fmla final regulations (federal register) - nysalcnysalc.org/nalc_contract/fmla/60fr2180.pdf ·...

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FridayJanuary 6, 1995

Part II

Department of LaborWage and Hour Division

29 CFR Part 825The Family and Medical Leave Act of1993; Final Rule

NALC

April 2004 Please note that federal regulations CHANGE. At the time of this CD's publication these were the U.S. Department of Labor's latest regulations concerning the Family and Medical Leave Act. However, they may have changed since then. For information about any changes in the FMLA regulations, check the FMLA Web site at http://www.dol.gov This document was obtained at the Government Printing Office site. That site has search engines for the Code of Federal Regulations and the Federal Register: http://www.gpo.gov

2180 Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

DEPARTMENT OF LABOR

Wage and Hour Division

29 CFR Part 825

RIN 1215–AA85

The Family and Medical Leave Act of1993

AGENCY: Wage and Hour Division,Labor.ACTION: Final rule.

SUMMARY: This document provides thetext of final regulations implementingthe Family and Medical Leave Act of1993, Public Law 103–3, 107 Stat. 6 (29U.S.C. 2601 et seq.) (FMLA or Act).FMLA generally requires private sectoremployers of 50 or more employees, andpublic agencies, to provide up to 12workweeks of unpaid, job-protectedleave to eligible employees for certainspecified family and medical reasons; tomaintain eligible employees’ pre-existing group health insurancecoverage during periods of FMLA leave;and to restore eligible employees totheir same or an equivalent position atthe conclusion of their FMLA leave.EFFECTIVE DATE: These rules are effectiveon February 6, 1995.FOR FURTHER INFORMATION CONTACT: J.Dean Speer, Director, Division of Policyand Analysis, Wage and Hour Division,Employment Standards Administration,U.S. Department of Labor, Room S–3506, 200 Constitution Avenue, NW.,Washington, DC 20210; telephone (202)219–8412. This is not a toll-free number.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

Recordkeeping requirementscontained in these regulations(§ 825.500) have been reviewed andapproved for use through July 1996 bythe Office of Management and Budget(OMB) and assigned OMB controlnumber 1215–0181 under thePaperwork Reduction Act of 1980 (Pub.L. 96–511). No substantive changes havebeen made in this final rule which affectthe recordkeeping requirements andestimated burdens previously reviewedand approved under OMB controlnumber 1215–0181. Comments receivedregarding the estimate of publicreporting burden for the informationcollection requirements contained inthese regulations are discussed below inconnection with § 825.500.

II. Background

The FMLA was enacted on February5, 1993. In general, FMLA entitles an‘‘eligible employee’’ to take up to a total

of 12 workweeks of unpaid leave duringany 12-month period for the birth of achild and to care for such child, for theplacement of a child for adoption orfoster care, to care for a spouse or animmediate family member with aserious health condition, or when he orshe is unable to work because of aserious health condition. Employerscovered by the law are required tomaintain any pre-existing group healthcoverage during the leave period and,once the leave period is concluded, toreinstate the employee to the same or anequivalent job with equivalentemployment benefits, pay, and otherterms and conditions of employment.

Title I of the Act applies to privatesector employers of 50 or moreemployees, public agencies, and certainFederal employers and entities, such asthe U.S. Postal Service and Postal RateCommission. These regulations, 29 CFRPart 825, implement Title I of theFMLA. Similar leave entitlementprovisions in Title II of the FMLA applyto most other Federal civil serviceemployees who are covered by theannual and sick leave systemestablished under 5 U.S.C. Chapter 63,plus certain employees covered by otherFederal leave systems. The U.S. Officeof Personnel Management (OPM)administers the regulationsimplementing Title II of the FMLA (see5 CFR Part 630). Title III established atemporary ‘‘Commission on Leave,’’which is to conduct a comprehensivestudy and produce a report on existingand proposed policies on leave and thecosts, benefits, and impact onproductivity of such policies. Title IVcontains miscellaneous provisions,including rules governing the effect ofthe Act on more generous leave policies,other laws, and existing employmentbenefits. Title V extended similar leaveprovisions to certain employees of theU.S. Senate and the U.S. House ofRepresentatives.

Section 404 of the Act required theDepartment of Labor to issue regulationsto implement Title I and Title IV ofFMLA within 120 days of enactment, orby June 5, 1993, with an effective dateof August 5, 1993. Title I of FMLAbecame effective on August 5, 1993,except where a collective bargainingagreement (CBA) was in effect on thatdate, in which case the provisions tookeffect on the date the CBA terminated oron February 5, 1994, whichever dateoccurred earlier.

To obtain public input and assist inthe development of FMLA’simplementing regulations, theDepartment published a notice ofproposed rulemaking in the FederalRegister on March 10, 1993 (58 FR

13394), inviting comments until March31, 1993, on a variety of questions andissues. A total of 393 comments werereceived in response to the notice—fromemployers, trade and professionalassociations, advocacy organizations,labor unions, State and localgovernments, law firms and employeebenefit firms, academic institutions,financial institutions, medicalinstitutions, governments, Members ofCongress, and others.

After consideration of the commentsreceived, the Department issued aninterim final rule on June 4, 1993 (58 FR31794), which went into effect onAugust 5, 1993, and which invitedfurther public comment on FMLA’simplementing rules until September 3,1993. On August 30, 1993, theDepartment further extended the publiccomment period until December 3, 1993(58 FR 45433). The Department receivedmore than 900 comments on the interimfinal rules during the extendedcomment period from advocacy groupsand associations, Members of Congress,employers, union organizations,governmental entities and associations,law firms, management consultants,marriage and family counselors andtherapists, clinical social workers,property management companies,temporary help and employee leasingcompanies, professional and tradeassociations, universities, andindividuals. In addition to thesubstantive comments discussed below,many commenters submitted minoreditorial suggestions, some of whichwere adopted and some were not.Finally, a number of other minoreditorial changes have been made tobetter organize and simplify theregulatory text.

On December 29, 1994, a meeting washeld at OMB with representatives ofConsolidated Edison Company of NewYork pursuant to E.O. 12866.

The Department would like to pointout that it has prepared a lengthypreamble to accompany theseregulations in an attempt to be fullyresponsive to the numerous commentsreceived. The Department wouldwelcome additional commentsregarding employers’ experience withthe implementation of the FMLA overthe course of the next year or so. Suchcomments will be reviewed togetherwith the results of the comprehensivestudy on existing and proposed leavepolicies to be conducted by theCommission on Leave to determinewhether further revisions to theseregulations will be appropriate in thefuture.

2181Federal Register / Vol. 60, No. 4 / Friday, January 6, 1995 / Rules and Regulations

Summary of Major Comments

I. Subpart A, §§ 825.100–825.118

Covered Employers (§ 825.104)

Under FMLA, any employer engagedin commerce or in an industry oractivity affecting commerce is covered if50 or more employees are employed inat least 20 or more calendar workweeksin the current or preceding calendaryear. The Women’s Legal Defense Fundand the Food & Allied Service Tradesexpressed concern that employers maymanipulate workforce levels to avoidthe Act’s leave requirements. In thisconnection, they suggested that anyintentional reduction to 49 or feweremployees after an employee request forFMLA leave should constitute unlawfulinterference with FMLA rights, and, asprovided in regulations by the State ofOregon under its Family Leave Act,deemed a violation of the Act.

Section 825.220 discusses theprohibited acts and anti-discriminationprovisions of the Act, includingviolative employer practices thatattempt to interfere with an employee’sexercise of rights under the Act. It is theDepartment’s view that manipulation ofworkforce levels by employers coveredby FMLA in an effort to denyemployees’ eligibility for leave is aviolation of the Act’s requirements, andthis has been clarified in § 825.220.

Two commenters (Alabama PowerCompany and DLH Industries, Inc.)objected to the statement in § 825.104that individuals such as corporateofficers ‘‘acting in the interest of anemployer’’ are individually liable forany violations of the Act. They contendthat this provision could frustrateadvancement to managerial positionsand unnecessarily increase costs forinsurance and bonding. The CaliforniaDepartment of Fair Employment andHousing questioned whether managersor supervisors can be held personallyliable under FMLA.

FMLA’s definition of ‘‘employer’’ isthe same as the Fair Labor StandardsAct (FLSA), 29 U.S.C. 203(d), insofar asit includes any person who acts directlyor indirectly in the interest of anemployer to any of the employer’semployees. Under established FLSAcase law, corporate officers, managersand supervisors acting in the interest ofan employer can be held individuallyliable for violations of the law. See, e.g.,Reich v. Circle C Investments, Inc., 998F.2d 324 (5th Cir. 1993); Dole v. ElliotTravel & Tours, Inc., 942 F.2d 962 (6thCir. 1991).

The Chamber of Commerce of theUSA expressed concern about theimpact of the ‘‘employer’’ definition on

various business arrangements, e.g.,leased employees, franchises, and otherloosely-related business operations. TheNational Automobile DealersAssociation stated that additionalguidance on the application of the‘‘integrated employer’’ test wouldbenefit the small business community inparticular.

The ‘‘integrated employer’’ test is nota new concept created solely forpurposes of FMLA. It is based onestablished case law, as was explainedin the preamble of the Interim FinalRule, arising under Title VII of the CivilRights Act of 1964 and the LaborManagement Relations Act. As FMLA’slegislative history states, the definitionof ‘‘employer’’ parallels Title VII’slanguage defining a covered employerand is intended to receive the sameinterpretation. Under Title VII and otheremployment-related legislation,including the LMRA, when determiningwhether to treat separate entities as asingle employer, individualdeterminations are highly fact-specificand are based on whether there iscommon management, an interrelationbetween operations, centralized controlof labor relations, and the degree ofcommon ownership/financial control.They are not determined by any singlecriterion, nor do all factors need to bepresent; rather, the entire relationship isviewed as a whole. Because it is a fact-specific question in each case, furtherdetailed guidance cannot be provided inthe regulations.

The Society for Human ResourceManagement questioned whether theAct applied to employers in PuertoRico, or to such entities as theResolution Trust Corporation or toIndian Tribes. FMLA’s coverage extendsto any State of the United States, theDistrict of Columbia, and to anyterritory or possession of the UnitedStates (§ 101(3) of FMLA defines theterm ‘‘State’’ to have the same meaningas defined in § 3(c) of the Fair LaborStandards Act). Employees of U.S. firmsstationed at worksites outside theUnited States, its territories, orpossessions are not protected by FMLA,nor are such employees counted forpurposes of determining employercoverage or employee ‘‘eligibility’’ withrespect to worksites inside the UnitedStates. This point has been clarified in§ 825.105 of the regulations. TheResolution Trust Corporation can be acovered employer under Title I of FMLAas a ‘‘successor in interest’’ of a coveredemployer when it assumes control overa failing thrift as part of the resolutionprocess. Because FMLA is a statute ofbroad general applicability, whichapplies to both the public and private

sectors, and there is nothing in eitherthe statute or its legislative historywhich provides an exemption for Indiantribes, it is the Department’s view thatIndian tribes may be covered by thelegislation where the statutoryprerequisites are met, as ‘‘a generalstatute in terms applying to all personsincludes Indians and their propertyinterests.’’ FPC v. Tuscarora IndianNation, 362 U.S. 99, 116 (1960). Therule in Tuscarora contains exceptionsfor laws that (1) affect exclusive rightsof self-governance in purely intramuralmatters; (2) abrogate rights guaranteedin Indian treaties; or (3) provide proofby legislative history or otherwise thatCongress intended the law not to applyto Indians. It is the Department’sposition that these exceptions do notapply to the FMLA, consistent with thereasoning of the Ninth Circuit inDonovan v. Coeur d’Alene Tribal Farm,751 F.2d 1113, 1116 (1985). But seeEEOC v. Cherokee Nation, 871 F.2d 937(1989), in which the Tenth Circuit heldthat the Age Discrimination inEmployment Act does not apply toIndians because its enforcement wouldinterfere with the tribe’s right of self-government.

50 Employee/20 Workweek Threshold(§ 825.105)

Private sector employers must employ50 or more employees each working dayduring 20 or more calendar weeks in thecurrent or preceding calendar year to becovered by FMLA. Nine commentersaddressed the ‘‘50 or more employees’’threshold test for coverage. TheWomen’s Legal Defense Fund and theInternational Ladies’ Garment Worker’sUnion objected to the exclusion ofworkers on temporary layoff from thecount. They argued that temporaryworkers with a reasonable expectationof return to active employment arecounted as employees under the WorkerAdjustment and Retraining Notification(WARN) Act; that the test for evaluatingwho is an employee should be that ofa ‘‘continuing employmentrelationship’’ and not the actualperformance of work during a giventime period; and that only employees onan indefinite or long-term layoff shouldbe excluded from the count.

FMLA has significantly differentstatutory coverage provisions and servesconsiderably different objectives thanthose of WARN. The FMLA regulationsattempt to define the size of anemployer’s workforce count for leavepurposes, and uses a ‘‘continuingemployment relationship’’ principle.There is no continuing employee-employer relationship during a layoff, asevidenced by the fact that employees on


layoff are entitled to unemploymentbenefits, and laid-off employees are notmaintained on the payroll during suchperiods. Furthermore, being on unpaidleave is not the same as being laid off.Moreover, under FMLA, if, while onFMLA leave, an employee would havebeen laid off, and the employmentrelationship terminated, the employee’srights to continued leave and jobreinstatement would not extend beyondthe date the employee would have beenlaid off. While the regulations do notrequire actual performance of workduring a given time period for anemployee to be counted as having acontinuing employment relationship(e.g., employees on employer-approvedleaves of absence are still includedwhere there is a reasonable expectationof return to work), based on FMLA’slegislative history, the regulationsnecessarily exclude all employees whoare on layoff, and the employmentrelationship terminated, whether thelayoff is temporary, indefinite or long-term.

Southern Electric International, Inc.felt that the treatment of part-timeworkers on the same basis as full-timeworkers unnecessarily broadenedcoverage because employer obligationsunder the Act, particularly employerswith large numbers of part-timeworkers, were based on counting non-eligible employees. Southern Electricargued that part-time workers should becounted, if at all, only on a pro-ratabasis, i.e., two part-time workersworking 20 hours a week would equalone equivalent full-time employee. TheUnited Paperworkers InternationalUnion, on the other hand, supportedcounting part-time workers as consistentwith the language of the Act and withTitle VII of the Civil Rights Act of 1964.The union also felt that employersshould be required to notify employeesand their union representatives whenthe conditions for coverage are nolonger met.

FMLA’s legislative history clearlystates Congressional intent to includepart-time employees when counting thesize of the employer’s workforce. Thecommittee reports state that part-timeemployees and employees on leaves ofabsence would be counted as‘‘employed for each working day’’ solong as they are on the payroll for eachday of the workweek. And, similarly, inaggregating the number of employees atthe worksite and within 75 miles fordetermining employee eligibility, thelegislative history states that all of theemployees of the employer, not justeligible employees, are to be counted.Accordingly, part-time employees must

be counted the same as full-timeemployees under FMLA.

With respect to adding a requirementthat employers notify employees andtheir representatives when they cease tobe covered by the Act, the Departmentbelieves that such a requirement wouldbe overly burdensome. Questions ofemployer coverage and employeeeligibility are fact-specific and may besubject to frequent change in someemployment situations. They should beresolved as necessary when anemployee requests leave.

Southern Electric International, Inc.also noted that the phrase ‘‘reasonableexpectation that the employee will laterreturn to work’’ is confusing as it relatesto employees on long-term disabilitybecause such employees rarely everreturn to work for the same employer.The commenter recommended thatlong-term disabled employees beexcluded from the 50-employee count.The National Restaurant Associationalso maintained that the ‘‘reasonableexpectation’’ requirement should bedeleted because it had no basis in theAct or its legislative history, arguingfurther that the term was surplusage inthat an employee is either on the payrollor is not on the payroll.

An employee who is permanentlydisabled from work would notreasonably be expected to return towork and, therefore, may be excludedfrom the employee count. TheDepartment continues to believe,however, that the employer’s workforcecount should be based on whether thereis a continuing employmentrelationship between the employer andeach of its employees. A ‘‘reasonableexpectation’’ that an employee on leavewill later return to work is anappropriate standard that contributes toa better understanding of thatrelationship for purposes of FMLA, andit is retained in the regulations.

Additionally, two public commenters(Association of Washington Cities andthe California Department of FairEmployment and Housing) suggestedthat the phrase ‘‘on the payroll’’ neededclarification as applied to publicemployers. They noted practices of localgovernments to hire seasonal andtemporary employees, particularly inpublic works and recreation, who mayor may not be rehired the followingsummer or after completion of shortterm projects; or to use volunteerfirefighters and volunteer police reserveofficers who receive only nominalstipends for service. Because publicagencies are covered ‘‘employers’’ underthe Act regardless of the number ofemployees employed (see § 825.108(a)),these comments more appropriately

raise questions related to ‘‘employeeeligibility’’ and are addressed in thediscussion of §§ 825.110 and 825.111.

Joint Employment (§ 825.106)Administaff, Abel Temps, National

Staff Leasing Association, NationalAssociation of Temporary Services, andNational Staff Network argued thattemporary help and leasing agenciesshould not be held responsible, as theprimary employer, for giving therequired FMLA notices, providing leave,maintaining health benefits, and jobrestoration. In particular, they stressedthe unique nature of their business andthe relationship with client employers,who, rather than the temporary help orleasing agency, have control overworksites and jobs. They argue generallythat client employers, as secondaryemployers, should be responsible for jobrestoration and other requirements ofthe Act for all their own employees,including leased or temporaryemployees. In the alternative, several ofthese commenters urged adoption of a‘‘head of the line’’ standard, whichwould limit job restoration fortemporary or leased employees wherethe client employer discontinues theservices of the temporary or leasingagency or the services of the returningtemporary/leased employee, to priorityconsideration by the temporary orleasing agency for possible placement inassignments with other client employersfor which the employee is qualified.Several of these commenters alsoproposed differing criteria for situationswhere temporary or leasing agenciescontract with covered and non-coveredclient employers.

The Department agrees that jointemployment relationships do presentspecial compliance concerns fortemporary help and leasing agencies inthat the ease with which they may beable to meet their statutory obligationsunder FMLA may depend largely on thenature of the relationship they haveestablished with their client-employers.Our analysis of the statute and itslegislative history in the context of theindustry comments submitted, however,revealed no viable alternatives thatcould be implemented by regulationthat would not also have theunacceptable result of depriving eligibleemployees of their statutory rights to jobreinstatement at the conclusion ofFMLA leave. As the legislative historyclearly states, the right to be restoredupon return from leave to the previousposition or to an equivalent positionwith equivalent employment benefits,pay and other terms and conditions ofemployment is central to theentitlement provided by FMLA.


Furthermore, it is the employmentagency which is responsible for theemployee’s pay and benefits, and is inthe best position to provide the rightsand benefits of the Act.

FMLA does not entitle a restoredemployee to any right, benefit, orposition of employment other than anyright, benefit, or position which theemployee would have held or beenentitled to had the employee not takenleave. This means, for example, that if,but for being on leave, an employeewould have been laid off, theemployee’s right to reinstatement iswhatever it would have been had theemployee not been on leave when thelayoff occurred. Thus, if a clientemployer of a temporary help agencydiscontinued the services of thetemporary help agency altogether, ordiscontinued contracting for theparticular services that were beingfurnished by the temporary employeewho took FMLA leave, during theemployee’s FMLA leave period,following a ‘‘head of the line’’ approachfor giving the returning employeepriority consideration for possibleplacement in assignments with otherclient employers for which theemployee is qualified would appear tobe entirely consistent with the intent ofthe FMLA in those circumstances. Asprovided in § 825.216, an employermust show that an employee would nototherwise have been employed in orderto deny restoration to employment inthe same or an equivalent position.Failure to promptly restore a returningemployee to employment at theconclusion of the leave where the clientemployer continues to utilize the sameservices as were previously furnished bythe employee who took leave would bea violation of FMLA’s job restorationrequirements.

Two commenters (William M. Mercer,Inc. and Chamber of Commerce of theUSA) noted that subsection (f) could beconstrued as requiring the secondary orclient employer to restore the jobs oftemporary or leased employees, whichis disruptive to business and thecontractual relationship betweentemporary or leasing agencies and theclient employers. They felt that jobrestoration obligations should be theresponsibility of the temporary orleasing agency (the primary employer).

The primary employer (temporaryplacement firm or leasing agency) isresponsible for furnishing eligibleemployees with all FMLA-requirednotices, providing FMLA leave,maintaining health benefits duringFMLA leave, and restoring employees toemployment upon return from leave. Inaddition, although job restoration is the

responsibility of the primary employer,the purposes of the Act would bethwarted if the secondary employer isable to prevent an employee fromreturning to employment. Accordingly,the regulations are revised to providethat the secondary employer isresponsible for accepting an employeereturning from leave in place of anyreplacement employee. Furthermore,the secondary employer (clientemployer) must observe FMLA’sprohibitions in § 105(a)(1), including theprohibition against interfering with,restraining, or denying the exercise of orattempt to exercise any rights providedunder the FMLA. It would be anunlawful practice, in the Department’sview, if a secondary employer interferedwith or attempted to restrain efforts bythe primary (temporary help) employerto restore an employee who wasreturning from FMLA leave to his or herprevious position of employment withthe secondary (client) employer (wherethe primary (temporary help) employeris still furnishing the same services tothe secondary (client) employer).Because the secondary employer isacting in the interest of the primaryemployer within the meaning of§ 101(4)(A)(ii)(I) of the Act, thesecondary employer has theseresponsibilities, regardless of thenumber of employees employed.

The National Association ofPlumbing-Heating-Cooling Contractorsnoted a potential for misunderstandingsof the ‘‘joint employment’’ criteria andthe Chamber of Commerce of the USA,for similar reasons, urged that DOLreconsider the requirement insubsection (d) that jointly-employedemployees are counted by bothemployers in determining employercoverage and employee eligibility. Thisrequirement, according to the Chamber,was of particular concern to smallbusinesses. To minimize the risk ofunintentional violations of the Act, theChamber recommended against arequirement to count employees jointlyfor purposes of determining eligibilitystatus, and urged adoption of ‘‘goodfaith’’ defense provisions for employersconfronted with joint employmentquandaries.

In joint employment relationships, anindividual employee’s eligibility to takeFMLA leave is determined fromcounting the employees employed bythat employee’s primary employer (i.e.,the one responsible for granting FMLAleave), and would exclude any‘‘permanent’’ employees ‘‘primarilyemployed’’ by any secondary (joint)employer of that same employee. Thus,in practical effect, the employee is onlycounted once for purposes of

determining his or her own individualeligibility to take FMLA leave. In theexample of 15 employees from atemporary help agency working with 40‘‘permanent’’ employees employed byan employer, the eligibility of any oneof the 15 temporary help agencyemployees to take FMLA leave fromtheir primary employer (the temporaryhelp agency) is determined by countingonly the temporary help agencyemployees assigned (outplaced) from orworking at the temporary help agency’s‘‘single site of employment’’ (i.e., mostlikely the main placement or corporateoffice). Excluded from this count is any‘‘permanent’’ employee of any of thetemporary help agency’s clientemployers. On the other hand, the clientemployer with 40 ‘‘permanent’’employees is responsible for grantingFMLA leave to its ‘‘permanent’’employees because it employs a total ofmore than 50 employees whenincluding the jointly-employedemployees, but its obligation to grantFMLA leave extends to only its 40‘‘permanent’’ employees.Notwithstanding the complexities thatarise in administering the law in jointemployment contexts, there is noauthority to adopt by regulation any‘‘good faith’’ defense provisions thatwould take away employees’ statutoryrights.

William M. Mercer, Inc. noted that therequirement in subsection (d) relating tocounting jointly-employed employeesfor coverage and eligibility purposes‘‘whether or not maintained on apayroll’’ differed from § 825.111(c),which limits the employee count at aworksite to employees maintained onthe payroll. The commenter urgedclarification of ‘‘joint employment’’principles in the case of worksitedeterminations and, also, indeterminations of whether or not 1,250hours have been worked for eligibility(§ 825.110(d)).

As noted above, § 825.106 providesparticularized guidance that addressesthe special circumstances of jointemployment. Because in most jointemployment situations there may beonly one payroll, maintained by onlythe primary employer, the guidance in§§ 825.105 and 825.111, standing alone,would not be sufficient to address jointemployment. Section 825.106 is revisedto further clarify application, as theemployee is maintained on only onepayroll. In addition, in order to clarifyand prevent misunderstandings,§ 825.111 is revised to add similarguidance from § 825.106 on jointemployment ‘‘worksite’’ determinationsfor purposes of determining employeeeligibility. With respect to counting the


hours worked by jointly-employedemployees to determine if the 1,250hour threshold is met, the calculation isrelevant only with respect to theprimary employer of the employee atthe time the employee requests FMLAleave.

The discussion of employmentrelationship in general has beenremoved from this section of theregulations and a more generaldiscussion has been included instead in§ 825.105.

Successor in Interest (§ 825.107)The Equal Employment Opportunity

Commission (EEOC) pointed out thatwhile the factors for determining‘‘successor in interest’’ are based in parton Title VII precedent, no reference ismade in this section to whether or notthe successor had ‘‘notice’’ of pendingcomplaints against a predecessoremployer. The EEOC recommendedclarifying how ‘‘notice’’ affects theliability of a successor employer or astatement explaining that the FMLArule departs from established Title VIIprecedent in this respect.

As explained in the preamble to theInterim Final Rule, the list of factors isderived from Title VII and Vietnam EraVeterans’ Readjustment Act of 1974 caselaw. The Department agrees with thecourt in Horton v. Georgia-Pacific Corp.,114 Lab. Cas. (CCH) par. 12,060 (E.D.Mich. 1990), that notice should not beconsidered to continue thepredecessor’s obligation to employeeswho are on leave, or for determiningcoverage and eligibility of employeescontinuing in employment. TheDepartment believes, however, thatnotice may be relevant in determining asuccessor employer’s liability forviolations of the predecessor, and therule is clarified accordingly.

The Chamber of Commerce of theUSA indicated a need to clarify how apredecessor and successor employer canallocate FMLA liability andresponsibility. In this connection, thecommenter recommended adoption ofcriteria provided by 20 CFR § 639.4 ofthe Worker Adjustment and RetrainingNotification Act regulations.

The WARN Act regulations, at§ 639.4(c), discuss the effect of a sale ofa business between a seller and a buyerand the continuing employerobligations, under WARN, for givingnotice to employees of plans to carry outa plant closing or mass layoff. While theDepartment believes it is appropriate fora seller of a business to inform apotential buyer of any eligibleemployees who are either to be out onFMLA leave at the time the business issold (or have announced to the seller

plans to take FMLA leave soon after thesale takes place), so that the buyer isaware of its ‘‘successor in interest’’obligations under FMLA to maintainhealth benefits during the FMLA leaveperiods and to restore the employees atthe conclusion of their FMLA leave,there is no ‘‘allocation’’ of responsibilityunder FMLA based on whether theseller and buyer have exchanged suchinformation. The regulations are revisedto make clear that an eligible employeeof a covered predecessor employer whocommences FMLA leave before thebusiness is sold to a ‘‘successor ininterest’’ employer is entitled underFMLA to be restored to employment bythe successor employer withoutlimitation.

The Employers Association of NewJersey questioned whether a successoremployer had to meet coveragerequirements (§ 825.104) in order to beconsidered a ‘‘successor in interest.’’FMLA’s statutory definition of‘‘employer’’ (§ 101(4)) includes ‘‘anysuccessor in interest of an employer,’’which we interpret to include successoremployers that employ fewer than 50employees after the succession ofinterest. FMLA’s obligations in suchcases, however, are limited tocompleting the cycle of any FMLA leaverequests initiated by employees of thepredecessor employer, where theemployees met the eligibility criteria atthe time the leave was requested.

The Contract Services Association ofAmerica posed a series of questionsrelated to FMLA’s ‘‘successor ininterest’’ obligations as applied toservice contractors performing onFederal service contracts covered by theMcNamara-O’Hara Service Contract Act(SCA). In the example posed, EmployerA has lost a service contract (throughrecompetition) to Employer B. EmployerB has been determined to be a‘‘successor in interest.’’ In its bidproposal, Employer B did not includeseveral positions which Employer Aemployed on the predecessor contract.One of the eliminated positions wasoccupied by an employee of EmployerA who was on FMLA leave at the timeof the succession of the contract toEmployer B. The Associationquestioned whether Employer A wouldhave to continue to maintain theemployee on FMLA leave and maintainhis or her group health benefits, orwhether the employee could beterminated at the time of contractturnover, treating it as a layoff and alack of work. Employer A would nothave to maintain this employee onFMLA leave or maintain health benefitsif it can demonstrate that the employeewould not otherwise have been

employed as a result of the loss of thecontract. This could be demonstrated,for example, if other, similarly situatedemployees of Employer A did nototherwise continue their employmentwith Employer A on other contract workor in some other capacity. BecauseEmployer B had no comparable positionin its bid proposal, Employer B wouldnot be obligated to hire this employeeeither.

The Association also asked if anemployee on an SCA-covered contractwere on FMLA leave at the time ofcontract transition to another contractor,would a ‘‘successor in interest’’contractor be required to hire theemployee under the job protectionprovisions of FMLA? The answer is‘‘yes’’, if the employee’s positioncontinues to exist under the successorcontract (as distinguished from the factsin the previous example, above). Thesuccessor contractor would not have aright to ‘‘non-select’’ the employee inthis example at the end of theemployee’s FMLA leave. The outgoingcontractor would not be required tomaintain this employee’s group healthplan benefits for the remaining period ofFMLA leave extending beyond thecontract changeover, but the ‘‘successorin interest’’ contractor would berequired to do so, and to restore theemployee to the same or an equivalentposition.

With respect to the remainingquestions posed by the Association, itwould be helpful for a predecessorcontractor to furnish a list to thesuccessor in interest of the predecessor’semployees who are on FMLA leavewhen contractors change, and a list ofbenefits being provided (so they may bemaintained and/or restored at the samelevels). If lists are not furnished, thesuccessor in interest should attempt todetermine its obligations withoutwaiting for the employees on FMLAleave to apply for employment with thesuccessor.

Public Agency (§ 825.108)The State of Nevada personnel

department objected to the designationof a State as a single employer,suggesting that certain individual‘‘public agencies’’ of a State should betreated as separate employers based oncriteria set forth in an administrativeletter ruling issued by the Wage-HourAdministrator on October 10, 1985.

Treating a State as a single employerunder FMLA is a result required by thestatute. FMLA defines the term‘‘employer’’ to include any ‘‘publicagency’’ as defined in § 3(x) of the FairLabor Standards Act, which defines‘‘public agency’’ to include the


government of a State or politicalsubdivision of a State, and any agencyof a State or a political subdivision ofa State. The 1985 letter ruling cited bythe commenter was issued before theenactment of the 1985 FLSAAmendments, under which theCongress included specially-tailoredprovisions for employees of publicagencies to address special situationswhere they volunteer their servicesunder certain conditions, and performwork in fire protection, lawenforcement, or related activities onspecial details when hired for suchwork by a ‘‘separate and independentemployer.’’ Special rules to addressFLSA’s particular statutory provisionsare found in 29 CFR Part 553;§ 553.102(b) provides that thedetermination of whether two agenciesof the same State government constitutethe same public agency can only bemade on a case-by-case basis, but onefactor supporting the conclusion thatthey are separate is whether they aretreated separately for statisticalpurposes in the Census of Governmentsissued by the Bureau of the Census, U.S.Department of Commerce. Section825.108(c) of the FMLA rules similarlyprovides for following the Census ofGovernments publication in resolvingparticular questions. FLSA’s specialrules for defining a public agencyemployer for other unique purposesmandated under FLSA are notanalogous to FMLA leave situations,and we do not believe that any similarspecial rules are required under FMLA.

The Office of Legislative Auditor,State of Louisiana questioned the statusof an agency of a State’s legislativebranch under FMLA, where the agencyis not subject to the State’s civil serviceregulations and is otherwise considerednot covered under the FLSA.

Section 101(3) of the FMLA definesthe term ‘‘employee’’ to have the samemeaning as defined in § 3(e) of the FairLabor Standards Act. Section 3(e)(2)(C)of the FLSA excludes from thisdefinition of ‘‘employee’’ individualswho are not subject to the civil servicelaws of the State and who are employedin the legislative branch of that State(other than the legislative library). Thus,employees excluded from the FLSAstatutory definition of ‘‘employee’’would similarly be excluded fromcoverage under the FMLA.

The Government Finance OfficersAssociation felt that a public employer,as a single employer, should not berequired to notify all of its employeesabout FMLA entitlements because manyemployees may misunderstand that theyare not eligible for FMLA leave.

FMLA imposes a statutory obligationon all covered employers to post thenotice to employees informing them ofFMLA’s provisions, regardless ofwhether the employer has any ‘‘eligible’’employees. Public agencies are covered‘‘employers’’ without regard to thenumber of employees employed. Thereis no authorized exception that relievescovered employers from this noticerequirement when they have no‘‘eligible’’ employees. The DOL poster,however, includes the employeeeligibility criteria and makes it apparentthat FMLA’s entitlement to leaveapplies only to ‘‘eligible’’ employees.The individualized, specific notice toemployees required to be furnished inresponse to FMLA leave requestsapplies only to FMLA-’’eligible’’employees.

Section 825.108(b) states that the U.S.Bureau of the Census’ Census ofGovernments will be used to resolvequestions about whether a public entityis distinguishable from another publicagency. In this regard, the Office of theTreasurer, State of Ohio asked that moreinformation be provided on how thecensus information can be accessed.

The Census Bureau takes a census ofgovernments at five-year intervals.Volume 1, Government Organization,contains the official count of thenumber of State and local governments.It includes tabulations of governmentsby State, type of government, size, andcounty location. Also produced is auniverse list of governmental units,classified according to type ofgovernment. Copies of Volume 1 andsubsequent volumes are available fromthe Superintendent of Documents, U.S.Government Printing Office,Washington, D.C. 20402; District Officesof the U.S. Department of Commerce;and Regional and selective depositorylibraries. For a list of all depositorylibraries, write to the U.S. GovernmentPrinting Office, 710 N. Capitol Street,NW, Washington, D.C. 20402.

Federal Agency Coverage (§ 825.109)

The Farm Credit Administration, theChesapeake Farm Credit, and a numberof other farm credit system institutionsargued that system institutions shouldnot be listed in this section dealing withFederal agencies, citing expresslegislation that defederalized systeminstitution employees.

These commenters are correct. Thissection of the regulations has beenrevised to delete the former reference tothe Farm Credit Administration. Theseemployees will be treated in the samemanner as employees in the privatesector when determining employer

coverage and employee eligibility underFMLA.

Section 825.109(b) further states thatemployees of the Library of Congress arecovered by Title I provisions of FMLA,rather than Title II which isadministered by the Office of PersonnelManagement (OPM). A review ofapplicable legislative authority indicatesthat employees of the Library ofCongress should be covered by Title IIof FMLA within the jurisdiction ofOPM. The regulations have been revisedto delete the Library of Congress fromcoverage under Title I.

12 Months and 1,250 Hours of Service(§ 825.110)

To be eligible for FMLA leave, anemployee must have been employed forat least 12 months with the employer,and the 12 months need not beconsecutive. Several commenters statedthat determining past employment wasburdensome, too indefinite, and urgedvarious limitations on a 12-monthcoverage test. The Burroughs WellcomeCompany suggested excluding anyemployment experience prior to anemployee resignation or employer-initiated termination that occurred morethan two years before the current dateof reemployment. Another commenter,the State of Kansas Department ofAdministration, suggested limiting the12 months of service to the periodimmediately preceding thecommencement of leave. The ERISAIndustry Committee argued that the 12months should be either consecutivemonths, or 12 months of service ascomputed under bridging rulesapplicable to employer’s pension plans.

Many employers require prospectiveemployees to submit applications foremployment which disclose employees’previous employment histories. Thus,the information regarding previousemployment with an employer shouldbe readily available and may beconfirmed by the employer’s records ifa question arises. Further, there is nobasis under the statute or its legislativehistory to adopt these suggestions.

A number of commenters urgedclarifications with respect to thedetermination of 1,250 hours of serviceduring the 12-month period precedingthe commencement of leave. The EqualRights Advocates argued that any FMLAleave taken in the previous 12 monthsshould be included in the calculation ofthe requisite 1,250 hours of work. TheState of New York MetropolitanTransportation Authority stated that itwas not clear whether time paid but notworked (i.e., vacation and personaldays) should be counted and urgedlimiting the determination to only


actual hours worked. The EdisonElectric Institute made the sameobservation but noted that the standardin § 825.105 for determining coverage—50-employee test—is based onemployees appearing on the employer’spayroll. In addition to vacation time, theSociety for Human ResourceManagement asked whether overtimehours worked are to be included in thecalculation. The Air Line PilotsAssociation also urged inclusion of allcompensated hours (vacation, holiday,illness, incapacity, lay-off, jury duty,military duty, official companybusiness, leave of absence or officialunion business) in determining the1,250 hours of service. Finally, theTennessee Association of Businessrequested clarification of the status ofemployees who are temporarily laid offfor 2 or 3 weeks because of a plantshutdown.

The eligibility criteria are set forth in§ 101(2) of FMLA as a statutorydefinition of ‘‘eligible employee.’’ Onecomponent of the definition(§ 101(2)(C)) states that for purposes ofdetermining whether an employeemeets the hours of service requirement,the legal standards established under § 7of the FLSA shall apply. The legislativehistory explains that the minimumhours of service requirement is meant tobe construed in a manner consistentwith the legal principles established fordetermining hours of work for paymentof overtime compensation under § 7 ofthe FLSA and regulations under that act,citing specifically 29 CFR Part 785(Hours Worked [Under the FLSA]) andreferencing 29 CFR 778.103 (which inturn states that the principles fordetermining what hours are hoursworked within the meaning of the FLSAare discussed in 29 CFR Part 785).‘‘Hours worked’’ does not include timepaid but not ‘‘worked’’ (paid vacation,personal or sick leave, holidays), nordoes it include unpaid leave (of anykind) or periods of layoff. Whether thehours are compensated oruncompensated is not determinative forpurposes of FMLA’s 1,250-hours-of-service test. The determining factor inall cases is whether the time constituteshours of work under FLSA. Becauseovertime hours worked are ‘‘hoursworked’’ within the meaning of FLSA,they are included.

The National Restaurant Associationnoted that the determination of the1,250 hour/12 months test must bemade as of the date leave commences;whereas the 50 employee within 75miles test is to be determined when theemployee requests FMLA leave. TheAssociation argued that the same dateshould be used for determining all

eligibility requirements. The USAChamber of Commerce argued that§ 825.110(d) as written forces anemployer to avoid providing anineligible employee with an estimateddate of eligibility, a potential benefit forboth employee and employer, becausethe employer that makes such anestimate is precluded from laterchallenging the employee’s eligibility.This, according to the Chamber, ignoresthe very real possibility that anemployee may reach the projected dateand still not be eligible.

As explained in the preamble of theInterim Final Rule, the purpose andstructure of FMLA’s notice provisionsintentionally encourage as muchadvance notice of an employee’s needfor leave as possible, to enable both theemployer to plan for the absence andthe employee to make necessaryarrangements for the leave. Both partiesare served by making this determinationwhen the employee requests leave.Tying the worksite employee-count tothe date leave commences as suggestedcould create the anomalous result ofboth the employee and employerplanning for the leave, only to have itdenied at the last moment before itstarts if fewer than 50 employees areemployed within 75 miles of theworksite at that time. This wouldentirely defeat the notice and planningaspects that are so integral andindispensable to the FMLA leaveprocess. Accordingly, no changes havebeen made in response to the commentsreceived from the National RestaurantAssociation and the Chamber ofCommerce of the USA.

Several commenters (NationsbankCorporation and South Coast AirQuality Management District) indicatedthat the terms ‘‘employee’’ and ‘‘eligibleemployee’’ required clarificationregarding independent contractors,contract employees, and consultants.The Dow Chemical Company suggestedthat students working in co-op programsapproved by their schools should not bedeemed an employee eligible for FMLAbenefits.

FMLA’s definitions of ‘‘employ’’ and‘‘employee’’ are ‘‘borrowed’’ from theFLSA. If a particular arrangement in factconstitutes an employee-employerrelationship within the meaning of theFLSA (and case law thereunder) ascontemplated by the statutorydefinitions, and the ‘‘employee’’satisfies FMLA’s eligibility criteria, theemployee is entitled to FMLA’s benefits.A true independent contractorrelationship within the meaning of theFLSA would not constitute anemployee-employer relationship. Thus,an independent consultant operating his

or her own business ordinarily wouldnot be considered an ‘‘employee’’ of thebusiness that hires the consultant’sservices. Employees hired for aspecified term to perform services undercontract (‘‘contract employees’’) wouldordinarily be subject to FMLA if theyotherwise meet FMLA’s 12 months and1,250-hours-of-service (with the‘‘employer’’) eligibility criteria. It hasbeen our experience that such personsrarely qualify as independentcontractors under the FLSA, and,therefore, they would rarely qualify asindependent contractors under FMLA.There would be no authority under thestatute to exclude students working inco-op programs approved by theirschools if the arrangement otherwisemeets the criteria for an employee-employer relationship. Many suchstudents, however, may not be‘‘eligible’’ under FMLA if they have notworked for the employer for at least 12months and for at least 1,250 hours.

With respect to the 1,250 hours ofservice test, the California Rural LegalAssistance, Inc. expressed concernabout situations where employers fail tokeep required records of hours worked,and urged a reference to the ‘‘Mt.Clemens Pottery rule’’ as beingapplicable to such situations.

This comment refers to the U.S.Supreme Court’s decision in Andersonv. Mt. Clemens Pottery Co., 328 U.S. 680(1946), which provided a lighter burdenof proof for employees where employersfailed to maintain required records. Theregulations already provide thateligibility is presumed for FLSA-exemptemployees who have worked at least 12months. The regulations have beenrevised in this section to provide thesame presumption where FMLA-covered employers with 50 or moreemployees fail to keep records requiredfor purposes of establishing employeeeligibility for FMLA leave.

The American Federation of Teachersand the National Education Associationexpressed concern that employers mayintentionally reduce or otherwisemanipulate an employee’s hours toavoid FMLA eligibility, and urged thatsuch conduct be treated as a violation ofthe Act. This matter will be addressedin § 825.220(b) (the ‘‘prohibited acts’’section of the regulations) by providingthat FMLA-covered employers thatintentionally limit or manipulateemployees’ work schedules to foreclosetheir eligibility for FMLA leave will beheld in violation of the provisions ofFMLA and these regulations whichprohibit interfering with employees’exercise of rights.

The Air Line Pilots Association(ALPA) requested clarification of the


discussion in the preamble aboutdetermining 1,250 hours of service,specifically the statement that on-calltime includes ‘‘* * * hours of servicewhere it meets the FLSA hours-workedrequirements (29 CFR Part 785.17), aswould ground time for flight crews.’’According to the ALPA, the term‘‘ground time’’ requires clarification asapplied in the airline industry, whichtypically distinguishes between ‘‘flight’’time (time an airplane is actually in theair from take-off to landing), ‘‘duty’’time (hours a pilot is on duty beginningwith checkin for departure untilreturning to the domicile) and ‘‘reserve’’time (designated on-call period whenpilot must be available to be reached byphone, and must be able to report to theairport within one to three hours’notice). Pilots typically receive differentrates of pay for the reserve time, theflight time and an hourly per-diem forall duty time. The commenter arguesthat all hours credited for such payshould be credited for hours of service.

Crediting the time attributable to allsuch pay would exceed the number ofactual hours worked within the meaningof the FLSA and thus be contrary toFMLA’s provisions on crediting hours ofservice based on FLSA ‘‘hours worked’’principles. Hours of service wouldnormally include all ‘‘duty’’ time.‘‘Reserve’’ time would not be includedunless employees have furtherrestrictions on their time so that theywould be unable to use the time fortheir own purposes.

The International Brotherhood ofTeamsters argued that the 1,250 hours ofservice test as currently definedeffectively precludes coverage of airlinecrew members under FMLA. While§ 825.110(c) applies FLSA principles fordetermining hours of service, thecommenter notes that section 13(b) ofthe FLSA excludes any employee of acarrier by air subject to the provisionsof Title II of the Railway Labor Act fromthe Act’s provisions in section 207.According to the commenter, airlinecrew members’ work schedules and payformulas are predicated on ‘‘flighthours,’’—generally amounting to one-third of the hours of employees coveredby the FLSA—and flight crew membersare prohibited by regulation fromexceeding 1,000 flight hours in a 12-month period. The commenter contendsthat it is improper to compare flightcrew ‘‘hours of service’’ with the ‘‘hoursof service’’ performed by FLSA-coveredemployees and that airline crewmembers should be specificallyexempted from the minimum hours ofservice requirement.

Section 13(b) of the FLSA providesexemptions from FLSA’s requirement to

pay overtime compensation in certaincases; they are not exemptions from therules on what constitutes ‘‘hoursworked’’ within the meaning of theFLSA. The fact that a particular class ofemployee is exempt from overtimeunder FLSA § 13(b) has no impact onthe applicability of FLSA’s ‘‘hoursworked’’ rules under 101(2)(C) of theFMLA. Because the eligibility criteriaare statutory, DOL lacks the authority toexempt airline crew members from theminimum hours of service criteria. Aspointed out above, however, other‘‘duty’’ time would normally be hours ofservice, in addition to the flight time.

50 Employees within 75 Miles(§ 825.111)

One of the tests for employeeeligibility for FMLA leave requires thatthere be 50 employees employed by theemployer within 75 miles of theworksite. This section described how‘‘worksite’’ is construed and how tomeasure the 75 miles under this test.

The Equal Rights Advocatesquestioned measuring the 75 milerequirement by road miles andadvocated a broader interpretation suchas actual mileage between twoemployment facilities. The MedicalGroup Management Association statedthat measuring a radius around a singlepoint using road miles was very difficultand suggested a standard of traveling‘‘75 miles in any direction using publicsurface transportation.’’

The regulations have been clarified bydeleting the reference to ‘‘radius,’’ aterm not found in the statute. The 75-mile distance will be measured bysurface miles using availabletransportation by the most direct routebetween worksites.

The Institute of Real EstateManagement and 29 other associatedreal estate management companiescomplained that the 75-mile rule fordetermining employee eligibility createsunique hardships for most propertymanagement companies and couldcause serious economic harm in theabsence of industry-specificmodifications.

The National Association ofTemporary Services was also concernedover the impact of the 50-employee/75-mile eligibility test on temporary helpoffices, noting that most temporary helpoffices operate with very small officestaffs but on any given day may have asignificant number of temporaryemployees assigned to customerworksites. Because temporaries assignedto customers within 75 miles of theoffice are included in the eligibilitydetermination, staff employees of two orthree person offices become eligible for

FMLA leave, which, according to thecommenter, works a hardship on smalltemporary help offices. The commenterurged an exception which would permitsuch offices to exclude from theeligibility test those temporaryemployees assigned out of anyparticular office—temporaries wouldstill be eligible if secondary employershave a total of 50 employees within 75miles of their worksite. In support ofthis position, the commenter points to acolloquy between Congressman Derrickand Congressman Ford on H.R. 1 (Cong.Rec. 139, H396–7 (Feb. 3, 1993)) inwhich Congressman Ford indicated thatthe matter of temporary help officeswith small staffs would be anappropriate subject for rulemaking andhis hope that implementing regulationswould address such situations takinginto account the broad purpose of theAct to provide protection to as manyemployees as possible and, at the sametime, the legitimate concerns of smallbusinesses.

