, products 
        sold or perfect attendance, and the employee has not met the 
        goal due to FMLA leave, then the payment may be denied, unless 
        otherwise paid to employees on an equivalent leave status for a 
        reason that does not qualify as FMLA leave. For example, if an 
        employee who used paid vacation leave for a non-FMLA purpose 
        would receive the payment, then the employee who used paid 
        vacation leave for an FMLA-protected purpose also must receive 
        the payment.
    ``(d) Equivalent benefits. Benefits include all benefits provided 
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 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, benefits must 
        be resumed in the same manner and at the same levels as 
        provided when the leave began, and subject to any changes in 
        benefit levels that may have taken place during the period of 
        FMLA leave affecting the entire work force, unless otherwise 
        elected by the employee. Upon return from FMLA leave, an 
        employee cannot be required to requalify for any benefits the 
        employee enjoyed before FMLA leave began (including family or 
        dependent coverages). For example, if an employee was covered 
        by a life insurance policy before taking leave but is not 
        covered or coverage lapses during the period of unpaid FMLA 
        leave, the employee cannot be required to meet any 
        qualifications, such as taking a physical examination, in order 
        to requalify for life insurance upon return from leave. 
        Accordingly, some employing offices may find it necessary to 
        modify life insurance and other benefits programs in order to 
        restore employees to equivalent benefits upon return from FMLA 
        leave, make arrangements for continued payment of costs to 
        maintain such benefits during unpaid FMLA leave, or pay these 
        costs subject to recovery from the employee on return from 
        leave. See 825.213(b).
            ``(2) An employee may, but is not entitled to, accrue any 
        additional benefits or seniority during unpaid FMLA leave. 
        Benefits accrued at the time leave began, however, (e.g., paid 
        vacation, sick or personal leave to the extent not substituted 
        for FMLA leave) must be available to an employee upon return 
        from leave.
            ``(3) If, while on unpaid FMLA leave, an employee desires 
        to continue life insurance, disability insurance, or other 
        types of benefits for which he or she typically pays, the 
        employing office is required to follow established policies or 
        practices for continuing such benefits for other instances of 
        leave without pay. If the employing office has no established 
        policy, the employee and the employing office are encouraged to 
        agree upon arrangements before FMLA leave begins.
            ``(4) With respect to pension and other retirement plans, 
        any period of unpaid FMLA leave shall not be treated as or 
        counted toward a break in service for purposes of vesting and 
        eligibility to participate. Also, if the plan requires an 
        employee to be employed on a specific date in order to be 
        credited with a year of service for vesting, contributions or 
        participation purposes, an employee on unpaid FMLA leave on 
        that date shall be deemed to have been employed on that date. 
        However, unpaid FMLA leave periods need not be treated as 
        credited service for purposes of benefit accrual, vesting and 
        eligibility to participate.
            ``(5) Employees on unpaid FMLA leave are to be treated as 
        if they continued to work for purposes of changes to benefit 
        plans. They are entitled to changes in benefits plans, except 
        those which may be dependent upon seniority or accrual during 
        the leave period, immediately upon return from leave or to the 
        same extent they would have qualified if no leave had been 
        taken. For example if the benefit plan is predicated on a 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, conditions, 
responsibilities, privileges, and status as the employee's original 
position.
            ``(1) The employee must be reinstated to the same or a 
        geographically proximate worksite (i.e., one that does not 
        involve a significant increase in commuting time or distance) 
        from where the employee had previously been employed. If the 
        employee's original worksite has been closed, the employee is 
        entitled to the same rights as if the employee had not been on 
        leave when the worksite closed. For example, if an 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 schedule.
            ``(3) The employee must have the same or an equivalent 
        opportunity for bonuses, and other similar discretionary and 
        non-discretionary payments.
            ``(4) FMLA does not prohibit an employing office from 
        accommodating an employee's request to be restored to a 
        different shift, schedule, or position which better suits the 
        employee's personal needs on return from leave, or to offer a 
        promotion to a better position. However, an employee cannot be 
        induced by the employing office to accept a different position 
        against the employee's wishes.
    ``(f) De minimis exception. The requirement that an employee be 
restored to the same or equivalent job with the same or equivalent pay, 
benefits, and terms and conditions of employment does not extend to de 
minimis, intangible, or unmeasurable aspects of the job.
``Sec. 825.216 Limitations on an employee's right to reinstatement
    ``(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 obligations under a collective bargaining 
        agreement or otherwise. An employing office would have the 
        burden of proving that an employee would have been laid off 
        during the FMLA leave period and, therefore, would not be 
        entitled to restoration. 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 return to work 
        that shift or the original overtime hours upon restoration. 
        However, if a position on, for example, a night shift has been 
        filled by another employee, the employee is entitled to return 
        to the same shift on which employed before taking FMLA leave.
            ``(3) If an employee was hired for a specific term or only 
        to perform work on a discrete project, the employing office has 
        no obligation to restore the employee if the employment term or 
        project is over and the employing office would not otherwise 
        have continued to employ the employee. On the other hand, if an 
        employee was hired to perform work for one employing office for 
        a specific time period, and after that time period has ended, 
        the work was assigned to another employing office, 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 eligible 
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 conditions described in 825.312.
    ``(c) If the employee is unable to perform an essential function of 
the position because of a physical or mental condition, including the 
continuation of a serious health condition or an injury or illness also 
covered by workers' compensation, the employee has no right to 
restoration to another position under the FMLA. The employing office's 
obligations may, however, be governed by the Americans with 
Disabilities Act (ADA), as amended and as made 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 restoration or maintenance 
of health benefits provisions of the FMLA, as made applicable by the 
CAA.
    ``(e) If the employing office has a uniformly-applied policy 
governing outside or supplemental employment, such a policy may 
continue to apply to an employee while on FMLA leave. An employing 
office which does not have such a policy may not deny benefits to which 
an employee is entitled under FMLA, as made applicable by the CAA, on 
this basis unless the FMLA leave was fraudulently obtained as in 
paragraph (d) of this section.
``Sec. 825.217 Key employee, general rule
    ``(a) A key employee is a salaried FMLA-eligible employee who is 
among the highest paid 10 percent of all the employees employed by the 
employing office within 75 miles of the employee's worksite.
    ``(b) The term salaried means paid on a salary basis, within the 
meaning of the Board's FLSA regulations at part 541, implementing 
section 203 of the CAA (2 U.S.C. 1313), regarding employees who may 
qualify as exempt from the minimum wage and overtime requirements of 
the FLSA, as made applicable by the CAA.
    ``(c) A key employee must be among the highest paid 10 percent of 
all the employees--both salaried and non-salaried, eligible and 
ineligible--who are employed by the employing office within 75 miles of 
the worksite.
            ``(1) In determining which employees are among the highest 
        paid 10 percent, year-to-date earnings are divided by weeks 
        worked by the 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., benefits or prerequisites.
            ``(2) The determination of whether a salaried employee is 
        among the highest paid 10 percent shall be made at the time the 
        employee gives notice of the need for leave. No more than 10 
        percent of the employing office's employees within 75 miles of 
        the worksite may be key employees.
``Sec. 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 substantial and grievous injury.
    ``(b) An employing office may take into account its ability to 
replace on a temporary basis (or temporarily do without) the employee 
on FMLA leave. If permanent 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 
reinstating 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 substantial and grievous 
economic injury. A lesser injury which causes substantial, long-term 
economic injury would also be sufficient. Minor inconveniences and 
costs that the employing office would experience in the normal course 
would certainly not constitute substantial and grievous economic 
injury.
    ``(d) FMLA's substantial and grievous economic 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.
``Sec. 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 
reinstatement and maintenance of health benefits if the employing 
office should determine that substantial and grievous economic 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 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 employing 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 office shall notify the 
employee in writing of its determination, that it cannot deny FMLA 
leave, and that it intends to deny restoration to employment on 
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 return to work, taking into 
account the circumstances, such as the length of the leave and the 
urgency of the need for the employee to return.
    ``(c) If an employee on leave does not return to work in response 
to the employing office's notification of intent to deny restoration, 
the employee continues to be entitled to maintenance of health benefits 
and the employing office may not recover its cost of health benefit 
premiums. A key employee's rights under FMLA continue unless and until 
the employee either gives notice that he or she no longer wishes to 
return to work, or the employing office actually denies reinstatement 
at the conclusion of the leave period.
    ``(d) After notice to an employee has been given that substantial 
and grievous economic injury will result if the employee is reinstated 
to employment, an employee is still entitled to request reinstatement 
at the end of the leave period even if the employee did not return to 
work in response to the employing office's notice. The employing office 
must then again determine whether there will be substantial and 
grievous economic injury from reinstatement, based on the facts at that 
time. If it is determined that substantial and grievous economic injury 
will result, the employing office shall notify the employee in writing 
(in person or by certified mail) of the denial of restoration.
``Sec. 825.220 Protection for employees who request leave or otherwise 
              assert FMLA rights
    ``(a) The FMLA, as made applicable by the CAA, prohibits 
interference with an employee's rights under the law, and with legal 
proceedings or inquiries relating to an employee's rights. More 
specifically, the law contains the following employee protections:
            ``(1) An employing office is prohibited from interfering 
        with, restraining, or denying the exercise of (or attempts to 
        exercise) any rights provided by the FMLA, as made applicable 
        by the CAA.
            ``(2) An employing office is prohibited from discharging 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 discharging 
        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 related to 
                the FMLA, as made applicable by the CAA;
                    ``(B) Given, or is about to give, any information 
                in connection with an inquiry or proceeding relating to 
                a right under the FMLA, as made applicable by the CAA;
                    ``(C) Testified, or is about to testify, in any 
                inquiry or proceeding relating to a right under the 
                FMLA, as made applicable by the CAA.
    ``(b) Any violations of the FMLA, as made applicable by the CAA, or 
of these regulations constitute interfering with, restraining, or 
denying the exercise of rights 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 
authorize FMLA leave, but discouraging an employee from using such 
leave. It would also include manipulation by a covered employing office 
to avoid responsibilities under FMLA, for example:
            ``(1) [Reserved]
            ``(2) Changing the essential functions of the job in order 
        to preclude the taking of leave; or
            ``(3) Reducing hours available to work in order to avoid 
        employee eligibility.
    ``(c) The FMLA's prohibition against interference prohibits an 
employing office from discriminating or retaliating against an employee 
or prospective employee for having exercised or attempted to exercise 
FMLA rights. For example, if an employee on leave without pay would 
otherwise be entitled to full benefits (other than health benefits), 
the same benefits would be required to be 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 employment actions, such 
as hiring, promotions or disciplinary actions; nor can FMLA leave be 
counted under no fault attendance policies. See 825.215.
    ``(d) Employees cannot waive, nor may employing offices induce 
employees to waive, their rights under FMLA. For example, employees (or 
their collective bargaining representatives) cannot trade off the right 
to take FMLA leave against some other benefit offered by the 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 Office 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 assignment does not constitute a waiver of the employee's 
prospective rights, including the right to be restored to the same 
position the employee held at the time the employee's FMLA leave 
commenced or to an equivalent position. The employee's right to 
restoration, however, ceases at the end of the applicable 12-month FMLA 
leave year.
    ``(e) Covered employees, and not merely eligible employees, 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

