FAMILY AND MEDICAL LEAVE
Summary
Section 202 of the Congressional Accountability
Act (CAA) applies certain rights and protections of the Family and
Medical Leave Act of 1993 (FMLA) to covered employees. These rights
and protections entitle "eligible" covered employees to take up
to 12 weeks of unpaid leave in a 12 month period for certain family
and medical reasons, with continued health insurance benefits. Upon
returning to work from family and medical leave, employees will
generally be restored to the same or equivalent position as the
one they occupied prior to taking leave.
The CAA requires the Board to issue regulations
that must ordinarily be the same as the substantive regulations
promulgated by the Secretary of Labor ("Secretary") under the FMLA.
In addition, the CAA and the Board's regulations contain a definition
of "eligible employee" that differs from the definition in the FMLA
and the Secretary's regulations.
This summary describes the Family and Medical
Leave rights and protections applied by the CAA, followed by "questions
and answers."
1.
Coverage
To qualify as an eligible employee entitled
to FMLA benefits, a covered employee must have been employed in
any employing office --
- for a total of 12 months of employment, and
- for at least 1,250 hours of employment during
the previous 12 months.
The 12 months of employment do not need to
have been consecutive, or for a single employing office. If an employee
was on the payroll for part of a week, the entire week counts towards
the 12 months of employment. The minimum
of 1,250 hours of employment must have been worked during the 12
months immediately preceding the commencement of leave. If the employee
worked for more than one employing office during that period, the
hours of work will be added together. An employing office must be
able to clearly demonstrate that an employee did not work 1,250
hours during the previous 12 months in order to claim that the employee
is not "eligible" for FMLA leave.
Employment with covered offices prior to January
23, 1996, is included in determining employee eligibility.
The covered employees and employing offices
subject generally to the CAA are described in the Introductory section.
2. Family and Medical Leave Entitlement
The Family and Medical Leave provisions of the
CAA entitle an "eligible employee" to take a total of 12 weeks of
unpaid leave within a 12-month period for specified family and medical
reasons. Under certain conditions, either the employee or the employing
office may elect to substitute accrued paid sick or vacation leave
for the unpaid leave. The employing office must maintain group health
coverage for the employee, and under most circumstances the employee
must be restored to the same or an equivalent position upon returning
from the leave.
3. Reasons
for Leave
Eligible employees may take family and medical
leave for any of the following reasons:
- the birth and care of a newborn child of the
employee;
- placement of a child with the employee for
adoption or foster care;
- to care for an immediate family member (spouse,
child, or parent) with a "serious health condition;" or
- because of a "serious health condition" that
makes the employee unable to perform the functions of his/her
position.
As described more fully
in the Board's regulations, a "serious health condition" includes
an illness, injury, impairment, or condition that involves either
--
- inpatient care (i.e., an overnight stay) in
a medical care facility, including any period of incapacity or
subsequent treatment; or
- continuing treatment by a health care provider,
including periods of incapacity in some instances.
4. Amount
and Timing of Leave
a. Calculating the 12-month period.
An eligible employee is entitled to a total
of 12 work weeks of family and medical leave during a 12-month period.
An employing office may use any of the following methods to calculate
the 12-month period in which the 12 weeks of leave entitlement occurs:
- The calendar year.
- Any fixed 12-month period, such as a fiscal
year, a "leave year," or a year starting on the employee's anniversary
date.
- A rolling 12-month period measured backward
from the date the employee uses family and medical leave.
- The 12-month period measured forward from
the date the employee first takes family and medical leave.
Whichever method the employing office chooses must be applied consistently
to all employees of the employing office. If the employing office
fails to select one of the above options, the option that is most
beneficial to the employee will be used. b.
Intermittent and reduced leave schedule
Under some circumstances, employees may take
family and medical leave intermittently (in separate blocks
of time) or on a reduced leave schedule (reduced weekly or
daily work schedule).
When leave is for the birth or placement of
a child for adoption or foster care, use of leave intermittently
or on a reduced leave schedule is subject to the agreement of the
employing office. (The employing office's agreement is not required,
however, for leave during which the mother has a serious health
condition in connection with the birth of a child, or if the newborn
child has a serious health condition).
Leave may be taken intermittently or on a reduced
leave schedule whenever medically necessary to care for a seriously
ill family member, or because the employee is seriously ill and
unable to work.
If a covered employee properly requests intermittent
leave, or leave on a reduced leave schedule, that is foreseeable
based on planned medical treatment, the employer may require the
employee to temporarily transfer to an alternative position
with equivalent pay and benefits, that better accommodates recurring
periods of leave.
c. Husband and wife employed
by the same employing office
If a husband and wife entitled to family and
medical leave are employed by the same employing office, the combined
total number of workweeks of leave to which both are entitled may
be limited to 12 workweeks during any 12-month period if such leave
is taken for the birth or placement of a child or for the care of
a sick parent.
d. Expiration of entitlement
after birth or placement of a child
When leave is for the birth of a child or the
placement of a child for adoption or foster care, the entitlement
expires 12 months after the date of the birth or placement.
5. Paid and Unpaid Leave
Under certain circumstances, an eligible employee
may choose, or the employing office may require, the substitution
of accrued paid vacation, personal, family, or sick leave for some
or all of the family and medical leave. The employing office is
not required to provide paid sick leave in any situation where the
employing office would not normally provide such leave.
In all circumstances it is the employing office's
responsibility to designate leave as family and medical leave, and
to give prompt notice of the designation to the employee, so that
the leave (paid or unpaid) will be counted against the employee's
12-week leave entitlement.
Compensatory time off, if allowed pursuant to
regulations of the Board, is not counted against the employee's
entitlement for family and medical leave, regardless of the purpose
for which the compensatory time off is used by the employee.
6.
Maintenance of Health Benefits
While the covered employee is on family and
medical leave, the employing office must maintain the same coverage
under any group health plan for the duration of the leave, as if
the employee had continued in employment. Any share of group health
plan premiums that had been paid by the employee prior to taking
family and medical leave must continue to be paid by the employee
during the leave period, as if the employee were employed continuously
during the leave period.
In some instances, the premiums paid by (or
on behalf of) the employing office for maintaining group health
coverage may be recovered from the employee, if the employee fails
to return to work.
7. Reinstatement
Rights
At the conclusion of family and medical leave,
an employee is entitled to be restored 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, that involves the same or substantially similar duties
and responsibilities.
If the employee is no longer able to perform
the essential functions of the position because of a physical or
mental condition, the employee has no right to be restored to an
alternative position. However, the employing office's obligations
may be governed by rights and protections against discrimination
on the basis of disability, as made applicable by the CAA (see the
section on employment discrimination based on disability in this
Manual.)
At the end of an employee's family and medical
leave, benefits must be resumed in the same manner and at the same
level as provided when the leave began, subject to any changes in
benefit levels that may have occurred during the period of leave
affecting the entire workplace. No employment benefit accrued prior
to the date on which leave commenced is to be lost by the employee.
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 leave period. For example,
if an employing office would prove that an employee would have been
laid off during the leave period, the employee would not be entitled
to restoration. The employing office may, but is not required to,
allow the employee to accrue seniority or employment benefits during
family and medical leave.
Under certain limited
circumstances where restoration to employment will cause substantial
and grievous economic injury to its operations, an employing office
may refuse to reinstate certain highly-paid "key" employees after
using family and medical leave. In order to do so, the employing
office must notify the employee of his/her status as a "key" employee
when the employee gives notice of need for FMLA leave, and must
satisfy other requirements. A"key" employee is a salaried eligible
employee who is among the highest paid ten percent of employees
within 75 miles of the work site.
8.
Notifications and Certifications
a. Required notice to eligible
employees
Employing offices are required to inform employees
of their rights and responsibilities under family and medical leave
provisions of the CAA. Written notices, with information as specified
in the Board's regulations, must be provided to each employee no
less often than the first time in each 6-month period that an employee
gives notice of the need for family and medical leave. In addition,
if an employing office provides written guidance to employees concerning
employee benefits or leave rights, such as an employee handbook,
information concerning both entitlements and employee obligations
under section 202 of the CAA must be included in the handbook or
other document.
b. Thirty-days advance notice
to employing offices for "foreseeable" leave
If the need for family and medical leave is
foreseeable, the employee is required to provide the employing office
with at least 30 days advance notice. If 30 days notice is not practicable,
the employee must give as much notice as is practicable.
An employing office may always waive family
and medical leave notice requirements. However, if an employee fails
to give 30 days notice for foreseeable leave with no reasonable
excuse for the delay, the employing office may delay the taking
of family and medical leave.
For the onset of the employee's family and medical
leave to be delayed because of lack of required notice, it must
be clear that the employee had actual notice of the family and medical
leave notice requirements. (This condition would be satisfied by
the employing office's proper posting (front and back) of the brochure
prepared and distributed by the Office.)
c. Additional certifications
and reports
Employing offices may also require employees
to provide:
- medical certification supporting the need
for leave due to a serious health condition affecting the employee
or an immediate family member;
- second or third medical opinions (at the employer's
expense) and periodic recertification; and
- periodic reports during FMLA leave regarding
the employee's status and intent to return to work.
9. Joint Employer and Primary
Employer
Two or more employing offices may be considered
"joint employers" where the employing offices exercise some control
over the work or working conditions of an employee (e.g.,
if an employee does work that simultaneously benefits the employing
offices), a "joint employment" relationship may exist. Under regulations
of the Board, when employing offices employ a covered employee jointly,
they may designate one to be the "primary employer." The primary
employing office is responsible for giving required notices to the
covered employee and providing family and medical leave. If such
a designation is not made, the employee may elect which of the joint
employing offices will be required to perform the responsibilities
of a primary employer.
10. Special Rules for Employees
of Certain Schools
Special rules apply to employees of local educational
agencies and private elementary and secondary schools. Generally,
these rules affect the taking of intermittent leave or leave on
a reduced leave schedule, or leave near the end of an academic term,
by instructional employees.
11. Intimidation or Reprisal
Intimidation, reprisal, or discrimination against
a covered employee for opposing practices or for initiating or participating
in a proceeding is prohibited, as described in the Introductory
section.
12. Remedies
In case of a violation, several kinds of remedies
may be available:
- damages equal to the amount of wages, employment
benefits, or other compensation denied or lost, or other actual
monetary losses (and interest);
- damages for an additional equal amount as
liquidated damages, unless the employing office proves that the
act or omission was in good faith and that the employing office
had reasonable grounds for believing that the act or omission
was not a violation; and
- such equitable relief as may be appropriate,
including employment, reinstatement, and promotion.
A description of the generally applicable remedies
(attorneys fees, interest) and limitations (no civil penalties or
punitive damages) is found in the Introductory section.
FAMILY AND
MEDICAL LEAVE
Questions and
Answers
1. Q. Which employees are eligible
to take family and medical leave?
A. An "eligible employee" means a covered
employee who has been employed in any employing office for 12 months
and for at least 1,250 hours of employment during the previous 12
months. The 12 months an employee must have been employed by any
employing office do not need to be consecutive months. If an employee
has worked for two or more employing offices at different times,
the time worked will be added together to determine whether the
employee has worked at least 1,250 hours during the previous 12
months. Also, if an employee worked for two employing offices at
the same time, the hours of service will be added together to determine
whether the minimum of 1,250 hours has been reached.
2. Q. Is family and medical leave paid
or unpaid?
A. Family and medical leave may be unpaid
leave. However, an eligible employee may choose, or an employing
office may require an employee, to substitute accrued paid leave
(such as sick or vacation leave) for family and medical leave.
3. Q. How much leave may an employee take?
A. An eligible employee is entitled to
take up to 12 weeks of family and medical leave in a 12-month period.
Each employing office is allowed to choose a uniform method by which
to compute the 12-month period in which the 12 weeks of leave entitlement
occurs. An employing office may choose any of the following methods
to calculate the 12-month period:
- The calendar year;
- Any fixed 12-month period, such as a fiscal
year, a year required by state law, or a year starting on the
employee's anniversary date;
- A rolling 12-month period measured backward
from the date an employee uses family and medical leave (except
that such measurement cannot extend back before August 5, 1993);
or
- The 12-month period measured forward from
the date an employee first takes family and medical leave.
4. Q. What happens if the employing
office does not make a choice as to which method it will choose
to calculate the 12-month period?
A. If the employing office fails
to select one of the above options, the option that is most beneficial
to the employee will be used.
5. Q. How are family and medical leave
rights and benefits protected when an employee works for more than
one employing office?
A. Where two or more employing
offices exercise some control over the work or working conditions
of an employee, or where the employee performs work that simultaneously
benefits two or more employing offices, or works for two or more
employing offices during a workweek, a "joint employment relationship"
may exist. When employing offices employ a covered employee jointly,
they may designate one of themselves to be the primary employing
office, and the other(s) to be the secondary office(s). The primary
employing office is responsible for giving required notices to the
covered employee, providing family and medical leave, and maintenance
of health benefits.
6. Q. For what purposes does an employee
have a right to take family and medical leave?
A. An eligible employee may take
up to 12 workweeks of leave during any 12-month period for one or
more of the following reasons:
- For the birth of a son or daughter, and to
care for the newborn child;
- For placement with the employee of a son or
daughter for adoption or foster care, and to care for that child;
- To care for the employee's spouse, son, daughter,
or parent with a serious health condition; and
- Because of a serious health condition that
makes the employee unable to perform the functions of the employee's
job.
7. Q. If family and medical leave is
taken for the birth of a child, or for the placement of a child
for adoption or foster care, when must the leave be concluded?
A. An employee's entitlement to
leave for the birth or placement for adoption or foster care of
a child expires at the end of the 12-month period beginning on the
date of the birth or placement of that child, unless the employing
office permits leave to be taken for a longer period. Any family
and medical leave must be concluded within the one year period.
8. Q. May family and medical leave
be taken in parts?
A. Family and medical leave may be taken
"intermittently" or on a "reduced leave schedule" under certain
circumstances. (This means taking leave in blocks of time, or by
reducing the normal weekly or daily work schedule.) When leave is
taken after the birth or placement of a child for adoption or for
foster care, an employee may take leave intermittently or on a reduced
leave schedule only if the employing office agrees. Leave may be
taken intermittently or on a reduced leave schedule when medically
necessary for planned and/or unanticipated medical treatment of
a related serious health condition, or for recovery from treatment
or recovery from a serious health condition. It may also be taken
to provide care or psychological comfort to an immediate family
member with a serious health condition. There is no limit on the
size of the increment of leave when an employee takes intermittent
leave or leave on a reduced leave schedule.
9. Q. May an employing office transfer
an employee to an "alternative position" in order to accommodate
intermittent leave or a reduced leave schedule?
A. When an employee requests intermittent
leave or a reduced leave schedule that is foreseeable based on planned
medical treatment, or where the employing office agrees to permit
such leave for the birth or placement of a child, the employing
office can transfer an employee temporarily to an available alternative
position for which that employee is qualified if the position:
- has equivalent pay and benefits; and
- accommodates recurring periods of leave better
than the regular employment position of the employee.
10. Q. Does an employing office have
to maintain an employee's health insurance coverage during family
and medical leave?
A. An employing office must maintain
an employee's group health coverage for the duration of the leave
at the level and under the same conditions as if the employee had
remained continuously employed for the duration of the leave, provided
the employee pays his or her share of the premiums. If the employee
fails to return to work after family and medical leave, the employee
may be required to repay the share of health coverage premiums paid
by or for the employing office, under certain circumstances. The
employing office is not required to allow accrual of any seniority
or employment benefits during the period of family and medical leave.
An employing office must not discriminate against
an employee using family and medical leave, and therefore must also
provide an employee with the same benefits (e.g. life or disability
insurance) normally provided to an employee in the same leave or
part-time status.
11. Q. What are an employee's rights
on returning to work from family and medical leave?
A. On returning to work from family and
medical leave, an employee is entitled to be restored 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. If the employee
is unable to perform an essential function of the position because
of a physical or mental condition, the employee has no right to
restoration to another position under section 202 of the CAA. However,
the employing office's obligations may be governed by the rights
and protections of the Americans with Disabilities Act and the Rehabilitation
Act, as made applicable by the CAA.
12. Q. With regard to restoration rights
and employment benefits, are there any limitations on an employing
office's obligations to reinstate an employee?
A. Yes. An employee has no greater
right to restoration or to other benefits than if the employee had
been continuously employed during the leave period. For example,
if the employee would have been laid off if the employee had not
taken leave, the employee need not be restored. In addition, under
limited circumstances, an employing office does not have to restore
certain highly compensated employees employed by the employing office
within 75 miles of the employee's worksite, called "key employees."