Employees employed by a temporaryhelp office have, as their ‘‘single site ofemployment’’ worksite under FMLA,the site from which their work isassigned (i.e., the temporary helpoffice). Thus, all temporary employeesassigned from the temporary help office,regardless of whether the customers’worksites are within 75 miles of thetemporary help office, are included inthe employee count for the temporaryhelp office in determining if staffemployees are eligible for FMLA leave.This provision, in our judgment, isrequired by the express intention of theCongress in the committee reports thatthe WARN Act regulations be used todetermine ‘‘worksite.’’ We believe thatthe implementing regulations accuratelyreflect, consistent with the expressconfines of the statute itself, theCongress’ broad purpose to provideFMLA’s protection to as manyemployees as possible while, at thesame time, considering the legitimateconcerns of small businesses.

Section 825.111(d) provides thateligibility determinations are to be madeby employers when the employeerequests the leave; once eligibility hasbeen established in response to therequest, subsequent changes in thenumber of employees employed at orwithin 75 miles of the employee’sworksite will not affect the employee’seligibility or leave once commenced.These provisions attracted considerablecomment.

The California Rural Legal Assistance,Inc. argued that using the date theemployee requests leave as the ‘‘trigger’’date will deprive eligibility to manyseasonal employees, especially if they


give the requisite 30-days notice,because the 50-employee threshold maynot be reached until the peakemployment season. The commenterurges an alternate test for seasonal andother employers whose workforce variesgreatly during the year, in particularthat the test should allow adetermination of eligibility at the timeof the request if the employer can beexpected to have at least 50 employeesduring any period in which FMLA leaveis to be taken. This commenter wouldalso apply such a test for teachersbecause many teachers are not actuallyunder contract until just before or evenafter the school year has begun. In thealternative, the commenter suggested aposition that an employee should beconsidered on the payroll as long as heor she is on an involuntary layoff witha reasonable expectation of returning towork within a reasonable period of time.

The Women’s Legal Defense Fund, theService Employees International Union,and the United PaperworkersInternational Union also expressedconcern about determining eligibilityfrom an employee count on a single day,i.e., date of request, stating that such atest is arbitrary and subject to widevariation due to workforce fluctuations.They urged adoption of the countingmethod in the Act for determiningemployer coverage on the grounds thatit is the only counting methodstatutorily based and is consistent withthe legislative history. Thus, under thisposition, an employee would be eligiblefor FMLA leave if the employer hasemployed 50 or more employees within75 miles of the employee’s worksite foreach working day during each of 20 ormore calendar workweeks in the currentor preceding calendar year.

A number of commenters stated thatthe ‘‘date of request’’ as a trigger datewould be burdensome for employers incyclical industries. Several commenters(California Department of FairEmployment and Housing and theGreater Cincinnati Chamber ofCommerce) endorsed the optiondiscussed in the preamble to the interimfinal rule: ‘‘* * * where notice is given30 or more days prior to thecommencement of leave, the countwould be made on the 30th daypreceding the start of leave, or, at theemployer’s option, as of the date leaveis requested; where 30 days notice is notgiven, the count would be made at thetime notice is given or the date leavebegins, whichever is earlier.’’ TheSociety of Human ResourceManagement supported a trigger date of‘‘30 days prior to the onset of leave.’’ Toaccommodate the particular needs ofseasonal employers under the ‘‘date of

request’’ trigger date, Southern ElectricInternational, Inc. suggested thatemployers be permitted to cancel orreduce requested leave if the employeecount falls below some reasonablenumber, i.e., 40, by the time the leaveis to be taken. The National RestaurantAssociation argued that the same dateshould be used for determining alleligibility requirements and the law firmof Sommer & Barnard alsorecommended a uniform eligibilitycriteria determination date, endorsingthe ‘‘date of commencement of leave.’’The United Paperworkers InternationalUnion also endorsed uniformity in themethods of counting eligible employeesand covered employers.

The USA Chamber of Commercenoted that under § 825.111(d) eligibilityis a continuing, day-to-daydetermination, even during FMLAleave, and that an employee who isinitially ineligible can subsequentlybecome eligible. The commenter arguesthat the rationale should be consistent:if an ineligible employee can becomeeligible, then an eligible employeeshould be able to subsequently becomeineligible and, thus, not be entitled tocontinue FMLA leave.

The Department has given carefulconsideration to all of the commentssubmitted in connection with the rulefor determining employee eligibilitybased on the number of employeesmaintained on the payroll as of the datethat an employee requests leave. We seeno justifiable basis for altering ourearlier policy decisions as reflected inthe Interim Final Rule. In our view,none of the recommendations suggest acourse that would be entirely consistentwith the literal language of the FMLA,its remedial purpose, or the expressionsof Congressional intent contained in thelegislative history. Congress directlyaddressed the treatment to be accordedseasonal, temporary and part-timeemployees by establishing statutoryemployer coverage and employeeeligibility criteria. The Act exemptssmaller and certain seasonal businessesby limiting coverage to employers with50 or more employees in 20 or morecalendar weeks of the year. It does notcover part-time or seasonal employeesworking less than 1,250 hours a year. Tobe eligible for leave, an employee musthave worked for the employer for atleast 12 months and for at least 1,250hours during the 12-month periodpreceding the commencement of theleave. The employer must also employat least 50 employees within 75 miles ofthe employee’s worksite. GivenCongress’ specific treatment of theseissues in the legislation, DOL lacksauthority to write special rules for

determining employee eligibility forseasonal workers in ways that departfrom the statutory standards adopted inthe legislation.

As explained in the preamble of theInterim Final Rule (and as noted above),the purpose and structure of FMLA’snotice provisions intentionallyencourage as much advance notice of anemployee’s need for leave as possible, toenable both the employer to plan for theabsence and the employee to makenecessary arrangements for the leave.Both parties are served by making thisdetermination when the employeerequests leave. But, at the same time,both parties need to be able to rely onthe commitments they are making.Tying the worksite employee-count tothe date leave commences as suggestedcould result in both the employee andthe employer planning for the leave,only to have it denied at the lastmoment before it starts if fewer than 50employees are employed within 75miles of the worksite at that time. Thiswould entirely defeat the notice andplanning aspects that are an integralpart of the FMLA leave process. Thesame would be true if employers werepermitted to cancel or reduce requestedleave if the employee count fell belowsome arbitrary number (e.g., 40) at thetime leave was being taken. Asexplained in the preamble to the InterimFinal Rule, use of both a fixed date andthe same date for determining employercoverage were previously consideredand rejected as being inconsistent withthe literal language of the Act and thelegislative history, which both use thepresent tense in describing ‘‘eligible’’employees (i.e., employee is eligible ifemployed at least 12 months by theemployer ‘‘* * * with respect to whomleave is requested * * *’’; but excludesany employee ‘‘* * * at a worksite atwhich such employer employs less than50 employees if the total * * * [within75 miles] is less than 50.’’).

Accordingly, while clarifications areincluded to more carefully explain theapplicable principles, no significantchanges are included in this section toalter the policy on the timing ofdetermining employee eligibility.

The term ‘‘worksite’’ also generatedconsiderable comment. The Los AngelesCounty Metropolitan TransportationAuthority and Society for HumanResource Management stated thatadditional guidance was needed todetermine eligibility, particularly withrespect to salespersons who work out oftheir homes. The InternationalOrganization of Masters, Mates & Pilotsstated that the applicable ‘‘worksite’’ inthe case of maritime employmentshould be defined as the home office of


the employer from which the jobassignment originates, and the UnitedPaperworkers International Union statedthat, in the case of workers without afixed worksite, the reference pointshould be those employees defined inthe bargaining unit by any applicablecollective bargaining agreement. Foremployees who typically have no fixedworksite, the USA Chamber ofCommerce urged a provision that makesclear that an employee has only oneworksite for purposes of makingeligibility and coverage determinations.

In the case of pilots and flight crewmembers, the Air Line PilotsAssociation, Association of ProfessionalFlight Attendants and IndependentFederation of Flight Attendants contendthat the characterization of a home baseas an employee’s worksite would beinappropriate in the airline industrybecause the actual ‘‘worksite’’ rangesacross a particular carrier’s entire routesystem due to the availability andflexibility of the large number ofemployees employed in such jobcategories. They argue that employees atworksites with less than 50 employeeswithin 75 miles should be eligible forFMLA leave if the employer (airline)employs more than 50 employees at allof its worksites and such employer canreplace the employee on leave withanother current employee through anemployer-wide seniority system in theaffected job classification.

Many of the comments reflect amisunderstanding of the ‘‘worksite’’concept under the FMLA regulations.FMLA’s legislative history explains thatwhen determining if 50 employees areemployed by the employer within 75miles of the worksite of the employeeintending to take leave, the term‘‘worksite’’ is intended to be construedin the same manner as the term ‘‘singlesite of employment’’ under the WARNAct regulations (20 CFR Part 639). Thelegislative history further states thatwhere employees have no fixedworksite, as is the case for manyconstruction workers, transportationworkers, and salespersons, suchemployees’ ‘‘worksite’’ should beconstrued to mean the single site ofemployment to which they are assignedas their home base, from which theirwork is assigned, or to which theyreport. The regulations included theseconcepts.

Accordingly, salespersons who workout of their homes have as their singlesite of employment the site ‘‘from whichtheir work is assigned or to which theyreport’’ (for example, the corporate orregional office). Their homes are nottheir ‘‘single site of employment’’ in anycase. Tracking the number of employees

in a collective bargaining unit, ordefining the worksite for flight crewmembers as a carrier’s entire routesystem, would deviate significantlyfrom the legislative history’s discussionof the applicable principles and cannotbe adopted as suggested in thecomments. (Members of flight crewsthus have as their ‘‘worksite’’ the ‘‘siteto which they are assigned as theirhome base, from which their work isassigned, or to which they report.’’)

One commenter, EmployersAssociation of New Jersey, indicatedthat more guidance was needed on whatemployees are to be counted. Thecommenter asked whether only eligibleemployees as defined in § 825.110 arecounted, or are temporarily inactiveemployees counted, such as those onleave of absence, strike, etc. As notedabove, the employee count must includeall employees of the employer who are‘‘maintained on the payroll,’’ includingpart-time, full-time, eligible and non-eligible employees. It must also includeemployees on paid or unpaid leaves ofabsence. Employees who have been laidoff (whether temporary, indefinite, orlong-term) are not included. (See thediscussion of related issues under§ 825.105.) In effect, the test of whetheran individual is counted as an‘‘employee’’ depends upon whetherthere is a continuing employmentrelationship, and being ‘‘maintained onthe payroll’’ is used as a proxy forestablishing the continuing nature of therelationship.

Leave Entitlement (§ 825.112)Section 825.112 sets forth the basic

statutory circumstances for whichemployers must grant FMLA leave. Anumber of commenters addressed thesecircumstances with suggestions,recommendations, or requests forclarifications. For example, LancasterLaboratories suggested that an employershould not be required to approveprenatal care visits if such appointmentscould be scheduled outside of normalworking hours. United Federal CreditUnion felt that employers should beable to place a cap on how manyemployees may be on FMLA leave atany one time, with discretion linked tobusiness needs. Another commenterindicated that FMLA leave should beallowed for a sister or brother livingwith the employee. The Society forHuman Resource Management askedwhether the terms ‘‘placement * * * foradoption’’ covered the situation where achild was placed in a new home foradoption and time was needed forbonding between the new parent andthe child. The Society also asked if apregnant employee were well enough to

return to work after six weeks, but hadrequested 12 weeks, could the employerrequire the employee to return to workafter six weeks. Oregon Bureau of Laborand Industries observed that§ 825.112(d) states there is no age limiton a child being adopted or placed forfoster care, but § 825.113(c) defines ‘‘sonor daughter’’ to be a person under theage 18, or 18 or older and incapable ofself-care, and questioned whetherFMLA leave was available for adoptionof a child age 18 or older who is capableof self-care. The Equal EmploymentAdvisory Council argued, with respectto an employee who marries andrequests FMLA leave to be with newstepchildren, that such leave should beexplicitly prohibited unless theemployee formally adopts thestepchildren.

California Department of FairEmployment and Housing and the lawfirm of Fisher and Phillips urged§ 825.112 be expanded to incorporateprovisions stated elsewhere in theregulations. Specifically, they arguedthat the definition of ‘‘son or daughter’’in § 825.113 as it relates to theavailability of FMLA leave to anemployee who stands in loco parentis toa child should be added to§ 825.112(a)(1), and that § 825.112(d)should be amended to reference thelimitation in § 825.203 on the use ofintermittent leave for purposes of birth,adoption or placement of a foster childthat such leave is available only if theemployer agrees. Sommer & Barnardnoted that while an employee may beeligible for FMLA leave before ‘‘theactual date of birth’’ or ‘‘actualplacement,’’ there is no provision in theregulations that would permit anemployer to require verification thatleave requested for such purposes is fora statutory purpose.

With respect to scheduling prenatalcare doctor’s visits, the Act andregulations require that in any casewhere the need for leave is foreseeablebased on planned medical care, theemployee shall make a bona fide,reasonable effort to schedule the leavein a manner that does not undulydisrupt the employer’s operations(subject to the approval of theemployee’s (or family member’s) healthcare provider). However, it would becontrary to the statute for an employerto place any cap on the number ofemployees who could be eligible forFMLA leave at any one time, or for theregulations to require employers to grantthe same type of leave entitlement for asister or brother living with theemployee as FMLA provides for aspouse (although employers could adoptmore generous leave policies than the


minimums established by FMLA). Withrespect to leave for the birth of a child,the statute entitles an employee toFMLA leave for a period of up to 12weeks for the birth and care of a child.Under the circumstances described bythe Society for Human ResourceManagement, the employee may not berequired to return to work after sixweeks if the employee desires 12 weeksof FMLA leave for the birth of her child.

In response to the question onwhether FMLA’s leave entitlement forplacement for adoption includes‘‘bonding’’ time between the parent andchild, we note from the legislativehistory’s discussion of the need forfamily and medical leave legislationthat:

Adoptive parents also face difficultiesin the absence of a reasonable familyleave policy. Most adoption agenciesrequire the presence of a parent in thehome—some for as long as fourmonths—when a child is placed withthe family to allow them adequate timefor proper bonding. * * *

The legislative history’s discussion ofthe leave provisions themselvesprovides:

Section 102(a)(2) requires that leaveprovided under § 102(a)(1) (A) or (B) tocare for a newborn child or a childnewly placed with the employee foradoption or foster care be taken beforethe end of the first 12 months followingthe date of the birth or placement. * * *

Clearly, the intent of FMLA’s leaveentitlement in the case of leave forplacement of a child with the employeefor adoption or foster care includes‘‘bonding’’ time with the newly-placedchild, during the 12 months followingthe date of placement.

In response to the commenter whoquestioned whether FMLA leave isavailable for adoption of a child age 18or older who is capable of self-care,upon reexamination of the statutorydefinitions and leave entitlementprovisions of the Act, we haveconcluded that the availability of leavefor adoption of a child age 18 or olderis limited to those who are incapable ofself-care because of a mental or physicaldisability, consistent with the statutorydefinition of ‘‘son or daughter’’ in§ 101(12) of the FMLA. The regulationshave been revised to delete thestatement that there is no maximum agelimit for a child placed for adoption orfoster care. Regarding the employee whomarries and requests FMLA leave to bewith new stepchildren, FMLA leavewould only be available if the employeein that case formally adopted thestepchildren, as the commenter pointedout. However, if one of the childrensubsequently has a serious health

condition, the stepparent would beentitled to FMLA leave to care for thechild.

Many comments suggestingclarification or reiteration of provisionscontained elsewhere in the regulationsare being adopted. The regulations arealso being revised at § 825.113 to permitan employer to request that employeesprovide reasonable documentation thatverifies the legitimacy of an FMLA leaverequest, i.e., that requested leave is fora qualifying statutory purpose.Reasonable documentation of aqualifying reason for FMLA leave cantake the form of a simple signedstatement by the employee. Theemployer’s policies in this area shouldbe communicated in advance toemployees and be applied uniformly,and employees must be given areasonable opportunity to respond.

Section 825.112(e) provides that‘‘State’’ action must be involved infoster care placement to qualify forFMLA leave. The Community LegalServices, Inc. and Women’s LegalDefense Fund stated that the ‘‘State’’involvement requirement was notsupported by the statute, legislativehistory, or sound public policy, andargued that the statutory definition of a‘‘son or daughter,’’ which includes a‘‘child of a person standing in locoparentis,’’ implies that FMLA leaveshould be available whenever anemployee takes primary responsibilityfor the care of a child with the intentionof adopting or otherwise having day-to-day caretaking responsibility for thatchild. Thus, for example, parents ofaddicts who assume responsibility asprimary caretakers for the addicts’children is a form of ‘‘foster’’ care inwhich FMLA leave should be availableto such parents.

Section 102(a)(1)(B) of FMLA entitlesan eligible employee to take FMLAleave ‘‘[b]ecause of the placement of ason or daughter with the employee foradoption or foster care’’ (emphasisadded). Thus, the entitlement to leaveunder this section of the Act relates onlyto the actual placement with the eligibleemployee of an adopted or foster child.The act of providing ‘‘foster care,’’ inand of itself, is not a qualifying reasonfor taking FMLA leave under the statute.On the other hand, in the example ofparents of addicts who assume theprimary, day-to-day responsibilities tocare for and financially support theaddicts’ children, the in loco parentisrelationship thus established couldentitle the in loco parentis parents totake FMLA leave under a differentsection of the FMLA, § 102(a)(1)(C), ifthe in loco parentis parent was neededto care for the ‘‘child’’ (of the person

standing in loco parentis) for a serioushealth condition (subject to the Act’smedical certification provisions).FMLA’s legislative history fullysupports this view:

The terms ‘‘parent’’ and ‘‘son ordaughter’’ * * * reflect the reality thatmany children in the United Statestoday do not live in traditional‘‘nuclear’’ families with their biologicalfather and mother. Increasingly, thosewho find themselves in need ofworkplace accommodation of their childcare responsibilities are not thebiological parent of the children theycare for, but their adoptive, step, orfoster parents, their guardians, orsometimes simply their grandparents orother relatives or adults. This legislationdeals with such families by tying theavailability of ‘‘parental’’ leave to thebirth, adoption, or serious healthcondition of a ‘‘son or daughter’’ andthen defining the term ‘‘son ordaughter’’ to mean ‘‘a biological,adopted, or foster child, a stepchild, alegal ward, or a child of a personstanding in loco parentis * * *.’’ * * *

Definition of Spouse, Parent, Son orDaughter (§ 825.113)

FMLA entitles an eligible employee totake leave ‘‘in order to care for thespouse, or a son, daughter, or parent, ofthe employee, if such spouse, son,daughter, or parent has a serious healthcondition’’ (emphasis added). Section825.113(a) defines the term ‘‘spouse’’ tomean a husband or wife as defined orrecognized under State law for purposesof marriage, including common lawmarriage in States where it isrecognized. A considerable number ofcomments urged that this definition bebroadened to include domestic partnersin committed relationships includingsame-sex relationships, or, in thealternative, to include all unionsrecognized by State or local law. TheSociety for Human ResourceManagement questioned whether anemployer located in one State whichdoes not recognize common lawmarriages would be required to grantFMLA leave to its employees withcommon law spouses who reside inanother State that recognizes commonlaw marriages. William M. Mercer, Inc.also recommended clarification ofwhich State law would be controllingwhen the employee works in a differentState.

FMLA defines the term ‘‘spouse’’ tomean ‘‘a husband or wife, as the casemay be.’’ In discussing this definitionduring Senate consideration of thelegislation, Senator Nickles noted:


* * * This is the same definition thatappears in Title 10 of the United States Code(10 U.S.C. 101).

Under this amendment, an employerwould be required to give an eligible femaleemployee unpaid leave to care for herhusband and an eligible male employeeunpaid leave to care for his wife. Noemployer would be required to grant aneligible employee unpaid leave to care for anunmarried domestic partner.

This simple definition will spare us a greatdeal of costly and unnecessary litigation.Without this amendment, the bill wouldinvite lawsuits by workers whounsuccessfully seek leave on the basis oftheir unmarried adult companions. (Cong.Rec. (S 1347), Feb. 4, 1993.)

Accordingly, given this legislativehistory, the recommendations that thedefinition of ‘‘spouse’’ be broadenedcannot be adopted. The definition isclarified, however, to reference the State‘‘in which the employee resides’’ asbeing controlling for purposes of anemployee qualifying to take FMLA leaveto care for the employee’s ‘‘spouse’’with a serious health condition.

Section 825.113(b) of the regulationsdefined ‘‘parent,’’ as provided in§ 101(7) of the FMLA, to mean abiological parent or an individual whostands or stood in loco parentis to anemployee when the employee was achild. The regulatory definition notedthat the term did not include a parent‘‘in-law.’’ Several commenters (City ofAlexandria, Virginia; Fairfax AreaCommission on Aging; NorthernVirginia Aging Network; the Brooklynand Green Mountain Chapters of theOlder Women’s League; Sisters ofCharity of Nazareth; Retail, Wholesaleand Department Store Union; andUniversity of Vermont) viewed theregulatory definition as too restrictive,recommending in some instances thatthe term ‘‘parent’’ be broadened tospecifically include parents ‘‘in-law.’’(An additional 107 cards or letters werereceived from individuals endorsingthis view.)

Standard rules of statutoryconstruction require that we interpretthe availability of FMLA leave for a‘‘parent’’ in a manner consistent withFMLA’s definition of ‘‘parent,’’ which islimited to the employee’s biologicalparent or an individual who stood inloco parentis to the employee when theemployee was a child, and does notextend to a parent ‘‘in-law.’’ Moreover,the leave entitlement under§ 102(a)(1)(C) of FMLA is expresslylimited to ‘‘* * * care for the * * *parent, of the employee, if such * * *parent has a serious health condition.’’Thus, each eligible spouse may takequalifying FMLA leave to care for his orher own biological (or in loco parentis)

‘‘parent’’ who has a serious healthcondition, but the leave entitlementcannot be extended by regulation toparents ‘‘in-law.’’

FMLA § 101(12) defines ‘‘son ordaughter’’ in part as one who is underage 18, or age 18 or older and‘‘incapable of self-care because of amental or physical disability.’’ TheOlder Women’s League, in commentingon the ‘‘incapable of self-care’’provisions defined in § 825.113(c)(1),was concerned that requiring that anindividual need active assistance orsupervision to provide daily self-care in‘‘several’’ of the ‘‘activities of dailyliving’’ would be interpreted to meanthree or more, absent clarification,which they believe would undulyrestrict eligibility for FMLA leave. TheConsortium for Citizens WithDisabilities, the Epilepsy Foundation ofAmerica, and the United Cerebral PalsyAssociation recommended that thedefinition of ‘‘incapable of self-care’’ besupplemented with additional criteriawhich more accurately reflect the needsof all people with disabilities,suggesting that ‘‘instrumental activitiesof daily living’’ or IADL’s (activitiesnecessary to remain independent)should be added to address the needs ofpeople with mental and cognitiveimpairments.

In response to the comments receivedon this section, ‘‘incapable of self-care’’is defined in the final rule to include,in addition to the ‘‘activities of dailyliving,’’ the ‘‘instrumental activities ofdaily living,’’ as recommended. Weinterpret ‘‘several’’ to mean more thantwo but fewer than many, i.e., three ormore (see Webster’s; Black’s Law).

The Equal Employment OpportunityCommission (EEOC), in commenting on‘‘physical or mental disability’’ in§ 825.113(c)(2), noted that the DOL rulecited, as a cross-reference, EEOC’s entireregulatory part under the Americanswith Disabilities Act (ADA), 29 CFR1630, for defining ‘‘physical or mentaldisability.’’ Because the current illegaluse of drugs is not a disability withinthe meaning of the ADA, EEOCexpressed concern that the broadercross-reference to the entire regulatorypart could create confusion overwhether an adult child currentlyengaging in the illegal use of drugswould be ‘‘disabled’’ for purposes of aparent qualifying to take FMLA leave.EEOC suggested that DOL be morespecific in citing to the pertinent ADAregulations to foreclose the argumentthat ‘‘physical’’ or ‘‘mental’’ disability inthis context would not include thecurrent illegal use of drugs. We haveadopted EEOC’s suggestion in the finalrule. An eligible employee’s son or

daughter who illegally uses drugs maybe disabled for purposes of an eligibleparent (employee) taking FMLA leave.

The University of Michigan includesin-laws, domestic partners, and otherrelatives within a broader definition of‘‘family’’ for purposes of its family leavepolicies. The University suggested thatthe regulations enable employers thathave extended their family leavepolicies to such ‘‘non-traditional’’families to count as part of anemployee’s FMLA leave entitlementleave that is taken to care for suchbroader definitions of ‘‘family.’’ Thisissue is addressed in § 825.700 of theregulations, which discusses the effectof employer policies that provide greaterbenefits than those required by FMLA.We interpret the statute as prohibitingan employer from counting as a part ofan employee’s FMLA leave entitlementleave granted for a reason that does notqualify under FMLA.

The law firm of Orr and Reno, and theChicagoland Chamber of Commerce, etal., urged that in addition to medicalcertifications presently required, theregulations should include provision forrequests relating to child care because itis not always obvious that the leave isjustified, particularly with respect to afather or in foster care situations.

Although leave to provide ‘‘childcare’’ would not ordinarily qualify asFMLA leave if the child is not anewborn (in the first year after the birth)and is otherwise healthy, FMLA leave is‘‘justified’’ (and may not be denied bythe employer) if it is taken for one ofFMLA’s qualifying reasons, includingwhere a father wants to stay home witha healthy newborn child in the first yearafter the birth, or needs to be home tocare for a child with a serious healthcondition, or for placement with theemployee of a child for foster care. Theregulations have been amended in§ 825.113(d) to permit employers torequire reasonable documentation fromthe employee for confirmation of familyrelationships.

Definition of ‘‘Serious HealthCondition’’ (§ 825.114)

Section 101(11) of FMLA defines‘‘serious health condition’’ to mean

* * * an illness, injury, impairment,or physical or mental condition thatinvolves—

(A) inpatient care in a hospital,hospice, or residential medical carefacility; or

(B) continuing treatment by a healthcare provider.

This scant statutory definition isfurther clarified by the legislativehistory. The congressional reports didindicate that the term was not intended


to cover short-term conditions for whichtreatment and recovery are very brief, asCongress expected that such conditionswould be covered by even the mostmodest of employer sick leave policies.While the meaning of inpatient care isevident (i.e., an overnight stay in thehospital, etc.), the concept of‘‘continuing treatment’’ presents moredifficult issues. Under the Interim FinalRule, ‘‘continuing treatment’’ requiredtwo or more visits to a health careprovider or a single visit followed by aprescribed regimen of treatment, or aserious, incurable condition whichexisted over a prolonged period of timeunder the continuing supervision of ahealth care provider. When decidingupon the regulatory guidance for thedefinition in the Interim Final Rule, theDepartment relied heavily upondefinitions and concepts from the Officeof Workers’ Compensation Programs.For example, under many State workers’compensation laws and the FederalEmployees’ Compensation Act (FECA),a three-day waiting period is appliedbefore compensation is paid to anemployee for a temporary disability. Asimilar provision was included in theFMLA rules; a period of incapacity of‘‘more than three days’’ was used as a‘‘bright line’’ test based on thereferences in the legislative history toserious health conditions lasting ‘‘morethan a few days.’’

Eighty-eight comments were receivedon the regulatory definition of ‘‘serioushealth condition.’’ Many commentersobjected to the language in§ 825.114(a)(3), which provided that aperiod of incapacity of more than threecalendar days was an indicator of aserious health condition, and§ 825.114(b)(2), which definedcontinuing treatment as including onevisit to a health care provider whichresults in a regimen of continuingtreatment under the supervision of thehealth care provider, e.g., a course ofmedication or therapy to resolve thehealth condition. Some contended thatthe ‘‘more than three days’’ testencouraged employees to remain absentfrom work longer than necessary for theabsence to qualify as FMLA leave, orthat the duration of the absence was nota valid indicator of serious healthconditions that are very brief (e.g., asevere asthma attack that is disablingbut requires fewer than three days fortreatment and recovery to permit theemployee’s return to work). Somecommenters felt the three-day rule wasunreasonably low and trivialized theconcept of seriousness, suggesting itmore appropriately defined a ‘‘health

condition’’ rather than a ‘‘serious healthcondition.’’

Nine commenters (9 to 5, NationalAssociation of Working Women;Federally Employed Women; Women’sLegal Defense Fund; Federal Express;Linda Garcia; Kerryn M. Laumer;Epilepsy Foundation of America;International Ladies’ Garment Workers’Union; Service Employees InternationalUnion) stated that the three-day rulewas contrary to the statute andlegislative history. The Women’s LegalDefense Fund and the EpilepsyFoundation of America pointed out thatthe House Education and LaborCommittee specifically rejected aminimum durational limit during amarkup of the bill. These commenters,together with the Consortium forCitizens with Disabilities, NationalCommunity Mental HealthCare Council,and United Cerebral Palsy Associations,contended that seriousness and durationdo not necessarily correlate, particularlyfor people with disabilities; that a fixedtime limit fails to recognize that someillnesses and conditions are episodic oracute emergencies which may requireonly brief but essential health care toprevent aggravation into a longer termillness or injury, and thus do not easilyfit into a specified linear timerequirement; and that establishingarbitrary time lines in the definitiononly creates ambiguity anddiscriminates against those conditionsthat do not fit the average. The Women’sLegal Defense Fund made theobservation from the legislative historythat Congress intended the severity andnormal length of disabling conditions tobe used as ‘‘general tests,’’ not bright-line rules, and suggested that if acondition is sufficiently severe orthreatening, duration is irrelevant.

The 9 to 5, National Association ofWorking Women, Los Angeles CountyMetropolitan Transportation Authority,Baptist Health Care, St. Vincent MedicalCenter, Chamber of Commerce of theUSA, Chicagoland Chamber ofCommerce, and Service EmployeesInternational Union, contended that athree-day absence requirement willinevitably result in employees withminor short-term afflictionsunnecessarily extending their absencesjust to qualify for FMLA leave.

Fifteen commenters suggestedextending the three-day absencerequirement to a longer period, such as5, 6, 7, or 10 days (Care Providers ofMinnesota, Cincinnati Gas & ElectricCompany, Chicagoland Chamber ofCommerce, Nevada Power Company,Federal Express, Chevron, PARC,Consolidated Edison Company of NewYork, Inc., Village of Schaumburg

(Illinois) Human Resources, FoodMarketing Institute, Society for HumanResource Management, SouthwesternBell Corporation, New York StateMetropolitan Transportation Authority),two weeks (United HealthCareCorporation), or 31 days (the AmericanApparel Manufacturers Association,Inc., suggested that the definitionshould reflect the initial study by theU.S. General Accounting Office thatestimated FMLA’s cost impact, notingfurther that the three-day rule issignificantly more lenient than the ‘‘31days or more of bed rest required toremedy the condition’’ used by GAO).

The Ohio Public Employer RelationsAssociation strongly objected to thethree-calendar-day rule on the groundsthat a single workday absence on Fridayfollowed by a weekend would qualify(or a Monday absence following aweekend). The law firm of Sommer andBarnard stated that it was not clear fromthe regulations or comments in thepreamble whether the three days areconsecutive or non-consecutivecalendar days of work. The Chamber ofCommerce of the USA questionedwhether the rule, as drafted, could beconstrued as requiring three cumulativedays in a calendar year as opposed tothree consecutive calendar days.

Several additional commenters urgedthat the period be measured by businessor working days in lieu of calendardays, while still others distinguished‘‘consecutive’’ calendar days of absencefrom ‘‘consecutive’’ work days ofabsence as alternative suggestions (i.e.,more than five consecutive work days orseven consecutive calendar days). TheHospital Council of WesternPennsylvania argued that the standardshould be one of incapacity requiringabsence from work for more than three‘‘consecutively scheduled workdays,’’ asa workday standard is compatible withother sick leave and short-termdisability programs and removes anydoubt as to whether an employee wasotherwise incapacitated and unable towork during days the employee was notscheduled to work. ChicagolandChamber of Commerce commented that,with respect to an employee’s ownserious health condition, the qualifyingstandard pertains to work days and notcalendar days, and yet the regulatorylanguage would allow one to argue thatan inability to carry out regular dailyactivities over the weekend countstoward the qualifying period. TheBurroughs Wellcome Companyemphasized that the committee reportsclearly state that an employee must beabsent from work for the requirednumber of days and that absence from‘‘school or other regular daily activities’’


relates only to a child’s, spouse’s, orparent’s serious health condition.

The Chamber of Commerce of theUSA and the National Association ofManufacturers recommended that DOL’sdefinition of serious health conditionadopt each State’s waiting period forqualifying for workers’ compensationbenefits, noting that many States use asmuch as seven work days. As analternative, the Chamber of Commerceand Consumers Power Company(Michigan) suggested that the ADA’sdefinition of ‘‘disability’’ could beused—a mental or physical impairmentthat substantially limits a major lifeactivity. EEOC, which enforces theADA, has advised that ADA ‘‘disability’’and FMLA ‘‘serious health condition’’are different, and that they should beanalyzed separately.

Massmutual noted that while the oneincentive in FMLA to limit employeeabuse of FMLA leave was thestipulation that leave is unpaid, somecompanies (like Massmutual) providefully paid sick leave for short-termabsences. Thus, for companies withsimilar programs, there is no incentivefor employees not to abuse sick leavebecause they would always be paid andcould not be disciplined for the abusedue to FMLA’s employment protections.Massmutual recommended that thedefinition of serious health condition belimited to a period of incapacityrequiring an absence of at least fiveworking days or to those days when anemployee is scheduled for actualtreatment and/or recovery from atreatment.

The Burroughs Wellcome Companyobserved that the definition does notrefer at all to the types of healthconditions involved, as does thelegislative history, but instead focusesonly on what the committee reports callthe ‘‘general test’’ of incapacity for morethan a few days and continuing medicaltreatment or supervision. Thus, theunderstanding of the test that Congressprovided by listing examples ofconditions that meet the test is lost. TheEqual Employment Advisory Councilrecommended that the regulationsinclude as serious health conditions allthe conditions enumerated in thelegislative history and, for those notenumerated, apply the general test.Federal Express similarly argued that afixed number of consecutive absencesand visits to a health care provider donot accurately reflect Congressionalintent, as colds and flu could beincluded as ‘‘serious health conditions.’’Federal Express recommended thedefinition focus on the seriousness ofthe illness rather than on an arbitrarytime period, and that the health

conditions listed in the legislativehistory be used in conjunction with thegeneral test in the legislative history fordetermining whether an illnessconstitutes a serious health condition.Chicagoland Chamber of Commercepresented similar views, arguing that itis contrary to obvious legislative intent(and grossly over-inclusive) for theregulation to focus on the extent towhich medical consultation is soughtrather than on the degree ofincapacitation.

Several employers and law firmscontended in their comments that thedefinition was too broad andinconsistent with the purpose of theAct, in that a common cold (or anyparticular illness) which incapacitatesan employee for more than three daysand involves two visits to a health careprovider could be considered within thedefinition of ‘‘serious health condition.’’Giant Food Inc., Kennedy MemorialHospitals, and LaMotte Companyrecommended clarifications to excludefrom the definition minor, short-term,remedial or self-limiting conditions, andnormal childhood or adult diseases (e.g.,colds, flu, ear infections, strep throat,bronchitis, upper respiratory infections,sinusitis, rhinitis, allergies, musclestrain, measles, even broken bones).Southwestern Bell Corporation likewiserequested that the regulationsdistinguish routine illness (measles,chicken pox, common ear infections)from serious health conditions byproviding a sample list of healthconditions which are not consideredserious unless complications arise.Fisher and Phillips stated that pre-delivery maternity leave should not beavailable where the pregnancy does notrender the employee unable to performthe functions of the job. Nevada PowerCompany recommended excluding:Routine preventive physicalexaminations; illnesses and injurieswhich require less than six visits to ahealth care provider; conditions relatingto transvestism, transsexualism,pedophilia, exhibitionism, voyeurism,gender disorders, or other sexualbehavior disorders, kleptomania,pyromania or substance abuse disordersresulting from illegal use of drugs; otherconditions which are neither life-threatening nor prolonged.

A number of commenters (City ofAlexandria (Virginia), Fairfax AreaCommission on Aging, FederallyEmployed Women, Northern VirginiaAging Network, the Brooklyn and GreenMountain Chapters of the OlderWomen’s League, and Sisters of Charityof Nazareth) stated that the definitionwas too restrictive and recommendedthat it be expanded to specifically

include chronic illnesses and long-termconditions which may not requireinpatient care or treatment by a healthcare provider. The University ofVermont suggested that illnessesrequiring respite care also be included.The LaMotte Company asked whether itwould matter if an absence for a chronicillness (such as asthma) occursinfrequently—e.g., would the absenceshave to be consecutive days or couldthey be one day this week and one thenext, or one every month?

Blue Cross and Blue Shield of Texas,Inc., posed the issue as a quandary facedby employees and employers over thelack of definitive guidelines as follows:Is there a liability in covering lessserious illnesses (such as chicken pox ora broken leg) as FMLA leave? If theemployer does count time toward the12-week entitlement, can the decisionbe challenged if, later in the year, amore severe condition arises and theemployee has less than sufficiententitlement remaining?

Five commenters (Older Women’sLeague, Women’s Legal Defense Fund,Consortium for Citizens withDisabilities, Epilepsy Foundation ofAmerica, and United Cerebral PalsyAssociations) took issue with theprovisions in the definition whichcharacterized ‘‘continuing treatment’’for a chronic or long-term condition thatis ‘‘incurable.’’ These commenterscontended that curability is not a propertest for either a serious health conditionor for continuing treatment, isambiguous and subject to change overtime, and should be deleted, noting thatmany incurable disabilities requirecontinuing treatment that has nothing todo with curing the condition. Somepointed out that conditions such asepilepsy, traumatic brain injury, andcerebral palsy are typically conditionswhich are not ‘‘curable’’ in the generallyaccepted sense, but are conditions forwhich training and therapy can helprestore, maintain or develop function orprevent deterioration, and noted thatpeople with disabilities have struggledfor a generation or more to overcome theimage that disabilities are, or should beviewed as, curable or incurable. UnitedCerebral Palsy Associations noted thatcerebral palsy is a term used to describea group of chronic conditions affectingbody movement and musclecoordination that are neither progressivenor communicable; that it is not adisease and should never be referred toas such, although training and therapyand assistive technology may help torestore, maintain or increase function.

Several commenters raised additionalconcerns on various aspects of the‘‘continuing treatment’’ definition. The


Equal Rights Advocates suggested thatcontinuing treatment include situationswhere a serious health condition existsthat, if left unattended, would result ina hospital stay of more than three days.

Burroughs Wellcome stated thatbecause the committee reports make itclear that ‘‘continuing treatment’’involves absences from work, theregulation misses the mark by includingone visit to a physician plus medication.Sommer and Barnard was concernedthat the discussion on continuingtreatment lacked clarity due to the lackof a clearly defined time frame formultiple treatments; further, that atypical employer could not determinefrom the information in the medicalcertification whether a condition is ‘‘soserious that, if not treated, it wouldlikely result in a period of incapacity ofmore than three calendar days.’’ Thisapplication does not call for a medicaljudgment and the ‘‘likely’’ standardcannot possibly be administered.Sommer and Barnard also stated theregulations lack a meaningful definitionof what constitutes a regimen ofcontinuing treatment—would it includebed rest, home exercise, or instructionsto use a non-prescription drug ormedication? Sesco ManagementConsultants suggested the definitioninvalidly broadens the concept ofcontinuing treatment by allowing‘‘following courses of medication andtherapy’’ to qualify, which could thusinclude taking aspirin for a few dayswhile staying home, getting bed rest andstretching limbs, drinking liquids, etc.,which, this commenter contends, theCongress did not remotely suggestwould qualify under FMLA.

Chicagoland Chamber of Commercealso considered the ‘‘continuingsupervision’’ concept too vague,questioning whether ‘‘supervision’’required the individual to actually beexamined by the health care provider orto report in on some regular basis, orwhether instructions to report in if thecondition changes were sufficient. Itconsidered treatment a definitiveconcept which could be proven,whereas ‘‘supervision’’ could not whichwould invite abuse and litigation.

The Food Marketing Institutecommented that the Act defines aserious health condition to requirecontinuing treatment by a health careprovider, which necessarily means atleast two visits to the health careprovider. Conditions which result inself-treatment (e.g., taking medication)‘‘under the supervision of’’ a doctor aretypically not serious health conditionsas contemplated by the FMLA,according to this commenter. Similarly,the Society for Human Resource

Management recommended that‘‘continuing treatment’’ be redefined sothat taking medications does not countthe same as an office visit.

The Ohio Public Employer LaborRelations Association noted that whilestress may contribute to illness in somepersons, it is not an illness or a medicalcondition. The commenterrecommended that treatment for stresswithout a commonly accepted andrecognized medical diagnosis shouldnot be included in the definition of aserious health condition.

Ten commenters raised variousconcerns regarding the availability ofFMLA leave for treatment for substanceabuse. The Epilepsy Foundation ofAmerica stated that substance abuseprograms and mental health servicesmust be included in the definition ofserious health condition. William M.Mercer, Inc., suggested that thepreamble discussion from the InterimFinal Rule on treatment for substanceabuse should be set forth in the ruleitself. Consolidated Edison Company ofNew York, Inc. commented thatemployees should be allowed FMLAleave for substance abuse treatment onlyif they are not current users of illegaldrugs, consistent with the approachfollowed under the ADA’s protections.Consumers Power Company (Michigan)also recommended excluding absencesfor an employee’s illegal use of drugs,and limiting FMLA leaves to inpatientsubstance abuse treatment programswith durations of no less than 14, orpreferably, 28 days. NationsbankCorporation (Troutman Sanders)suggested the regulations specificallystate: (1) FMLA does not prohibitdiscipline for an employee’s drug use inviolation of the employer’s policy; (2) anemployee may not use FMLA to avoidpotential discipline or drug testing; and(3) an employee returning from FMLAleave for substance abuse may be drugtested as a condition of return to workand following return to work, pursuantto an employer’s post-treatment drugpolicy. Nevada Power Companysuggested that an employer should nothave to offer more than one leave ofabsence for drug or alcoholrehabilitation; and that employerswhich expend funds to reformsubstance abusers should be allowed toterminate employees if they begin toabuse drugs or alcohol again. EdisonElectric Institute also suggestedemployers should only have to provideprofessional rehabilitative service andsupport to drug abusers one time.

The American Trucking Association,in contrast, advocated eliminatingsubstance abuse from the definition ofserious health condition, because

protection of substance abusersjeopardizes efforts by the truckingindustry and the U.S. Department ofTransportation to eradicate substanceabusers from the nation’s highways.Federal Highway Administrationregulations require trucking companiesto conduct substance abuse testing, butdo not permit a motor carrier to test adriver who voluntarily admits to abusebecause such an admission, withoutmore, fails to trigger the duty to testunder any of the five categories, inessence enabling the employee to ‘‘beatthe system’’ by triggering FMLA rightsbefore a drug test could be conducted.It was unclear to the Association underFMLA whether such an admissionwould preclude a motor carrier’s abilityto test a driver scheduled for a randomdrug test. The Associationrecommended changing the regulationsto either totally exclude substance abusefrom the definition of serious healthcondition, or exclude those persons whoare subject to FHWA drug testingrequirements from FMLA protectionsinsofar as those protections includetreatment for substance abuse. Thiscommenter would also support anexclusion limited to those persons inthe transportation industry subject tofederal drug testing requirements, andalso suggested the regulations makeclear that persons currently engaged inillegal use of drugs have no FMLAprotections, consistent with theprovisions of the ADA.

The Chamber of Commerce of theUSA recommended clarifications toprovide that current illegal use of drugsduring treatment for illegal drug use, orresumption of the illegal use of drugsfollowing completion of treatment,removes such treatment from thecategory of ‘‘serious health condition’’under FMLA, and that an employee whofails a drug test would be subject to theemployer’s normal disciplinaryprocedures and would not be protectedby FMLA.

Louisiana Health Care Alliance(Phelps Dunbar) suggested thatclarification be provided to ensure thatemployers have the continued right toenforce legitimate policies for drug- andalcohol-free workplaces, by explicitlystating in the regulations that nothing inFMLA prohibits an employer fromterminating or otherwise disciplining anemployee pursuant to a legitimate drugtesting program.

The Department has carefullyreviewed the comments and re-examined the legislative history and thedefinition of ‘‘serious health condition’’in an attempt to assure that it isconsistent with Congressional intent,and that FMLA leave is available in


those situations where it is reallyneeded. As a result of this review, theregulation has been significantly re-crafted, as discussed below.

As summarized above, commentswere submitted opposing any durationlimit, and equally strong commentssuggested the standard was much tooshort. Upon review, the Department hasconcluded that the ‘‘more than threedays’’ test continues to be appropriate.The legislative history specificallyprovides that conditions lasting only afew days were not intended to beincluded as serious health conditions,because such conditions are normallycovered by employers’ sick leave plans.The Department has also concluded thatit is not appropriate to change thestandard to working days rather thancalendar days because the severity ofthe illness is better captured by itsduration rather than the length of timenecessary to be absent from work.Furthermore, a working days standardwould be difficult to apply to serioushealth conditions of family members orto part-time workers. (It is noted thatthroughout the regulations, where anumber of days is prescribed, calendardays is intended unless the regulationexplicitly states business days.) Theregulation has been revised, however, tomake it clear that the absence must bea period of incapacity of more thanthree consecutive calendar days.‘‘Incapacity,’’ for purposes of thisdefinition, means inability to work,attend school or perform other regulardaily activities due to the serious healthcondition, treatment therefor, orrecovery therefrom. Any subsequenttreatment or incapacity relating to thesame condition would also be included.

The regulation also retains theconcept that continuing treatmentincludes either two visits to a healthcare provider (or to a provider of healthcare services on referral of a health careprovider) or one visit followed by aregimen of continuing treatment undersupervision of the health care provider.Regimen of continuing treatment isclarified in paragraph (b) of this sectionto make it clear that the taking of over-the-counter medications, bed-rest,drinking fluids, exercises, and othersimilar activities that can be initiatedwithout a visit to a health care provideris not, by itself, sufficient to constitutea regimen of continuing treatment forpurposes of FMLA leave. Prescriptiondrugs or therapy requiring specialequipment, for example, would beincluded. It is envisioned that a patientwould be under continuing supervisionin this context, for example, where thepatient is advised to call if the conditionis not improved.

The Department concurs with thecomments that suggested that specialrecognition should be given to chronicconditions. The Department recognizesthat certain conditions, such as asthmaand diabetes, continue over an extendedperiod of time (i.e., from several monthsto several years), often without affectingday-to-day ability to work or performother activities but may cause episodicperiods of incapacity of less than threedays. Although persons with suchunderlying conditions generally visit ahealth care provider periodically, whensubject to a flare-up or otherincapacitating episode, staying homeand self-treatment are often moreeffective than visiting the health careprovider (e.g., the asthma-sufferer whois advised to stay home and inside dueto the pollen count being too high). Thedefinition has, therefore, been revised toinclude such conditions as serioushealth conditions, even if the individualepisodes of incapacity are not of morethan three days duration. Pregnancy issimilar to a chronic condition in that thepatient is periodically visiting a healthcare provider for prenatal care, but maybe subject to episodes of severe morningsickness, for example, which may notrequire an absence from work of morethan three days. It is clear from FMLA’slegislative history that pregnancy wasintended to be treated as a serioushealth condition entitling an individualto leave under the Act, and thedefinition therefore includes any periodof incapacity due to pregnancy, or forprenatal care.

The Department has also included adefinition to deal with serious healthconditions which are not ordinarilyincapacitating (at least at the currentstate of the patient’s condition), but forwhich treatments are being givenbecause the condition would likelyresult in a period of incapacity of morethan three consecutive calendar days inthe absence of medical intervention ortreatment. The regulation requiresmultiple treatments, and includes asexamples patients receivingchemotherapy or radiation for cancer,dialysis for kidney disease, or physicaltherapy for severe arthritis. Multipletreatments for restorative surgery afteran accident or other injury is alsospecifically included. The previousrequirement that the condition bechronic or long-term has been deletedbecause cancer treatments, for example,might not meet that test if immediateintervention occurs.