``Sec. 825.300 Employing office notice requirements
    ``(a)(1) If an employing office has any eligible employees and has 
any written guidance to employees concerning employee benefits or leave 
rights, such as in an employee handbook, information concerning both 
entitlements and employee obligations under the FMLA, as made 
applicable by the CAA, must be included in the handbook or other 
document. For example, if an employing office provides an employee 
handbook to all employees that describes the employing office's 
policies regarding leave, wages, attendance, and similar matters, the 
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 Congressional Workplace Rights and may 
be incorporated in such employing office handbooks or written policies.
            ``(2) If such an employing office does not have written 
        policies, manuals, or handbooks describing employee benefits 
        and leave provisions, the 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 provided 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 knowledge that an employee's 
leave may be for an FMLA-qualifying reason, the employing office must 
notify the employee of the employee's eligibility to take FMLA leave 
within five business days, absent extenuating circumstances. See 
825.110 for definition of an eligible employee. Employee eligibility is 
determined (and notice must be provided) at the commencement of the 
first instance of leave for each FMLA-qualifying reason in the 
applicable 12-month period. See 825.127(c) and 825.200(b). All FMLA 
absences for the same qualifying reason are 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 employee is not eligible, 
        including as applicable the number of months the employee has 
        been employed by the employing office and the hours of service 
        with the employing office during the 12-month period. 
        Notification of eligibility may be oral or in writing; 
        employing offices may use Form C to provide such notification 
        to employees.
            ``(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 (e.g., if the employee has not 
        met the hours of service requirement in the 12 months preceding 
        the commencement of leave for the subsequent qualifying 
        reason), the employing office must notify the employee of the 
        change in eligibility status within five business days, absent 
        extenuating circumstances.
    ``(c) Rights and responsibilities notice. (1) Employing offices 
shall provide written notice detailing the specific expectations and 
obligations of the employee and explaining any consequences of a 
failure to meet these obligations. This notice 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 include, as appropriate:
                    ``(A) That the leave may be designated and counted 
                against the employee's annual FMLA leave entitlement if 
                qualifying (See 825.300(c) and 825.301) and the 
                applicable 12-month 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 arising out 
                of covered active duty or call to covered active 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 
                substitute paid parental leave for unpaid FMLA leave 
                for a birth or placement (See 825.208) and the 
                employee's right to substitute paid leave generally, 
                whether the employing office will require the 
                substitution of paid leave, the conditions related to 
                any substitution, and the employee's entitlement to 
                take unpaid FMLA leave if the employee does not meet 
                the 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 consequences 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 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 
                payment of health insurance premiums paid by the 
                employing 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 status and intent to 
        return to work--but is not required to do so.
            ``(3) The notice of rights and responsibilities may be 
        accompanied by any required certification form.
            ``(4) If the specific information provided by the notice of 
        rights and responsibilities changes, the 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 arrangements for making premium payments.
            ``(5) Employing offices are also expected to responsively 
        answer questions from employees concerning their rights and 
        responsibilities under the FMLA, as made applicable under the 
        CAA.
            ``(6) A prototype notice of rights and responsibilities 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 responsibilities may be distributed 
        electronically so long as it otherwise meets the requirements 
        of this section.
    ``(d) Designation notice. (1) The employing office is responsible 
in all circumstances for designating leave as FMLA-qualifying, and for 
giving notice of the designation to the employee as provided in this 
section. When the employing office has enough information to determine 
whether the leave is being taken for a FMLA-qualifying reason (e.g., 
after receiving a certification), the employing office must notify the 
employee whether the leave will be designated and will be counted as 
FMLA leave within five business days absent extenuating circumstances. 
Only one notice of designation is required 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 
determines that the leave will not be designated as FMLA-qualifying 
(e.g., if the leave is not for a reason covered by FMLA or the FMLA 
leave entitlement has been exhausted), the employing office must notify 
the employee of that determination. Subject to 825.208, if the 
employing office requires paid leave to be substituted for unpaid FMLA 
leave, or that paid leave taken under an existing leave plan be counted 
as FMLA leave, the employing office must inform the employee of this 
designation at the time of designating the FMLA leave.
            ``(2) If the employing office has sufficient information to 
        designate the leave as FMLA leave immediately after receiving 
        notice of the employee's need for leave, the employing office 
        may provide the employee with the designation notice at that 
        time.
            ``(3) If the employing office will require the employee to 
        present a fitness-for-duty certification to be restored to 
        employment, the employing office must provide notice of such 
        requirement with the designation notice. If the employing 
        office will require that the fitness-for-duty certification 
        address the employee's ability to perform the essential 
        functions of the employee's position, the employing office must 
        so indicate in the designation notice, and must include a list 
        of the essential functions of the employee's position. See 
        825.312. If the employing office's handbook or other written 
        documents (if any) describing the employing office's leave 
        policies clearly provide that a fitness-for- duty certification 
        will be required in specific circumstances (e.g., by stating 
        that fitness- for-duty certification will be required in all 
        cases of back injuries for employees in a certain occupation), 
        the employing office is not required to provide written notice 
        of the requirement with the designation notice, but must 
        provide oral notice no later than with the designation notice.
            ``(4) The designation notice must be in writing. A 
        prototype designation notice is contained in Form D which may 
        be obtained from the Office of Congressional Workplace Rights. 
        If the leave is not designated as FMLA leave because it does 
        not meet the requirements of the FMLA, as made applicable by 
        the CAA, the notice to the employee that the leave is not 
        designated as FMLA leave may be in the form of a simple written 
        statement. The designation notice may be distributed 
        electronically so long as it otherwise meets the requirements 
        of this section and the employing office can demonstrate that 
        the employee (who may already be on leave and who may not have 
        access to employing office-provided computers) has access to 
        the information electronically.
            ``(5) If the information provided by the employing office 
        to the employee in the designation notice changes (e.g., the 
        employee exhausts the FMLA leave entitlement), the employing 
        office shall provide, within five business days of receipt of 
        the employee's first notice of need for leave subsequent to any 
        change, written notice of the change.
            ``(6) The employing office must notify the employee of the 
        amount of leave counted against the employee's FMLA leave 
        entitlement and, if applicable, the employee's paid parental 
        leave entitlement. If the amount of leave needed is known at 
        the time the employing office designates the leave as FMLA-
        qualifying, the employing office must notify the employee of 
        the number of hours, days, or weeks that will be counted 
        against the employee's FMLA leave entitlement in the 
        designation notice. If it is not possible to provide the hours, 
        days, or weeks that will be counted against the employee's FMLA 
        leave entitlement (such as in the case of unforeseeable 
        intermittent leave), then the employing office must provide 
        notice of the amount of leave counted against the employee's 
        FMLA leave entitlement and, if applicable, paid parental leave 
        entitlement, upon the request by the employee, but no more 
        often than once in a 30-day period and only if leave was taken 
        in that period. The notice of the amount of leave counted 
        against the employee's FMLA entitlement and, if applicable, 
        paid parental leave entitlement may be oral or in writing. If 
        such notice is oral, it shall be confirmed in writing no later 
        than the following payday (unless the payday is less than one 
        week after the oral notice, in which case the notice must be no 
        later than the subsequent payday). Such written notice may be 
        in any form, including a notation on the employee's pay stub.
    ``(e) Consequences of failing to provide notice. Failure to follow 
the notice requirements set forth in this section may constitute an 
interference with, restraint, or denial of the exercise of an 
employee's FMLA rights. An employing office may be liable for 
compensation and benefits lost by reason of the violation, for other 
actual monetary losses sustained as a direct result of the violation, 
and for appropriate equitable or other relief, including employment, 
reinstatement, promotion, or any other relief tailored to the harm 
suffered. See 825.400(b).
``Sec. 825.301 Designation of FMLA leave
    ``(a) Employing office responsibilities. The employing office's 
decision to designate leave as FMLA-qualifying must be based only on 
information received from the employee or the employee's spokesperson 
(e.g., if the employee is incapacitated, the employee's spouse, adult 
child, parent, doctor, etc., may provide notice to the employing office 
of the need to take FMLA leave). In any circumstance where the 
employing office does not have sufficient information about the reason 
for an employee's use of leave, the employing office should inquire 
further of the employee or the spokesperson to ascertain whether leave 
is potentially FMLA-qualifying. Once the employing office has acquired 
knowledge that the leave is being taken for a FMLA-qualifying reason, 
the employing office must notify the employee as provided in 
825.300(d).
    ``(b) Employee responsibilities. An employee giving notice of the 
need for FMLA leave does not need to expressly assert rights under the 
FMLA, as made applicable by the CAA, or even mention the FMLA to meet 
his or her obligation to provide notice, though the employee would need 
to state a qualifying reason for the needed leave and otherwise satisfy 
the notice requirements set forth in 825.302 or 825.303 depending on 
whether the need for leave is foreseeable or unforeseeable. An employee 
giving notice of the need for FMLA leave must explain the reasons for 
the needed leave so as to allow the employing office to determine 
whether the leave qualifies under the FMLA, as made applicable by the 
CAA. If the employee fails to explain the reasons, leave may be denied. 
In many cases, in explaining the reasons for a request to use leave, 
especially when the need for the leave was unexpected or unforeseen, an 
employee will provide sufficient information for the employing office 
to designate the leave as FMLA leave. An employee using accrued paid 
leave may in some cases not spontaneously explain the reasons or their 
plans for using their accrued leave. However, if an employee requesting 
to use paid leave for a FMLA-qualifying reason does not explain the 
reason for the leave and the employing office denies the employee's 
request, the employee will need to provide sufficient information to 
establish a FMLA-qualifying reason for the needed leave so that the 
employing office is aware that the leave may not be denied and may 
designate that the paid leave be appropriately counted against 
(substituted for) the employee's FMLA leave entitlement. Similarly, an 
employee using accrued paid vacation leave who seeks an extension of 
unpaid leave for a FMLA-qualifying reason will need to state the 
reason. If this is due to an event which occurred during the period of 
paid leave, the employing office may count the leave used after the 
FMLA-qualifying reason against the employee's FMLA leave entitlement.
    ``(c) Disputes. If there is a dispute between an employing office 
and an employee as to whether leave qualifies as FMLA leave, it should 
be resolved through discussions between the employee and the employing 
office. Such discussions and the decision must be documented.
    ``(d) Retroactive designation. Subject to 825.208, if an employing 
office does not designate leave as required by 825.300, the employing 
office may retroactively designate leave as FMLA leave with appropriate 
notice to the employee as required by 825.300 provided that the 
employing office's failure to timely designate leave does not cause 
harm or injury to the employee. In all cases where leave would qualify 
for FMLA protections, an employing office and an employee can mutually 
agree that leave be retroactively designated as FMLA leave.
    ``(e) Remedies. If an employing office's failure to timely 
designate leave in accordance with 825.300 causes the employee to 
suffer harm, it may constitute an interference with, restraint of, or 
denial of the exercise of an employee's FMLA rights. An employing 
office may be liable for compensation and benefits lost by reason of 
the violation, for other actual monetary losses sustained as a direct 
result of the violation, and for appropriate equitable or other relief, 
including employment, reinstatement, promotion, or any other relief 
tailored to the harm suffered. See 825.400(b). For example, if an 
employing office that was put on notice that an employee needed FMLA 
leave failed to designate the leave properly, but the employee's own 
serious health condition prevented him or her from returning to work 
during that time period regardless of the designation, an employee may 
not be able to show that the employee suffered harm as a result of the 
employing office's actions. However, if an employee took leave to 
provide care for a son or daughter with a serious health condition 
believing it would not count toward his or her FMLA entitlement, and 
the employee planned to later use that FMLA leave to provide care for a 
spouse who would need assistance when recovering from surgery planned 
for a later date, the employee may be able to show that harm has 
occurred as a result of the employing office's failure to designate 
properly. The employee might establish this by showing that he or she 
would have arranged for an alternative caregiver for the seriously-ill 
son or daughter if the leave had been designated timely.
``Sec. 825.302 Employee notice requirements for foreseeable FMLA leave
    ``(a) Timing of notice. An employee must provide the employing 
office at least 30 days advance notice before FMLA leave is to begin if 
the need for the leave is foreseeable based on an expected birth, 
placement for adoption or foster care, planned medical treatment for a 
serious health condition of the employee or of a family member, or the 
planned medical treatment for a serious injury or illness of a covered 
servicemember. If 30 days' notice is not practicable, such as because 
of a lack of knowledge of approximately when leave will be required to 
begin, a change in circumstances, or a medical emergency, notice must 
be given as soon as practicable. For example, an employee's health 
condition may require leave to commence earlier than anticipated before 
the birth of a child. Similarly, little opportunity for notice may be 
given before placement for adoption. For foreseeable leave due to a 
qualifying exigency, notice must be provided as soon as practicable, 
regardless of how far in advance such leave is foreseeable. Whether 
FMLA leave is to be continuous or is to be taken intermittently or on a 
reduced schedule basis, notice need only be given one time, but the 
employee shall advise the employing office as soon as practicable if 
dates of scheduled leave change or are extended, or were initially 
unknown. In those cases where the employee is required to provide at 
least 30 days' notice of foreseeable leave and does not do so, the 
employee shall explain the reasons why such notice was not practicable 
upon a request from the employing office for such information.
    ``(b) As soon as practicable means as soon as both possible and 
practical, taking into account all of the facts and circumstances in 
the individual case. When an employee becomes aware of a need for FMLA 
leave less than 30 days in advance, it should be practicable for the 
employee to provide notice of the need for leave either the same day or 
the next business day. In all cases, however, the determination of when 
an employee could practicably provide notice must take into account the 
individual facts and circumstances.
    ``(c) Content of notice. An employee shall provide at least verbal 
notice sufficient to make the employing office aware that the employee 
needs FMLA-qualifying leave, and the anticipated timing and duration of 
the leave. Depending on the situation, such information may include 
that a condition renders the employee unable to perform the functions 
of the job; that the employee is pregnant or has been hospitalized 
overnight; whether the employee or the employee's family member is 
under the continuing care of a health care provider; if the leave is 
due to a qualifying exigency, that a military member is on covered 
active duty or call to covered active duty status (or has been notified 
of an impending call or order to covered active duty), and that the 
requested leave is for one of the reasons listed in 825.126(b); if the 
leave is for a family member, that the condition renders the family 
member unable to perform daily activities, or that the family member is 
a covered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an employee seeks 
leave for the first time for a FMLA-qualifying reason, the employee 
need not expressly assert rights under the FMLA, as made applicable by 
the CAA, or even mention the FMLA. When an employee seeks leave due to 
a FMLA-qualifying reason, for which the employing office has previously 
provided FMLA-protected leave, the employee must specifically reference 
the qualifying reason for leave or the need for FMLA leave. In all 
cases, the employing office should inquire further of the employee if 
it is necessary to have more information about whether FMLA leave is 
being sought by the employee, and obtain the necessary details of the 
leave to be taken. In the case of medical conditions, the employing 
office may find it necessary to inquire further to determine if the 
leave is because of a serious health condition and may request medical 
certification to support the need for such leave. See 825.305. An 
employing office may also request certification to support the need for 
leave for a qualifying exigency or for military caregiver leave. See 
825.309, 825.310. When an employee has been previously certified for 
leave due to more than one FMLA-qualifying reason, the employing office 
may need to inquire further to determine for which qualifying reason 
the leave is needed. An employee has an obligation to respond to an 
employing office's questions designed to determine whether an absence 
is potentially FMLA-qualifying. Failure to respond to reasonable 
employing office inquiries regarding the leave request may result in 
denial of FMLA protection if the employing office is unable to 
determine whether the leave is FMLA-qualifying.
    ``(d) Complying with the employing office policy. An employing 
office may require an employee to comply with the employing office's 
usual and customary notice and procedural requirements for requesting 
leave, absent unusual circumstances. For example, an employing office 
may require that written notice set forth the reasons for the requested 
leave, the anticipated duration of the leave, and the anticipated start 
of the leave. An employee also may be required by an employing office's 
policy to contact a specific individual. Unusual circumstances would 
include situations such as when an employee is unable to comply with 
the employing office's policy that requests for leave should be made by 
contacting a specific number because on the day the employee needs to 
provide notice of his or her need for FMLA leave there is no one to 
answer the call-in number and the voice mail box is full. Where an 
employee does not comply with the employing office's usual notice and 
procedural requirements, and no unusual circumstances justify the 
failure to comply, FMLA-protected leave may be delayed or denied. 
However, FMLA-protected leave may not be delayed or denied where the 
employing office's policy requires notice to be given sooner than set 
forth in paragraph (a) of this section and the employee provides timely 
notice as set forth in paragraph (a) of this section.
    ``(e) Scheduling planned medical treatment. When planning medical 
treatment, the employee must consult with the employing office and make 
a reasonable effort to schedule the treatment so as not to disrupt 
unduly the employing office's operations, subject to the approval of 
the health care provider. Employees are ordinarily expected to consult 
with their employing offices prior to the scheduling of treatment in 
order to work out a treatment schedule which best suits the needs of 
both the employing office and the employee. For example, if an employee 
who provides notice of the need to take FMLA leave on an intermittent 
basis for planned medical treatment neglects to consult with the 
employing office to make a reasonable effort to arrange the schedule of 
treatments so as not to unduly disrupt the employing office's 
operations, the employing office may initiate discussions with the 
employee and require the employee to attempt to make such arrangements, 
subject to the approval of the health care provider. See 825.203 and 
825.205.
    ``(f) Intermittent leave or leave on a reduced leave schedule must 
be medically necessary due to a serious health condition or a serious 
injury or illness. An employee shall advise the employing office, upon 
request, of the reasons why the intermittent/reduced leave schedule is 
necessary and of the schedule for treatment, if applicable. The 
employee and employing office shall attempt to work out a schedule for 
such leave that meets the employee's needs without unduly disrupting 
the employing office's operations, subject to the approval of the 
health care provider.
    ``(g) An employing office may waive employees' FMLA notice 
requirements. See 825.304(e).
``Sec. 825.303 Employee notice requirements for unforeseeable FMLA 
              leave
    ``(a) Timing of notice. When the approximate timing of the need for 
leave is not foreseeable, an employee must provide notice to the 
employing office as soon as practicable under the facts and 
circumstances of the particular case. It generally should be 
practicable for the employee to provide notice of leave that is 
unforeseeable within the time prescribed by the employing office's 
usual and customary notice requirements applicable to such leave. See 
825.303(c). Notice may be given by the employee's spokesperson (e.g., 
spouse, adult family member, or other responsible party) if the 
employee is unable to do so personally. For example, if an employee's 
child has a severe asthma attack and the employee takes the child to 
the emergency room, the employee would not be required to leave his or 
her child in order to report the absence while the child is receiving 
emergency treatment. However, if the child's asthma attack required 
only the use of an inhaler at home followed by a period of rest, the 
employee would be expected to call the employing office promptly after 
ensuring the child has used the inhaler.
    ``(b) Content of notice. An employee shall provide sufficient 
information for an employing office to reasonably determine whether the 
FMLA may apply to the leave request. Depending on the situation, such 
information may include that a condition renders the employee unable to 
perform the functions of the job; that the employee is pregnant or has 
been hospitalized overnight; whether the employee or the employee's 
family member is under the continuing care of a health care provider; 
if the leave is due to a qualifying exigency, that a military member is 
on covered active duty or call to covered active duty status (or has 
been notified of an impending call or order to covered active duty), 
that the requested leave is for one of the reasons listed in 
825.126(b), and the anticipated duration of the absence; or if the 
leave is for a family member that the condition renders the family 
member unable to perform daily activities or that the family member is 
a covered servicemember with a serious injury or illness; and the 
anticipated duration of the absence, if known. When an employee seeks 
leave for the first time for a FMLA-qualifying reason, the employee 
need not expressly assert rights under the FMLA, as made applicable by 
the CAA, or even mention the FMLA. When an employee seeks leave due to 
a qualifying reason, for which the employing office has previously 
provided the employee FMLA-protected leave, the employee must 
specifically reference either the qualifying reason for leave or the 
need for FMLA leave. Calling in `sick' without providing more 
information will not be considered sufficient notice to trigger an 
employing office's obligations under the FMLA, as made applicable by 
the CAA. The employing office will be expected to obtain any additional 
required information through informal means. An employee has an 
obligation to respond to an employing office's questions designed to 
determine whether an absence is potentially FMLA-qualifying. Failure to 
respond to reasonable employing office inquiries office regarding the 
leave request may result in denial of FMLA protection if the employing 
office is unable to determine whether the leave is FMLA-qualifying.
    ``(c) Complying with employing office policy. When the need for 
leave is not foreseeable, an employee must comply with the employing 
office's usual and customary notice and procedural requirements for 
requesting leave, absent unusual circumstances. For example, an 
employing office may require employees to call a designated number or a 
specific individual to request leave. However, if an employee requires 
emergency medical treatment, he or she would not be required to follow 
the call-in procedure until his or her condition is stabilized and he 
or she has access to, and is able to use, a phone. Similarly, in the 
case of an emergency requiring leave because of a FMLA-qualifying 
reason, written advance notice pursuant to an employing office's 
internal rules and procedures may not be required when FMLA leave is 
involved. If an employee does not comply with the employing office's 
usual notice and procedural requirements, and no unusual circumstances 
justify the failure to comply, FMLA-protected leave may be delayed or 
denied.
``Sec. 825.304 Employee failure to provide notice
    ``(a) Proper notice required. In all cases, in order for the onset 
of an employee's FMLA leave to be delayed due to lack of required 
notice, it must be clear that the employee had actual notice of the 
FMLA notice requirements. This condition would be satisfied by the 
employing office's proper posting, at the worksite where the employee 
is employed, of the information regarding the FMLA provided (pursuant 
to section 301(h)(2) of the CAA, 2 U.S.C. 1381(h)(2)) by the Office of 
Congressional Workplace Rights to the employing office in a manner 
suitable for posting.
    ``(b) Foreseeable leave--30 days. When the need for FMLA leave is 
foreseeable at least 30 days in advance and an employee fails to give 
timely advance notice with no reasonable excuse, the employing office 
may delay FMLA coverage until 30 days after the date the employee 
provides notice. The need for leave and the approximate date leave 
would be taken must have been clearly foreseeable to the employee 30 
days in advance of the leave. For example, knowledge that an employee 
would receive a telephone call about the availability of a child for 
adoption at some unknown point in the future would not be sufficient to 
establish the leave was clearly foreseeable 30 days in advance.
    ``(c) Foreseeable leave--less than 30 days. When the need for FMLA 
leave is foreseeable fewer than 30 days in advance and an employee 
fails to give notice as soon as practicable under the particular facts 
and circumstances, the extent to which an employing office may delay 
FMLA coverage for leave depends on the facts of the particular case. 
For example, if an employee reasonably should have given the employing 
office two weeks' notice but instead only provided one week's notice, 
then the employing office may delay FMLA-protected leave for one week 
(thus, if the employing office elects to delay FMLA coverage and the 
employee nonetheless takes leave one week after providing the notice 
(i.e., a week before the two week notice period has been met) the leave 
will not be FMLA-protected).
    ``(d) Unforeseeable leave. When the need for FMLA leave is 
unforeseeable and an employee fails to give notice in accordance with 
825.303, the extent to which an employing office may delay FMLA 
coverage for leave depends on the facts of the particular case. For 
example, if it would have been practicable for an employee to have 
given the employing office notice of the need for leave very soon after 
the need arises consistent with the employing office's policy, but 
instead the employee provided notice two days after the leave began, 
then the employing office may delay FMLA coverage of the leave by two 
days.
    ``(e) Waiver of notice. An employing office may waive employees' 
FMLA notice obligations or the employing office's own internal rules on 
leave notice requirements. If an employing office does not waive the 
employee's obligations under its internal leave rules, the employing 
office may take appropriate action under its internal rules and 
procedures for failure to follow its usual and customary notification 
rules, absent unusual circumstances, as long as the actions are taken 
in a manner that does not discriminate against employees taking FMLA 
leave and the rules are not inconsistent with 825.303(a).
``Sec. 825.305 Certification, general rule
    ``(a) General. An employing office may require that an employee's 
leave to care for the employee's covered family member with a serious 
health condition, or due to the employee's own serious health condition 
that makes the employee unable to perform one or more of the essential 
functions of the employee's position, be supported by a certification 
issued by the health care provider of the employee or the employee's 
family member. An employing office may also require that an employee's 
leave because of a qualifying exigency or to care for a covered 
servicemember with a serious injury or illness be supported by a 
certification, as described in 825.309 and 825.310, respectively. An 
employing office must give notice of a requirement for certification 
each time a certification is required; such notice must be written 
notice whenever required by 825.300(c). An employing office's oral 
request to an employee to furnish any subsequent certification is 
sufficient.
    ``(b) Timing. In most cases, the employing office should request 
that an employee furnish certification at the time the employee gives 
notice of the need for leave or within five business days thereafter, 
or, in the case of unforeseen leave, within five business days after 
the leave commences. The employing office may request certification at 
some later date if the employing office later has reason to question 
the appropriateness of the leave or its duration. The employee must 
provide the requested certification to the employing office within 15 
calendar days after the employing office's request, unless it is not 
practicable under the particular circumstances to do so despite the 
employee's diligent, good faith efforts or the employing office 
provides more than 15 calendar days to return the requested 
certification.
    ``(c) Complete and sufficient certification. The employee must 
provide a complete and sufficient certification to the employing office 
if required by the employing office in accordance with 825.306, 
825.309, and 825.310. The employing office shall advise an employee 
whenever the employing office finds a certification incomplete or 
insufficient, and shall state in writing what additional information is 
necessary to make the certification complete and sufficient. A 
certification is considered incomplete if the employing office receives 
a certification, but one or more of the applicable entries have not 
been completed. A certification is considered insufficient if the 
employing office receives a complete certification, but the information 
provided is vague, ambiguous, or non-responsive. The employing office 
must provide the employee with seven calendar days (unless not 
practicable under the particular circumstances despite the employee's 
diligent good faith efforts) to cure any such deficiency. If the 
deficiencies specified by the employing office are not cured in the 
resubmitted certification, the employing office may deny the taking of 
FMLA leave, in accordance with 825.313. A certification that is not 
returned to the employing office is not considered incomplete or 
insufficient, but constitutes a failure to provide certification.
    ``(d) Consequences. At the time the employing office requests 
certification, the employing office must also advise an employee of the 
anticipated consequences of an employee's failure to provide adequate 
certification. If the employee fails to provide the employing office 
with a complete and sufficient certification, despite the opportunity 
to cure the certification as provided in paragraph (c) of this section, 
or fails to provide any certification, the employing office may deny 
the taking of FMLA leave, in accordance with 825.313. It is the 
employee's responsibility either to furnish a complete and sufficient 
certification or to furnish the health care provider providing the 
certification with any necessary authorization from the employee or the 
employee's family member in order for the health care provider to 
release a complete and sufficient certification to the employing office 
to support the employee's FMLA request. This provision will apply in 
any case where an employing office requests a certification permitted 
by these regulations, whether it is the initial certification, a 
recertification, a second or third opinion, or a fitness-for-duty 
certificate, including any clarifications necessary to determine if 
such certifications are authentic and sufficient. See 825.306, 825.307, 
825.308, and 825.312. (e) Annual medical certification. Where the 
employee's need for leave due to the employee's own serious health 
condition, or the serious health condition of the employee's covered 
family member, lasts beyond a single leave year (as defined in 
825.200), the employing office may require the employee to provide a 
new medical certification in each subsequent leave year. Such new 
medical certifications are subject to the provisions for authentication 
and clarification set forth in 825.307, including second and third 
opinions.
``Sec. 825.306 Content of medical certification for leave taken because 
              of an employee's own serious health condition or the 
              serious health condition of a family member
    ``(a) Required information. When leave is taken because of an 
employee's own serious health condition, or the serious health 
condition of a family member, an employing office may require an 
employee to obtain a medical certification from a health care provider 
that sets forth the following information:
            ``(1) The name, address, telephone number, and fax number 
        of the health care provider and type of medical practice/
        specialization;
            ``(2) The approximate date on which the serious health 
        condition commenced, and its probable duration;
            ``(4) If the employee is the patient, information 
        sufficient to establish that the employee cannot perform the 
        essential functions of the employee's job as well as the nature 
        of any other work restrictions, and the likely duration of such 
        inability (See 825.123(b));
            ``(5) If the patient is a covered family member with a 
        serious health condition, information sufficient to establish 
        that the family member is in need of care, as described in 
        825.124, and an estimate of the frequency and duration of the 
        leave required to care for the family member;
            ``(6) If an employee requests leave on an intermittent or 
        reduced schedule basis for planned medical treatment of the 
        employee's or a covered family member's serious health 
        condition, information sufficient to establish the medical 
        necessity for such intermittent or reduced schedule leave and 
        an estimate of the dates and duration of such treatments and 
        any periods of recovery;
            ``(7) If an employee requests leave on an intermittent or 
        reduced schedule basis for the employee's serious health 
        condition, including pregnancy, that may result in 
        unforeseeable episodes of incapacity, information sufficient to 
        establish the medical necessity for such intermittent or 
        reduced schedule leave and an estimate of the frequency and 
        duration of the episodes of incapacity; and
            ``(8) If an employee requests leave on an intermittent or 
        reduced schedule basis to care for a covered family member with 
        a serious health condition, a statement that such leave is 
        medically necessary to care for the family member, as described 
        in 825.124 and 825.203(b), which can include assisting in the 
        family member's recovery, and an estimate of the frequency and 
        duration of the required leave.
    ``(b) The Office of Congressional Workplace Rights has developed 
two optional forms (Form A and Form B) for use in obtaining medical 
certification, including second and third opinions, from health care 
providers that meets FMLA's certification requirements, as made 
applicable by the CAA. (See Forms A and B.) Optional Form A is for use 
when the employee's need for leave is due to the employee's own serious 
health condition. Optional Form B is for use when the employee needs 
leave to care for a family member with a serious health condition. 
These optional forms reflect certification requirements so as to permit 
the health care provider to furnish appropriate medical information. 
Forms A and B are modeled closely on Form WH-380E and Form WH-380F, as 
revised, which were developed by the Department of Labor (See 29 C.F.R. 
Part 825). The employing office may use the Office of Congressional 
Workplace Rights's forms, or Form WH-380E and Form WH-380F, as revised, 
or another form containing the same basic information; however, no 
information may be required beyond that specified in 825.306, 825.307, 
and 825.308. In all instances the information on the form must relate 
only to the serious health condition for which the current need for 
leave exists.
    ``(c) If an employee is on FMLA leave running concurrently with a 
workers' compensation absence, and the provisions of the workers' 
compensation statute permit the employing office or the employing 
office's representative to request additional information from the 
employee's workers' compensation health care provider, the FMLA does 
not prevent the employing office from following the applicable workers' 
compensation provisions and information received under those provisions 
may be considered in determining the employee's entitlement to FMLA-
protected leave. Similarly, an employing office may request additional 
information in accordance with a paid leave policy or disability plan 
that requires greater information to qualify for payments or benefits, 
provided that the employing office informs the employee that the 
additional information only needs to be provided in connection with 
receipt of such payments or benefits. Any information received pursuant 
to such policy or plan may be considered in determining the employee's 
entitlement to FMLA-protected leave. If the employee fails to provide 
the information required for receipt of such payments or benefits, such 
failure will not affect the employee's entitlement to take unpaid FMLA 
leave. See 825.207(a).
    ``(d) If an employee's serious health condition may also be a 
disability within the meaning of the Americans with Disabilities Act 
(ADA), as amended and as made applicable by the CAA, the FMLA does not 
prevent the employing office from following the procedures for 
requesting medical information under the ADA. Any information received 
pursuant to these procedures may be considered in determining the 
employee's entitlement to FMLA-protected leave.
    ``(e) While an employee may choose to comply with the certification 
requirement by providing the employing office with an authorization, 
release, or waiver allowing the employing office to communicate 
directly with the health care provider of the employee or his or her 
covered family member, the employee may not be required to provide such 
an authorization, release, or waiver. In all instances in which 
certification is requested, it is the employee's responsibility to 
provide the employing office with complete and sufficient certification 
and failure to do so may result in the denial of FMLA leave. See 
825.305(d).
``Sec. 825.307 Authentication and clarification of medical 