13. Q. What is a "key employee"?
A. A "key employee" is a salaried
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. An employing office may deny restoration
to a "key employee" only if: (1) it is necessary to prevent substantial
and grievous economic injury to the operations of the employing
office; (2) the employing office notifies the employee of its intention
to deny the employee restoration (ordinarily an employee must be
given notice at the time the employee requests leave of the employing
office's intention to deny restoration); and (3) the employee elects
not to return to work after receiving the employing office's notification.
14. Q. What notice does an employee
have to give an employing office when taking family and medical
leave?
A. When the need for family and
medical leave is foreseeable, an employee must give the employing
office at least 30 days advance notice of his or her intent to take
leave. However, where circumstances make that impossible, an employee
must give as much notice as is practicable. For medical leave, employees
must schedule planned treatment so as not to unduly disrupt the
employing office's operations.
15. Q. What recourse does an employing office
have if an employee fails to comply with the Act's notice requirements?
A. An employing office may always waive
family and medical leave notice requirements. However, if an employee
fails to give 30 days notice for foreseeable leave with no reasonable
excuse, the employing office may deny the taking of family and medical
leave until at least 30 days after the date the employee provides
notice. In all cases, for the onset of the employee's family and
medical leave to be delayed because of lack of required notice,
it must be clear that the employee had actual notice of the family
and medical leave notice requirements. (This condition would be
satisfied by the employing office's proper posting (front and back)
of the brochure prepared and distributed by the Office.)
16. Q. What notice may an employing
office require regarding an employee's intent to return to work?
A. An employing office may require
periodic reports from an employee on family and medical leave regarding
an employee's status and intent to return to work. If an employee
gives unequivocal notice of intent not to return to work, the employing
office's obligations to maintain health benefits 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. (The employing office's right to terminate
health benefits is also subject to coverage continuation requirements
of COBRA or 5 U.S.C. 8905a, whichever is applicable.)
17. Q. When must an employee provide
medical certification to support a request for family and medical
leave?
A. When an employee requests family
and medical leave, the employing office may require medical certification
from the health care provider supporting the need for leave due
to a serious health condition affecting the employee or an immediate
family member. When the need for leave is foreseeable, and at least
30 days notice has been provided, an employee should provide the
requested medical certification before the leave begins. When this
is not possible, an employee must provide the requested certification
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 an employee's diligent, good faith
efforts.
18. Q. What can an employing office
do if it questions the adequacy of a medical certification provided
by an employee?
A. If an employing office has reason
to doubt the validity of the medical certification provided by an
employee, the employing office may require and pay for an opinion
by a second health care provider. If the two opinions conflict,
the employing office may require and pay for a third opinion from
yet another health care provider approved jointly by the employing
office and the employee. The opinion of the third health care provider
is final and binding on the employee and the employing office.
OFFICE OF COMPLIANCE
The Congressional Accountability Act
of 1995: Extension of Rights and Protections Under the Family and
Medical Leave Act of 1993
NOTICE OF ADOPTION OF REGULATIONS AND
SUBMISSION FOR APPROVAL AND ISSUANCE OF INTERIM REGULATIONS
SUMMARY:
The Board of Directors of the Office of Compliance,
after considering comments to its general Notice of Proposed Rulemaking
published on November 28, 1995 in the Congressional Record, has
adopted, and is submitting for approval by the Congress, final regulations
to implement section 202 of the Congressional Accountability Act
of 1995 ("CAA") (2 U.S.C. §§ 1301 et seq.), which
applies certain rights and protections of the Family and Medical
Leave Act of 1993. The Board is also adopting and issuing such regulations
as interim regulations for the House of Representatives, the Senate,
and the employing offices of the instrumentalities effective on
January 23, 1996 or on the dates upon which appropriate resolutions
are passed, whichever is later. The interim regulations shall expire
on April 15, 1996 or on the dates on which appropriate resolutions
concerning the Board's final regulations are passed by the House
and the Senate, respectively, whichever is earlier.
FOR FURTHER INFORMATION CONTACT:
Executive Director, Office of Compliance, Room LA 200, John Adams
Building, 110 Second Street, S.E., Washington, D.C. 20540-1999.
Telephone (202) 724-9250.
SUPPLEMENTARY INFORMATION:
Background and Summary
The Congressional Accountability Act of 1995
("CAA"), Pub. L. 104-1, 109 Stat. 3 (2 U.S.C. §§ 1301
et seq.), was enacted January 23, 1995. In general the CAA
applies the rights and protections of eleven federal labor and employment
laws to covered employees and employing offices within the legislative
branch. In addition, the statute establishes the Office of Compliance
("Office") with a Board of Directors ("Board") as "an independent
office within the legislative branch of the Federal Government."
2 U.S.C. § 1381(a).
Section 202 of the CAA (2 U.S.C. § 1312)
applies the rights and protections of certain sections of the Family
and Medical Leave Act of 1993 ("FMLA") (29 U.S.C. §§ 2611
et seq.). The FMLA generally requires employers to permit
covered employees to take up to 12 weeks of unpaid, job-protected
leave during a 12-month period for the birth of a child and to care
for the newborn; placement of a child for adoption or foster care;
care of a spouse, child, or parent with a serious health condition;
or an employee's own serious health condition.
Sections 202(d) and 304 of the CAA (2 U.S.C.
§§ 1312(d), 1384) direct the Board to issue regulations
implementing section 202. Section 202(d)(2) further directs the
Board to issue substantive regulations that "shall be the same as
substantive regulations promulgated by the Secretary of Labor to
implement the statutory provisions referred to in subsection (a)
[of section 202] except insofar as the Board may determine, for
good cause shown and stated together with the regulation, that a
modification of such regulations would be more effective for the
implementation of the rights and protections under this section."
On September 28, 1995, the Board issued an Advance
Notice of Proposed Rulemaking ("ANPR") soliciting comments from
interested parties in order to obtain information and participation
early in the rulemaking process. 141 Cong. Rec. S14542 (daily ed.,
Sept. 28, 1995). Based on the comments received on the ANPR and
consultations with interested parties, the Board published in the
Congressional Record a Notice of Proposed Rulemaking ("NPR") on
November 28, 1995. 141 Cong. Rec. S17627 - S17652 (daily ed., Nov.
28, 1995). In response to the NPR, the Board received 5 written
comments, of which four were from offices of the Congress and congressional
instrumentalities and one was from a labor organization. The comments
included specific recommendations to either supplement or modify
regulations proposed in the NPR, or to clarify how certain regulations
would apply in fact-specific instances. In addition, the Office
has sought consultations with the Department of Labor regarding
the proposed regulations, pursuant to section 304(g) of the CAA.
After full consideration of the comments received,
the Board has adopted and is submitting these regulations for approval
by the Congress. Moreover, pursuant to sections 411 and 304 of the
CAA, the Board is adopting and issuing such regulations as interim
regulations for the House, the Senate, and the employing offices
of the instrumentalities effective on January 23, 1996 or on the
dates upon which appropriate resolutions are passed, whichever is
later. The interim regulations shall expire on April 15, 1996 or
on the dates on which appropriate resolutions concerning the Board's
final regulations are passed by the House and the Senate, respectively,
whichever is earlier.
I. Summary and Board Consideration
of Comments
A. Eligibility for Family and Medical Leave
Under section 202(a)(2)(B) of the CAA, an "eligible employee" is
defined as a covered employee who has been employed in "any employing
office for 12 months and for at least 1,250 hours of employment
during the previous 12 months." 2 U.S.C. § 1312(a)(2)(B). Section
825.110 of the Board's proposed regulations provided that, if an
employee worked for two or more employing offices, the time worked
would be aggregated to determine whether it equals 12 months, and
the hours of service would be aggregated to determine whether the
minimum of 1,250 hours has been reached.
As explained in the NPR, the statutory phrase "in any employing
office" is ambiguous when considered in isolation; it could mean
in any one employing office, or it could mean that months and hours
may be aggregated from every employing office where an employee
worked. The Board explained in the NPR that the better reading of
the CAA language is the latter one, and the Board adheres to that
view.
The definition of "eligible employee" in the
FMLA states explicitly that the required 12 months must have been
served with "the employer with respect to whom leave is requested,"
and that the requisite 1,250 hours must also have been served with
"such employer." However, in the CAA, Congress substituted the phrase
"any employing office" in place of the FMLA's specific references
to the employer from whom leave is requested. This substitution
suggests that eligibility should be determined on the basis of months
and hours worked for "any employing office," including offices other
than just the one from which leave is requested. This interpretation,
in fact, conforms to the interpretation stated in the section-by-section
analysis that the principal Senate sponsors of the CAA placed into
the Congressional Record during Senate consideration of this legislation.
141 Cong. Rec. S623 (daily ed., Jan. 9, 1995) (section-by-section
analysis).
One commenter stated that, in its view, each
employing office is a separate, independent employer and that employees
therefore should not be able to aggregate the months and hours worked
for more than one employing office to establish or maintain FMLA
eligibility. The commenter acknowledged that the Board's proposed
regulations do not adopt that position and urged that, at a minimum,
the Board should consider the Senate to be a separate employer from
the other entities covered by the CAA. The commenter argued that,
in its view, this alternative position is supported by the fact
that section 304(a)(2) of the CAA requires the Board to issue three
separate bodies of regulations, including one body of regulations
that shall apply to the Senate and employees of the Senate. Therefore,
according to the commenter, the Board's regulations for the Senate
must define "employing office" to include only Senate offices and
should not allow months and hours worked at employing offices outside
of the Senate to be considered in determining employee eligibility
for family and medical leave.
But the definition of "eligible employee" in
the CAA uses the term "employing office," not the term "employer,"
and the issue is whether this definition in the CAA requires aggregation
of months and hours worked in "any employing office." Whether different
employing offices are separate, independent "employers," and whether
the Senate is a separate "employer," begs resolution of this question.
Moreover, the provision of the CAA cited by
the commenter, entitled "Rulemaking procedure," is part of the CAA
section that establishes the procedures for adoption, approval,
and issuance of the Board's substantive regulations. 2 U.S.C. §
1384(a)(2). The cited provision requires the Board to divide its
substantive regulations into three parts -- for the Senate, for
the House of Representatives, and for other employing offices --
in order to enable the Office of Compliance, and to enable the Senate
and the House themselves, to exercise their respective statutorily
assigned roles in the proposal, adoption, and approval of regulations.
See 2 U.S.C. § 1384(a)(2). These procedural provisions of the
CAA do not alter the meaning of substantive provisions of the CAA;
nor do they specifically prevent the Board's regulations from including
hours and months worked with employing offices outside of the Senate
in defining "eligible employee" for purposes of determining family
and medical leave eligibility for Senate employees.
Finally, the history of the Senate's consideration
of congressional accountability legislation shows that the position
advocated by the commenter was considered by the Senate and was
not adopted. The version of the Congressional Accountability Act
reported by the Senate Governmental Affairs Committee in 1994 (H.R.
4822, 103d Cong., 2d Sess., as reported, S. Rep. No. 397, 103d Cong.,
2d Sess., 17 (Oct. 3, 1994)) provided that a Senate employee would
be eligible for family and medical leave after 12 months of non-temporary
employment by "any employing office of the Senate." The CAA, as
enacted a few months later, provides that eligibility of all covered
employees, including Senate employees, depends on the months and
hours worked "in any employing office" -- without the limiting phrase
"of the Senate." Furthermore, while the 1994 Senate Committee report
explained that an eligible "Senate employee" would retain FMLA eligibility
"irrespective of whether he or she changes employing offices within
the Senate," the section-by-section analysis published in the Congressional
Record in 1995, when the CAA was under consideration in the Senate,
explained that an eligible "covered employee" would retain FMLA
eligibility "irrespective of whether he or she changes employing
offices." Compare S. Rep. No. 397, at 17, with 141
Cong. Rec. S623 (daily ed. Jan. 9, 1995) (section-by-section analysis).
Unlike the explanation of the earlier Senate bill, the explanation
of the CAA was not limited to Senate employees and did not limit
employees' accrual and maintenance of leave eligibility to employment
"within the Senate." In short, the commenter's suggestion is not
consistent with the Senate's own deliberative history.
B. Joint Employers and Designation of Primary Employer
The Secretary's regulations provide that, whenever
an employee is employed jointly by more than one employer, the "primary"
employer is solely responsible for giving required notices, providing
FMLA leave, and maintaining health benefits, and is "primarily"
responsible for job restoration. 29 C.F.R. § 825.106(c). Comments
on the ANPR indicated that, in the context of congressional employment,
there may not always be a primary employer, and joint employers
should be authorized to designate one employing office to be responsible
for compliance with FMLA obligations. The Board accepted this view
and, in section 825.106(c) of the regulations, the Board proposed
to adopt such a provision.
One commenter now asks for clarification as
to whether employing offices that are joint employers may always
designate which of them will be responsible for FMLA compliance,
or whether this power exists only when there is no "primary" employer.
The commenter also stated that section 825.106(e), which describes
the secondary employer's responsibility for job restoration, should
apply only in the case of detailees.
The Board agrees that the proposed regulations
should be clarified. Section 826.106, as adopted by the Board, provides
that, in any instance of joint employment, the employing offices
may designate which office shall be the primary employer. Such a
designation must be made in writing to the employee. If such a designation
is not made, the employee may elect which of the joint employing
offices will be required to perform certain responsibilities of
a primary employer. This approach should afford administrative flexibility
to employing offices, eliminate uncertainty and fact-specific disputes,
and protect the rights of eligible employees.. The Board finds good
cause under section 202(d)(2) to make these modifications to the
Secretary's regulations, because joint employment without a clear
primary employer appears relatively common in congressional employment
(whereas it is not in the private sector).
Section 825.106(e) of the proposed regulations
assigned to the primary employer "primary" responsibility for job
restoration, but also assigned the secondary employer responsibility
for accepting an employee who returns from FMLA leave. The commenter
stated that this subsection "appears to be applicable" only in the
situation where a detailee is supplied to an employing office. The
commenter further urged that certain language from the Secretary's
regulations be restored to the Board's regulations to limit the
circumstances under which a secondary employer must accept an employee
returning from FMLA leave.
Several aspects of the Secretary's regulations
set forth at 29 C.F.R. § 826.106(e) are applicable only to
temporary and leasing agencies. However, temporary and leasing agencies
and their employees are not covered by the CAA, and there is not
a precise analogy between inter-office details of covered employees
and placement of employees by temporary or leasing agencies. Therefore,
the Board omitted from the proposed regulations certain clauses
that refer specifically to temporary and leasing agencies, and the
Board did not otherwise modify the Secretary's regulations to make
them applicable to detailees. However, the Board sought to retain
in subsection (e) the general principles regarding job restoration.
The final regulations attempt to accommodate the commenter's concerns
in some respects. Certain language from the Secretary's regulations
that was retained in the Board's proposed regulations, but that
makes sense only in the context of temporary or leasing agencies,
has now been omitted, and the limits on job restoration responsibilities
are stated more explicitly. However, the Board has retained the
general requirement of job restoration in situations of joint employment,
as originally promulgated in the Secretary's regulations.
Furthermore, in section 825.106(b) of its proposed
regulations, the Board identified inter-office details as an example
where joint employment will ordinarily be found. This example had
been inserted as a replacement for a provision in the Secretary's
regulations which identified temporary and leasing agencies as such
an example. However, as noted above, the Board does not believe
that a precise analogy exists between these two situations; accordingly,
the reference to detailees is omitted from the final regulations.
C. Designation of Leave Year by Joint
Employers.
Based on the Secretary's regulations, the Board proposed in section
825.200(b) that an employing office be permitted to choose one of
several methods for determining an eligible employee's "leave year"
-- i.e., the 12-month period within which a particular employee's
12 weeks of leave may be taken. The Board also endorsed two methods
that had been suggested by commenters by which joint employing offices
might choose a "leave year" for their joint employees.
A commenter noted that, although the Board has
allowed joint employing offices to choose a leave year for joint
employees, section 825.200(d)(1) requires that, if an employing
office selects a leave year method, the office must apply the method
consistently and uniformly to all of its employees. The commenter
suggested that the Board should expressly state an exception to
this rule where joint employers select a leave year for their joint
employees that is different from the leave year that any of the
joint employing offices selects for its non-joint employees.
This issue is addressed in the Board's regulations,
albeit in a somewhat different manner from that suggested by the
commenter. As discussed above, the Board's regulations authorize
employing offices to designate a primary employer in all instances
of joint employment. The Board has also provided in section 825.200(g)
of the regulations that, if the primary employer has chosen a leave
year under the regulations, the primary employer must apply the
leave year uniformly to the joint employee as well as to the primary
employer's non-joint employees. If the joint employing offices do
not designate a primary employer, then the employee may select one
of the joint employing offices to be the primary employer for the
purpose of the application of its leave year under applicable regulations.