The portion of the definition dealingwith long-term, chronic conditions suchas Alzheimer’s or a severe stroke hasbeen modified to delete the reference tothe condition being incurable, and to

require instead that the conditioninvolve a period of incapacity which ispermanent or long-term and for whichtreatment may not be effective.Therefore, in this situation, as under theinterim final rule, it is only necessarythat the patient be under thesupervision of a health care provider,rather than receiving active treatment.

The Department did not consider itappropriate to include in the regulationthe ‘‘laundry list’’ of serious healthconditions listed in the legislativehistory because their inclusion may leademployers to recognize only conditionson the list or to second-guess whethera condition is equally ‘‘serious’’, ratherthan apply the regulatory standard.However, the regulation does provide,as examples, that, unless complicationsarise, the common cold, the flu,earaches, upset stomach, minor ulcers,headaches other than migraine, routinedental or orthodontia problems, andperiodontal disease are not ordinarilyserious health conditions. In addition,the regulation specifically states thatroutine physicals, eye examinations anddental examinations are not consideredtreatment, although examinations todetermine if a serious health conditionexists and evaluations of the conditionare considered treatment.

The regulation has also been revisedin paragraph (c) to delete the referenceto ‘‘voluntary’’ treatments for whichtreatment is not medically necessary,and restrict the exclusion to cosmetictreatments (unless inpatient care isrequired or complications develop). Theterm ‘‘voluntary’’ was consideredinappropriate because all treatmentsand surgery are voluntary. Furthermore,the Department did not wish toencourage employers to second-guess ahealth care provider’s judgment that atreatment is advisable (e.g., orthoscopicknee surgery on an out-patient basis) byquestioning whether it is ‘‘necessary’’.

The regulation continues to recognizethat substance abuse may be a serioushealth condition if the criteria of theregulation are met. However, theregulation is revised to make it clearthat an absence because of theemployee’s use of the substance, ratherthan for treatment, is not protected. Seealso § 825.112(g) of the regulations,which has been revised to make it clearthat an employer may take disciplinaryaction against an employee pursuant toa uniformly applied policy regardingsubstance abuse, provided the action isnot being taken because the employeehas exercised his or her right to takeFMLA leave.

In response to the question by BlueCross and Blue Shield of Texasregarding liability in covering less


serious illnesses, the regulatoryprocedures in § 825.208 prescribe themethod for an employer to designateFMLA leave. Under this procedure, anemployee has an opportunity to counteran employer’s designation of leave andresolve the dispute. See § 825.208(b).

As suggested, the reference in theinterim final rule to stress as a possibleserious health condition has beenrevised to mental illness resulting fromstress.

Unable To Perform the Functions of thePosition (§ 825.115)

An eligible employee may take FMLAleave due to a ‘‘serious healthcondition’’ that makes the employee‘‘unable to perform the functions’’ of theemployee’s position. Section 825.115 ofthe Interim Final Rule states that anemployee is ‘‘unable to perform thefunctions of the position’’ where thehealth care provider has found theemployee either unable to work at all,or unable to perform any of the essentialfunctions of the position within themeaning of the ADA and itsimplementing regulations (29 CFR Part1630). For employers that requestemployees to furnish medicalcertification from the employee’s healthcare provider to support the leaverequest, the regulations provide theemployer the option of furnishing astatement (list) of the employee’sessential functions for the health careprovider to review when certifying tothe employee’s condition.

The Women’s Legal Defense Fund,California Department of FairEmployment and Housing, andConsumers Power Company, Michigancommented that this section wasunclear as to whether an employee mustbe found unable to perform each andevery essential function (i.e., all), oronly any single one, or some of severalof the essential functions. Severalcommenters (Alabama Power Company(Balch & Bingham); Chamber ofCommerce of the USA; Credit UnionNational Association, Inc.; NationalRestaurant Association; Society forHuman Resource Management; WilliamM. Mercer, Inc.) either questioned theeffect of ‘‘reasonable accommodations’’and ‘‘job restructuring’’ or modified‘‘light duty assignments’’ on FMLAleave requests, or suggested that theFMLA regulations be interpreted tomean ‘‘unable to perform any of theessential functions with or withoutreasonable accommodation within themeaning of the ADA.’’ Thus, under thislatter view, FMLA leave could bedenied to an employee with a serioushealth condition who, although unableto perform the essential job functions,

would be able, despite the condition, toperform those functions if offered‘‘reasonable accommodation.’’ Somecommenters noted the utility of creating‘‘light duty’’ assignments for employeeswho suffer on-the-job injuries, and theimpact on State workers’ compensationbenefits which can be suspended if anemployee refuses to accept a medically-approved ‘‘light duty’’ assignment. TheConsortium for Citizens withDisabilities, Epilepsy Foundation ofAmerica, and United Cerebral PalsyAssociations noted a difference in thelanguage in this section of theregulations and that of § 825.306(b)(discussing medical certifications) andsuggested conforming changes so thatboth sections would be interpreted tomean ‘‘any one (or more) of the essentialfunctions’’ (not all of the essentialfunctions). The EEOC noted once againthat the DOL rule cited to the entirebody of the ADA regulations in thecross-reference and suggested refiningthe cite to the specific ADA rule thatdefines ‘‘essential functions’’ (29 CFR1630.2(n)).

This section was intended to reflectthat an employee would be considered‘‘unable to perform the functions of theposition’’ within the meaning of theregulations if the employee could notperform any one (or more) of theessential functions of the job held by theemployee at the time the need for FMLAleave arose, and the final rule is soclarified (in §§ 825.115 and 825.306).EEOC’s recommendation to cite to thespecific ADA rule defining ‘‘essentialfunctions’’ has also been adopted. Thecite has been so revised, to make it clearthat reasonable accommodation isirrelevant for purposes of FMLA.

The relationship between FMLA’sleave provisions and other laws like theADA and State workers’ compensationlaws is addressed under Title IV of theFMLA and in Subpart G of the FMLAregulations (§§ 825.700–825.702). Aswill be discussed further in connectionwith §§ 825.701 and 825.702 below,FMLA entitles an employee to take upto 12 weeks of job-protected leave, fromthe position of employment of theemployee when the employee givesnotice or when leave commences(whichever is earlier), for a serioushealth condition that makes theemployee unable to perform any one ofthe essential functions of the employee’sposition (the position held by theemployee when the notice was given orthe leave commenced). FMLA alsoentitles such an employee to be restoredto that same position of employment(the one held by the employee whennotice was given or the leavecommenced), or to an equivalent

position with equivalent employmentbenefits, pay, and other terms andconditions of employment. Under thesestatutory terms, if an employee qualifiesunder FMLA for job-protected leave, theemployee may not be forced, before theemployee’s FMLA job-protected leaveentitlement has expired, to return towork in a ‘‘light duty’’ (i.e., an unequal,modified, or restructured) position,instead of continuing FMLA leave untilthe entitlement has been exhausted. Todo so would violate an employee’s job-protected rights to be restored to thesame or an equivalent position.Furthermore, the circumstances inwhich an employer is permitted to placean employee in an alternative positionare explicitly addressed in the Act(§ 102(b)(2)).

Regarding the comment that worker’scompensation benefits may besuspended if an employee refuses a lightduty assignment, we do not interpret theFMLA as prohibiting that result underapplicable State workers’ compensationstatutes. In our view, where anemployee is injured on the job and theinjury also results in a serious healthcondition that makes the employeeunable to perform any one of theessential functions of the employee’sposition within the meaning of FMLA,the employee effectively qualifies forboth workers’ compensation benefitsand job-protected leave under theFMLA. This would mean that, inaddition to the employee receivingpayments from the workers’compensation fund for replacement oflost wages, the employer would beobligated to maintain (at least until theemployee’s FMLA leave entitlement isexhausted) any of the employee’s pre-existing health benefits coverage underthe same terms and conditions as if theemployee had continued to work. If, aspart of the workers’ compensation claimprocess, the employee is offered amedically-approved ‘‘light duty’’assignment, the employee may declinethe assignment offer and instead chooseto begin or continue to exercise FMLArights and remain on leave for theremaining portion of the employee’sFMLA leave entitlement. As discussedin § 825.220(d), if the employee freelyaccepts the ‘‘light duty’’ assignmentoffer in lieu of FMLA leave or returnsto work before exhausting his or herFMLA leave entitlement, the employeewould retain his or her right to theoriginal or an equivalent position until12 weeks have passed, including allFMLA leave taken that year. At theconclusion of the 12-week period, if theemployee is not able to perform theessential functions of the original


position, the employee’s right torestoration ceases. The relationshipbetween State workers’ compensationlaws and FMLA will be discussed infurther detail in connection with§ 825.702.

It should be noted that FMLA doesnot modify or affect any law prohibitingdiscrimination on the basis of disability,such as the ADA. Thus, if a ‘‘qualifiedindividual with a disability’’ within themeaning of the ADA is also an ‘‘eligibleemployee’’ entitled to take FMLA leave,an employer has multiple complianceobligations under both the ADA and theFMLA. When one of these laws offers asuperior right to an employee on aparticular issue, the employer mustprovide that superior right to theemployee. These issues will bediscussed in further detail in connectionwith § 825.702.

This section is also revised to make itclear, as stated in the legislative historyand in the preamble to the Interim FinalRule, an employee who is absent toreceive medical treatment for a serioushealth condition is unable to performthe essential functions of the employee’sjob while absent for treatment.

Needed To Care for a Family Member(§ 825.116)

An eligible employee may take FMLAleave ‘‘in order to care for’’ animmediate family member (spouse, son,daughter, or parent) with a serioushealth condition. This section, indiscussing what was meant by ‘‘neededto care for’’ a family member, providedthat both physical and psychologicalcare or comfort were contemplatedunder this provision of FMLA. GiantFood, Inc. recommended that adistinction be made between physicaland psychological care and supervisorycare, suggesting also that reasonableefforts should be made by employees todevelop alternate day care plans in theevent of a childhood illness to lessenthe impact that excessive absenteeismcan have on an employer’s operations.The Ohio Public Employer LaborRelations Association objected toallowing FMLA leave solely to providepsychological comfort for a familymember rather than actual physicalassistance and care, and suggested thatemployers should have discretion toconsider whether other care is beingprovided to the family member throughhealth-care services as well as otherfamily members. The Women’s LegalDefense Fund, Consortium for Citizenswith Disabilities, Epilepsy Foundationof America, National CommunityMental Healthcare Council, and UnitedCerebral Palsy Associations objected tothe reference to individuals ‘‘receiving

inpatient care’’ in paragraph (a), becausemany individuals are in othersituations, such as in the home, whichrequire this type of care and assistancefrom family members. Several of thesecommenters also objected to use of thephrase ‘‘seriously-ill’’ as too limitingand recommended replacing it with thestatutory term ‘‘serious healthcondition’’ for consistency with othersections of the regulations. Some ofthese commenters, in addition to theFood and Allied Service Trades, alsorecommended that ‘‘spouse’’ be addedto the list of family members in thissection.

The final rule has been revised to add‘‘spouse’’ to the last sentence ofparagraph (a), to delete ‘‘inpatient care,’’and to replace ‘‘seriously-ill’’ with‘‘serious health condition.’’ No furtherchanges have been made in response tothe remaining comments. The legislativehistory clearly reflects the intent of theCongress that providing psychologicalcare and comfort to family memberswith serious health conditions would bea legitimate use of FMLA’s leaveentitlement provisions. Because FMLAgrants to eligible employees the absoluteright to take FMLA leave for qualifyingreasons under the law, employers haveno discretion in this area and cannotdeny the legitimate use of FMLA leavefor such purposes without violating theprohibited acts section of the statute.See § 105 of FMLA.

Medical Need for Intermittent/ReducedSchedule Leave (§ 825.117)

FMLA permits eligible employees totake leave ‘‘intermittently or on areduced leave schedule’’ under certainconditions. Intermittent leave may betaken for the birth of a child (and to carefor such child) and for the placement ofa child for adoption or foster care if theemployer and employee agree to such aschedule. Leave for a serious healthcondition (either the employee’s orfamily member’s) may be takenintermittently or on a reduced leaveschedule when ‘‘medically necessary’’(§ 102(b)(1) of FMLA). An employer mayrequest that an employee support anintermittent leave request for a serioushealth condition with certification fromthe health care provider of the employeeor family member of the medicalnecessity of the intermittent leaveschedule and its expected duration.Employees must make a reasonableeffort to schedule their intermittentleave that is foreseeable based onplanned medical treatments so as not tounduly disrupt the employer’soperations (subject to the approval ofthe health care provider), and employersmay assign employees temporarily to

alternative positions with equivalentpay and benefits that betteraccommodate such recurring periods ofintermittent leave. (See also § 825.203.)

The Employee Assistance ProfessionalAssociation, Inc. commented that norationale was provided for whyintermittent leave or reduced leaveschedules are not available to anemployee seeking to take leave to carefor a family member. Intermittent leaveto care for an immediate family memberis allowed, as discussed in § 825.116.

The Women’s Legal Defense Fundrecommended that the regulations stateexplicitly that the determination ofmedical necessity for intermittent orreduced leave schedules is made onlyby the health care provider of theemployee, in consultation with theemployee. The Department’s medicalcertification form, as discussed in§ 825.306, is the vehicle for obtainingcertification of the medical necessity ofintermittent leave or leave on a reducedleave schedule, and suchdeterminations are made exclusively bythe health care provider of the employeeor employee’s family member (subject toan employer’s right to request a secondopinion at its own expense if it hasreason to doubt the validity of thecertification provided).

HCMF (long term care facilities)questioned what reasonable efforts arerequired by employees to consult withthe employer and attempt to scheduleintermittent leave so as not to undulydisrupt the employer’s operations.Cincinnati Gas & Electric Companysuggested that it would be reasonablefor an employer to request that anemployee attempt to schedule plannedmedical treatment outside normal workhours. The Equal Employment AdvisoryCouncil recommended the rules statethat an employer may deny intermittentor reduced leave schedules when thereason for the leave can beaccommodated during non-work hours,because the need for leave in suchcircumstances is not ‘‘medicallynecessary.’’ Gray, Harris & Robinsonasked what would constitute an unduedisruption, if it were analogous toADA’s ‘‘undue hardship’’ standard, andto what extent could an employer denythe leave. The Chamber of Commerce ofthe USA also recommendedclarifications in the rules of the impactof an employee’s failure to satisfy theobligation to avoid disruptions to theemployer’s operations.

As discussed in §§ 825.302 (e) and (f),the employee and employer shouldattempt to work out a schedule whichmeets the employee’s FMLA leave needswithout unduly disrupting theemployer’s operations. The ultimate


resolution of the leave schedule,however, always remains subject to theapproval of the health care provider andthe schedule established for the plannedmedical treatments. It should be notedthat under this section, the health careprovider either already has, or will,establish the medical necessity for theintermittent leave schedule; it is aprerequisite for the leave. Thus, denialof the leave would be out of thequestion. Even delay of the leave wouldbe inappropriate unless the health careprovider agreed to reschedule themedical treatments. What would be a‘‘reasonable effort’’ by the employee andan ‘‘undue disruption’’ of theemployer’s operations are fact-specificin each case. Requesting that anemployee attempt to schedule plannedmedical treatments outside the normalwork hours when scheduling themduring work hours would not undulydisrupt the employer’s operationswould not be ‘‘reasonable’’ or consistentwith FMLA’s requirements.

Definition of ‘‘Health Care Provider’’(§ 825.118)

FMLA entitles eligible employees totake leave for a serious health condition(of either the employee or an immediatefamily member). ‘‘Serious healthcondition’’ is defined to include aninjury, illness, impairment, or physicalor mental condition involving eitherinpatient care or ‘‘continuing treatmentby a health care provider.’’ In addition,FMLA’s medical certification provisionsallow an employer to request that leavefor a serious health condition ‘‘* * * besupported by a certification issued bythe health care provider * * *’’ of theemployee or family member. Section101(6) of the Act defines ‘‘health careprovider’’ as a doctor of medicine orosteopathy authorized in the State topractice medicine or surgery (asappropriate) or ‘‘any other persondetermined by the Secretary [of Labor]to be capable of providing health careservices.’’

After reviewing definitions underseveral programs, including rules of theU.S. Office of Personnel Managementand Medicare, DOL developed FMLA’sregulatory definition of ‘‘health careprovider’’ by beginning with thedefinition of ‘‘physician’’ under theFederal Employees’ Compensation Act(5 U.S.C. 8101(2)), which also includespodiatrists, dentists, clinicalpsychologists, optometrists, andchiropractors (limited to treatmentconsisting of manual manipulation ofthe spine to correct a subluxation asdemonstrated by X-ray to exist)authorized to practice in the State andperforming within the scope of their

practice as defined under State law, andby adding nurse practitioners and nurse-midwives (who provide diagnosis andtreatment of certain conditions,especially at health maintenanceorganizations and in rural areas whereother health care providers may not beavailable) if performing within thescope of their practice as allowed byState law. Finally, the definitionincluded Christian Science Practitionersto reflect the Congressional intent thatsuch practitioners be included (asexpressed in colloquies on the floors ofboth the House and Senate, and asreflected in the Committee reportaccompanying Title II of FMLAapplicable to Federal civil serviceemployees).

Fifty-seven commenters submittedviews on the regulatory definition of‘‘health care provider.’’ Most advocacygroups and various trade andprofessional associations viewed thedefinition as too restrictive andsuggested that it be expanded to includea broad range of additional providers ofhealth care and related services.

Federally Employed Women and theWomen’s Legal Defense Fund noted thatOPM’s definition for Federal civilservice employees under Title II ofFMLA includes those providersrecognized by the Federal Employee’sHealth Benefits Program, and suggesteda similar approach be used by DOL forTitle I. They contended that includingany providers covered by the employershealth insurance plan avoids confusionas to whether the services would bereimbursed and ensures ease ofadministration.

Alabama Power Company (Balch &Bingham) considered the definition aswritten too broad and suggested DOLfollow the lead of the States withFMLA-type laws, confining thedefinition to doctors and osteopaths.The ERISA Industry Committee felt thatemployers should not be required torecognize service providers notrecognized by their health plans.Burroughs Wellcome Companysuggested that Christian SciencePractitioners not be included.

The American Association forMarriage and Family Therapy, 14 StateAssociations for Marriage and FamilyTherapy, Teton Youth & FamilyServices, and the Women’s LegalDefense Fund suggested that marriageand family therapists be included in thedefinition. Fourteen organizations(American Board of Examiners inClinical Social Work; California Societyfor Clinical Social Work; CatholicCharities, Inc.; Council on Social WorkEducation; the Maryland, Mississippi,New Hampshire, New York State, Ohio,

Rhode Island, Texas and Utah Chaptersof the National Association of SocialWorkers; Women’s Legal Defense Fund;and 9 to 5, National Association ofWorking Women), the PersonnelDepartment of the City of NewportNews, and five Members of Congressrecommended that ‘‘clinical socialworkers’’ be added to the definition of‘‘health care providers.’’ In addition,436 cards/letters (generally uniform instyle and content) were received frompracticing social workers also urgingthat ‘‘clinical social workers’’ be added.

The Consortium for Citizens withDisabilities, Epilepsy Foundation ofAmerica, and United Cerebral PalsyAssociations suggested that theregulations include providers ofspecialized health-related services forthe disabled, health care providerslicensed by States or accredited bynational certification organizations, anon-exclusive list of types of providers(whether or not licensed or accredited),and a procedure for applying to DOL toadd ‘‘emerging’’ health care providerservices. The Service EmployeesInternational Union also supportedflexibility in the regulations to includeother types of providers of services asnew roles evolve with changes in thehealth care system.

The American Academy of PhysicianAssistants, Community Legal Services,Inc., Equal Rights Advocates, HospitalCouncil of Western Pennsylvania, 9 to 5,National Association of WorkingWomen, and Older Women’s Leaguerecommended that physician assistantsbe included. The National Acupunctureand Oriental Medicine Alliancerecommended including Acupuncturistsand Oriental Medicine Practitioners.Employee Assistance ProfessionalAssociation, Inc. recommended thatCertified Employee AssistanceProfessionals be recognized as‘‘providers’’ capable of makingdeterminations of whether an employeeis able to work or unable to return towork.

The American ChiropracticAssociation and William M. Mercer, Inc.objected to the parenthetical phraseconcerning chiropractors that limitedtreatment to manual manipulation of thespine to correct a subluxationdemonstrated by X-ray to exist. TheAmerican Psychological Associationrecommended replacing ‘‘clinicalpsychologist’’ with ‘‘doctorally trainedpsychologist whose scope ofcompetence includes clinicalactivities.’’

The American Psychiatric Associationsuggested that a distinction should bemaintained between doctors ofmedicine or osteopathy and non-


physician health care professionals, andthat certification for intermittent orreduced leave schedules should beaccepted only from doctors of medicineor osteopathy, not non-physician healthcare providers. The Consortium forCitizens with Disabilities, on the otherhand, suggested that the medicalcertification form be revised so that itdoes not appear that only a medicaldoctor or osteopath can sign off on theform.

California Rural Legal Assistance,Inc., Equal Rights Advocates, andWilliam M. Mercer, Inc. recommendedthat foreign-certified or foreign-licensedhealth care providers should berecognized under FMLA, to account forthe fact that many workers’ parents,spouses or children do not reside in theU.S. or that such family members maybecome ill while abroad. (CaliforniaRural Legal Assistance, Inc. stated thatmany U.S. residents rely on Mexicandoctors for health care.)

The law firm of Fisher & Phillipsrecommended that DOL delayexercising its authority to designatehealth care providers until there is anopportunity to determine the impact onthe President’s health care proposal.

After giving careful consideration tothe numerous suggestions for changes inthe definition of ‘‘health care provider,’’we have revised the final rule in thefollowing respects. The definition willbe expanded to include any health careprovider that is recognized by theemployer or accepted by the grouphealth plan (or equivalent program) ofthe employer. To the extent that theemployers or the employers’ grouphealth plans recognize any suchindividuals for certification of theexistence of a health condition tosubstantiate a claim for health care andrelated services that are provided, theywould be included in the reviseddefinition of ‘‘health care provider’’ forpurposes of FMLA. Clinical socialworkers will also be included becauseour review reveals that they areordinarily authorized to diagnose andtreat without supervision under Statelaw. Physician’s assistants are notincluded as health care providers underthe regulations because they areordinarily only permitted to practiceunder a doctor’s supervision. Anemployee, however, may receivetreatment by a physician’s assistant orother health care professional under thesupervision of a doctor or other healthcare provider without first seeing thehealth care provider and obtaining areferral. In addition, any servicesrecognized by the plan which arefurnished as a result of a referral whileunder the continuing supervision of a

health care provider would qualify asmedical treatment for purposes ofFMLA leave (see § 825.114(c)(2)(i)(A)).

II. Subpart B, §§ 825.200–825.220

Amount of Leave (§ 825.200)

Employers must choose from amongfour options a single uniform methodfor calculating the 12-month period fordetermining ‘‘12 workweeks of leaveduring any 12-month period.’’ Thechoice of options was intended to givemaximum flexibility for ease inadministering FMLA in conjunctionwith other ongoing employer leaveplans, given that some employersestablish a ‘‘leave year’’ and because ofState laws that may require a particularresult.

The California Department of FairEmployment and Housingrecommended this section includecautionary advice to employers that theavailability of options may be limited byState law (the California Family RightsAct starts the 12-month period with thedate the employee first uses qualifyingleave). William M. Mercer, Inc.questioned whether State family leavelaws would control the employer’sadministration of FMLA, and alsowhether leave accrues under thebackward rolling method on a dailybasis. The State of New York’sDepartment of Civil Service and theState of Nevada’s Department ofPersonnel recommended that eachagency or department within a Stategovernment be allowed to select aseparate (i.e., different) 12-monthperiod.

The State of South Carolina’s Divisionof Human Resource Management, theState of South Dakota’s Bureau ofPersonnel, and the Edison ElectricInstitute recommended provisions beadded to limit the amount of FMLAleave available to an employee for thebirth or adoption of a child to a single12-week period per event (e.g., underthe calendar year method, an employeewho adopts or gives birth to a child latein the year would not be entitled to takeadditional leave in the second calendaryear period because of the adoption orbirth of that child). Similarly, CincinnatiGas and Electric Companyrecommended the final rules prohibit anemployee from receiving 24 weeks ofprotected leave for a single FMLA-covered event (e.g., where the initial 12-week absence ends at the same time thenext annual 12-week allotment begins).(See also the discussion of similarcomments received on the section thatfollows, § 825.201.)

The Women’s Legal Defense Fundrecommended that DOL explicitly

define the method rather than allowingemployer choices, to preventmanipulation, and suggested the periodbe calculated as the 12-month periodfollowing commencement of anemployee’s first FMLA leave(§ 825.200(b)(3)). If choices are allowed,they urge that the 12-month periodrolling backward method (paragraph(b)(4)) be rejected because it curbsemployee flexibility and is confusing tothem. The American Federation ofTeachers/National EducationAssociation concurred with WLDF’scomments. The AFL–CIO and ServiceEmployees International Unionsubmitted similar views. (SEIU alsosuggested clarifying that employers maynot switch methods to deny employeesleave, and that such action wouldviolate FMLA’s anti-interferenceprovisions.) The United PaperworkersInternational Union suggested that the12-month period be calculated by usingeach individual employee’s anniversarydate, as employees are not eligible untilthey have worked for at least 12 months,and this would prevent employers frommanipulating the 12-month period toavoid FMLA obligations.

Fisher & Phillips suggested that theregulations refer to the 12-month‘‘rolling period’’ as the default methodfor employers that have not designateda 12-month period.

The Society for Human ResourceManagement questioned whether the12-week entitlement was for eachseparate reason specified under FMLA(12 weeks for childbirth, plus 12 weeksfor a sick parent, plus 12 weeks for theemployee’s serious health condition,etc., all in the same 12-month period),or for all reasons (total for all events ina 12-month period limited to 12 weeks).This commenter also questionedwhether an employer must allow anemployee to return to work early in thesituation where the employee requested12 weeks of leave and, three weeks intothe leave, the employee asks to return towork.

Black, McCuskey, Sourers & Arbaughstated that employees of employers whoselected the calendar year should beentitled to only five weeks of FMLAleave for the period between August 5,1993, and December 31, 1993. TheDepartment cannot agree with this lineof reasoning, which would suggest thatemployees of employers who select thecalendar year would be entitled to lessleave other employees. Nor do webelieve that Congress intended that anemployee be entitled to one week ofleave for each remaining month of theyear after eligibility is established.

The final rule has been clarified inresponse to several of the comments


received. The rule notes that anemployer may be unable to choose onemethod from among the availableregulatory options if a particular methodis dictated by a State family leave law.In this regard, employers operating inmultiple States with differing Statefamily/medical leave provisionsaffecting the 12-month calculation mustfollow the method required by the Statelaws. Absent a conflict with State law,employers must select a single, uniformpolicy covering its entire workforce.Employers must inform employees ofthe applicable method for determiningFMLA leave entitlement wheninforming employees of their FMLArights. If an employer fails to designateone of the methods, employees will beallowed to calculate their leaveentitlement under whichever method ismost beneficial to them. The employerin that case would subsequently be ableto designate a choice prospectively, butwould have to follow the rule foremployers wishing to change to anotheralternative (i.e., give 60 days notice toall employees, and employees retain thefull benefit of 12 weeks of leave underwhichever method yields the greatestbenefit to employees during the 60-daytransition period).

When determining the amount ofFMLA leave taken, a holiday occurringwithin a week of FMLA leave has noeffect—the week is still counted as aweek of FMLA leave. If however, theemployer’s activities temporarily ceasefor one or more weeks and employeesgenerally are not expected to report forwork (e.g., a school that closes twoweeks for the Christmas and New Yearholiday or for the summer vacation; aplant that closes two weeks for repairsor retooling), the days on which theemployer’s activities have ceased do notcount against an employee’s FMLAleave entitlement.

The ‘‘rolling backward’’ method is asnapshot of the 12-month period thatchanges daily (i.e., as each new day isadded to the 12-month period, one dayfrom 12-months ago is eliminated).While many comments were receivedopposing this method, it has beenretained as one of the available optionsbecause it is the one method that mostliterally tracks the statutory language.

Once the 12-month period isdetermined, an employee’s FMLA leaveentitlement is limited to a total of up to12 workweeks of leave in that 12-monthperiod for any and all reasons thatqualify for taking leave under FMLA. Ifan employer selects the calendar year asthe 12-month period, there is noauthority under the statutory languageto limit an employee’s entitlement to a‘‘per event’’ concept. (This would be

akin to saying that if an employee underthe calendar year method suffered aheart attack in the month of December,that employee would no longer qualify,once the new year arrived, to takeFMLA leave for that serious healthcondition. We ardently reject thisstrained interpretation.) The onlylimitation the Act places on anemployee’s taking FMLA leave in asubsequent 12-month period to care fora newborn or newly-adopted child isthat the entitlement to leave for suchpurposes expires 12 months after thedate of the birth or placement.

If an employee begins a requested 12-week leave of absence and, three weeksinto the leave, asks to return to workearlier than originally planned, theemployer is obligated to promptlyrestore the employee. An employee mayonly take FMLA leave for reasons thatqualify under the Act, and may not berequired to take more leave than isnecessary to respond to the need forFMLA leave. If circumstances changeand the employee no longer has a needfor FMLA leave (which could include aparent’s changed decision not to stayhome with a newborn child as long asoriginally planned), the employee’sFMLA leave is concluded and theemployee has an absolute right underthe law to be promptly restored to hisor her original or an equivalent positionof employment. This view does notmean that employees do not also haveobligations to provide notice to theemployer of such changingcircumstances. If an employee’s statuschanges and the employee is able toreturn to work earlier than anticipated,the employee should give the employerreasonable advance notice, generally atleast two working days. This isaddressed in § 825.309(c). An employermay also obtain such informationthrough periodic status reports on theemployee’s intent to return to work.

Conclusion of Leave for Birth orAdoption (§ 825.201)

Under § 102(a)(2) of FMLA, anemployee’s entitlement to leave for abirth or placement of a son or daughter‘‘shall expire at the end of the 12-monthperiod beginning on the date of suchbirth or placement’’ (emphasis added).This section of the regulations repeatedthe statutory terms with the addedqualifications that State law mayrequire, or an employer may permit, alonger period; any such FMLA leave,however, must be concluded within thisstatutory 12-month period.

The Los Angeles County MetropolitanTransportation Authority recommendedthis section be revised to state clearlythat leave for the birth of a child, or

placement of a child with the employeefor adoption or foster care, must beinitiated and completed within 12months after the birth or placement.Nationsbank Corporation (TroutmanSanders) stated that the termination datefor an employee’s entitlement to leaveunder this section should occur 12months after the first FMLA leave istaken in connection with the event,rather than 12 months after the date ofbirth or placement, suggesting thisapproach would be more consistentwith other regulatory provisionsallowing such leave to begin before theactual date of birth or placement.(Otherwise, they suggest, the 12 weeksof leave could be spread over a periodgreater than the 12-month periodprovided by FMLA’s requirements.)

The Employers Association of NewJersey questioned whether a provisionunder the New Jersey law that requiresleave to commence (but it need notconclude) within one year of the date ofbirth would prevail over the FMLA.

The Women’s Legal Defense Fundconsidered the language in this sectionof the regulations too restrictive,suggesting it removes schedulingflexibility for employees. WLDFsuggested replacing ‘‘concluded’’ with‘‘begun’’ (which, thus, would read likethe New Jersey law cited above).

The Chamber of Commerce of theUSA suggested modifications thatwould limit an employee’s leaveentitlement to a single 12-week periodfor the birth or placement of a child, tomake it clear that an employee is notentitled to ‘‘stack’’ leave periods inconnection with a single birth orplacement. The Association ofWashington Cities expressed similarviews.

Our review of the statute and itslegislative history in the context of thecomments received has confirmed ourinitial views on this section. The statuteclearly states that the entitlement toleave expires at the end of one yearfollowing the date of birth or placementof the child. Thus, the leave must beconcluded (i.e., completed) within thestatutory entitlement period. There is noauthority to provide by regulation thatthe leave need only begin within thestatutory 12-month period. If a Stateprovision (as is the case in New Jersey)allows for a longer or more generousperiod, the more generous Stateprovision would prevail but such leavebeyond what FMLA requires would notcount as FMLA leave (see § 401(b) ofFMLA, discussed below in connectionwith § 825.701 of the regulations). Thereis no authority to shorten the statutory12-month period under the regulationswhere an employee begins leave for the


birth or placement prior to the actualbirth of placement. Nor is thereauthority to limit an employee’sentitlement to a ‘‘per event’’ standard.

Limitation for Spouses Employed by theSame Employer (§ 825.202)

Section 102(f) of FMLA specificallylimits the total aggregate number ofworkweeks of leave to which an‘‘eligible’’ husband and wife are bothentitled if they work for the sameemployer to 12 workweeks of leave(combined between the two spouses) ifthe leave is taken for: (1) the birth of achild; (2) the placement of a child foradoption or foster care; or (3) to care fora sick parent. The regulations specifiedwhich FMLA-covered purposes fortaking leave were subject to the speciallimitation, and gave examples of howthe limitation would apply when leavetaken during the 12-month period is forboth a reason subject to the limitationand one that is not (leave for anemployee’s own serious healthcondition, and ‘‘family’’ leave if it is forcare of a spouse, son, or daughter, is notsubject to the statutory limitation).

Twelve comments were received onthis section. Many commentersmisunderstood the relationship underthe statute between leave taken for areason subject to the combined limit of12 weeks, and leave taken for reasonsnot within the limitation. Severalcommenters took issue with thereasoning for limiting leave entitlementsfor spouses employed by the sameemployer. Two individuals opposed thelimitations as being discriminatoryagainst spouses.

Martin, Pringle, Oliver, Wallace &Swartz and the Virginia MarylandDelaware Association of ElectricCooperatives both noted that theregulations provide no guidance inconnection with siblings employed bythe same employer. The Society forHuman Resource Management notedthat two employees living together butnot legally married can each take 12weeks for the birth or placement of achild, and recommended revising theregulations to provide that the 12-week-total limitation would also apply whereboth parents of a child work for thesame employer. The Ohio PublicEmployer Labor Relations Associationfelt that employers should be able tolimit the leave of spouses for the care ofa seriously-ill child for the same reasonspouses are limited for the birth oradoption of a child. George WashingtonUniversity felt that care for a seriously-ill parent should entitle each spouse to12 weeks of FMLA leave. BecauseFMLA does not cover care of a parentin-law, the Women Employed Institute

felt that both the husband and wifeshould be entitled to 12 weeks of leavein order to care for their own parent,just as they are entitled to 12 weeks ofleave for their own illness.

Fisher & Phillips noted that when afemale employee takes leave for thebirth of a child, the leave may have adual purpose under FMLA. Onepurpose relates to the employee’s ownserious health condition for childbirthand recovery (§ 102(a)(1)(D) of FMLA).The other relates to the birth and careof a newborn child (§ 102(a)(1)(A) ofFMLA). They recommended revising therule to state that such ‘‘dual purpose’’leave would always be treated as beingsubject to the limitation for purposes ofthe husband taking FMLA leave. Fisher& Phillips suggested further that thereference in the Act to ‘‘parent’’ must bean error, that the word ‘‘child’’ musthave been intended (recommendingsuch a revision be made throughregulatory interpretation).

According to the legislative history,the limitation on leave taken by spouseswho work for same employer isintended to eliminate any employerincentive to refuse to hire marriedcouples. It is our view that the statutoryprovisions must be interpreted literally,and we do not agree that the legislativeresult is an error that should be alteredby regulation. DOL lacks the authorityto either add to, or subtract from, thecircumstances that are subject to thestatutory limitation of spouses whowork for the same employer. Theexamples given in the regulation havebeen clarified in an effort to reduce theconfusion that is apparent from thecomments received on this section ofthe regulations. With respect to thecomment by Fisher & Phillips on ‘‘dualpurpose’’ leave, FMLA lacks any ‘‘ dualpurpose’’ concept. Further, the statutorylimitation must be applied literally, andonly to leave that is taken for a purposethat is expressly subject to thelimitation. Clearly there is a period ofdisability following the birth of a child,as explicitly recognized under Statepregnancy disability laws. Disabilityleave recognized under such State lawsfor the birth of a child would also beconsidered FMLA leave for a serioushealth condition. Such leave, for one’sown serious health condition, is notsubject to the limitation for spouses whowork for the same employer. Nor doesthe limitation apply to unmarriedparents or to siblings employed by thesame employer. The regulations havebeen clarified in response to thecomments received.

Intermittent and Reduced LeaveSchedules (§ 825.203)

FMLA permits eligible employees totake leave ‘‘intermittently or on areduced leave schedule’’ under certainconditions. Intermittent leave is notavailable for the birth or adoption of achild unless the employee and employeragree otherwise. Subject to compliancewith FMLA’s ‘‘notice’’ and medicalcertification provisions, and the right ofan employer to transfer an employeetemporarily to an alternative positionwith equivalent pay and benefits thatbetter accommodates recurring periodsof leave, leave for a serious healthcondition (either the employee’s orfamily member’s) may be takenintermittently or on a reduced leaveschedule when medically necessary.

The Women’s Legal Defense Fund andthe Service Employees InternationalUnion commented that intermittentleave should be permitted to accomplisha placement for adoption or for fostercare prior to the actual placementwithout requiring the agreement of theemployer. Section 825.112(d) of theInterim Final Rule provides for thetaking of FMLA leave for purposes ofadoption or foster care prior to theactual placement in situations when theemployee may be required to attendcounselling sessions, appear in court,etc. Unlike the circumstances in§ 825.112(c) which provide for anexpectant mother to take leave prior tothe birth of a child for prenatal care orfor her own condition, both of which arespecifically identified as being a serioushealth condition, placement foradoption or foster care is not soidentified. To provide intermittent leavewithout the employer’s agreement priorto the actual placement would becontrary to the language contained in§ 102(b)(1) of the statute, ‘‘In General—Leave under subparagraph (A) (birth ofa child) or (B) (placement for adoptionof foster care) of subsection (a)(1) shallnot be taken by an employeeintermittently or on a reduced leaveschedule unless the employee and theemployer of the employee agreeotherwise.’’ We are unable to make thesuggested change in the Final Rule.

Fifteen commenters, including publicemployers, public utilities, educators,health care industry employers andmanufacturers urged that the taking ofintermittent leave in increments of onehour or less was too burdensome. Manyrecommended that leave takenintermittently should be limited to half-days (four hours) or full days as aminimum. The legislative historyprovides that only the time actuallytaken is charged against the employee’s


entitlement (Senate Committee on Laborand Human Resources (S. 5), Report103–3, January 27, 1993, pp. 27 & 29).Otherwise, the statute and thelegislative history are silent regardingincrements of time related tointermittent leave. In providingguidance on this issue in the InterimFinal Rule, it seemed appropriate torelate the increments of leave to theemployer’s own recordkeeping systemin accounting for other forms of leave orabsences. Section 825.203(d) tracks thatdecision and provides that theemployer’s established recordkeepingsystem controls with regard toincrements of FMLA leave of less thanone hour. (The employer may notrequire leave to be taken in incrementsof more than one hour.) The guidance inthe Interim Final Rule continues to beappropriate; otherwise employees couldbe required to take leave in amountsgreater than necessary, thereby erodingthe 12-week leave entitlementunnecessarily. The Final Rule willcontain the same guidance; however,this section will be clarified to provideexplicitly that the phrase ‘‘one hour orless’’ is dispositive.

Five commenters expressed concernthat an employee taking intermittentleave could spread the 12-week leaveentitlement over an extended period, upto the full 12 month leave period. TheEqual Employment Advisory Councilsuggests that the amount of intermittentleave available be limited to four weeksof the 12 week total available in any 12months. The Kennedy MemorialHospitals suggests that a limit of sixmonths be placed on the period overwhich intermittent leave can beextended. The Koehler ManufacturingCompany suggests that employeesrequesting intermittent leave should beeligible for a shorter time period. CareProviders of Minnesota point out thereis no statutory prohibition forreasonably limiting the period of timefor intermittent leave.

The statute makes no provision forlimiting the time period over which anemployee may take leave intermittentlyor on a reduced leave schedule. To thecontrary, § 102(b)(1) of the statuteprovides that the taking of such leave‘‘* * * shall not result in a reduction inthe total amount of leave to which theemployee is entitled under subsection(a) beyond the amount of leave actuallytaken.’’ After due consideration, theDepartment finds that making such achange would be contrary to the statuteand the intent of Congress.

Blue Cross and Blue Shield of Texas,Inc. asks if due to a medical certificationan employee is limited to working eighthours per day, and thus is unable to

work mandatory overtime hours, maythe employee be subject to disciplinaryaction or may the employer charge theunworked overtime to the employee’sFMLA leave entitlement. The questionto be answered would be whether theemployer’s policy requires the taking ofother forms of leave (i.e., vacation orsick leave) to cover unworked overtime.The taking of FMLA leave is predicatedon the employee’s normal workweek(see § 825.205 of the Interim Final Rule).The definition of reduced leaveschedule in § 101(9) of the statutespeaks of usual number of hours perworkweek, or hours per workday(emphasis added). If the employee’susual or normal workweek is greaterthan 40 hours or workday is greater thaneight hours, the days or hours theemployee does not work may be chargedagainst the FMLA leave entitlement ifthe absence is for an FMLA qualifyingreason. If, however, the overtime isassigned/required on an ‘‘as needed’’basis, not a part of the employee’s usualor normal work time, or is voluntary,the unworked overtime may not becharged to the employee’s FMLA leaveentitlement. The employee is not subjectto disciplinary action for being unableto work overtime as a result oflimitations contained in a medicalcertification obtained for purposes ofFMLA.

The law firm of Sommer and Barnardurges that an employee be required tofurnish evidence satisfactory to theemployer that periods of intermittentleave requested for birth or placement ofa child before the actual birth orplacement will be used for the requiredreason, and that all the leave requested/approved will be devoted to thepurposes for which the employee waseligible for such leave. The Final Rulehas been amended in § 825.113(d) topermit an employer to requirereasonable documentation of a familyrelationship for purposes of FMLAleave. It would be unreasonable,however, to expect an employee topredict with any precision the amountof leave that will be required inconjunction with a birth or placementwhen time spent in these activities islargely outside the employee’s control(e.g., attorneys, doctors, the courts,social workers, etc.). The possibility,moreover, that employees would lie totheir employer and not use leave for thepurposes indicated is not unique toleave taken prior to the birth orplacement for adoption or foster care.Such fraud should be treated like anyother fraud in connection with leave.See also § 825.312(g). In any event,employer permission is required for an

employee to take intermittent FMLAleave for birth (other than medically-necessary leave) or placement foradoption or foster care. Consequently,the suggested change will not be made.

Massmutual Life Insurance Companyrecommends that reduced scheduleleave and intermittent leave for personalmedical leave should be limited solelyto those times which are scheduled fortreatment, recovery from treatment orrecovery from illness. The definition ofleave which may be taken intermittentlyor on a reduced leave schedule basis foran employee’s own serious condition orthe serious health condition of animmediate family member has beenchanged in § 825.203 of the Final Ruleto incorporate this suggestion. Theemployee will also be entitled to takeleave intermittently or on a reducedleave schedule for periods of disabilitydue to a chronic serious healthcondition or to provide needed care foran immediate family member with aserious health condition, includingpsychological care when such carewould prove beneficial to the patient.

Temporary Transfers to AlternativePositions (§ 825.204)

If an employee needs to takeintermittent leave (e.g., for medicaltreatment) or leave on a reduced leaveschedule, the employer may temporarilytransfer the employee to an availablealternative position for which theemployee is qualified and which betteraccommodates recurring periods ofleave than the employee’s regularposition. The alternative position musthave equivalent pay and benefits; itneed not have equivalent duties. Theconditions of a temporary transfer maynot violate any applicable collectivebargaining agreement containing higherstandards or more generous provisionsfor employees than those required byFMLA, and employers must observe anyother applicable standards underFederal or State laws (e.g., the ADA).

As the legislative history explains,this provision was intended to givegreater staffing flexibility to employersby enabling them temporarily to transferemployees who need intermittent leaveor leave on a reduced leave schedule topositions more suitable for recurringperiods of leave. At the same time, itensures that employees will not bepenalized for their need for leave byrequiring that they receive equivalentpay and benefits during the temporarytransfer. Congress anticipated that areduced leave schedule would often beperceived as desirable by employerswho would prefer to retain a trained andexperienced employee part-time for theweeks that the employee is on leave


rather than hire a full-time temporaryreplacement.

The Women Employed Institute andWomen’s Legal Defense Fund suggestedrevisions to the regulations to clarifythat temporary transfers should last onlyas long as an employee needs to takeleave intermittently or on a reducedleave schedule; once the leave needends, the employer must then restorethe employee to his or her original or anequivalent position.

Kaiser Permanente questionedwhether an employer could provide‘‘pay in lieu of benefits’’ if that is thegeneral practice for employees whowork less than 20 hours per week.William M. Mercer, Inc. asked if, whena full-time employee is temporarilytransferred to a part-time reduced leaveschedule, and part-time employeesordinarily have either reduced healthcare coverage or pay higher premiums,can the transferred employee’s benefitsbe similarly reduced? Van Hoy,Reutlinger & Taylor noted that anemployer is required to maintain theemployee’s full-time benefits (e.g., lifeand disability insurance) while theemployee is working part-time onintermittent leave but questioned, wheresuch policies are based on pay, whetherthe employer may reduce suchbenefits—if not, the regulations shouldcontain a stronger warning so employersdo not inadvertently reduce suchbenefits. The University of Californiaasked for clarification of whether onlyhealth benefits are required to bemaintained for employees who takeFMLA leave, whether they are on fullleave, reduced leave schedule,intermittent leave, or while in analternative position. The ERISAIndustry Committee requestedadditional clarification on the treatmentof annual bonuses, particularly whetherthey may be prorated for time on leave(a pro rata reduction would impact thecalculation of other benefits).

An employee may not be required totake more leave than is necessary tosatisfy the employee’s need for FMLAleave. If a full-time employee switchesto a part-time or reduced leave scheduleunder FMLA, the employee mustcontinue to receive the same (full) levelof benefits which the employee enjoyedbefore starting the FMLA leave, and maynot be required to pay more to maintainthat same level of benefits enjoyed priorto the start of the FMLA reduced leaveschedule, regardless of any employerpolicy applicable to its part-timeemployees that would suggest adifferent result. To permit otherwisewould result in the employee notreceiving equivalent pay and benefits asrequired by FMLA. An employer may

only proportionately reduce the kinds ofbenefits that are computed on the basisof the number of hours worked duringthe period, e.g., vacation or sick leave,insurance or other benefits that aredetermined by the amount of earnings.Once an employee’s need for a reducedleave schedule under FMLA has ended,the employer must restore thatemployee to his or her original positionor to a position that is equivalent to theoriginal position (with equivalentbenefits, pay, etc.). An employer maynot transfer an employee to analternative position in order todiscourage the employee from taking theleave or otherwise create a hardship forthe employee (e.g., transfer to the‘‘graveyard’’ shift; assigning anadministrative employee to performlaborer’s work; reassigning aheadquarters staff employee to a remotebranch site, etc.). This section has beenso clarified. The relationship betweenFMLA’s provisions and collectivebargaining agreements containinggreater employee rights or moregenerous provisions for employees isdiscussed in § 825.700.