              certification for leave taken because of an employee's 
              own serious health condition or the serious health 
              condition of a family member; second and third opinions
    ``(a) Clarification and authentication. (1) If an employee submits 
a complete and sufficient certification signed by the health care 
provider, the employing office may not request additional information 
from the health care provider. However, the employing office may 
contact the health care provider for purposes of clarification and 
authentication of the medical certification (whether initial 
certification or recertification) after the employing office has given 
the employee an opportunity to cure any deficiencies as set forth in 
825.305(c). To make such contact, the employing office must use a 
health care provider, a human resources professional, a leave 
administrator, or a management official. An employee's direct 
supervisor may not contact the employee's health care provider, unless 
the direct supervisor is also the only individual in the employing 
office designated to process FMLA requests and the direct supervisor 
receives specific authorization from the employee to contact the 
employee's health care provider. For purposes of these regulations, 
authentication means providing the health care provider with a copy of 
the certification and requesting verification that the information 
contained on the certification form was completed and/ or authorized by 
the health care provider who signed the document; no additional medical 
information may be requested.
            ``(2) Clarification means contacting the health care 
        provider to understand the handwriting on the medical 
        certification or to understand the meaning of a response. 
        Employing offices may not ask health care providers for 
        additional information beyond that required by the 
        certification form. The requirements of the Health Insurance 
        Portability and Accountability Act (HIPAA) Privacy Rule, (See 
        45 C.F.R. parts 160 and 164), which governs the privacy of 
        individually-identifiable health information created or held by 
        HIPAA-covered entities, must be satisfied when individually-
        identifiable health information of an employee is shared with 
        an employing office by a HIPAA-covered health care provider. If 
        an employee chooses not to provide the employing office with 
        authorization allowing the employing office to clarify the 
        certification with the health care provider, and does not 
        otherwise clarify the certification, the employing office may 
        deny the taking of FMLA leave if the certification is unclear. 
        See 825.305(d). It is the employee's responsibility to provide 
        the employing office with a complete and sufficient 
        certification and to clarify the certification if necessary.
    ``(b) Second Opinion. (1) An employing office that has reason to 
doubt the validity of a medical certification may require the employee 
to obtain a second opinion at the employing office's expense. Pending 
receipt of the second (or third) medical opinion, the employee is 
provisionally entitled to the benefits of the FMLA, as made applicable 
by the CAA, including maintenance of group health benefits. If the 
certifications do not ultimately establish the employee's entitlement 
to FMLA leave, the leave shall not be designated as FMLA leave and may 
be treated as paid or unpaid leave under the employing office's 
established leave policies. In addition, the consequences set forth in 
825.305(d) will apply if the employee or the employee's family member 
fails to authorize his or her health care provider to release all 
relevant medical information pertaining to the serious health condition 
at issue if requested by the health care provider designated to provide 
a second opinion in order to render a sufficient and complete second 
opinion.
            ``(2) The employing office is permitted to designate the 
        health care provider to furnish the second opinion, but the 
        selected health care provider may not be employed on a regular 
        basis by the employing office. The employing office may not 
        regularly contract with or otherwise regularly utilize the 
        services of the health care provider furnishing the second 
        opinion unless the employing office is located in an area where 
        access to health care is extremely limited (e.g., a rural area 
        where no more than one or two doctors practice in the relevant 
        specialty in the vicinity).
    ``(c) Third opinion. If the opinions of the employee's and the 
employing office's designated health care providers differ, the 
employing office may require the employee to obtain certification from 
a third health care provider, again at the employing office's expense. 
This third opinion shall be final and binding. The third health care 
provider must be designated or approved jointly by the employing office 
and the employee. The employing office and the employee must each act 
in good faith to attempt to reach agreement on whom to select for the 
third opinion provider. If the employing office does not attempt in 
good faith to reach agreement, the employing office will be bound by 
the first certification. If the employee does not attempt in good faith 
to reach agreement, the employee will be bound by the second 
certification. For example, an employee who refuses to agree to see a 
doctor in the specialty in question may be failing to act in good 
faith. On the other hand, an employing office that refuses to agree to 
any doctor on a list of specialists in the appropriate field provided 
by the employee and whom the employee has not previously consulted may 
be failing to act in good faith. In addition, the consequences set 
forth in 825.305(d) will apply if the employee or the employee's family 
member fails to authorize his or her health care provider to release 
all relevant medical information pertaining to the serious health 
condition at issue if requested by the health care provider designated 
to provide a third opinion in order to render a sufficient and complete 
third opinion.
    ``(d) Copies of opinions. The employing office is required to 
provide the employee with a copy of the second and third medical 
opinions, where applicable, upon request by the employee. Requested 
copies are to be provided within five business days unless extenuating 
circumstances prevent such action.
    ``(e) Travel expenses. If the employing office requires the 
employee to obtain either a second or third opinion the employing 
office must reimburse an employee or family member for any reasonable 
`out of pocket' travel expenses incurred to obtain the second and third 
medical opinions. The employing office may not require the employee or 
family member to travel outside normal commuting distance for purposes 
of obtaining the second or third medical opinions except in very 
unusual circumstances.
    ``(f) Medical certification abroad. In circumstances in which the 
employee or a family member is visiting in another country, or a family 
member resides in another country, and a serious health condition 
develops, the employing office shall accept a medical certification as 
well as second and third opinions from a health care provider who 
practices in that country. Where a certification by a foreign health 
care provider is in a language other than English, the employee must 
provide the employing office with a written translation of the 
certification upon request.
``Sec. 825.308 Recertifications for leave taken because of an 
              employee's own serious health condition or the serious 
              health condition of a family member
    ``(a) 30-day rule. An employing office may request recertification 
no more often than every 30 days and only in connection with an absence 
by the employee, unless paragraphs (b) or (c) of this section apply.
    ``(b) More than 30 days. If the medical certification indicates 
that the minimum duration of the condition is more than 30 days, an 
employing office must wait until that minimum duration expires before 
requesting a recertification, unless paragraph (c) of this section 
applies. For example, if the medical certification states that an 
employee will be unable to work, whether continuously or on an 
intermittent basis, for 40 days, the employing office must wait 40 days 
before requesting a recertification. In all cases, an employing office 
may request a recertification of a medical condition every six months 
in connection with an absence by the employee. Accordingly, even if the 
medical certification indicates that the employee will need 
intermittent or reduced schedule leave for a period in excess of six 
months (e.g., for a lifetime condition), the employing office would be 
permitted to request recertification every six months in connection 
with an absence.
    ``(c) Less than 30 days. An employing office may request 
recertification in less than 30 days if:
            ``(1) The employee requests an extension of leave;
            ``(2) Circumstances described by the previous certification 
        have changed significantly (e.g., the duration or frequency of 
        the absence, the nature or severity of the illness, 
        complications). For example, if a medical certification stated 
        that an employee would need leave for one to two days when the 
        employee suffered a migraine headache and the employee's 
        absences for his or her last two migraines lasted four days 
        each, then the increased duration of absence might constitute a 
        significant change in circumstances allowing the employing 
        office to request a recertification in less than 30 days. 
        Likewise, if an employee had a pattern of using unscheduled 
        FMLA leave for migraines in conjunction with his or her 
        scheduled days off, then the timing of the absences also might 
        constitute a significant change in circumstances sufficient for 
        an employing office to request a recertification more 
        frequently than every 30 days; or
            ``(3) The employing office receives information that casts 
        doubt upon the employee's stated reason for the absence or the 
        continuing validity of the certification. For example, if an 
        employee is on FMLA leave for four weeks due to the employee's 
        knee surgery, including recuperation, and the employee plays in 
        company softball league games during the employee's third week 
        of FMLA leave, such information might be sufficient to cast 
        doubt upon the continuing validity of the certification 
        allowing the employing office to request a recertification in 
        less than 30 days.
    ``(d) Timing. The employee must provide the requested 
recertification to the employing office within the time frame requested 
by the employing office (which must allow at least 15 calendar days 
after the employing office's request), unless it is not practicable 
under the particular circumstances to do so despite the employee's 
diligent, good faith efforts.
    ``(e) Content. The employing office may ask for the same 
information when obtaining recertification as that permitted for the 
original certification as set forth in 825.306. The employee has the 
same obligations to participate and cooperate (including providing a 
complete and sufficient certification or adequate authorization to the 
health care provider) in the recertification process as in the initial 
certification process. See 825.305(d). As part of the information 
allowed to be obtained on recertification for leave taken because of a 
serious health condition, the employing office may provide the health 
care provider with a record of the employee's absence pattern and ask 
the health care provider if the serious health condition and need for 
leave is consistent with such a pattern.
    ``(f) Any recertification requested by the employing office shall 
be at the employee's expense unless the employing office provides 
otherwise. No second or third opinion on recertification may be 
required.
``Sec. 825.309 Certification for leave taken because of a qualifying 
              exigency
    ``(a) Active Duty Orders. The first time an employee requests leave 
because of a qualifying exigency arising out of the covered active duty 
or call to covered active duty status (or notification of an impending 
call or order to covered active duty) of a military member (See 
825.126(a)), an employing office may require the employee to provide a 
copy of the military member's active duty orders or other documentation 
issued by the military which indicates that the military member is on 
covered active duty or call to covered active duty status, and the 
dates of the military member's covered active duty service. This 
information need only be provided to the employing office once. A copy 
of new active duty orders or other documentation issued by the military 
may be required by the employing office if the need for leave because 
of a qualifying exigency arises out of a different covered active duty 
or call to covered active duty status (or notification of an impending 
call or order to covered active duty) of the same or a different 
military member;
    ``(b) Required information. An employing office may require that 
leave for any qualifying exigency specified in 825.126 be supported by 
a certification from the employee that sets forth the following 
information:
            ``(1) A statement or description, signed by the employee, 
        of appropriate facts regarding the qualifying exigency for 
        which FMLA leave is requested. The facts must be sufficient to 
        support the need for leave. Such facts should include 
        information on the type of qualifying exigency for which leave 
        is requested and any available written documentation which 
        supports the request for leave; such documentation, for 
        example, may include a copy of a meeting announcement for 
        informational briefings sponsored by the military, a document 
        confirming an appointment with a counselor or school official, 
        or a copy of a bill for services for the handling of legal or 
        financial affairs;
            ``(2) The approximate date on which the qualifying exigency 
        commenced or will commence;
            ``(3) If an employee requests leave because of a qualifying 
        exigency for a single, continuous period of time, the beginning 
        and end dates for such absence;
            ``(4) If an employee requests leave because of a qualifying 
        exigency on an intermittent or reduced schedule basis, an 
        estimate of the frequency and duration of the qualifying 
        exigency;
            ``(5) If the qualifying exigency involves meeting with a 
        third party, appropriate contact information for the individual 
        or entity with whom the employee is meeting (such as the name, 
        title, organization, address, telephone number, fax number, and 
        email address) and a brief description of the purpose of the 
        meeting; and
            ``(6) If the qualifying exigency involves Rest and 
        Recuperation leave, a copy of the military member's Rest and 
        Recuperation orders, or other documentation issued by the 
        military which indicates that the military member has been 
        granted Rest and Recuperation leave, and the dates of the 
        military member's Rest and Recuperation leave.
    ``(c) The Office of Congressional Workplace Rights has developed an 
optional form (Form E) for employees' use in obtaining a certification 
that meets FMLA's certification requirements. This optional form 
reflects certification requirements so as to permit the employee to 
furnish appropriate information to support his or her request for leave 
because of a qualifying exigency. Form E, or Form WH-384 (developed by 
the Department of Labor), or another form containing the same basic 
information, may be used by the employing office; however, no 
information may be required beyond that specified in this section.
    ``(d) Verification. If an employee submits a complete and 
sufficient certification to support his or her request for leave 
because of a qualifying exigency, the employing office may not request 
additional information from the employee. However, if the qualifying 
exigency involves meeting with a third party, the employing office may 
contact the individual or entity with whom the employee is meeting for 
purposes of verifying a meeting or appointment schedule and the nature 
of the meeting between the employee and the specified individual or 
entity. The employee's permission is not required in order to verify 
meetings or appointments with third parties, but no additional 
information may be requested by the employing office. An employing 
office also may contact an appropriate unit of the Department of 
Defense to request verification that a military member is on covered 
active duty or call to covered active duty status (or has been notified 
of an impending call or order to covered active duty); no additional 
information may be requested and the employee's permission is not 
required.
``Sec. 825.310 Certification for leave taken to care for a covered 
              servicemember (military caregiver leave)
    ``(a) Required information from health care provider. When leave is 
taken to care for a covered servicemember with a serious injury or 
illness, an employing office may require an employee to obtain a 
certification completed by an authorized health care provider of the 
covered servicemember. For purposes of leave taken to care for a 
covered servicemember, any one of the following health care providers 
may complete such a certification:
            ``(1) A United States Department of Defense (`DOD') health 
        care provider;
            ``(2) A United States Department of Veterans Affairs (`VA') 
        health care provider;
            ``(3) A DOD TRICARE network authorized private health care 
        provider;
            ``(4) A DOD non-network TRICARE authorized private health 
        care provider; or
            ``(5) Any health care provider as defined in 825.125.
    ``(b) If the authorized health care provider is unable to make 
certain military-related determinations outlined below, the authorized 
health care provider may rely on determinations from an authorized DOD 
representative (such as a DOD recovery care coordinator) or an 
authorized VA representative. An employing office may request that the 
health care provider provide the following information:
            ``(1) The name, address, and appropriate contact 
        information (telephone number, fax number, and/or email 
        address) of the health care provider, the type of medical 
        practice, the medical specialty, and whether the health care 
        provider is one of the following:
                    ``(A) A DOD health care provider;
                    ``(B) A VA health care provider;
                    ``(C) A DOD TRICARE network authorized private 
                health care provider;
                    ``(D) A DOD non-network TRICARE authorized private 
                health care provider; or
                    ``(E) A health care provider as defined in 825.125.
            ``(2) Whether the covered servicemember's injury or illness 
        was incurred in the line of duty on active duty or, if not, 
        whether the covered servicemember's injury or illness existed 
        before the beginning of the servicemember's active duty and was 
        aggravated by service in the line of duty on active duty;
            ``(3) The approximate date on which the serious injury or 
        illness commenced, or was aggravated, and its probable 
        duration;
            ``(4) A statement or description of appropriate medical 
        facts regarding the covered servicemember's health condition 
        for which FMLA leave is requested. The medical facts must be 
        sufficient to support the need for leave.
                    ``(A) In the case of a current member of the Armed 
                Forces, such medical facts must include information on 
                whether the injury or illness may render the covered 
                servicemember medically unfit to perform the duties of 
                the servicemember's office, grade, rank, or rating and 
                whether the member is receiving medical treatment, 
                recuperation, or therapy;
                    ``(B) In the case of a covered veteran, such 
                medical facts must include:
                            ``(i) Information on whether the veteran is 
                        receiving medical treatment, recuperation, or 
                        therapy for an injury or illness that is the 
                        continuation of an injury or illness that was 
                        incurred or aggravated when the covered veteran 
                        was a member of the Armed Forces and rendered 
                        the servicemember medically unfit to perform 
                        the duties of the servicemember's office, 
                        grade, rank, or rating; or
                            ``(ii) Information on whether the veteran 
                        is receiving medical treatment, recuperation, 
                        or therapy for an injury or illness that is a 
                        physical or mental condition for which the 
                        covered veteran has received a U.S. Department 
                        of Veterans Affairs Service-Related Disability 
                        Rating (VASRD) of 50 percent or greater, and 
                        that such VASRD rating is based, in whole or in 
                        part, on the condition precipitating the need 
                        for military caregiver leave; or
                            ``(iii) Information on whether the veteran 
                        is receiving medical treatment, recuperation, 
                        or therapy for an injury or illness that is a 
                        physical or mental condition that substantially 
                        impairs the covered veteran's ability to secure 
                        or follow a substantially gainful occupation by 
                        reason of a disability or disabilities related 
                        to military service, or would do so absent 
                        treatment; or
                            ``(iv) Documentation of enrollment in the 
                        Department of Veterans Affairs Program of 
                        Comprehensive Assistance for Family Caregivers.
            ``(5) Information sufficient to establish that the covered 
        servicemember is in need of care, as described in 825.124, and 
        whether the covered servicemember will need care for a single 
        continuous period of time, including any time for treatment and 
        recovery, and an estimate as to the beginning and ending dates 
        for this period of time;
            ``(6) If an employee requests leave on an intermittent or 
        reduced schedule basis for planned medical treatment 
        appointments for the covered servicemember, whether there is a 
        medical necessity for the covered servicemember to have such 
        periodic care and an estimate of the treatment schedule of such 
        appointments;
            ``(7) If an employee requests leave on an intermittent or 
        reduced schedule basis to care for a covered servicemember 
        other than for planned medical treatment (e.g., episodic flare-
        ups of a medical condition), whether there is a medical 
        necessity for the covered servicemember to have such periodic 
        care, which can include assisting in the covered 
        servicemember's recovery, and an estimate of the frequency and 
        duration of the periodic care.
    ``(c) Required information from employee and/ or covered 
servicemember. In addition to the information that may be requested 
under 825.310(b), an employing office may also request that such 
certification set forth the following information provided by an 
employee and/or covered servicemember:
            ``(1) The name and address of the employing office of the 
        employee requesting leave to care for a covered servicemember, 
        the name of the employee requesting such leave, and the name of 
        the covered servicemember for whom the employee is requesting 
        leave to care;
            ``(2) The relationship of the employee to the covered 
        servicemember for whom the employee is requesting leave to 
        care;
            ``(3) Whether the covered servicemember is a current member 
        of the Armed Forces, the National Guard or Reserves, and the 
        covered servicemember's military branch, rank, and current unit 
        assignment;
            ``(4) Whether the covered servicemember is assigned to a 
        military medical facility as an outpatient or to a unit 
        established for the purpose of providing command and control of 
        members of the Armed Forces receiving medical care as 
        outpatients (such as a medical hold or warrior transition 
        unit), and the name of the medical treatment facility or unit;
            ``(5) Whether the covered servicemember is on the temporary 
        disability retired list;
            ``(6) Whether the covered servicemember is a veteran, the 
        date of separation from military service, and whether the 
        separation was other than dishonorable. The employing office 
        may require the employee to provide documentation issued by the 
        military which indicates that the covered servicemember is a 
        veteran, the date of separation, and that the separation is 
        other than dishonorable. Where an employing office requires 
        such documentation, an employee may provide a copy of the 
        veteran's Certificate of Release or Discharge from Active Duty 
        issued by the U.S. Department of Defense (DD Form 214) or other 
        proof of veteran status. See 825.127(c)(2).
            ``(7) A description of the care to be provided to the 
        covered servicemember and an estimate of the leave needed to 
        provide the care.
    ``(d) The Office of Congressional Workplace Rights has developed an 
optional form (Form F) for employees' use in obtaining certification 
that meets FMLA's certification requirements. This optional form 
reflects certification requirements so as to permit the employee to 
furnish appropriate information to support his or her request for leave 
to care for a covered servicemember with a serious injury or illness. 
Form F, or Form WH-385 (developed by the Department of Labor), or 
another form containing the same basic information, may be used by the 
employing office; however, no information may be required beyond that 
specified in this section. In all instances the information on the 
certification must relate only to the serious injury or illness for 
which the current need for leave exists. An employing office may seek 
authentication and/or clarification of the certification under 825.307. 
Second and third opinions under 825.307 are not permitted for leave to 
care for a covered servicemember when the certification has been 
completed by one of the types of healthcare providers identified in 
section 825.310(a)(1-4). However, second and third opinions under 
825.307 are permitted when the certification has been completed by a 
health care provider as defined in 825.125 that is not one of the types 
identified in 825.310(a)(1)-(4). Additionally, recertifications under 
825.308 are not permitted for leave to care for a covered 
servicemember. An employing office may require an employee to provide 
confirmation of covered family relationship to the seriously injured or 
ill servicemember pursuant to 825.122(k) of the FMLA.
    ``(e) An employing office requiring an employee to submit a 
certification for leave to care for a covered servicemember must accept 
as sufficient certification, in lieu of the Office of Congressional 
Workplace Rights's optional certification form (Form F) or an employing 
office's own certification form, invitational travel orders (ITOs) or 
invitational travel authorizations (ITAs) issued to any family member 
to join an injured or ill servicemember at his or her bedside. An ITO 
or ITA is sufficient certification for the duration of time specified 
in the ITO or ITA. During that time period, an eligible employee may 
take leave to care for the covered servicemember in a continuous block 
of time or on an intermittent basis. An eligible employee who provides 
an ITO or ITA to support his or her request for leave may not be 
required to provide any additional or separate certification that leave 
taken on an intermittent basis during the period of time specified in 
the ITO or ITA is medically necessary. An ITO or ITA is sufficient 
certification for an employee entitled to take FMLA leave to care for a 
covered servicemember regardless of whether the employee is named in 
the order or authorization.
            ``(1) If an employee will need leave to care for a covered 
        servicemember beyond the expiration date specified in an ITO or 
        ITA, an employing office may request that the employee have one 
        of the authorized health care providers listed under 825.310(a) 
        complete the Office of Congressional Workplace Rights optional 
        certification form (Form F) or an employing office's own form, 
        as requisite certification for the remainder of the employee's 
        necessary leave period.
            ``(2) An employing office may seek authentication and 
        clarification of the ITO or ITA under 825.307. An employing 
        office may not utilize the second or third opinion process 
        outlined in 825.307 or the recertification process under 
        825.308 during the period of time in which leave is supported 
        by an ITO or ITA.
            ``(3) An employing office may require an employee to 
        provide confirmation of covered family relationship to the 
        seriously injured or ill servicemember pursuant to 825.122(k) 
        when an employee supports his or her request for FMLA leave 
        with a copy of an ITO or ITA.
    ``(f) An employing office requiring an employee to submit a 
certification for leave to care for a covered servicemember must accept 
as sufficient certification of the servicemember's serious injury or 
illness documentation indicating the servicemember's enrollment in the 
Department of Veterans Affairs Program of Comprehensive Assistance for 
Family Caregivers. Such documentation is sufficient certification of 
the servicemember's serious injury or illness to support the employee's 
request for military caregiver leave regardless of whether the employee 
is the named caregiver in the enrollment documentation.
            ``(1) An employing office may seek authentication and 
        clarification of the documentation indicating the 
        servicemember's enrollment in the Department of Veterans 
        Affairs Program of Comprehensive Assistance for Family 
        Caregivers under 825.307. An employing office may not utilize 
        the second or third opinion process outlined in 825.307 or the 
        recertification process under 825.308 when the servicemember's 
        serious injury or illness is shown by documentation of 
        enrollment in this program.
            ``(2) An employing office may require an employee to 
        provide confirmation of covered family relationship to the 
        seriously injured or ill servicemember pursuant to 825.122(k) 
        when an employee supports his or her request for FMLA leave 
        with a copy of such enrollment documentation. An employing 
        office may also require an employee to provide documentation, 
        such as a veteran's Form DD-214, showing that the discharge was 
        other than dishonorable and the date of the veteran's 
        discharge.
    ``(g) Where medical certification is requested by an employing 
office, an employee may not be held liable for administrative delays in 
the issuance of military documents, despite the employee's diligent, 
good-faith efforts to obtain such documents. See 825.305(b). In all 
instances in which certification is requested, it is the employee's 
responsibility to provide the employing office with complete and 
sufficient certification and failure to do so may result in the denial 
of FMLA leave. See 825.305(d).
``Sec. 825.311 Intent to return to work
    ``(a) An employing office may require an employee on FMLA leave to 
report periodically on the employee's status and intent to return to 
work. The employing office's policy regarding such reports may not be 
discriminatory and must take into account all of the relevant facts and 
circumstances related to the individual employee's leave situation.
    ``(b) If an employee gives unequivocal notice of intent not to 
return to work, the employing office's obligations under FMLA, as made 
applicable by the CAA, to maintain health benefits (subject to COBRA 
requirements) and to restore the employee cease. However, these 
obligations continue if an employee indicates he or she may be unable 
to return to work but expresses a continuing desire to do so.
    ``(c) It may be necessary for an employee to take more leave than 
originally anticipated. Conversely, an employee may discover after 
beginning leave that the circumstances have changed and the amount of 
leave originally anticipated is no longer necessary. An employee may 
not be required to take more FMLA leave than necessary to resolve the 
circumstance that precipitated the need for leave. In both of these 
situations, the employing office may require that the employee provide 
the employing office reasonable notice (i.e., within two business days) 
of the changed circumstances where foreseeable. The employing office 
may also obtain information on such changed circumstances through 
requested status reports.
``Sec. 825.312 Fitness-for-duty certification
    ``(a) As a condition of restoring an employee whose FMLA leave was 
occasioned by the employee's own serious health condition that made the 
employee unable to perform the employee's job, an employing office may 
have a uniformly-applied policy or practice that requires all 
similarly-situated employees (i.e., same occupation, same serious 
health condition) who take leave for such conditions to obtain and 
present certification from the employee's health care provider that the 
employee is able to resume work. The employee has the same obligations 
to participate and cooperate (including providing a complete and 
sufficient certification or providing sufficient authorization to the 
health care provider to provide the information directly to the 
employing office) in the fitness-for-duty certification process as in 
the initial certification process. See 825.305(d).
    ``(b) An employing office may seek a fitness-for-duty certification 
only with regard to the particular health condition that caused the 
employee's need for FMLA leave. The certification from the employee's 
health care provider must certify that the employee is able to resume 
work. Additionally, an employing office may require that the 
certification specifically address the employee's ability to perform 
the essential functions of the employee's job. In order to require such 
a certification, an employing office must provide an employee with a 
list of the essential functions of the employee's job no later than 
with the designation notice required by 825.300(d), and must indicate 
in the designation notice that the certification must address the 
employee's ability to perform those essential functions. If the 
employing office satisfies these requirements, the employee's health 
care provider must certify that the employee can perform the identified 
essential functions of his or her job. Following the procedures set 
forth in 825.307(a), the employing office may contact the employee's 
health care provider for purposes of clarifying and authenticating the 
fitness-for-duty certification. Clarification may be requested only for 
the serious health condition for which FMLA leave was taken. The 
employing office may not delay the employee's return to work while 
contact with the health care provider is being made. No second or third 
opinions on a fitness-for-duty certification may be required.
    ``(c) The cost of the certification shall be borne by the employee, 
and the employee is not entitled to be paid for the time or travel 
costs spent in acquiring the certification.
    ``(d) The designation notice required in 825.300(d) shall advise 
the employee if the employing office will require a fitness-for-duty 
certification to return to work and whether that fitness-for-duty 
certification must address the employee's ability to perform the 
essential functions of the employee's job.
    ``(e) An employing office may delay restoration to employment until 
an employee submits a required fitness-for-duty certification unless 
the employing office has failed to provide the notice required in 
paragraph (d) of this section. If an employing office provides the 
notice required, an employee who does not provide a fitness-for-duty 
certification or request additional FMLA leave is no longer entitled to 
reinstatement under the FMLA. See 825.313(d).
    ``(f) An employing office is not entitled to a certification of 
fitness to return to duty for each absence taken on an intermittent or 
reduced leave schedule. However, an employing office is entitled to a 
certification of fitness to return to duty for such absences up to once 
every 30 days if reasonable safety concerns exist regarding the 
employee's ability to perform his or her duties, based on the serious 
health condition for which the employee took such leave. If an 
employing office chooses to require a fitness-for-duty certification 
under such circumstances, the employing office shall inform the 
employee at the same time it issues the designation notice that for 
each subsequent instance of intermittent or reduced schedule leave, the 
employee will be required to submit a fitness-for-duty certification 
unless one has already been submitted within the past 30 days. 
Alternatively, an employing office can set a different interval for 
requiring a fitness-for-duty certification as long as it does not 
exceed once every 30 days and as long as the employing office advises 
the employee of the requirement in advance of the employee taking the 
intermittent or reduced schedule leave. The employing office may not 
terminate the employment of the employee while awaiting such a 
certification of fitness to return to duty for an intermittent or 
reduced schedule leave absence. Reasonable safety concerns means a 
reasonable belief of significant risk of harm to the individual 
employee or others. In determining whether reasonable safety concerns 
exist, an employing office should consider the nature and severity of 
the potential harm and the likelihood that potential harm will occur.
    ``(g) If the terms of a collective bargaining agreement govern an 
employee's return to work, those provisions shall be applied.
    ``(h) Requirements under the Americans with Disabilities Act (ADA), 
as amended and as made applicable by the CAA, apply. After an employee 
returns from FMLA leave, the ADA requires any medical examination at an 
employing office's expense by the employing office's health care 
provider be job-related and consistent with business necessity. For 
example, an attorney could not be required to submit to a medical 
examination or inquiry just because her leg had been amputated. The 
essential functions of an attorney's job do not require use of both 
legs; therefore such an inquiry would not be job related. An employing 
office may require a warehouse laborer, whose back impairment affects 
the ability to lift, to be examined by an orthopedist, but may not 
require this employee to submit to an HIV test where the test is not 
related to either the essential functions of his or her job or to his/
her impairment. If an employee's serious health condition may also be a 
disability within the meaning of the ADA, as made applicable by the 
CAA, the FMLA does not prevent the employing office from following the 
procedures for requesting medical information under the ADA.
``Sec. 825.313 Failure to provide certification
    ``(a) Foreseeable leave. In the case of foreseeable leave, if an 
employee fails to provide certification in a timely manner as required 
by 825.305, then an employing office may deny FMLA coverage until the 
required certification is provided. For example, if an employee has 15 
days to provide a certification and does not provide the certification 
for 45 days without sufficient reason for the delay, the employing 
office can deny FMLA protections for the 30-day period following the 
expiration of the 15-day time period, if the employee takes leave 
during such period.
    ``(b) Unforeseeable leave. In the case of unforeseeable leave, an 
employing office may deny FMLA coverage for the requested leave if the 
employee fails to provide a certification within 15 calendar days from 
receipt of the request for certification unless not practicable due to 
extenuating circumstances. For example, in the case of a medical 
emergency, it may not be practicable for an employee to provide the 
required certification within 15 calendar days. Absent such extenuating 
circumstances, if the employee fails to timely return the 
certification, the employing office can deny FMLA protections for the 
leave following the expiration of the 15-day time period until a 
sufficient certification is provided. If the employee never produces 
the certification, the leave is not FMLA leave.
    ``(c) Recertification. An employee must provide recertification 
within the time requested by the employing office (which must allow at 
least 15 calendar days after the request) or as soon as practicable 
under the particular facts and circumstances. If an employee fails to 
provide a recertification within a reasonable time under the particular 
facts and circumstances, then the employing office may deny 
continuation of the FMLA leave protections until the employee produces 
a sufficient recertification. If the employee never produces the 
recertification, the leave is not FMLA leave. Recertification does not 
apply to leave taken for a qualifying exigency or to care for a covered 
servicemember.
    ``(d) Fitness-for-duty certification. When requested by the 
employing office pursuant to a uniformly applied policy for similarly-
situated employees, the employee must provide medical certification, at 
the time the employee seeks reinstatement at the end of FMLA leave 
taken for the employee's serious health condition, that the employee is 
fit for duty and able to return to work (see 825.312(a)) if the 
employing office has provided the required notice (see 825.300(e)); the 
employing office may delay restoration until the certification is 
provided. Unless the employee provides either a fitness-for-duty 
certification or a new medical certification for a serious health 
condition at the time FMLA leave is concluded, the employee may be 
terminated. See also 825.213(a)(3).