Under applicable rules in paragraph (e), if the selected employing
office has not chosen a leave year option, the employee may use
any of the allowable leave year options.
Finally, a commenter has suggested that, upon
an employee's transfer to or from joint employment, if the applicable
leave year changes, the procedures under section 825.200(d)(1) of
the Board's regulations should be made applicable. That section
provides that, when an employing office changes to a new leave year,
it must provide 60 days' notice to all employees. However, section
825.200(d)(1) of the Board's regulations would not apply where an
individual employee changes to or from being jointly employed or
when a primary employer is designated. Such changes are analogous
to a transfer from one employing office to another, and should not
trigger the requirements of section 825.200(d)(1).
D. Minimally Paid Leave in the Senate
In response to the ANPR, a commenter advised
the Board that the Senate currently provides "minimally paid" FMLA
leave rather than unpaid leave. In the NPR, the Board stated that
granting minimally paid leave in lieu of unpaid leave would not
prevent the leave from being considered FMLA-qualifying leave and,
therefore, the situation of minimally paid leave did not need to
be addressed in the Board's regulations.
The commenter has responded that Senate minimally
paid leave needs to be specifically addressed and treated as unpaid
FMLA leave in order for an employing office to be able to recover
its share of health care insurance premiums from an employee when
such recovery would be appropriate if the employee were on unpaid
FMLA leave. Similarly, the commenter indicated that, where an employee
or employing office may substitute paid leave for unpaid FMLA leave,
a Senate employee or employing office should be entitled to substitute
paid leave for minimally paid leave. In addition, the commenter
asserted that minimally paid leave should also be treated as unpaid
leave in calculating who is a "key employee" under section 825.217(c)
of the Board's regulations.
The commenter has provided reasons why it may
matter to an employing office whether minimally paid leave is treated
as paid leave or as unpaid leave within the meaning of the regulations.
But the good cause needed to justify a change in the regulations
under section 202(d) of the CAA does not exist simply because regulations
may, as the commenter suggests, impose an undesirable expense or
inflexibility on employing offices. Thus, the commenter has not
offered a good cause justification for changing the Secretary's
regulations.
However, the Board fully realizes that there
may be some legal impediment to providing unpaid leave in the Senate
of which the Board is not aware. If so, a petition to amend these
regulations under section 304(f) of the CAA (2 U.S.C.§ 1384(f))
might be appropriate.
E. Health Benefits
The Secretary's regulations make a number of
references to title X of the Consolidated Omnibus Budget Reconciliation
Act of 1986, which requires continuation coverage under group health
plans (29 U.S.C. §§ 1161-1168) ("COBRA"). However, COBRA
does not apply to government insurance plans. Continuation coverage
similar to that under COBRA was enacted for federal employees in
the Federal Employees Health Benefits Amendments Act of 1988, codified
at 5 U.S.C. § 8905a. The Federal Employees Health Benefits
Program, which includes the continuation coverage provided by the
1988 Act, is available to all federal employees, including congressional
employees. In some provisions of the proposed regulations, the Board
retained references to COBRA and added phrases like "or by other
applicable law," and in other provisions the Board referred to "applicable
requirements of law" without reference to COBRA.
One commenter stated that references to COBRA
should remain and that references to "other applicable laws" should
not be added. The commenter explained that the Secretary's regulations
accurately delineate when an employer's obligations to maintain
health benefits during leave cease under the FMLA. Another commenter
stated that it is the commenter's understanding that COBRA applies
to congressional employees, and recommended that the Board's regulations
be consistent with respect to references to COBRA. A third commenter
asked for clarification of the applicability of COBRA. A commenter
also requested that section 825.211 of the Secretary's regulations,
which provides special rules for multi-employer health plans, be
included in the Board's regulations.
The Board finds good cause under section 202(d) of the CAA
to refer in its regulations to 5 U.S.C. § 8905a, as well as
to COBRA. See sections 825.209(f), 825.210(c)(2), 825.309(b),
and 825.700(a) of the Board's regulations. If the regulations referred
only to COBRA, which applies to few if any employing offices, the
intent of the provisions as originally promulgated by Secretary
(i.e., to delineate an employer's obligations to maintain health
benefits) would be negated.
The one exception is section 825.213(e) of the
Board's regulations. The Secretary's regulation limits premiums
that a self-insured employer may recover from an employee who does
not return from FMLA leave. The subsection allows recovery of premiums
"as would be calculated under COBRA" (excluding the 2 % administration
fee). Because 5 U.S.C. § 8905a does not provide for self-insurance
by individual Government employing agencies or offices, and since
the regulation uses the subjunctive "would be calculated under COBRA,"
it is appropriate to reference only COBRA in this section of the
regulations.
The Board is not currently aware of any provisions
other than 5 U.S.C. § 8905a that require COBRA-like continuation
coverage for government group health plans to which COBRA does not
apply. However, if any such provision does exist that might apply
to any employing office, a petition to amend these regulations under
section 304(f) of the CAA (2 U.S.C. § 1384(f)) might be appropriate.
Finally, the Board agrees with the commenter's
suggestion that 29 C.F.R. § 825.211 of the Secretary's regulations
be included in the Board's regulations, in order to cover potential
future situations where an employing office might contribute to
a multi-employer health plan.
F. Whether Special Rules Apply to
House Page School
The proposed regulations included special rules
that are applicable only to certain kinds of educational institutions.
Two commenters stated that the Board's regulations should state
explicitly that the special rules apply to the House Page School.
However, the commenters have not provided any, much less sufficient,
justification for finding good cause to modify the Secretary's regulation
under section 202(d) of the CAA. In fact, the commenters do not
appear to be asking for a change in the regulation, but rather for
a clarification that the House Page School is within its scope.
But they have not provided the Board with any factual or legal materials
upon which such an interpretive judgment could be based. Moreover,
they have not identified any authority in the CAA that would allow
the Board to make such an interpretive judgment in the context of
a rulemaking proceeding. Indeed, as explained in detail in the preamble
to the Board's final regulations implementing the rights and protections
of the Fair Labor Standards Act, it would be improper for the Board
to do so.
G. Notice Posting and Recordkeeping
In the NPR, the Board did not propose regulations
specifying notice posting or recordkeeping requirements for employing
offices. The Board also declined to propose regulations stating
that, in determining whether the requisite hours have been worked
for eligibility, the burden of proof would lie with an employing
office that does not keep adequate time records.
A commenter argued that: (1) enforcement of
the law will be greatly enhanced by requiring notice posting and
recordkeeping under the FMLA, and (2) it is a fair enforcement mechanism
for the burden of proof to lie with the employer when the records
maintained by the employer are inadequate.
The Board thoroughly considered these points
in preparing the NPR. The Board sees no reason to alter its previous
conclusions.
H. Prospective Application of Reductions
in FMLA Benefits
One commenter noted that the Senate and House
currently have more generous FMLA policies than those mandated by
the Board's proposed regulations. The commenter stated that, where
an employing office chooses to reduce FMLA benefits as allowed by
the new regulations, the Board's regulations need to clarify that
any policy changes may only be applied prospectively.
The Board disagrees. The Board's regulations
may apply only to FMLA rights under the CAA; they may not apply
to FMLA rights under pre-existing statutory and regulatory regimes.
Disputes under such pre-existing regimes, even if they are raised
after January 23, 1996, are not governed by these regulations and
should be directed to the authorities previously responsible for
such rules.
I. Miscellaneous Drafting Issues
1. Clarification of the 12 months during which 1,250 hours of
service must have occurred.
In defining which covered employee is an "eligible
employee", section 825.110(a) of the proposed regulations quoted
from the definition of "eligible employee" set forth in section
202(a)(2)(B) of the CAA (2 U.S.C. § 1312(a)(2)(B)). This definition
includes a requirement of "at least 1,250 hours of employment during
the previous 12 months."
A commenter stated that this wording is ambiguous.
The commenter suggested the addition of language from the corresponding
regulation promulgated by the Secretary: "1,250 hours of service
during the 12-month period immediately preceding the commencement
of the leave."
The Board agrees that the use of the phrase "immediately preceding"
may add some additional precision to the regulation. However, the
CAA uses the term "previous 12 months," while the FMLA uses the
term "previous 12-month period", 29 U.S.C. 2611(2)(A)(ii). Accordingly,
a new second sentence has been added to section 825.110(d) to state
that the "previous 12 months" means "the 12 months immediately preceding
the commencement of the leave.
2. References to "State law," "federal law,"
and "applicable law"
In several instances, the Secretary's regulations refer to applicable
State law, and in some instances the regulations refer to applicable
federal or State (or sometimes local) law. The Board's proposed
regulations omitted most references to State law but retained certain
references where appropriate. In some instances, the proposed regulations
removed references to applicable federal or State law, and replaced
them with references to applicable law.
One commenter stated agreement with the Board's
omission of references to State laws, because State laws do not
apply to the Senate, but objected to the Board's omission of the
word "federal" before reference to some laws, on the ground that
it might lead to confusion. The commenter stated in one instance
that regulations should refer only to "applicable federal wage payment
laws," not to "applicable wage payment or other laws," because only
those federal laws specifically made applicable to the Senate by
resolution or statute are applicable to the Senate. A commenter
also suggested that one reference to State law that the Board had
retained in the proposed regulations should be omitted.
Several regulatory provisions promulgated by
the Secretary referring to State laws that are clearly inapplicable
to employing offices were omitted from the Board's proposed regulations.
However, the proposed regulation retained a reference in section
825.200(b)(2) to leave years required by State law. This reference
is omitted from the final regulations.
The proposed regulations also retained references
to State law that may appropriately apply to FMLA rights and protections
as made applicable by the CAA. These include, for example, State
laws on certification of medical care providers, State laws on approval
of foster care, and State laws determining who is a spouse. These
references are retained in the final regulations.
In a few instances where the Secretary's regulations
referred to applicable federal or State law, the Board retained
the reference to applicable law, but omitted the mention of "federal"
or "State." The Board is not in a position to determine whether
any State law might be applicable in some instances with respect
to these provisions. Nor should these provisions cause confusion
with respect to the possibility of State law applying. The phrase
"applicable law" certainly does not cause State law to apply where
it otherwise would not; the phrase simply means that, if a law does
apply to the employing office, such a law is referenced by the regulations.
Accordingly, the references to applicable laws and requirements
in sections 825.213(f) and 825.301(e) of the Board's regulations
are adopted as proposed.
Section 824.204(b) of the Secretary's regulations
refers to applicable federal law and State law, and the provision
as proposed by the Board retained the reference to "federal" but
not "State" law. To be consistent with the foregoing principles,
section 824.204(b) of the Board's regulations as adopted includes
a reference to applicable law, without limiting the reference to
"federal" law.
3. Definitions
A commenter suggested that a definition of COBRA
be added to the Board's regulations. Such a definition is provided
in the Secretary's regulations, and has been added to section 825.800
of the Board's regulations.
A definition of "employ" is also included in
the final regulations, meaning "to suffer or permit to work." This
definition is contained in the Secretary's regulations, but was
omitted from the Board's proposed regulations. This definition is
established under the Fair Labor Standards Act, 29 U.S.C. §
203(g), and is incorporated by reference into the FMLA, 29 U.S.C.
§ 2611(3).
4. Cross references to regulations and interpretations
under the Fair Labor Standards Act ("FLSA") and the Americans with
Disabilities Act ("ADA")
The Secretary's regulations under the FMLA contain
several cross references to the Secretary's regulations implementing
or interpreting the Fair Labor Standards Act ("FLSA"). Where the
Board has adopted applicable FLSA regulations under the CAA, those
Board regulations are now referenced in the Board's FMLA regulations.
See, e.g., sections 825.206, 825.217(b) of the Board's regulations.
However, a number of the Secretary's interpretive
bulletins that interpret the FLSA, which the Board has not adopted,
are cross referenced in the Secretary's regulations under the FMLA.
In these instances, the subject of the referenced interpretation
is summarized in the Board's FMLA regulations in place of the cross
reference. This same approach is used where the Secretary's regulations
under the FMLA contain cross references to regulations by the Equal
Employment Opportunity Commission interpreting the Americans with
Disabilities Act ("ADA"), as the Board has not adopted these regulations.
See sections 825.110(c), 825.113(c)(2), 825.115, 825.205, 825.800
of the Board's regulations.
5. Corrections and clarifications
Commenters suggested a number of technical corrections and clarifications
in the proposed regulations. For example, a commenter pointed out
that section 825.200(b)(4) of the Secretary's regulations was inadvertently
omitted from the Board's proposed regulations. This subparagraph
describes the fourth optional method that an employing office may
choose for determining leave years, sometimes called the rolling
looking-backwards method. This subparagraph is restored in the final
regulation.
A commenter suggested that section 825.213(a)
of the proposed regulations be amended to clarify that references
to an employing office's share of health plan premiums, which may
be recovered under certain circumstances, encompasses monies paid
out of a Senate fund, as opposed to from appropriations of the employing
office. The proposed regulations, like the Secretary's regulations,
authorized the employing office to "recover its share" of the premiums.
In light of the centralized manner in which the payment of health
care insurance premiums is handled in the government, it is appropriate
to expressly accommodate the situation where premiums may be paid
and recovered on behalf of an employing office rather than by the
employing office itself.
A number of other typographical, grammatical,
and similar corrections were suggested. The Board has made corrections
as appropriate. However, by making these changes, the Board does
not intend a substantive difference between these sections 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.
K. Board Determination on Regulations "Required" to Be Issued
In Connection with Section 411
Section 411 of the CAA provides in pertinent
part that "if the Board has not issued a regulation on a matter
for which [the CAA] requires a regulation to be issued the hearing
officer, Board, or court, as the case may be, shall apply, to the
extent necessary and appropriate, the most relevant substantive
executive agency regulation promulgated to implement the statutory
provision at issue." 2 U.S.C. § 1411. By its own terms, this
provision comes into play only where it is determined that the Board
has not issued a regulation that is required by the CAA.
Thus, before a Department of Labor regulation can be invoked, an
adjudicator must make a threshold determination that the regulation
concerns a matter as to which the Board was obligated under the
CAA to issue a regulation.
Part 825 of 29 C.F.R. contains all the regulations
the Secretary of Labor issued to implement the FMLA. As noted in
the NPR, several of those regulations are not legally "required"
to be issued as CAA regulations because the underlying FMLA provisions
were not made applicable under the CAA. Additionally, the Board
has determined that it has good cause under section 202(d) of the
CAA not to issue other of the Secretary's regulations because, for
example, they have no applicability to legislative branch employment.
Other than the comments discussed above, the commenters did not
dispute the inapplicability of those portions of 29 C.F.R. part
825.
The Board has carefully reviewed the entire
corpus of the Secretary's regulations, has sought comment on its
proposal concerning the regulations that it should (and should not)
adopt, and has considered those comments in formulating its final
rules. Based on this review and consideration, and in order to prevent
wasteful litigation, the Board has included a declaration in these
regulations that the Board has issued all the regulations that it
is "required" to promulgate to implement the statutory provisions
of the FMLA that are made applicable to the legislative branch by
the CAA.
III. ADOPTION OF PROPOSED RULES AS FINAL REGULATIONS UNDER SECTION
304(b)(3) AND AS INTERIM REGULATIONS
Having considered the public comments to the proposed rules, the
Board pursuant to section 304(b)(3) and (4) of the CAA is adopting
these final regulations and transmitting them to the House of Representatives
and the Senate with recommendations as to the method of approval
by each body under section 304(c). However, the rapidly approaching
effective date of the CAA's implementation necessitates that the
Board take further action with respect to these regulations. For
the reasons explained below, the Board is also today adopting and
issuing these rules as interim regulations that will be effective
as of January 23, 1996 or the time upon which appropriate resolutions
of approval of these interim regulations are passed by the House
and/or the Senate, whichever is later. These interim regulations
will remain in effect until the earlier of April 15, 1996 or the
dates upon which the House and Senate complete their respective
consideration of the final regulations that the Board is herein
adopting.