Determining the Amount ofIntermittent/Reduced Leave (§ 825.205)

Only the amount of leave actuallytaken while on an intermittent orreduced leave schedule may be chargedas FMLA leave. This means, forexample, that if a full-time employeewho normally worked eight-hour daysswitched to a half-time (four hours perday) reduced leave schedule, only 1⁄2week of FMLA leave could be chargedeach week (and, at that rate, it wouldtake 24 weeks to exhaust the employee’sFMLA leave entitlement if no otherFMLA leave were taken during the 12-month period). For employees workingpart-time or variable hours, the amountof leave entitlement is determined on aproportional basis by comparing thenew schedule (after starting FMLAleave) to the normal schedule (beforestarting FMLA leave). If an employee’sschedule varies week-to-week, a weeklyaverage over the 12 weeks prior tostarting FMLA leave is used forestablishing the ‘‘normal’’ schedule.

California Rural Legal Assistance, Inc.suggested that the regulations makeclear that FMLA leave may not becharged during a week when workwould not otherwise be available. TheSociety for Human ResourceManagement questioned how a week ofFMLA leave would be counted foremployees who work seven days andthen are off for seven days.

An employee’s FMLA leaveentitlement may only be reduced fortime which the employee would

otherwise be required to report for duty,but for the taking of the leave. If theemployee is not scheduled to report forwork, the time period involved may notbe counted as FMLA leave. See§ 825.200(f).

The American CompensationAssociation was not clear on how tocalculate the pro rata depletion ofFMLA leave time for an employeepresently on a reduced leave scheduledue to a disability who needsintermittent leave, perhaps one day perweek, and asked if it would be based onthe pre-disability schedule or thecurrent work schedule. ChicagolandChamber of Commerce expressedconcern that this section might beconstrued to allow an exempt employeewho normally works more than 40hours per week to receive FMLA leaveon an intermittent or reduced leaveschedule basis in excess of his or her 12-week entitlement, suggesting thegreatest number of hours any employeeshould be entitled to receive forintermittent or reduced leave schedulepurposes is 480 (12 weeks × 40 hours).The Chamber of Commerce of the USAsuggested the regulation make clear thatthe 12-week average rule is applied onlyif an employee’s normal schedulefluctuates, and not if it fluctuates due toovertime hours of work.

Section 102 of FMLA states that aneligible employee is entitled to ‘‘a totalof 12 workweeks of leave’’ during the12-month period. The statute uses the‘‘workweek’’ as the basis for leaveentitlement, and an employee’s normal‘‘workweek’’ prior to the start of FMLAleave is the controlling factor fordetermining how much leave anemployee uses when switching to areduced leave schedule. Nothing in theAct or its legislative history suggeststhat the maximum amount of leaveavailable to an employee is 480 hours.If an employee’s normal workweekexceeds 40 hours, the calculation oftotal FMLA leave available for pro ratareduction of total leave entitlementduring intermittent leave or reducedleave schedules should be based on theemployee’s normal workweek—even ifit exceeds 40 hours.

If an employee with a disability hasalready switched to a permanentlyreduced work schedule for reasons otherthan FMLA, and needs leave on anintermittent basis, the hours workedunder the current schedule would beused for making the calculation asprovided in § 825.205(c).

‘‘541’’ Exemption (§ 825.206)FMLA leave may be unpaid. Section

102(c) of FMLA expressly provides thatwhere an employee is otherwise exempt


from the Fair Labor Standards Act’s(FLSA) requirements for payment ofminimum wage and overtimecompensation for hours worked over 40per week (the exemption for ‘‘executive,administrative, and professional’’employees under FLSA § 13(a)(1)),compliance by an employer withFMLA’s requirement to provide unpaidleave shall not affect the exempt statusof the employee under the FLSAexemption and its regulations (29 CFRPart 541). Thus, employers can ‘‘dock’’the pay of otherwise-exempt, salariedemployees for FMLA leave taken forpartial day absences. If an FLSA-exemptemployee needs to work a reduced leaveschedule under FMLA, the employermay deduct from the employee’s salarypartial-day absences for any hours takenas intermittent or reduced scheduleFMLA leave within the workweekwithout causing loss of the employee’sexempt status under 29 CFR Part 541.By operation of the statute (FMLA), thisexception to the FLSA ‘‘salary basis’’rule extends only to leave whichqualifies as FMLA leave (i.e., FMLA-eligible employees, working for FMLA-covered employers, who take FMLAleave only for reasons which qualify asFMLA leave).

Twenty comments were received onthis provision. Many commenterscomplained that the tension betweenFMLA’s requirement to grant unpaidleave and FLSA’s ‘‘salary basis’’ ruleprohibiting partial-day deductions frompay for FLSA-exempt employeesdiscourages employers frommaintaining more generous family leavepolicies that were in effect prior toFMLA, or from extending FMLA leaverights to non-covered or non-eligibleemployees, because of the risk ofjeopardizing the exempt status of entireclasses of employees. The PersonnelDepartment of Whatcom County,Washington, noted the inequitableresult under the rule that causes non-exempt employees to obtain a ‘‘betterpackage’’ under FMLA than exemptemployees do. In contrast, the ServiceEmployees International Union stated itwould have been inappropriate for DOLto expand FMLA’s exception to theFLSA ‘‘salary basis’’ test beyond the useof FMLA-qualified leave. The UnitedFood and Commercial WorkersInternational Union opposed allowingeven FMLA-required deductions froman employee’s salary without affectingthe employee’s qualifications forexemption under the FLSA because itpermits the employer to reduce anemployee’s wages for hourly leavewithout having to grant overtime pay forhours over 40 per week. Van Hoy,

Reutlinger & Taylor recommended thatthe final rule also address howemployers treat salaried but non-exemptemployees who are paid on the‘‘fluctuating workweek’’ method forpayment of half-time overtimecompensation when FMLA leave resultsin fewer than 40 hours being worked inthe workweek.

An employee subject to FLSA’sovertime requirements who is paid on asalary basis and whose workhoursfluctuate each week may be paidovertime compensation under the‘‘fluctuating workweek’’ method ofpayment described in 29 CFR 778.114.Where the employee and employermutually agree that the salary amountwill compensate the employee for allstraight-time earnings for whateverhours are worked in the week, whetherfew or many, payment of extracompensation, in addition to the salary,for all overtime hours worked at one-half the ‘‘regular rate’’ will meet FLSA’sovertime compensation requirements.Because the salary covers ‘‘straight-time’’ compensation for however manyhours are worked in the workweek, theemployee’s ‘‘regular rate’’ varies eachweek (determined by dividing the salaryby the number of hours worked eachweek). Payment for the overtime hoursat one-half the rate computed eachweek, in addition to the salary, resultsin payment of time-and-one-half theregular rate for all overtime hoursworked each week. The ‘‘fluctuatingworkweek’’ method of payment forovertime hours may not be used unlessthe salary amount is enough to yieldaverage hourly straight-time earnings inexcess of the statutory minimum wagefor each hour worked in the weekswhen the employee works the greatestnumber of hours. Typically, it ismutually agreed by the parties underthese types of salary arrangements thatthe salary will be paid as straight-timecompensation for however many or fewhours are worked, long weeks as well asshort weeks, under the circumstances ofthe employment arrangement as awhole.

Therefore, because payment of theagreed-upon salary is required in eachshort workweek as a prerequisite forpayment of overtime compensation on a‘‘fluctuating workweek’’ basis,employers may not dock the salary of anemployee paid on this basis who takesFMLA leave intermittently or on areduced leave schedule withoutabandoning the ‘‘fluctuating workweek’’overtime formula. An employer mayeither continue paying such anemployee the agreed-upon salary in anyweek in which any work is performedduring the employee’s FMLA leave

period, or may choose to convert theemployee to an hourly basis of payment,with payment of proper time-and-one-half the hourly rate for any overtimehours worked during the period of thecondition for which FMLA leave isneeded intermittently or on a reducedleave schedule basis, and later restorethe salary basis of payment after theemployee’s need for intermittent orreduced schedule FMLA leave hasconcluded. If an employer chooses tofollow this exception from thefluctuating workweek method ofovertime payment, it must do souniformly for all employees paid on afluctuating workweek basis who takeFMLA leave intermittently or on areduced leave schedule, and may not doso for employees taking leave undercircumstances not covered by FMLA.The final rule has been clarified toreflect this policy.

While the Department recognizes theview, as some commenters noted, that atension exists between partial-daydocking under the FLSA ‘‘salary basis’’rule and the intent of FMLA toencourage more generous family andmedical leave policies, we areconstrained by the literal language ofthe statutory terms to adhere to thepolicy set forth in the Interim FinalRule. By operation of FMLA, thestatutory exception to the FLSA 541exemption’s ‘‘salary basis’’ rule extendsonly to leave qualifying as FMLA leavethat is taken by FMLA-eligibleemployees employed by FMLA-coveredemployers. No further revisions aremade in this section.

Paid or Unpaid Leave (§ 825.207)FMLA requires unpaid leave,

generally. If an employer provides paidleave of fewer than the 12 workweeksrequired by FMLA, the additional weeksnecessary to attain 12 workweeks ofleave in the 12-month period may beunpaid. FMLA also provides forsubstituting appropriate paid leave forthe unpaid leave required by the Act.An employee may elect, or an employermay require the employee, to substituteany of the employee’s accrued paidvacation leave, personal leave, or familyleave if it is: (1) for the birth of a child,and to care for such child; (2) forplacement of a child with the employeefor adoption or foster care, and to carefor such child; or, (3) to care for theemployee’s spouse, child, or parent, ifthe spouse, child or parent has a serioushealth condition. The legislative historyexplains that ‘‘family leave’’ as usedhere in FMLA refers to paid leaveprovided by the employer‘‘* * * covering the particularcircumstances for which the employee


is seeking leave under [FMLA for birthor adoption of a child, or for the serioushealth condition of an immediate familymember] * * *’’ (emphasis added).Based on this legislative history, theregulations similarly included alimitation that family leave may only besubstituted ‘‘under circumstancespermitted by the employer’s familyleave plan’’ (§ 825.207(b)).

In addition, the employee may elect,or the employer may require theemployee, to substitute any of theemployee’s accrued paid vacation leave,personal leave, or medical or sick leavefor FMLA leave taken for the serioushealth condition of an immediate familymember (spouse, child, or parent) or forthe employee’s own serious healthcondition that makes the employeeunable to work, except that an employeris not required to provide paid sickleave or paid medical leave ‘‘in anysituation in which the employer wouldnot normally provide any such paidleave.’’ (FMLA § § 102(d) (2) (A) & (B).)

These substitution provisions areintended to allow for the specified paidleaves that have accrued but have notyet been taken by an employee to besubstituted for the unpaid leaverequired under FMLA, in order tomitigate the financial impact of wageloss due to family and temporarymedical leaves. The substitutionprovisions assure that an employee isentitled to the benefits of applicablepaid leave, plus any remaining leavetime made available by FMLA on anunpaid basis.

The State of Oregon’s Bureau of Laborand Industries asked for clarification ofwhether the employee or the employerhad the prerogative or control over thedecision to substitute paid leave forFMLA leave. Sommer & Barnardsuggested additional guidance wasneeded on employee substitution wherethe employer does not require it. TheCalifornia Department of FairEmployment and Housingrecommended the rule clearly state thatemployees have the right to substitutepaid vacation during FMLA leave, andsuggested further amendments to allowemployers to require certification forFMLA leave where an employee desiresto use paid vacation leave. TheCalifornia Teamsters Public AffairsCouncil opposed permitting anemployer to force an employee to usepaid vacation or personal leave duringFMLA leave absent a specific requestfrom the employee to substitute suchpaid leave. The Equal EmploymentAdvisory Council suggested theregulations allow employers to restrictsubstitution of paid vacation if theemployer policy normally restricts

vacations to certain times during theyear. Chevron and the AmericanApparel Manufacturers Association, Inc.stated that paid leave should only bepermitted at the employer’s option (ordiscretion). Cincinnati Gas & ElectricCompany suggested that paid leaveshould be available for substitution onlyunder the rules of the plan whichestablished the paid time off.

FMLA’s substitution languageprovides that ‘‘* * * an eligibleemployee may elect, or an employermay require the employee, to substituteany of the * * *’’ appropriate paidleave for any part of the 12-week periodof FMLA leave. Under these terms, if anemployee does not elect to substituteappropriate paid leave when requestingFMLA leave, the employer has the rightto require that the employee do so. Anemployee always has the right torequest, in the first instance, thatappropriate paid leave be substituted.There are no limitations, however, onthe employee’s right to elect tosubstitute accrued paid vacation orpersonal leave for qualifying FMLAleave, and the employer may not limitthe timing during the year in whichpaid vacation may be substituted forFMLA-qualifying absences or imposeother limitations. If the employee doesnot initially request substitution ofappropriate paid leave, the employerretains the right to require it. Anemployer may not override anemployee’s initial election to substituteappropriate paid leave for FMLA leave,nor place any other limitations on itsuse (e.g., minimum of full days or weeksat a time, etc. ). At the same time, in theabsence of other limiting factors (suchas a State law or an applicable collectivebargaining agreement), where anemployee does not elect substitution ofappropriate paid leave, the employeemust nevertheless accept the employer’sdecision to require it, even where theemployee would desire a differentresult. The regulations have beenclarified to address these principles.

The Women’s Legal Defense Fund, 9to 5, National Association of WorkingWomen, AFL–CIO, Food & AlliedService Trades, InternationalBrotherhood of Teamsters, and ServiceEmployees International Union opposedwhat they perceived as unwarrantedregulatory restrictions on the ability tosubstitute paid ‘‘family leave’’ underFMLA, and recommended deletion ofthe restrictive language. We haverevised the language in § 825.207(b) totrack the language of the legislativehistory, which explains the meaning of‘‘family leave’’ in this context. Theeffect of the revision, however, is the

same result as under the terms of theInterim Final Rule.

Sixteen comments raised concernsover the relationship and interactionbetween FMLA leave and absencescaused by on-the-job, workers’compensation injuries, and requestedfurther guidance. The WomenEmployed Institute and the Women’sLegal Defense Fund argued thatworkers’ compensation cannot besubstituted as paid leave for FMLAleave, even if such payments are proxiesfor lost wages. Many employercommenters argued alternatively thatemployers should not only be allowedto count the workers’ compensationabsence as FMLA leave, but they shouldcontinue to be allowed to exercise theirrights under workers’ compensationlaws to require an employee to return towork at restricted or ‘‘light’’ duty. TheEmployers Association of WesternMassachusetts, Inc. requestedclarification of whether insureddisability plans and self-insureddisability plans are similarly considereda form of ‘‘accrued paid leave’’ underFMLA.

An employee who incurs a work-related illness or injury elects whetherto receive paid leave from the employeror worker’s compensation benefits. Anemployee cannot receive both.Therefore, where a work-related illnessor injury also causes a ‘‘serious healthcondition that makes the employeeunable to perform the functions of theposition of such employee’’ within themeaning of FMLA, and the employeehas elected to receive worker’scompensation benefits, an employercannot require the employee tosubstitute, under FMLA, any paidvacation or other leave during theabsence that is covered by paymentsfrom the State workers’ compensationfund. Similarly, an employee cannotelect to receive both worker’scompensation and paid leave benefits.Such an absence can count, however,against an employee’s FMLA leaveentitlement if it is properly designatedat the beginning of the absence asrequired by these regulations. Neitherthe statute nor its legislative historysuggests that time absent from work forwork-related accidents should not runconcurrently for purposes of FMLA andthe State workers’ compensation laws(provided the illness or injury alsomeets FMLA’s definition of ‘‘serioushealth condition’’). Indeed, FMLA’slegislative history suggests that theCongress contemplated this result—indescribing the intended meaning of‘‘serious health condition,’’ theCommittee reports refer to ‘‘injuriescaused by serious accidents on or off the


job’’ (among other examples). On theother hand, payments from a Stateworkers’ compensation fund are notbenefits provided by the employer, norare they a form of ‘‘paid leave’’ providedby the employer for purposes of FMLA’ssubstitution provisions. While the timeabsent from work can simultaneouslycount under both FMLA and Stateworkers’ compensation programs,payments provided by State workers’compensation funds are not considered‘‘accrued paid medical or sick leave’’within the meaning of FMLA. Inaddition, when an employee is receivingpayments from the State workers’compensation fund, the employee maynot elect, nor may the employer requirethe employee, to exhaust any form ofpaid leave provided by the employerduring any portion of the absencecovered by the workers’ compensationpayments. Payments provided underother types of plans covering temporarydisabilities (whether providedvoluntarily through insurance or undera self-insured plan, or required to meetState-mandated disability provisions(e.g., pregnancy disability laws)) are tobe treated similarly under FMLA—thetime may be charged against anemployee’s FMLA leave entitlement(provided employees are properlynotified of the designation at thecommencement of the absence and anygroup health benefits are maintained bythe employer as if the employee hadcontinued to work, as required by theseregulations). But an employee’s receiptof such payments precludes theemployee from electing, and prohibitsthe employer from requiring,substitution of any form of accrued paidleave for any part of the absence coveredby such payments.

As will be discussed in further detailin connection with § 825.702, anemployer is precluded from requiring anemployee to return to work prematurelyin a ‘‘light duty’’ assignment, instead oftaking FMLA leave, if the employeeremains unable to perform any one ormore of the essential functions of theoriginal position and the employee hasnot yet exhausted his or her full FMLAleave entitlement in the 12-monthperiod. The reference point fordetermining an employee’s essential jobfunctions is the position held by theemployee when the need for FMLAleave arises, i.e., when the employee’snotice of the need for leave is given orleave commences, whichever is earlier.An employer may not modify a job toeliminate essential job functions in aneffort to deny an employee his or herFMLA leave rights. On the other hand,FMLA does not prevent the

continuation of lawful policies underState workers’ compensation programsthat discontinue wage replacementpayments if and when an employeerefuses to accept a medically-approvedlight duty assignment. In such a case,the employee may continue on FMLAleave where the employee cannotperform any one or more of the essentialfunctions of the employee’s formerposition, and the employee would havethe right to elect to substituteappropriate paid leave, or continue onunpaid FMLA leave, until the employeehas exhausted his or her 12-week FMLAleave entitlement in the 12-monthperiod. The regulations are clarified inresponse to these comments to addressabsences covered by State workers’compensation laws.

The Chamber of Commerce of theUSA stated that employers should beable to draft paid leave policiesexpansively or restrictively, and if anemployee is unable to use paid leave,the leave will be unpaid. The NationalRestaurant Association similarlysuggested that any substituted paidleave must be taken in accordance withthe employer’s paid leave policies.Fisher & Phillips considered theregulations contradictory andinconsistent with FMLA, because theyallow employees to substitute paidvacation or personal leave for unpaidFMLA leave while prohibitingemployers from imposing anylimitations, yet also state that employeesmay be required to comply withrequirements of the employer’s leaveplan. Fisher & Phillips suggested that allof an employer’s normal restrictions onthe use of paid leave should continue toapply when paid leave is substituted forFMLA leave, because FMLA does notrequire the use of paid leave. Sommer& Barnard and Fisher & Phillips alsoobjected to § 825.207(g), which restrictsan employer’s ability to request noticeand certification for FMLA leave wherethe employee substitutes paid leave andthe employer’s normal leave policies donot require notice or certification (theemployee may only be required underthe Interim Final Rule to comply withthe less-stringent requirements of anemployer’s plan, and not any morestringent notice or certificationrequirements of FMLA, unless the paidleave period is followed by unpaidFMLA leave). These two commentersand United HealthCare Corporationsuggested employers be allowed to denyFMLA leave unless FMLA’s notice andcertification requirements are met,whether the leave is unpaid orsubstituted paid leave, to assureemployers of their statutory rights and

avoid confusion for employees. TheUniversity of California asked that DOLclarify how the employer confirms thatrequested time off to care for an illfamily member or for personal illnessqualifies as FMLA leave if the employercannot confirm the request by asking formedical certification.

In response to the comments, thissection is clarified. When paid leave issubstituted for unpaid FMLA leave, andan employer has less stringentprocedural requirements for taking thatkind of leave than those of FMLA, onlythose less stringent requirements may beapplied. An employee who complieswith the employer’s less stringent leaveplan requirements in such cases maynot have leave for an FMLA purposedelayed or denied on the grounds thatthe employee failed to comply withstricter requirements of FMLA.However, where accrued paid vacationor personal leave is substituted forunpaid FMLA leave for a serious healthcondition, an employee may be requiredto comply with any less stringentmedical certification requirements ofthe employer’s sick leave program.Appropriate revisions have been madein the notice and certificationprovisions of §§ 825.302(g), 825.305(e),and 825.306(c). An employer of coursemay make revisions to its leave programto require notice or certification thatcorresponds to FMLA requirements, ormay treat paid and unpaid leavedifferently, provided the program is notamended in a discriminatory mannerthat treats employees on FMLA leavedifferently from other, similarlysituated, employees.

The State of Nevada’s Department ofPersonnel recommended the regulationsbe revised to allow substitution ofcompensatory time-off for unpaid FMLAleave. The Town of Normal (Illinois)suggested the employer should be ableto require an employee to takecompensatory time for FMLA leave.Montgomery County (Maryland)recommended that DOL’s interpretativeruling that prohibits employers fromusing compensatory time as FMLA leavebe included in the regulations.

The use of compensatory time off isseverely restricted under the Fair LaborStandards Act (FLSA) in ways that areincompatible with FMLA’s substitutionprovisions. First, ‘‘comp’’ time is not aform of accrued paid leave mentioned inthe FMLA or legislative history forpurposes of substitution. It is also not abenefit provided by the employer.Rather, it is an alternative form forpaying public employees (only) forovertime hours worked. The publicemployee’s ‘‘comp time bank’’ is not theproperty of the employer to control, but


rather belongs to the employee. If apublic employee terminatesemployment, any unused comp timemust be ‘‘cashed out.’’ Thus, FMLA’sprovisions allowing an employer tounilaterally require substitution wouldconflict with FLSA’s rules on publicemployees’ use of comp time onlypursuant to an agreement orunderstanding between the employerand the employee (or the employee’srepresentative) reached before theperformance of the work. A publicemployee who has accrued comp timeoff must also be permitted to use thetime ‘‘within a reasonable period aftermaking the request if the use ofcompensatory time does not undulydisrupt the operations of the publicagency’’ (FLSA § 7(o), emphasis added).To the extent that the conditions underwhich an employee may take comp timeoff are contained in an agreement orunderstanding, the terms of theagreement or understanding govern themeaning of ‘‘reasonable period’’ (29 CFR§ 553.25). An agency may turn down anemployee’s request for comp time offunder FLSA if it would be undulydisruptive to the agency’s operations.The employer’s right to control anemployee’s use of comp time, includingauthority to decline a request for its use,would simply be inconsistent withFMLA’s provision authorizing theemployee to elect to substitute paidleave (without qualification as towhether the time taken would beunduly disruptive). While a publicemployee may certainly request the useof comp time under FLSA for an FMLA-qualifying absence, the employer maynot simultaneously charge the FLSAcomp time hours taken against theemployee’s separate FMLA leaveentitlement. To do so would amount tocharging (debiting) two separateentitlements for a single absence.Accordingly, public employers may notuse their employee’s FLSA ‘‘comp time’’banks as a form of ‘‘accrued paid leave’’for purposes of substitution underFMLA, and this section is so revised.

Designating Paid Leave as FMLA Leave(§ 825.208)

This section of the Interim Final Ruleplaced responsibility on the employer todesignate all FMLA leave taken,whether paid or unpaid, as FMLA-qualifying, based on informationobtained directly from the employee.Because employees may notspontaneously explain the reasons fortaking their accrued paid vacation orpersonal leave, the regulations allowedemployees to request to use their paidleave without necessarily stating that itwas for an FMLA purpose, and if the

employer rejected the request under itsnormal leave policies, the eligibleemployee would be expected to comeforward in response to the employer’sfurther inquiry with additionalinformation to enable the employer todetermine that it is FMLA leave (whichcould not be denied). Employers arerequired to determine and designate‘‘up front’’ before leave starts whetherany paid leave to be taken countstoward an employee’s FMLA leaveentitlement, and so notify the employee‘‘immediately’’ upon learning that itqualifies as FMLA leave (in accordancewith the employer’s ‘‘specific notice toemployees’’ obligations under§ 825.301(c)). Only where leave hadalready begun and the employer hadinsufficient information to determinewhether it qualified under FMLA couldit be retroactively designated as FMLAleave under the Interim Final Rule.Employers were precluded in all casesfrom retroactively designating any paidleave taken as FMLA leave once theleave had ended and the employee hadreturned to work.

This section was intended to resolvethe question of FMLA designation asearly as possible in the leave requestprocess, to eliminate protracted ‘‘afterthe fact’’ disputes. The regulationsexpected disputes to be resolvedthrough discussions between theemployee and the employer at thebeginning of the leave rather than at theend. Because of the possible ‘‘stacking’’of unpaid FMLA leave entitlements inaddition to an employer’s pre-existingleave plan, it appears that someemployers that wished to mitigate theirexposure to extended leaves byemployees have been motivated by theprovisions in the Interim Final Rule totry to determine and count all possibleFMLA-qualifying absences as FMLAleave (by whatever means, includingthrough overly-intrusive inquiries ofemployees when they request to usetheir accrued paid leave).

The Commission on the Status ofWomen, Equal Rights Advocates, andGwen Moore, Majority Whip, CaliforniaLegislature objected to an employer’sability to inquire into the purposes ofthe employee’s paid vacation orpersonal leave to determine if itqualifies under FMLA, because it allowsthe employer unfettered discretion toinvade the employee’s privacy.Federated Investors and MichiganConsolidated Gas Company noted thatextracting the reason for an employee’sneed to be away from work couldviolate the Americans With DisabilitiesAct. Many employer groups, in contrast,felt that the employer should bepermitted to conduct a reasonable

investigation to determine if leavequalifies as FMLA leave (includinginquiring of persons other than theemployee for purposes of verification,such as the employee’s physician).

Blue Cross and Blue Shield of Texas,Inc. and LaMotte Company pointed outthat circumstances could arise wherethe unduly restrictive structure of theregulations disadvantages employees,such as where an employee is about tobe disciplined for attendance problemsand time previously missed and isprecluded, due to the bar againstretroactive designation of FMLA leave,for asserting FMLA leave as a defense.Burroughs Wellcome Company,Massmutual Life Insurance Company,and several others noted the restrictivestructure was inconsistent with otherregulatory provisions that allow up to15 days from employees to furnishmedical certification to substantiateFMLA leaves—where leave isunplanned and of relatively shortduration or if the employee or healthcare provider delay processing thecertification, the employee could beback at work before the employer hadsufficient information to confirm thatthe leave qualified under FMLA and theemployee would lose FMLA’s benefitsand protections. Several commenters(including the Texas Department ofHuman Services) suggested thatemployers be allowed to designateFMLA leaves immediately upon theemployee’s return to work. William M.Mercer, Inc. suggested permitting anemployer to designate leave asqualifying under FMLA after it hasended if the inability to designate itduring the leave resulted from theemployee refusing to give neededinformation, or providing wronginformation. The Chamber of Commerceof the USA suggested that employees berequired to declare their intention totake FMLA leave at the beginning of anFMLA-qualifying period, and thatemployers be allowed to considerinformation from third parties and beallowed to designate leave as FMLA-qualifying within 90 days following theend of a leave period. The EqualEmployment Advisory Councilsuggested similar approaches withrelated rationales, noting in particularthat inquiring into the reasons foremployee leave requests for vacationand personal days was having a negativeimpact on employer-employee relations.EEAC recommended that employees berequired to give notice of FMLA leave,and an employer’s request for medicalcertification should be deemed aprovisional designation of FMLA leave


(subject to the employee satisfying thecertification process).

Sommer & Barnard recommended theregulations be amended to provide thatwhen an employer policy requires anemployee to designate paid leave asFMLA leave, the employee shall provideFMLA notice and certification (ifapplicable). They noted that when§ 825.207(g) (which exempts anemployee using paid leave that is notfollowed by unpaid FMLA leave fromFMLA’s notice and certificationrequirements) and § 825.208(a)(1)(relieves an employee using paid leavefrom any obligation to explain thereason for the leave unless the employerdenies the request) are linked with§ 825.208(b) (FMLA determinations tobe based only on information furnisheddirectly by the employee), the ruleseffectively deprive an employer of theopportunity to make an informeddetermination that paid leave will beused for FMLA-qualifying reasons andshould be counted as FMLA unless theemployee volunteers sufficient accurateinformation. Moreover, this structurecould encourage employees to withholdinformation and misrepresent facts toexpand the aggregate of employer-paidleave and FMLA’s unpaid leaveentitlement.

After careful consideration of themany comments and objections receivedon this section, the Department hasrevised the regulations along thefollowing lines. Designation of leave asbeing FMLA-qualifying is still expectedto take place ‘‘up front’’ wheneverpossible. The employer’s notification tothe employee of the designation may beoral, but must be confirmed in writing,no later than the next regular payday(unless less than a week remains untilthe next payday). The written noticemay be in any form, including anotation on the pay stub.

If the employer has the requisiteknowledge to determine that a leave isfor an FMLA reason at the time theemployee either gives notice of the needfor leave or it commences, and theemployer does not notify the employeeas required at that time that the leave isbeing designated as FMLA leave, theemployer may not then designate theleave as FMLA leave retroactively; itmay designate only prospectively, as ofthe date of notification to the employeeof the designation, that the time is beingcharged against the employee’s FMLAleave entitlement. The employer maynot designate leave that has alreadybeen taken as FMLA leave after theemployee returns to work, with twoexceptions: (1) if an employee is out foran FMLA-qualifying reason and theemployer does not learn of the reason

for the leave until the employee returnsto work, the employer may designate theleave as FMLA leave promptly (withintwo business days) upon the employee’sreturn to work (including a provisionaldesignation based on information fromthe employee, subject to confirmationupon the employer’s receipt of medicalcertification if the employer requires itand has previously notified theemployee of the requirement); or (2) ifthe employer has provisionallydesignated the leave under FMLA and isawaiting receipt from the employee ofmedical certification or other‘‘reasonable documentation’’ allowed bythis amended rule to confirm that theleave was FMLA-qualifying, or theemployer and employee are in theprocess of obtaining second or thirdmedical opinions. If the employer doesnot designate leave as FMLA leave in atimely manner as required by theregulations, the employer may not laterdesignate the absence as FMLA leaveabsent the circumstances specifiedabove. Similarly, the employee is notentitled to the protections of the FMLAif the employee gives notice of thereason for the leave later than two daysafter returning to work. The regulationsare also clarified that if an absencewhich begins as other than FMLA leavelater develops into an FMLA-qualifyingabsence (e.g., employee takes a two-week vacation for a ski trip and suffersa severe accident requiringhospitalization beginning the secondweek), the entire portion of the leaveperiod that qualifies under FMLA maybe counted as FMLA leave (e.g., thesecond week). Employers must still basetheir designations of FMLA leave oninformation obtained directly from theemployee or the employee’sspokesperson (in the event theemployee is incapacitated or otherwisedesignates a point of contact, e.g., animmediate family member). If anemployee does not provide informationregarding the reason for the leave, leavemay be denied.

Designating leave as FMLA-qualifyingdoes not block greater ADA rights. See§ 825.702.

Benefit Entitlements During FMLALeave (§ 825.209)

Eligible employees who take FMLAleave are entitled to be restored, at theend of their leave, to the same jobs theyheld when the leave commenced, or toan equivalent job with equivalentemployment benefits, pay, and otherterms and conditions of employment.The taking of FMLA leave cannot resultin the loss of any employment benefitaccrued before the leave began;however, nothing in FMLA entitles

restored employees to the accrual ofseniority or employment benefits duringthe leave, or to any right, benefit, orposition of employment other than whatthey would have been entitled to hadthey not taken the leave. (§§ 104(a)(1),(2), and (3) of FMLA.) In addition,during a period of FMLA leave, theemployer must maintain coverage underany ‘‘group health plan’’ at the level andunder the conditions coverage wouldhave been provided if the employee hadcontinued to be employed continuouslyduring the leave. (§ 104(c)) Thelegislative history explains that this isstrictly a maintenance of benefitsprovision. FMLA does not require anemployer to provide health benefits if itdoes not do so at the time the employeecommences leave. The legislativehistory notes further, however, that if anemployer establishes a health benefitsplan during an employee’s leave,FMLA’s provisions should be read tomean that the entitlement to healthbenefits would commence at the samepoint during the leave that employeeswould have become entitled to suchbenefits if still on the job.

Several commenters requested furtherclarification in this section on theimpact on continued FMLA leave rights,maintenance of health benefits, andrestoration to employment when the jobof an employee on FMLA leave iseliminated, such as through adepartment-wide downsizing or layoff.FMLA’s legislative history explains thatthe explicit limitation in FMLA§ 104(a)(3) means that if, but for beingon leave, an employee would have beenlaid off, the employee’s right toreinstatement is whatever it would havebeen had the employee not been onleave when the layoff occurred. In orderto clarify this point, the regulations arerevised at § 825.211(c) to provide that,except as required by COBRA and for‘‘key’’ employees, an employer’sobligation to maintain health benefitsduring FMLA leave and to restore anemployee after the planned leave underFMLA ceases if and when theemployee’s employment relationshipwould have terminated (e.g., theemployee’s position is eliminated aspart of a nondiscriminatory reduction inforce, i.e., no transfer or reassignmentoption is available to similarly-affectedemployees not on FMLA leave); theemployee informs the employerunequivocally of the employee’s intentnot to return from leave (includingwhen the leave would have begun if theemployee so informs the employerbefore the leave begins—unless theemployee is on paid leave during theperiod); the employee fails to return


from leave, and thereby terminatesemployment; or the employee stays onleave (i.e., is unable to return to work)after exhausting his or her FMLA leaveentitlement in the 12-month period.

The Chamber of Commerce of theUSA suggested clarifications tounambiguously state that plan changessuch as premium increases, increaseddeductibles, etc., which apply to activeemployees also apply to employees whoare on FMLA leave. This requirementhas been clarified.

A number of commenters requestedspecific guidance in this sectionregarding how particular fringe benefitplans or practices with respect to‘‘cafeteria plans,’’ ‘‘flexible spendingaccounts,’’ and the ‘‘continuation ofhealth benefits provisions’’ of title X ofthe Consolidated Omnibus BudgetReconciliation Act of 1985 (COBRA)interact with FMLA, particularly inregard to the tax implications of suchprograms. These issues cannot beresolved through FMLA’s implementingregulations, because they are within theauthority of the Internal RevenueService (IRS). Questions regarding thesematters should be directed to the IRS.(See Notice 94–103 in Internal RevenueBulletin No. 1994–51, dated December19, 1994.)

Nationsbank Corporation (TroutmanSanders) and Southern ElectricInternational, Inc. (Troutman Sanders)stated that the rule failed to specifywhether family members whosecoverage is dropped at the employee’selection during FMLA leave may berequired to requalify for coverage uponthe employee’s return to work, andsuggested that FMLA was not intendedto exempt non-employee insureds fromrequalification. An employee is entitledto be restored to the same level ofbenefits which the employee receivedprior to starting the leave, includingfamily or dependent coverages, withoutany qualifying period, physicalexamination, exclusion of pre-existingconditions, etc., and the regulations areclarified to reflect this requirement.

The UAW International Unionrecommended that this section beamended to state that an employer maynot treat workers who take FMLA leavein a manner that discriminates againstthem—e.g., if workers on other forms ofpaid or unpaid leave are entitled to havecoverage maintained for other, non-health plan benefits (life insurance,disability insurance, etc.), then theemployer is required to follow itsestablished practice or policy formaintaining these benefits for workerson paid or unpaid FMLA leave. This isaddressed under the ‘‘prohibited acts’’section of the regulations, at § 825.220.

This section has been clarified toaddress employees’ entitlements toholiday pay and other benefits while onFMLA leave.

The law firm of Alston and Birdrecommended that the term grouphealth plan should not include non-employment related health benefits paiddirectly by employees throughvoluntary deductions, e.g., individualinsurance policies. We agree with therecommendation, and language has beenadded to § 825.209(a) to exclude suchbenefits from the definition of grouphealth plan, and to make clear that anemployer is not responsible formaintaining or restoring such benefitsfor employees who take FMLA leave.

Employee Payments of Health BenefitPremiums (§ 825.210)

Because health benefits must bemaintained during FMLA leave at thelevel and under the conditions coveragewould have been provided if theemployee had continued to work, anyshare of group health plan premiumswhich the employee had paid beforestarting FMLA leave must continue tobe paid by the employee during theleave. Any changes to premium ratesand levels of coverages or otherconditions of the plan that apply to theemployer’s active workforce also applyto eligible employees on FMLA leave.The regulations discuss optionsavailable to employers for collectingpremium payments from employees onFMLA leave. Employers must giveemployees advance written notice of theterms for payment of such premiumsduring FMLA leave, and an employermay not apply more stringentrequirements to an employee on FMLAleave than required of employees onother forms of unpaid leave under theterms of the Interim Final Rule.

One option referenced in§ 825.210(b)(4) provided that anemployer’s existing rules for paymentby employees on ‘‘leave without pay’’could be followed, providedprepayment (before the leavecommenced) was not required. TheState of Oregon’s Bureau of Labor andIndustry questioned whether existingemployer policies that formerly requiredan employee to assume responsibilityfor payment of all premiums for grouphealth plan coverage during unpaidleave (both employer and employeeshares) could continue to operate underFMLA, as § 825.210(b)(4) appeared toimply, or did §§ 825.210 (b)(4) and (e)refer only to the manner of paymentrather than the duty to pay thepremiums itself? The paymentobligations of employers for grouphealth plan premiums during FMLA

leave are subject to the same conditionsthat coverage would have been providedif the employee had continued to work;thus, employers cannot increase theemployee’s share of premiums duringunpaid FMLA leave. The rules referredonly to the manner of collectingpremium payments.

Nationsbank Corporation andSouthern Electric International, Inc.(Troutman Sanders) questioned whetheran employer may use different optionswith different employees on a case-by-case basis for recovery of premiumsfrom employees during unpaid FMLAleave or whether the employer mustchoose one option and apply ituniformly. The rules do not prohibit anemployer from using different optionson a case-by-case approach to meet theparticular needs of employees and theemployer, provided the employer doesnot act in a discriminatory manner.

The Chamber of Commerce of theUSA opposed the requirement thatemployer policies on FMLA leave beequal to other leaves without payprovided by the employer, suggestingthere is no statutory basis for this rule.Under the Interim Final Rule, sections105 and 402 of the Act were construedin § 825.210(e) of these regulations andelsewhere to prohibit an employer fromrequiring more of employees (orproviding less to employees) who takeunpaid FMLA leave than the employer’spolicies require of (or provide to)employees on other forms of unpaidleave. We continue to believe that thisregulation represents the properconstruction of the Act.

Multi-employer Health Plans (§ 825.211)Seven comments were received on

this section, which describes specialrules for maintenance of group healthbenefits under multi-employer healthplans. The Associated GeneralContractors of America (AGC)contended that DOL wrongly concludedthat employers under multi-employerplans must continue to makecontributions during FMLA leave andthat the legislative history, on whichDOL relies, is internally inconsistent.AGC also urged that DOL clarify theFMLA rights of an employee who wouldhave been laid off by a contributingemployer during a period of FMLAleave but who might also have foundemployment with another contributingemployer during the same period. Evenif the individual might have found otheremployment with another contributingemployer, AGC contends that theemployer of the employee when theFMLA leave commenced has no furtherobligations under FMLA beyond thedate on which he or she would have


been laid off. Constructors Associationof Western Pennsylvania filed similarviews on this point.

These last comments reflect a properinterpretation of FMLA, as reflectedthroughout the regulations. Coverage bythe group health plan must bemaintained at the level coverage wouldhave been provided if the employeecontinued to be employed instead oftaking FMLA leave. As discussedelsewhere in these regulations, thismeans, for example, that if, but for beingon leave, an employee would have beenlaid off, the employee’s rights underFMLA, including the requirements tomaintain group health plan coverage,are whatever they would have been hadthe employee not been on leave whenthe layoff occurred. And, of course,these FMLA obligations apply only withrespect to an ‘‘eligible employee’’ whohas met the length of employment andhours of service tests. Neither theemployer nor the multiemployer planhas any obligation under FMLA withrespect to persons who are not ‘‘eligibleemployees.’’ The regulations are revisedto clarify that group health coverageunder a multiemployer plan must bemaintained for an employee on FMLAleave at the same level coverage wasprovided when the leave commenceduntil either: (1) the FMLA leaveentitlement is exhausted; (2) theemployer can show that the employeewould have been laid off and theemployment relationship terminated; or,(3) the employee provides unequivocalnotice of an intent not to return to work.With respect to the remaining commentson this section, we consider that thelegislative history, as well as theregulations, accurately reflect the intentof the Congress that multiemployerplans must receive contributions duringthe period of an employee’s FMLAleave, and that the rate of contributionis the same amount as if the employeewere continuously employed, at thesame schedule, at the same wage orsalary, and otherwise under the sameterms and conditions as he or shenormally worked before going on leave,unless a contrary result can be clearlydemonstrated by the employer (or by theplan, where appropriate).

Failure to Timely Pay Health PlanPremiums (§ 825.212)

This section provided that anemployer’s obligation to maintain grouphealth benefits ceases after anemployee’s premium payment is morethan 30 days late. The preambleexplained that coverage had to bemaintained during the 30-day graceperiod. If an employer chose to dropgroup health plan coverage because an

employee failed to make timelypremium payments, all other FMLAobligations continue to apply during theFMLA leave, including the requirementto restore the employee to an equivalentposition after the leave with fullcoverage and benefits equivalent towhat the employee would have had ifleave had not been taken and thepremium payment had not been missed.An employee returning from FMLAleave may not be required to meet anyqualification requirements imposed bythe plan, including any new preexistingcondition waiting period, waiting for anopen season, or passing a medicalexamination for coverage to bereinstated.

Acrux Investigation Agency, AustinHuman Resource ManagementAssociation, HCMF (long term carefacilities), K-Products, Inc., PathologyMedical Laboratories (Riordan &McKinzie), Equal Employment AdvisoryCouncil, and Society of ProfessionalBenefit Administrators opposedrequiring the employer to reinstatehealth coverage (or dependent familymember coverage) when the employeefailed to make timely premiumpayments. In effect, they argue,individuals who take FMLA leavereceive preferential treatment overactive employees who decide to dropcoverage and then request reinstatementof coverage, who are then subject to pre-existing condition waiting periods.

FMLA § 104(a)(2) states clearly thatthe taking of FMLA leave shall notresult in the loss of any employmentbenefit accrued prior to the date onwhich the leave commenced. To hold areturning employee to a requirementthat he or she requalify (or possibly notqualify) for any benefits which wereenjoyed before going on FMLA leavewould result in the loss of anemployment benefit as a result of takingthe FMLA leave. Moreover, theemployees would not be restored to anequivalent job with equivalent benefitsupon their return from FMLA leave ifthey were made subject to pre-existingcondition waiting periods. These resultswould clearly violate FMLA’s statutorystandards.

The Service Employees InternationalUnion and the AFL–CIO recommendeda provision requiring the employer togive a notice of delinquency to theemployee when group health planpremiums are late, which would givethe employee a reasonable opportunityto cure the delinquency before coverageis dropped. The Women’s Legal DefenseFund noted that under the interim rules,an employer could stop makingpremium payments on the employee’sbehalf if the employee’s check is lost in

the mail. WLDF also suggested that theemployer be required to notify theemployee in writing and give theemployee an additional 30 days inwhich to cure the delinquency, citingregulations promulgated by OPM toimplement Title II of FMLA as a model(5 CFR § 890.502; 58 Fed. Reg. 39607(July 23, 1993)). The CaliforniaDepartment of Fair Employment andHousing also supported a bar againstdiscontinuing coverage without noticeto the employee.

The Department has decided to adoptthe suggestions requiring notification toemployees before an employer may dropgroup health plan coverage because of alack of timely premium payments.Under the OPM regulations cited in thecomments, the employing office mustnotify an employee if payment is notreceived by the due date thatcontinuation of coverage depends uponreceipt of premium payments within 15days (longer for employees overseas)after receipt of the notice (or 60 daysafter the date of the notice if returnreceipt certification is not received bythe employing office). DOL is adoptinga similar requirement: 15 days noticemust be given that coverage will ceaseif the employee’s premium payment ismore than 30 days late.

Pathology Medical Laboratories(Riordan & McKinzie) suggested that therule should allow insurance coverage tobe cancelled retroactively to the firstdate of the period to which the unpaidpremium relates. Fisher & Phillips,Sommer & Barnard, William M. Mercer,Inc., and Florida Citrus Mutual filedsimilar objections to the 30-day graceperiod during which group health plancoverage must be maintained. TheCalifornia Department of FairEmployment and Housing suggested arule allowing employers to discontinuecoverage when an employee is morethan one regular pay period late, as mostinsurance is paid in advance on amonthly basis and the current 30-dayrule could result in employers having topay two months of free coverage whenthe employee fails to make the premiumpayments. The State of Nevada’sDepartment of Personnel said it wasunclear whether the employer’sobligation to maintain coverage, andunder a self-insurance plan to payclaims, only extends for the 30-daygrace period, contending an inequityexists for an employer with a self-insured plan to pay claims despite thedebt owed by a non-returning employeewhile not placing the same requirementon an employer with a fully-insuredplan. Wessels & Pautsch suggested thata portion of the burden for maintaininghealth insurance should be shared by


the insurance provider, e.g.,qualification requirements orpreexisting condition waiting periodscould be waived when an employeefails to make premium payments. CreditUnion National Association, Inc.similarly suggested that insurancecompanies be mandated to waive theserequirements. The American ApparelManufacturers Association, Inc.expressed concern that the rule createdan obvious disincentive for employeesto maintain their portions of premiumsduring FMLA leave, because they knowtheir coverage must be maintained bythe employer, and suggested thatemployees be held accountable to theiremployers for reasonable administrativecosts associated with reinstatingemployees’ health coverage as anincentive to the employees to continuepaying their share of premiums. TheChamber of Commerce of the USAconcurred with the 30-day grace periodbut suggested clarification that theemployer (or health plan insurer) mayhold payment of claims under thehealth plan until the premium paymentis made for the coverage period towhich the claim relates. EqualEmployment Advisory Council notedthat some employees elect not tocontinue health premiums while onFMLA leave, and do not always wantcoverage reinstated on the first day ofreturn because they would prefer not toincur the immediate cost of premiumpayments. They recommended thatbenefits be reinstated on the day ofreturn if the employee resumespremium payments (if applicable); and,if the employee does not wish to resumecoverage on the day of return, theemployer should be allowed to reinstatecoverage on the date the employeerequests such reinstatement, providedthe employee satisfies all the normalconditions that an employee not onFMLA leave would incur wheninitiating group health plan coverage.

As noted above, several revisions areincluded in the final rule in response tothe comments received on this section.With respect to voluntary action byemployees who elect to withdraw fromtheir group health plan coverage duringFMLA leave, and request reinstatementat a desired future date, if theirdecisions are truly voluntary and futurereinstatement on the requested date isnot barred by the terms of the plan orthe employer, FMLA would not prohibitsuch employee-employer arrangements.However, the employee may not berequired to requalify for any benefitsenjoyed prior to the start of FMLA leavewithout violating the express terms ofFMLA § 104(a)(2).

Under the final rule as revised, inorder to drop group health plancoverage for an employee whosepremium payment is late, the employermust provide written notice to theemployee that the payment has not beenreceived 15 days before coverage willcease. If the employer has establishedpolicies regarding other forms of unpaidleave that permit the employer to ceasecoverage retroactively to the first date ofthe period to which the unpaidpremium relates, the employer maycease the employee’s coverageretroactively in accordance with thatpolicy, provided the 15-day notice wasgiven. In the absence of such a policyapplicable to other forms of unpaidleave, coverage for the employee ceasesat the end of the 30-day grace periodafter the payment was due, again onlyif the required 15-day notice has beenprovided. The same rules would applyto payment of claims under self-insurance plans.