                  ``Subpart D--Administrative Process

``Sec. 825.400 Administrative process, general rules
    ``(a) The Procedural Rules of the Office of Congressional Workplace 
Rights set forth the procedures that apply to the administrative 
process for considering and resolving alleged violations of the laws 
made applicable by the CAA, including the FMLA. The Rules include 
procedures for filing claims and participating in administrative 
dispute resolution proceedings at the Office of Congressional Workplace 
Rights, including procedures for the conduct of hearings and for 
appeals to the Board of Directors. The Procedural Rules also address 
other matters of general applicability to the dispute resolution 
process and to the operations of the Office.
    ``(b) If an employing office has violated one or more provisions of 
FMLA, as incorporated by the CAA, and if justified by the facts of a 
particular case, an employee may receive one or more of the following: 
wages, employment benefits, or other compensation denied or lost to 
such employee by reason of the violation; or, where no such tangible 
loss has occurred, such as when FMLA leave was unlawfully denied, any 
actual monetary loss sustained by the employee as a direct result of 
the violation, such as the cost of providing care, up to a sum equal to 
26 weeks of wages for the employee in a case involving leave to care 
for a covered servicemember or 12 weeks of wages for the employee in a 
case involving leave for any other FMLA qualifying reason. In addition, 
the employee may be entitled to interest on such sum, calculated at the 
prevailing rate. An amount equaling the preceding sums may also be 
awarded as liquidated damages unless such amount is reduced by the 
hearing officer or the Board because the violation was in good faith 
and the employing office had reasonable grounds for believing the 
employer had not violated the CAA. When appropriate, the employee may 
also obtain appropriate equitable relief, such as employment, 
reinstatement and promotion. When the employing office is found in 
violation, the employee may recover a reasonable attorney's fee, 
reasonable expert witness fees, and other costs as would be appropriate 
if awarded under section 2000e-5(k) of title 42.
    ``(c) The Procedural Rules of the Office of Congressional Workplace 
Rights are found at 165 Cong. Rec. H4896 (daily ed. June 19, 2019) and 
165 Cong. Rec. S4105 (daily ed. June 19, 2019), and may also be found 
on the Office's website at www.ocwr.gov.
``Sec. 825.401 [Reserved]
``Sec. 825.402 [Reserved]
``Sec. 825.403 [Reserved]
``Sec. 825.404 [Reserved]

                        ``Subpart E--[Reserved]

     ``Subpart F--Special Rules Applicable to Employees of Schools

``Sec. 825.600 Special rules for school employees, definitions
    ``(a) Certain special rules apply to employees of local educational 
agencies, including public school boards and elementary schools under 
their jurisdiction, and private elementary and secondary schools. The 
special rules do not apply to other kinds of educational institutions, 
such as colleges and universities, trade schools, and preschools.
    ``(b) Educational institutions are covered by FMLA, as made 
applicable by the CAA (and these special rules). The usual requirements 
for employees to be eligible do apply.
    ``(c) The special rules affect the taking of intermittent leave or 
leave on a reduced leave schedule, or leave near the end of an academic 
term (semester), by instructional employees. Instructional employees 
are those whose principal function is to teach and instruct students in 
a class, a small group, or an individual setting. This term includes 
not only teachers, but also athletic coaches, driving instructors, and 
special education assistants such as signers for the hearing impaired. 
It does not include, and the special rules do not apply to, teacher 
assistants or aides who do not have as their principal job actual 
teaching or instructing, nor does it include auxiliary personnel such 
as counselors, psychologists, or curriculum specialists. It also does 
not include cafeteria workers, maintenance workers, or bus drivers.
    ``(d) Special rules which apply to restoration to an equivalent 
position apply to all employees of local educational agencies.
``Sec. 825.601 Special rules for school employees, limitations on 
              intermittent leave
    ``(a) Leave taken for a period that ends with the school year and 
begins the next semester is leave taken consecutively rather than 
intermittently. The period during the summer vacation when the employee 
would not have been required to report for duty is not counted against 
the employee's FMLA leave entitlement. An instructional employee who is 
on FMLA leave at the end of the school year must be provided with any 
benefits over the summer vacation that employees would normally receive 
if they had been working at the end of the school year.
            ``(1) If an eligible instructional employee needs 
        intermittent leave or leave on a reduced leave schedule to care 
        for a family member with a serious health condition, to care 
        for a covered servicemember, or for the employee's own serious 
        health condition, which is foreseeable based on planned medical 
        treatment, and the employee would be on leave for more than 20 
        percent of the total number of working days over the period the 
        leave would extend, the employing office may require the 
        employee to choose either to:
                    ``(A) Take leave for a period or periods of a 
                particular duration, not greater than the duration of 
                the planned treatment; or
                    ``(B) Transfer temporarily to an available 
                alternative position for which the employee is 
                qualified, which has equivalent pay and benefits and 
                which better accommodates recurring periods of leave 
                than does the employee's regular position.
            ``(2) These rules apply only to a leave involving more than 
        20 percent of the working days during the period over which the 
        leave extends. For example, if an instructional employee who 
        normally works five days each week needs to take two days of 
        FMLA leave per week over a period of several weeks, the special 
        rules would apply. Employees taking leave which constitutes 20 
        percent or less of the working days during the leave period 
        would not be subject to transfer to an alternative position. 
        Periods of a particular duration means a block, or blocks, of 
        time beginning no earlier than the first day for which leave is 
        needed and ending no later than the last day on which leave is 
        needed, and may include one uninterrupted period of leave.
    ``(b) If an instructional employee does not give required notice of 
foreseeable FMLA leave (See 825.302) to be taken intermittently or on a 
reduced leave schedule, the employing office may require the employee 
to take leave of a particular duration, or to transfer temporarily to 
an alternative position. Alternatively, the employing office may 
require the employee to delay the taking of leave until the notice 
provision is met.
``Sec. 825.602 Special rules for school employees, limitations on leave 
              near the end of an academic term
    ``(a) There are also different rules for instructional employees 
who begin leave more than five weeks before the end of a term, less 
than five weeks before the end of a term, and less than three weeks 
before the end of a term. Regular rules apply except in circumstances 
when:
            ``(1) An instructional employee begins leave more than five 
        weeks before the end of a term. The employing office may 
        require the employee to continue taking leave until the end of 
        the term if--
                    ``(A) The leave will last at least three weeks, and
                    ``(B) The employee would return to work during the 
                three-week period before the end of the term.
            ``(2) The employee begins leave during the five-week period 
        before the end of a term because of the birth of a son or 
        daughter; the placement of a son or daughter for adoption or 
        foster care; to care for a spouse, son, daughter, or parent 
        with a serious health condition; or to care for a covered 
        servicemember. The employing office may require the employee to 
        continue taking leave until the end of the term if--
                    ``(A) The leave will last more than two weeks, and
                    ``(B) The employee would return to work during the 
                two-week period before the end of the term.
            ``(3) The employee begins leave during the three-week 
        period before the end of a term because of the birth of a son 
        or daughter; the placement of a son or daughter for adoption or 
        foster care; to care for a spouse, son, daughter, or parent 
        with a serious health condition; or to care for a covered 
        servicemember. The employing office may require the employee to 
        continue taking leave until the end of the term if the leave 
        will last more than five working days.
    ``(b) For purposes of these provisions, academic term means the 
school semester, which typically ends near the end of the calendar year 
and the end of spring each school year. In no case may a school have 
more than two academic terms or semesters each year for purposes of 
FMLA, as made applicable by the CAA. An example of leave falling within 
these provisions would be where an employee plans two weeks of leave to 
care for a family member which will begin three weeks before the end of 
the term. In that situation, the employing office could require the 
employee to stay out on leave until the end of the term.
``Sec. 825.603 Special rules for school employees, duration of FMLA 
              leave
    ``(a) If an employee chooses to take leave for periods of a 
particular duration in the case of intermittent or reduced schedule 
leave, the entire period of leave taken will count as FMLA leave.
    ``(b) In the case of an employee who is required to take leave 
until the end of an academic term, only the period of leave until the 
employee is ready and able to return to work shall be charged against 
the employee's FMLA leave entitlement. The employing office has the 
option not to require the employee to stay on leave until the end of 
the school term. Therefore, any additional leave required by the 
employing office to the end of the school term is not counted as FMLA 
leave; however, the employing office shall be required to maintain the 
employee's group health insurance and restore the employee to the same 
or equivalent job including other benefits at the conclusion of the 
leave.
``Sec. 825.604 Special rules for school employees, restoration to an 
              equivalent position
    `` The determination of how an employee is to be restored to an 
equivalent position upon return from FMLA leave will be made on the 
basis of `established school board policies and practices, private 
school policies and practices, and collective bargaining agreements.' 
The `established policies' and collective bargaining agreements used as 
a basis for restoration must be in writing, must be made known to the 
employee prior to the taking of FMLA leave, and must clearly explain 
the employee's restoration rights upon return from leave. Any 
established policy which is used as the basis for restoration of an 
employee to an equivalent position must provide substantially the same 
protections as provided in the FMLA, as made applicable by the CAA, for 
reinstated employees. See 825.215. In other words, the policy or 
collective bargaining agreement must provide for restoration to an 
equivalent position with equivalent employment benefits, pay, and other 
terms and conditions of employment. For example, an employee may not be 
restored to a position requiring additional licensure or certification.

  ``Subpart G--Effect of Other Laws, Employing Office Practices, and 
Collective Bargaining Agreements on Employee Rights Under the FMLA, As 
                       Made Applicable By the CAA

``Sec. 825.700 Interaction with employing office's policies
    ``(a) An employing office must observe any employment benefit 
program or plan that provides greater family or medical leave rights to 
employees than the rights established by the FMLA. Conversely, the 
rights established by the FMLA, as made applicable by the CAA, may not 
be diminished by any employment benefit program or plan. For example, a 
provision of a collective bargaining agreement (CBA) which provides for 
reinstatement to a position that is not equivalent because of seniority 
(e.g., provides lesser pay) is superseded by FMLA. If an employing 
office provides greater unpaid family leave rights than are afforded by 
FMLA, the employing office is not required to extend additional rights 
afforded by FMLA, such as maintenance of health benefits (other than 
through COBRA or 5 U.S.C. 8905a, whichever is applicable), to the 
additional leave period not covered by FMLA.
    ``(b) Nothing in the FMLA, as made applicable by the CAA, prevents 
an employing office from amending existing leave and employee benefit 
programs, provided they comply with FMLA, as made applicable by the 
CAA. However, nothing in the FMLA, as made applicable by the CAA, is 
intended to discourage employing offices from adopting or retaining 
more generous leave policies.
``Sec. 825.701 [Reserved]
``Sec. 825.702 Interaction with anti-discrimination laws, as applied by 
              section 201 of the CAA
    ``(a) Nothing in the FMLA modifies or affects any applicable law 
prohibiting discrimination on the basis of race, religion, color, 
national origin, sex, age, or disability (e.g., title VII of the Civil 
Rights Act of 1964, as amended by the Pregnancy Discrimination Act and 
as made applicable by the CAA). FMLA's legislative history explains 
that FMLA is `not intended to modify or affect the Rehabilitation Act 
of 1973, as amended, the regulations concerning employment which have 
been promulgated pursuant to that statute, or the Americans with 
Disabilities Act of 1990 [as amended] or the regulations issued under 
that act. Thus, the leave provisions of the [FMLA] are wholly distinct 
from the reasonable accommodation obligations of employers covered 
under the [ADA] . . . or the Federal government itself. The purpose of 
the FMLA, as applied by the CAA, is to make leave available to eligible 
employees and [employing offices] within its coverage, and not to limit 
already existing rights and protection.' S. Rep. No. 3, 103d Cong., 1st 
Sess. 38 (1993). An employing office must therefore provide leave under 
whichever statutory provision provides the greater rights to employees. 
When an employer violates both FMLA and a discrimination law, an 
employee may be able to recover under either or both statutes (double 
relief may not be awarded for the same loss; when remedies coincide a 
claimant may be allowed to utilize whichever avenue of relief is 
desired. Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 445 (D.C. 
Cir. 1976), cert. denied, 434 U.S. 1086 (1978).
    ``(b) If an employee is a qualified individual with a disability 
within the meaning of the Americans with Disabilities Act (ADA), as 
made applicable by the CAA, the employing office must make reasonable 
accommodations, etc., barring undue hardship, in accordance with the 
ADA. At the same time, the employing office must afford an employee his 
or her FMLA rights, as made applicable by the CAA. ADA's `disability' 
and FMLA's `serious health condition' are different concepts, and must 
be analyzed separately. FMLA entitles eligible employees to 12 weeks of 
leave in any 12-month period due to their own serious health condition, 
whereas the ADA allows an indeterminate amount of leave, barring undue 
hardship, as a reasonable accommodation. FMLA requires employing 
offices to maintain employees' group health plan coverage during FMLA 
leave on the same conditions as coverage would have been provided if 
the employee had been continuously employed during the leave period, 
whereas ADA does not require maintenance of health insurance unless 
other employees receive health insurance during leave under the same 
circumstances.
    ``(c)(1) A reasonable accommodation under the ADA might be 
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employing office did not 
ordinarily provide health insurance for part-time employees. However, 
FMLA would permit an employee to work a reduced leave schedule until 
the equivalent of 12 workweeks of leave were used, with group health 
benefits maintained during this period. FMLA permits an employing 
office to temporarily transfer an employee who is taking leave 
intermittently or on a reduced leave schedule to an alternative 
position, whereas the ADA allows an accommodation of reassignment to an 
equivalent, vacant position only if the employee cannot perform the 
essential functions of the employee's present position and an 
accommodation is not possible in the employee's present position, or an 
accommodation in the employee's present position would cause an undue 
hardship. The examples in the following paragraphs of this section 
demonstrate how the two laws would interact with respect to a qualified 
individual with a disability.
            ``(2) A qualified individual with a disability who is also 
        an eligible employee entitled to FMLA leave requests 10 weeks 
        of medical leave as a reasonable accommodation, which the 
        employing office grants because it is not an undue hardship. 
        The employing office advises the employee that the 10 weeks of 
        leave is also being designated as FMLA leave and will count 
        towards the employee's FMLA leave entitlement. This designation 
        does not prevent the parties from also treating the leave as a 
        reasonable accommodation and reinstating the employee into the 
        same job, as required by the ADA, rather than an equivalent 
        position under FMLA, if that is the greater right available to 
        the employee. At the same time, the employee would be entitled 
        under FMLA to have the employing office maintain group health 
        plan coverage during the leave, as that requirement provides 
        the greater right to the employee.
            ``(3) If the same employee needed to work part-time (a 
        reduced leave schedule) after returning to his or her same job, 
        the employee would still be entitled under FMLA to have group 
        health plan coverage maintained for the remainder of the two-
        week equivalent of FMLA leave entitlement, notwithstanding an 
        employing office policy that part-time employees do not receive 
        health insurance. This employee would be entitled under the ADA 
        to reasonable accommodations to enable the employee to perform 
        the essential functions of the part-time position. In addition, 
        because the employee is working a part-time schedule as a 
        reasonable accommodation, the FMLA's provision for temporary 
        assignment to a different alternative position would not apply. 
        Once the employee has exhausted his or her remaining FMLA leave 
        entitlement while working the reduced (part-time) schedule, if 
        the employee is a qualified individual with a disability, and 
        if the employee is unable to return to the same full-time 
        position at that time, the employee might continue to work 
        part-time as a reasonable accommodation, barring undue 
        hardship; the employee would then be entitled to only those 
        employment benefits ordinarily provided by the employing office 
        to part-time employees.
            ``(4) At the end of the FMLA leave entitlement, an 
        employing office is required under FMLA to reinstate the 
        employee in the same or an equivalent position, with equivalent 
        pay and benefits, to that which the employee held when leave 
        commenced. The employing office's FMLA obligations would be 
        satisfied if the employing office offered the employee an 
        equivalent full-time position. If the employee were unable to 
        perform the essential functions of that equivalent position 
        even with reasonable accommodation, because of a disability, 
        the ADA may require the employing office to make a reasonable 
        accommodation at that time by allowing the employee to work 
        part-time or by reassigning the employee to a vacant position, 
        barring undue hardship.
    ``(d)(1) If FMLA entitles an employee to leave, an employing office 
may not, in lieu of FMLA leave entitlement, require an employee to take 
a job with a reasonable accommodation. However, ADA may require that an 
employing office offer an employee the opportunity to take such a 
position. An employing office may not change the essential functions of 
the job in order to deny FMLA leave. See 825.220(b).
            ``(2) An employee may be on a workers' compensation absence 
        due to an on-the-job injury or illness which also qualifies as 
        a serious health condition under FMLA. The workers' 
        compensation absence and FMLA leave may run concurrently 
        (subject to proper notice and designation by the employing 
        office). At some point the health care provider providing 
        medical care pursuant to the workers' compensation injury may 
        certify the employee is able to return to work in a light duty 
        position. If the employing office offers such a position, the 
        employee is permitted but not required to accept the position. 
        See 825.220(d). As a result, the employee may no longer qualify 
        for payments from the workers' compensation benefit plan, but 
        the employee is entitled to continue on unpaid FMLA leave 
        either until the employee is able to return to the same or 
        equivalent job the employee left or until the 12-week FMLA 
        leave entitlement is exhausted. See 825.207(e). If the employee 
        returning from the workers' compensation injury is a qualified 
        individual with a disability, he or she will have rights under 
        the ADA, as made applicable by the CAA.
    ``(e) If an employing office requires certifications of an 
employee's fitness for duty to return to work, as permitted by FMLA 
under a uniform policy, it must comply with the ADA requirement that a 
fitness for duty physical be job-related and consistent with business 
necessity.
    ``(f) Under Title VII of the Civil Rights Act of 1964, as amended 
by the Pregnancy Discrimination Act, and as made applicable by the CAA, 
an employing office should provide the same benefits for women who are 
pregnant as the employing office provides to other employees with 
short-term disabilities. Because Title VII does not require employees 
to be employed for a certain period of time to be protected, an 
employee employed for less than 12 months by the employing office may 
not be denied maternity leave if the employing office normally provides 
short-term disability benefits to employees with the same tenure who 
are experiencing other short-term disabilities.
    ``(g) Under the Uniformed Services Employment and Reemployment 
Rights Act of 1994 (USERRA), 38 U.S.C. 4301, et seq., veterans are 
entitled to receive all rights and benefits of employment that they 
would have obtained if they had been continuously employed. Therefore, 
under USERRA, a returning servicemember would be eligible for FMLA 
leave if the months and hours that he or she would have worked for the 
civilian employing office during the period of absence due to or 
necessitated by USERRA-covered service, combined with the months 
employed and the hours actually worked, meet the FMLA eligibility 
threshold of 12 months of employment and the hours of service 
requirement. See 825.110(b)(2)(i) and (c)(2) and 825.802(c).
    ``(h) For further information on Federal antidiscrimination laws 
applied by section 201 of the CAA (2 U.S.C. 1311), including Title VII, 
the Rehabilitation Act, and the ADA, individuals are encouraged to 
contact the Office of Congressional Workplace Rights.