The Board finds that it is necessary and appropriate
to adopt such interim regulations and that there is "good cause"
for making them effective as of the later of January 23, 1996, or
the time upon which appropriate resolutions of approval of them
are passed by the House and the Senate. In the absence of the issuance
of such interim regulations, covered employees, employing offices,
and the Office of Compliance staff itself would be forced to operate
in regulatory uncertainty. While section 411 of the CAA provides
that, "if the Board has not issued a regulation on a matter for
which this Act requires a regulation to be issued, the hearing officer,
Board, or court, as the case may be, shall apply, to the extent
necessary and appropriate, the most relevant substantive executive
agency regulation promulgated to implement the statutory provision
at issue in the proceeding," covered employees, employing offices
and the Office of Compliance staff might not know what regulation,
if any, would be found applicable in particular circumstances absent
the procedures suggested here. The resulting confusion and uncertainty
on the part of covered employees and employing offices would be
contrary to the purposes and objectives of the CAA, as well as to
the interests of those whom it protects and regulates. Moreover,
since the House and the Senate will likely act on the Board's final
regulations within a short period of time, covered employees and
employing offices would have to devote considerable attention and
resources to learning, understanding, and complying with a whole
set of default regulations that would then have no future application.
These interim regulations prevent such a waste of resources.
The Board's authority to issue such interim
regulations derives from sections 411 and 304 of the CAA. Section
411 gives the Board authority to determine whether, in the absence
of the issuance of a final regulation by the Board, it is necessary
and appropriate to apply the substantive regulations of the executive
branch in implementing the provisions of the CAA. Section 304(a)
of the CAA in turn authorizes the Board to issue substantive regulations
to implement the Act. Moreover, section 304(b) of the CAA instructs
that the Board shall adopt substantive regulations "in accordance
with the principles and procedures set forth in section 553 of title
5, United States Code," which have in turn traditionally been construed
by courts to allow an agency to issue "interim" rules where the
failure to have rules in place in a timely manner would frustrate
the effective operation of a federal statute. See, e.g.,
Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877
(3d Cir. 1982). As noted above, in the absence of the Board's adoption
and issuance of these interim rules, such a frustration of the effective
operation of the CAA would occur here.
In so interpreting its authority, the Board
recognizes that in section 304 of the CAA, Congress specified certain
procedures that the Board must follow in issuing substantive regulations.
In section 304(b), Congress said that, except as specified in section
304(e), the Board must follow certain notice and comment and other
procedures. The interim regulations in fact have been subject to
such notice and comment and such other procedures of section 304(b).
In issuing these interim regulations, the Board
also recognizes that section 304(c) specifies certain procedures
that the House and the Senate are to follow in approving the Board's
regulations. The Board is of the view that the essence of section
304(c)'s requirements are satisfied by making the effectiveness
of these interim regulations conditional on the passage of appropriate
resolutions of approval by the House and/or the Senate. Moreover,
section 304(c) appears to be designed primarily for (and applicable
to) final regulations of the Board, which these interim regulations
are not. In short, section 304(c)'s procedures should not be understood
to prevent the issuance of interim regulations that are necessary
for the effective implementation of the CAA.
Indeed, the promulgation of these interim regulations
clearly conforms to the spirit of section 304(c) and, in fact promotes
its proper operation. As noted above, the interim regulations shall
become effective only upon the passage of appropriate resolutions
of approval, which is what section 304(c) contemplates. Moreover,
these interim regulations allow more considered deliberation by
the House and the Senate of the Board's final regulations under
section 304(c).
The House has in fact already signaled its approval
of such interim regulations both for itself and for the instrumentalities.
On December 19, 1995, the House adopted H. Res. 311 and H. Con.
Res. 123, which approve "on a provisional basis" regulations "issued
by the Office of Compliance before January 23, 1996." The Board
believes these resolutions are sufficient to make these interim
regulations effective for the House on January 23, 1996, though
the House might want to pass new resolutions of approval in response
to this pronouncement of the Board.
To the Board's knowledge, the Senate has not
yet acted on H. Con. Res. 123, nor has it passed a counterpart to
H. Res. 311 that would cover employing offices and employees of
the Senate. As stated herein, it must do so if these interim regulations
are to apply to the Senate and the other employing offices of the
instrumentalities (and to prevent the default rules of the executive
branch from applying as of January 23, 1996).
IV. METHOD OF APPROVAL
The Board received no comments on the method of approval for these
regulations. Therefore, the Board continues to recommend that (1)
the version of the regulations that shall apply to the Senate and
employees of the Senate should be approved by the Senate by resolution;
(2) the version of the regulations that shall apply to the House
of Representatives and employees of the House of Representatives
should be approved by the House of Representatives by resolution;
and (3) the version of the regulations that shall apply to other
covered employees and employing offices should be approved by the
Congress by concurrent resolution.
With respect to the interim version of these
regulations, the Board recommends that the Senate approve them by
resolution insofar as they apply to the Senate and employees of
the Senate. In addition, the Board recommends that the Senate approve
them by concurrent resolution insofar as they apply to other covered
employees and employing offices. It is noted that the House has
expressed its approval of the regulations insofar as they apply
to the House and its employees through its passage of H. Res. 311
on December 19, 1995. The House also expressed its approval of the
regulations insofar as they apply to other employing offices through
passage of H. Con. Res. 123 on the same date; this concurrent resolution
is pending before the Senate.
PART 825 -- FAMILY AND MEDICAL LEAVE
§825.1 Purpose and scope
§825.2 Duration of interim regulations
SUBPART A - What is the Family and Medical Leave Act, and
to Whom Does it Apply under the Congressional Accountability Act?
§825.100 What is the Family and Medical Leave Act?
§825.101What is the purpose of the
FMLA?
§825.102 When are the FMLA and the
CAA effective for covered employees and employing offices?
§825.103How does the FMLA, as made applicable by the CAA, affect
leave in progress on, or taken before, the effective date of the
CAA?
§825.104 What employing offices are
covered by the FMLA, as made applicable by the CAA?
§825.105[Reserved]
§825.106 How is "joint employment"
treated under the FMLA as made applicable by the CAA?
§825.107 - 825.109 [Reserved]
§825.110 Which employees are "eligible"
to take FMLA leave under these regulations?
§825.111 [Reserved]
§825.112 Under what kinds of circumstances
are employing offices required to grant family or medical leave?
§825.113 What do "spouse," "parent,"
and "son or daughter" mean for purposes of an employee qualifying
to take FMLA leave?
§825.114 What is a "serious health
condition" entitling an employee to FMLA leave?
§825.115 What does it mean that "the
employee is unable to perform the functions of the position of the
employee"?
§825.116 What does it mean that an
employee is "needed to care for" a family member?
§825.117 For an employee seeking intermittent
FMLA leave or leave on a reduced leave schedule, what is meant by
"the medical necessity for" such leave?
§825.118 What is a "health care provider"?
SUBPART B - What Leave Is an Employee
Entitled to Take
under the Family and Medical Leave Act, as Made Applicable by the
Congressional Accountability Act?
§825.200 How much leave may an employee take?
§825.201 If leave is taken for the
birth of a child, or for placement of a child for adoption or foster
care, when must the leave be concluded?
§825.202 How much leave may a husband
and wife take if they are employed by the same employing office?
§825.203 Does FMLA leave have to be taken all at once, or can
it be taken in parts?
§825.204 May an employing office transfer
an employee to an "alternative position" in order to accommodate
intermittent leave or a reduced leave schedule?
§825.205 How does one determine the
amount of leave used where an employee takes leave intermittently
or on a reduced leave schedule?
§825.206 May an employing office deduct
hourly amounts from an employee's salary, when providing unpaid
leave under FMLA, as made applicable by the CAA, without affecting
the employee's qualification for exemption as an executive, administrative,
or professional employee, or when utilizing the fluctuating workweek
method for payment of overtime, under the Fair Labor Standards Act?
§825.207 Is FMLA leave paid or unpaid?
§825.208 Under what circumstances
may an employing office designate leave, paid or unpaid, as FMLA
leave and, as a result, enable leave to be counted against the employee's
total FMLA leave entitlement?
§825.209 Is an employee entitled to
benefits while using FMLA leave?
§825.210 How may employees on FMLA
leave pay their share of group health benefit premiums?
§825.211 What special health benefits
maintenance rules apply to multi-employer health plans?
§825.212 What are the consequences
of an employee's failure to make timely health plan premium payments?
§825.213 May an employing office recover
costs it incurred for maintaining "group health plan" or other non-health
benefits coverage during FMLA leave?
§825.214 What are an employee's rights
on returning to work from FMLA leave?
§825.215 What is an equivalent position?
§825.216 Are there any limitations
on an employing office's obligation to reinstate an employee?
§825.217 What is a "key employee"?
§825.218 What does "substantial and
grievous economic injury" mean?
§825.219 What are the rights of a
key employee?
§825.220 How are employees protected who request leave or otherwise
assert FMLA rights?
SUBPART C -- How do Employees Learn of Their Rights and Obligations
under the FMLA, as Made Applicable by the CAA, and What Can an Employing
Office Require of an Employee?
§825.300 [Reserved]
§825.301 What notices to employees
are required of employing offices under the FMLA as made applicable
by the CAA?
§825.302 What notice does an employee
have to give an employing office when the need for FMLA leave is
foreseeable?
§825.303 What are the requirements
for an employee to furnish notice to an employing office where the
need for FMLA leave is not foreseeable?
§825.304 What recourse do employing
offices have if employees fail to provide the required notice?
§825.305 When must an employee provide
medical certification to support FMLA leave?
§825.306 How much information may be required
in medical certifications of a serious health condition?
§825.307 What may an employing office
do if it questions the adequacy of a medical certification?
§825.308 Under what circumstances
may an employing office request subsequent recertifications of medical
conditions?
§825.309 What notice may an employing
office require regarding an employee's intent to return to work?
§825.310 Under what circumstances
may an employing office require that an employee submit a medical
certification that the employee is able (or unable) to return to
work (i.e., a "fitness-for-duty" report)?
§825.311 What happens if an employee
fails to satisfy the medical certification and/or recertification
requirements?
§825.312 Under what circumstances
may an employing office refuse to provide FMLA leave or reinstatement
to eligible employees?
SUBPART D - What Enforcement Mechanisms
Does the CAA Provide ?
§825.400 What can employees do who
believe that their rights under the FMLA as made applicable by the
CAA have been violated?
§825.401 -- 825.404 [Reserved]
SUBPART E -- [Reserved]
SUBPART F - What Special Rules Apply to Employees of Schools?
§825.600 To whom do the special rules
apply?
§825.601 What limitations apply to
the taking of intermittent leave or leave on a reduced leave schedule?
§825.602 What limitations apply to
the taking of leave near the end of an academic term?
§825.603 Is all leave taken during
"periods of a particular duration" counted against the FMLA leave
entitlement?
§825.604 What special rules apply
to restoration to "an equivalent position?"
SUBPART G - How Do Other Laws, Employing
Office Practices, and Collective Bargaining Agreements Affect Employee
Rights Under the FMLA as Made Applicable by the CAA?
§825.700 What if an employing office
provides more generous benefits than required by FMLA as Made Applicable
by the CAA?
§825.701 [Reserved]
§825.702 How does FMLA affect anti-discrimination
laws as applied by section 201 of the CAA?
SUBPART H - Definitions
§825.800 Definitions.
Appendix A to Part 825 [Reserved]
Appendix B to Part 825 Certification of Physician or Practitioner
Appendix C to Part 825 [Reserved]
Appendix D to Part 825 Prototype
Notice: Employing Office Response to Employee Request for Family
and Medical Leave
Appendix E to Part 825 [Reserved]
§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
§ 825.800 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, Office
of Compliance, 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) 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.
§825.2 Duration of interim regulations
These interim regulations for the House, the Senate and the employing
offices of the instrumentalities are effective on January 23, 1996
or on the dates upon which appropriate resolutions are passed, whichever
is later. The interim regulations shall expire on April 15, 1996
or on the dates on which appropriate resolutions concerning the
Board's final regulations are passed by the House and the Senate.
SUBPART A - What is the Family and
Medical Leave Act, and to Whom Does it Apply under the Congressional
Accountability Act? §825.100
What is 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
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,
or because the employee's own serious health condition makes the
employee unable to perform the functions of his or her job (see
§ 825.306(b)(4)). In certain cases, this 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. The employing office
or a disbursing or other financial office of the House of Representatives
or the Senate 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 immediate family member, 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 has a right to 30 days advance notice from
the employee where practicable. In addition, the employing office
may require an employee to submit certification from a health care
provider to substantiate that the leave is due to the serious health
condition of the employee or the employee's immediate family member.
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 §825.311(c)).
The employing office may delay restoring the employee to employment
without such certificate relating to the health condition which
caused the employee's absence.
§825.101 What is the 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, and for the care of a child,
spouse, or parent who has a serious health condition. 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 employers, 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 enactment of 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 employers
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.
§825.102 When are the FMLA and
the CAA effective for covered employees and employing offices?
(a) The rights and protection of sections 101 through 105 of the
FMLA have applied to certain Senate employees and certain employing
offices of the Senate since August 5, 1993 (see section 501
of FMLA).
(b) The rights and protection of sections 101 through 105 of the
FMLA have applied to any employee in an employment position and
any employment authority of the House of Representatives since August
5, 1993 (see section 502 of FMLA).
(c) The rights and protections of sections 101 through 105 of the
FMLA have applied to certain employing offices and covered employees
other than those referred to in paragraphs (a) and (b) of this section
for certain periods since August 5, 1993 (see, e.g., Title
V of the FMLA, sections 501 and 502).
(d) The provisions of section 202 of the CAA that apply rights and
protections of the FMLA to covered employees are effective on January
23, 1996.
(e) The period prior to the effective date of the application of
FMLA rights and protections under the CAA must be considered in
determining employee eligibility.
§825.103 How does the FMLA, as made applicable by the CAA,
affect leave in progress on, or taken before, the effective date
of the CAA?
(a) An eligible employee's right to take FMLA leave began on the
date that the rights and protections of the FMLA first went into
effect for the employing office and employee (see §
825.102(a)). Any leave taken prior to the date on which the rights
and protections of the FMLA first became effective for the employing
office from which the leave was taken may not be counted for purposes
of the FMLA as made applicable by the CAA. If leave qualifying as
FMLA leave was underway prior to the effective date of the FMLA
for the employing office from which the leave was taken and continued
after the FMLA's effective date for that office, only that portion
of leave taken on or after the FMLA's effective date may be counted
against the employee's leave entitlement under the FMLA, as made
applicable by the CAA.
(b) If an employing office-approved leave is underway when the application
of the FMLA by the CAA takes effect, no further notice would be
required of the employee unless the employee requests an extension
of the leave. For leave which commenced on the effective date or
shortly thereafter, such notice must have been given which was practicable,
considering the foreseeability of the need for leave and the effective
date.
(c) Starting on January 23, 1996, an employee is entitled to FMLA
leave under these regulations if the reason for the leave is qualifying
under the FMLA, as made applicable by the CAA, even if the event
occasioning the need for leave (e.g., the birth of a child)
occurred before such date (so long as any other requirements are
satisfied).
§825.104 What employing offices
are covered by the FMLA, as made applicable by the CAA?
(a) 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 Capitol Guide Board, the Capitol Police Board, the Congressional
Budget Office, the Office of the Architect of the Capitol, the
Office of the Attending Physician, the Office of Compliance,
and the Office of Technology Assessment.
(b) [Reserved]
(c) Separate entities will be deemed to be parts of a single employer
for purposes of the FMLA, as made applicable by the CAA, if they meet
the "integrated employer" test. A determination of whether or not
separate entities are an integrated employer is not determined by
the application of any single criterion, but rather the entire relationship
is to be reviewed in its totality. Factors considered in determining
whether two or more entities are an integrated employer include:
- (i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common financial control.
§825.105 [Reserved]
§825.106
How is "joint employment" treated under the FMLA as made applicable
by the CAA?
(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. §825.107
[Reserved]
§825.108 [Reserved]
§825.109 [Reserved]
§825.110 Which employees are "eligible"
to take FMLA leave under these regulations?
(a) An "eligible employee" under these regulations means a covered
employee who has been employed in any employing office for 12 months
and for at least 1,250 hours of employment during the previous 12
months.
(b) The 12 months an employee must have been employed by any employing
office need not be consecutive months. If an employee worked for
two or more employing offices sequentially, the time worked will
be aggregated to determine whether it equals 12 months. 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 employer (e.g.,
workers' 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.
(c) 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. 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. The determination
is not limited by methods of record-keeping, 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 may be used. For this purpose,
full-time teachers (see § 825.800 for definition) of an elementary
or secondary school system, or institution of higher education,
or other educational establishment or institution are deemed to
meet the 1,250 hour test. An employing office must be able to clearly
demonstrate that such an employee did not work 1,250 hours during
the previous 12 months in order to claim that the employee is not
"eligible" for FMLA leave.