With respect to the remainingcomments on this section, theDepartment is making no furtherchanges. FMLA regulates themaintenance of group health coverageby employers for periods of qualifyingFMLA leave, but does not extendauthority to DOL to enable requiringinsurance carriers to waive provisionsin their existing contracts withemployers or to otherwise bear a portionof the burden for maintaining healthinsurance for employees who takeFMLA leave. The suggestion thatemployees be held accountable toemployers for reasonable administrativecosts associated with reinstatingemployees’ health coverage as anincentive for them to continue payingtheir share of premiums similarlycannot be adopted. Employees whoreturn from FMLA leave are entitled tobe restored to the same or an equivalentposition with equivalent benefits.Requiring an employee to pay more forthe same level of benefits enjoyedpreviously is not ‘‘equivalent’’ andwould violate FMLA.

Recovery of Premiums (§ 825.213)FMLA § 104(c)(2) allows employers in

certain cases to recapture the premiumspaid for maintaining employees’ grouphealth plan coverage during periods ofunpaid leave under FMLA if theemployees fail to return to work afterthe leave period to which the employeeis entitled has expired. This recaptureprovision does not apply to ‘‘key’’employees who are denied restorationunder FMLA § 104(b), nor to anyemployee who cannot return to workbecause of the continuation, recurrence,or onset of a serious health condition—

either the employee’s own or that of animmediate family member (spouse,child, or parent) for whom they areneeded to care, or due to othercircumstances beyond the control of theemployee. An employer may requiremedical certification to support anemployee’s claim that the qualifyingserious health condition exists. Thissection of the regulations described thestatutory provisions and providedexamples of other circumstances beyondthe control of the employee. Includedwas a provision that an employee mustreturn to work for at least 30 calendardays to be considered to have ‘‘returnedto work’’ for purposes of this provision.Because the statute specifies that therecovery of premiums applies to ‘‘anyperiod of unpaid leave under § 102’’when the circumstances permit, the rulestated that an employer may not recoverits share of health insurance premiumsfor any period of FMLA leave coveredby paid leave. Additional guidance wasincluded in § 825.213(f) concerning‘‘non-mandatory’’ (i.e., other than‘‘group health plan’’) benefits, e.g., lifeand disability insurance, in an effort toalert employers of the possible adverseconsequences of allowing such ‘‘non-mandatory’’ benefits to lapse during aperiod of unpaid FMLA leave and theemployer’s ability to meet FMLA’srequirement to fully restore allemployment benefits (not just grouphealth plan coverage) to eligibleemployees who return from qualifyingFMLA leave.

Several commenters took issue withthe underlying statutory provisionsdiscussed in this section, over whichDOL has no control. Those commentswill not be addressed.

The ERISA Industry Committeecommented that providing foremployers to collect premiums fromnon-returning employees provides nopractical benefit to employers,suggesting that alternatives be madeavailable such as refundable deposits oradvance payments to cover the leaveperiod (advance or ‘‘pre-’’ payment wasspecifically prohibited by§ 825.210(b)(4) of the Interim FinalRule). Pima Federal Credit Unionsimilarly viewed the rule asunrealistic—an employee normallycannot or will not repay and legal actionby the employer creates destructive,unfavorable publicity and ‘‘ill-will,’’harming employee morale. LoralDefense Systems—Arizona stated it isnot feasible for most employers torecover their portions of healthinsurance premiums unless theemployee voluntarily agrees toreimbursement arrangements.


Nationsbank Corporation (TroutmanSanders) commented that the interimrules do not state whether an employermay use a different option to recoverpremium payments for other welfarebenefits, such as disability insurance,than the one selected for recoveringhealth premiums, or whether it mustchoose one option for recovering alltypes of premiums. The commenterrecommended that employers beallowed flexibility in seekingrepayment, to maximize recoverypotential. The FMLA regulations do notrestrict the employer’s available optionsfor recovery. For example, a repaymentschedule of partial payments stretchedover extended pay periods to accountfor individual employees’ needs andcompensation arrangements would notbe prohibited.

Six commenters (9 to 5, NationalAssociation of Working Women;Federally Employed Women; Women’sLegal Defense Fund; Cumberland-PerryAssociation for Retarded Citizens;American Federation of Teachers/National Education Association; and theSociety for Human ResourceManagement) commented on the 30-day‘‘returned to work’’ rule in this section.The American Federation of Teachers/National Education Association and theWomen’s Legal Defense Fund suggesteda single workweek be used (WLDFstated that FMLA provides no basis toallow an employer to recover premiumswhen an employee returns to work forless than 30 days). In contrast, theSociety for Human ResourceManagement said that 30 days were tooshort to determine whether an employeeintends to return to work for the longterm and recommended 60 days;Cumberland-Perry Association forRetarded Citizens also suggested 60days, or some other demonstration ofgood faith attempt to return to work toprotect employers from manipulativeemployees. Federally EmployedWomen, and 9 to 5, NationalAssociation of Working Women statedthe 30-day period had no basis underthe statute and recommended insteadlanguage that would create a rebuttablepresumption that an employee’s failureto return is not due to a serious healthcondition, which could then beovercome by a showing that the failurewas due to a serious health condition orother circumstances beyond theemployee’s control. (WLDF suggestedsimilar rebuttable presumptionlanguage.)

In spite of requests from both sides ofthis issue, the ‘‘returned to work’’definition will remain at 30 days. As thediscussion in the legislative history onmaintenance of health benefits during

FMLA leave suggests, the purpose of theAct is to provide ‘‘job-protected’’ leaveto eligible employees for the reasonsthat qualify under the Act. Beingrestored to the original or an equivalentposition of employment after returningfrom FMLA leave is central to the leaveentitlement provisions, and suggests, ina temporal sense, long-term or ‘‘quasi-permanence.’’ Thus, the 30-dayrequirement is not unreasonable. Inaddition, if an employee transfersdirectly from taking FMLA leave toretirement (or such a transfer occursduring the first 30 days after theemployee returns to work), theemployee is considered to have returnedto work.

The Chamber of Commerce of theUSA opposed the rule that prohibits anemployer from recovering premiumspaid to maintain group health coverageif the employee does not return to workfor reasons beyond the employee’scontrol, e.g., the employee is needed tocare for a relative or individual with aserious health condition other than animmediate family member. LancasterLaboratories requested more definitionof events that qualify as ‘‘othercircumstances beyond the employee’scontrol.’’ The Women’s Legal DefenseFund also criticized the inclusion ofexamples in the negative, i.e., ones thatdo not (or can never) qualify ascircumstances beyond the employee’scontrol.

Examples of ‘‘circumstances beyondthe employee’s control’’ have beenclarified in the regulations. A mother’s,or a father’s, decision not to return towork to stay home with a healthynewborn child would not be considereda circumstance beyond the employee’scontrol. On the other hand, if thenewborn child has a serious healthcondition, such as serious birth defectsrequiring immediate surgery, a parent’sdecision not to return to work in sucha case would be a circumstance beyondhis or her control.

Kaiser Permanente noted theregulations referred only to situationsinvolving requalification for benefits,but omitted situations where an eventcovered by a particular kind ofinsurance occurs while the employee ison unpaid FMLA leave and coveragehas lapsed during the leave. Thecommenter requested furtherconsideration be given to explainingthis aspect of FMLA. In one examplegiven by the commenter, an employee ison unpaid leave and there is nocontinuation of life insurance during theleave. The commenter asked whatbenefits, if any, the beneficiary wouldbe entitled to if the employee diedduring the leave. In the second example,

disability insurance is discontinued foran employee who takes unpaid FMLAleave to care for a spouse or parent witha serious health condition and theemployee becomes disabled during theleave. Can the employee be denied anydisability coverage for the condition?

Under FMLA’s ‘‘restoration toposition’’ employment and benefitsprotection provisions (§ 104 of the Act),there is no obligation to maintain ‘‘non-mandatory’’ (other than group healthplan) benefits during a period of FMLAleave by operation of FMLA itself;therefore, an employer would not haveto incur expenses or pay for theconditions occurring during the periodof unpaid leave when coverage lapsedin the two examples given. However, anemployer could not exclude any benefitpreviously enjoyed by the employeewho returns to work after the leave.Accordingly, the returning employee inthe second example could not be denieddisability coverage because of anycondition which arose during the leaveand corresponding lapse of coverage.The employer would be responsible forproviding benefits to the employeeequivalent to the level enjoyed by theemployee prior to starting the leave,regardless of any qualifications imposedby the plan.

Pathology Medical Laboratories(Riordan & McKinzie) questioned theintent of the provision in § 825.213(e) ofthe Interim Final Rule requiring a self-insured plan to provide benefits duringperiods in which the employee failed topay the premium. In addition to beingobligated for the payment of coveredclaims incurred during a period forwhich the employee paid the premiums,a self-insured plan cannot denypayment of claims during the applicablegrace period provided by § 825.212(a),i.e., in the absence of a specific policyfor other forms of unpaid leave,coverage for the employee must bemaintained during the grace period andmay only cease at the end of the 30-daygrace period (provided the required 15-day notice has been provided).

Fisher & Phillips noted that thedefinition of ‘‘employment benefits’’ in§ 825.800 includes ‘‘non-ERISA’’ plans.If an employer makes premiumpayments on behalf of employees onFMLA leave who participate in a non-ERISA plan, the plan may be convertedto ERISA status.

The definition of ‘‘employmentbenefits’’ contained in the interim rulewas based on FMLA’s statutorydefinition of the same term in § 101(5).However, as discussed above, plansmeeting the specific criteria in§ 825.209(a) will be excluded fromFMLA’s definition of covered


‘‘employment benefits,’’ to be consistentwith a similar narrow exceptionfollowed under ERISA. Maintenance ofsuch individual health insurancepolicies which are not considered a partof the employer’s group health plan (asnewly defined) are the soleresponsibility of the employee, whoshould make necessary arrangementsdirectly with the insurer for payment ofpremiums during periods of unpaidFMLA leave.

Notwithstanding these provisions, ifan employer’s payment of health orwelfare benefit premiums (as required tocomply with FMLA) changes the planfrom a non-ERISA to an ERISA-coveredplan, the result is unavoidable in lightof the statutory provisions.

William M. Mercer, Inc. suggestedthat the rule specify more clearly that anemployer’s ability to recover premiumsfor non-health benefits includes boththe employer and employee share,regardless of the reason for anemployee’s failure to return to work.

An employer may elect to paypremiums continuously (to avoid alapse of coverage or otherwise) for ‘‘non-health’’ benefits (e.g., life insurance,disability insurance, etc.). Like theprovision in section 825.212(b)regarding health benefits, this section(as restructured and revised for clarity)provides a new paragraph (b) that wheresuch payments have been made, and theemployee returns to work at theconclusion of leave, the employer isentitled to recover only the costsincurred for paying the employee’sshare of any premiums (regardless of anemployee’s argument that he or she didnot want coverage during the leave). Ifthe employee fails to return to work forany reason, the employer may alsorecover only the employee’s share ofany non-health benefit costs incurred bythe employer.

Rights on Returning to Work (§ 825.214)FMLA’s employment and benefits

protection requires that an eligibleemployee be restored, upon return fromFMLA leave, to the original positionheld by the employee when the leavecommenced, or to an equivalentposition with equivalent benefits, pay,and other terms and conditions ofemployment.

Equal Rights Advocates recommendedthat the regulations interpret FMLA’srestoration rights to require that theemployer first try to reinstate theemployee to the same position, and,only if it is not available, restore theemployee to an ‘‘equivalent’’ position.Women Employed Institute andWomen’s Legal Defense Fund suggestedthat employers be required to notify

employees no later than the last day ofleave if an employer does not intend torestore an employee to the sameposition.

The State of Oregon’s Bureau of Laborand Industries asked if an employee’sright to reinstatement under FMLApersists ad infinitum until the employeeis offered an equivalent position, or if itis ever extinguished (e.g., where theformer job has been eliminated duringthe leave and no equivalent positionsare available when the employee’s leaveends). Fisher & Phillips suggested thatthe regulations should enable anemployer to deny reinstatement to areturning employee if it candemonstrate that the job was eliminatedfor business reasons (citing, forexample, where the employee’s workcan be performed by other workers) andno other ‘‘equivalent’’ job is availablefor the employee.

As explained in FMLA’s legislativehistory, the standard for evaluating job‘‘equivalence’’ under FMLA parallelsTitle VII’s general prohibition againstjob discrimination (42 U.S.C. 2000e–2(a)(1)), which prohibits‘‘discriminat[ion] * * * with respect to[an employee’s] compensation, terms,conditions, or privileges ofemployment,’’ and is intended to beinterpreted similarly:

The committee recognizes that it will notalways be possible for an employer to restorean employee to the precise position heldbefore taking leave. On the other hand,employees would be greatly deterred fromtaking leave without the assurance that uponreturn from leave, they will be reinstated toa genuinely equivalent position. Accordingly,the bill contains an appropriately stringentstandard for assigning employees returningfrom leave to jobs other than the precisepositions which they previously held.

First, the standard of ‘‘equivalence’’—notmerely ‘‘comparability’’ or ‘‘similarity’’—necessarily requires a correspondence to theduties and other terms, conditions andprivileges of an employee’s previousposition. Second, the standard encompassesall ‘‘terms and conditions’’ of employment,not just those specified. (Report from theCommittee on Labor and Human Resources(S.5), Report 103–3, January 27, 1993, p. 29.)

Given this history, DOL lacksauthority to require an employer to firstattempt to place a returning employee inthe same position from which theemployee commenced FMLA leave, andwe do not see the utility of imposingadditional notification requirements onemployers when they simply exercisetheir statutory rights to place employeesin equivalent positions. If a position towhich a returning employee is placed isequivalent, the employee has no right toobtain his or her original job back. Onthe other hand, as an enforcement

matter, we recognize that restoring anemployee to the same position presentsstrategic advantages to employers whoattempt to meet their FMLA complianceobjectives in this manner, because itavoids what may often becomeprotracted disputes with employeesover the exacting ‘‘equivalence’’standards that must be applied. Itshould be noted, in response to thecomments from the State of Oregon’sBureau of Labor and Industries andFisher and Phillips, an employer has anobligation to place the employee in thesame or an equivalent position evenwhere no vacancy exists. The statutedoes not permit an employer to replacean employee who takes FMLA leave orrestructure a position and then refuse toreinstate the returning employee on theground that no position exists.Furthermore, an employee’s acceptanceof a different but allegedly equivalentjob does not extinguish an employee’sstatutory rights to be restored to a trulyequivalent job or to challenge anemployer’s placement decision.Enforcement actions may be broughtwithin two years after the date of thelast event constituting the allegedviolation, unless the violation is willful,in which case a three year statute oflimitations applies. Given thecomplexities involved, it may well beadvantageous for employers to restorereturning employees to their samepositions, but it cannot be a requirementof compliance in the regulations. Asexplained elsewhere in the regulations,if, but for being on leave, an employeewould have been laid off, theemployee’s right to reinstatement iswhatever it would have been had theemployee not been on leave when thelayoff occurred. Note, too, however, thatit is a violation of FMLA’s prohibitedacts (§ 105 of the Act) for an employerto discharge or otherwise discriminateagainst an employee for exercisingrights under the Act. Thus, it would bea prohibited act to refuse to place anemployee in the same position becausethe employee had taken FMLA leave.Similarly, an employer that eliminatesthe job of an employee who takes FMLAleave (for example, by redistributing thework to other employees) must bear theburden of establishing that the jobwould have been eliminated, and theemployee would not otherwise havebeen employed at the time ofrestoration, if the employee hadcontinued to work instead of taking theleave. (See § 825.216.)

Sommer & Barnard noted theregulations did not address anemployers’s obligation to reinstate anemployee who returns to work before


the planned expiration of the scheduledFMLA leave without advance notice tothe employer, and suggested a minimumof two business days advance notice berequired of the employee in such a case.(See also §§ 825.216 and 825.309.) Onthe one hand, an employee cannot berequired to take more leave than isnecessary to address the employee’sFMLA need for leave (because it wouldnot qualify as FMLA leave and,therefore, could not be charged againstthe employee’s 12-week FMLA leaveentitlement during the 12-monthperiod). On the other hand, employeesshould be able to provide reasonableadvance notice of changedcircumstances affecting the employee’sneed for FMLA leave. The suggestion aminimum of two days advance notice berequired has been adopted in§ 825.309(c). Also, an employer mayobtain such information in periodicstatus reports from the employee.

Wessels & Pautsch commented thatemployers who choose to accommodateindividuals who are not protected bythe ADA should not risk litigation byreinstating a returning employee to lessthan an equivalent position if theposition offered is all that the employeecan perform. They recommended thatthe final rule note that the right ofreinstatement to the same or equivalentposition is contingent upon theemployee’s continued ability to performall of the essential functions of the job.(See also § 825.215.) This point has beenclarified in this section.

The National Association ofTemporary Services, in commenting onthis section, supported adoption in therule of a concept that temporaryemployees who find their spots filledupon return from leave would go to the‘‘head of the line’’ for placement by thetemporary help company under certaincircumstances. There are limitations,however, in the application of this‘‘head of the line’’ principle, becausesome circumstances of temporary helpemployment would require immediatereinstatement under FMLA. If, forlegitimate business reasons unrelated tothe taking of FMLA leave, the client ofa temporary help company discontinuesthe services of the temporary helpcompany (i.e., the contract under whichthe employee who took FMLA leave wasworking has ended), or discontinues theservices formerly performed by theemployee who took FMLA leave, andthere are no available equivalenttemporary help jobs at the same clientof the temporary help company, thenthe obligation of the temporary helpemployer is to find an equivalenttemporary help job to which to restorethe returning employee at another client

company. If no other equivalentpositions are available with otherclients, and if the returning employeetypically experienced ‘‘waits’’ betweenjobs in the ordinary course of his or heremployment with the temporary helpplacement company, then such anemployee would be entitled to priorityconsideration for the next suitableplacement with other customers. On theother hand, if the client is still usingagency employees in the same orequivalent positions, the agency wouldbe required to reinstate the employeeimmediately, even if it would berequired to remove another employee.This concept has been clarified in§ 825.106 in discussing jointemployment responsibilities oftemporary help companies and theirclient firms.

The Edison Electric Institute asked ifan employer is obliged to hold aposition open for a ‘‘contract’’ employeeemployed by a contractor if the contractwas originally for a period longer thanthe employee’s FMLA leave time wouldconsume. In the Department’s view thecontractor would have the responsibilityas the primary employer of theemployee for job restoration at theconclusion of the employee’s FMLAleave, provided the primary employerchooses to place the employee in thatposition, rather than in an equivalentposition elsewhere. If the contractemployee’s services are still beingprovided by the contractor undercontract to the secondary (customer orclient) employer, the primary(contractor) employer could restore thecontract employee to the previouscontract in the same or an equivalentposition. Furthermore, if the secondary(customer or client) employer attemptedto interfere with or restrain the primary(contractor) employer’s attempts torestore the contract employee to his orher previous position from the start ofthe leave, the secondary (client orcustomer) employer would be inviolation of the ‘‘prohibited acts’’section of the Act and regulations (see§ 825.220). These principles arediscussed in § 825.106.

The College and University PersonnelAssociation recommended that collegesand universities be permitted tomaintain flexibility to place a facultymember in a temporary position withoutequivalent duties and responsibilitieswhen the faculty member returns duringa term, suggesting that educationalinstitutions are unique because theywork on the semester or quarter systemand it disrupts students’ education if aprofessor is brought back to teachduring the term. FMLA contains noauthority to grant the requested

exception by regulation. The Congressaddressed to some extent the specialcircumstances of local educationagencies under § 108 of FMLA, butchose not to include colleges anduniversities within the scope of thespecial rules.

Equivalent Position (§ 825.215)An equivalent position is one that is

virtually identical to the employee’sformer position in terms of pay,benefits, and working conditions,including perquisites and status. Thissection of the regulations, whichattempted to articulate the variousfactors that have an impact on meetingthe statutory standards for‘‘equivalence’’ under FMLA and topresent interpretations throughexamples, generated numerouscomments.

Five commenters (FederallyEmployed Women; Women’s LegalDefense Fund; Food & Allied ServiceTrades; International Brotherhood ofTeamsters; and Service EmployeesInternational Union) objected to thediscussion in paragraph (a) of thissection that appeared to use the terms‘‘equivalent’’ and ‘‘substantiallysimilar’’ interchangeably, and theysuggested that the regulations wereconfusing the applicable standards. Thefinal rule has been clarified in responseto these comments. As described in thelegislative history noted above, thestandard for evaluating job‘‘equivalence’’ under FMLA parallelsTitle VII’s general prohibition againstjob discrimination, and is intended to beinterpreted in a similar manner.‘‘Equivalence’’ necessarily requires acorrespondence to the duties and otherterms, conditions and privileges of anemployee’s previous position, which ismore than mere ‘‘comparability’’ or‘‘similarity.’’ Moreover, the intendedstandard encompasses all ‘‘terms andconditions’’ of employment, not justthose specified. Thus, several of thesecommenters objected on these groundsto the exclusion in paragraph (f) of‘‘perceived loss of potential for futurepromotional opportunities’’ and ‘‘anyincreased possibility of being subject toa future layoff’’ from what wasencompassed by ‘‘equivalent pay,benefits and working conditions’’ underFMLA. As requested by thesecommenters, the final rule has beenclarified to indicate that an equivalentposition must have the same orsubstantially similar duties, conditions,responsibilities, privileges and status asthe original position. The references toperceived loss of potential promotionsand increased possibility of future layoffhave been deleted from paragraph (f).


Eight commenters (BurroughsWellcome Company; Southern ElectricInternational, Inc. (Troutman Sanders);California Department of FairEmployment and Housing; William M.Mercer, Inc.; Chamber of Commerce ofthe USA; Society for Human ResourceManagement; and Timber OperatorsCouncil) raised questions or concernson the regulatory guidance on theimpact of unpaid FMLA leave onvarious forms of incentive pay plansand bonuses (e.g., perfect attendancebonuses, sales bonuses based oncalendar year productivity, and payincreases based on performancereviews. Bonuses for perfect attendanceand safety do not require performanceby the employee but rather contemplatethe absence of occurrences. To theextent an employee who takes FMLAleave meets all the qualifications toreceive these types of bonuses up to thepoint that FMLA leave begins, theemployee must continue to qualify forthis entitlement upon returning fromFMLA leave. In other words, theemployee may not be disqualified fromperfect attendance, safety, or similarbonus(es) because of the taking of FMLAleave. (See § 825.220 (b) and (c)). Amonthly production bonus, on the otherhand, does require performance by theemployee. If the employee is on FMLAleave during the period for which thebonus is computed, the employee is notentitled to any greater consideration forthe bonus than other employees receivewhile on paid or unpaid leave (asappropriate) during the period. Becauserestored employees are not entitled toaccrue seniority during a period ofFMLA leave, pay increases based onperformance reviews conducted after 12months of completed service with theemployer may be delayed by the amountof unpaid FMLA leave an employeetakes during the 12-month period (in theabsence of policies that treat other formsof unpaid leave differently). In contrast,a pay increase based on annualperformance reviews geared to anemployee’s ‘‘entry on board’’anniversary date without regard to anyunpaid leave taken during the periodmay not be denied or delayed (once theemployee returns from FMLA leave) toan employee on FMLA leave on his orher anniversary date. The regulationshave been clarified to include some ofthese principles.

Fourteen commenters (AlabamaPower Company (Balch & Bingham);Pathology Medical Laboratories(Riordan & McKinzie); Department ofPersonnel, City of Dallas; NewHampshire Retirement System;University of California; Hill & Barlow;

Morris R. Friedman; Willcox & Savage;McCready and Keene, Inc; William M.Mercer, Inc; Government FinanceOfficers Association; National Councilon Teacher Retirement; NationalRestaurant Association; and VirginiaMaryland Delaware Association ofElectric Cooperatives) expressed variousviews on, and requested clarification of,provisions included in paragraph (d)(4)of this section that indicated periods ofFMLA leave would be treated as‘‘continuous service (i.e., no break inservice) for purposes of vesting andeligibility to participate’’ in pension andother retirement programs. To resolvethe confusion created by this provision,several clarifications have beenincluded in the final rule. Under theFMLA, unpaid leave does not constituteservice credit—except for purposes of‘‘break in service’’ rules because thetaking of FMLA leave cannot ‘‘* * *result in the loss of any employmentbenefit accrued prior to the date onwhich the leave commenced’’(§ 104(a)(2)). Thus, employees will notbe deemed to accrue hours of serviceduring periods of unpaid FMLA leave(paid leave is counted as service credit).Note, in addition, however, that if anyFMLA leave is also covered by specialmaternity and paternity leave planpension break in service rules underERISA, the more generous rule wouldapply. Paragraph (d)(4) of this section isclarified to reflect this position.

Cincinnati Gas & Electric Companyand Austin Human ResourceManagement Association asked that therequirement for an employee to bereinstated to the same or a‘‘geographically proximate’’ worksite befurther defined in paragraph (e)(1) ofthis section. In response, the rule isclarified to provide that a geographicallyproximate worksite is one that does notinvolve a significant increase incommuting time or distance.

Austin Human Resource ManagementAssociation also recommended that therules clarify an employer’s obligation toreturn an employee to an equivalentposition following FMLA leave whenthe employee has medical limitationsbut is not a qualified individual with adisability under the ADA. Anemployee’s right to restoration underFMLA is dependent upon theemployee’s ability to perform all of theessential functions of the employee’sposition. This is now addressed in§ 825.214. (See also the discussion in§ 825.702.) This commenter alsosuggested that the final rule expresslystate that FMLA does not affect theemployer’s right to administer a lightduty return to work program foremployees off work due to injury or

illness. This is an incorrectinterpretation of FMLA’s leaveentitlement provisions and cannot beadopted in the regulations. See thediscussion in § 825.702(d)(2). Anemployer may not require an employeeto return to light duty. But the employeris not prohibited from providing aprogram under which an employeecould voluntarily return to duty beforehe or she is able to perform all theessential functions of the job. In such acase, because an employee cannot waivehis or her FMLA rights, the employee’sright to be restored to his or her originalor an equivalent position wouldcontinue until 12 weeks have passed inthat 12-month period, including allFMLA leave and the light duty periodfor which the employee wouldotherwise have been on leave. See therevisions at §§ 825.220 and 825.702.

College and University PersonnelAssociation commented that§ 825.215(d)(2) appeared to prohibitemployers from applying ‘‘use it or loseit’’ policies because an employee whotakes FMLA leave is entitled to the samebenefits upon return from leave as he/she was entitled to at thecommencement of the leave, regardlessof whether the ‘‘use it or lose it’’ datehas passed. The commenter consideredthis interpretation inconsistent with§ 825.216, which suggests an employeehas no greater right to benefits than ifthe employee had been continuouslyemployed during the FMLA leave. Thecommenter is correct that the FMLAextends no greater right or benefit toeligible employees than they wouldreceive if they worked continuouslyduring the FMLA leave. Consistent withthis provision, if an employee wouldhave ‘‘lost’’ the benefit if the employeehad been continuously employedinstead of taking FMLA leave, theemployee is not entitled to ‘‘retain’’ thebenefit simply because the employeetook FMLA leave, regardless of whetherthe trigger date for ‘‘losing it’’ occursduring a period the employee is onFMLA leave.

The National Association ofPlumbing-Heating-Cooling Contractorscommented that for union-affiliatedemployers under a collective bargainingagreement, an eligible employee whorequests FMLA leave will be replacedfrom the hiring hall. According to thecommenter, the employer has noauthority to recall a worker back to hisor her original position at the end of theleave. As noted in § 825.700 of theseregulations and § 402 of the FMLA, therights established for eligible employeesby FMLA may not be diminished by anycollective bargaining agreement or anyemployment benefit program or plan.


An employer under the circumstancedescribed by this commenter would stillbe required to reinstate the eligibleemployee to the same or an equivalentposition.

Limitations on Employer’s Obligation toReinstate (§ 825.216)

Section 104(a)(3) of FMLA limits theentitlement of any restored employee tono greater right, benefit, or position ofemployment than any right, benefit, orposition of employment to which theemployee would have been entitled hadthe employee not taken the leave. Anemployer must demonstrate that theemployee would not otherwise havebeen employed when reinstatement isrequested to be able to deny restoringthe employee (for example, in the caseof a department-wide layoff affecting theemployee’s former position). Similarly,if a shift has been eliminated orovertime work has decreased, areturning employee would not beentitled to return to that shift or to workthe same overtime hours as before. Inaddition, an employer may denyreinstatement to an eligible ‘‘key’’employee if such reinstatement wouldcause substantial and grievouseconomic injury to the employer’soperations and if the employer hascomplied with all the provisions of§ 825.217; and, an employer may delayreinstatement of an employee who failsto furnish a fitness for duty certificateon return to work in the circumstancesdescribed in § 825.310, until thecertificate is furnished.

The National Association of ComputerConsultant Business commented thatwhile this section referred to the task ofthe project being completed while anemployee is on FMLA leave and the lossof reinstatement rights in that instance,it did not refer to other similarlimitations, such as where a position iseliminated or resubcontracted. Thesame principles would apply in theseother instances where the position ofemployment no longer exists and thechange occurs during an employee’sFMLA leave. An employee’s rights to berestored are the same as if the employeehad not taken the leave. The employermust establish that the employee whoseeks reinstatement would nototherwise have been employed if leavehad not been taken in order to denyreinstatement. See also § 825.312(d).

Employers Association of New Jerseyasked, where an employee would havebeen laid off during a period of FMLAleave, at what point does the leave endand the employee’s entitlement tomaintenance of group health benefitscease? Or, where the employer makes abona fide determination that, because of

reduced workforce requirements, theservices of the employee on FMLA leavewill no longer be required? Similarly,Alabama Power Company (Balch &Bingham) requested more guidance begiven on department-wide downsizingwhile an employee is on leave—mustthe employee still be kept on leave forthe remainder of the planned FMLAleave if he or she would have beenpermanently laid off when thedownsizing occurred? Fisher andPhillips also suggested the regulationsclarify that an eligible employee’s rightsto group health plan benefits end afterthe date of a layoff affecting anemployee on FMLA leave. The NationalRestaurant Association suggested that itwould be helpful if more examples wereincluded of circumstances where anemployee’s rights to job restoration andmaintenance of health benefits arelimited.

As explained in several sections of theregulations, an eligible employee underFMLA is entitled to no greater right ofemployment than if leave had not beentaken. The legislative history points outthat if, but for being on leave, anemployee would have been laid off, theemployee’s right to reinstatement iswhatever it would have been had theemployee not been on leave at the timeof the layoff. Thus, if an employee islaid off during an FMLA leave period,the employer’s obligations to continuethe employee on FMLA leave, maintainthe employee’s group health planbenefits, and restore the employee to aposition of employment, all cease at thetime the employee is laid off providedthe employer has no such obligationunder a collective bargaining agreementor otherwise, and the employer candemonstrate that the employee wouldnot have been reinstated, reassigned, ortransferred in the absence of the FMLAleave. This section has been so clarified.Note, too, however, an employer isprohibited from discharging orotherwise discriminating against anemployee for exercising rights under theAct, and the employer that eliminatesthe job of an employee who takes FMLAleave (for example, by redistributing thework to other employees) bears theburden of establishing that the jobwould have been eliminated, and theemployee would not otherwise havebeen employed by the employer, if theemployee had continued to workinstead of taking the leave. (See also thediscussion of § 825.214, above.)

Employers Association of New Jerseyalso asked whether an employer isobligated to reinstate an employee if,during the leave, the employee engagedin conduct which would have resultedin discharge if the conduct occurred

while the employee was at work. If nosuch obligation exists, may the FMLAleave and maintenance of group healthinsurance be discontinued at the pointin time that the misconduct took place?Again, an employee on FMLA leave isentitled to no greater right ofemployment than if the leave was nottaken. Provided the employer’s policiesare nondiscriminatory, are applieduniformly to similarly-situatedemployees, and violate no other laws,regulations, or collective bargainingagreements where applicable, sanctionssuch as discharge for misconduct maycontinue to be applied to the employeeon FMLA leave for actionable offensesas if the employee had continued towork.

‘‘Key’’ Employee Exemption (§ 825.217)FMLA provides a limited exemption

from an employer’s requirement torestore an employee to employmentafter FMLA leave if certain factors aremet: (1) denial of restoration toemployment (but not the taking of theleave) must be necessary to prevent‘‘substantial and grievous economicinjury’’ to the employer’s operations; (2)the employer must notify the employeeof its intent to deny restoration underthis exemption at the time the employerdetermines that such grievous economicinjury would occur; (3) if the leave hasalready commenced, the employer mustallow the employee an opportunity toelect to return to work after receivingthe notice from the employer; and (4)the exemption is limited to a salariedeligible employee who is among thehighest paid 10 percent of theemployer’s workforce within 75 miles ofthe facility where employed. Theseprovisions are statutory, as set forth in§ 104(b) of FMLA.

Several commenters suggestedchanges that would be inconsistent withthe statutory terms of the exemption,such as increase the ‘‘top 10 percent’’ to‘‘top 25 percent’’ or decrease it to ‘‘topfive percent,’’ or guaranteereinstatement rights to women whohave achieved the top 10 percent statusdespite the terms of the exemption, orlimit applicability of the exemption toprivate sector employers only. TheDepartment cannot adopt regulatoryprovisions for the exemption that wouldrun counter to the terms of the statute.

The National Association ofPlumbing-Heating-Cooling Contractorsquestioned whether key employees hadto be notified of their designation as‘‘key’’ prior to requesting FMLA leave,suggesting that employers should berequired to do this to preventmisunderstandings and abuses (e.g., atthe time of being hired). Under the


terms of the statute, the employer mustnotify an employee ‘‘at the time theemployer determines’’ that the requisiteinjury from restoration would occur.Under § 825.217(c)(2), the determinationof whether a salaried employee isamong the top 10 percent for purposesof the exemption is made at the time ofa request for leave. Under the ‘‘notice toemployee’’ provisions of § 825.301(c)(6),the employer must inform a ‘‘key’’employee in response to a request forleave whether the employee is a ‘‘key’’employee, and the potentialconsequence that restoration may bedenied following the leave. As providedunder § 825.219, if an employer believesreinstatement may be denied, suchwritten notice must be provided to theemployee at the time of the leaverequest, or when the FMLA leavecommences, whichever is earlier.Failure to provide timely notice that theemployee is a key employee andrestoration may be denied will causeemployers to lose their right to denyrestoration, even where substantial andgrievous economic injury will resultfrom restoring the employee.

The Society for Human ResourceManagement asked whether overtime isincluded when computing the highestpaid 10 percent of the workforce, andhow the determination is made whenthere is a parent company and asubsidiary involved. As detailed in§ 825.217(c)(1), the earnings used forthis computation include wages (whichincludes salaries), premium pay (whichincludes ‘‘overtime’’ premium pay),incentive pay (e.g., commissions), andnon-discretionary and discretionarybonuses. The definition of ‘‘employer’’in § 825.104 would control in casesinvolving a parent and subsidiary. Asprovided in § 825.104(c), normally thelegal entity which employs theemployees is the employer, and acorporation is a single employer (ratherthan its separate establishments ordivisions). Where one corporation hasan ownership interest in another, it is aseparate employer unless it meets thetests for ‘‘integrated employer’’(§ 825.104(c)(2)), in which case allemployees of the integrated employerare considered.

Substantial and Grievous EconomicInjury (§ 825.218)

To deny restoration to a ‘‘key’’employee, the employer must establishthat restoring the employee would cause‘‘substantial and grievous economicinjury’’ to the employer’s operations. Inexplaining the conditions for applyingthe ‘‘key’’ employee exemption, thelegislative history indicated, whenmeasuring grievous economic harm,

‘‘* * * a factor to be considered is thecost of losing a key employee if theemployee chooses to take the leave,notwithstanding the determination thatrestoration will be denied.’’ Numerouscommenters (Chicago Transit Authority;Nationsbank Corporation (TroutmanSanders) and Southern ElectricInternational, Inc (Troutman Sanders);Pima Federal Credit Union; UnitedFederal Credit Union; Weinberg &Green; Wessels & Pautsch; Willcox &Savage; Credit Union NationalAssociation, Inc; National Associationof Federal Credit Unions; and theNational Restaurant Association)requested more specific guidelines andfurther regulatory definition of thestatutory term ‘‘substantial and grievouseconomic injury.’’ One commenter (IBMEndicott/Owego Employees FederalCredit Union) suggested furtherguidance was unnecessary. TheNational Association of Federal CreditUnions noted additionally that underthe ADA, an employer’s operationssuffer an ‘‘undue hardship’’ ifaccommodation to an employee wouldbe unduly costly, extensive, substantial,or disruptive or would fundamentallyalter the nature or operation of thebusiness. This commenter suggestedthese same factors under ADA could beapplied in determining whether or notan employer’s operations would suffer‘‘substantial and grievous economicinjury’’ by restoring a key employee tothe position. The EEOC, on the otherhand, which administers the ADA,recommended that the FMLA rules statethat FMLA’s standard for the ‘‘key’’employee exemption is different from‘‘undue hardship’’ under the ADA. TheDepartment concurs with EEOC’ssuggestion that ‘‘substantial andgrievous economic injury’’ under FMLAis different from ‘‘undue hardship’’under the ADA. FMLA creates a narrowexception to the reinstatement rights ofa key employee, whereas ADA’sstandard provides a measure of thereasonableness of any accommodation.Additionally, the definitions of the twoterms suggest that ‘‘substantial andgrievous economic injury’’ is morestringent than ‘‘undue hardship.’’ TheFMLA rules define ‘‘substantial andgrievous economic injury’’ to include‘‘substantial long-term injury.’’ Unduehardship is defined as ‘‘significantdifficulty or expense’’ (see Appendix to29 CFR Part 1630.2(p)). Accordingly, thefinal rule is revised to clarify that thetwo standards are, in fact, different, andthat FMLA’s standard is more stringentthan the ADA’s ‘‘undue hardship’’standard. Further regulatory guidelines,however, in the form of a more precise

test, cannot be established due to thefact-specific circumstances that must beevaluated on a case-by-case basis.

Rights of a Key Employee (§ 825.219)This section detailed the guidelines

for applying the ‘‘key’’ employeeexemption, and the requirements foremployers to furnish proper and timelynotice to ‘‘key’’ employees, informingthem of the possibility that restorationto employment may be denied. A ‘‘key’’employee must be given a reasonableperiod of time after receiving theemployer’s notice in which to electwhether to return to work. A keyemployee who takes leave is stilleligible for maintenance of group healthbenefits, even after the employee hasbeen notified that reinstatement will bedenied. In those circumstances, theemployer may not recover the premiumsit paid to maintain such health benefits.An employee who continues on leaveafter receiving notice from the employeris still entitled to request reinstatementat the conclusion of the leave period,and the employer must again determineif substantial and grievous economicinjury will result from reinstatementbased on the facts existing at that time.

TRW Systems Federal Credit Union,Fisher & Phillips, and the NationalRestaurant Association considered therequirements to give written notices tokey employees as provided in theregulations to be excessive andduplicative. The National Association ofFederal Credit Unions opposed therequirement for a second determinationto be made, after a key employee hasalready chosen to continue the leaveafter receiving the employer’s firstnotice that restoration will be denied.The Chamber of Commercerecommended that the regulationsrequire written notice but not mandatea specific form of delivery (either inperson or by certified mail). TheNational Restaurant Associationconsidered the obligations of theemployer to be so burdensome underthe regulations as to render theexception under the Act of no practicalvalue.

After full consideration given to thecomments received on this section, theDepartment continues to believe that therule properly construes the rightsintended by the Act for ‘‘key’’employees; thus, no furthermodifications have been made inresponse to the comments. Section104(b) of FMLA is intended as a narrow,limited exemption from the otherwiseapplicable restoration requirements ofthe Act. The procedural requirementsset forth in the rule ensure that thestandards for the exemption have been


properly met, i.e., based on factsexisting at the time an employee seeksrestoration to employment, theemployer must establish that denial ofrestoration at that time is necessary toprevent substantial and grievouseconomic injury to the employer’soperations.

Employee Protections and ProhibitedActs (§ 825.220)

Section 105 of FMLA makes itunlawful for an employer to interferewith or restrain or deny the exercise ofany right provided by the Act. It alsomakes it unlawful for an employer todischarge or in any other mannerdiscriminate against any individual foropposing any practice made unlawfulby the Act. This opposition clause isderived from Title VII of the Civil RightsAct of 1964 and is intended, accordingto the legislative history, to be construedin the same manner. Thus, FMLAprovides the same sorts of protections toworkers who oppose, protest, or attemptto correct alleged violations of theFMLA as are provided to workers underTitle VII. The regulations provided thatany violation of the FMLA or itsimplementing regulations wouldconstitute interfering with, restraining,or denying the exercise of rights underthe Act. ‘‘Interfering with’’ the exerciseof rights was defined to include not onlydenying authorization for ordiscouraging an employee to take FMLAleave, but manipulation by the employerto avoid responsibilities (such asunnecessarily transferring employeesamong worksites to avoid the 50-employee threshold for employees’eligibility). FMLA’s anti-discriminationprovisions were interpreted in theInterim Final Rule to prohibit anemployer from requiring more of anemployee who took FMLA leave thanthe employer requires of employees whotake other forms of paid or unpaid leave(e.g., requirements to furnish writtennotice or certification for use of leave).Also, employers were prohibited fromconsidering an employee’s use of FMLAleave as a negative factor in anyemployment actions (e.g., promotions ordiscipline), and specifically inconnection with ‘‘no fault’’ attendancepolicies. Finally, the regulationsexpressed DOL’s view that employeescannot waive their rights under FMLA,nor can employers induce employees towaive their FMLA rights.

Ten commenters (ConsolidatedEdison Company of New York, Inc.;Dopaco, Inc.; Red Dot Corporation; TaxCollector, Palm Beach County, Florida;Austin Human Resource ManagementAssociation; Equal EmploymentAdvisory Council; Florida Citrus

Mutual; Food Marketing Institute;Greater Cincinnati Chamber ofCommerce (Taft Stettinius Hollister);and the Society for Human ResourceManagement) opposed the prohibitionsagainst counting FMLA-protected leavesof absence in disciplinary actions andunder employers’ attendance controlpolicies. Some felt that FMLA shouldnot invalidate legitimate attendancecontrol programs, which are objectiveand nondiscriminatory as to the reasonfor a given absence, or that reasonableattendance requirements should still beavailable to employers and remainwithin their prerogatives as a conditionof continued employment. Some askedwhether a distinction could be madebetween counting FMLA absencesnegatively for purposes of discipline orother adverse action, and counting themunder attendance programs that rewardemployees for good attendance (e.g.,attendance bonus programs). It wasargued that employers should still beallowed to reward employees positivelyfor perfect attendance, and be permittedto exclude an employee from such anattendance award if the employee’sFMLA absence makes him or herineligible.

Employers pay bonuses in differentforms to employees for job-relatedperformance such as for perfectattendance, safety (absence of injuries oraccidents on the job), and exceedingproduction goals. Bonuses for perfectattendance and safety do not requireperformance by the employee, but rathercontemplate the absence of occurrences.To the extent an employee who takesFMLA leave meets all the requirementsfor these types of bonuses (whichcontemplate the absence of an event)before the FMLA leave begins, theemployee is entitled to continue thisaccrued entitlement upon theemployee’s return from FMLA leave (thetaking of FMLA leave cannot ‘‘* * *result in the loss of any employmentbenefit accrued prior to the date onwhich the leave commenced’’). Thus,the employee may not be disqualifiedfor such bonus(es) merely because theemployee took FMLA leave during theperiod; to do so would discriminateagainst the employee for taking FMLAleave. A monthly production bonus, onthe other hand, does requireperformance by the employee during theperiod of production. If the employee ison FMLA leave during the period forwhich the bonus is computed, theemployee may be excluded fromconsideration for the bonus. Theseprinciples are discussed in new§ 825.215(c)(2).

Nationsbank Corporation (TroutmanSanders) observed that the courts in

recent years have found that someemployees have abused or illegitimatelysought the protection of anti-discrimination statutes to avoidlegitimate discipline, and that the courtsand some administrative agencies(including DOL) have developeddecision rules to bar such use of the lawby employees. The commenterrecommended that DOL explicitlyprohibit employee abuse or misuse ofFMLA and include sanctions for suchmisconduct (e.g., discharge, payment ofattorneys’ fees or other costs).

Sections 825.216 and 825.312 discussat some length, as noted repeatedlythroughout this preamble, that FMLAdoes not entitle any employee to anyright, benefit, or position of employmentother than any right, benefit, or positionof employment to which the employeewould have been entitled if theemployee had not taken leave under theFMLA. Thus, FMLA cannot be used byemployees as a ‘‘shield’’ to avoidlegitimate discipline. As this basic tenetflows from FMLA’s statutory provisionswhich have already been addressed inthe regulations, it is unnecessary toinclude the particular suggestedprovisions to respond to these concerns.

Nationsbank Corporation (TroutmanSanders), Southern ElectricInternational, Inc (Troutman Sanders),and Chamber of Commerce of the USAexpressed concerns with the ‘‘no waiverof rights’’ provisions included inparagraph (d) of this section. Theyrecommended explicit allowance ofwaivers and releases in connection withsettlement of FMLA claims and as partof a severance package (as allowedunder Title VII and ADEA claims, forexample). The ERISA IndustryCommittee raised a similar concern withrespect to the rule’s impact on earlyretirement windows offered byemployers. Such windows are typicallyopen for a limited period of time andrequire all employees accepting the offerto be off the payroll by a certain date.If employees on FMLA leave have theright to participate in an earlyretirement program, but may continue tohave and assert leave rights, the leaverights could adversely affectadministration of the early retirementprogram.

The Department has given carefulconsideration to the comments receivedon this section and has concluded thatprohibitions against employees waivingtheir rights and employers inducingemployees to waive their rightsconstitute sound public policy underthe FMLA, as is also the case underother labor standards statutes such asthe FLSA. This does not prevent anindividual employee on unpaid leave


from returning to work quickly byaccepting a ‘‘light duty’’ or differentassignment. Accordingly, the final ruleis revised to allow for an employee’svoluntary and uncoerced acceptance ofa ‘‘light duty’’ assignment. Anemployee’s right to restoration to thesame or an equivalent position wouldcontinue until 12 weeks have passed,including all periods of FMLA leave andthe ‘‘light duty’’ period. In thisconnection, see also § 825.702(d).

With respect to early-out windows forretirement purposes, an employee onFMLA leave may be required to give uphis or her remaining FMLA leaveentitlement to take an early-out offerfrom the employer. Under thesecircumstances, FMLA rights wouldcease because the employmentrelationship ceases, and the employeewould not otherwise have continuedemployment. Further, although anemployer need not extend the windowfor those employees who are out onFMLA leave, the employer must affordsuch employees the opportunity to availthemselves of any such offer whichwould have been available if they hadnot been on leave.

Florida Citrus Mutual and Fisher &Phillips took issue with the prohibitionagainst an employer manipulating thesize of the workforce for the purpose ofprecluding employee eligibility forFMLA leave. They suggested thatemployers cannot ‘‘interfere’’ with therights of employees unless and until theemployees have those rights.

We disagree with the views expressedin these comments. It is DOL’s view thata covered employer that engages in themanipulative behavior prohibited by theregulatory provisions is deprivingemployees of rights and entitlementsthey would otherwise fully enjoy but forthe manipulative actions by the coveredemployer, which is expresslyprohibited. The rule is clarified to statethat employers covered by the FMLAmay not engage in such manipulation ofthe workforce for the purpose ofavoiding FMLA obligations.

The California Department of FairEmployment and Housingrecommended revisions to paragraph (c)of this section to reference theconsequences of an employer asking ajob applicant or the former employer ofa job applicant questions which wouldreveal the employee’s use of FMLAleave, and the consequences of makinghiring decisions based on the use ofFMLA leave. It was suggested that ifhiring decisions are among theemployment actions for which use ofFMLA leave may not be a negativefactor, then the regulations shouldincorporate guidance in this area. A

reference to ‘‘prospective employees’’has been included in paragraph (c) ofthis section.