                       ``Subpart H--[Reserved]''.

SEC. 2. APPROVAL OF REGULATIONS RELATING TO FAIR LABOR STANDARDS ACT.

    (a) In General.--The regulations described in subsection (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 described in this 
subsection are the regulations issued by the Office of Congressional 
Workplace Rights on September 28, 2022, under section 203(c)(2) of the 
Congressional Accountability Act of 1995 to implement section 203 of 
such Act (relating to the application of overtime requirements under 
the Fair Labor Standards Act of 1938), as published in the 
Congressional Record on September 28, 2022 (Volume 168, daily edition) 
on pages H8203 through H8217, and stated as follows:

   ``PART 541--DEFINING AND DELIMITING THE EXEMPTIONS FOR EXECUTIVE, 
    ADMINISTRATIVE, PROFESSIONAL, AND COMPUTER [AND OUTSIDE SALES] 
                               EMPLOYEES

        ``Subpart A--General Regulations (Sec. Sec. 541.0-541.4)

``Sec. 541.0 Introductory statement
    ``(a) Section 13(a)(1) of the Fair Labor Standards Act, as amended, 
provides an exemption from the Act's minimum wage and overtime 
requirements for any employee employed in a bona fide executive, 
administrative, or professional capacity (including any employee 
employed in the capacity of academic administrative personnel or 
teacher in elementary or secondary schools)[, or in the capacity of an 
outside sales employee, as such terms are defined and delimited from 
time to time by regulations of the Secretary, subject to the provisions 
of the Administrative Procedure Act.]<< and applies to covered 
employees by virtue of section 225(e)(1) of the CAA, as amended, 2 
U.S.C. 1361(e)(1).>> Section 13(a)(17) of the Act provides an exemption 
from the minimum wage and overtime requirements for computer systems 
analysts, computer programmers, software engineers, and other similarly 
skilled computer employees << and applies to covered employees by 
virtue of section 225(e)(1) of the CAA, as amended, 2 U.S.C. 
1361(e)(1)>>.
    ``(b) The requirements for these exemptions are contained in this 
part as follows: executive employees, subpart B; administrative 
employees, subpart C; professional employees, subpart D; computer 
employees, subpart E[; outside sales employees, subpart F]. Subpart G 
contains regulations regarding salary requirements applicable to most 
of the exemptions, including salary levels and the salary basis test. 
Subpart G also contains a provision for exempting certain highly 
compensated employees. Subpart H contains definitions and other 
miscellaneous provisions applicable to all or several of the 
exemptions.
    ``(c) Effective July 1, 1972, the Fair Labor Standards Act was 
amended to include within the protection of the equal pay provisions 
those employees exempt from the minimum wage and overtime pay 
provisions as bona fide executive, administrative, and professional 
employees (including any employee employed in the capacity of academic 
administrative personnel or teacher in elementary or secondary 
schools)[, or in the capacity of an outside sales employee under 
section 13(a)(1) of the Act]. The equal pay provisions in section 6(d) 
of the Fair Labor Standards Act are administered and enforced by the 
[United States Equal Employment Opportunity Commission]<<Office of 
Congressional Workplace Rights>>.
``Sec. 541.1 Terms used in regulations
    ``Act means the Fair Labor Standards Act of 1938, as amended. 
[Administrator means the Administrator of the Wage and Hour Division, 
United States Department of Labor. The Secretary of Labor has delegated 
to the Administrator the functions vested in the Secretary under 
sections 13(a)(1) and 13(a)(17) of the Fair Labor Standards Act.] <<CAA 
means Congressional Accountability Act of 1995, as amended. Office 
means the Office of Congressional Workplace Rights. Employee means a 
`covered employee' as defined in section 101(a)(3) through (a)(8) of 
the CAA, 2 U.S.C. 1301(a)(3) through (a)(8), but not an `intern' as 
defined in section 203(a)(2) of the CAA, 2 U.S.C. 1313(a)(2). Employer, 
company, business, or enterprise each mean an `employing office' as 
defined in section 101(a)(9) of the CAA, 2 U.S.C. 1301(a)(9).>>
``Sec. 541.2 Job titles insufficient
    ``A job title alone is insufficient to establish the exempt status 
of an employee. The exempt or nonexempt status of any particular 
employee must be determined on the basis of whether the employee's 
salary and duties meet the requirements of the regulations in this 
part.
``Sec. 541.3 Scope of the section 13(a)(1) exemptions
    ``(a) The section 13(a)(1) exemptions and the regulations in this 
part do not apply to manual laborers or other `blue collar' workers who 
perform work involving repetitive operations with their hands, physical 
skill and energy. Such nonexempt `blue collar' employees gain the 
skills and knowledge required for performance of their routine manual 
and physical work through apprenticeships and on-the-job training, not 
through the prolonged course of specialized intellectual instruction 
required for exempt learned professional employees such as medical 
doctors, architects and archeologists. Thus, for example, non-
management production-line employees and non-management employees in 
maintenance, construction and similar occupations such as carpenters, 
electricians, mechanics, plumbers, iron workers, craftsmen, operating 
engineers, longshoremen, construction workers and laborers are entitled 
to minimum wage and overtime premium pay under the Fair Labor Standards 
Act, and are not exempt under the regulations in this part no matter 
how highly paid they might be.
    ``(b)(1) The section 13(a)(1) exemptions and the regulations in 
this part also do not apply to police officers, detectives, [deputy 
sheriffs, state troopers, highway patrol officers,] investigators, 
inspectors, [correctional officers, parole or probation officers,] park 
rangers, fire fighters, paramedics, emergency medical technicians, 
ambulance personnel, rescue workers, hazardous materials workers and 
similar employees, regardless of rank or pay level, who perform work 
such as preventing, controlling or extinguishing fires of any type; 
rescuing fire, crime or accident victims; preventing or detecting 
crimes; conducting investigations or inspections for violations of law; 
performing surveillance; pursuing, restraining and apprehending 
suspects; detaining or supervising suspected and convicted criminals, 
including those on probation or parole; interviewing witnesses; 
interrogating and fingerprinting suspects; preparing investigative 
reports; or other similar work.
    ``(2) Such employees do not qualify as exempt executive employees 
because their primary duty is not management of the [enterprise] 
<<employing office>> in which the employee is employed or a customarily 
recognized department or subdivision thereof as required under 
Sec. 541.100. Thus, for example, a police officer or fire fighter whose 
primary duty is to investigate crimes or fight fires is not exempt 
under section 13(a)(1) of the Act merely because the police officer or 
fire fighter also directs the work of other employees in the conduct of 
an investigation or fighting a fire.
    ``(3) Such employees do not qualify as exempt administrative 
employees because their primary duty is not the performance of work 
directly related to the management or general business operations of 
the employer or the employer's customers<<, constituents or 
stakeholders>> as required under Sec. 541.200.
    ``(4) Such employees do not qualify as exempt professionals because 
their primary duty is not the performance of work requiring knowledge 
of an advanced type in a field of science or learning customarily 
acquired by a prolonged course of specialized intellectual instruction 
or the performance of work requiring invention, imagination, 
originality or talent in a recognized field of artistic or creative 
endeavor as required under Sec. 541.300. Although some police officers, 
fire fighters, paramedics, emergency medical technicians and similar 
employees have college degrees, a specialized academic degree is not a 
standard prerequisite for employment in such occupations.
``Sec. 541.4 Other laws and collective bargaining agreements
    ``The Fair Labor Standards Act provides minimum standards that may 
be exceeded, but cannot be waived or reduced. Employers must comply, 
for example, with any Federal[, State or municipal] laws, regulations 
or ordinances establishing a higher minimum wage or lower maximum 
workweek than those established under the Act. Similarly, employers, on 
their own initiative or under a collective bargaining agreement with a 
labor union, are not precluded by the Act from providing a wage higher 
than the statutory minimum, a shorter workweek than the statutory 
maximum, or a higher overtime premium (double time, for example) than 
provided by the Act. While collective bargaining agreements cannot 
waive or reduce the Act's protections, nothing in the Act or the 
regulations in this part relieves employers from their contractual 
obligations under collective bargaining agreements.

      ``Subpart B--Executive Employees (Sec. Sec. 541.100-541.106)

``Sec. 541.100 General rule for executive employees
    ``(a) The term `employee employed in a bona fide executive 
capacity' in section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary basis pursuant to 
        Sec. 541.600 at a rate of not less than $684 per week [(or $455 
        per week if employed in the Commonwealth of the Northern 
        Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands 
        by employers other than the Federal government, or $380 per 
        week if employed in American Samoa by employers other than the 
        Federal government)], exclusive of board, lodging or other 
        facilities;
            ``(2) Whose primary duty is management of the [enterprise] 
        <<employing office>> in which the employee is employed or of a 
        customarily recognized department or subdivision thereof;
            ``(3) Who customarily and regularly directs the work of two 
        or more other employees; and
            ``(4) Who has the authority to hire or fire other employees 
        or whose suggestions and recommendations as to the hiring, 
        firing, advancement, promotion or any other change of status of 
        other employees are given particular weight.
    ``(b) The phrase `salary basis' is defined at Sec. 541.602; `board, 
lodging or other facilities' is defined at Sec. 541.606; `primary duty' 
is defined at Sec. 541.700; and `customarily and regularly' is defined 
at Sec. 541.701.
[``Sec. 541.101 Business owner
    ``The term `employee employed in a bona fide executive capacity' in 
section 13(a)(1) of the Act also includes any employee who owns at 
least a bona fide 20-percent equity interest in the enterprise in which 
the employee is employed, regardless of whether the business is a 
corporate or other type of organization, and who is actively engaged in 
its management. The term `management' is defined in Sec. 541.102. The 
requirements of Subpart G (salary requirements) of this part do not 
apply to the business owners described in this section.]
``Sec. 541.102 Management
    ``Generally, `management' includes, but is not limited to, 
activities such as interviewing, selecting, and training of employees; 
setting and adjusting their rates of pay and hours of work; directing 
the work of employees; maintaining production or sales records for use 
in supervision or control; appraising employees' productivity and 
efficiency for the purpose of recommending promotions or other changes 
in status; handling employee complaints and grievances; disciplining 
employees; planning the work; determining the techniques to be used; 
apportioning the work among the employees; determining the type of 
materials, supplies, machinery, equipment or tools to be used or 
merchandise to be bought, stocked and sold; controlling the flow and 
distribution of materials or merchandise and supplies; providing for 
the safety and security of the employees or the property; planning and 
controlling the budget; and monitoring or implementing legal compliance 
measures.
``Sec. 541.103 Department or subdivision
    ``(a) The phrase `a customarily recognized department or 
subdivision' is intended to distinguish between a mere collection of 
employees assigned from time to time to a specific job or series of 
jobs and a unit with permanent status and function. A customarily 
recognized department or subdivision must have a permanent status and a 
continuing function. For example, a large employer's human resources 
department might have subdivisions for labor relations, pensions and 
other benefits, equal employment opportunity, and personnel management, 
each of which has a permanent status and function.
    ``(b) When an [enterprise] <<employing office>> has more than one 
[establishment] <<location>>, the employee in charge of each 
[establishment] <<location>> may be considered in charge of a 
recognized subdivision of the [enterprise] <<employing office>>.
    ``(c) A recognized department or subdivision need not be physically 
within the employer's establishment and may move from place to place. 
The mere fact that the employee works in more than one location does 
not invalidate the exemption if other factors show that the employee is 
actually in charge of a recognized unit with a continuing function in 
the organization.
    ``(d) Continuity of the same subordinate personnel is not essential 
to the existence of a recognized unit with a continuing function. An 
otherwise exempt employee will not lose the exemption merely because 
the employee draws and supervises workers from a pool or supervises a 
team of workers drawn from other recognized units, if other factors are 
present that indicate that the employee is in charge of a recognized 
unit with a continuing function.
``Sec. 541.104 Two or more other employees
    ``(a) To qualify as an exempt executive under Sec. 541.100, the 
employee must customarily and regularly direct the work of two or more 
other employees. The phrase `two or more other employees' means two 
full-time employees or their equivalent. One full-time and two half-
time employees, for example, are equivalent to two full-time employees. 
Four half-time employees are also equivalent.
    ``(b) The supervision can be distributed among two, three or more 
employees, but each such employee must customarily and regularly direct 
the work of two or more other full-time employees or the equivalent. 
Thus, for example, a department with five full-time nonexempt workers 
may have up to two exempt supervisors if each such supervisor 
customarily and regularly directs the work of two of those workers.
    ``(c) An employee who merely assists the manager of a particular 
department and supervises two or more employees only in the actual 
manager's absence does not meet this requirement.
    ``(d) Hours worked by an employee cannot be credited more than once 
for different executives. Thus, a shared responsibility for the 
supervision of the same two employees in the same department does not 
satisfy this requirement. However, a full-time employee who works four 
hours for one supervisor and four hours for a different supervisor, for 
example, can be credited as a half-time employee for both supervisors.
``Sec. 541.105 Particular weight
    ``To determine whether an employee's suggestions and 
recommendations are given `particular weight,' factors to be considered 
include, but are not limited to, whether it is part of the employee's 
job duties to make such suggestions and recommendations; the frequency 
with which such suggestions and recommendations are made or requested; 
and the frequency with which the employee's suggestions and 
recommendations are relied upon. Generally, an executive's suggestions 
and recommendations must pertain to employees whom the executive 
customarily and regularly directs. It does not include an occasional 
suggestion with regard to the change in status of a co-worker. An 
employee's suggestions and recommendations may still be deemed to have 
`particular weight' even if a higher level manager's recommendation has 
more importance and even if the employee does not have authority to 
make the ultimate decision as to the employee's change in status.
``Sec. 541.106 Concurrent duties
    ``(a) Concurrent performance of exempt and nonexempt work does not 
disqualify an employee from the executive exemption if the requirements 
of Sec. 541.100 are otherwise met. Whether an employee meets the 
requirements of Sec. 541.100 when the employee performs concurrent 
duties is determined on a case-by-case basis and based on the factors 
set forth in Sec. 541.700. Generally, exempt executives make the 
decision regarding when to perform nonexempt duties and remain 
responsible for the success or failure of business operations under 
their management while performing the nonexempt work. In contrast, the 
nonexempt employee generally is directed by a supervisor to perform the 
exempt work or performs the exempt work for defined time periods. An 
employee whose primary duty is ordinary production work or routine, 
recurrent or repetitive tasks cannot qualify for exemption as an 
executive.
    ``(b) For example, an assistant manager in a retail establishment 
may perform work such as serving customers, cooking food, stocking 
shelves and cleaning the establishment, but performance of such 
nonexempt work does not preclude the exemption if the assistant 
manager's primary duty is management. An assistant manager can 
supervise employees and serve customers at the same time without losing 
the exemption. An exempt employee can also simultaneously direct the 
work of other employees and stock shelves.
    ``(c) In contrast, a relief supervisor or working supervisor whose 
primary duty is performing nonexempt work on the production line in a 
manufacturing plant does not become exempt merely because the nonexempt 
production line employee occasionally has some responsibility for 
directing the work of other nonexempt production line employees when, 
for example, the exempt supervisor is unavailable. Similarly, an 
employee whose primary duty is to work as an electrician is not an 
exempt executive even if the employee also directs the work of other 
employees on the job site, orders parts and materials for the job, and 
handles requests from the prime contractor.