(d) The determinations of whether an employee has worked for any
employing office for at least 1,250 hours in the previous 12 months
and has been employed by any employing office for a total of at
least 12 months must be made as of the date leave commences. The
"previous 12 months" means the 12 months immediately preceding the
commencement of the leave. If an employee notifies the employing
office of need for FMLA leave before the employee meets these eligibility
criteria, the employing office must either confirm the employee's
eligibility based upon a projection that the employee will be eligible
on the date leave would commence or must advise the employee when
the eligibility requirement is met. If the employing office confirms
eligibility at the time the notice for leave is received, the employing
office may not subsequently challenge the employee's eligibility.
In the latter case, if the employing office does not advise the
employee whether the employee is eligible as soon as practicable
(i.e., two business days absent extenuating circumstances)
after the date employee eligibility is determined, the employee
will have satisfied the notice requirements and the notice of leave
is considered current and outstanding until the employing office
does advise. If the employing office fails to advise the employee
whether the employee is eligible prior to the date the requested
leave is to commence, the employee will be deemed eligible. The
employing office may not, then, deny the leave. Where the employee
does not give notice of the need for leave more than two business
days prior to commencing leave, the employee will be deemed to be
eligible if the employing office fails to advise the employee that
the employee is not eligible within two business days of receiving
the employee's notice.
(e) The period prior to the effective date of the application of
FMLA rights and protections under the CAA must be considered in
determining employee's eligibility.
(f) [Reserved]
§825.111 [Reserved]
§825.112 Under what kinds
of circumstances are employing offices required to grant family
or medical leave?
(a) Employing offices are required to grant leave to eligible employees:
- (1) For birth of a son or daughter, and
to care for the newborn child;
(2) For placement with the employee of a son or daughter for
adoption or foster care;
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition; and
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job.
(b) 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) Circumstances may require that FMLA leave begin before the actual
date of birth of a child. An expectant mother may take FMLA leave
pursuant to paragraph (a)(4) of this section before the birth of the
child for prenatal care or if her condition makes her unable to work.
(d) Employing offices are required to grant FMLA leave pursuant to
paragraph (a)(2) of this section 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,
or submit to a physical examination. 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.
(e) Foster care is 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.
(f) In situations where the employer/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.
(g) FMLA leave is available for treatment for substance abuse provided
the conditions of § 825.114 are met. However, 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 an immediate family member who is
receiving treatment for substance abuse. The employing office may
not take action against an employee who is providing care for an immediate
family member receiving treatment for substance abuse.
§825.113 What do "spouse," "parent,"
and "son or daughter" mean for purposes of an employee qualifying
to take FMLA leave?
(a) Spouse means a husband or wife as defined or recognized under
State law for purposes of marriage in the State where the employee
resides, including common law marriage in States where it is recognized.
(b) Parent means a biological parent or an individual who stands
or stood in loco parentis to an employee when the employee
was a son or daughter as defined in (c) below. This term does not
include parents "in law".
(c) 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."
- (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. See the Americans with Disabilities
Act (ADA), as made applicable by section 201(a)(3) of the CAA
(2 U.S.C. 1311(a)(3)).
(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.
(d) 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. §825.114
What is a "serious health condition" entitling an employee to
FMLA leave?
(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:
- (1) Inpatient care (i.e.,
an overnight stay) in a hospital, hospice, or residential medical
care facility, including any period of incapacity (for
purposes of this section, defined to mean inability to work,
attend school or perform other regular daily activities due
to the serious health condition, treatment therefor, or recovery
therefrom), or any subsequent treatment in connection with such
inpatient care; or
(2) Continuing treatment by a
health care provider. A serious health condition involving continuing
treatment by a health care provider includes any one or more
of the following:
(i) A period of incapacity
(i.e., inability to work, attend school or perform other
regular daily activities due to the serious health condition,
treatment therefor, or recovery therefrom) of more than three
consecutive calendar days, and any subsequent treatment or period
of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider,
by a nurse or physician's assistant 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
(B) 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.
(ii) Any period of incapacity due to pregnancy, or for prenatal
care.
(iii) Any period of incapacity or treatment
for such incapacity due to a chronic serious health condition.
A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health
care provider, or by a nurse or physician's assistant under
direct supervision of a health care provider;
(B) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity
(e.g., asthma, diabetes, epilepsy, etc.).
(iv) 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.
(v) 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, either for restorative
surgery after an accident or other injury, or for a condition
that would likely result in a period of incapacity of more than
three consecutive calendar days in the absence of medical intervention
or treatment, such as cancer (chemotherapy, radiation, etc.),
severe arthritis (physical therapy), kidney disease (dialysis).
(b) Treatment for purposes of paragraph (a)
of this section 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. Under paragraph (a)(2)(i)(B), 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.
(c) 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 resulting from stress or
allergies may be serious health conditions, but only if all the conditions
of this section are met.
(d) Substance abuse may be a serious health condition if the conditions
of this section 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.
(e) Absences attributable to incapacity under paragraphs (a)(2)(ii)
or (iii) qualify for FMLA leave even though the employee or the immediate
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 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. §825.115 What
does it mean that "the employee is unable to perform the functions
of the position of the employee"?
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 made applicable by section 201(a)(3)
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. 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. For purposes of
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.
§825.116 What does it mean
that an employee is "needed to care for" a family member?
(a) The medical certification provision that an employee is "needed
to care for" a family member 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, etc.
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 fill in for others who are caring for the family member,
or to make arrangements for changes in care, such as transfer to
a nursing home.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member includes not only a situation
where the family member's condition 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.
§ 825.117 For an employee seeking
intermittent FMLA leave or leave on a reduced leave schedule, what
is meant by "the medical necessity for" such leave?
For intermittent leave or leave on a reduced leave schedule, there
must be a medical need for leave (as distinguished from voluntary
treatments and procedures) 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 (see §
825.306) meets the requirement for certification of the medical
necessity of intermittent leave or leave on a reduced leave schedule.
Employees needing intermittent FMLA leave or leave on a reduced
leave schedule must attempt to schedule their leave so as not to
disrupt the employing office's operations. In addition, an employing
office may assign an employee to an alternative position with equivalent
pay and benefits that better accommodates the employee's intermittent
or reduced leave schedule.
§825.118 What is a "health care
provider"?
(a)(1) The term "health care provider" means:
- (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 Office of Compliance
to be capable of providing health care services.
- (2) In making a determination referred to
in subparagraph (1)(ii), and absent good cause shown to do otherwise,
the Office of Compliance will follow any determination made
by the Secretary of Labor (under section 101(6)(B) of the FMLA,
29 U.S.C. 2611(6)(B)) that a person is capable of providing
health care services, provided the Secretary's determination
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 and clinical social
workers 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
without supervision by a doctor or other health care provider.
SUBPART B - What Leave Is an Employee Entitled to Take under
the Family and Medical Leave Act, as Made Applicable by the Congressional
Accountability Act?
§825.200 How much leave may an
employee take?
(a) 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; and,
(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.
(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 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 begins; or
(4) A "rolling" 12-month period measured backward from the date
an employee uses any FMLA leave (except that such measure may
not extend back before the date on which the application of
FMLA rights and protections first becomes effective for the
employing office; see § 825.102).
(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, 1997, four weeks beginning June 1,
1997, and four weeks beginning December 1, 1997, the employee would
not be entitled to any additional leave until February 1, 1998. However,
beginning on February 1, 1998, the employee would be entitled to four
weeks of leave, on June 1 the employee would be entitled to an additional
four weeks, etc.
(d)(1) Employing offices will be allowed to choose any one of the
alternatives in paragraph (b) 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, 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) 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 for some reason the employing office's 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.
(g)(1) If employing offices jointly employ an employee, and if they
designate a primary employer pursuant to § 825.106(c), the primary
employer 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 employer including the jointly employed employee.
- (2) If employing offices fail to designated
a primary employer 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 employer of the employee for purposes of the
application of paragraphs (d) and (e) of this section.
§825.201 If leave is taken for the birth of a child, or for
placement of a child for adoption or foster care, when must the leave
be concluded?
An employee's entitlement to leave for a birth or placement for adoption
or foster care expires at the end of the 12-month period beginning
on the date of the birth or placement, unless the employing office
permits leave to be taken for a longer period. Any such FMLA leave
must be concluded within this one-year period. §825.202
How much leave may a husband and wife take if they are employed
by the same employing office?
(a) A husband and wife 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:
- (1) for birth of the employee's son or daughter
or to care for the child after birth;
(2) for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement;
or
(3) to care for the employee's parent with a serious health
condition.
(b) This limitation on the total weeks of
leave applies to leave taken for the reasons specified in paragraph
(a) of this section as long as a husband and wife 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.
(c) Where the husband and wife both use a portion of the total 12-week
FMLA leave entitlement for one of the purposes in paragraph (a) of
this section, the husband and wife would each be entitled to the difference
between the amount he or she has taken individually and 12 weeks for
FMLA leave for a purpose other than those contained in paragraph (a)
of this section. For example, if each spouse took 6 weeks of leave
to care for a healthy, newborn child, each could use an additional
6 weeks due to his or her own serious health condition or to care
for a child with a serious health condition. §825.203
Does FMLA leave have to be taken all at once, or can it be taken
in parts?
(a) 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) When leave is taken after the birth or placement of a 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 mother has a serious health condition in connection with the
birth of her child or if the newborn child has a serious health
condition.
(c) Leave may be taken intermittently or on a reduced leave schedule
when medically necessary for planned and/or unanticipated medical
treatment of a related serious health condition by or under the
supervision of a health care provider, or for recovery from treatment
or recovery from a serious health condition. It may also be taken
to provide care or psychological comfort to an immediate family
member with a serious health condition.
- (1) Intermittent leave may be taken for
a serious health condition 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 even if he or
she does not receive treatment by a health care provider.
(d) There is no limit on the size of an increment
of leave when an employee takes intermittent leave or leave on a reduced
leave schedule. However, an employing office may limit leave increments
to the shortest period of time that the employing office's payroll
system uses to account for absences or use of leave, provided it is
one hour or less. For example, an employee might take two hours off
for a medical appointment, or might work a reduced day of four hours
over a period of several weeks while recuperating from an illness.
An employee may not be required to take more FMLA leave than necessary
to address the circumstance that precipitated the need for the leave,
except as provided in §§ 825.601 and 825.602.
§825.204
May an employing office transfer an employee to an "alternative
position" in order to accommodate intermittent leave or a reduced
leave schedule?
(a) If an employee needs intermittent leave or leave on a reduced
leave schedule that is foreseeable based on planned medical treatment
for the employee or a family member, including during a period of
recovery from a serious health condition, 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) Transfer to an alternative position may require compliance with
any applicable collective bargaining agreement and any applicable
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.
(c) 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) 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) 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/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.
§825.205 How does one determine
the amount of leave used where an employee takes leave intermittently
or on a reduced leave schedule?
(a) If an employee takes leave on an intermittent or reduced leave
schedule, only the amount of leave actually taken may be counted
toward the 12 weeks of leave to which an employee is entitled. For
example, if an employee who normally works five days a week takes
off one day, the employee would use 1/5 of a week of FMLA leave.
Similarly, if a full-time employee who normally works 8-hour days
works 4-hour days under a reduced leave schedule, the employee would
use 1/2 week of FMLA leave each week.
(b) Where an employee normally works a part-time schedule or variable
hours, the amount of leave to which an employee is entitled is determined
on a pro rata or proportional basis by comparing the new schedule
with the employee's normal schedule. For example, if an employee
who normally works 30 hours per week works only 20 hours a week
under a reduced leave schedule, the employee's ten hours of leave
would constitute one-third of a week of FMLA leave for each week
the employee works the reduced leave schedule.
(c) 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.
(d) If an employee's schedule varies from week to week, a weekly
average of the hours worked over the 12 weeks prior to the beginning
of the leave period would be used for calculating the employee's
normal workweek.
§825.206 May an employing office
deduct hourly amounts from an employee's salary, when providing
unpaid leave under FMLA, as made applicable by the CAA, without
affecting the employee's qualification for exemption as an executive,
administrative, or professional employee, or when utilizing the
fluctuating workweek method for payment of overtime, under the Fair
Labor Standards 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, as a salaried executive, administrative,
or professional employee (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.
The fact that an employing office provides FMLA leave, whether paid
or unpaid, or maintains any records regarding FMLA leave, will not
be relevant to the determination whether an employee is exempt within
the meaning of the Board's regulations at part 541.
(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 work week basis.
(c) This special exception to the "salary basis" requirements of
the FLSA exemption or fluctuating workweek payment requirements
applies only to employees of employing offices who are eligible
for FMLA leave, and to leave which qualifies as (one of the four
types of) FMLA leave. Hourly or other deductions which are not in
accordance with the Board's 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 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 for leave which is more generous than provided by FMLA as made
applicable by the CAA, such as leave in excess of 12 weeks in a
year. The employing office 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, or may take such deductions,
treating the employee as an "hourly" employee and pay overtime premium
pay for hours worked over 40 in a workweek.
§825.207 Is FMLA leave paid or
unpaid?
(a) Generally, FMLA leave is unpaid. However, under the circumstances
described in this section, FMLA, as made applicable by the CAA,
permits an eligible employee to choose to substitute paid leave
for FMLA leave. If an employee does not choose to substitute accrued
paid leave, the employing office may require the employee to substitute
accrued paid leave for FMLA leave.
(b) Where an employee has earned or accrued paid vacation, personal
or family leave, that paid leave may be substituted for all or part
of any (otherwise) unpaid FMLA leave relating to birth, placement
of a child for adoption or foster care, or care for a spouse, child
or parent who has a serious health condition. The term "family leave"
as used in FMLA refers to paid leave provided by the employing office
covering the particular circumstances for which the employee seeks
leave for either the birth of a child and to care for such child,
placement of a child for adoption or foster care, or care for a
spouse, child or parent with a serious health condition. For example,
if the employing office's leave plan allows use of family leave
to care for a child but not for a parent, the employing office is
not required to allow accrued family leave to be substituted for
FMLA leave used to care for a parent.
(c) Substitution of paid accrued vacation, personal, or medical/sick
leave may be made for any (otherwise) unpaid FMLA leave needed to
care for a family member or the employee's own serious health condition.
Substitution of paid sick/medical leave may be elected to the extent
the circumstances meet the employing office's usual requirements
for the use of sick/medical leave. An employing office is not required
to allow substitution of paid sick or medical leave for unpaid FMLA
leave "in any situation" where the employing office's uniform policy
would not normally allow such paid leave. An employee, therefore,
has a right to substitute paid medical/sick leave to care for a
seriously ill family member only if the employing office's leave
plan allows paid leave to be used for that purpose. Similarly, an
employee does not have a right to substitute paid medical/sick leave
for a serious health condition which is not covered by the employing
office's leave plan.
(d)(1) Disability leave for the birth of a child would be considered
FMLA leave for a serious health condition and counted in the 12
weeks of leave permitted under FMLA as made applicable by the CAA.
Because the leave pursuant to a temporary disability benefit plan
is not unpaid, the provision for substitution of paid leave is inapplicable.
However, the employing office may designate the leave as FMLA leave
and count the leave as running concurrently for purposes of both
the benefit plan and the FMLA leave entitlement. If the requirements
to qualify for payments pursuant to the employing office's temporary
disability plan are more stringent than those of FMLA as made applicable
by the CAA, the employee must meet the more stringent requirements
of the plan, or may choose not to meet the requirements of the plan
and instead receive no payments from the plan and use unpaid FMLA
leave or substitute available accrued paid leave.
- (2) 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 §
825.208, the employee's FMLA 12-week leave entitlement may run
concurrently with a workers' compensation absence when the injury
is one that meets the criteria for a serious health condition.
As the workers' compensation absence is not unpaid leave, the
provision for substitution of the employee's accrued paid leave
is not applicable. However, 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 12-week
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)(1) and 825.702
(d)(1) and (2) regarding the relationship between workers' compensation
absences and FMLA leave.
(e) Paid vacation or personal leave, including
leave earned or accrued under plans allowing "paid time off," may
be substituted, at either the employee's or the employing office's
option, for any qualified FMLA leave. No limitations may be placed
by the employing office on substitution of paid vacation or personal
leave for these purposes.
(f) 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.
(g) If an employee uses paid leave under circumstances which do not
qualify as FMLA leave, the leave will not count against the 12 weeks
of FMLA leave to which the employee is entitled. For example, paid
sick leave used for a medical condition which is not a serious health
condition does not count against the 12 weeks of FMLA leave entitlement.
(h) When an employee or employing office elects to substitute paid
leave (of any type) for unpaid FMLA leave under circumstances permitted
by these regulations, and the employing office's procedural requirements
for taking that kind of leave are less stringent than the requirements
of FMLA as made applicable by the CAA (e.g., notice or certification
requirements), only the less stringent requirements may be imposed.