III. Subpart C, §§ 825.300–825.312

Posting Requirements (§ 825.300)

Twenty commenters took exception tothe regulatory requirement regarding thesize of the notice (poster). They felt itwas unnecessary and did not provideany substantive benefit to employees.

The Department has determined thatit will not prescribe the precise size ofthe required poster. The regulationrequires instead that the poster be largeenough to be easily read. Thisrequirement would be satisfied, forexample, if the poster were at least thesize of a standard 81⁄2×11 inch piece ofpaper. The purpose of the poster is tocall employees’ attention to the basicrequirements of FMLA and provideinformation where they may getadditional information or file acomplaint. In the past several years anumber of commercial firms havereproduced other posters, having anumber of posters in a single set or ona single display, and much of theinformation is not legible from anyreasonable distance. If the poster doesnot inform, it serves no useful purpose.

Two commenters objected to having aprovision in the regulation that allowedemployees to circumvent their noticeobligations to the employer if theemployer failed to post the notice. Thepurpose of this provision is toencourage employers to post the notice;otherwise, how would employees knowabout FMLA and their basic rights andwhere to obtain additional information?The posting requirement is not difficultor overly burdensome for an employer,as the Department will furnish, free ofcharge, a copy of the poster which theemployer may duplicate. TheDepartment finds no basis to removethis provision from the Final Rule.

The Employers Association ofWestern Massachusetts, Inc.,commented that references to applicantsfor employment should be deleted fromthe regulation as the statute applies onlyto eligible employees.

The statute, at § 109(a), requires thenotice to be posted in conspicuousplaces on the premises where notices toemployees and applicants foremployment are customarily posted.The prohibited acts identified by thestatute in § 105 state that it is unlawfulfor an employer and/or any person tointerfere with rights or discriminateagainst any individual. Clearly theprohibited acts are not limited inapplication to eligible employees. TheDepartment is unable to make this

change as it conflicts with the statutorylanguage.

The Society for Human ResourcesManagement asked if a contractor whohas employees working at multiple sitesof other employers is required to postthe notice at each site when theemployer who controls the site hasalready posted the notice. Thecontractor should ensure that a notice isposted in a conspicuous place on theworksite where his/her employees haveaccess. If so, there is no need for thecontractor to post additional notices.

The Tennessee Association ofBusiness asked if posting the noticesatisfies all notice requirements of theAct. The posting of the notice is but oneof the notice requirements applicable toemployers. For example, in § 825.301(b)the employer is required to providewritten notice to an employee whoprovides notice of the need for FMLAleave regarding eight essential elementsof information that are employee-specific. There are a number of othernotice provisions throughout theregulations.

Other Employer Notices (§ 825.301)Four commenters made observations

regarding the requirements of§ 825.301(a) for employers to includetheir policies regarding the taking ofFMLA leave in employee handbooks, ifthey have such a publication. Onecommenter asked for the deadline bywhich the FMLA provisions should beincluded. Another objected to anyrequirement to include the process tofile a complaint and advising employeesof their right to file suit. Yet anotherurged the Department to provide anacceptable statement to be included inthe employee handbook regardingFMLA. One commenter urged that thisrequirement be satisfied if the employerincorporated the Department’s FMLAFact Sheet in the handbook.

It was the intent of the regulationsthat if an employer provides a handbookof employer policies, the employer’sFMLA policies would be included inthe handbook by the effective date ofFMLA. There is no requirement that anemployer include information regardingfiling complaints or private rights ofaction. The purpose of this provision isto provide employees the opportunity tolearn from their employers of themanner in which that employer intendsto implement FMLA and what companypolicies and procedures are applicableso that employees may make FMLAplans fully aware of their rights andobligations. It was anticipated that tosome large degree these policies wouldbe peculiar to that employer.Consequently, it would be of little use


to incorporate the Department’s FactSheet or a Departmental statement inthe employer’s handbook for employees.

Seven commenters stated that thenotice requirements in § 825.301(c) areburdensome, not required by the statuteand should be deleted from theregulations. One commenter urged thatthe notice required by this sectionshould include the consequences ofemployees failing to give 30 days noticewhen leave is foreseeable. Threeadditional commenters urged there beone generic notice applicable to allemployees except key employees.

The intent of this notice requirementis to insure employees receive theinformation necessary to enable them totake FMLA leave. The employee isentitled to know the arrangements forpayment of health insurance premiumsreached by agreement with theemployer, whether the employee will berequired to provide medical certificationfor leave or fitness to return to duty, etc.It would be inappropriate to use ageneric notice as much of theinformation may be employee specific,particularly the arrangements forpayment of insurance co-payments. Theregulation suggests employers provideinformation to employees regardingconsequences of inaction. There isnothing in the regulation that precludesthe employer from providing moreinformation than required, only fromproviding less. The Department finds nobasis to change the requirements of thisnotice provision.

Three commenters objected to arequirement that a notice be providedeach time an employee takes leave,especially when the employee is takingleave intermittently.

The regulation has been amended toprovide that in most circumstancesnotice need only be given once in eachsix- month period, on the occasion ofthe first employee notice of the need forleave. However, if the specificinformation required to be furnished inthe notice changes, notice of thechanged information must be providedin response to a subsequent notice ofneed for leave. In addition, an employerwill be required to give notice of arequirement for medical certification, orfor a ‘‘fitness-for-duty’’ report upon theemployee’s return to work, each timethe employer receives notice of a needfor FMLA-qualifying leave. Anexception will exist, however, if thenotice given at the beginning of the six-month period, as well as any employeehandbooks or other written documentsregarding the employer’s leave policies,make it clear that medical certificationor a ‘‘fitness-for-duty’’ report will berequired under the circumstances of the

employee’s leave. For example, the priornotice and handbook (if any) might statethat certification will be required for allsick leave of any kind, for all unpaidsick leave, or for all sick leave longerthan a specified period. Similarly, thenotice and handbook might state that‘‘fitness-for-duty’’ reports will berequired for all employees with backinjuries in a certain occupation.

The Women Employed Institute urgedthat the notice required by § 825.301(c)be in writing and that the notice shouldbe furnished to the employee no laterthan the day before leave is to begin ifleave is foreseeable or as soon aspracticable if not foreseen.

The regulation has been changed tomake it clear that the notice must be inwriting. The interim final rule requiredthe employer to provide the notice atthe time notice of need for leave isprovided. The Final Rule will requiresuch notice to be provided as soon afternotice of need for leave is given aspracticable, usually one or two businessdays. The requirement for written noticesimply ensures that the employeereceives critical information andprovides appropriate documentation ofthe information conveyed to theemployee in the event of a dispute.

The Church of Jesus Christ of Latter-Day Saints commented that an employershould still be permitted to count anabsence as FMLA leave even if anemployee (who may be too ill) has notrequested FMLA leave for the absence.An example was provided of anemployee who has a heart attack andmisses five weeks from work but doesnot request FMLA leave. The Churchfurther observes that providing theemployee with the required notice whenthe employee is so ill would beuncaring.

The regulations have been revised topermit the employer to mail the noticeto the employee’s address of record ifleave has already begun. The regulationsalso provide that notice of need forleave may be given by the employee’sspokesperson, (e.g., spouse, adultrelative, attorney, doctor).

The California Department of FairEmployment and Housing commentsthat the regulations should be morespecific regarding the obligations ofcovered employers who have no eligibleemployees. Section 825.500 of the FinalRule has been revised to specify theobligations of covered employers whohave no eligible employees.

The regulation has also been revisedto make it clear that if an employer failsto provide the required information, itmay not take action against an employeefor failure to comply with the

employee’s obligations required to beset forth in the notice.

Employee Notices (to Employers) WhenLeave is Foreseeable (§ 825.302)

Four commenters suggested that it bemade clear that the employee isrequired to give notice of need forFMLA leave to the employee’ssupervisor or other appropriate person,and need not make the request to sometop official of the company.

The employee is required to providenotice of need to take FMLA leave to thesame person(s) within the company theemployee ordinarily contacts to requestother forms of leave, usually theemployee’s supervisor. It is theresponsibility of the supervisor either torefer the employee who needs FMLAleave to the appropriate person, or toalert that person to the employee’snotice. Once the employee has providednotice to the supervisor or otherappropriate person in the usual manner,the employee’s obligation to providenotice of the need for FMLA leave hasbeen fulfilled.

The Nationsbank Corporationrequested guidance as to thecircumstances in which an employermay choose to waive noticerequirements. Throughout theregulations, reference is made to theemployer’s ability to waive notice andcertification requirements. As long asthe employer’s discretion is applied ina nondiscriminatory manner, theemployer will have complied with theserequirements.

Fisher and Phillips observed that theregulations do not address theemployee’s obligation to provide noticeof any needed extension to leave alreadyrequested and underway. Sommer andBarnard also took issue with the noticerequirements regarding an extension ofleave, and suggested that the regulationsshould be amended to provide that anemployee on FMLA leave who fails toreport to work at the expiration of theleave and fails to give FMLA notice ofthe need for extension of the leave priorto its expiration shall not be entitled tothe job restoration protections of the Actor the regulations, unless it wasimpossible to give such notice prior toexpiration of the leave and theemployee thereafter gives the earliestand best notice possible. The regulationhas been amended in § 825.309(c) toprovide that an employee shall advisethe employer if leave needs to beextended. In addition, the employermay obtain such information fromemployees through status reports.

Section 825.302(g) has also beenrevised to clarify employee noticeobligations when the employer’s paid


leave plan contains lesser obligationsand paid leave is substituted for unpaidFMLA leave. An employer may notimpose FMLA’s stricter noticerequirements if the employer’sapplicable leave plan allows lessadvance notice for the type of leavebeing substituted. See, also,§ 825.207(h).

The Department also notes that theregulations continue to provide thatalthough an employee is only requiredby FMLA to give oral notice of the needfor leave, an employer may require anemployee to comply with its usual andcustomary notice requirements,including a requirement of writtennotice. If an employee fails to givewritten notice in these circumstances,an employer may not deny or delayleave, but may take appropriatedisciplinary action.

Employee Notices (to Employer) WhenLeave is Not Foreseeable (§ 825.303)

The Women’s Legal Defense Fundsuggested that section (a) be amended toreflect that an employee may not beforeclosed from beginning leave even ifone or two days’ notice is not possible.The final rule has been amended toinclude guidance that notice should begiven as soon as practicable.

Two commenters indicated thatverbal notice is not sufficient and theemployer should be permitted to requirea written notice, requesting leave andproviding a general reason for the leaveif FMLA. They suggested that if anemployee needs to request the leave inan emergency, oral notice should besufficient but only if the employeeconfirms that request in writing withintwo working days.

Nothing in the regulations prohibitsan employer from requiring writtennotice to take or request leave if this isthe employer’s usual procedure. Theemployer may request written notice forall leave. The employer, however, maynot deny or delay FMLA-qualifyingleave when the employee providesverbal notice as soon as practicable.Having a hard and fast rule that theemployee must give written notice orconfirm the verbal notification withinone or two working days would work anunnecessary hardship on manyemployees who have taken leave for amedical emergency and are not in aposition to provide written notice eitherdue to their own serious healthcondition, or that of an immediatefamily member.

Employer’s Recourse When EmployeeFails To Provide Notice (§ 825.304)

Seven commenters providedobservations regarding this section. Four

of the commenters urged that anemployer not be permitted to deny leaveunder any circumstances when theemployee fails to provide adequatenotice, but only delay the leave. Theyfurther stated that the employer shouldbe permitted to delay the leave only ifthe employer can show that theactivities of the business wereprejudiced by the employee’s failure toprovide adequate notice. Theyquestioned the extent of an employer’sright to take disciplinary action in theevent adequate notice is not providedand urged that the employer beprohibited from denying leave ordischarging the employee for inadequatenotice. One commenter asked for adefinition of the term as soon aspracticable.

Section 102(e) of the statute sets outobligations of the employee to providenotice to the employer of the need totake leave in both foreseeable andunforeseeable circumstances. As this isan affirmative responsibility of theemployee it would be inappropriate torequire the employer to show anyprejudice resulting from an employee’sfailure to provide adequate notice. Asused in the regulation, as soon aspracticable is further explained aswithin one or two business days unlessthat is not feasible. The regulation isrevised to provide that an employer maydelay (rather than deny) leave whererequired notice has not been given.

Medical Certification of Serious HealthConditions (§ 825.305)

The Community Legal Services, Inc.commented that low income workersmay be unable to persuade health careproviders to provide medicalcertifications. They urge an exceptionfor such workers if obtaining thecertification is not practicable under theparticular circumstances despite theemployee’s diligent, good faith efforts,and a similar exception that wouldexcuse a person’s inability to produce acertification or all the informationrequested by the employer because ofnon-cooperation by the health careprovider. If an employee under thesecircumstances is unable to provide acomplete certification, the employercould request a second opinion at theemployer’s expense, they suggest.Further, any employer that requires acertification should provide a copy tothe employee.

The provision for medicalcertification at the request of theemployer is a basic qualification forFMLA leave. It is the employee’sresponsibility to provide suchcertification. The Final Rule has beenamended in § 825.311(b) to provide that

if an employee never produces therequested certification, the leave is notFMLA leave. It is the employee’sresponsibility to find a health careprovider that will provide a completecertification. As the employee isproviding the certification to theemployer, if the employee wishes tohave a copy he/she may make a copybefore submission to the employer. Theregulation has been amended to providefor copies of a second or third opinionto be provided by the employer to theemployee upon the employee’s request.

Eight commenters observed thatproviding a minimum of 15 days for theemployee to provide medicalcertification is unreasonable. In somecases the certification would not beprovided until the leave is over if theleave is only for a short period of time,and the employee would have returnedto work, thereby denying the employerthe opportunity to obtain second andthird opinions where appropriate anddesignating the leave as FMLA leaveafter the employee has returned to work.Several alternatives were proposed,from allowing the employer to define anacceptable time frame to allowing onlyone week to provide the certification.

The regulations have been amendedin § 825.305(a)(2) to track the statutemore closely. Ordinarily, when leave isforeseeable and at least 30 days noticehas been provided, the employee shouldprovide the medical certification beforethe commencement of leave. If the needfor leave does not allow for this, theemployee should provide thecertification within the time framesestablished by the employer forsubmission of the certification, whichmust allow at least 15 days after theemployer’s request. Section 825.208 ofthe regulations has been amended toenable the employer to make apreliminary designation of leave whenthe certification was not provided priorto the commencement of leave, or theemployer is awaiting a second or thirdopinion, and to confirm or withdraw thedesignation depending upon the resultsof the medical opinions even though theemployee has returned to work. TheDepartment believes that therequirement to provide the certificationin no less than 15 days is reasonable asthe employee has no control over thetiming of the health care provider’scompletion of the certification form.

Two law firms, Fisher and Phillipsand Sommer and Barnard, observed theregulations are silent regarding timeframes for submission ofrecertifications. Section 825.308 hasbeen amended to clarify thatrecertifications are subject to the same


15-day time frames as the originalcertification.

Section 825.305(e) has also beenrevised to clarify the certificationrequirements when the employer’s paidleave plan contains lesser obligationsand paid leave is substituted for unpaidFMLA leave. If the employer’s sick ormedical leave plan contains lessstringent certification requirements thanthose of FMLA, and paid sick, vacation,personal or family leave is substitutedfor unpaid FMLA leave as provided in§ 825.207, only the employer’s lessstringent sick leave certificationrequirements may be imposed. See, also,§ 825.207(h).

Information Required in MedicalCertifications (§ 825.306)

Ten commenters questioned thenecessity for the health care provider toprovide a diagnosis when providing amedical certification of the existence ofa serious health condition, andsuggested that providing appropriatemedical facts is sufficient for thispurpose. The Women’s Legal DefenseFund comments were reasonablyrepresentative of these commenters.They observed that the optionalcertification form provides moreinformation to the employer thanstatutorily required (for example,diagnosis and regimen of treatment),and that inquiries regarding suchmatters may be a violation of the ADA.They noted that health care providersmay be reluctant to provide detailedmedical information due to ethical andprivacy concerns, and expressedconcerns regarding confidentiality andemployee waivers. They recommendedthat the form include space for anemployee signature which wouldprovide a limited waiver from theemployee to release the information tothe employer for purposes of FMLAleave only.

Other commenters questioned theabsence of a box to check on the formto indicate that an employee has beenprescribed medicine, an indication ofcontinuing treatment under the InterimFinal Rule. The Hyman ConstructionCo. observed that it would be helpful ifthe form provided space for the healthcare provider’s address and telephonenumber. Still others wanted the healthcare provider’s Employer IdentificationNumber and Social Security Number.

After a review of these comments, andsignificant revisions to the definition of‘‘serious health condition’’ in § 825.114of the regulations, this section and FormWH–380 have been completely revised.In general, the purpose of the revisionsis to allow employers to obtaininformation from a health care provider

to verify that an employee in fact has aserious health condition, and the likelyperiods of absence by the employee, butno unnecessary information. The formhas been revised, for example, to requirecertification as to which aspect of thedefinition applies, and to state themedical facts to support the definition.The regulation and form no longerprovide for diagnosis, and make clear,consistent with the ADA and privacyconcerns, that all information on theform relates only to the condition forwhich the employee is taking FMLAleave. However, it is considerednecessary to include informationregarding the regimen of treatment ingeneral terms (e.g., prescription drugs)since this is one of the specificrequirements of a serious healthcondition under § 825.114(a)(2)(i)(B).

The suggestion that the health careprovider be required to furnish anEmployer Identification Number and/orSocial Security Number has not beenadopted. The optional medicalcertification form is not a substitute foran insurance claims form; its use isintended for purposes of confirming theexistence of a serious health condition,and thus the need for FMLA leave. Theinformation provided by the form isrequired to be kept confidential by theemployer and it would be inappropriatefor the employer to place this form intothe ordinary business process forinsurance claims.

The Department has not adopted thesuggestion that a waiver by theemployee is necessary for FMLApurposes. The process provides for thehealth care provider to release theinformation to the patient (employee orfamily member). The employee thenreleases the information (form) to theemployer. There should be no concernregarding ethical or confidentialconsiderations, as the health careprovider’s release is to the patient. Theemployee may choose to withhold thecertification from the employer. In sodoing, however, the opportunity to takeFMLA leave is sacrificed, but thatwould be the employee’s decision. Inthe more than 12 months that haveelapsed since the Interim Final Rulebecame effective, the Department hasreceived no feedback that the absence ofan employee waiver on the optionalmedical certification form has createdany difficulty for the health carecommunity, employers, or employees.

The Equal Employment OpportunityCommission provided commentsregarding the medical certificationprocess. EEOC suggested that questions5 and 6 of the form are too broad.Question 5 asks for the probableduration of a condition. EEOC

recommended the question be revised toask the probable duration of thecondition for which the leave isrequested, and suggested Question 6 isoverly broad for the same reason, i.e.,asking about the regimen of treatment tobe prescribed. Question 5 has beenrevised. Question 6 has not been deletedbecause the information is necessary todetermine if a serious health conditionexists. However, the form makes clearthat all information relates to thecondition for which leave is needed.

The Burroughs Wellcome Companyand Joan L. Kalafatas observed thatsometimes employers need othermedical information for purposes otherthan FMLA leave, and suggested thatthe FMLA regulations indicate thatother information may be requestedalthough it may not be used to makedecisions required under FMLA. TheDepartment disagrees with thiscomment. If the employer needsmedical information for some otherpurpose, the employer needs to make anadditional, perhaps simultaneous,request.

Massmutual Life Insurance Companyrecommends an employer with a paidleave program be allowed to use a singlecertification form for FMLA and paidleave purposes, asking that the form bepermitted to include information inaddition to that identified by the FMLAregulations only if the additionalinformation would be used to verifyeligibility for paid leave. It would not beappropriate to permit employers torequest additional medical informationto support an employee’s desire tosubstitute accrued paid leave for FMLAleave. The regulations provide that anysuch requirements may not be morestringent than those required by FMLA.If the commenter is referring toeligibility for benefit plans rather thanpaid leave, the Department has includeda provision in the Final Rule that if anemployee must meet higher standards toqualify for payments from an employeebenefit plan, e.g., a disability benefitplan, the employee is required tocomply with the requirements of thebenefit plan in order to receivepayments. The employee may choosenot to meet the higher standards of thebenefit plan and thereby not receivepayments from the plan; however, theemployee continues to be entitled toFMLA leave. Section 825.207(d) hasbeen amended to incorporate thisguidance.

The California Department of FairEmployment and Housing urged that§ 825.306(b) be amended to reflect thatcollection of this information by theemployer is discretionary and that it isappropriate for the employer to comply


with State or local law. California lawdoes not permit an employer to requirethat the medical certification specify theserious health condition which led tothe leave request. Section 825.701 of theregulations provides guidance toemployers regarding the responsibilityto comply with applicable State statutes.If the provisions of the State statute aremore beneficial to the employee or morerestrictive in terms of the rights of theemployer (such as by prohibiting arequirement that more medicalinformation be required), the employermust comply with that State statute.

The law firm of Fisher and Phillipscontended that the provision thatemployers may use another type ofmedical certification only if noadditional information is required is notsupported by FMLA § 104(c)(3). TheDepartment disagrees, with oneexception. The provisions of § 104(c)(3)relate to the circumstances when anemployee is unable to return fromFMLA leave due to the onset orcontinuation of a serious healthcondition. The information required bythis section of the statute and theregulations is the maximum which canbe requested. Nothing in § 104(c)(3)implies that an employer may ask formore information than is required by§ 825.306. Section 825.207(d) has beenamended to permit the employer torequest a greater amount of informationif required in order for an employee toqualify for payments from an employerbenefit plan, or in the event theemployee is on a worker’s compensationabsence and the applicable worker’scompensation statute permits theemployer to acquire additionalinformation.

Michael Meaney suggested thatcertification of a disability should bestrictly limited to medical doctors(M.D.s). The Department is unable toadopt this suggestion in light of theguidance provided by the Congress andthe Department’s deliberations over thedefinition of a health care provider. Forexample, FMLA’s legislative historyindicates clear Congressional intent thatChristian Science Practitioners beincluded in the definition of health careprovider. These individuals are clearlynot M.D.s. In considering the types ofhealth care providers available to thegeneral population, particularly thosewho live in rural areas which do nothave ready access to a doctor (MD), butregularly rely on nurse practitioners andmidwives, the Department concludedthat it is appropriate to include theseprofessions in the definition of a healthcare provider. Rather than further limitthe definition of a health care providerin § 825.118 of the regulations, the Final

Rule expands the practitioners that mayqualify as health care providers.

This section has also been revised toclarify the certification requirementswhen the employer’s paid leave plancontains lesser obligations. Only theemployer’s lesser certificationrequirements may be imposed whenpaid leave is substituted for FMLAleave, as provided in § 825.306(c). Seealso § 825.207(h).

Adequacy of Medical Certification(§ 835.307)

Six commenters (four working womenadvocacy groups and two unions) urgedthat when an employer requires asecond or third medical opinion, notonly the costs of obtaining the opinionby the health care provider be at theemployer’s expense, but because theemployee is expending time at theemployer’s direction, the employershould also be required to pay theemployee for the time spent in acquiringthe required medical opinions. TheDepartment has considered thesecomments carefully but has concludedthat Congress did not intend thatemployees on unpaid FMLA leave bepaid for the time spent obtaining secondand third medical opinions. Section825.307(d) has been amended, however,to make it clear that an employer mustin all cases reimburse an employee orfamily member for any reasonable ‘‘out-of-pocket’’ travel expenses incurred inobtaining the required second and thirdopinions.

The Equal Rights Advocates requestedan exception be provided whereobtaining the second or third opinionfor an immediate family member wouldbe onerous. Further, they suggest thatwhen the employer requires a second orthird medical opinion and theemployee’s leave has already begun, theemployee should be allowed to continueon leave and the employer should berestrained from demandingreimbursement for insurance premiums.If the third opinion disputes the originalmedical certification, the employee maybe required to return to work; theemployer may not take any unfavorableaction against the employee; theemployer shall not be entitled toreimbursement for insurance premiumspaid during the leave; and, theemployee’s FMLA leave entitlementshall be reduced by the period of leaveactually taken.

The third medical opinion becomesnecessary only when the secondopinion disagrees with the originalopinion. In the suggestion, the thirdopinion now agrees with the second,which means that either the employeeor the employee’s family member does

not or did not have a serious healthcondition. If a serious health conditiondid not exist, the employee was notentitled to take any FMLA leave, as theabsence was not for an FMLA reason.Thus, the employer is prohibited fromcharging or deducting the time of theabsence from the employee’s FMLAleave entitlement, and the employeedoes not have the rights and protectionsof the statute for that absence. TheDepartment is unable to incorporate thissuggestion in the regulations. TheDepartment agrees, however, thatpending the ultimate resolution of theemployee’s entitlement to leave throughthe certification process, the employeeis provisionally entitled to the benefitsof the Act, including maintenance ofgroup health benefits. If thecertifications do not ultimately establishthe employee’s entitlement to FMLAleave, the leave will not be counted asFMLA-qualifying and may be treated aspaid or unpaid leave under theemployer’s established leave policies.This section is so revised.

The Equal Rights Advocates furthersuggest that the second and thirdmedical opinion should only be allowedif it is not unduly burdensome to thefamily member. The right of theemployer to require a second medicalopinion when the employer has reasonto question the validity of the originalmedical certification is statutory.Consequently, the employer is entitledto the second opinion, and the thirdopinion if the second opinion disagreeswith the original opinion. Thealternative is for the employee to foregoFMLA leave. However, § 825.307 hasbeen amended to provide that anemployer may not ordinarily require anemployee to travel outside normalcommuting distances in obtaining therequired opinions.

The Women Employed Institute andWomen’s Legal Defense Fund suggestthat when an employer requires asecond or third medical opinion, theemployee should be provided a copy ofthe results. The Department agrees andhas added § 825.307(c)(1) to require theemployer, upon request from theemployee, to provide copies within twobusiness days.

Nineteen commenters commented onthe provision that prohibits an employerfrom obtaining a second medicalopinion from a health care provider thatthe employer employs or regularlyutilizes. Several of the commenters arelarge hospital facilities or HealthMaintenance Organizations (HMOs)who have large numbers of doctorseither on the payroll or with whom theyregularly contract to provide medicalcare to their patients. Kaiser Permanente


suggested that only those health careproviders whom the employer regularlyemploys to provide employee medicalexams be excluded. Kennedy MemorialHospitals suggested the regulations bechanged to allow an employer-affiliatedphysician to render a second opinionand to require a neutral physicianprovide a third opinion if necessary.Koehler Manufacturing Companyrecommended that a health careprovider regularly employed by theemployer be allowed to provide thesecond medical opinion as this healthcare provider would be familiar with thejob duties and responsibilities. Othercommenters suggested that an employeebe required to be examined by theemployer’s medical department. UnitedHealthcare Corporation operates HMOsand has contractual relationships withthe majority of physicians within agiven area, and suggests it is virtuallyimpossible to comply with thisrequirement. Section 103(c)(2) of theAct provides that a health care providerdesignated or approved to provide asecond medical opinion shall not beemployed on a regular basis by theemployer, which is a statutoryprohibition. The Department is unableto adopt the suggestions.

Ten commenters were critical of theprovision in § 825.307(a) that prohibitsan employer from making any contactwith the employee’s health careprovider to obtain additionalinformation, including the health careprovider’s address and telephonenumber. They indicated this prohibitionworked against the interests of both theemployee and the employer. Theabsence of the opportunity of theemployer’s health care providercontacting the employee’s health careprovider potentially creates additional,unnecessary costs for the employer andunnecessary discomfort for theemployee who may be on leave for aserious health condition, leaving as theonly recourse obtaining a secondmedical opinion. After review of thesecomments the Department agrees tosome extent that a total prohibition oncontact with the employee’s health careprovider is not in the best interests ofboth parties in many cases. Employershave observed that if they could onlytalk with the employee’s health careprovider to ask one or two clarifyingquestions, the initial medicalcertification could be accepted withoutresorting to a second, and maybe a third,opinion. The regulations have beenamended in § 825.307(a) and in§ 825.310(b) (certification of fitness-for-duty) to permit a health care providerrepresenting the employer to contact the

employee’s health care provider forpurposes of clarifying the information inthe medical certification or confirmingthat it was provided by the health careprovider. The inquiry may not seekadditional information regarding theemployee’s condition. Such contact mayonly be made with the employee’s orfamily member’s permission asappropriate. If the employee refuses togive permission, the employer may thenrequire certification from a secondhealth care provider. The optionalmedical certification form is beingamended to include the health careprovider’s address and telephonenumber. Further, if the FMLA leave isrunning concurrently with a workers’compensation absence under Stateprovisions that permit the employer oremployer’s representative to have directcontacts with the health care providertreating the workers’ compensationinjury or illness, such authorized directcontacts with the health care providerare not prohibited under FMLA (unlessthe employee chooses to forego theworkers’ compensation claim). Thiscontact may only be made by a healthcare provider representing theemployer, as most employers are notmedically qualified to pose clarifyingquestions to the employee’s health careprovider. Further, a number ofcommenters have expressed concernregarding the privacy of the employeeand the ethical considerations of theemployee’s health care providerfurnishing information to a non-medicalperson (the employer). By requiring theemployee’s permission (or wherefollowing authorized procedures underworkers’ compensation laws) andlimiting the contact to a health careprovider, both these considerations andconcerns will be addressed. It should benoted that although the regulations donot require that the employee’spermission be obtained in writing, aprudent employer should follow such apractice.

Seventeen commenters addressed theissue of the third medical opinion. Onecommenter observed that the employer/employee should be able to use a healthcare provider (HCP) that is employed bythe employer. Others suggested anumber of processes to select the healthcare provider to provide the thirdopinion, such as: select the third healthcare provider on the basis of theworker’s compensation statute; thechoice should be the employer’s aloneas the opinion is obtained at theemployer’s expense; either theemployee or employer submit a list offrom three to five health care providersto the other and let the other party select

one from the list; the selection shouldbe made by the first and second healthcare providers; the local medical societyshould be allowed to make theselection; obtain a list of seven to 10health care providers and let theemployer and employee each strikenames until only one is left. Twocommenters stated that the provisioncurrently in the Interim Final Rule isreasonable.

The Department has thoroughlyreviewed the comments and finds thereare a number of viable methods forselecting the third health care provider.The current regulations place nolimitation on the method for selectingthe third HCP and it seems appropriateto continue to provide the employer andemployee flexibility to use any mutuallyagreeable method. The Final Rule willincorporate the provision of the currentrule without change. It should be notedthat the prohibition against using ahealth care provider regularly employedby the employer does not apply to theselection of the health care provider torender the third medical opinion(subject to the agreement of theemployee).

Fisher and Phillips observed that theregulations are silent on medicalcertification when the health careprovider is located in another country.The observation is accurate. Since theregulations became effective, a numberof issues have arisen when theemployee or a member of theemployee’s immediate family (e.g.,parent) is visiting or living in a countryother than the United States. TheDepartment has added a provision to§ 825.305(a) to address this issue. Inessence, the employer must accept amedical certification from a health careprovider who is licensed to practice inthat country, and make arrangements forsecond and third opinions, if required,with health care providers in thatcountry.

The Edison Electric Institute askedwhen a second or third medical opinionis sought, what kind of information maythe employer request? The Departmenthas designed the optional medical formto be used for all three of the medicalopinions as needed. If the employerchooses not to use the optional form forthe second and third opinion, theinformation that may be requested islimited to that contained on the formand in § 825.306 of the regulations.

Subsequent Recertifications of MedicalConditions (§ 825.308)

Thirteen commenters addressed therequest for comments in the InterimFinal Rule regarding the appropriatelength of time that a medical


certification should be valid. Twocommenters suggested that no timeframe should be established, but that itshould be dictated by the nature of theemployee’s condition and any changesin the condition (e.g., the employershould determine when anothercertification would be appropriate).Several commenters suggested that anemployer should not be required to relyon any certification that was obtainedover six months prior to the currentnotice of need for FMLA leave. Three ofthe commenters indicated that anemployee should be able to use amedical certification that had beenobtained within the past six months ora year. Another commenter observedthat permitting the use of non-currentcertifications would provide thepotential for abuse. The law firm ofSommer and Barnard suggested amaximum of 12 weeks for the life of thevalidity of the certification under anycircumstances, including the taking ofleave intermittently or on a reducedleave schedule. They referred to theprovisions in this section that permitthe employer to request recertificationevery 30 days. The longest time ofvalidity of the certification suggested byany commenter was one year.

Seventeen commenters raisedconcerns on the particularcircumstances that permit an employerto require recertifications. The majorityof the commenters indicated thatpermitting a recertification every 30days is not reasonable as contemplatedby the statute. Others indicated thatlimiting the recertification to every 30days was too long; some suggested 15days instead of 30 days. Some urgedthat the recertification should beobtained at the employer’s expense. Onecommenter asked what recourse theemployer has when the employee doesnot provide the requestedrecertification.

After a review of all the comments theDepartment agrees that permitting theemployer to routinely requestrecertification every 30 days is notreasonable in some circumstances.Section 825.308 has been changed toprovide that where a certificationprovides a minimum duration of morethan 30 days, the employer may notobtain recertification until thatminimum period has passed unless thecircumstances specified in theregulations are present. For chronicconditions, recertification is ordinarilypermitted every 30 days, but only inconnection with an absence. Exceptionsare provided only if circumstances havechanged significantly or the employerhas reason to believe the employee wasnot absent for the reason indicated.

Because the statute does not provide forsecond or third opinions forrecertifications, no such opinions maybe required. The recertification must beobtained at the employee’s expenseunless the employer voluntarily choosesto pay for the recertification itself.Congress specifically required thesecond and third opinions to beobtained at the employer’s expense.Congress did not include such arequirement regarding recertifications;consequently, there is no basis for theDepartment to impose the costs on theemployer by regulation. If the employeefails to provide the recertificationwithin 15 days when it was practicableto do so, the employer may delay furtherFMLA leave until the recertification isprovided.

Notice of Intent To Return to Work(§ 825.309)

Employees may be required to reportperiodically on their status and intent toreturn to work while on FMLA leaveprovided the employer’s policyregarding such reports is notdiscriminatory. The Women’s LegalDefense Fund asked that the term‘‘discriminatory’’ be defined and thatthe regulations set out how often anemployer may request status reports.They also urged that the regulationsstate that employers may not requirereports in a manner that discriminateson the basis of gender, race, etc.

The statute already provides aprohibition regarding discrimination.There are a number of references in theregulations to Title VII of the CivilRights Act which prohibitsdiscrimination based on sex, race, etc.

Since the statute became effectivethere has been no feedback to theDepartment indicating difficulties withthe aspect of discrimination pursuant toeither FMLA or Title VII. Theregulations presently state that, withregard to reasonableness, the employermust take into account all the relevantcircumstances and facts related to theindividual’s leave situation. Clearly, it isthe intent of the statute and theregulations that employers not use theentitlement to require status reports ina manner that is burdensome anddisruptive to the employee while onFMLA leave. The intent is that suchrequests be reasonable under theexisting circumstances. An employerwho misuses or abuses this provisionmay be found to have engaged inprohibited acts under the statute. It doesnot seem appropriate or necessary torepeat the prohibitions of Title VII inthese regulations. This section willremain unchanged in the Final Rule.

Three commenters requestedclarification regarding the employee’sstatus when the employee fails to returnat the conclusion of the leave or after 12weeks of absence.

If the employee does not return towork at the conclusion of the plannedleave, the employee should give theemployer reasonable notice of the needfor an extension if less than 12 weeks ofFMLA leave been exhausted in the 12-month period. If the employee is unableto or does not return to work at the endof 12 weeks of FMLA leave, allentitlements and rights under FMLAcease at that time; the employee is nolonger entitled to any further restorationrights under FMLA, and the employer isno longer required to maintain grouphealth benefits pursuant to FMLA.

The law firm of Black, McCluskey,Sourers and Arbaugh, suggest that anemployee who does not provide a statusreport after being given notice should beconsidered not intending to return towork.

The determination would bedependent upon all the facts in thespecific case. The commenter assumesthat the employee has received thenotice. Perhaps the employee is inanother city caring for a parent and doesnot receive a request mailed to theemployee’s home. It is simply notpossible to state a general rule regardingthis circumstance; it is dependent on allthe facts. Clearly, the failure to responddoes not constitute unequivocal noticein all cases.

The Texas Department of HumanServices asked for a definition of‘‘unequivocal,’’ and whether it meant awritten statement. The definition of thisterm is that it is understandable in onlyone way with no expression ofuncertainty, i.e., distinct, plain,absolute, clear. It has nothing to do withwhether the notice is written or verbal.

The law firm of Fisher and Phillipsurges that the regulations should clarifywhether employees who request FMLAleave in excess of 12 weeks are entitledto any FMLA leave and whether theyare entitled to maintenance of grouphealth coverage.

The fact that the employee requests agreater amount of leave than the 12-week entitlement under FMLA does notnegate his/her right to FMLA leave. Theemployee would be entitled to take 12weeks FMLA leave with full rights andprotections including maintenance ofgroup health insurance. The employee’sstatus would be reexamined at the endof the 12-week FMLA entitlement.

The law firm of Sommer and Barnardurges that the regulations provide that,if an employee wishes to return to workprior to the anticipated end of the leave


period, the employee be required to givethe employer at least one or two daysnotice.

The Department agrees that anemployee should give reasonable noticeto the employer where early return towork is foreseeable, and the regulationshave been revised in paragraph (c) ofthis section to provide for a minimumof two days notice from the employee.Employers may also obtain thisinformation through status reports fromemployees.

The Society for Human ResourceManagement asked if an employer mayrequire certification from an employeefor adoption or birth of a child uponreturn to work? May an employerrequire certification from a father forbonding leave? The answer to bothquestions is affirmative; however, theemployer’s request for documentationmust be reasonable, and should beobtained at the beginning of the leaverather than at the conclusion. Theregulations have been changed in§ 825.113 to provide for such reasonabledocumentation of the reason for FMLAleave.

Return to Work Medical Certification/Fitness-for-Duty (§ 825.310)

Six commenters objected to thelanguage of the regulations that providesfor a fitness-to-return-to-workcertification pursuant to an employer’suniformly-applied policy. They alsoexpressed concern regarding theimplications resulting from ADArequirements.

The Department agrees with some ofthese concerns. This section of theregulations has been changed to make itclear that the requirement of uniformityapplies only to employees in similarcircumstances (i.e., the sameoccupation, suffering from the sameserious health condition). Furthermore,pursuant to ADA, the requirement forsuch a physical must be job-related andconsistent with business necessity.

Two commenters urged that thefitness-for-duty certification be obtainedat the employer’s expense.

The statute clearly requires theemployer to bear the costs of the secondand third medical opinions. TheCongress made no such provision forrecertifications or fitness-for-dutycertifications. The Department is unableto assign these costs to the employer inthe absence of statutory language.

Four commenters urged that theregulations provide for second and thirdmedical opinions on fitness-for-dutycertifications as in the case of theoriginal medical certification.

The statute expressly provides forsecond and third medical opinions

regarding the original medicalcertification. No such provision iscontained in the statute for the fitness-for-duty certification. The Department isunable to incorporate this suggestion inthe Final Rule.

Four commenters urged that theemployer be permitted to confirm theemployee’s fitness-for-duty with anexamination by the in-house medicaldepartment. This may be particularlyrelevant with regard to an employeereturning from drug abuse treatmentwho may be subject to periodic follow-up examinations after returning to work.

The regulations do not prohibit theemployer from requiring the employeeto submit to an examination afterreturning to work, provided suchexamination is job related andconsistent with business necessity inaccordance with ADA guidelines.However, an employer may not denyreturn to work to an employee who hasbeen absent on FMLA leave pendingsuch an ‘‘in-house’’ examination. Thestatute provides the employee must onlyprovide the employer with certificationfrom the employee’s health careprovider to qualify to return to work.Any examination by the employer’smedical staff may take place the firstday of the employee’s return to work.

Failure To Satisfy Medical CertificationRequirements (§ 825.311)

The law firm of Sommer and Barnardobserves that the regulations providethat an employer may require that anemployee’s request for leave besupported by certification. If theemployee fails to furnish certificationthen surely the employer should be ableto deny the entire leave, not simply thecontinuation of leave. Two commentersurge that if an employee fails to providethe required certification, not onlyshould continuation of leave be denied,but the employee should be subject todisciplinary action by the employer.

The Department agrees with thisanalysis, and has modified § 825.311 tostate that if the employee never providesthe certification then the leave is notFMLA leave. If the leave taken by theemployee is not FMLA leave, theemployee does not enjoy the protectionsof the statute.

The Society of Professional BenefitAdministrators expressed concernregarding the relationship betweenworker’s compensation statutes andFMLA. As discussed above, the FinalRule has been changed in § 825.207 toaddress worker’s compensationabsences and FMLA.

Refusal to Provide FMLA Leave orReinstatement (§ 825.312)

The Department of Civil Service, Stateof New York comments that in the eventthe employee requests to return to workprior to the agreed date, the employershould not be required to reinstate theemployee immediately but should begiven a reasonable period to make thenecessary arrangements.

The Department has clarified thisissue in §§ 825.309(c) and 825.312(e) ofthe regulations. An employee may notbe required to take more FMLA leavethan necessary to address thecircumstances for which leave wastaken. If the employee finds thecircumstance has been resolved morequickly than anticipated initially, theemployee shall provide the employerreasonable notice—two business days iffeasible. The employer is required torestore the employee where such noticeis given, unless two days notice was notfeasible—for example, where theemployee receives a release from thehealth care provider to return to workimmediately, and that release isobtained earlier than anticipated.

The law firm of Sommer and Barnardcommented regarding the requirementthat when taking intermittent leave forplanned medical treatments theemployee should make a reasonableeffort to arrange the treatments so as notto unduly disrupt the employer’soperations. Section 825.312 fails torecognize this employee obligation orassign a consequence for its breach.

The Department concurs to somedegree. It should be kept in mind thatthe employee does not always havealternatives to the dates of plannedmedical treatment as this is largely inthe control of the health care provider.Section 825.302(d) has been modified ina manner that should lead to greatercommunication between the employeeand the employer regarding this issue.

The Employers Association of NewJersey asks if an eligible employee whohas accumulated an unacceptablenumber of absences and has been givena final warning that provides that anyabsence within the next 30 days willresult in immediate discharge may takeFMLA leave to care for an ill spouse.

An eligible employee who has notexhausted his/her 12-week FMLA leaveentitlement would be entitled to takeleave under these circumstances if allthe requirements of the statute are met.The employee would be required toprovide adequate notice of the need forleave, 30 days in advance if foreseeableor as soon as practicable, and if requiredby the employer, medical certificationconfirming the existence of the spouse’s


serious health condition. The employermay not take adverse action against theemployee by denying leave or takingother disciplinary actions for havingtaken FMLA leave. The taking of FMLAleave may not be counted against theemployee under the employer’sattendance policy. See § 825.220.

The Equal Employment AdvisoryCouncil suggests that it be made clearthat employee misconduct prior, duringor after FMLA leave that violatescompany policy is subject to theconsequences of the employer’spolicies.

The Department wishes to make clearthat FMLA is not a sanctuary for theemployee who has violated or is inviolation of company policies. A basictenet of FMLA is that the employee whotakes FMLA leave is to be treated nodifferently than if the employee hadcontinued to work. For example, if theemployer has a non-discriminatorypolicy that the second time theemployer becomes aware that anemployee has engaged in the illegal useof drugs, the employee will beterminated, the fact that the employee ison FMLA leave will not shield theemployee from the continuedapplication of that policy (i.e.,termination).

The Society for Human ResourceManagement (SHRM) asked whether anemployee who is on FMLA leave andwho resigns in the middle of the leavehas to be kept on the payroll until theleave period is over.

No. The regulations provide that oncean employee gives the employerunequivocal notice that the employeedoes not intend to return to work at theconclusion of leave, the employee maybe terminated and FMLA leave ends, aswell as the obligation for maintenanceof health benefits, and the employerneed not keep the employee on thepayroll after receiving such notice.

SHRM asked where an employee whois pregnant requests FMLA leave, butthe health care provider declines tocertify that the employee is unable towork as a result of the serious healthcondition (ongoing pregnancy), whataction should the employer take?

In this circumstance the employeedoes not qualify as being unable to workas a result of her condition, and theemployer could deny the use of FMLAleave.

SHRM asked how an employer wassupposed to manage absenteeism if theemployee continues to claim leave takenis covered by FMLA?

The Final Rule attempts to addresssome of these issues. An employer isentitled to request medical certificationand recertification in connection with

serious health conditions. The FinalRule provides that, if an employee neverprovides the medical certification, theabsence is not FMLA leave;consequently, the leave is not protectedby the FMLA. The Final Rule furtherprovides that the employer may requiredocumentation from the employee toconfirm family relationships, as in thecase of leave for birth or placement ofa child for adoption or foster care. TheDepartment believes there are a numberof tools available to employers underthe regulations that will serve todiscourage employee abuse of FMLAleave, in addition to the basic conceptthat the 12 weeks of leave mandated byFMLA are unpaid.

The Koehler Manufacturing Companycomments that it is unclear whether anemployee may earn W–2 wages withsome other employer while on FMLAleave.

The Department addressed this issuein the Interim Final Rule. Section825.312(h) provides that whether anemployee may engage in outsideemployment during FMLA leave isdependent upon the employer’sestablished policy regarding outsideemployment. For example, the employermay require that all outsideemployment be pre-approved by theemployer. If so, employment while onFMLA leave would be subject to thispolicy. This provision will remainunchanged in the Final Rule.

The Service Employees InternationalUnion took issue with the provision in§ 825.312(h) applying the employer’spolicy regarding outside employment toperiods of FMLA leave. SEIUmaintained that there is no statutorybasis for this provision, and that itconstitutes the imposition of additionalrequirements on the taking of FMLAleave.

The Department does not agree withthis view. As noted previously, a basictenet under FMLA is that an employeeon FMLA leave is entitled to no greaterright, benefit, or position of employmentthan if the employee continued to workand had not taken the leave (see§ 104(a)(3)(B) of the Act). While anemployee is on FMLA leave, therecontinues to be an employmentrelationship, the employer ismaintaining group health benefits andpossibly other benefits, and theemployee is entitled to return to thesame or an equivalent job.Consequently, the employer’semployment policies continue to applyto an employee on FMLA leave in thesame manner as they would apply to anemployee who continues to work, or isabsent while on some other form ofleave.

It is important to point out that theregulations do not prohibit outsideemployment by the employee on FMLAleave except as a result of theemployer’s established policies. In theabsence of such a policy the employeemay do as he/she chooses. However,taking outside employment during aperiod of FMLA leave may in somecases cast doubt on the validity of anemployee’s need for leave, particularlyif the leave was being taken for theemployee’s own serious healthcondition.

IV. Subpart D—EnforcementMechanisms

Employee Rights When FMLA Has BeenViolated (§§ 825.400–825.404)

Federally Employed Women, 9 to 5,National Association of WorkingWomen, Women’s Legal Defense Fund,the Food and Allied Service Trades(FAST) and the United Food andCommercial Workers InternationalUnion (UFCW), suggest that the InterimFinal Rule fails to include a complaintprocedure that provides expedited reliefand that the rule does not includeinjunctive relief as one of the availableremedies in an employee’s private courtaction. The Women’s Legal DefenseFund and FAST urge that § 825.400(c)be amended to include ‘‘other equitablerelief as appropriate.’’ FAST points outthat the expedited procedure isimportant, particularly if the employerfails to maintain group health insuranceand the employee has a serious healthcondition which heightens the need formedical benefits.