   ``Subpart C--Administrative Employees (Sec. Sec. 541.200-541.204)

``Sec. 541.200 General rule for administrative employees
    ``(a) The term `employee employed in a bona fide administrative 
capacity' in section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary or fee basis pursuant to 
        Sec. 541.600 at a rate of not less than $684 per week [(or $455 
        per week if employed in the Commonwealth of the Northern 
        Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands 
        by employers other than the Federal government, or $380 per 
        week if employed in American Samoa by employers other than the 
        Federal government)], exclusive of board, lodging or other 
        facilities;
            ``(2) Whose primary duty is the performance of office or 
        non-manual work directly related to the management or general 
        business operations of the employer or the employer's 
        customers<<, constituents or stakeholders>>; and
            ``(3) Whose primary duty includes the exercise of 
        discretion and independent judgment with respect to matters of 
        significance.
    ``(b) The term `salary basis' is defined at Sec. 541.602; `fee 
basis' is defined at Sec. 541.605; `board, lodging or other facilities' 
is defined at Sec. 541.606; and `primary duty' is defined at 
Sec. 541.700.
``Sec. 541.201 Directly related to management or general business 
              operations
    ``(a) To qualify for the administrative exemption, an employee's 
primary duty must be the performance of work directly related to the 
management or general business operations of the employer or the 
employer's customers<<, constituents or stakeholders>>. The phrase 
`directly related to the management or general business operations' 
refers to the type of work performed by the employee. To meet this 
requirement, an employee must perform work directly related to 
assisting with the running or servicing of the [business] <<employing 
office>>, as distinguished, for example, from working on a 
manufacturing production line or selling a product in a retail or 
service establishment.
    ``(b) Work directly related to management or general business 
operations includes, but is not limited to, work in functional areas 
such as tax; finance; accounting; budgeting; auditing; insurance; 
quality control; purchasing; procurement; advertising; marketing; 
research; safety and health; personnel management; human resources; 
employee benefits; labor relations; public relations, government 
relations; computer network, internet and database administration; 
legal and regulatory compliance; and similar activities. Some of these 
activities may be performed by employees who also would qualify for 
another exemption.
    ``(c) An employee may qualify for the administrative exemption if 
the employee's primary duty is the performance of work directly related 
to the management or general business operations of the employer's 
customers<<, constituents and/or stakeholders>>. Thus, for example, 
employees acting as advisers or consultants to their employer's 
[clients or] customer<<, constituents or stakeholders>> (as tax experts 
or financial consultants, for example) may be exempt.
``Sec. 541.202 Discretion and independent judgment
    ``(a) To qualify for the administrative exemption, an employee's 
primary duty must include the exercise of discretion and independent 
judgment with respect to matters of significance. In general, the 
exercise of discretion and independent judgment involves the comparison 
and the evaluation of possible courses of conduct, and acting or making 
a decision after the various possibilities have been considered. The 
term `matters of significance' refers to the level of importance or 
consequence of the work performed.
    ``(b) The phrase `discretion and independent judgment' must be 
applied in the light of all the facts involved in the particular 
employment situation in which the question arises. Factors to consider 
when determining whether an employee exercises discretion and 
independent judgment with respect to matters of significance include, 
but are not limited to: whether the employee has authority to 
formulate, affect, interpret, or implement management policies or 
operating practices; whether the employee carries out major assignments 
in conducting the operations of the [business] <<employing office>>; 
whether the employee performs work that affects business operations 
<<of the employing office>>to a substantial degree, even if the 
employee's assignments are related to operation of a particular segment 
of the [business] <<employing office>>; whether the employee has 
authority to commit the employer in matters that have significant 
financial impact; whether the employee has authority to waive or 
deviate from established policies and procedures without prior 
approval; whether the employee has authority to negotiate and bind the 
[company]<<employing office>> on significant matters; whether the 
employee provides consultation or expert advice to management; whether 
the employee is involved in planning longer short-term [business] 
<<employing office>> objectives; whether the employee investigates and 
resolves matters of significance on behalf of management; and whether 
the employee represents the [company]<<employing office>> in handling 
complaints, arbitrating disputes or resolving grievances.
    ``(c) The exercise of discretion and independent judgment implies 
that the employee has authority to make an independent choice, free 
from immediate direction or supervision. However, employees can 
exercise discretion and independent judgment even if their decisions or 
recommendations are reviewed at a higher level. Thus, the term 
`discretion and independent judgment' does not require that the 
decisions made by an employee have a finality that goes with unlimited 
authority and a complete absence of review. The decisions made as a 
result of the exercise of discretion and independent judgment may 
consist of recommendations for action rather than the actual taking of 
action. The fact that an employee's decision may be subject to review 
and that upon occasion the decisions are revised or reversed after 
review does not mean that the employee is not exercising discretion and 
independent judgment. For example, the policies formulated by the 
[credit] manager of a<<n>> [large corporation]<<employing office>> may 
be subject to review by higher [company]<<employing office>> officials 
who may approve or disapprove these policies. The [management 
consultant] <<department director>> who has made a study of the 
operations of a [business] <<department>> and who has drawn a proposed 
change in organization may have the plan reviewed or revised by 
superiors before it is [submitted to the client]<<approved>>.
    ``(d) An employer's volume of [business] <<work>> may make it 
necessary to employ a number of employees to perform the same or 
similar work. The fact that many employees perform identical work or 
work of the same relative importance does not mean that the work of 
each such employee does not involve the exercise of discretion and 
independent judgment with respect to matters of significance.
    ``(e) The exercise of discretion and independent judgment must be 
more than the use of skill in applying well-established techniques, 
procedures or specific standards described in manuals or other sources. 
See also Sec. 541.704 regarding use of manuals. The exercise of 
discretion and independent judgment also does not include clerical or 
secretarial work, recording or tabulating data, or performing other 
mechanical, repetitive, recurrent or routine work. An employee who 
simply tabulates data is not exempt, even if labeled as a 
`statistician.'
    ``(f) An employee does not exercise discretion and independent 
judgment with respect to matters of significance merely because the 
employer will experience financial losses if the employee fails to 
perform the job properly. For example, a messenger who is entrusted 
with carrying large sums of money does not exercise discretion and 
independent judgment with respect to matters of significance even 
though serious consequences may flow from the employee's neglect. 
Similarly, an employee who operates very expensive equipment does not 
exercise discretion and independent judgment with respect to matters of 
significance merely because improper performance of the employee's 
duties may cause serious financial loss to the employer.
``Sec. 541.203 Administrative exemption examples
    ``(a) [Insurance claims adjusters]<<Employees who investigate 
claims>> generally meet the duties requirements for the administrative 
exemption[, whether they work for an insurance company or other type of 
company,] if their duties include activities such as interviewing 
[insureds,] witnesses [and physicians]; inspecting property damage; 
reviewing factual information to prepare damage estimates; evaluating 
and making recommendations regarding coverage of claims; determining 
liability and total value of a claim; negotiating settlements; and 
making recommendations regarding litigation.
    ``(b) Employees in [the] financial services [industry] generally 
meet the duties requirements for the administrative exemption if their 
duties include work such as collecting and analyzing information 
regarding the customer's income, assets, investments or debts; 
determining which financial products best meet the customer's needs and 
financial circumstances; advising the customer regarding the advantages 
and disadvantages of different financial products; and marketing, 
servicing or promoting the employer's financial products. However, an 
employee whose primary duty is selling financial products does not 
qualify for the administrative exemption.
    ``(c) An employee who leads a team of other employees assigned to 
complete major projects for the employer (such as [purchasing, selling 
or closing all or part of the business,] negotiating a real estate 
transaction or a collective bargaining agreement, or designing and 
implementing productivity improvements) generally meets the duties 
requirements for the administrative exemption, even if the employee 
does not have direct supervisory responsibility over the other 
employees on the team.
    ``(d) An executive assistant or administrative assistant to a 
[business owner or senior executive of a large business]<<senior 
management official of an employing office>> generally meets the duties 
requirements for the administrative exemption if such employee, without 
specific instructions or prescribed procedures, has been delegated 
authority regarding matters of significance.
    ``(e) Human resources managers who formulate, interpret or 
implement employment policies and management consultants who study the 
operations of a [business] <<employing office>> and propose changes in 
organization generally meet the duties requirements for the 
administrative exemption. However, personnel clerks who `screen' 
applicants to obtain data regarding their minimum qualifications and 
fitness for employment generally do not meet the duties requirements 
for the administrative exemption. Such personnel clerks typically will 
reject all applicants who do not meet minimum standards for the 
particular job or for employment by the [company] <<employing office>>. 
The minimum standards are usually set by the exempt human resources 
manager or other [company] <<employing office>> officials, and the 
decision to hire from the group of qualified applicants who do meet the 
minimum standards is similarly made by the exempt human resources 
manager or other [company] <<employing office>> officials. Thus, when 
the interviewing and screening functions are performed by the human 
resources manager or personnel manager who makes the hiring decision or 
makes recommendations for hiring from the pool of qualified applicants, 
such duties constitute exempt work, even though routine, because this 
work is directly and closely related to the employee's exempt 
functions.
    ``(f) Purchasing agents with authority to bind the [company] 
<<employing office>> on significant purchases generally meet the duties 
requirements for the administrative exemption even if they must consult 
with top management officials when making a purchase commitment for 
[raw] materials in excess of the contemplated [plant] needs.
    ``(g) Ordinary inspection work generally does not meet the duties 
requirements for the administrative exemption. Inspectors normally 
perform specialized work along standardized lines involving well-
established techniques and procedures which may have been catalogued 
and described in manuals or other sources. Such inspectors rely on 
techniques and skills acquired by special training or experience. They 
have some leeway in the performance of their work but only within 
closely prescribed limits.
    ``(h) Employees usually called examiners or graders, such as 
employees that grade lumber, generally do not meet the duties 
requirements for the administrative exemption. Such employees usually 
perform work involving the comparison of products with established 
standards which are frequently catalogued. Often, after continued 
reference to the written standards, or through experience, the employee 
acquires sufficient knowledge so that reference to written standards is 
unnecessary. The substitution of the employee's memory for a manual of 
standards does not convert the character of the work performed to 
exempt work requiring the exercise of discretion and independent 
judgment.
    ``(i) [Comparison shopping performed by an employee of a retail 
store who merely reports to the buyer the prices at a competitor's 
store does not qualify for the administrative exemption. However, the 
buyer who evaluates such reports on competitor prices to set the 
employer's prices generally meets the duties requirements for the 
administrative exemption.]<<Reserved.>>
    ``(j) [Public sector i]<<I>>nspectors or investigators of various 
types, such as fire prevention or safety, building or construction, 
health or sanitation, environmental or soils specialists and similar 
employees, generally do not meet the duties requirements for the 
administrative exemption because their work typically does not involve 
work directly related to the management or general business operations 
of the employer. Such employees also do not qualify for the 
administrative exemption because their work involves the use of skills 
and technical abilities in gathering factual information, applying 
known standards or prescribed procedures, determining which procedure 
to follow, or determining whether prescribed standards or criteria are 
met.
``Sec. 541.204 Educational establishments
    ``(a) The term `employee employed in a bona fide administrative 
capacity' in section 13(a)(1) of the Act also includes employees:
            ``(1) Compensated on a salary or fee basis at a rate of not 
        less than $684 per week [(or $455 per week if employed in the 
        Commonwealth of the Northern Mariana Islands, Guam, Puerto 
        Rico, or the U.S. Virgin Islands by employers other than the 
        Federal government, or $380 per week if employed in American 
        Samoa by employers other than the Federal government)], 
        exclusive of board, lodging, or other facilities; or on a 
        salary basis which is at least equal to the entrance salary for 
        teachers in the educational establishment by which employed; 
        and
            ``(2) Whose primary duty is performing administrative 
        functions directly related to academic instruction or training 
        in an educational establishment or department or subdivision 
        thereof.
    ``(b) The term `educational establishment' means an elementary or 
secondary school system, an institution of higher education or other 
educational institution. Sections 3(v) and 3(w) of the Act define 
elementary and secondary schools as those day or residential schools 
that provide elementary or secondary education, as determined under 
State law. Under the laws of most States, such education includes the 
curriculums in grades 1 through 12; under many it includes also the 
introductory programs in kindergarten. Such education in some States 
may also include nursery school programs in elementary education and 
junior college curriculums in secondary education. The term `other 
educational establishment' includes special schools for mentally or 
physically disabled or gifted children, regardless of any 
classification of such schools as elementary, secondary or higher. 
Factors relevant in determining whether post-secondary career programs 
are educational institutions include whether the school is licensed by 
a state agency responsible for the state's educational system or 
accredited by a nationally recognized accrediting organization for 
career schools. Also, for purposes of the exemption, no distinction is 
drawn between public and private schools, or between those operated for 
profit and those that are not for profit.
    ``(c) The phrase `performing administrative functions directly 
related to academic instruction or training' means work related to the 
academic operations and functions in a school rather than to 
administration along the lines of general business operations. Such 
academic administrative functions include operations directly in the 
field of education. Jobs relating to areas outside the educational 
field are not within the definition of academic administration.
            ``(1) Employees engaged in academic administrative 
        functions include: the superintendent or other head of an 
        elementary or secondary school system, and any assistants, 
        responsible for administration of such matters as curriculum, 
        quality and methods of instructing, measuring and testing the 
        learning potential and achievement of students, establishing 
        and maintaining academic and grading standards, and other 
        aspects of the teaching program; the principal and any vice-
        principals responsible for the operation of an elementary or 
        secondary school; department heads in institutions of higher 
        education responsible for the administration of the mathematics 
        department, the English department, the foreign language 
        department, etc.; academic counselors who perform work such as 
        administering school testing programs, assisting students with 
        academic problems and advising students concerning degree 
        requirements; and other employees with similar 
        responsibilities.
            ``(2) Jobs relating to building management and maintenance, 
        jobs relating to the health of the students, and academic staff 
        such as social workers, psychologists, lunch room managers or 
        dietitians do not perform academic administrative functions. 
        Although such work is not considered academic administration, 
        such employees may qualify for exemption under Sec. 541.200 or 
        under other sections of this part, provided the requirements 
        for such exemptions are met.

    ``Subpart D--Professional Employees (Sec. Sec. 541.300-541.304)

``Sec. 541.300 General rule for professional employees
    ``(a) The term `employee employed in a bona fide professional 
capacity' in section 13(a)(1) of the Act shall mean any employee:
            ``(1) Compensated on a salary or fee basis pursuant to 
        Sec. 541.600 at a rate of not less than $684 per week [(or $455 
        per week if employed in the Commonwealth of the Northern 
        Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands 
        by employers other than the Federal government, or $380 per 
        week if employed in American Samoa by employers other than the 
        Federal government)], exclusive of board, lodging or other 
        facilities; and
            ``(2) Whose primary duty is the performance of work:
                    ``(i) Requiring knowledge of an advanced type in a 
                field of science or learning customarily acquired by a 
                prolonged course of specialized intellectual 
                instruction; or
                    ``(ii) Requiring invention, imagination, 
                originality or talent in a recognized field of artistic 
                or creative endeavor.
    ``(b) The term `salary basis' is defined at Sec. 541.602; `fee 
basis' is defined at Sec. 541.605; `board, lodging or other facilities' 
is defined at Sec. 541.606; and `primary duty' is defined at 
Sec. 541.700.
``Sec. 541.301 Learned professionals
    ``(a) To qualify for the learned professional exemption, an 
employee's primary duty must be the performance of work requiring 
advanced knowledge in a field of science or learning customarily 
acquired by a prolonged course of specialized intellectual instruction. 
This primary duty test includes three elements:
            ``(1) The employee must perform work requiring advanced 
        knowledge;
            ``(2) The advanced knowledge must be in a field of science 
        or learning; and
            ``(3) The advanced knowledge must be customarily acquired 
        by a prolonged course of specialized intellectual instruction.
    ``(b) The phrase `work requiring advanced knowledge' means work 
which is predominantly intellectual in character, and which includes 
work requiring the consistent exercise of discretion and judgment, as 
distinguished from performance of routine mental, manual, mechanical or 
physical work. An employee who performs work requiring advanced 
knowledge generally uses the advanced knowledge to analyze, interpret 
or make deductions from varying facts or circumstances. Advanced 
knowledge cannot be attained at the high school level.
    ``(c) The phrase `field of science or learning' includes the 
traditional professions of law, medicine, theology, accounting, 
actuarial computation, engineering, architecture, teaching, various 
types of physical, chemical and biological sciences, pharmacy and other 
similar occupations that have a recognized professional status as 
distinguished from the mechanical arts or skilled trades where in some 
instances the knowledge is of a fairly advanced type, but is not in a 
field of science or learning.
    ``(d) The phrase `customarily acquired by a prolonged course of 
specialized intellectual instruction' restricts the exemption to 
professions where specialized academic training is a standard 
prerequisite for entrance into the profession. The best prima facie 
evidence that an employee meets this requirement is possession of the 
appropriate academic degree. However, the word `customarily' means that 
the exemption is also available to employees in such professions who 
have substantially the same knowledge level and perform substantially 
the same work as the degreed employees, but who attained the advanced 
knowledge through a combination of work experience and intellectual 
instruction. Thus, for example, the learned professional exemption is 
available to the occasional lawyer who has not gone to law school, or 
the occasional chemist who is not the possessor of a degree in 
chemistry. However, the learned professional exemption is not available 
for occupations that customarily may be performed with only the general 
knowledge acquired by an academic degree in any field, with knowledge 
acquired through an apprenticeship, or with training in the performance 
of routine mental, manual, mechanical or physical processes. The 
learned professional exemption also does not apply to occupations in 
which most employees have acquired their skill by experience rather 
than by advanced specialized intellectual instruction.
    ``(e)(1) Registered or certified medical technologists. Registered 
or certified medical technologists who have successfully completed 
three academic years of pre-professional study in an accredited college 
or university plus a fourth year of professional course work in a 
school of medical technology approved by the Council of Medical 
Education of the American Medical Association generally meet the duties 
requirements for the learned professional exemption.
    ``(2) Nurses. Registered nurses who are registered by the 
appropriate State examining board generally meet the duties 
requirements for the learned professional exemption. Licensed practical 
nurses and other similar health care employees, however, generally do 
not qualify as exempt learned professionals because possession of a 
specialized advanced academic degree is not a standard prerequisite for 
entry into such occupations.
    ``(3) Dental hygienists. Dental hygienists who have successfully 
completed four academic years of pre-professional and professional 
study in an accredited college or university approved by the Commission 
on Accreditation of Dental and Dental Auxiliary Educational Programs of 
the American Dental Association generally meet the duties requirements 
for the learned professional exemption.
    ``(4) Physician assistants. Physician assistants who have 
successfully completed four academic years of pre-professional and 
professional study, including graduation from a physician assistant 
program accredited by the Accreditation Review Commission on Education 
for the Physician Assistant, and who are certified by the National 
Commission on Certification of Physician Assistants generally meet the 
duties requirements for the learned professional exemption.
    ``(5) Accountants. Certified public accountants generally meet the 
duties requirements for the learned professional exemption. In 
addition, many other accountants who are not certified public 
accountants but perform similar job duties may qualify as exempt 
learned professionals. However, accounting clerks, bookkeepers and 
other employees who normally perform a great deal of routine work 
generally will not qualify as exempt professionals.
    ``(6) Chefs. Chefs, such as executive chefs and sous chefs, who 
have attained a four-year specialized academic degree in a culinary 
arts program, generally meet the duties requirements for the learned 
professional exemption. The learned professional exemption is not 
available to cooks who perform predominantly routine mental, manual, 
mechanical or physical work.
    ``(7) Paralegals. Paralegals and legal assistants generally do not 
qualify as exempt learned professionals because an advanced specialized 
academic degree is not a standard prerequisite for entry into the 
field. Although many paralegals possess general four-year advanced 
degrees, most specialized paralegal programs are two-year associate 
degree programs from a community college or equivalent institution. 
However, the learned professional exemption is available for paralegals 
who possess advanced specialized degrees in other professional fields 
and apply advanced knowledge in that field in the performance of their 
duties. For example, if a law firm hires an engineer as a paralegal to 
provide expert advice on product liability cases or to assist on patent 
matters, that engineer would qualify for exemption.
    ``(8) Athletic trainers. Athletic trainers who have successfully 
completed four academic years of pre-professional and professional 
study in a specialized curriculum accredited by the Commission on 
Accreditation of Allied Health Education Programs and who are certified 
by the Board of Certification of the National Athletic Trainers 
Association Board of Certification generally meet the duties 
requirements for the learned professional exemption.
    [``(9) Funeral directors or embalmers. Licensed funeral directors 
and embalmers who are licensed by and working in a state that requires 
successful completion of four academic years of pre-professional and 
professional study, including graduation from a college of mortuary 
science accredited by the American Board of Funeral Service Education, 
generally meet the duties requirements for the learned professional 
exemption.]
    ``(f) The areas in which the professional exemption may be 
available are expanding. As knowledge is developed, academic training 
is broadened and specialized degrees are offered in new and diverse 
fields, thus creating new specialists in particular fields of science 
or learning. When an advanced specialized degree has become a standard 
requirement for a particular occupation, that occupation may have 
acquired the characteristics of a learned profession. Accrediting and 
certifying organizations similar to those listed in paragraphs (e)(1), 
(e)(3), (e)(4) and (e)(8) of this section also may be created in the 
future. Such organizations may develop similar specialized curriculums 
and certification programs which, if a standard requirement for a 
particular occupation, may indicate that the occupation has acquired 
the characteristics of a learned profession.
``Sec. 541.302 Creative professionals
    ``(a) To qualify for the creative professional exemption, an 
employee's primary duty must be the performance of work requiring 
invention, imagination, originality or talent in a recognized field of 
artistic or creative endeavor as opposed to routine mental, manual, 
mechanical or physical work. The exemption does not apply to work which 
can be produced by a person with general manual or intellectual ability 
and training.
    ``(b) To qualify for exemption as a creative professional, the work 
performed must be `in a recognized field of artistic or creative 
endeavor.' This includes such fields as music, writing, acting and the 
graphic arts.
    ``(c) The requirement of `invention, imagination, originality or 
talent' distinguishes the creative professions from work that primarily 
depends on intelligence, diligence and accuracy. The duties of 
employees vary widely, and exemption as a creative professional depends 
on the extent of the invention, imagination, originality or talent 
exercised by the employee. Determination of exempt creative 
professional status, therefore, must be made on a case-by-case basis. 
This requirement generally is met by actors, musicians, composers, 
conductors, and soloists; painters who at most are given the subject 
matter of their painting; cartoonists who are merely told the title or 
underlying concept of a cartoon and must rely on their own creative 
ability to express the concept; essayists, novelists, short-story 
writers and screen-play writers who choose their own subjects and hand 
in a finished piece of work to their employers (the majority of such 
persons are, of course, not employees but self-employed); and persons 
holding the more responsible writing positions in advertising agencies. 
This requirement generally is not met by a person who is employed as a 
copyist, as an `animator' of motion-picture cartoons, or as a retoucher 
of photographs, since such work is not properly described as creative 
in character.
    ``(d) Journalists may satisfy the duties requirements for the 
creative professional exemption if their primary duty is work requiring 
invention, imagination, originality or talent, as opposed to work which 
depends primarily on intelligence, diligence and accuracy. Employees of 
newspapers, magazines, television and other media are not exempt 
creative professionals if they only collect, organize and record 
information that is routine or already public, or if they do not 
contribute a unique interpretation or analysis to a news product. Thus, 
for example, newspaper reporters who merely rewrite press releases or 
who write standard recounts of public information by gathering facts on 
routine community events are not exempt creative professionals. 
Reporters also do not qualify as exempt creative professionals if their 
work product is subject to substantial control by the employer. 
However, journalists may qualify as exempt creative professionals if 
their primary duty is performing on the air in radio, television or 
other electronic media; conducting investigative interviews; analyzing 
or interpreting public events; writing editorials, opinion columns or 
other commentary; or acting as a narrator or commentator.
``Sec. 541.303 Teachers
    ``(a) The term `employee employed in a bona fide professional 
capacity' in section 13(a)(1) of the Act also means any employee with a 
primary duty of teaching, tutoring, instructing or lecturing in the 
activity of imparting knowledge and who is employed and engaged in this 
activity as a teacher in an educational establishment by which the 
employee is employed. The term `educational establishment' is defined 
in Sec. 541.204(b).
    ``(b) Exempt teachers include, but are not limited to: Regular 
academic teachers; teachers of kindergarten or nursery school pupils; 
teachers of gifted or disabled children; teachers of skilled and semi-
skilled trades and occupations; teachers engaged in automobile driving 
instruction; aircraft flight instructors; home economics teachers; and 
vocal or instrumental music instructors. Those faculty members who are 
engaged as teachers but also spend a considerable amount of their time 
in extracurricular activities such as coaching athletic teams or acting 
as moderators or advisors in such areas as drama, speech, debate or 
journalism are engaged in teaching. Such activities are a recognized 
part of the schools' responsibility in contributing to the educational 
development of the student.
    ``(c) The possession of an elementary or secondary teacher's 
certificate provides a clear means of identifying the individuals 
contemplated as being within the scope of the exemption for teaching 
professionals. Teachers who possess a teaching certificate qualify for 
the exemption regardless of the terminology (e.g., permanent, 
conditional, standard, provisional, temporary, emergency, or unlimited) 
used by the State to refer to different kinds of certificates. However, 
private schools and public schools are not uniform in requiring a 
certificate for employment as an elementary or secondary school 
teacher, and a teacher's certificate is not generally necessary for 
employment in institutions of higher education or other educational 
establishments. Therefore, a teacher who is not certified may be 
considered for exemption, provided that such individual is employed as 
a teacher by the employing school or school system.
    ``(d) The requirements of Sec. 541.300 and Subpart G (salary 
requirements) of this part do not apply to the teaching professionals 
described in this section.
``Sec. 541.304 Practice of law or medicine
    ``(a) The term `employee employed in a bona fide professional 
capacity' in section 13(a)(1) of the Act also shall mean:
            ``(1) Any employee who is the holder of a valid license or 
        certificate permitting the practice of law or medicine or any 
        of their branches and is actually engaged in the practice 
        thereof; and
            ``(2) Any employee who is the holder of the requisite 
        academic degree for the general practice of medicine and is 
        engaged in an internship or resident program pursuant to the 
        practice of the profession.
    ``(b) In the case of medicine, the exemption applies to physicians 
and other practitioners licensed and practicing in the field of medical 
science and healing or any of the medical specialties practiced by 
physicians or practitioners. The term `physicians' includes medical 
doctors including general practitioners and specialists, osteopathic 
physicians (doctors of osteopathy), podiatrists, dentists (doctors of 
dental medicine), and optometrists (doctors of optometry or bachelors 
of science in optometry).
    ``(c) Employees engaged in internship or resident programs, whether 
or not licensed to practice prior to commencement of the program, 
qualify as exempt professionals if they enter such internship or 
resident programs after the earning of the appropriate degree required 
for the general practice of their profession.
    ``(d) The requirements of Sec. 541.300 and subpart G (salary 
requirements) of this part do not apply to the employees described in 
this section.