An employee who complies with an employing office's less stringent
leave plan requirements in such cases may not have leave for an FMLA
purpose delayed or denied on the grounds that the employee has not
complied with stricter requirements of FMLA as made applicable by
the CAA. However, where accrued paid vacation or personal leave is
substituted for unpaid FMLA leave for a serious health condition,
an employee may be required to comply with any less stringent medical
certification requirements of the employing office's sick leave program.
See §§ 825.302(g), 825.305(e) and 825.306(c).
(i) Compensatory time off, if any is authorized under applicable law,
is not a form of accrued paid leave that an employing office may require
the employee to substitute for unpaid FMLA leave. The employee may
request to use his/her balance of compensatory time for an FMLA reason.
If the employing office permits the accrual of compensatory time to
be used in compliance with applicable Board regulations, the absence
which is paid from the employee's accrued compensatory time "account"
may not be counted against the employee's FMLA leave entitlement.
§825.208 Under what circumstances
may an employing office designate leave, paid or unpaid, as FMLA
leave and, as a result, enable leave to be counted against the employee's
total FMLA leave entitlement?
(a) In all circumstances, it is the employing office's responsibility
to designate leave, paid or unpaid, as FMLA-qualifying, and to give
notice of the designation to the employee as provided in this section.
In the case of intermittent leave or leave on a reduced schedule,
only one such notice is required unless the circumstances regarding
the leave have changed. The employing office's designation decision
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 paid leave,
the employing office should inquire further of the employee or the
spokesperson to ascertain whether the paid leave is potentially
FMLA-qualifying.
- (1) An employee giving notice of the need
for unpaid FMLA leave must explain the reasons for the needed
leave so as to allow the employing office to determine that
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 paid 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 paid leave
as FMLA leave. An employee using accrued paid leave, especially
vacation or personal leave, may in some cases not spontaneously
explain the reasons or their plans for using their accrued leave.
(2) As noted in § 825.302(c), an employee giving notice
of the need for unpaid 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. An employee requesting or notifying
the employing office of an intent to use accrued paid leave,
even if for a purpose covered by FMLA, would not need to assert
such right either. However, if an employee requesting to use
paid leave for an FMLA-qualifying purpose does not explain the
reason for the leave consistent with the employing office's
established policy or practice and the employing office
denies the employee's request, the employee will need to provide
sufficient information to establish an FMLA-qualifying reason
for the needed leave so that the employing office is aware of
the employee's entitlement (i.e., that the leave may not be
denied) and, then, may designate that the paid leave be appropriately
counted against (substituted for) the employee's 12-week entitlement.
Similarly, an employee using accrued paid vacation leave who
seeks an extension of unpaid leave for an FMLA-qualifying purpose
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 event against
the employee's 12-week entitlement.
(b)(1) Once the employing office has acquired
knowledge that the leave is being taken for an FMLA required reason,
the employing office must promptly (within two business days absent
extenuating circumstances) notify the employee that the paid leave
is designated and will be counted as FMLA leave. If there is a dispute
between an employing office and an employee as to whether paid 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.
- (2) The employing office's notice to the
employee that the leave has been designated as FMLA leave may
be orally or in writing. If the 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).
The written notice may be in any form, including a notation
on the employee's pay stub.
(c) If the employing office requires paid
leave to be substituted for unpaid leave, or that paid leave taken
under an existing leave plan be counted as FMLA leave, this decision
must be made by the employing office within two business days of the
time the employee gives notice of the need for leave, or, where the
employing office does not initially have sufficient information to
make a determination, when the employing office determines that the
leave qualifies as FMLA leave if this happens later. The employing
office's designation must be made before the leave starts, unless
the employing office does not have sufficient information as to the
employee's reason for taking the leave until after the leave commenced.
If the employing office has the requisite knowledge to make a determination
that the paid leave is for an FMLA reason at the time the employee
either gives notice of the need for leave or commences leave and fails
to designate the leave as FMLA leave (and so notify the employee in
accordance with paragraph (b)), the employing office may not designate
leave as FMLA leave retroactively, and may designate only prospectively
as of the date of notification to the employee of the designation.
In such circumstances, the employee is subject to the full protections
of the FMLA, as made applicable by the CAA, but none of the absence
preceding the notice to the employee of the designation may be counted
against the employee's 12-week FMLA leave entitlement.
(d) If the employing office learns that leave is for an FMLA purpose
after leave has begun, such as when an employee gives notice of the
need for an extension of the paid leave with unpaid FMLA leave, the
entire or some portion of the paid leave period may be retroactively
counted as FMLA leave, to the extent that the leave period qualified
as FMLA leave. For example, an employee is granted two weeks paid
vacation leave for a skiing trip. In mid-week of the second week,
the employee contacts the employing office for an extension of leave
as unpaid leave and advises that at the beginning of the second week
of paid vacation leave the employee suffered a severe accident requiring
hospitalization. The employing office may notify the employee that
both the extension and the second week of paid vacation leave (from
the date of the injury) is designated as FMLA leave. On the other
hand, when the employee takes sick leave that turns into a serious
health condition (e.g., bronchitis that turns into bronchial
pneumonia) and the employee gives notice of the need for an extension
of leave, the entire period of the serious health condition may be
counted as FMLA leave.
(e) Employing offices may not designate leave as FMLA leave after
the employee has returned to work with two exceptions:
- (1) If the employee was absent for an FMLA
reason and the employing office did not learn the reason for
the absence until the employee's return (e.g., where the employee
was absent for only a brief period), the employing office may,
upon the employee's return to work, promptly (within two business
days of the employee's return to work) designate the leave retroactively
with appropriate notice to the employee. If leave is taken for
an FMLA reason but the employing office was not aware of the
reason, and the employee desires that the leave be counted as
FMLA leave, the employee must notify the employing office within
two business days of returning to work of the reason for the
leave. In the absence of such timely notification by the employee,
the employee may not subsequently assert FMLA protections for
the absence.
(2) If the employing office knows the reason for the leave but
has not been able to confirm that the leave qualifies under
FMLA, or where the employing office has requested medical certification
which has not yet been received or the parties are in the process
of obtaining a second or third medical opinion, the employing
office should make a preliminary designation, and so notify
the employee, at the time leave begins, or as soon as the reason
for the leave becomes known. Upon receipt of the requisite information
from the employee or of the medical certification which confirms
the leave is for an FMLA reason, the preliminary designation
becomes final. If the medical certifications fail to confirm
that the reason for the absence was an FMLA reason, the employing
office must withdraw the designation (with written notice to
the employee).
(f) 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,
except that, if the FMLA leave began after the effective of these
regulations (or if the FMLA leave was subject to other applicable
requirement under which the employing office was to have designated
the leave as FMLA leave), the prior employing office must have properly
designated the leave as FMLA under these regulations or other applicable
requirement. §825.209
Is an employee entitled to benefits while using FMLA leave?
(a) During any FMLA leave, the 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 § 825.800. 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
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). §825.210
How may employees on FMLA leave pay their share 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 § 825.301.)
(e) An employing office may not require more of an employee using
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
unpaid FMLA leave. See paragraph (c) of this section and §
825.207(d)(2). §825.211
What special health benefits maintenance rules apply to multi-employer
health plans?
(a) A multi-employer health plan is a plan to which more than one
employer is required to contribute, and which is maintained pursuant
to one or more collective bargaining agreements between employee
organization(s) and the employers.
(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 employers 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), 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.
§825.212 What are the consequences of an employee's failure
to make timely 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. §825.213
May an employing office recover costs it incurred for maintaining
"group health plan" or other non-health benefits coverage during
FMLA leave?
(a) In addition to the circumstances discussed in § 825.212(b),
the share of health plan premiums paid by or on behalf of the employing
office during a period of unpaid FMLA leave may be recovered 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 a serious health condition of the employee or the employee's
family member 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 an immediate 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 a serious health condition,
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. Such certification is not
required unless requested by the employing office. 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 form
developed for this purpose (see § 825.306(a) and Appendix
B of this part). 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% 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 2 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. §825.214
What are an employee's rights on returning to work from FMLA leave?
(a) 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 employing offices.
(b) 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, the employee has
no right to restoration to another position under the FMLA. However,
the employing office's obligations may be governed by the Americans
with Disabilities Act (ADA), as made applicable by the CAA. See
§ 825.702.
§825.215 What is an equivalent position?
(a) 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, perquisites and status. It must
involve the same or substantially similar duties and responsibilities,
which must entail substantially equivalent skill, effort, responsibility,
and authority.
(b) If an employee is no longer qualified for the position because
of the employee's inability to attend a necessary course, renew
a license, fly a minimum number of hours, 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 would not
have to be granted unless it is the employing office's policy
or practice to do so with respect to other employees on "leave
without pay." In such case, any pay increase would be granted
based on the employee's seniority, length of service, work performed,
etc., excluding the period of unpaid 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) Many employing offices pay bonuses in different forms to
employees for job-related performance such as for perfect attendance,
safety (absence of injuries or accidents on the job) and exceeding
production goals. Bonuses for perfect attendance and safety
do not require performance by the employee but rather contemplate
the absence of occurrences. To the extent an employee who takes
FMLA leave had met all the requirements for either or both of
these bonuses before FMLA leave began, the employee is entitled
to continue this entitlement upon return from FMLA leave, that
is, the employee may not be disqualified for the bonus(es) for
the taking of FMLA leave. See § 825.220 (b) and
(c). A monthly production bonus, on the other hand, does require
performance by the employee. If the employee is on FMLA leave
during any part of the period for which the bonus is computed,
the employee is entitled to the same consideration for the bonus
as other employees on paid or unpaid leave (as appropriate).
See paragraph (d)(2) of this section.
(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 workforce, 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) 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
or intangible, unmeasurable aspects of the job. However, 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.
§825.216 Are there any
limitations on an employing office's obligation to reinstate an
employee?
(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.
(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.
(b) 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.
(c) In addition to the circumstances explained above, an employing
office may deny job restoration to salaried eligible employees ("key
employees," as defined in paragraph (c) of § 825.217) 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 § 825.310.
(d) If the employee has been on a workers' compensation absence during
which FMLA leave has been taken concurrently, and after 12 weeks of
FMLA leave the employee is unable to return to work, the employee
no longer has the protections of FMLA and must look to the workers'
compensation statute or ADA, as made applicable by the CAA, for any
relief or protections. §825.217
What is a "key employee"?
(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 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, as executive, administrative,
and professional employees).
(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 perquisites.
(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."
§825.218 What does "substantial and grievous economic injury"
mean?
(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 (see, also § 825.702).
§825.219 What are the rights of a key employee?
(a) An employing office which 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
either the employee 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.
§825.220 How are employees
protected 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
- (i) Filed any charge, or has instituted
(or caused to be instituted) any proceeding under or related
to the FMLA, as made applicable by the CAA;
- (ii) 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;
- (iii) 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. "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 covered an 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;
- (3) reducing hours available to work in
order to avoid employee eligibility.
(c) An employing office is prohibited
from discriminating against employees or prospective employees who
have used FMLA leave. 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.
(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. This does not 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)). In such a circumstance the employee's right
to restoration to the same or an equivalent position is available
until 12 weeks have passed within the 12-month period, including
all FMLA leave taken and the period of "light duty."
(e) Covered employees, and not merely eligible employees, are protected
from retaliation for opposing (e.g., file 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 -- How do Employees Learn
of Their Rights and Obligations under the FMLA, as Made Applicable
by the CAA, and What Can an Employing Office Require of an
Employee?
§825.300
[Reserved]
§825.301 What notices to employees
are required of employing offices under the FMLA as made applicable
by the CAA?
(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 Compliance 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 (b), 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 Compliance to provide such guidance.
(b)(1) The employing office shall also provide
the employee with written notice detailing the specific expectations
and obligations of the employee and explaining any consequences of
a failure to meet these obligations. The written notice must be provided
to the employee in a language in which the employee is literate. Such
specific notice must include, as appropriate:
- (i) that the leave will be counted against
the employee's annual FMLA leave entitlement (see § 825.208);
(ii) any requirements for the employee to furnish medical
certification of a serious health condition and the consequences
of failing to do so (see § 825.305);
(iii) the employee's right to substitute paid leave and whether
the employing office will require the substitution of paid
leave, and the conditions related to any substitution;
(iv) 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);
(v) any requirement for the employee to present a fitness-for-duty
certificate to be restored to employment (see § 825.310);
(vi) 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);
(vii) the employee's right to restoration to the same or an
equivalent job upon return from leave (see §§ 825.214
and 825.604); and,
(viii) 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).
- (2) The specific notice 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. A prototype
notice is contained in Appendix D of this part, or may be obtained
from the Office of Compliance, which employing offices may adapt
for their use to meet these specific notice requirements.
(c) Except as provided in this subparagraph,
the written notice required by paragraph (b) (and by subparagraph
(a)(2) where applicable) must be provided to the employee no less
often than the first time in each six-month period that an employee
gives notice of the need for FMLA leave (if FMLA leave is taken during
the six-month period). The notice shall be given within a reasonable
time after notice of the need for leave is given by the employee --
within one or two business days if feasible. If leave has already
begun, the notice should be mailed to the employee's address of record.
- (1) If the specific information provided
by the notice changes with respect to a subsequent period of
FMLA leave during the six-month period, the employing office
shall, within one or two business days of receipt of the employee's
notice of need for leave, provide written notice referencing
the prior notice and setting forth any of the information in
subparagraph (b) which has changed. For example, if the initial
leave period were 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.
- (2)(i) Except as provided in subparagraph
(ii), if the employing office is requiring medical certification
or a "fitness-for-duty" report, written notice of the requirement
shall be given with respect to each employee notice of a need
for leave.
- (ii) Subsequent written notification
shall not be required if the initial notice in the
six- month period and the employing office handbook
or other written documents (if any) describing the employing
office's leave policies, clearly provided that certification
or a "fitness-for-duty" report would be required (e.g.,
by stating that certification would be required in all cases,
by stating that certification would be required in all cases
in which leave of more than a specified number of days is
taken, or by stating that a "fitness-for-duty" report would
be required in all cases for back injuries for employees
in a certain occupation). Where subsequent written notice
is not required, at least oral notice shall be provided.
(See § 825.305(a).)
(d) 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.
(e) Employing offices furnishing FMLA-required notices to sensory
impaired individuals must also comply with all applicable requirements
under law.
(f) If an employing office fails to provide notice in accordance with
the provisions of this section, the employing office may not take
action against an employee for failure to comply with any provision
required to be set forth in the notice.
§825.302
What notice does an employee have to give an employing office when
the need for FMLA leave is foreseeable?
(a) 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, or planned medical treatment for a serious health
condition of the employee or of a family member. If 30 days notice
is not practicable, such as because of a lack of knowledge of approximately
when leave will be required to begin, a change in circumstances,
or a medical emergency, notice must be given as soon as practicable.
For example, an employee's health condition may require leave to
commence earlier than anticipated before the birth of a child. Similarly,
little opportunity for notice may be given before placement for
adoption. Whether the 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.
(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. For foreseeable leave where it is not possible
to give as much as 30 days notice, "as soon as practicable" ordinarily
would mean at least verbal notification to the employing office
within one or two business days of when the need for leave becomes
known to the employee.
(c) 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. The
employee need not expressly assert rights under the FMLA as made
applicable by the CAA, or even mention the FMLA, but may only state
that leave is needed for an expected birth or adoption, for example.
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).
(d) An employing office may also require an employee to comply with
the employing office's usual and customary notice and procedural
requirements for requesting leave. 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. However, failure to follow such internal employing
office procedures will not permit an employing office to disallow
or delay an employee's taking FMLA leave if the employee gives timely
verbal or other notice.
(e) When planning medical treatment, the employee must consult with
the employing office and make a reasonable effort to schedule the
leave 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. 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 attempt 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.
(f) In the case of intermittent leave or leave on a reduced leave
schedule which is medically necessary, 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 which 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.
In addition, an employing office may not require compliance with
stricter FMLA notice requirements where the provisions of a collective
bargaining agreement or applicable leave plan allow less advance
notice to the employing office. For example, if an employee (or
employing office) elects to substitute paid vacation leave for unpaid
FMLA leave (see § 825.207), and the employing office's paid
vacation leave plan imposes no prior notification requirements for
taking such vacation leave, no advance notice may be required for
the FMLA leave taken in these circumstances. On the other hand,
FMLA notice requirements would apply to a period of unpaid FMLA
leave, unless the employing office imposes lesser notice requirements
on employees taking leave without pay.
§825.303 What are the requirements for an employee to furnish
notice to an employing office where the need for FMLA leave is not
foreseeable?