The provision for an expeditedcomplaint procedure is not a regulatoryissue, but rather is an internal agencyadministrative enforcement issue. Inany event, such an expedited procedurewas adopted under FMLA inappropriate circumstances, and willcontinue to be used as an effectiveenforcement tool in carrying out theDepartment’s responsibilities pursuantto FMLA. The statute at § 107(a)(2)makes no provision for an eligibleemployee to seek equitable reliefthrough an injunctive action. Such anaction is available only for the Secretaryin § 107(d). The suggestion will not beincorporated into the Final Rule, as ithas no statutory basis.

In the event the employer violatesFMLA by failing to maintain the grouphealth benefits as required, anddropping the employee’s coverage, theemployer in effect becomes self-insuredand liable for any medical expensesincurred by the employee that wouldhave been covered by the group healthplan. With respect to the comment that


the rule be amended to includeequitable relief, although the currentrule, at § 825.400(c), includes such relief(‘‘employment, reinstatement andpromotion’’), the language has beenclarified.

The Personnel Management Systems,Inc., urges that an employee bepermitted to file a civil suit only afterthe Department has had an opportunityresolve the issue. The statute places norequirement that an employee exhaustadministrative remedies before beingauthorized to file a private suit, as underTitle VII. The legislative historyconfirms such a result. Therefore, nochange will be made in the Final Rule.

The Chamber of Commerce of theUSA questions the statutory basis forallowing an employee or another personto file a complaint with the Secretary ofLabor, stating that only the affectedemployee should be permitted to file acomplaint. The legislative historyprovides guidance on enforcement ofthe statute. FMLA’s enforcementscheme is modeled after the FLSA,which has been in effect since 1938.Thus, FMLA creates no new agency orenforcement procedures, but insteadrelies on the time-tested FLSAprocedures already established by theDepartment of Labor. Report from theCommittee on Labor and HumanResources (S. 5), Report 103–3, January27, 1993, pp. 35–36. The Department, inits enforcement of FLSA, has acceptedcomplaints from employees as well asother persons who may have knowledgeof the circumstances (e.g., a relative ofthe employee, a Collective BargainingUnit representative, a competitor, etc.).

The Nevada Power Company and theEdison Electric Institute suggest thatpunitive damages should be limited tothose involving willful violations of thelaw. The statute does not explicitlyprovide for punitive damages, whichwould be available only if otherwiseprovided by law. Section107(a)(1)(A)(iii) provides for anadditional amount as liquidateddamages to the amount awarded,including interest. An employer mayavoid the liquidated damages if theemployer can show to the satisfaction ofthe court that the violation was in goodfaith and the employer had reasonablegrounds for believing that the actiontaken was not a violation of the statute.The regulations cannot limit theemployer’s liability for violations of thestatute, when no such limitation isprovided under the law.

The United PaperworkersInternational Union urges that theregulations require employers to justifysignificant changes in employmentlevels, thereby discouraging such

manipulations to avoid coverage. Thereis no basis in the statute for requiringsuch action on the part of employers.However, § 825.220(b)(1) of theregulation has been amended to advisecovered employers that suchmanipulation will be viewed as aviolation of the acts prohibited by thestatute and the regulations.

V. Subpart E—Records (§ 825.500)Nine commenters, including the

Women’s Legal Defense Fund (WLDF)and the EEOC, expressed concern aboutmaintaining the confidentiality ofmedical records. WLDF urged thatseparate files be maintained to protectthe confidentiality of ADA records, andEEOC said that having one confidentialmedical file for both laws (FMLA andADA) may not always satisfy the ADAconfidentiality requirements. EEOCstated that ADA protects all‘‘information * * * regarding * * *medical condition or history of anyemployee,’’ (see 29 CFR § 1630.14(c)(1)),which would include all employeemedical information regardless of theform or manner in which it is provided,whereas the FMLA rule would belimited to ‘‘records and documentsrelating to medical certifications,recertifications or medical histories ofemployees or employees’ familymembers.’’ According to EEOC, if allmedical information is kept confidentialunder FMLA like under ADA,maintaining only one confidentialmedical file would satisfy the ADAprovided employers administer theexceptions to the confidentialityrequirement in conformance with ADArequirements (e.g., employers wouldhave to provide supervisors or managersonly with the specific information‘‘regarding necessary restrictions on thework or duties of an employee’’(§ 825.500(g)(1)), and deny them freeaccess to the entire medical files ofemployees). Section 825.500(g) has beenamended to require that medical recordscreated for purposes of FMLA and ADAmust be maintained in accordance withADA’s confidentiality rules on medicalinformation.

Nine commenters expressed concernregarding the recordkeeping burdenimposed by FMLA. The LaMotteCompany specifically took issue withthe estimate provided in the InterimFinal Rule of 3 minutes per response,observing that, in their opinion, therequirements would take much longer.They estimate each certified letterwould require one hour to prepare inaddition to copying and sending. Inaddition, they experienced numeroustelephone inquiries from employees andpointed out that time is also necessary

for training of supervisors andmanagers. The Human ResourcesDepartment, Village of Schaumberg,Illinois, also took issue with three-minute burden estimate. They observedthat calculating hours of unpaid leaveand the number of hours worked versushours of FMLA leave, determination ofFMLA versus other types of leave, andcreating a system to collect employees’share of benefits all requiredsignificantly more time than threeminutes. Most other commenters simplyexpressed the opinion that FMLArecordkeeping requirements areburdensome. The ‘‘three minutes perresponse’’ is an estimate of the annualrecordkeeping burden per employee, torecord and/or file records required bythe regulations that are not otherwiserequired by law or would otherwise bekept as a customary prudent businesspractice. It does not include thepreparation of employee noticesrequired by the regulations,determination of employee eligibility, orprocedures for payment of healthbenefits during FMLA leave.

The LaMotte Company observed thatthey had received statements fromemployees who believe that instead ofmaking arrangements for others to takecare of their children when they haveminor colds, sore throats, or earinfections, they may now stay homewith the child because they don’t haveto worry about saving sick leave for atruly serious health condition, andbecause FMLA may not be countedagainst their ‘‘point’’ system. Section825.114 contains the definition of aserious health condition. Theregulations provide that an employermay require an employee to provide amedical certification with regard to aserious health condition for a member ofthe employee’s immediate family(child). If the certification does notconfirm the existence of a serious healthcondition as defined under FMLA, orthe employee fails to provide thecertification when requested, the leaveis not FMLA leave.

The California Department of FairEmployment and Housing and theChesapeake Farm Credit object to therequirement for a covered employerwho has no eligible employees tocomply with the recordkeepingrequirements of this section. Section825.500(c) will be changed in the FinalRule to require the covered employerwith no eligible employees to post thenotice required in § 825.300 and tomaintain only the basic payrollinformation (i.e., name, address,occupation, rate or basis of pay, dailyand weekly hours, etc.) already requiredunder FLSA. These data are required to


enable the covered employer todetermine employee eligibility, whennecessary. Once the covered employerhas eligible employees, the additionalrecords required by § 825.500(d) mustbe maintained.

Florida Citrus Mutual observes thissection does not address the question ofrecords to be maintained by jointemployers. The records to be kept byprimary employers and coveredsecondary employers in a jointemployment situation should be listedseparately, they contend.

The regulations have been revised toprovide that a covered secondaryemployer in a joint employmentsituation need only keep basic payrollrecords with respect to its secondaryemployees. Other records are notnecessary because the secondaryemployer’s responsibilities in a jointemployment relationship are only toreinstate the employee under thecircumstances set forth in § 825.106(a)and to not violate any of the prohibitedacts of the statute.

VI. Subpart F—Special Rules for LocalEducation Employees

Limitations on Intermittent Leave orLeave on a Reduced Leave Schedule(§ 825.601)

The Women’s Legal Defense Fund andthe American Federation of Teachers/National Education Association statedthat the instructional employee whotakes intermittent leave amounting to 20percent or less of the working daysduring the period of leave should not besubject to the usual rules for takingintermittent leave in §§ 825.117 and825.204. The employer does not have aright to transfer the employee to analternative position under thiscircumstance. They suggest that thethird sentence of paragraph (a)(2) of thissection be deleted.

The statute at § 108(c)(1) gives theeducational employer the right torequire the employee either to take leaveof a particular duration not to exceedthe duration of planned medicaltreatment or to transfer to an alternativeposition that better accommodatesrecurring periods of leave. The statute issilent regarding the circumstances whenthe employee takes intermittent leavefor 20 per cent or less of the totalnumber of working days in the periodduring which the leave would extend.After further consideration theDepartment agrees that § 108 of the Actprovides the only provision applicableto instructional employees and,therefore, an educational employer doesnot have the latitude to transfer aninstructional employee to an alternative

position in this circumstance. The FinalRule will reflect this change.

Leave Taken for ‘‘Periods of a ParticularDuration’’ (§ 825.603)

Federally Employed Women, theWomen’s Legal Defense Fund and theAmerican Federation of Teachers/National Education Association objectedto the provision in paragraph (a) of thissection which states that leave that isrequired by the employer for either aparticular duration or until the end ofthe school term is to be counted asFMLA leave. They view this provisionto be doubly penalizing when theemployee is required to take more leavethan desired or medically necessary,and then to have that ‘‘extra’’ leavecount against his or her FMLA leaveentitlement. They urge that thisprovision be changed to reflect that suchleave is to be counted against the FMLAentitlement only if the employeechooses rather than is required to takeadditional leave.

The legislative history provides thefollowing guidance: Whenever a teacheris required to extend his or her leaveunder section 108(c) or (d), such leavewould be treated as other leave underthe act, with the same rights toemployment and benefits protectioncontained in section 104. Report fromthe Committee on Labor and HumanResources (S. 5), Report 103–3, January27, 1993, p. 37. However, theDepartment agrees that because theemployer had the option of notrequiring the employee to take leaveuntil the end of the term, the leaveshould not count against the 12-weekentitlement.

The Chicagoland Chamber ofCommerce, et al., commented that allperiods of leave taken by schoolemployees should count as FMLA leave,including any period of leave thatoccurs outside the school term. Forexample, if an instructional employeebegins a six-week leave two weeksbefore the school term ends, the entiresix-week period should count as FMLAleave.

The Department disagrees. Anabsence taken when the employeewould not otherwise be required toreport for duty is not leave, FMLA orotherwise. For example, the regulationsdo not require an employee, whonormally works Monday throughFriday, and is taking intermittent leave,to have counted as leave the weekenddays (i.e., Saturday and Sunday). If theemployee(s), absent FMLA, would nothave otherwise been required to takesome form of leave to cover the absence,then the absence is not to be countedagainst the employee’s FMLA leave

entitlement. Section 825.200(f) has beenadded to the Final Rule to clarify thisissue.

Restoration to ‘‘Equivalent Position’’(§ 825.604)

The Women’s Legal Defense Fund andthe American Federation of Teachers/National Education Association urgedthat this section be clarified in the FinalRule to make it clear that restoration ofan employee at the conclusion of FMLAleave based on existing policies andpractices of a school board must providesubstantially the same protections asprovided in the statute for otherreinstated employees. Specifically, theschool board may not restore theemployee to a position which wouldrequire any additional licensure orcertification, or would result insubstantially increased commuting time.

The Department agrees with thesuggestion that the regulation prohibitrestoration to a position requiringadditional licensure. While as a generalmatter restoration must be to ageographically proximate location, aschool board policy may deviate fromthis requirement provided the deviationdoes not result in substantially lessemployee protections. Therefore,commuting time will not be mentionedin the rule.

VII. Subpart G—How Other Laws,Employer Practices, and CollectiveBargaining Agreements AffectEmployees’ FMLA Rights

More Generous Employer Benefits ThanFMLA Requires (§ 825.700)

Nothing in FMLA diminishes anemployer’s obligation under a collectivebargaining agreement (CBA) oremployment benefit program or plan toprovide greater family or medical leaverights to employees than the rightsestablished under FMLA (FMLA§ 402(a)), nor may the rights establishedunder FMLA be diminished by any suchCBA or plan (FMLA § 402(b)).

This section of the regulationsdescribed the interaction betweenFMLA and employer plans and CBAs.Included were provisions to describeFMLA’s delayed effective date for CBAsin effect on August 5, 1993—FMLAwould not apply until February 5, 1994,or the expiration date of the CBA,whichever occurred earlier. For CBAssubject to the Railway Labor Act andother CBAs which have no expirationdate for the general terms, but whichmay be reopened at specified times (e.g.,to amend wages and benefits), the dateof the first amendment after August 5,1993, and before February 5, 1994, was


considered the effective date forpurposes of FMLA.

The State of Oregon’s Bureau of Laborand Industries, State of Oklahoma’sOffice of Personnel Management, Fisher& Phillips, and College and UniversityPersonnel Association raised questionsor offered comments on whether ‘‘moregenerous’’ family or medical leaveprovided pursuant to contract or anemployer policy may be counted againstan employee’s 12-week FMLA leaveentitlement under circumstances whereeither the employees would not yet beeligible for FMLA leave, or the leave isfor a reason that does not qualify asFMLA leave (e.g., employers adopt leavepolicies that mirror FMLA but relaxeligibility requirements or the definitionof serious health condition, or expandthe ‘‘family member’’ definition toinclude in-laws and domestic partners).To reduce the incentive for employers toeliminate such ‘‘more generous’’policies, these commenters contend thatDOL should allow employers to countsuch leave towards FMLA leaveentitlements.

Leave granted under circumstancesthat do not meet FMLA’s coverage,eligibility, or specified reasons forFMLA-qualifying leave may not becounted against FMLA’s 12-weekentitlement. However, employers maydesignate paid leave as FMLA leave andoffset the maximum entitlements underthe employer’s more generous policiesto the extent the leave qualifies asFMLA leave.

Sommer & Barnard questionedwhether FMLA’s 12 weeks of leave mustbe added to longer periods of employer-provided leave (e.g., disability leave); or,alternatively, whether employers mayoffset FMLA’s leave entitlement againstthe longer periods of employer-providedleave. To the extent that a particularabsence recognized under the employer-provided plan also qualifies as FMLAleave, and the leave is designated by theemployer in accordance with § 825.207and § 825.208, the absence may becounted concurrently under both FMLAand the employer’s plan (e.g., adisability that is covered by theemployer’s disability leave plan whichalso meets FMLA’s definition of‘‘serious health condition that makes theemployee unable to perform thefunctions of the position’’).

The Chamber of Commerce of theUSA commented that the language inparagraph (c) of this section provided areasonable construction of the Act’seffective date for CBAs subject to theRailway Labor Act and other CBAswhich do not have an expiration datefor the general terms, but which may bereopened between August 5, 1993, and

February 5, 1994, to amend wages andbenefits. The example given, however,of a contract reopening to amend wagesand benefits wrongly suggests that acontract reopened for any other reasonalso should be considered terminatedfor FMLA effective date purposes, theChamber contended. Any reopening notpertaining to benefits should not beconstrued as a termination of theagreement according to this comment.

We disagree with the interpretationsuggested by this comment. Anyreopening of the CBAs subject to thisrule, which is specifically limited toCBAs subject to the Railway Labor Actand other CBAs which do not have anexpiration date for the general terms, forthe first time after August 5, 1993, shallbe considered the termination date ofthe CBA for purposes of FMLA’seffective date.

The Contract Services Association ofAmerica questioned whether the costsassociated with FMLA’s requirements tomaintain group health benefits duringperiods of FMLA leave could becredited by a contractor towardsmeeting its fringe benefit requirementsunder wage determinations issuedpursuant to the McNamara-O’HaraService Contract Act (SCA), or are theyexcluded as are other statutorily-mandated benefits such as FICA,workers’ compensation, etc.? BecauseSCA excludes any benefit otherwiserequired by Federal, State, or local lawto be provided by the employer to anemployee, such costs may not beclaimed as a credit for purposes ofmeeting the contractor’s fringe benefitobligations to employees under theSCA. In any event, SCA credit may onlybe taken for contributions that coverperiods when work is performed.

The Contract Services Associationalso asked whether cash-equivalentpayments made in lieu of furnishingbona fide health and welfare benefits toan SCA-covered employee have tocontinue when the employee is onFMLA leave. Such cash equivalentpayments do not have to continue whilethe employee is on unpaid FMLA leave.

State Family and Medical Leave Lawsand FMLA (§ 825.701)

Nothing in FMLA supersedes ‘‘anyprovision of any State or local law thatprovides greater family or medical leaverights’’ than the rights under FMLA (seeFMLA § 401(b)). Because of thisstatutory ‘‘non-preemption’’ language,the determination of which law applies(State versus Federal) in a particularsituation must be examined on aprovision-by-provision basis. Where therequisite coverage or applicabilitystandards of both laws are met and the

laws contain differing provisions, ananalysis must be made of both laws,provision-by-provision, to determinewhich standard(s) from each law willapply to the particular situation. Thestandard providing the greater right ormore generous benefit to the employeefrom each law (provision-by-provision)will apply. Note, however, that leavetaken for a reason specified in both theFederal and State law may besimultaneously counted against theemployee’s entitlement under bothlaws. This section of the regulationsattempted to demonstrate theinteraction between FMLA and Statelaws with examples. Numerouscomments were received suggestingthere may be considerable confusionover the ‘‘provision-by-provision’’analysis that must be conducted in eachparticular case.

Employers Association of New Jerseyrecommended guidelines be included inthe regulations for applying FMLA andState law in the following manner:

If an employee takes leave for apurpose which is recognized under onlyone of the two laws, rights andobligations are governed by that lawalone, and the amount of leave takencannot be charged against the amount ofleave which may be allowed under theother law.

If an employee takes leave for apurpose which is recognized under boththe FMLA and a State law, the employeeis entitled to the benefits of whicheverlaw is the most favorable to theemployee and the amount of leave takenis charged against the amount which isallowed under each law.

The availability of benefits undereither law is subject to the limitations ofthat law with respect to the duration ofleave, type of leave, etc.

The Equal Rights Advocates suggestedadditional examples where a State lawis silent on an issue addressed byFMLA. If an employee is ‘‘eligible’’under both FMLA and a State or locallaw, and the State or local law is silenton a provision contained in FMLA, andif the FMLA provision is restrictive (asto employee rights or benefits), then theState or local law would govern as tothat provision. If the FMLA provision isnot restrictive (or extends a right,benefit or privilege to employees), thenthe FMLA would govern as to thatprovision. For example, a State law thatgrants employers the right to deny thetaking of leave to high-level executivescould not be applied to any FMLA-eligible employees, because FMLAextends to all eligible employees theentitlement to leave for qualifyingreasons. If the same State law containeda provision mandating that all


employees who take leave be restored toemployment when the leave ends, thenFMLA’s ‘‘key’’ employee exemptioncould not be applied to deny anemployee reinstatement (i.e., theFederal law would not apply at the timeof reinstatement).

The guidelines and interpretationssuggested above by the EmployersAssociation of New Jersey and the EqualRights Advocates correctly construe therelationship between FMLA and otherState laws, which have been includedhere for guidance.

Chicagoland Chamber of Commercecommented that, with respect tosubstantive provisions such aseligibility and coverage requirements,amount of leave, benefits andemployment protections, andsubstitution requirements, the moregenerous or expansive provisionsbetween the FMLA and the State lawshould apply and be considered to offsetor simultaneously satisfy overlappingbut less generous provisions. ‘‘Moregenerous’’ should be determined on a‘‘common sense, quantitative basis,’’they contend, such as where a State lawallows up to 16 weeks of leave for aserious health condition in any year andFMLA allows 12 weeks, the State lawmaximum would apply. Theyrecommended the regulations specifythat differences in more generoussubstantive provisions in State lawcannot be combined with other lessrestrictive provisions in FMLA, and viceversa. With respect to proceduralprovisions, such as notification of leave,certification requirements, and otherprocedural requirements, thecommenter recommended that theprovisions of FMLA and itsimplementing regulations should beapplied in all cases because of theadministrative difficulty in trying todetermine if State or Federal provisionsare more or less generous. TheLouisiana Health Care Alliance (PhelpsDunbar) similarly suggested that anyState law procedural regulations whichare inconsistent with FMLA should bepreempted.

FMLA provides that it shall notsupersede ‘‘any provision’’ of any Stateor local law that provides greater familyor medical leave ‘‘rights’’ than underFMLA. There is no basis under thislanguage or the legislative history todistinguish between proceduralprovisions that extend greater rights toemployees and substantive provisionsthat provide more generous family ormedical leave benefits to employees.

The Women’s Legal Defense Fundrecommended the regulations addressthe interaction between FMLA and Stateworkers’ compensation laws. The State

of Oregon’s Bureau of Labor andIndustries asked if State workers’compensation laws qualify under FMLAas a ‘‘State * * * law that providesgreater * * * medical leave rights* * *’’

If a State workers’ compensation lawprovides a job guarantee to workers outof work temporarily due to occupationalinjuries that is more generous thanFMLA’s job restoration provisions, suchlaw is a ‘‘State * * * law that providesgreater * * * medical leave rights* * *’’ and would govern anemployee’s reinstatement. On the otherhand, where such occupational injuriesalso meet FMLA’s definition of ‘‘serioushealth condition that makes theemployee unable to perform thefunctions of the position,’’ the employerwould have to maintain the injuredemployee’s group health benefits underthe same terms and conditions as if theemployee had continued to work duringthe workers’ compensation-related leaveof absence (at least for the duration ofthe employee’s remaining FMLA leaveentitlement in the 12-month period).

The Association of Washington Citiescommented that an employee could take12 weeks of FMLA-qualifying leave fora purpose other than the birth oradoption of a child and still be eligibleunder applicable State law to another(subsequent) 12 weeks of ‘‘parenting’’leave, which could enable an employeeto take 24 weeks of leave in a singleyear. Under the terms of the applicablestatutes, this is true.

The State of Oregon’s Bureau of Laborand Industries noted that Oregon’sparental leave law provides a 12-weekwindow following the birth of a childfor the use of parental leave, and askedif an employee’s use of 12 weeks ofparental leave within the first 12 weeksfollowing the birth exhausts the parent’sFederal right to take parental leavewithin the first year. An employee‘‘eligible’’ under both the Federal andState law would exhaust bothentitlements simultaneously within that12-week period. Note, however, that ifthe employee used fewer than 12 weeksduring that initial 12-week periodfollowing the birth, the employee coulduse the remainder of his or her Federalleave entitlement under FMLA withinone year after the birth. This commenteralso pointed out that a parent mustshare a state leave entitlement with hisor her spouse regardless of whether theywork for separate employers. UnderFMLA, each FMLA-’’eligible’’ spousewould retain a Federal entitlementequal to 12 weeks minus their portionof the State leave taken.

The University of California observedthat, under California law, employers

may not obtain second or third opinionsexcept in the case of an employee’s ownserious health condition. Thus, becauseFMLA was intended to permit ChristianScience practitioner certification,employers would not be able to obtainsecond or third medical opinions inconnection with the serious healthcondition of a spouse, child or parent.Under the applicable statutes, thiswould be true.

Downs Rachlin & Martin stated that,under Vermont’s Parental and FamilyLeave Act, an employee may useaccrued sick leave or vacation leave, notto exceed six weeks, consistent withexisting policy. ‘‘Utilization of accruedvacation leave shall not extend the leaveprovided therein.’’ The commenterquestioned whether the Federal lawprovided a more generous benefit. Theanswer is ‘‘Yes’’ with respect to FMLA’smore generous substitution provisionsand the length of the allowable leaveperiod.

Hill & Barlow pointed out that theMassachusetts maternity leave statuteentitles an eligible employee to up toeight weeks of leave for the purpose ofgiving birth or for adopting a child.They asked if an employee had used 12weeks of FMLA leave earlier in the yearfor a purpose other than giving birth oradopting a child, would the employeestill be eligible to the State leaveentitlement? The answer is ‘‘Yes.’’

The Corporation for PublicBroadcasting objected to having tocomply with both FMLA and State lawwhere one law’s benefit is not clearlymore generous than the other. They,together with the Equal EmploymentAdvisory Council and the ElectronicsIndustries Association, also questionedthe provision entitling an employee touse leave under Federal and State orlocal law concurrently, and thus to takea total amount of leave which mayexceed the already generous amountallowed by either law. The Corporationfor Public Broadcasting suggested aFederal preemption if permitted or thelobbying of Congress to obtain suchauthority. California BankersAssociation similarly suggested DOLinclude language to preempt all Statelaw in this area or allow an employeeto take only the greater of the leavesavailable (to prevent ‘‘piggybacking’’leave under both FMLA and State law).National Association of Plumbing-Heating-Cooling Contractors suggestedthat ‘‘cafeteria-style’’ programs wheredifferent standards and/or benefits fromeach or both the Federal and State lawsare selected to form a separate, hybridleave plan should be strictly prohibited,and likewise urged that the issue ofpreemption be revisited.


Given the literal language of FMLA,DOL has no authority to preempt Statelaws to the extent they provide moregenerous leave rights to employees. Theresults about which the majority of thecomments complained occur byoperation of law (FMLA and Statefamily and medical leave laws), andcannot be mitigated by regulation. Onlyeditorial changes have been included inthis section of the regulations inresponse to the comments, in order toclarify examples and provide additionalguidance.

Federal and State Anti-discriminationLaws (§ 825.702)

Nothing in FMLA modifies or affectsany Federal or State law prohibitingdiscrimination on the basis of race,religion, color, national origin, sex, age,or disability (see FMLA § 401(a)). Thestated purpose of the FMLA in thisregard, according to its legislativehistory, was to make leave available toeligible employees within its coverage,and not to limit already existing rightsand protection under applicable anti-discrimination statutes (for example,Title VII of the Civil Rights Act of 1964,as amended by the PregnancyDiscrimination Act; and the Americanswith Disabilities Act (ADA)). Thissection included examples of howFMLA would interact with the ADAwith respect to a qualified individualwith a disability as defined under thatAct.

Comments from U.S. Senators Doddand Kerry (sponsors of both FMLA andADA), in a letter to the EEOC datedNovember 22, 1993, make clear thatcongressional intent was for both Actsto be applied simultaneously, and thatan employer must comply withwhichever statutory provision providesthe greater rights to employees. Inkeeping with that statutory intent,FMLA § 401 should not be interpretedin any way as limiting or forcing anelection of rights under FMLA or ADA.Similarly, comments from U.S.Representatives Williams and Ford(Committee on Education and Labor), ina letter to the EEOC dated November 19,1993, explained that congressionalintent, in the case of an employee witha serious health condition under FMLAwho is also a qualified individual witha disability under ADA, was for theFMLA and ADA to be applied in amanner that assured the most generousprovisions of both would apply. Thestatutes provide simultaneousprotection and at all times an employeris required to comply with both laws.The Department concurs with thisinterpretation of the FMLA as it relatesto the ADA and other discrimination

laws. In summary, providing the ‘‘morebeneficial’’ rights or protections doesnot undermine an employer’s obligationto observe the requirements of bothstatutes. Satisfying any or all FMLArequirements, including granting anemployee 12 weeks of leave andrestoring the employee to the same job,does not absolve an employer of anypotential ADA responsibilities to thatemployee (and vice versa).

Several commenters (G.M. SmithAssociates, Inc; Personnel ManagementSystems, Inc; Chamber of Commerce ofthe USA; Equal Employment AdvisoryCouncil; and Louisiana Health CareAlliance (Phelps Dunbar)) urged acontrary view, that compliance withFMLA should constitute or substitutefor compliance with ADA, to simplifythe burdens of multiple complianceobligations. Some stated that employersevaluating ‘‘undue hardship’’ underADA need not disregard the cost anddisruption of FMLA leave already takenby an employee. This point was alsoraised by Personnel ManagementSystems, Inc. and Chamber ofCommerce of the USA. The Departmenthas been advised by the EEOC that theADA, unlike the FMLA, considers theburden on an employer for purposes ofevaluating the feasibility of employeemedical leave. Cost and disruption tothe employer are directly relevant to thefactors listed in ADA’s regulatorydefinition of ‘‘undue hardship.’’Therefore, according to EEOC,employers may consider FMLA leavealready taken when deciding whetherADA accommodation leave in excess of12 weeks poses an undue hardship. Thisdoes not mean, however, that more than12 weeks of leave automatically posesan undue hardship under the ADA.According to EEOC, employers mustapply the full ADA undue hardshipanalysis to each individual case todetermine whether or not leave inexcess of 12 weeks poses an unduehardship.

An employee’s right to be restored tothe same or an equivalent positionunder FMLA applies to the job whichthe employee held at the time of therequest for FMLA leave, even if that jobdiffers from the job held previously dueto a reasonable accommodation underADA. (This point was raised by theChamber of Commerce of the USA.) The‘‘essential functions’’ of the positionwould also be those of the position heldat the time of the request for leave. Anemployer may not change the essentialfunctions of an employee’s job in orderto deny the employee the taking ofFMLA leave. However, this does notprevent an employee from voluntarilyending his or her leave and accepting an

alternative position uncoerced and notas a condition of employment. Theemployee would then retain the right tobe restored to the position held by theemployee at the time the FMLA leavewas requested (or commenced) until 12weeks have passed, including all FMLAleave taken and the period the employeereturned to ‘‘light duty.’’ When anemployer violates both FMLA and ADA,an employee may be able to recoverunder either or both statutes (but maynot be awarded double relief for thesame loss).

VIII. Subpart H—Definitions (§ 825.800)The Women’s Legal Defense Fund

urges that all definitions that aremodified in the text of the regulationsbe modified similarly in Subpart H.Certainly the Department intends tomaintain the integrity of this Subpart,and any material modifications will beincorporated.

The law firm of Alston and Birdrecommended that the term grouphealth plan should not include non-employment related benefits paid byemployees through voluntarydeductions, e.g., individual insurancepolicies. We agreed with therecommendation and language has beenadded to § 825.209(a)(1) to exclude suchbenefits from the definition of grouphealth plan, and make clear anemployer is not responsible formaintaining or restoring such benefitsfor employees who take FMLA leave.

The American Association of RetiredPersons (AARP) took issue with thedefinition of ‘‘parent’’ in this sectionand stated there is nothing in thestatutory language or the legislativehistory that required the exclusion ofparents in-law. We disagree, asdiscussed above in connection with§ 825.113. Section 101(7) of the statutedefines parent as the biological parent ofan employee or an individual who stoodin loco parentis to an employee whenthe employee was a son or daughter.There is no language in the legislativehistory to indicate Congresscontemplated expanding the definitionbeyond the plain meaning of the words.In the Final Rule, the sentence, ‘‘Thisterm does not include parents ‘in-law’ ’’,will be removed from the definition of‘‘parent’’ in § 825.800, but not from theexplanatory guidance in § 825.113. Thisis being done not because we agree withAARP but rather because the languagein the statute and the regulation areclear regarding the term and theadditional sentence is unnecessary.

The law firm of Fisher and Phillipsurged that the Final Rule should clarifywhether employees of a U.S. employerwho are employed in the territories and


possessions of the United States may beeligible employees. The law firm asksfor the same clarification with regard toemployees working in countries otherthan the United States. Sections825.105(a) and 825.800 in the Final Rulewill be amended to reflect thatemployees employed within any Stateof the United States, the District ofColumbia or any territory or possessionof the United States are subject to FMLAand may be eligible employees.Employees employed outside theseareas are not counted for purposes ofdetermining employer coverage andmay not become eligible employees asFMLA does not apply.

The Personnel Management Systems,Inc., and the Credit Union NationalAssociation, Inc., suggest that onlyeligible employees should be counted indetermining whether an employer has50 or more employees for FMLAcoverage purposes. The language of thestatute, in § 101(2) defines the term‘‘Eligible Employee.’’ In paragraph (3) ofthat section, the statute defines‘‘Employee’’ as having the samemeaning as the definition found insection 3 of the Fair Labor StandardsAct. Section 101(4) of the statute defines‘‘ ‘Employer’ as any person * * * whoemploys 50 or more employees * * *’’(emphasis added). If Congress hadintended to limit the count fordetermining coverage to eligibleemployees only, it could have includedthat language ‘‘50 or more eligibleemployees.’’ The legislative historyindicates clearly Congress’ intent tocount all employees. The Department isunable to incorporate the desiredchange.

The Medical Group ManagementAssociation recommends that thedefinition of employee should notinclude equity owners (partners) ofcorporations who are both employersand employees. These individualsshould be excluded from the count ofemployees even though their namesappear on the payroll.

Persons who are partners in abusiness are not employees for purposesof the FMLA because partners are notincluded within the definition ofemployee under the FLSA. Thedefinition of ‘‘employer’’ in § 101(4) ofthe FMLA means any person engaged incommerce or in any industry or activityaffecting commerce who employs 50 ormore employees, etc., and includes anyperson who acts, directly or indirectly,in the interest of an employer to any ofthe employees of the employer. Section101(8) defines ‘‘person’’ to have thesame meaning as in § 3(a) of the FLSA,which means an individual,partnership, association, corporation

* * * (etc.). Partners are not to beincluded in the count of employees forcoverage or eligibility, even if theirnames appear on the payroll. However,equity owners (e.g., stockholders) of acorporation may also be employees ofthe corporation and, as such, when theirnames appear on the payroll, areincluded in such employee counts andthey may also become eligibleemployees. No change will be made inthe Final Rule in this regard as thedetermination of whether such anindividual is an employee is casespecific.

The National Community MentalHealthcare Council observes that thedefinition of an individual who isincapable of self-care is deficient in thatit only addresses activities of dailyliving (ADLs), which relate to physicalincapacity, but does not address thosewith mental illness. They recommendthe definition be expanded to include‘‘instrumental activities of daily living’’(IADLs). Their recommendation isappropriate and the language in theFinal Rule in § 825.113(c)(1) has beenamended to include IADLs.

The Council also urges that thedefinition of health care provider (HCP)be expanded to mental healthprofessionals and mental healthservices. The definition of HCP has beenamended to include any HCP fromwhom the employer or a group healthplan’s benefits manager will acceptcertifications. This change shouldaddress this concern.

IX. Appendix B, Appendix C, andAppendix E

A number of comments which raisedconcerns about Form WH–380, theoptional form to obtain medicalcertification, have been addressed aboveand will not be repeated herein.

Three commenters, including TheFirst Church of Christ, Scientist, offeredalternative forms to be used for themedical certification. The concern of theChristian Scientists was that they areunable to provide a medical diagnosis ofthe employee. As the Department hasalready decided to revise the medicalcertification form, the concerns of thesecommenters will be addressed by therevision to the extent appropriate inkeeping with the statutory language.Further, we believe having separate orspecial forms for differing kinds ofhealth care providers would proveconfusing, and may, in fact, result inmore requests for second and thirdmedical opinions.

G.M. Smith Associates, Inc.,recommends the form include a letterfrom the employee to the health careprovider that requests referral to a board

certified specialist if necessary. Theform should ask the health care providerif going to work will harm the employeeand whether the illness/injuryprecludes the employee from travel orbeing at work. If either of thesequestions are answered affirmatively,the health care provider would providea date on which the employee will beavailable for limited duties.

There is no statutory basis forobtaining the additional informationrequested by this commenter. Forexample, § 825.702 provides that anemployee may not be required to accepta light or limited duty position. TheDepartment is unable to add therequested information to the form as itdoes not comport with the statutoryprovisions.

Appendix CThe Women’s Legal Defense Fund

points out that information is notincluded on the notice that notespotential application of either morebeneficial State statutes or morebeneficial provisions of a CollectiveBargaining Agreement. Theyrecommend separate notices foremployers in each of the States that givebroader rights. They suggest a statementin the notice that employees shouldconsult with union representatives, thatnotices be provided to employers inSpanish, that the Department developmaterials for employees on how toobtain FMLA leave, and that theDepartment install an 800-hotlinenumber for FMLA inquiries andcomplaints.

The purpose of the notice is to outlinethe essential provisions and protectionsof FMLA to employees, much in thesame manner as the notice for FLSA.The size of the poster, whether 81⁄2inches x 11 inches (the size of theFMLA poster) or 14 inches x 17 inches(the size of the FLSA poster), would notaccommodate every possible nuance ofthe FMLA. Employees are advised tocontact the nearest office of the Wageand Hour Division for additional ormore specific information. The noticehas been available in Spanish for sometime. The Department has publishedState/Federal comparisons of family andmedical leave statutes. Theseinformational materials are available toemployees as well as employers, thus,separate notices for each State areunnecessary. The Department haspublished a Fact Sheet and a Guide toCompliance with the FMLA for use byemployees and employers alike toobtain more specific, non-technicalinformation regarding the statute.Section 825.301(a)(2) instructsemployers they may use the


1 The State of Small Business: A Report of thePresident Transmitted to the Congress (1991),

Together with The Annual Report on SmallBusiness and Competition of the U.S. SmallBusiness Administration (United StatesGovernment Printing Office, Washington, D.C.,1991), p. 19. A more detailed breakdown also usedby SBA is: under 20 employees, very small; 20–99,small; 100–499, medium-sized; and over 500, large.On the other hand, the size standard established bySBA at 13 CFR § 121.601 is 500 employees for mostindustries.

2 U.S. Department of the Treasury, InternalRevenue Service, SOI Bulletin (Spring 1990) Table19; reprinted by SBA in The State of Small Business(1991), Ibid., p. 21.

3 U.S. Department of Commerce, Bureau of theCensus, Current Population Survey, 1990. Thesetabulations contain firms with employees only; theself-employed were excluded. The self-employedwould not constitute a covered ‘‘employer’’ forpurposes of the FMLA and, therefore, thesetabulations tend to understate the actual number of‘‘small’’ businesses that are excluded from FMLA’scoverage and overstate the proportion of smallbusinesses that are covered by the FMLA.

4 This 92.4 percent figure appears misleading tous for measuring the universe of employers at issuefor purposes of this analysis in that it excludes thevery substantial number of small businessesemploying fewer than 50 employees which wouldnot be covered by the FMLA and, therefore, wouldnot be impacted by the rule.

5 Not every employee of a covered employer iseligible for FMLA leave. To be eligible, an employeemust work for a covered employer and have workedfor at least 12 months and 1,250 hours in the 12months preceding the leave, and work at a locationwhere the employer employs at least 50 employeeswithin 75 miles of the worksite. § 101(2) of FMLA;29 CFR § 825.110.

6 U.S. Department of Commerce, Bureau of theCensus, County Business Patterns, 1990 (CPB–90–1), issued January 1993, Table 1b. These tabulationsexclude most government and railroad employees,and self-employed persons.

Department’s Fact Sheet for generaldistribution to employees when theemployer does not have an employeehandbook in which FMLA policies havebeen incorporated. The Department hasmade no final decision on the viabilityof installing an 800 number.

Appendix EThe Department had promised earlier

that if the IRS published guidanceconcerning the relationship betweenFMLA and certain aspects of the taxcode, e.g., COBRA, the Departmentwould include the IRS guidance as anappendix to the final rule. IRSpublished guidance concerning COBRAin Notice 94–103, appearing in InternalRevenue Bulletin No. 1994–51, datedDecember 19, 1994. A copy of the noticeis attached to the regulation asAppendix E.

X. Regulatory Flexibility ActUnder the Regulatory Flexibility Act,

Public Law 96–354 (94 Stat. 1164; 5U.S.C. 601 et seq.), Federal agencies arerequired to analyze the anticipatedimpact of proposed rules on smallentities. Because FMLA applies only toprivate employers of 50 or moreemployees (and to all public agenciesregardless of the number of employeesemployed), it covers only the largerprivate employers—in total, about fivepercent of all possible employers, orapproximately 300,000. Also, FMLArequires covered employers to grantonly unpaid leave to eligible employeesfor specified reasons. For these reasons,the Department concluded that theimplementing rules likely would nothave a ‘‘significant economic impact ona substantial number of small entities’’within the meaning of the RegulatoryFlexibility Act. The Acting ChiefCounsel for Advocacy of the U.S. SmallBusiness Administration (SBA) filedofficial comments on the interim finalFMLA rules which disagreed withDOL’s conclusion. SBA contendedessentially that the FMLA regulationswill have a significant impact on allbusinesses covered by the FMLA, thevast majority of which, SBA contends,are small.

The definition of ‘‘small’’ businessvaries considerably, depending uponthe policy issues and circumstancesunder review, the industry beingstudied, and the measures used. SBAgenerally uses employment data as abasis for size comparisons, with firmshaving fewer than 100 employees orfewer than 500 employees defined assmall.1

Statistics published by the InternalRevenue Service indicate that in 1990,of the estimated 20.4 million businesstax returns that were filed (4.4 millionfor corporations, 1.8 million forpartnerships, and 14.2 million for soleproprietorships), fewer than 7,000would qualify as large businesses if anemployment measure of 500 employeesor less were used to define small andmedium-sized businesses.2 The SBAstated in its comments that, based upon1990 Census tabulations, there are105,720 firms which employ between 50and 99 employees; 55,249 firms whichemploy between 100 and 249employees; and 14,999 firms whichemploy between 250 and 499employees, providing a total of 175,968businesses with fewer than 500employees.3 Thus, the SBA suggests thatif an employment measure of 500employees is used to define ‘‘small’’businesses, 92.4 percent of all thosebusinesses which are affected by theFMLA and its implementing regulationsare ‘‘small’’ businesses.4

In fact, however, this analysisoverstates the number of ‘‘small’’businesses that are actually affected byFMLA’s requirements because theymust grant unpaid leave only toemployees who are defined as ‘‘eligible’’under the law. It is conceivable, forexample, that a covered ‘‘small’’business with 250 employees working atseveral geographically dispersedworksites would have no employeeswho are eligible to take FMLA leave(because there would be fewer than 50employees working within 75 miles ofeach worksite). Similarly, an employer

with a very transient workforce, with allpart-time employees, may have noeligible employees.5

Assuming the appropriateness of the500-employee criterion applied by SBAto define ‘‘small’’ businesses forpurposes of FMLA, and acknowledgingthat there are a number of smallbusinesses that would be covered by theFMLA rules, we note that the Congress,in selecting the 50-employee coveragethreshold, frequently characterized thenew legislation as exempting smallerbusinesses and applying only to largerones. We also note the overwhelmingmajority of small businesses that are notsubject to the FMLA. Informationcompiled by the U.S. Department ofCommerce and reported in CountyBusiness Patterns, 1990, indicates thatthere are 5,862,938 establishmentsemploying between one and 49employees; 175,375 establishmentsemploying between 50 and 99employees; 97,742 establishmentsemploying between 100 and 249employees; 24,334 establishmentsemploying between 250 and 499employees; 9,592 establishmentsemploying between 500 and 999employees; and 5,582 employing 1,000or more employees.6 These numbersconfirm the Department’s earlierestimates that roughly five percent (i.e.,312,625) of all establishments would becovered by FMLA at the 50-employeecoverage threshold. Moreover, thesenumbers suggest further that, if SBA’s500-employee threshold for defining‘‘small’’ businesses is applied, less thanfive percent of all small businesseswould be covered by the FMLA, whilemore than 95 percent of all smallbusinesses would be exempted fromFMLA coverage.

In addition, William M. Mercer,Incorporated and the Institute ofIndustrial Relations at the University ofCalifornia, Berkeley jointly conducted asurvey of nearly 300 employers on theFMLA in November 1993. This reportnotes that, before FMLA was passed,there was opposition to mandated leavebased on the idea that small businesswould be negatively impacted by suchleave. However, small employers (thosewith less than 200 employees) who


7 The Department’s Women’s Bureau has alsodistributed to the public a comparison of Statematernity/family leave laws since June 1993.

responded to this survey were notsignificantly more likely to anticipatemajor financial costs or greatadministrative difficulty in complyingwith the FMLA than large employers. Inresponse to questions on the California-mandated family leave law (in effectsince January 1992), small employersreported the lowest level of utilizationof family leave and no higher direct andindirect financial costs than did largeremployers. In fact, the only employersthat reported any ‘‘major costs’’associated with California-mandatedleave were those that employed 5,000 ormore employees. A greater percentage oflarge employers had experienceddisagreements with employees overfamily leave issues. Large employers,however, were also most likely to notea beneficial effect on absenteeism,employee morale, public relations, andsupervisory relationships as a result ofmandated leave. Small employers, incontrast, were most likely to note abeneficial effect on worker productivityand co-worker relationships.

For its part, the Department made aconscious effort to adopt the leastburdensome regulatory alternatives(consistent with the statute) in order toreduce the burden on all employers,including small employers. Inparticular, recordkeeping requirementswere kept to the minimum levelnecessary for confirming employercompliance with FMLA’s statutory leaveprovisions. In addition, to easeadministrative burdens on allemployers, including small entities,employee notification requirements thatapply when employees request FMLAleave were summarized in § 825.301(c)of the regulations, and DOL madeavailable a prototype notice whichemployers could adapt for their own useto meet the specific notice requirements(see § 825.301 (c)(8)).

The Department also engaged inextensive education and outreachefforts. We prepared and made availablea Fact Sheet and a Compliance Guide tothe FMLA, to assist all employers inunderstanding and meeting theircompliance obligations. Because FMLAdoes not diminish any greater family ormedical leave rights provided by Stateor local law, DOL also prepared anddistributed comparisons of State andFederal family and medical leave laws,indicating which law provided thegreater employee rights or benefits forcompliance purposes.7

Thus, DOL continues to believe thatthe extraordinary measures which it has

taken in connection with theimplementation of the FMLA will easethe burdens of compliance on allemployers, including small employers,and that compliance with the FMLAwill not have a significant economicimpact on a substantial number of smallentities. This conclusion is reinforcedby available research which shows thatcosts associated with implementing theFMLA are not significant for coveredbusinesses including covered ‘‘small’’entities with eligible employees.

In conclusion, even assuming a 500-employee size standard, only 5 percentof small employers are covered byFMLA. Based on our review of thestudies conducted, the Departmentconcludes, therefore, that the FMLArules would not likely have a significanteconomic impact on a substantialnumber of small entities.

Because of its belief that FMLAsignificantly impacts a substantialnumber of small entities, the SBA alsosuggested in its comments a number ofregulatory alternatives in certain areasthat it believed would ease the burdenon small entities, as follows:

Exclude Part-time Employees WhenDetermining Employer Coverage UnderFMLA: The SBA suggested that DOLreduce the coverage of small businessesby changing the 50-employee thresholdfor coverage to exclude part-timeworkers from the count. Because smallentities employ more part-time workersthan larger firms, SBA stated thatinclusion of part-time employees willincrease the coverage of the FMLA tofirms ‘‘that otherwise might not havebeen covered.’’ FMLA’s coverage criteriaare statutory and, as specifically statedin the legislative history, it was the clearintention of the Congress that allemployees of an employer are to beincluded in the count, including part-time employees. (‘‘It is not necessarythat every employee actually performwork on each working day to be countedfor this purpose. * * * Similarly, part-time employees and employees onleaves of absence would be counted as‘employed for each working day’ so longas they are on the employer’s payroll foreach day of the workweek.’’ Report ofthe Committee on Labor and HumanResources (S.5), Senate Report 103–3(January 27, 1993), p. 22.)

Clarify Definitions of ‘‘Serious HealthCondition’’ and ‘‘Medical Necessity’’ forFMLA Leave: SBA observed that thedefinition of ‘‘serious health condition’’(which is statutory) was broadlyinclusive, and suggested that employerswould be required to look to FMLA’slegislative history in order to determinewhether an employee’s condition isconsidered a ‘‘medical necessity’’ that

justifies FMLA leave. SBA mistakenlypresumes that this is a judgment that thestatute and regulations permit anemployer to make. If the healthcondition meets the definition in theregulations at § 825.114 and, asprovided in §§ 825.305–825.307, anemployee furnishes a completed DOL-prescribed medical certification fromthe health care provider, the onlyrecourse available to an employer thatdoubts the validity of the certification isto request a second medical opinion atthe employer’s expense. Employers maynot substitute their personal judgmentsfor the test in the regulations or themedical opinions of the health careproviders of employees or their familymembers to determine whether anemployee is entitled to FMLA leave fora serious health condition.