      ``Subpart E--Computer Employees (Sec. Sec. 541.400-541.402)

``Sec. 541.400 General rule for computer employees
    ``(a) Computer systems analysts, computer programmers, software 
engineers or other similarly skilled workers in the computer field are 
eligible for exemption as professionals under section 13(a)(1) of the 
Act and under section 13(a)(17) of the Act. Because job titles vary 
widely and change quickly in the computer industry, job titles are not 
determinative of the applicability of this exemption.
    ``(b) The section 13(a)(1)exemption applies to any computer 
employee who is compensated on a salary or fee basis at a rate of not 
less than $684 per week [(or $455 per week if employed in the 
Commonwealth of the Northern Mariana Islands, Guam, Puerto Rico, or the 
U.S. Virgin Islands by employers other than the Federal government, or 
$380 per week if employed in American Samoa by employers other than the 
Federal government)], exclusive of board, lodging, or other facilities.
    ``The section 13(a)(17) exemption applies to any computer employee 
compensated on an hourly basis at a rate of not less than $27.63 an 
hour. In addition, under either section 13(a)(1) or section 13(a)(17) 
of the Act, the exemptions apply only to computer employees whose 
primary duty consists of:
            ``(1) The application of systems analysis techniques and 
        procedures, including consulting with users, to determine 
        hardware, software or system functional specifications;
            ``(2) The design, development, documentation, analysis, 
        creation, testing or modification of computer systems or 
        programs, including prototypes, based on and related to user or 
        system design specifications;
            ``(3) The design, documentation, testing, creation or 
        modification of computer programs related to machine operating 
        systems; or
            ``(4) A combination of the aforementioned duties, the 
        performance of which requires the same level of skills.
    ``(c) The term `salary basis' is defined at Sec. 541.602; `fee 
basis' is defined at Sec. 541.605; `board, lodging or other facilities' 
is defined at Sec. 541.606; and `primary duty' is defined at 
Sec. 541.700.
``Sec. 541.401 Computer manufacture and repair
    ``The exemption for employees in computer occupations does not 
include employees engaged in the manufacture or repair of computer 
hardware and related equipment. Employees whose work is highly 
dependent upon, or facilitated by, the use of computers and computer 
software programs (e.g., engineers, drafters and others skilled in 
computer-aided design software), but who are not primarily engaged in 
computer systems analysis and programming or other similarly skilled 
computer-related occupations identified in Sec. 541.400(b), are also 
not exempt computer professionals.
``Sec. 541.402 Executive and administrative computer employees
    ``Computer employees within the scope of this exemption, as well as 
those employees not within its scope, may also have executive and 
administrative duties which qualify the employees for exemption under 
subpart B or subpart C of this part. For example, systems analysts and 
computer programmers generally meet the duties requirements for the 
administrative exemption if their primary duty includes work such as 
planning, scheduling, and coordinating activities required to develop 
systems to solve complex business, scientific or engineering problems 
of the employer or the employer's customers<<, constituents or 
stakeholders>>. Similarly, a senior or lead computer programmer who 
manages the work of two or more other programmers in a customarily 
recognized department or subdivision of the employer, and whose 
recommendations as to the hiring, firing, advancement, promotion or 
other change of status of the other programmers are given particular 
weight, generally meets the duties requirements for the executive 
exemption.

                       ``Subpart F--<<Reserved>>

   [``Subpart F--Outside Sales Employees (Sec. Sec. 541.500-541.504)]

[``Sec. 541.500 General rule for outside sales employees
    [``(a) The term `employee employed in the capacity of outside 
salesman' in section 13(a)(1) of the Act shall mean any employee:]
            [``(1) Whose primary duty is:]
                    [``(i) making sales within the meaning of section 
                3(k) of the Act, or]
                    [``(ii) obtaining orders or contracts for services 
                or for the use of facilities for which a consideration 
                will be paid by the client or customer; and]
            [``(2) Who is customarily and regularly engaged away from 
        the employer's place or places of business in performing such 
        primary duty.]
    [``(b) The term `primary duty' is defined at Sec. 541.700. In 
determining the primary duty of an outside sales employee, work 
performed incidental to and in conjunction with the employee's own 
outside sales or solicitations, including incidental deliveries and 
collections, shall be regarded as exempt outside sales work. Other work 
that furthers the employee's sales efforts also shall be regarded as 
exempt work including, for example, writing sales reports, updating or 
revising the employee's sales or display catalogue, planning 
itineraries and attending sales conferences.]
    [``(c) The requirements of subpart G (salary requirements) of this 
part do not apply to the outside sales employees described in this 
section.]
[``Sec. 541.501 Making sales or obtaining orders
    [``(a) Section 541.500 requires that the employee be engaged in:]
            [``(1) Making sales within the meaning of section 3(k) of 
        the Act, or]
            [``(2) Obtaining orders or contracts for services or for 
        the use of facilities.]
    [``(b) Sales within the meaning of section 3(k) of the Act include 
the transfer of title to tangible property, and in certain cases, of 
tangible and valuable evidences of intangible property. Section 3(k) of 
the Act states that `sale' or `sell' includes any sale, exchange, 
contract to sell, consignment for sale, shipment for sale, or other 
disposition.]
    [``(c) Exempt outside sales work includes not only the sales of 
commodities, but also `obtaining orders or contracts for services or 
for the use of facilities for which a consideration will be paid by the 
client or customer.' Obtaining orders for `the use of facilities' 
includes the selling of time on radio or television, the solicitation 
of advertising for newspapers and other periodicals, and the 
solicitation of freight for railroads and other transportation 
agencies.]
    [``(d) The word `services' extends the outside sales exemption to 
employees who sell or take orders for a service, which may be performed 
for the customer by someone other than the person taking the order.]
[``Sec. 541.502 Away from employer's place of business
    ``An outside sales employee must be customarily and regularly 
engaged `away from the employer's place or places of business.' The 
outside sales employee is an employee who makes sales at the customer's 
place of business or, if selling door-to-door, at the customer's home. 
Outside sales does not include sales made by mail, telephone or the 
Internet unless such contact is used merely as an adjunct to personal 
calls. Thus, any fixed site, whether home or office, used by a 
salesperson as a headquarters or for telephonic solicitation of sales 
is considered one of the employer's places of business, even though the 
employer is not in any formal sense the owner or tenant of the 
property. However, an outside sales employee does not lose the 
exemption by displaying samples in hotel sample rooms during trips from 
city to city; these sample rooms should not be considered as the 
employer's places of business. Similarly, an outside sales employee 
does not lose the exemption by displaying the employer's products at a 
trade show. If selling actually occurs, rather than just sales 
promotion, trade shows of short duration (i.e., one or two weeks) 
should not be considered as the employer's place of business.]
[``Sec. 541.503 Promotion work
    [``(a) Promotion work is one type of activity often performed by 
persons who make sales, which may or may not be exempt outside sales 
work, depending upon the circumstances under which it is performed. 
Promotional work that is actually performed incidental to and in 
conjunction with an employee's own outside sales or solicitations is 
exempt work. On the other hand, promotional work that is incidental to 
sales made, or to be made, by someone else is not exempt outside sales 
work. An employee who does not satisfy the requirements of this subpart 
may still qualify as an exempt employee under other subparts of this 
rule.]
    [``(b) A manufacturer's representative, for example, may perform 
various types of promotional activities such as putting up displays and 
posters, removing damaged or spoiled stock from the merchant's shelves 
or rearranging the merchandise. Such an employee can be considered an 
exempt outside sales employee if the employee's primary duty is making 
sales or contracts. Promotion activities directed toward consummation 
of the employee's own sales are exempt. Promotional activities designed 
to stimulate sales that will be made by someone else are not exempt 
outside sales work.]
    [``(c) Another example is a company representative who visits chain 
stores, arranges the merchandise on shelves, replenishes stock by 
replacing old with new merchandise, sets up displays and consults with 
the store manager when inventory runs low, but does not obtain a 
commitment for additional purchases. The arrangement of merchandise on 
the shelves or the replenishing of stock is not exempt work unless it 
is incidental to and in conjunction with the employee's own outside 
sales. Because the employee in this instance does not consummate the 
sale nor direct efforts toward the consummation of a sale, the work is 
not exempt outside sales work.]
[``Sec. 541.504 Drivers who sell
    [``(a) Drivers who deliver products and also sell such products may 
qualify as exempt outside sales employees only if the employee has a 
primary duty of making sales. In determining the primary duty of 
drivers who sell, work performed incidental to and in conjunction with 
the employee's own outside sales or solicitations, including loading, 
driving or delivering products, shall be regarded as exempt outside 
sales work.]
    [``(b) Several factors should be considered in determining if a 
driver has a primary duty of making sales, including, but not limited 
to: a comparison of the driver's duties with those of other employees 
engaged as truck drivers and as salespersons; possession of a selling 
or solicitor's license when such license is required by law or 
ordinances; presence or absence of customary or contractual 
arrangements concerning amounts of products to be delivered; 
description of the employee's occupation in collective bargaining 
agreements; the employer's specifications as to qualifications for 
hiring; sales training; attendance at sales conferences; method of 
payment; and proportion of earnings directly attributable to sales.]
    [``(c) Drivers who may qualify as exempt outside sales employees 
include:]
            [``(1) A driver who provides the only sales contact between 
        the employer and the customers visited, who calls on customers 
        and takes orders for products, who delivers products from stock 
        in the employee's vehicle or procures and delivers the product 
        to the customer on a later trip, and who receives compensation 
        commensurate with the volume of products sold.]
            [``(2) A driver who obtains or solicits orders for the 
        employer's products from persons who have authority to commit 
        the customer for purchases.]
            [``(3) A driver who calls on new prospects for customers 
        along the employee's route and attempts to convince them of the 
        desirability of accepting regular delivery of goods.]
            [``(4) A driver who calls on established customers along 
        the route and persuades regular customers to accept delivery of 
        increased amounts of goods or of new products, even though the 
        initial sale or agreement for delivery was made by someone 
        else.]
    [``(d) Drivers who generally would not qualify as exempt outside 
sales employees include:]
            [``(1) A route driver whose primary duty is to transport 
        products sold by the employer through vending machines and to 
        keep such machines stocked, in good operating condition, and in 
        good locations.]
            [``(2) A driver who often calls on established customers 
        day after day or week after week, delivering a quantity of the 
        employer's products at each call when the sale was not 
        significantly affected by solicitations of the customer by the 
        delivering driver or the amount of the sale is determined by 
        the volume of the customer's sales since the previous 
        delivery.]
            [``(3) A driver primarily engaged in making deliveries to 
        customers and performing activities intended to promote sales 
        by customers (including placing point-of-sale and other 
        advertising materials, price stamping commodities, arranging 
        merchandise on shelves, in coolers or in cabinets, rotating 
        stock according to date, and cleaning and otherwise servicing 
        display cases), unless such work is in furtherance of the 
        driver's own sales efforts.]

      ``Subpart G--Salary Requirements (Sec. Sec. 541.600-541.607)