(a) When the approximate timing of the need for leave is not foreseeable,
an employee should give notice to the employing office of the need
for FMLA leave as soon as practicable under the facts and circumstances
of the particular case. It is expected that an employee will give
notice to the employing office within no more than one or two working
days of learning of the need for leave, except in extraordinary
circumstances where such notice is not feasible. In the case of
a medical emergency requiring leave because of an employee's own
serious health condition or to care for a family member with a serious
health condition, written advance notice pursuant to an employing
office's internal rules and procedures may not be required when
FMLA leave is involved.
(b) The employee should provide notice to the employing office either
in person or by telephone, telegraph, facsimile ("fax") machine
or other electronic means. 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.
The employee need not expressly assert rights under the FMLA, as
made applicable by the CAA, or even mention the FMLA, but may only
state that leave is needed. The employing office will be expected
to obtain any additional required information through informal means.
The employee or spokesperson will be expected to provide more information
when it can readily be accomplished as a practical matter, taking
into consideration the exigencies of the situation.
§825.304 What recourse do employing
offices have if employees fail to provide the required notice?
(a) An employing office may waive employees' FMLA notice obligations
or the employing office's own internal rules on leave notice requirements.
(b) If an employee fails to give 30 days notice for foreseeable
leave with no reasonable excuse for the delay, the employing office
may delay the taking of FMLA leave until at least 30 days after
the date the employee provides notice to the employing office of
the need for FMLA leave.
(c) 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 Compliance to
the employing office in a manner suitable for posting. Furthermore,
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.
§825.305 When must an employee provide medical certification
to support FMLA leave?
(a) An employing office may require that an employee's leave to
care for the employee's seriously ill spouse, son, daughter, or
parent, 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
ill family member. An employing office must give notice of a requirement
for medical certification each time a certification is required;
such notice must be written notice whenever required by § 825.301.
An employing office's oral request to an employee to furnish any
subsequent medical certification is sufficient.
(b) When the leave is foreseeable and at least 30 days notice has
been provided, the employee should provide the medical certification
before the leave begins. When this is not possible, the employee
must provide the requested certification 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.
(c) In most cases, the employing office should request that an employee
furnish certification from a health care provider at the time the
employee gives notice of the need for leave or within two business
days thereafter, or, in the case of unforeseen leave, within two
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.
(d) 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.
The employing office shall advise an employee whenever the employing
office finds a certification incomplete, and provide the employee
a reasonable opportunity to cure any such deficiency.
(e) If the employing office's sick or medical leave plan imposes
medical certification requirements that are less stringent than
the certification requirements of these regulations, and the employee
or employing office elects to substitute paid sick, vacation, personal
or family leave for unpaid FMLA leave where authorized (see
§ 825.207), only the employing office's less stringent sick
leave certification requirements may be imposed.
§825.306 How much information
may be required in medical certifications of a serious health condition?
(a) The Office of Compliance has made available an optional form
("Certification of Physician or Practitioner") for employees' (or
their family members') use in obtaining medical certification, including
second and third opinions, from health care providers that meets
FMLA's certification requirements. (See Appendix B to these
regulations.) This optional form reflects certification requirements
so as to permit the health care provider to furnish appropriate
medical information within his or her knowledge.
(b) The Certification of Physician or Practitioner form is modeled
closely on Form WH-380, as revised, which was developed by the Department
of Labor (see 29 C.F.R. Part 825, Appendix B). The employing
office may use the Office of Compliance's form, or Form WH-380,
as revised, or another form containing the same basic information;
however, no additional information may be required. In all instances
the information on the form must relate only to the serious health
condition for which the current need for leave exists. The form
identifies the health care provider and type of medical practice
(including pertinent specialization, if any), makes maximum use
of checklist entries for ease in completing the form, and contains
required entries for:
- (1) A certification as to which part of
the definition of "serious health condition" (see § 825.114),
if any, applies to the patient's condition, and the medical
facts which support the certification, including a brief statement
as to how the medical facts meet the criteria of the definition.
- (2)(i) The approximate date the serious
health condition commenced, and its probable duration, including
the probable duration of the patient's present incapacity (defined
to mean inability to work, attend school or perform other regular
daily activities due to the serious health condition, treatment
therefor, or recovery therefrom) if different.
- (ii) Whether it will be necessary for
the employee to take leave intermittently or to work on
a reduced leave schedule basis (i.e., part-time)
as a result of the serious health condition (see §
825.117 and § 825.203), and if so, the probable duration
of such schedule.
- (iii) If the condition is pregnancy
or a chronic condition within the meaning of § 825.114(a)(2)(iii),
whether the patient is presently incapacitated and the likely
duration and frequency of episodes of incapacity.
- (3)(i)(A) If additional treatments
will be required for the condition, an estimate of the probable
number of such treatments.
- (B) If the patient's incapacity will
be intermittent, or will require a reduced leave schedule,
an estimate of the probable number and interval between
such treatments, actual or estimated dates of treatment
if known, and period required for recovery if any.
- (ii) If any of the treatments referred
to in subparagraph (i) will be provided by another provider
of health services (e.g., physical therapist), the nature
of the treatments.
- (iii) If a regimen of continuing treatment
by the patient is required under the supervision of the
health care provider, a general description of the regimen
(see § 825.114(b)).
- (4) If medical leave is required for
the employee's absence from work because of the employee's own
condition (including absences due to pregnancy or a chronic
condition), whether the employee:
- (i) is unable to perform work of any
kind;
- (ii) is unable to perform any one or
more of the essential functions of the employee's position,
including a statement of the essential functions the employee
is unable to perform (see § 825.115), based on either
information provided on a statement from the employing office
of the essential functions of the position or, if not provided,
discussion with the employee about the employee's job functions;
or
- (iii) must be absent from work for treatment.
- (5)(i) If leave is required to care
for a family member of the employee with a serious health condition,
whether the patient requires assistance for basic medical or
personal needs or safety, or for transportation; or if not,
whether the employee's presence to provide psychological comfort
would be beneficial to the patient or assist in the patient's
recovery. The employee is required to indicate on the form the
care he or she will provide and an estimate of the time period.
- (ii) If the employee's family member
will need care only intermittently or on a reduced leave
schedule basis (i.e., part-time), the probable duration
of the need.
(c) If the employing office's sick or medical
leave plan requires less information to be furnished in medical certifications
than the certification requirements of these regulations, and the
employee or employing office elects to substitute paid sick, vacation,
personal or family leave for unpaid FMLA leave where authorized (see
§ 825.207), only the employing office's lesser sick leave certification
requirements may be imposed. §825.307
What may an employing office do if it questions the adequacy of
a medical certification?
(a) If an employee submits a complete certification signed by the
health care provider, the employing office may not request additional
information from the employee's health care provider. However, a
health care provider representing the employing office may contact
the employee's health care provider, with the employee's permission,
for purposes of clarification and authenticity of the medical
certification.
- (1) 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 have direct contact
with the employee's workers' compensation health care provider,
the employing office may follow the workers' compensation provisions.
- (2) 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. 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. See also paragraphs (e) and (f)
of this section.
(b) 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) 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.
(d) 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 two business days unless extenuating circumstances prevent
such action.
(e) 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) In circumstances when the employee or a family member is visiting
in another country, or a family member resides in a 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.
§825.308 Under what circumstances
may an employing office request subsequent recertifications of medical
conditions?
(a) For pregnancy, chronic, or permanent/long-term conditions under
continuing supervision of a health care provider (as defined in
§ 825.114(a) (2)(ii), (iii) or (iv)), an employing office may
request recertification no more often than every 30 days and only
in connection with an absence by the employee, unless:
- (1) Circumstances described by the previous
certification have changed significantly (e.g., the duration
or frequency of absences, the severity of the condition, complications);
or
- (2) The employing office receives information
that casts doubt upon the employee's stated reason for the absence.
(b)(1) If the minimum duration of the period
of incapacity specified on a certification furnished by the health
care provider is more than 30 days, the employing office may not request
recertification until that minimum duration has passed unless one
of the conditions set forth in paragraph (c)(1), (2) or (3) of this
section is met.
- (2) For FMLA leave taken intermittently
or on a reduced leave schedule basis, the employing office may
not request recertification in less than the minimum period
specified on the certification as necessary for such leave (including
treatment) unless one of the conditions set forth in paragraph
(c)(1), (2) or (3) of this section is met.
(c) For circumstances not covered by paragraphs
(a) or (b) of this section, an employing office may request recertification
at any reasonable interval, but not more often than every 30 days,
unless:
- (1) The employee requests an extension of
leave;
- (2) Circumstances described by the previous
certification have changed significantly (e.g., the duration
of the illness, the nature of the illness, complications); or
- (3) The employing office receives information
that casts doubt upon the continuing validity of the certification.
(d) 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) 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.
§825.309 What notice may an employing office require regarding
an employee's 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 requirements of
COBRA or 5 U.S.C. 8905a, whichever is applicable) 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. §825.310
Under what circumstances may an employing office require that an
employee submit a medical certification that the employee is able
(or unable) to return to work (i.e., a "fitness-for-duty"
report)?
(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.
(b) If the terms of a collective bargaining agreement govern an
employee's return to work, those provisions shall be applied. Similarly,
requirements under the Americans with Disabilities Act (ADA), as
made applicable by the CAA, that any return-to-work physical be
job-related and consistent with business necessity apply. 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/her job or
to his/her impairment.
(c) An employing office may seek fitness-for-duty certification
only with regard to the particular health condition that caused
the employee's need for FMLA leave. The certification itself need
only be a simple statement of an employee's ability to return to
work. A health care provider employed by the employing office may
contact the employee's health care provider with the employee's
permission, for purposes of clarification of the employee's fitness
to return to work. No additional information may be acquired, and
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.
(d) 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.
(e) The notice that employing offices are required to give to each
employee giving notice of the need for FMLA leave regarding their
FMLA rights and obligations as made applicable by the CAA (see §
825.301) shall advise the employee if the employing office will
require fitness-for-duty certification to return to work. If the
employing office has a handbook explaining employment policies and
benefits, the handbook should explain the employing office's general
policy regarding any requirement for fitness-for-duty certification
to return to work. Specific notice shall also be given to any employee
from whom fitness-for-duty certification will be required either
at the time notice of the need for leave is given or immediately
after leave commences and the employing office is advised of the
medical circumstances requiring the leave, unless the employee's
condition changes from one that did not previously require certification
pursuant to the employing office's practice or policy. No second
or third fitness-for-duty certification may be required.
(f) 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 notices required
in paragraph (e) of this section.
(g) An employing office is not entitled to certification of fitness
to return to duty when the employee takes intermittent leave as
described in § 825.203.
(h) When an employee is unable to return to work after FMLA leave
because of the continuation, recurrence, or onset of the employee's
or family member's serious health condition, thereby preventing
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.
(See § 825.213(a)(3).) 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.
§825.311 What happens if an employee
fails to satisfy the medical certification and/or recertification
requirements?
(a) In the case of foreseeable leave, an employing office may delay
the taking of FMLA leave to an employee who fails to provide timely
certification after being requested by the employing office to furnish
such certification (i.e., within 15 calendar days, if practicable),
until the required certification is provided.
(b) When the need for leave is not foreseeable, or in the case of
recertification, an employee must provide certification (or recertification)
within the time frame requested by the employing office (which must
allow at least 15 days after the employing office's request) or
as soon as reasonably possible under the particular facts and circumstances.
In the case of a medical emergency, it may not be practicable for
an employee to provide the required certification within 15 calendar
days. If an employee fails to provide a medical certification within
a reasonable time under the pertinent circumstances, the employing
office may delay the employee's continuation of FMLA leave. If the
employee never produces the certification, the leave is not FMLA
leave.
(c) 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 § 825.310(a)) if the employing office has provided
the required notice (see § 825.301(c); the employing office
may delay restoration until the certification is provided. In this
situation, 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).
§825.312 Under what circumstances
may an employing office refuse to provide FMLA leave or reinstatement
to eligible employees?
(a) If an employee fails to give timely advance notice when the
need for FMLA leave is foreseeable, the employing office may delay
the taking of FMLA leave until 30 days after the date the employee
provides notice to the employing office of the need for FMLA leave.
(See § 825.302.)
(b) If an employee fails to provide in a timely manner a requested
medical certification to substantiate the need for FMLA leave due
to a serious health condition, an employing office may delay continuation
of FMLA leave until an employee submits the certificate. (See
§§ 825.305 and 825.311.) If the employee never produces
the certification, the leave is not FMLA leave.
(c) If an employee fails to provide a requested fitness-for-duty
certification to return to work, an employing office may delay restoration
until the employee submits the certificate. (See §§
825.310 and 825.311.)
(d) 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. Thus, an employee's
rights to continued leave, maintenance of health benefits, and restoration
cease under FMLA, as made applicable by the CAA, if and when the
employment relationship terminates (e.g., layoff), unless
that relationship continues, for example, by the employee remaining
on paid FMLA leave. If the employee is recalled or otherwise
re-employed, an eligible employee is immediately entitled to further
FMLA leave for an FMLA-qualifying reason. An employing office must
be able to show, when an employee requests restoration, that the
employee would not otherwise have been employed if leave had not
been taken in order to deny restoration to employment. (See §
825.216.)
(e) An employing office may require an employee on FMLA leave to
report periodically on the employee's status and intention to return
to work. (See § 825.309.) If an employee unequivocally advises
the employing office either before or during the taking of leave
that the employee does not intend to return to work, and the employment
relationship is terminated, the employee's entitlement to continued
leave, maintenance of health benefits, and restoration ceases unless
the employment relationship continues, for example, by the employee
remaining on paid leave. An employee may not be required
to take more leave than necessary to address the circumstances for
which leave was taken. If the employee is able to return to work
earlier than anticipated, the employee shall provide the employing
office two business days notice where feasible; the employing office
is required to restore the employee once such notice is given, or
where such prior notice was not feasible.
(f) An employing office may deny restoration to employment, but
not the taking of FMLA leave and the maintenance of health benefits,
to an eligible employee only under the terms of the "key employee"
exemption. Denial of reinstatement must be necessary to prevent
"substantial and grievous economic injury" to the employing office's
operations. The employing office must notify the employee of the
employee's status as a "key employee" and of the employing office's
intent to deny reinstatement on that basis when the employing office
makes these determinations. If leave has started, the employee must
be given a reasonable opportunity to return to work after being
so notified. (See § 825.219.)
(g) An employee who fraudulently obtains FMLA leave from an employing
office is not protected by job restoration or maintenance of health
benefits provisions of the FMLA as made applicable by the CAA.
(h) 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
(g) of this section.
SUBPART D - What Enforcement Mechanisms
Does the CAA Provide ?
§825.400 What can employees do
who believe that their rights under the FMLA as made applicable
by the CAA have been violated?
(a) To commence a proceeding, a covered employee alleging a violation
of the rights and protections of the FMLA made applicable by the
CAA must request counseling by the Office of Compliance not later
than 180 days after the date of the alleged violation. If a covered
employee misses this deadline, the covered employee will be unable
to obtain a remedy under the CAA.
(b) The following procedures are available under title IV of the
CAA for covered employees who believe that their rights under FMLA
as made applicable by the CAA have been violated:
- (1) counseling;
- (2) mediation; and
- (3) election of either--
- (A) a formal complaint, filed with the
Office of Compliance, and a hearing before a hearing officer,
subject to review by the Board of Directors of the Office
of Compliance, and judicial review in the United States
Court of Appeals for the Federal Circuit; or
- (B) a civil action in a district court
of the United States.
(c) Regulations of the Office of Compliance
describing and governing these procedures are found at [proposed rules
can be found at 141 Cong. Rec. S17012 (November 14, 1995)].
§825.401 [Reserved]
§825.402 [Reserved]
§825.403 [Reserved] §825.404 [Reserved]
SUBPART E -- [Reserved]
SUBPART F - What Special Rules Apply to Employees
of Schools?
§825.600 To whom do the special
rules apply?
(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" 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.
§825.601 What limitations apply
to the taking of intermittent leave or leave on a reduced leave
schedule?
(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, 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:
- (i) Take leave for a period or periods
of a particular duration, not greater than the duration
of the planned treatment; or
- (ii) 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. See § 825.207(h).
§825.602 What limitations
apply to the taking of 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
- (i) The leave will last at least three
weeks, and
- (ii) The employee would return to work
during the three-week period before the end of the term.
- (2) The employee begins leave for
a purpose other than the employee's own serious health condition
during the five-week period before the end of a term.
The employing office may require the employee to continue taking
leave until the end of the term if
- (i) The leave will last more than two
weeks, and
- (ii) The employee would return to work
during the two-week period before the end of the term.