``Sec. 541.600 Amount of salary required
    ``(a) To qualify as an exempt executive, administrative or 
professional employee under section 13(a)(1) of the Act, an employee 
must be compensated on a salary basis at a rate of not less than $684 
per week [(or $455 per week if employed in the Commonwealth of the 
Northern Mariana Islands, Guam, Puerto Rico, or the U.S. Virgin Islands 
by employers other than the Federal Government, or $380 per week if 
employed in American Samoa by employers other than the Federal 
Government)], exclusive of board, lodging or other facilities. 
Administrative and professional employees may also be paid on a fee 
basis, as defined in Sec. 541.605.
    ``(b) The required amount of compensation per week may be 
translated into equivalent amounts for periods longer than one week. 
For example, the $684-per-week requirement will be met if the employee 
is compensated biweekly on a salary basis of not less than $1,368, 
semimonthly on a salary basis of not less than $1,482, or monthly on a 
salary basis of not less than $2,964. However, the shortest period of 
payment that will meet this compensation requirement is one week.
    ``(c) In the case of academic administrative employees, the 
compensation requirement also may be met by compensation on a salary 
basis at a rate at least equal to the entrance salary for teachers in 
the educational establishment by which the employee is employed, as 
provided in Sec. 541.204(a)(1).
    ``(d) In the case of computer employees, the compensation 
requirement also may be met by compensation on an hourly basis at a 
rate not less than $27.63 an hour, as provided in Sec. 541.400(b).
    ``(e) In the case of professional employees, the compensation 
requirements in this section shall not apply to employees engaged as 
teachers (see Sec. 541.303); employees who hold a valid license or 
certificate permitting the practice of law or medicine or any of their 
branches and are actually engaged in the practice thereof (see 
Sec. 541.304); or to employees who hold the requisite academic degree 
for the general practice of medicine and are engaged in an internship 
or resident program pursuant to the practice of the profession (see 
Sec. 541.304). In the case of medical occupations, the exception from 
the salary or fee requirement does not apply to pharmacists, nurses, 
therapists, technologists, sanitarians, dietitians, social workers, 
psychologists, psychometrists, or other professions which service the 
medical profession.
``Sec. 541.601 Highly compensated employees
    ``(a)(1) Beginning on [January 1, 2020]<<the effective date of 
these Substantive Regulations>>, an employee with total annual 
compensation of at least $107,432 is deemed exempt under section 
13(a)(1) of the Act if the employee customarily and regularly performs 
any one or more of the exempt duties or responsibilities of an 
executive, administrative or professional employee as identified in 
subparts B, C or D of this part.
    ``(2) Where the annual period covers periods both prior to and 
after [January 1, 2020]<<the effective date of these Substantive 
Regulations>>, the amount of total annual compensation due will be 
determined on a proportional basis.
    ``(b)(1) `Total annual compensation' must include at least $684 per 
week paid on a salary or fee basis as set forth in Sec. 541.602 and 
541.605, except that Sec. 541.602(a)(3) shall not apply to highly 
compensated employees. Total annual compensation may also include 
commissions, nondiscretionary bonuses and other nondiscretionary 
compensation earned during a 52-week period. Total annual compensation 
does not include board, lodging and other facilities as defined in 
Sec. 541.606, and does not include payments for medical insurance, 
payments for life insurance, contributions to retirement plans and the 
cost of other fringe benefits.
    ``(2) If an employee's total annual compensation does not total at 
least the amount specified in the applicable subsection of paragraph 
(a) by the last pay period of the 52-week period, the employer may, 
during the last pay period or within one month after the end of the 52-
week period, make one final payment sufficient to achieve the required 
level. For example, for a 52-week period [beginning January 1, 2020], 
an employee may earn $90,000 in base salary, and the employer may 
anticipate [based upon past sales] that the employee also will earn 
$17,432 in [commissions]<<other payments>>. However, [due to poor 
sales] in the final quarter of the year, the employee actually only 
earns $12,000 in [commissions]<<other payments>>. In this situation, 
the employer may within one month after the end of the year make a 
payment of at least $5,432 to the employee. Any such final payment made 
after the end of the 52-week period may count only toward the prior 
year's total annual compensation and not toward the total annual 
compensation in the year it was paid. If the employer fails to make 
such a payment, the employee does not qualify as a highly compensated 
employee, but may still qualify as exempt under subparts B, C, or D of 
this part.
    ``(3) An employee who does not work a full year for the employer, 
either because the employee is newly hired after the beginning of the 
year or ends the employment before the end of the year, may qualify for 
exemption under this section if the employee receives a pro rata 
portion of the minimum amount established in paragraph (a) of this 
section, based upon the number of weeks that the employee will be or 
has been employed. An employer may make one final payment as under 
paragraph (b)(2) of this section within one month after the end of 
employment.
    ``(4) The employer may utilize any 52-week period as the year, such 
as a calendar year, a fiscal year, or an anniversary of hire year. If 
the employer does not identify some other year period in advance, the 
calendar year will apply.
    ``(c) A high level of compensation is a strong indicator of an 
employee's exempt status, thus eliminating the need for a detailed 
analysis of the employee's job duties. Thus, a highly compensated 
employee will qualify for exemption if the employee customarily and 
regularly performs any one or more of the exempt duties or 
responsibilities of an executive, administrative or professional 
employee identified in subparts B, C or D of this part. An employee may 
qualify as a highly compensated executive employee, for example, if the 
employee customarily and regularly directs the work of two or more 
other employees, even though the employee does not meet all of the 
other requirements for the executive exemption under Sec. 541.100.
    ``(d) This section applies only to employees whose primary duty 
includes performing office or non-manual work. Thus, for example, non-
management production-line workers and non-management employees in 
maintenance, construction and similar occupations such as carpenters, 
electricians, mechanics, plumbers, iron workers, craftsmen, operating 
engineers, longshoremen, construction workers, laborers and other 
employees who perform work involving repetitive operations with their 
hands, physical skill and energy are not exempt under this section no 
matter how highly paid they might be.
``Sec. 541.602 Salary basis
    ``(a) General rule. An employee will be considered to be paid on a 
`salary basis' within the meaning of this part if the employee 
regularly receives each pay period on a weekly, or less frequent basis, 
a predetermined amount constituting all or part of the employee's 
compensation, which amount is not subject to reduction because of 
variations in the quality or quantity of the work performed.
            ``(1) Subject to the exceptions provided in paragraph (b) 
        of this section, an exempt employee must receive the full 
        salary for any week in which the employee performs any work 
        without regard to the number of days or hours worked. Exempt 
        employees need not be paid for any workweek in which they 
        perform no work.
            ``(2) An employee is not paid on a salary basis if 
        deductions from the employee's predetermined compensation are 
        made for absences occasioned by the employer or by the 
        operating requirements of the [business] <<employing office>>. 
        If the employee is ready, willing and able to work, deductions 
        may not be made for time when work is not available.
            ``(3) Up to ten percent of the salary amount required by 
        Sec. 541.600(a) may be satisfied by the payment of 
        nondiscretionary bonuses, incentives and commissions, that are 
        paid annually or more frequently. The employer may utilize any 
        52-week period as the year, such as a calendar year, a fiscal 
        year, or an anniversary of hire year. If the employer does not 
        identify some other year period in advance, the calendar year 
        will apply. This provision does not apply to highly compensated 
        employees under Sec. 541.601.
                    ``(i) If by the last pay period of the 52-week 
                period the sum of the employee's weekly salary plus 
                nondiscretionary bonus, incentive, and commission 
                payments received is less than 52 times the weekly 
                salary amount required by Sec. 541.600(a), the employer 
                may make one final payment sufficient to achieve the 
                required level no later than the next pay period after 
                the end of the year. Any such final payment made after 
                the end of the 52-week period may count only toward the 
                prior year's salary amount and not toward the salary 
                amount in the year it was paid.
                    ``(ii) An employee who does not work a full 52-week 
                period for the employer, either because the employee is 
                newly hired after the beginning of this period or ends 
                the employment before the end of this period, may 
                qualify for exemption if the employee receives a pro 
                rata portion of the minimum amount established in 
                paragraph (a)(3) of this section, based upon the number 
                of weeks that the employee will be or has been 
                employed. An employer may make one final payment as 
                under paragraph (a)(3)(i) of this section within one 
                pay period after the end of employment.
    ``(b) Exceptions. The prohibition against deductions from pay in 
the salary basis requirement is subject to the following exceptions:
            ``(1) Deductions from pay may be made when an exempt 
        employee is absent from work for one or more full days for 
        personal reasons, other than sickness or disability. Thus, if 
        an employee is absent for two full days to handle personal 
        affairs, the employee's salaried status will not be affected if 
        deductions are made from the salary for two full-day absences. 
        However, if an exempt employee is absent for one and a half 
        days for personal reasons, the employer can deduct only for the 
        one full-day absence.
            ``(2) Deductions from pay may be made for absences of one 
        or more full days occasioned by sickness or disability 
        (including work-related accidents) if the deduction is made in 
        accordance with a bona fide plan, policy or practice of 
        providing compensation for loss of salary occasioned by such 
        sickness or disability. The employer is not required to pay any 
        portion of the employee's salary for full-day absences for 
        which the employee receives compensation under the plan, policy 
        or practice. Deductions for such full-day absences also may be 
        made before the employee has qualified under the plan, policy 
        or practice, and after the employee has exhausted the leave 
        allowance thereunder. Thus, for example, if an employer 
        maintains a short-term disability insurance plan providing 
        salary replacement for 12 weeks starting on the fourth day of 
        absence, the employer may make deductions from pay for the 
        three days of absence before the employee qualifies for 
        benefits under the plan; for the twelve weeks in which the 
        employee receives salary replacement benefits under the plan; 
        and for absences after the employee has exhausted the 12 weeks 
        of salary replacement benefits. [Similarly, an employer may 
        make deductions from pay for absences of one or more full days 
        if salary replacement benefits are provided under a State 
        disability insurance law or under a State workers' compensation 
        law.]
            ``(3) While an employer cannot make deductions from pay for 
        absences of an exempt employee occasioned by jury duty, 
        attendance as a witness or temporary military leave, the 
        employer can offset any amounts received by an employee as jury 
        fees, witness fees or military pay for a particular week 
        against the salary due for that particular week without loss of 
        the exemption.
            ``(4) Deductions from pay of exempt employees may be made 
        for penalties imposed in good faith for infractions of safety 
        rules of major significance. Safety rules of major significance 
        include those relating to the prevention of serious danger in 
        the workplace or to other employees, such as rules prohibiting 
        smoking in explosive plants, oil refineries and coal mines.
            ``(5) Deductions from pay of exempt employees may be made 
        for unpaid disciplinary suspensions of one or more full days 
        imposed in good faith for infractions of workplace conduct 
        rules. Such suspensions must be imposed pursuant to a written 
        policy applicable to all employees. Thus, for example, an 
        employer may suspend an exempt employee without pay for three 
        days for violating a generally applicable written policy 
        prohibiting sexual harassment. Similarly, an employer may 
        suspend an exempt employee without pay for twelve days for 
        violating a generally applicable written policy prohibiting 
        workplace violence.
            ``(6) An employer is not required to pay the full salary in 
        the initial or terminal week of employment. Rather, an employer 
        may pay a proportionate part of an employee's full salary for 
        the time actually worked in the first and last week of 
        employment. In such weeks, the payment of an hourly or daily 
        equivalent of the employee's full salary for the time actually 
        worked will meet the requirement. However, employees are not 
        paid on a salary basis within the meaning of these regulations 
        if they are employed occasionally for a few days, and the 
        employer pays them a proportionate part of the weekly salary 
        when so employed.
            ``(7) An employer is not required to pay the full salary 
        for weeks in which an exempt employee takes unpaid leave under 
        the Family and Medical Leave Act. Rather, when an exempt 
        employee takes unpaid leave under the Family and Medical Leave 
        Act, an employer may pay a proportionate part of the full 
        salary for time actually worked. For example, if an employee 
        who normally works 40 hours per week uses four hours of unpaid 
        leave under the Family and Medical Leave Act, the employer 
        could deduct 10 percent of the employee's normal salary that 
        week.
    ``(c) When calculating the amount of a deduction from pay allowed 
under paragraph (b) of this section, the employer may use the hourly or 
daily equivalent of the employee's full weekly salary or any other 
amount proportional to the time actually missed by the employee. A 
deduction from pay as a penalty for violations of major safety rules 
under paragraph (b)(4) of this section may be made in any amount.
``Sec. 541.603 Effect of improper deductions from salary
    ``(a) An employer who makes improper deductions from salary shall 
lose the exemption if the facts demonstrate that the employer did not 
intend to pay employees on a salary basis. An actual practice of making 
improper deductions demonstrates that the employer did not intend to 
pay employees on a salary basis. The factors to consider when 
determining whether an employer has an actual practice of making 
improper deductions include, but are not limited to: the number of 
improper deductions, particularly as compared to the number of employee 
infractions warranting discipline; the time period during which the 
employer made improper deductions; the number and geographic location 
of employees whose salary was improperly reduced; the number and 
geographic location of managers responsible for taking the improper 
deductions; and whether the employer has a clearly communicated policy 
permitting or prohibiting improper deductions.
    ``(b) If the facts demonstrate that the employer has an actual 
practice of making improper deductions, the exemption is lost during 
the time period in which the improper deductions were made for 
employees in the same job classification working for the same managers 
responsible for the actual improper deductions. Employees in different 
job classifications or who work for different managers do not lose 
their status as exempt employees. Thus, for example, if a manager [at a 
company facility] routinely docks the pay of engineers at that facility 
for partial-day personal absences, then all engineers at that facility 
whose pay could have been improperly docked by the manager would lose 
the exemption; engineers at other facilities or working for other 
managers, however, would remain exempt.
    ``(c) Improper deductions that are either isolated or inadvertent 
will not result in loss of the exemption for any employees subject to 
such improper deductions, if the employer reimburses the employees for 
such improper deductions.
    ``(d) If an employer has a clearly communicated policy that 
prohibits the improper pay deductions specified in Sec. 541.602(a) and 
includes a complaint mechanism, reimburses employees for any improper 
deductions and makes a good faith commitment to comply in the future, 
such employer will not lose the exemption for any employees unless the 
employer willfully violates the policy by continuing to make improper 
deductions after receiving employee complaints. If an employer fails to 
reimburse employees for any improper deductions or continues to make 
improper deductions after receiving employee complaints, the exemption 
is lost during the time period in which the improper deductions were 
made for employees in the same job classification working for the same 
managers responsible for the actual improper deductions. The best 
evidence of a clearly communicated policy is a written policy that was 
distributed to employees prior to the improper pay deductions by, for 
example, providing a copy of the policy to employees at the time of 
hire, publishing the policy in an employee handbook or publishing the 
policy on the employer's Intranet.
    ``(e) This section shall not be construed in an unduly technical 
manner so as to defeat the exemption.
``Sec. 541.604 Minimum guarantee plus extras
    ``(a) An employer may provide an exempt employee with additional 
compensation without losing the exemption or violating the salary basis 
requirement, if the employment arrangement also includes a guarantee of 
at least the minimum weekly-required amount paid on a salary basis. 
Thus, for example, an exempt employee guaranteed at least $684 each 
week paid on a salary basis may also receive additional compensation of 
a one percent commission on sales. An exempt employee also may receive 
a percentage of the sales or profits of the employer if the employment 
arrangement also includes a guarantee of at least $684 each week paid 
on a salary basis. Similarly, the exemption is not lost if an exempt 
employee who is guaranteed at least $684 each week paid on a salary 
basis also receives additional compensation based on hours worked for 
work beyond the normal workweek. Such additional compensation may be 
paid on any basis (e.g., flat sum, bonus payment, straight-time hourly 
amount, time and one-half or any other basis), and may include paid 
time off.
    ``(b) An exempt employee's earnings may be computed on an hourly, a 
daily or a shift basis, without losing the exemption or violating the 
salary basis requirement, if the employment arrangement also includes a 
guarantee of at least the minimum weekly required amount paid on a 
salary basis regardless of the number of hours, days or shifts worked, 
and a reasonable relationship exists between the guaranteed amount and 
the amount actually earned. The reasonable relationship test will be 
met if the weekly guarantee is roughly equivalent to the employee's 
usual earnings at the assigned hourly, daily or shift rate for the 
employee's normal scheduled workweek. Thus, for example, an exempt 
employee guaranteed compensation of at least $725 for any week in which 
the employee performs any work, and who normally works four or five 
shifts each week, may be paid $210 per shift without violating the 
$684-per-week salary basis requirement. The reasonable relationship 
requirement applies only if the employee's pay is computed on an 
hourly, daily or shift basis. It does not apply, for example, to an 
exempt store manager paid a guaranteed salary per week that exceeds the 
current salary level who also receives a commission of one-half percent 
of all sales in the store or five percent of the store's profits, which 
in some weeks may total as much as, or even more than, the guaranteed 
salary.
``Sec. 541.605 Fee basis
    ``(a) Administrative and professional employees may be paid on a 
fee basis, rather than on a salary basis. An employee will be 
considered to be paid on a `fee basis' within the meaning of these 
regulations if the employee is paid an agreed sum for a single job 
regardless of the time required for its completion. These payments 
resemble piecework payments with the important distinction that 
generally a `fee' is paid for the kind of job that is unique rather 
than for a series of jobs repeated an indefinite number of times and 
for which payment on an identical basis is made over and over again. 
Payments based on the number of hours or days worked and not on the 
accomplishment of a given single task are not considered payments on a 
fee basis.
    ``(b) To determine whether the fee payment meets the minimum amount 
of salary required for exemption under these regulations, the amount 
paid to the employee will be tested by determining the time worked on 
the job and whether the fee payment is at a rate that would amount to 
at least the minimum salary per week, as required by Sec. 541.600(a) 
and 541.602(a), if the employee worked 40 hours. Thus, an artist paid 
$350 for a picture that took 20 hours to complete meets the $684 
minimum salary requirement for exemption since earnings at this rate 
would yield the artist $700 if 40 hours were worked.
``Sec. 541.606 Board, lodging or other facilities
    ``(a) To qualify for exemption under section 13(a)(1) of the Act, 
an employee must earn the minimum salary amount set forth in 
Sec. 541.600, `exclusive of board, lodging or other facilities.' The 
phrase `exclusive of board, lodging or other facilities' means `free 
and clear' or independent of any claimed credit for non-cash items of 
value that an employer may provide to an employee. Thus, the costs 
incurred by an employer to provide an employee with board, lodging or 
other facilities may not count towards the minimum salary amount 
required for exemption under this part 541. Such separate transactions 
are not prohibited between employers and their exempt employees, but 
the costs to employers associated with such transactions may not be 
considered when determining if an employee has received the full 
required minimum salary payment.
    ``(b) Regulations defining what constitutes `board, lodging, or 
other facilities' are contained in 29 CFR part 531. As described in 29 
CFR 531.32, the term `other facilities' refers to items similar to 
board and lodging, such as meals furnished at company restaurants or 
cafeterias or by hospitals, hotels, or restaurants to their employees; 
meals, dormitory rooms, and tuition furnished by a college to its 
student employees; merchandise furnished at company stores or 
commissaries, including articles of food, clothing, and household 
effects; housing furnished for dwelling purposes; and transportation 
furnished to employees for ordinary commuting between their homes and 
work.
[``Sec. 541.607 Reserved by 85 FR 34970 Effective: June 8, 2020 
              <<541.607 - Reserved.>>

         ``Subpart H--Definitions and Miscellaneous Provisions 
                      (Sec. Sec. 541.700-541.710)

``Sec. 541.700 Primary duty
    ``(a) To qualify for exemption under this part, an employee's 
`primary duty' must be the performance of exempt work. The term 
`primary duty' means the principal, main, major or most important duty 
that the employee performs. Determination of an employee's primary duty 
must be based on all the facts in a particular case, with the major 
emphasis on the character of the employee's job as a whole. Factors to 
consider when determining the primary duty of an employee include, but 
are not limited to, the relative importance of the exempt duties as 
compared with other types of duties; the amount of time spent 
performing exempt work; the employee's relative freedom from direct 
supervision; and the relationship between the employee's salary and the 
wages paid to other employees for the kind of nonexempt work performed 
by the employee.
    ``(b) The amount of time spent performing exempt work can be a 
useful guide in determining whether exempt work is the primary duty of 
an employee. Thus, employees who spend more than 50 percent of their 
time performing exempt work will generally satisfy the primary duty 
requirement. Time alone, however, is not the sole test, and nothing in 
this section requires that exempt employees spend more than 50 percent 
of their time performing exempt work. Employees who do not spend more 
than 50 percent of their time performing exempt duties may nonetheless 
meet the primary duty requirement if the other factors support such a 
conclusion.
    ``(c) Thus, for example, assistant managers in a retail 
establishment who perform exempt executive work such as supervising and 
directing the work of other employees, ordering merchandise, managing 
the budget and authorizing payment of bills may have management as 
their primary duty even if the assistant managers spend more than 50 
percent of the time performing nonexempt work such as running the cash 
register. However, if such assistant managers are closely supervised 
and earn little more than the nonexempt employees, the assistant 
managers generally would not satisfy the primary duty requirement.
``Sec. 541.701 Customarily and regularly
    ``The phrase `customarily and regularly' means a frequency that 
must be greater than occasional but which, of course, may be less than 
constant. Tasks or work performed `customarily and regularly' includes 
work normally and recurrently performed every workweek; it does not 
include isolated or one-time tasks.
``Sec. 541.702 Exempt and nonexempt work
    ``The term `exempt work' means all work described in Sec. 541.100, 
541.101, 541.200, 541.300, 541.301, 541.302, 541.303, 541.304, <<and>> 
541.400 [and 541.500], and the activities directly and closely related 
to such work. All other work is considered `nonexempt.'
``Sec. 541.703 Directly and closely related
    ``(a) Work that is `directly and closely related' to the 
performance of exempt work is also considered exempt work. The phrase 
`directly and closely related' means tasks that are related to exempt 
duties and that contribute to or facilitate performance of exempt work. 
Thus, `directly and closely related' work may include physical tasks 
and menial tasks that arise out of exempt duties, and the routine work 
without which the exempt employee's exempt work cannot be performed 
properly. Work `directly and closely related' to the performance of 
exempt duties may also include recordkeeping; monitoring and adjusting 
machinery; taking notes; using the computer to create documents or 
presentations; opening the mail for the purpose of reading it and 
making decisions; and using a photocopier or fax machine. Work is not 
`directly and closely related' if the work is remotely related or 
completely unrelated to exempt duties.
    ``(b) The following examples further illustrate the type of work 
that is and is not normally considered as directly and closely related 
to exempt work:
            ``(1) Keeping time, production or sales records for 
        subordinates is work directly and closely related to an exempt 
        executive's function of managing a department and supervising 
        employees.
            ``(2) The distribution of materials, merchandise or 
        supplies to maintain control of the flow of and expenditures 
        for such items is directly and closely related to the 
        performance of exempt duties.
            ``(3) A supervisor who spot checks and examines the work of 
        subordinates to determine whether they are performing their 
        duties properly, and whether the product is satisfactory, is 
        performing work which is directly and closely related to 
        managerial and supervisory functions, so long as the checking 
        is distinguishable from the work ordinarily performed by a 
        nonexempt inspector.
            ``(4) A supervisor who sets up a machine may be engaged in 
        exempt work, depending upon the nature of the industry and the 
        operation. In some cases the setup work, or adjustment of the 
        machine for a particular job, is typically performed by the 
        same employees who operate the machine. Such setup work is part 
        of the production operation and is not exempt. In other cases, 
        the setting up of the work is a highly skilled operation which 
        the ordinary production worker or machine tender typically does 
        not perform. In large plants, non-supervisors may perform such 
        work. However, particularly in small plants, such work may be a 
        regular duty of the executive and is directly and closely 
        related to the executive's responsibility for the work 
        performance of subordinates and for the adequacy of the final 
        product. Under such circumstances, it is exempt work.
            ``(5) A department manager in a retail or service 
        establishment who walks about the sales floor observing the 
        work of sales personnel under the employee's supervision to 
        determine the effectiveness of their sales techniques, checks 
        on the quality of customer service being given, or observes 
        customer preferences is performing work which is directly and 
        closely related to managerial and supervisory functions.
            ``(6) A business consultant may take extensive notes 
        recording the flow of work and materials through the office or 
        plant of the client; after returning to the office of the 
        employer, the consultant may personally use the computer to 
        type a report and create a proposed table of organization. 
        Standing alone, or separated from the primary duty, such note-
        taking and typing would be routine in nature. However, because 
        this work is necessary for analyzing the data and making 
        recommendations, the work is directly and closely related to 
        exempt work. While it is possible to assign note-taking and 
        typing to nonexempt employees, and in fact it is frequently the 
        practice to do so, delegating such routine tasks is not 
        required as a condition of exemption.
            ``(7) A [credit] manager who makes and administers the 
        [credit]<<budget>> policy of the [employer]<<employing 
        office>>, establishes [credit]<<spending>> limits for 
        [customers]<<the employing office>>, <<and>> authorizes [the 
        shipment of orders on credit, and makes decisions on whether to 
        exceed credit limits]<<expenditures>> would be performing work 
        exempt under Sec. 541.200. Work that is directly and closely 
        related to these exempt duties may include checking the status 
        of accounts to determine whether the credit limit would be 
        exceeded by the shipment of a new order, removing credit 
        reports from the files for analysis, and writing letters giving 
        credit data and experience to other employers or credit 
        agencies.
            ``(8) A traffic manager in charge of planning a company's 
        transportation, including the most economical and quickest 
        routes for shipping merchandise to and from the plant, 
        contracting for common-carrier and other transportation 
        facilities, negotiating with carriers for adjustments for 
        damages to merchandise, and making the necessary rearrangements 
        resulting from delays, damages or irregularities in transit, is 
        performing exempt work. If the employee also spends part of the 
        day taking telephone orders for local deliveries, such order-
        taking is a routine function and is not directly and closely 
        related to the exempt work.
            ``(9) An example of work directly and closely related to 
        exempt professional duties is a chemist performing menial tasks 
        such as cleaning a test tube in the middle of an original 
        experiment, even though such menial tasks can be assigned to 
        laboratory assistants.
            ``(10) A teacher performs work directly and closely related 
        to exempt duties when, while taking students on a field trip, 
        the teacher drives a school van or monitors the students' 
        behavior in a restaurant.
``Sec. 541.704 Use of manuals
    ``The use of manuals, guidelines or other established procedures 
containing or relating to highly technical, scientific, legal, 
financial or other similarly complex matters that can be understood or 
interpreted only by those with advanced or specialized knowledge or 
skills does not preclude exemption under section 13(a)(1) of the Act or 
the regulations in this part. Such manuals and procedures provide 
guidance in addressing difficult or novel circumstances and thus use of 
such reference material would not affect an employee's exempt status. 
The section 13(a)(1) exemptions are not available, however, for 
employees who simply apply well-established techniques or procedures 
described in manuals or other sources within closely prescribed limits 
to determine the correct response to an inquiry or set of 
circumstances.
``Sec. 541.705 Trainees
    ``The executive, administrative, professional, [outside sales] and 
computer employee exemptions do not apply to employees training for 
employment in an executive, administrative, professional, [outside 
sales] or computer employee capacity who are not actually performing 
the duties of an executive, administrative, professional, [outside 
sales] or computer employee.
``Sec. 541.706 Emergencies
    ``(a) An exempt employee will not lose the exemption by performing 
work of a normally nonexempt nature because of the existence of an 
emergency. Thus, when emergencies arise that threaten the safety of 
employees, a cessation of operations or serious damage to the 
employer's property, any work performed in an effort to prevent such 
results is considered exempt work.
    ``(b) An `emergency' does not include occurrences that are not 
beyond control or for which the employer can reasonably provide in the 
normal course of business. Emergencies generally occur only rarely, and 
are events that the employer cannot reasonably anticipate.
    ``(c) The following examples illustrate the distinction between 
emergency work considered exempt work and routine work that is not 
exempt work:
            ``(1) [A mine superintendent who pitches in after an 
        explosion and digs out workers who are trapped in the mine is 
        still a bona fide executive.]<<Reserved.>>
            ``(2) Assisting nonexempt employees with their work during 
        periods of heavy workload or to handle rush orders is not 
        exempt work.
            ``(3) Replacing a nonexempt employee during the first day 
        or partial day of an illness may be considered exempt emergency 
        work depending on factors such as the size of the 
        [establishment]<<location>> and of the executive's department, 
        the nature of the [industry]<<work performed by the employing 
        office>>, the consequences that would flow from the failure to 
        replace the ailing employee immediately, and the feasibility of 
        filling the employee's place promptly.
            ``(4) Regular repair and cleaning of equipment is not 
        emergency work, even when necessary to prevent fire or 
        explosion; however, repairing equipment may be emergency work 
        if the breakdown of or damage to the equipment was caused by 
        accident or carelessness that the employer could not reasonably 
        anticipate.
``Sec. 541.707 Occasional tasks
    ``Occasional, infrequently recurring tasks that cannot practicably 
be performed by nonexempt employees, but are the means for an exempt 
employee to properly carry out exempt functions and responsibilities, 
are considered exempt work. The following factors should be considered 
in determining whether such work is exempt work: Whether the same work 
is performed by any of the exempt employee's subordinates; 
practicability of delegating the work to a nonexempt employee; whether 
the exempt employee performs the task frequently or occasionally; and 
existence of an industry practice for the exempt employee to perform 
the task.
``Sec. 541.708 Combination exemptions
    ``Employees who perform a combination of exempt duties as set forth 
in the regulations in this part for executive, administrative, 
professional, [outside sales] and computer employees may qualify for 
exemption. Thus, for example, an employee whose primary duty involves a 
combination of exempt administrative and exempt executive work may 
qualify for exemption. In other words, work that is exempt under one 
section of this part will not defeat the exemption under any other 
section.
[``Sec. 541.709 Motion picture producing industry
    [``The requirement that the employee be paid `on a salary basis' 
does not apply to an employee in the motion picture producing industry 
who is compensated at a base rate of at least $1,043 per week 
(exclusive of board, lodging, or other facilities). Thus, an employee 
in this industry who is otherwise exempt under subparts B, C, or D of 
this part, and who is employed at a base rate of at least the 
applicable current minimum amount a week is exempt if paid a 
proportionate amount (based on a week of not more than 6 days) for any 
week in which the employee does not work a full workweek for any 
reason. Moreover, an otherwise exempt employee in this industry 
qualifies for exemption if the employee is employed at a daily rate 
under the following circumstances:]
    [``(a) The employee is in a job category for which a weekly base 
rate is not provided and the daily base rate would yield at least the 
minimum weekly amount if 6 days were worked; or]
    [``(b) The employee is in a job category having the minimum weekly 
base rate and the daily base rate is at least one-sixth of such weekly 
base rate.]
``Sec. 541.709 <<Reserved.>>
``Sec. 541.710 [Employees of public agencies]<<Effect of certain 
              deductions on exempt employee pay>>
    ``(a) An employee [of a public agency] who otherwise meets the 
salary basis requirements of Sec. 541.602 shall not be disqualified 
from exemption under Sec. 541.100, 541.200, 541.300 or 541.400 on the 
basis that such employee is paid according to a pay system established 
by statute, ordinance or regulation, or by a policy or practice 
established pursuant to principles of public accountability, under 
which the employee accrues personal leave and sick leave and which 
requires the [public agency] employee's pay to be reduced or such 
employee to be placed on leave without pay for absences for personal 
reasons or because of illness or injury of less than one work-day when 
accrued leave is not used by an employee because:
            ``(1) Permission for its use has not been sought or has 
        been sought and denied;
            ``(2) Accrued leave has been exhausted; or
            ``(3) The employee chooses to use leave without pay.
    ``(b) Deductions from the pay of an employee [of a public agency] 
for absences due to a budget-required furlough shall not disqualify the 
employee from being paid on a salary basis except in the workweek in 
which the furlough occurs and for which the employee's pay is 
accordingly reduced.''.
                                 <all>