- (3) The employee begins leave for a purpose
other than the employee's own serious health condition during
the three-week period before the end of a term, and the leave
will last more than five working days. The employing office
may require the employee to continue taking leave until the
end of the term.
(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. §825.603
Is all leave taken during "periods of a particular duration" counted
against the FMLA leave entitlement?
(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.
§825.604 What special rules apply
to 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 - How Do Other Laws, Employing Office Practices, and
Collective Bargaining Agreements Affect Employee Rights Under the
FMLA as Made Applicable by the CAA?
§825.700 What if an employing
office provides more generous benefits than required by FMLA as
Made Applicable by the CAA?
(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. If an employee takes paid or unpaid leave and the employing
office does not designate the leave as FMLA leave, the leave taken
does not count against an employee's FMLA entitlement.
(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.
(c) [Reserved]
§825.701 [Reserved]
§825.702 How does FMLA affect
anti-discrimination laws as applied by section 201 of the CAA?
(a) Nothing in 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), 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, 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 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.
(b) If an employee is a qualified individual with a disability within
the meaning of the Americans with Disabilities Act (ADA), 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.
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, 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 employee would be shielded from FMLA's provision
for temporary assignment to a different alternative position.
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(d)(2). 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.
(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 any employing office (and, therefore,
not an "eligible" employee under FMLA, as made applicable by the CAA)
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) For further information on Federal anti-discrimination 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 Compliance.
SUBPART H - Definitions
§825.800 Definitions.
For purposes of this part:
ADA means the Americans
With Disabilities Act (42 U.S.C. 12101 et seq.).
CAA means the Congressional Accountability Act of 1995 (Pub.
Law 104-1, 109 Stat. 3, 2 U.S.C. 1301 et seq.).
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; as amended; 29 U.S.C. 1161-1168).
Continuing treatment means:
A serious health condition involving continuing treatment by a health
care provider includes any one or more of the following:
- (1) A period of incapacity
(i.e., inability to work, attend school or perform other
regular daily activities due to the serious health condition,
treatment therefor, or recovery therefrom) of more than three
consecutive calendar days, and any subsequent treatment or period
of incapacity relating to the same condition, that also involves:
- (i) Treatment two or more times by a
health care provider, by a nurse or physician's assistant
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.
- (2) Any period of incapacity due to pregnancy,
or for prenatal care.
- (3) 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 for treatment
by a health care provider, or by a nurse or physician's
assistant 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.).
- (4) 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.
- (5) 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,
either for restorative surgery after an accident or other injury,
or for a condition that would likely result in a period of incapacity
of more than three consecutive calendar days in the absence
of medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy),
kidney disease (dialysis).
Covered employee - The term "covered employee", as defined
in the CAA, means any employee of - (1) the House of Representatives;
(2) the Senate; (3) the Capitol Guide Service; (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 Compliance; or (9) the Office of Technology Assessment.
Eligible employee -
The term "eligible employee", as defined in the CAA, means a covered
employee who has been employed in any employing office for 12 months
and for at least 1,250 hours of employment during the previous 12
months.
Employ means to suffer or
permit to work.
Employee means an employee
as defined in the CAA and includes an applicant for employment and
a former employee.
Employee employed in an instructional
capacity. See Teacher.
Employee of the Capitol Police
- The term "employee of the Capitol Police" includes any member
or officer of the Capitol Police.
Employee of the House of Representatives
- The term "employee of the House of Representatives" includes an
individual occupying a position the pay for which is disbursed by
the Clerk 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 clerk-hire allowance
of the House of Representatives but not any such individual employed
by any entity listed in subparagraphs (3) through (9) under "covered
employee" above.
Employee of the Office of the Architect
of the Capitol - The term "employee of the Office of the
Architect of the Capitol" includes any employee of the Office of
the Architect of the Capitol, the Botanic Garden, or the Senate
Restaurants.
Employee of the Senate -
The term "employee of the Senate" includes 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
"covered employee" above.
Employing Office - The term
"employing office", as defined in the CAA, 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 Capitol Guide Board, the Capitol Police Board, the Congressional
Budget Office, the Office of the Architect of the Capitol, the Office
of the Attending Physician, the Office of Compliance, and the Office
of Technology Assessment.
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 § 825.209(a)).
FLSA means the Fair Labor
Standards Act (29 U.S.C. 201 et seq.).
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.).
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:
(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.
Health care provider means:
(1) A doctor of medicine or osteopathy who is authorized to practice
medicine or surgery by the State in which the doctor practices;
or
(2) 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; and
(3) Nurse practitioners, nurse-midwives and clinical social workers
who are authorized to practice under State law and who are performing
within the scope of their practice as defined under State law; and
(4) Christian Science practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts.
(5) 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.
(6) A health care provider as defined above who practices in a country
other than the United States, who is licensed to practice in accordance
with the laws and regulations of that country.
"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.
Instructional employee: See
Teacher.
Intermittent leave means
leave taken in separate periods of time due to a single illness
or injury, 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.
Mental disability: See Physical
or mental disability.
Office of Compliance means the independent office established
in the legislative branch under section 301 of the CAA (2 U.S.C.
1381). Parent
means the biological parent of an employee or an individual who
stands or stood in loco parentis to an employee when the employee
was a child.
Physical or mental disability means a physical or
mental impairment that substantially limits one or more of the major
life activities of an individual. See the Americans with Disabilities
Act (ADA), as made applicable by section 201(a)(3) of the CAA (2
U.S.C. 1311(a)(3)).
Reduced leave schedule means
a leave schedule that reduces the usual number of hours per workweek,
or hours per workday, of an employee.
Secretary means the Secretary
of Labor or authorized representative.
Serious health condition entitling
an employee to FMLA leave means:
(1) an illness, injury, impairment, or physical or mental condition
that involves:
- (i) Inpatient care (i.e.,
an overnight stay) in a hospital, hospice, or residential medical
care facility, including any period of incapacity (for
purposes of this section, defined to mean inability to work,
attend school or perform other regular daily activities due
to the serious health condition, treatment therefor, or recovery
therefrom), or any subsequent treatment in connection with such
inpatient care; or
- (ii) Continuing treatment by
a health care provider. A serious health condition involving
continuing treatment by a health care provider includes:
- (A) A period of incapacity
(i.e., inability to work, attend school or perform
other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom) of
more than three consecutive calendar days, including any
subsequent treatment or period of incapacity relating to
the same condition, that also involves:
- (1) Treatment two or more
times by a health care provider, by a nurse or physician's
assistant 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
- (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.
- (B) Any period of incapacity due to
pregnancy, or for prenatal care.
- (C) 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
for treatment by a health care provider, or by a nurse
or physician's assistant 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) 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) 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, either for restorative surgery after an accident
or other injury, or for a condition that would likely result
in a period of incapacity of more than three consecutive
calendar days in the absence of medical intervention or
treatment, such as cancer (chemotherapy, radiation, etc.),
severe arthritis (physical therapy), kidney disease (dialysis).
(2) Treatment for purposes of paragraph (1)
of this definition 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. Under paragraph (1)(ii)(A)(2)
of this definition, 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 bedrest, 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.
(3) 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 resulting from stress or
allergies may be serious health conditions, but only if all the conditions
of this section are met.
(4) Substance abuse may be a serious health condition if the conditions
of this section 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.
(5) Absences attributable to incapacity under paragraphs (1)(ii)(B)
or (C) of this definition qualify for FMLA leave even though the employee
or the immediate 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 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. 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 under 18 years of age or 18 years of
age or older and incapable of self-care because of a mental or physical
disability.
Spouse means a husband
or wife as defined or recognized under State law for purposes of
marriage in the State where the employee resides, including common
law marriage in States where it is recognized.
State means any State of
the United States or the District of Columbia or any Territory or
possession of the United States.
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.
APPENDIX A to PART 825 - [Reserved]
APPENDIX B to PART 825 Certification
of Physician or Practitioner
Certification of Health Care Provider
(Family and Medical Leave Act of 1993
as Made Applicable by the Congressional
Accountability Act of 1995)
1. Employee's Name:
2. Patient's Name (if different from employee):
3. The attached sheet describes what is meant by a "serious health
condition" under the Family and Medical Leave Act as made applicable
by the Congressional Accountability Act. Does the patient's condition
qualify under any of the categories described? If so, please check
the applicable category.
(1)___ (2) ___ (3) ___ (4) ___ (5) ___ (6) ___,
or None of the above ___
4. Describe the medical facts which support
your certification, including a brief statement as to how the medical
facts meet the criteria of one of these categories:
5.a. State the approximate date the condition
commenced, and the probable duration of the condition (and also
the probable duration of the patient's present incapacity if different):
b. Will it be necessary for the employee to
take work only intermittently or to work on a less than full schedule
as a result of the condition (including for treatment described
in Item 6 below)? __________
If yes, give probable duration:
c. If the condition is a chronic condition (condition
#4) or pregnancy, state whether the patient is presently incapacitated2
and the likely duration and frequency of episodes of incapacity2:
6.a. If additional treatments will be required
for the condition, provide an estimate of the probable number of
such treatments:
If the patient will be absent from work or other
daily activities because of treatment on an intermittent or part-time
basis, also provide an estimate of the probable number and interval
between such treatments, actual or estimated dates of treatment
if known, and period required for recovery if any:
b. If any of these treatments will be provided
by another provided of health services (e.g., physical therapist),
please state the nature of the treatments:
c. If a regimen of continuing treatment by the
patient is required under your supervision, provide a general description
of such regimen (e.g., prescription drugs, physical therapy requiring
special equipment):
7.a. If medical leave is required for the employee's
absence from work because of the employee's own condition (including
absences due to pregnancy or a chronic condition), is the employee
unable to perform work of any kind? ______
b. If able to perform some work, is the employee
unable to perform any one or more of the essential functions of
the employee's job (the employee or the employer should supply you
with information about the essential job functions)? ____ If yes,
please list the essential functions the employee is unable to perform:
c. If neither a. nor b. applies, is it necessary
for the employee to be absent from work for treatment? ______
8.a. If leave is required to care for a family
member of the employee with a serious health condition, does the
patient require assistance for basis medical or personal needs or
safety, or for transportation? ______
b. If no, would the employee's presence to provide
psychological comfort be beneficial to the patient or assist in
the patient's recovery? _____
c. If the patient will need care only intermittently
or on a part-time basis, please indicate the probable duration of
this need:
_______________________________ ______________________
(Signature of Health Care Provider) (Type of Practice)
_______________________________ ______________________
(Address) (Telephone number)
To be completed by the employee needing family leave to care for
a family member:
State the care you will provide and an estimate
of the period during which care will be provided, including a schedule
if leave is to be taken intermittently or if it will be necessary
for you to work less than a full schedule:
_______________________________ ______________________
(Employee signature) (Date)
A "Serious Health Condition" means an illness, injury, impairment,
or physical or mental condition that involves one of the following:
1. Hospital Care
Inpatient care (i.e., an overnight stay) in
a hospital, hospice, or residential medical care facility, including
any period of incapacity2 or subsequent treatment in connection
with or consequent to such inpatient care.
2. Absence Plus Treatment
(a) A period of incapacity2 of more than three
consecutive calendar days (including any subsequent treatment or
period of incapacity2 relating to the same condition), that also
involves:
(1) Treatment two or more times by a health
care provider, by a nurse or physician's assistant 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
(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. Pregnancy
Any period of incapacity due to pregnancy, or
for prenatal care.
4. Chronic Conditions Requiring Treatments
A chronic condition which:
(1) Requires periodic visits for treatment by
a health care provider, or by a nurse or physician's assistant 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 incapacity2 (e.g., asthma, diabetes, epilepsy, etc.)
5. Permanent/Long-term Conditions Requiring
Supervision
A period of incapacity2 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.
6. Multiple Treatments (Non-Chronic Conditions)
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, either for restorative surgery
after an accident or other injury, or for a condition that would
likely result in a period of incapacity2 of more than three consecutive
calendar days in the absence of medical intervention or treatment,
such as cancer (chemotherapy, radiation, etc.), severe arthritis
(physical therapy), kidney disease (dialysis). APPENDIX C to
Part 825 [Reserved]
APPENDIX D to Part 825 - Prototype Notice: Employing Office Response
to Employee Request for Family and Medical Leave
Employing Office Response to Employee
Request for Family or Medical Leave
(Optional use form - see § 825.301(b)(1) of the regulations
of the Office of Compliance)
(Family and Medical Leave Act of 1993,
as made applicable by the Congressional Accountability Act of 1995)
(Date)
TO :
(Employee's name)
FROM:
(Name of appropriate employing office representative)
SUBJECT: Request for Family/Medical Leave
On , you notified us of your need to take family/medical
leave due to:
(date)
_ the birth of your child, or the placement of a child with you
for adoption or foster care; or
_ a serious health condition that makes you
unable to perform the essential functions of your job; or
_ a serious health condition affecting your
_ spouse, _ child, _ parent, for which you are needed to provide
care.
You notified us that you need this leave beginning
on and that you expect leave to continue until on or about . (date)
(date)
Except as explained below, you have a right
under the FMLA, as made applicable by the CAA, for up to 12 weeks
of unpaid leave in a 12-month period for the reasons listed above.
Also, your health benefits must be maintained during any period
of unpaid leave under the same conditions as if you continued to
work, and you must be reinstated to the same or an equivalent job
with the same pay, benefits, and terms and conditions of employment
on your return from leave. If you do not return to work following
FMLA leave for a reason other than: (1) the continuation, recurrence,
or onset of a serious health condition which would entitle you to
FMLA leave; or (2) other circumstances beyond your control, you
may be required to reimburse us for our share of health insurance
premiums paid on your behalf during your FMLA leave.
This is to inform you that: (check appropriate
boxes; explain where indicated)
1. You are _ eligible _ not eligible for leave
under the FMLA as made applicable by the CAA.
2. The requested leave _ will _ will not be
counted against your annual FMLA leave entitlement.
3. You _ will _ will not be required to furnish
medical certification of a serious health condition. If required,
you must furnish certification by (insert date) (must be
at least 15 days after you are notified of this requirement) or
we may delay the commencement of your leave until the certification
is submitted.
4. You may elect to substitute accrued paid
leave for unpaid FMLA leave. We _ will _ will not require that you
substitute accrued paid leave for unpaid FMLA leave. If paid leave
will be used the following conditions will apply: (Explain)
5(a). If you normally pay a portion of the premiums
for your health insurance, these payments will continue during the
period of FMLA leave. Arrangements for payment have been discussed
with you and it is agreed that you will make premium payments as
follows: (Set forth dates, e.g., the 10th of each month, or pay
periods, etc. that specifically cover the agreement with the employee.)
(b). You have a minimum 30-day (or, indicate
longer period, if applicable) grace period in which to make
premium payments. If payment is not made timely, your group health
insurance may be canceled, provided we notify you in writing at
least 15 days before the date that your health coverage will lapse,
or, at our option, we may pay your share of the premiums during
FMLA leave, and recover these payments from you upon your return
to work. We _ will _ will not pay your share of health insurance
premiums while you are on leave.
(c). We _ will _ will not do the same with other
benefits (e.g., life insurance, disability insurance, etc.) while
you are on FMLA leave. If we do pay your premiums for other benefits,
when you return from leave you _ will _ will not be expected to
reimburse us for the payments made on your behalf.
6. You _ will _ will not be required to present
a fitness-for-duty certificate prior to being restored to employment.
If such certification is required but not received, your return
to work may be delayed until the certification is provided.
7(a). You _ are _ are not a "key employee" as described in §825.218
of the Office of Compliance's FMLA regulations. If you are a "key
employee," restoration to employment may be denied following FMLA
leave on the grounds that such restoration will cause substantial
and grievous economic injury to us.
(b). We _ have _ have not determined that restoring
you to employment at the conclusion of FMLA leave will cause substantial
and grievous economic harm to us. (Explain (a) and/or (b) below.
See §825.219 of the Office of Compliance's FMLA regulations.)
8. While on leave, you _ will _ will not be
required to furnish us with periodic reports every (indicate
interval of periodic reports, as appropriate for the particular
leave situation) of your status and intent to return to work
(see §825.309 of the Office of Compliance's FMLA regulations).
If the circumstances of your leave change and you are able to return
to work earlier than the date indicated on the reverse side of this
form, you _ will _ will not be required to notify us at least two
work days prior to the date you intend to report for work.
9. You _ will _ will not be required to
furnish recertification relating to a serious health condition.
(Explain below, if necessary, including the interval between
certifications as prescribed in §825.308 of the Office of Compliance's
FMLA regulations.)
APPENDIX E to Part 825 -- [Reserved]
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