Expand the ‘‘Key Employee’’Definition to Include Job DescriptionsInstead of Salary: Under the ‘‘keyemployee’’ exception, employers maydeny job restoration in certain cases (see§§ 825.217–825.219). SBArecommended that DOL expand theregulatory definition of ‘‘key employee’’to include an employee’s job descriptionin lieu of salary, because there may besituations, particularly in small entities,where lower salaried employeesperform on-going employment functionsthat are vital to the business and preventeconomic injury to the employer’soperation but must be reinstated due tothe comparatively low salary that ispaid. We note first that it seems unlikelythat an employer would not want torestore such an employee toemployment if the employee performsthe vital role indicated, but that isbeside the point. The provisionsapplicable to the ‘‘key employee’’exception are statutory and state,specifically, that the employees affectedmust be ‘‘* * * a salaried eligibleemployee who is among the highestpaid 10 percent of the employeesemployed by the employer within 75miles of the facility at which theemployee is employed’’ (see § 104(b)(2)of the FMLA). There is no authorityunder these provisions of the law toignore the salary paid to ‘‘keyemployees.’’ SBA’s suggestion directlycontravenes the statute and cannot beadopted by regulation.

Require a Four-Hour MinimumAbsence for Intermittent (or ReducedLeave) Schedules: FMLA allows eligibleemployees to take leave intermittentlyor on a reduced leave schedule incertain cases. The regulations state thatan employer may not limit the period ofintermittent leave to a minimumnumber of hours. SBA stated that DOLcould significantly reduce the impact of


the FMLA on small entities by imposinga minimum leave requirement, andsuggested a four-hour minimum wouldboth enable an employee to work a half-day and permit the employer to easeadministrative burdens in complyingwith the FMLA regulations. Permittingan employer to impose a four-hourminimum absence requirement wouldunnecessarily and impermissibly erodean employee’s FMLA leave entitlementfor reasons not contemplated underFMLA (see also the discussion of§ 825.203, above). Section 102(b)(1) ofthe FMLA provides that ‘‘* * * [t]hetaking of leave intermittently or on areduced leave schedule pursuant to thisparagraph shall not result in a reductionin the total amount of leave to which theemployee is entitled * * * beyond theamount of leave actually taken.’’ Anemployee may only take FMLA leave forreasons that qualify under the Act, andmay not be charged more leave than isnecessary to address the need for FMLAleave. Time that an employee is directedby the employer to be absent (and notrequested or required by the employee)in excess of what the employee requiresfor an FMLA purpose would not qualifyas FMLA leave and, therefore, may notbe charged against the employee’sFMLA leave entitlement.

‘‘Small’’ Business Handbook: SBAalso suggested that DOL considerproviding a handbook detailingcompliance requirements for smallentities, i.e., comparisons of State andFederal family and medical leavebenefits and a summary of employeenotification requirements, to easeadministrative burdens on smallentities. As noted above, we preparedand distributed comparisons of Stateand Federal family and medical leavelaws, indicating which law provided thegreater employee rights or benefits forcompliance purposes, and distributedFact Sheets and Compliance Guideswhich summarized compliancerequirements.

In conclusion, the Departmentbelieves that the available data andstudies on the cost impact of the FMLAgenerally support the Department’sconclusion that the implementingregulations will likely not have asignificant economic impact on asubstantial number of small entitieswithin the meaning of the RegulatoryFlexibility Act. The regulatory revisionssuggested by the SBA to easecompliance requirements for smallentities are inconsistent with the statuteor its legislative history and cannot beadopted by regulation.

XI. Executive Order 12866The Department prepared an analysis

of the anticipated cost impact of theFMLA rules to meet the regulatoryimpact analysis (cost/benefit)requirements of former Executive Order12291 on Federal Regulations. TheDepartment’s analysis was principallybased on previous analyses of the costimpact of prior versions of FMLAlegislation pending before the U.S.Congress which were conducted by theU.S. General Accounting Office (GAO).The GAO’s latest report on FMLAlegislation, updated to reflect the 1993enactment, estimated the cost toemployers of maintaining healthinsurance coverage for workers onunpaid family and medical leave at$674 million per year (GAO/HRD–93–14R; February 1, 1993). The GAO’sestimates assumed that employerswould experience no measurable costsunder the law beyond those ofmaintaining group health insuranceduring periods of permitted absences,based on a survey of selected firms inthe Detroit, Michigan and Charleston,South Carolina areas. It was the GAO’sview that its estimates likely overstatedactual costs to employers for leavegranted under the new law because theGAO could not adjust for the mitigatinginfluence of pre-existing leave policiesalready provided by employers eithervoluntarily or to comply with othermandates such as State or local laws orcollective bargaining agreements (34States, the District of Columbia, andPuerto Rico provide for some type ofjob-protected leave guarantee by law).

While several commenters expresseda general view that FMLA would havean adverse impact on business, orsummarized previous studies that triedto measure the economic impact ofFMLA, only one comment was receivedconcerning DOL’s impact analysisincluded in the preamble to the InterimFinal Rule (the Department specificallyrequested comments on the estimates ofthe impact of the FMLA and theimplementing regulations). The LosAngeles County MetropolitanTransportation Authority disagreed withGAO’s estimates of cost to employers ofcomplying with various FMLAprovisions. This commenter believedthe cost estimates are significantlyunderstated because they do not takeinto account the productivity losseswhile employees are out on leave, andthe costs of hiring and trainingtemporary replacement workers. TheDepartment pointed out in the preambleto the Interim Final Rule (58 FR 31811;June 4, 1993) that quantifying theimpact of the FMLA is highly

dependent on numerous assumptionswhich are severely constrained bylimitations in available data. Theregulatory impact analysis noted theexistence of differing views on thisissue, citing specifically the MinorityViews contained in the House Report(H.R. Rept. 103–8, 103d Cong., 1st Sess.,p. 60), which characterized the GAOestimates as understated either becauseassumptions were inconsistent with thelegislative provisions or with theconclusions of other studies. Thepreamble to the Interim Final Rulenoted in particular the issues ofproductivity losses and training costsfor temporary replacements cited instudies by the former American Societyfor Personnel Administrators (now theSociety for Human ResourceManagement) and the SBA.Furthermore, studies preparedsubsequent to the June 1993 InterimFinal FMLA rules suggest that ourinitial assessment of GAO’s estimates asbeing reasonable remains valid.

The Senate Committee on Labor andHuman Resources noted from testimonyby the Commissioner of the OregonBureau of Labor and Industries thatemployers in the State of Oregon, whenconfronted with implementing similarrequirements at the State level, reportedlittle or no difficulty in implementingthe law, and none had reduced otherexisting benefits to comply with thenew statutory family leave requirements(Report of the Committee on Labor andHuman Resources (S.5), Report 103–3,January 27, 1993, p. 14).

Further, according to a three-yearstudy conducted in Minnesota, Oregon,Rhode Island, and Wisconsin by theFamilies and Work Institute, sizablemajorities of covered employersreported that the State laws were neithercostly nor burdensome to implement(Ibid.). This study suggested that theavailability of unpaid leave required bythe new State laws had no impact on thelength of leave taken by workingmothers and only a slight impact on thelength of leaves taken by fathers. Thesurvey found that most companies, eventhe smallest, already offeredconsiderable amounts of leave toworking mothers. Small companiesgranted leave as often as largercompanies. Even among companieswith fewer than 10 employees, 79percent indicated they guaranteed thejobs of women who took leave. Thesurvey found that, prior to passage ofthe State laws, 83 percent of allemployers surveyed provided job-guaranteed leave to biological mothersfor childbirth, and 67 percent of thosemaintained health benefits during thematernity leave. Sixty percent of all


employers similarly allowed fatherstime off for newborns. Among otherhighlights from the survey, 91 percent ofemployers interviewed in the four Statesreported no difficulty withimplementation of the State parentalleave laws; the majority of employersreported no increase in costs fortraining, administration orunemployment insurance as a result ofthe State laws; 67 percent reported theymost often relied on other employees todo the work of an employee on leave,while 23 percent reported they mostoften hired a temporary replacement; 94percent reported that the leave laws hadnot forced them to reduce other benefitsin order to pay for maintaining thehealth benefits of parents on leave; thepercentage of working women who tookunpaid leave for the birth of a child (78percent) was unaffected by theenactment of the State laws; and theaverage duration of the leaves remainedvirtually unchanged by enactment of theState laws.

In a 1990 study by Professors EileenTrzcinski and William Alpertcommissioned by the SBA, a nationwidesurvey of business executives examinedthe impact on businesses of providingfamily and medical leave. The SBAstudy found that the costs ofpermanently replacing an employee aresignificantly greater than the costs ofgranting an employee’s request forleave—terminations due to illness,disability, pregnancy, and childbirthcost employers from $1,131 to $3,152per termination, compared to $.97 to$97.78 per week for granting workers’requests for leave (dependent on size ofemployer and managerial status ofemployee). Ibid., p. 17.

A 1992 study by the Families andWork Institute also concluded thatproviding unpaid parental leave is morecost-effective for employers thanpermanently replacing employees—20percent of the employee’s annual salary,compared to 75 percent to 150 percentfor permanently replacing an employee(Ibid.).

The Senate Committee Reportconcluded that additional costs toemployers as a result of FMLA areminimal; that there is no evidence ofgreater business losses where State lawsrequire similar family and medicalleave; and, based on a 1989 GAO studyof similar legislation, there would be nomeasurable net costs to business fromreplacing workers or lost productivity(costs result exclusively fromcontinuation of health insurancecoverage for employees on unpaidleave). Ibid., p. 42.

In addition to the findings of thestudies identified by the Senate

committee report, according to aSeptember 1993 survey of benefitmanagers by Hewitt Associates, aninternational consulting firm, mostemployers offer more generous leavepolicies than required by the FMLA.Nearly all (95 percent) of the 628participants indicated that their policiesgo beyond the minimum requirementsof the law. Nine of ten employers (92percent) continue benefits other thanhealth care for employees while onFMLA leave. Nearly half of theemployers (45 percent) extend FMLAleave to employees at locations withfewer than 50 employees within 75miles, 44 percent allow longer than 12weeks of leave, and 30 percent allowFMLA leave for employees with lessthan 12 months of service. Mostemployers expect only a smallpercentage of employees to availthemselves of their FMLA policies inany given year. Nine of ten employersexpect less than 5 percent of theiremployees to take FMLA leave in agiven year; three of ten employersexpect less than one percent of theiremployees to take FMLA leave in a year.

In addition, as discussed above,William M. Mercer, Incorporated andthe Institute of Industrial Relations atthe University of California, Berkeleyjointly conducted a survey of nearly 300employers on the FMLA in November1993. The only employers that reportedany ‘‘major costs’’ associated withCalifornia-mandated leave were thosethat employed 5,000 or more employees.A greater percentage of large employershad experienced disagreements withemployees over family leave issues.Large employers, however, were alsomost likely to note a beneficial effect onabsenteeism, employee morale, publicrelations, and supervisory relationshipsas a result of mandated leave. Smallemployers, in contrast, were most likelyto note a beneficial effect on workerproductivity and co-workerrelationships.

A full discussion of alternativesconsidered is included in the preambleto the regulations, set forth above, undereach of the relevant sections.

XI. Document PreparationThis document was prepared under

the direction and control of MariaEchaveste, Administrator, Wage andHour Division, Employment StandardsAdministration, U.S. Department ofLabor.

XII. List of Subjects in 29 CFR Part 825Employee benefit plans, Health,

Health insurance, Labor managementrelations, Maternal and child health,Teachers.

Signed in Washington, DC, this 30th day ofDecember, 1994.

Robert B. Reich,Secretary of Labor.

Title 29, Chapter V, Subchapter C,‘‘Other Laws’’, is amended by revisingPart 825 to read as follows:

PART 825—THE FAMILY ANDMEDICAL LEAVE ACT OF 1993

Subpart A—What is the Family and MedicalLeave Act, and to Whom Does It Apply?

Sec.825.100 What is the Family and Medical

Leave Act?825.101 What is the purpose of the Act?825.102 When was the Act effective?825.103 How did the Act affect leave in

progress on, or taken before, the effectivedate of the Act?

825.104 What employers are covered by theAct?

825.105 In determining whether anemployer is covered by FMLA, whatdoes it mean to employ 50 or moreemployees for each working day duringeach of 20 or more calendar workweeksin the current or preceding calendaryear?

825.106 How is ‘‘joint employment’’ treatedunder FMLA?

825.107 What is meant by ‘‘successor ininterest’’?

825.108 What is a ‘‘public agency’’?825.109 Are Federal agencies covered by

these regulations?825.110 Which employees are ‘‘eligible’’ to

take leave under FMLA?825.111 In determining if an employee is

‘‘eligible’’ under FMLA, how is thedetermination made whether theemployer employs 50 employees within75 miles of the worksite where theemployee needing leave is employed?

825.112 Under what kinds of circumstancesare employers required to grant family ormedical leave?

825.113 What do ‘‘spouse,’’ ‘‘parent,’’ and‘‘son or daughter’’ mean for purposes ofan employee qualifying to take FMLAleave?

825.114 What is a ‘‘serious healthcondition’’ entitling the employee toFMLA leave?

825.115 What does it mean that ‘‘theemployee is unable to perform thefunctions of the position of theemployee’’?

825.116 What does it mean that anemployee is ‘‘needed to care for’’ afamily member?

825.117 For an employee seekingintermittent FMLA leave or leave on areduced leave schedule, what is meantby ‘‘the medical necessity for’’ suchleave?

825.118 What is a ‘‘health care provider’’?


Subpart B—What Leave Is an EmployeeEntitled to Take Under the Family andMedical Leave Act?

825.200 How much leave may an employeetake?

825.201 If leave is taken for the birth of achild, or for placement of a child foradoption or foster care, when must theleave be concluded?

825.202 How much leave may a husbandand wife take if they are employed by thesame employer?

825.203 Does FMLA leave have to be takenall at once, or can it be taken in parts?

825.204 May an employer transfer anemployee to an ‘‘alternative position’’ inorder to accommodate intermittent leaveor a reduced leave schedule?

825.205 How does one determine theamount of leave used where an employeetakes leave intermittently or on areduced leave schedule?

825.206 May an employer deduct hourlyamounts from an employee’s salary,when providing unpaid leave underFMLA, without affecting the employee’squalifications for exemption as anexecutive, administrative, or professionalemployee, or when utilizing thefluctuating workweek method forpayment of overtime compensation,under the Fair Labor Standards Act?

825.207 Is FMLA leave paid or unpaid?825.208 Under what circumstances may an

employer designate leave, paid orunpaid, as FMLA leave and, as a result,count it against the employee’s totalFMLA leave entitlement?

825.209 Is an employee entitled to benefitswhile using FMLA leave?

825.210 How may employees on FMLAleave pay their share of health benefitpremiums?

825.211 What special health benefitsmaintenance rules apply to multi-employer health plans?

825.212 What are the consequences of anemployee’s failure to make timely healthplan premium payments?

825.213 May an employer recover costs itincurred for maintaining ‘‘group healthplan’’ or non-health benefits coverageduring FMLA leave?

825.214 What are an employee’s rights onreturning to work from FMLA leave?

825.215 What is an equivalent position?825.216 Are there any limitations on an

employer’s obligation to reinstate anemployee?

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 FMLArights?

Subpart C—How Do Employees Learn ofTheir FMLA Rights and Obligations, andWhat Can an Employer Require of anEmployee?

825.300 What posting requirements doesthe Act place on employers?

825.301 What other notices to employeesare required of employers under theFMLA?

825.302 What notice does an employeehave to give an employer when the needfor FMLA leave is foreseeable?

825.303 What are the requirements for anemployee to furnish notice to anemployer where the need for FMLAleave is not foreseeable?

825.304 What recourse do employers haveif employees fail to provide the requirednotice?

825.305 When must an employee providemedical certification to support FMLAleave?

825.306 How much information may berequired in medical certifications of aserious health condition?

825.307 What may an employer do if itquestions the adequacy of a medicalcertification?

825.308 Under what circumstances may anemployer request subsequentrecertifications of medical conditions?

825.309 What notice may an employerrequire regarding an employee’s intent toreturn to work?

825.310 Under what circumstances may anemployer require that an employeesubmit a medical certification that theemployee is able (or unable) to return towork (e.g., a ‘‘fitness-for-duty’’ report)?

825.311 What happens if an employee failsto satisfy the medical certificationrequirements?

825.312 Under what circumstances may acovered employer refuse to provideFMLA leave or reinstatement to eligibleemployees?

Subpart D—What Enforcement MechanismsDoes FMLA Provide?825.400 What may employees do who

believe that their rights under FMLAhave been violated?

825.401 Where may an employee file acomplaint of FMLA violations with theFederal government?

825.402 How is an employer notified of aviolation of the posting requirement?

825.403 How may an employer appeal theassessment of a penalty for willfulviolation of the posting requirement?

825.404 What are the consequences of anemployer not paying the penaltyassessment after a final order is issued?

Subpart E—What Records Must be Kept toComply With the FMLA?

825.500 What Records must an employerkeep to comply with the FMLA?

Subpart F—What Special Rules Apply toEmployees of Schools?

825.600 To whom do the special rulesapply?

825.601 What limitations apply to thetaking of intermittent leave or leave ona reduced leave schedule?

825.602 What limitations apply to thetaking of leave near the end of anacademic term?

825.603 Is all leave taken during ‘‘periodsof a particular duration’’ counted againstthe FMLA leave entitlement?

825.604 What special rules apply torestoration to ‘‘an equivalent position?’’

Subpart G—How do Other Laws, EmployerPractices, and Collective BargainingAgreements Affect Employee Rights UnderFMLA?

825.700 What if an employer provides moregenerous benefits than required byFMLA?

825.701 Do State laws providing family andmedical leave still apply?

825.702 How does FMLA affect Federal andState anti-discrimination laws?

Subpart H—Definitions

825.800 Definitions.

Appendix A to Part 825—Index

Appendix B to Part 825—Certificationof Health Care Provider

Appendix C to Part 825—Notice toEmployees of Rights under FMLA (WHPublication 1420)

Appendix D to Part 825—PrototypeNotice: Employer Response toEmployee Request for Family andMedical Leave (Form WH–381)

Appendix E to Part 825—IRS NoticeDiscussing Relationship Between FMLAand COBRA

Authority: 29 U.S.C. 2654; Secretary’sOrder 1–93 (58 FR 21190).

Subpart A—What is the Family andMedical Leave Act, and to Whom DoesIt Apply?

§ 825.100 What is the Family and MedicalLeave Act?

(a) The Family and Medical Leave Actof 1993 (FMLA or Act) allows ‘‘eligible’’employees of a covered employer to takejob-protected, unpaid leave, or tosubstitute appropriate paid leave if theemployee has earned or accrued it, forup to a total of 12 workweeks in any 12months because of the birth of a childand to care for the newborn child,because of the placement of a child withthe employee for adoption or foster care,because the employee is needed to carefor a family member (child, spouse, orparent) with a serious health condition,or because the employee’s own serioushealth condition makes the employeeunable to perform the functions of hisor her job (see § 825.306(a)(3)). Incertain cases, this leave may be taken onan intermittent basis rather than all atonce, or the employee may work a part-time schedule.

(b) An employee on FMLA leave isalso entitled to have health benefits


maintained while on leave as if theemployee had continued to workinstead of taking the leave. If anemployee was paying all or part of thepremium payments prior to leave, theemployee would continue to pay his orher share during the leave period. Theemployer may recover its share only ifthe employee does not return to workfor a reason other than the serioushealth condition of the employee or theemployee’s immediate family member,or another reason beyond theemployee’s control.

(c) An employee generally has a rightto return to the same position or anequivalent position with equivalent pay,benefits and working conditions at theconclusion of the leave. The taking ofFMLA leave cannot result in the loss ofany benefit that accrued prior to thestart of the leave.

(d) The employer has a right to 30days advance notice from the employeewhere practicable. In addition, theemployer may require an employee tosubmit certification from a health careprovider to substantiate that the leave isdue to the serious health condition ofthe employee or the employee’simmediate family member. Failure tocomply with these requirements mayresult in a delay in the start of FMLAleave. Pursuant to a uniformly appliedpolicy, the employer may also requirethat an employee present a certificationof fitness to return to work when theabsence was caused by the employee’sserious health condition (see§ 825.311(c)). The employer may delayrestoring the employee to employmentwithout such certificate relating to thehealth condition which caused theemployee’s absence.

§ 825.101 What is the purpose of the Act?(a) FMLA is intended to allow

employees to balance their work andfamily life by taking reasonable unpaidleave for medical reasons, for the birthor adoption of a child, and for the careof a child, spouse, or parent who has aserious health condition. The Act isintended to balance the demands of theworkplace with the needs of families, topromote the stability and economicsecurity of families, and to promotenational interests in preserving familyintegrity. It was intended that the Actaccomplish these purposes in a mannerthat accommodates the legitimateinterests of employers, and in a mannerconsistent with the Equal ProtectionClause of the Fourteenth Amendment inminimizing the potential foremployment discrimination on the basisof sex, while promoting equalemployment opportunity for men andwomen.

(b) The enactment of FMLA waspredicated on two fundamentalconcerns—the needs of the Americanworkforce, and the development ofhigh-performance organizations.Increasingly, America’s children andelderly are dependent upon familymembers who must spend long hours atwork. When a family emergency arises,requiring workers to attend to seriously-ill children or parents, or to newly-bornor adopted infants, or even to their ownserious illness, workers needreassurance that they will not be askedto choose between continuing theiremployment, and meeting their personaland family obligations or tending tovital needs at home.

(c) The FMLA is both intended andexpected to benefit employers as well astheir employees. A direct correlationexists between stability in the familyand productivity in the workplace.FMLA will encourage the developmentof high-performance organizations.When workers can count on durablelinks to their workplace they are able tomake their own full commitments totheir jobs. The record of hearings onfamily and medical leave indicate thepowerful productive advantages ofstable workplace relationships, and thecomparatively small costs ofguaranteeing that those relationshipswill not be dissolved while workersattend to pressing family healthobligations or their own serious illness.

§ 825.102 When was the Act effective?(a) The Act became effective on

August 5, 1993, for most employers. Ifa collective bargaining agreement was ineffect on that date, the Act’s effectivedate was delayed until February 5, 1994,or the date the agreement expired,whichever date occurred sooner. Thisdelayed effective date was applicableonly to employees covered by acollective bargaining agreement that wasin effect on August 5, 1993, and not, forexample, to employees outside thebargaining unit. Application of FMLA tocollective bargaining agreements isdiscussed further in § 825.700(c).

(b) The period prior to the Act’seffective date must be considered indetermining employer coverage andemployee eligibility. For example, asdiscussed further below, an employerwith no collective bargainingagreements in effect as of August 5,1993, must count employees/workweeksfor calendar year 1992 and calendar year1993. If 50 or more employees wereemployed during 20 or more workweeksin either 1992 or 1993(through August5, 1993), the employer was coveredunder FMLA on August 5, 1993. If not,the employer was not covered on

August 5, 1993, but must continue tomonitor employment levels eachworkweek remaining in 1993 andthereafter to determine if and when itmight become covered.

§ 825.103 How did the Act affect leave inprogress on, or taken before, the effectivedate of the Act?

(a) An eligible employee’s right totake FMLA leave began on the date thatthe Act went into effect for the employer(see the discussion of differing effectivedates for collective bargainingagreements in §§ 825.102(a) and825.700(c)). Any leave taken prior to theAct’s effective date may not be countedfor purposes of FMLA. If leavequalifying as FMLA leave wasunderway prior to the effective date ofthe Act and continued after the Act’seffective date, only that portion of leavetaken on or after the Act’s effective datemay be counted against the employee’sleave entitlement under the FMLA.

(b) If an employer-approved leave wasunderway when the Act took effect, nofurther notice would be required of theemployee unless the employeerequested an extension of the leave. Forleave which commenced on theeffective date or shortly thereafter, suchnotice must have been given which waspracticable, considering theforeseeability of the need for leave andthe effective date of the statute.

(c) Starting on the Act’s effective date,an employee is entitled to FMLA leaveif the reason for the leave is qualifyingunder the Act, even if the eventoccasioning the need for leave (e.g., thebirth of a child) occurred before theeffective date (so long as any otherrequirements are satisfied).

§ 825.104 What employers are covered bythe Act?

(a) An employer covered by FMLA isany person engaged in commerce or inany industry or activity affectingcommerce, who employs 50 or moreemployees for each working day duringeach of 20 or more calendar workweeksin the current or preceding calendaryear. Employers covered by FMLA alsoinclude any person acting, directly orindirectly, in the interest of a coveredemployer to any of the employees of theemployer, any successor in interest of acovered employer, and any publicagency. Public agencies are coveredemployers without regard to the numberof employees employed. Public as wellas private elementary and secondaryschools are also covered employerswithout regard to the number ofemployees employed. (See § 825.600.)

(b) The terms ‘‘commerce’’ and‘‘industry affecting commerce’’ are


defined in accordance with section501(1) and (3) of the Labor ManagementRelations Act of 1947 (LMRA) (29 U.S.C.142 (1) and (3)), as set forth in thedefinitions at section 825.800 of thispart. For purposes of the FMLA,employers who meet the 50-employeecoverage test are deemed to be engagedin commerce or in an industry oractivity affecting commerce.

(c) Normally the legal entity whichemploys the employee is the employerunder FMLA. Applying this principle, acorporation is a single employer ratherthan its separate establishments ordivisions.

(1) Where one corporation has anownership interest in anothercorporation, it is a separate employerunless it meets the ‘‘joint employment’’test discussed in § 825.106, or the‘‘integrated employer’’ test contained inparagraph (c)(2) of this section.

(2) Separate entities will be deemed tobe parts of a single employer forpurposes of FMLA if they meet the‘‘integrated employer’’ test. Where thistest is met, the employees of all entitiesmaking up the integrated employer willbe counted in determining employercoverage and employee eligibility. Adetermination of whether or notseparate entities are an integratedemployer is not determined by theapplication of any single criterion, butrather the entire relationship is to bereviewed in its totality. Factorsconsidered in determining whether twoor more entities are an integratedemployer include:

(i) Common management;(ii) Interrelation between operations;(iii) Centralized control of labor

relations; and(iv) Degree of common ownership/

financial control.(d) An ‘‘employer’’ includes any

person who acts directly or indirectly inthe interest of an employer to any of theemployer’s employees. The definition of‘‘employer’’ in section 3(d) of the FairLabor Standards Act (FLSA), 29 U.S.C.203(d), similarly includes any personacting directly or indirectly in theinterest of an employer in relation to anemployee. As under the FLSA,individuals such as corporate officers‘‘acting in the interest of an employer’’are individually liable for any violationsof the requirements of FMLA.

§ 825.105 In determining whether anemployer is covered by FMLA, what does itmean to employ 50 or more employees foreach working day during each of 20 or morecalendar workweeks in the current orpreceding calendar year?

(a) The definition of ‘‘employ’’ forpurposes of FMLA is taken from the Fair

Labor Standards Act, § 3(g). The courtshave made it clear that the employmentrelationship under the FLSA is broaderthan the traditional common lawconcept of master and servant. Thedifference between the employmentrelationship under the FLSA and thatunder the common law arises from thefact that the term ‘‘employ’’ as definedin the Act includes ‘‘to suffer or permitto work’’. The courts have indicatedthat, while ‘‘to permit’’ requires a morepositive action than ‘‘to suffer’’, bothterms imply much less positive actionthan required by the common law. Mereknowledge by an employer of workdone for the employer by another issufficient to create the employmentrelationship under the Act. The courtshave said that there is no definition thatsolves all problems as to the limitationsof the employer-employee relationshipunder the Act; and that determination ofthe relation cannot be based on‘‘isolated factors’’ or upon a singlecharacteristic or ‘‘technical concepts’’,but depends ‘‘upon the circumstances ofthe whole activity’’ including theunderlying ‘‘economic reality.’’ Ingeneral an employee, as distinguishedfrom an independent contractor who isengaged in a business of his/her own, isone who ‘‘follows the usual path of anemployee’’ and is dependent on thebusiness which he/she serves.

(b) Any employee whose nameappears on the employer’s payroll willbe considered employed each workingday of the calendar week, and must becounted whether or not anycompensation is received for the week.However, the FMLA applies only toemployees who are employed withinany State of the United States, theDistrict of Columbia or any Territory orpossession of the United States.Employees who are employed outsidethese areas are not counted for purposesof determining employer coverage oremployee eligibility.

(c) Employees on paid or unpaidleave, including FMLA leave, leaves ofabsence, disciplinary suspension, etc.,are counted as long as the employer hasa reasonable expectation that theemployee will later return to activeemployment. If there is no employer/employee relationship (as when anemployee is laid off, whethertemporarily or permanently) suchindividual is not counted. Part-timeemployees, like full-time employees, areconsidered to be employed eachworking day of the calendar week, aslong as they are maintained on thepayroll.

(d) An employee who does not beginto work for an employer until after thefirst working day of a calendar week, or

who terminates employment before thelast working day of a calendar week, isnot considered employed on eachworking day of that calendar week.

(e) A private employer is covered if itmaintained 50 or more employees onthe payroll during 20 or more calendarworkweeks (not necessarily consecutiveworkweeks) in either the current or thepreceding calendar year.

(f) Once a private employer meets the50 employees/20 workweeks threshold,the employer remains covered until itreaches a future point where it no longerhas employed 50 employees for 20(nonconsecutive) workweeks in thecurrent and preceding calendar year.For example, if an employer who metthe 50 employees/20 workweeks test inthe calendar year as of August 5, 1993,subsequently dropped below 50employees before the end of 1993 andcontinued to employ fewer than 50employees in all workweeks throughoutcalendar year 1994, the employer wouldcontinue to be covered throughoutcalendar year 1994 because it met thecoverage criteria for 20 workweeks ofthe preceding (i.e., 1993) calendar year.

§ 825.106 How is ‘‘joint employment’’treated under FMLA?

(a) Where two or more businessesexercise some control over the work orworking conditions of the employee, thebusinesses may be joint employersunder FMLA. Joint employers may beseparate and distinct entities withseparate owners, managers andfacilities. Where the employee performswork which simultaneously benefitstwo or more employers, or works fortwo or more employers at differenttimes during the workweek, a jointemployment relationship generally willbe considered to exist in situations suchas:

(1) Where there is an arrangementbetween employers to share anemployee’s services or to interchangeemployees;

(2) Where one employer acts directlyor indirectly in the interest of the otheremployer in relation to the employee;or,

(3) Where the employers are notcompletely disassociated with respect tothe employee’s employment and may bedeemed to share control of theemployee, directly or indirectly,because one employer controls, iscontrolled by, or is under commoncontrol with the other employer.

(b) A determination of whether or nota joint employment relationship existsis not determined by the application ofany single criterion, but rather the entirerelationship is to be viewed in itstotality. For example, joint employment


will ordinarily be found to exist whena temporary or leasing agency suppliesemployees to a second employer.

(c) In joint employment relationships,only the primary employer isresponsible for giving required noticesto its employees, providing FMLA leave,and maintenance of health benefits.Factors considered in determiningwhich is the ‘‘primary’’ employerinclude authority/responsibility to hireand fire, assign/place the employee,make payroll, and provide employmentbenefits. For employees of temporaryhelp or leasing agencies, for example,the placement agency most commonlywould be the primary employer.

(d) Employees jointly employed bytwo employers must be counted by bothemployers, whether or not maintainedon one of the employer’s payroll, indetermining employer coverage andemployee eligibility. For example, anemployer who jointly employs 15workers from a leasing or temporaryhelp agency and 40 permanent workersis covered by FMLA. An employee onleave who is working for a secondaryemployer is considered employed by thesecondary employer, and must becounted for coverage and eligibilitypurposes, as long as the employer has areasonable expectation that thatemployee will return to employmentwith that employer.

(e) Job restoration is the primaryresponsibility of the primary employer.The secondary employer is responsiblefor accepting the employee returningfrom FMLA leave in place of thereplacement employee if the secondaryemployer continues to utilize anemployee from the temporary or leasingagency, and the agency chooses to placethe employee with the secondaryemployer. A secondary employer is alsoresponsible for compliance with theprohibited acts provisions with respectto its temporary/leased employees,whether or not the secondary employeris covered by FMLA (see § 825.220(a)).The prohibited acts include prohibitionsagainst interfering with an employee’sattempt to exercise rights under the Act,or discharging or discriminating againstan employee for opposing a practicewhich is unlawful under FMLA. Acovered secondary employer will beresponsible for compliance with all theprovisions of the FMLA with respect toits regular, permanent workforce.

§ 825.107 What is meant by ‘‘successor ininterest’’?

(a) For purposes of FMLA, indetermining whether an employer iscovered because it is a ‘‘successor ininterest’’ to a covered employer, thefactors used under Title VII of the Civil

Rights Act and the Vietnam EraVeterans’ Adjustment Act will beconsidered. However, unlike Title VII,whether the successor has notice of theemployee’s claim is not a consideration.Notice may be relevant, however, indetermining successor liability forviolations of the predecessor. Thefactors to be considered include:

(1) Substantial continuity of the samebusiness operations;

(2) Use of the same plant;(3) Continuity of the work force;(4) Similarity of jobs and working

conditions;(5) Similarity of supervisory personnel;(6) Similarity in machinery, equipment,

and production methods;(7) Similarity of products or services; and(8) The ability of the predecessor to

provide relief.(b) A determination of whether or not

a ‘‘successor in interest’’ exists is notdetermined by the application of anysingle criterion, but rather the entirecircumstances are to be viewed in theirtotality.

(c) When an employer is a ‘‘successorin interest,’’ employees’ entitlements arethe same as if the employment by thepredecessor and successor werecontinuous employment by a singleemployer. For example, the successor,whether or not it meets FMLA coveragecriteria, must grant leave for eligibleemployees who had providedappropriate notice to the predecessor, orcontinue leave begun while employedby the predecessor, includingmaintenance of group health benefitsduring the leave and job restoration atthe conclusion of the leave. A successorwhich meets FMLA’s coverage criteriamust count periods of employment andhours worked for the predecessor forpurposes of determining employeeeligibility for FMLA leave.

§ 825.108 What is a ‘‘public agency’’?(a) An ‘‘employer’’ under FMLA

includes any ‘‘public agency,’’ asdefined in section 3(x) of the Fair LaborStandards Act, 29 U.S.C. 203(x). Section3(x) of the FLSA defines ‘‘publicagency’’ as the government of theUnited States; the government of a Stateor political subdivision of a State; or anagency of the United States, a State, ora political subdivision of a State, or anyinterstate governmental agency. ‘‘State’’is further defined in Section 3(c) of theFLSA to include any State of the UnitedStates, the District of Columbia, or anyTerritory or possession of the UnitedStates.

(b) The determination of whether anentity is a ‘‘public’’ agency, asdistinguished from a private employer,is determined by whether the agencyhas taxing authority, or whether the

chief administrative officer or board,etc., is elected by the voters-at-large ortheir appointment is subject to approvalby an elected official.

(c)(1) A State or a politicalsubdivision of a State constitutes asingle public agency and, therefore, asingle employer for purposes ofdetermining employee eligibility. Forexample, a State is a single employer; acounty is a single employer; a city ortown is a single employer. Where thereis any question about whether a publicentity is a public agency, asdistinguished from a part of anotherpublic agency, the U.S. Bureau of theCensus’ ‘‘Census of Governments’’ willbe determinative, except for newentities formed since the most recentpublication of the ‘‘Census.’’ For newentities, the criteria used by the Bureauof Census will be used to determinewhether an entity is a public agency ora part of another agency, includingexistence as an organized entity,governmental character, and substantialautonomy of the entity.

(2) The Census Bureau takes a censusof governments at 5-year intervals.Volume I, Government Organization,contains the official counts of thenumber of State and local governments.It includes tabulations of governmentsby State, type of government, size, andcounty location. Also produced is auniverse list of governmental units,classified according to type ofgovernment. Copies of Volume I,Government Organization, andsubsequent volumes are available fromthe Superintendent of Documents, U.S.Government Printing Office,Washington, D.C., 20402, U.S.Department of Commerce DistrictOffices, or can be found in Regional andselective depository libraries. For a listof all depository libraries, write to theGovernment Printing Office, 710 N.Capitol St., NW, Washington, D.C.20402.

(d) All public agencies are covered byFMLA regardless of the number ofemployees; they are not subject to thecoverage threshold of 50 employeescarried on the payroll each day for 20or more weeks in a year. However,employees of public agencies must meetall of the requirements of eligibility,including the requirement that theemployer (e.g., State) employ 50employees at the worksite or within 75miles.

§ 825.109 Are Federal agencies covered bythese regulations?

(a) Most employees of the governmentof the United States, if they are coveredby the FMLA, are covered under Title IIof the FMLA (incorporated in Title V,


Chapter 63, Subchapter 5 of the UnitedStates Code) which is administered bythe U.S. Office of PersonnelManagement (OPM). OPM has separateregulations at 5 CFR Part 630, SubpartL. In addition, employees of the Senateand House of Representatives arecovered by Title V of the FMLA.

(b) The Federal Executive Branchemployees within the jurisdiction ofthese regulations include:

(1) Employees of the Postal Service;(2) Employees of the Postal Rate

Commission;(3) A part-time employee who does

not have an established regular tour ofduty during the administrativeworkweek; and,

(4) An employee serving under anintermittent appointment or temporaryappointment with a time limitation ofone year or less.

(c) Employees of other Federalexecutive agencies are also covered bythese regulations if they are not coveredby Title II of FMLA.

(d) Employees of the legislative orjudicial branch of the United States arecovered by these regulations only if theyare employed in a unit which hasemployees in the competitive service.Examples include employees of theGovernment Printing Office and the U.S.Tax Court.

(e) For employees covered by theseregulations, the U.S. Governmentconstitutes a single employer forpurposes of determining employeeeligibility. These employees must meetall of the requirements for eligibility,including the requirement that theFederal Government employ 50employees at the worksite or within 75miles.

§ 825.110 Which employees are ‘‘eligible’’to take leave under FMLA?

(a) An ‘‘eligible employee’’ is anemployee of a covered employer who:

(1) Has been employed by theemployer for at least 12 months, and

(2) Has been employed for at least1,250 hours of service during the 12-month period immediately precedingthe commencement of the leave, and

(3) Is employed at a worksite where50 or more employees are employed bythe employer within 75 miles of thatworksite. (See § 825.105(a) regardingemployees who work outside the U.S.)

(b) The 12 months an employee musthave been employed by the employerneed not be consecutive months. If anemployee is maintained on the payrollfor any part of a week, including anyperiods of paid or unpaid leave (sick,vacation) during which other benefits orcompensation are provided by theemployer (e.g., workers’ compensation,

group health plan benefits, etc.), theweek counts as a week of employment.For purposes of determining whetherintermittent/occasional/casualemployment qualifies as ‘‘at least 12months,’’ 52 weeks is deemed to beequal to 12 months.

(c) Whether an employee has workedthe minimum 1,250 hours of service isdetermined according to the principlesestablished under the Fair LaborStandards Act (FLSA) for determiningcompensable hours of work (see 29 CFRPart 785). The determining factor is thenumber of hours an employee hasworked for the employer within themeaning of the FLSA. Thedetermination is not limited by methodsof recordkeeping, or by compensationagreements that do not accurately reflectall of the hours an employee has workedfor or been in service to the employer.Any accurate accounting of actual hoursworked under FLSA’s principles may beused. In the event an employer does notmaintain an accurate record of hoursworked by an employee, including foremployees who are exempt from FLSA’srequirement that a record be kept oftheir hours worked (e.g., bona fideexecutive, administrative, andprofessional employees as defined inFLSA Regulations, 29 CFR Part 541), theemployer has the burden of showingthat the employee has not worked therequisite hours. In the event theemployer is unable to meet this burdenthe employee is deemed to have metthis test. See also § 825.500(e). For thispurpose, full-time teachers (see§ 825.800 for definition) of anelementary or secondary school system,or institution of higher education, orother educational establishment orinstitution are deemed to meet the 1,250hour test. An employer must be able toclearly demonstrate that such anemployee did not work 1,250 hoursduring the previous 12 months in orderto claim that the employee is not‘‘eligible’’ for FMLA leave.

(d) The determinations of whether anemployee has worked for the employerfor at least 1,250 hours in the past 12months and has been employed by theemployer for a total of at least 12months must be made as of the dateleave commences. If an employeenotifies the employer of need for FMLAleave before the employee meets theseeligibility criteria, the employer musteither confirm the employee’s eligibilitybased upon a projection that theemployee will be eligible on the dateleave would commence or must advisethe employee when the eligibilityrequirement is met. If the employerconfirms eligibility at the time thenotice for leave is received, the

employer may not subsequentlychallenge the employee’s eligibility. Inthe latter case, if the employer does notadvise the employee whether theemployee is eligible as soon aspracticable (i.e., two business daysabsent extenuating circumstances) afterthe date employee eligibility isdetermined, the employee will havesatisfied the notice requirements andthe notice of leave is considered currentand outstanding until the employer doesadvise. If the employer fails to advisethe employee whether the employee iseligible prior to the date the requestedleave is to commence, the employee willbe deemed eligible. The employer maynot, then, deny the leave. Where theemployee does not give notice of theneed for leave more than two businessdays prior to commencing leave, theemployee will be deemed to be eligibleif the employer fails to advise theemployee that the employee is noteligible within two business days ofreceiving the employee’s notice.

(e) The period prior to the FMLA’seffective date must be considered indetermining employee’s eligibility.

(f) Whether 50 employees areemployed within 75 miles to ascertainan employee’s eligibility for FMLAbenefits is determined when theemployee gives notice of the need forleave. Whether the leave is to be takenat one time or on an intermittent orreduced leave schedule basis, once anemployee is determined eligible inresponse to that notice of the need forleave, the employee’s eligibility is notaffected by any subsequent change inthe number of employees employed ator within 75 miles of the employee’sworksite, for that specific notice of theneed for leave. Similarly, an employermay not terminate employee leave thathas already started if the employee-count drops below 50. For example, ifan employer employs 60 employees inAugust, but expects that the number ofemployees will drop to 40 in December,the employer must grant FMLA benefitsto an otherwise eligible employee whogives notice of the need for leave inAugust for a period of leave to begin inDecember.

§ 825.111 In determining if an employee is‘‘eligible’’ under FMLA, how is thedetermination made whether the employeremploys 50 employees within 75 miles ofthe worksite where the employee needingleave is employed?

(a) Generally, a worksite can refer toeither a single location or a group ofcontiguous locations. Structures whichform a campus or industrial park, orseparate facilities in proximity with oneanother, may be considered a single site


of employment. On the other hand,there may be several single sites ofemployment within a single building,such as an office building, if separateemployers conduct activities within thebuilding. For example, an officebuilding with 50 different businesses astenants will contain 50 sites ofemployment. The offices of eachemployer will be considered separatesites of employment for purposes ofFMLA. An employee’s worksite underFMLA will ordinarily be the site theemployee reports to or, if none, fromwhich the employee’s work is assigned.

(1) Separate buildings or areas whichare not directly connected or inimmediate proximity are a singleworksite if they are in reasonablegeographic proximity, are used for thesame purpose, and share the same staffand equipment. For example, if anemployer manages a number ofwarehouses in a metropolitan area butregularly shifts or rotates the sameemployees from one building to another,the multiple warehouses would be asingle worksite.

(2) For employees with no fixedworksite, e.g., construction workers,transportation workers (e.g., truckdrivers, seamen, pilots), salespersons,etc., the ‘‘worksite’’ is the site to whichthey are assigned as their home base,from which their work is assigned, or towhich they report. For example, if aconstruction company headquartered inNew Jersey opened a construction sitein Ohio, and set up a mobile trailer onthe construction site as the company’son-site office, the construction site inOhio would be the worksite for anyemployees hired locally who report tothe mobile trailer/company office dailyfor work assignments, etc. If thatconstruction company also sentpersonnel such as job superintendents,foremen, engineers, an office manager,etc., from New Jersey to the job site inOhio, those workers sent from NewJersey continue to have the headquartersin New Jersey as their ‘‘worksite.’’ Theworkers who have New Jersey as theirworksite would not be counted indetermining eligibility of employeeswhose home base is the Ohio worksite,but would be counted in determiningeligibility of employees whose homebase is New Jersey. For transportationemployees, their worksite is theterminal to which they are assigned,report for work, depart, and return aftercompletion of a work assignment. Forexample, an airline pilot may work foran airline with headquarters in NewYork, but the pilot regularly reports forduty and originates or begins flightsfrom the company’s facilities located inan airport in Chicago and returns to

Chicago at the completion of one ormore flights to go off duty. The pilot’sworksite is the facility in Chicago. Anemployee’s personal residence is not aworksite in the case of employees suchas salespersons who travel a salesterritory and who generally leave towork and return from work to theirpersonal residence, or employees whowork at home, as under the new conceptof flexiplace. Rather, their worksite isthe office to which the report and fromwhich assignments are made.

(3) For purposes of determining thatemployee’s eligibility, when anemployee is jointly employed by two ormore employers (see § 825.106), theemployee’s worksite is the primaryemployer’s office from which theemployee is assigned or reports. Theemployee is also counted by thesecondary employer to determineeligibility for the secondary employer’sfull-time or permanent employees.

(b) The 75-mile distance is measuredby surface miles, using surfacetransportation over public streets, roads,highways and waterways, by theshortest route from the facility wherethe eligible employee needing leave isemployed. Absent available surfacetransportation between worksites, thedistance is measured by using the mostfrequently utilized mode oftransportation (e.g., airline miles).

(c) The determination of how manyemployees are employed within 75miles of the worksite of an employee isbased on the number of employeesmaintained on the payroll. Employees ofeducational institutions who areemployed permanently or who areunder contract are ‘‘maintained on thepayroll’’ during any portion of the yearwhen school is not in session. See§ 825.105(b).

§ 825.112 Under what kinds ofcircumstances are employers required togrant family or medical leave?

(a) Employers covered by FMLA arerequired to grant leave to eligibleemployees:

(1) For birth of a son or daughter, andto care for the newborn child;

(2) For placement with the employeeof a son or daughter for adoption orfoster care;

(3) To care for the employee’s spouse,son, daughter, or parent with a serioushealth condition; and

(4) Because of a serious healthcondition that makes the employeeunable to perform the functions of theemployee’s job.

(b) The right to take leave underFMLA applies equally to male andfemale employees. A father, as well asa mother, can take family leave for the

birth, placement for adoption or fostercare of a child.

(c) Circumstances may require thatFMLA leave begin before the actual dateof birth of a child. An expectant mothermay take FMLA leave pursuant toparagraph (a)(4) of this section beforethe birth of the child for prenatal careor if her condition makes her unable towork.

(d) Employers covered by FMLA arerequired to grant FMLA leave pursuantto paragraph (a)(2) of this section beforethe actual placement or adoption of achild if an absence from work isrequired for the placement for adoptionor foster care to proceed. For example,the employee may be required to attendcounselling sessions, appear in court,consult with his or her attorney or thedoctor(s) representing the birth parent,or submit to a physical examination.The source of an adopted child (e.g.,whether from a licensed placementagency or otherwise) is not a factor indetermining eligibility for leave for thispurpose.

(e) Foster care is 24-hour care forchildren in substitution for, and awayfrom, their parents or guardian. Suchplacement is made by or with theagreement of the State as a result of avoluntary agreement between the parentor guardian that the child be removedfrom the home, or pursuant to a judicialdetermination of the necessity for fostercare, and involves agreement betweenthe State and foster family that the fosterfamily will take care of the child.Although foster care may be withrelatives of the child, State action isinvolved in the removal of the childfrom parental custody.

(f) In situations where the employer/employee relationship has beeninterrupted, such as an employee whohas been on layoff, the employee mustbe recalled or otherwise be re-employedbefore being eligible for FMLA leave.Under such circumstances, an eligibleemployee is immediately entitled tofurther FMLA leave for a qualifyingreason.

(g) FMLA leave is available fortreatment for substance abuse providedthe conditions of § 825.114 are met.However, treatment for substance abusedoes not prevent an employer fromtaking employment action against anemployee. The employer may not takeaction against the employee because theemployee has exercised his or her rightto take FMLA leave for treatment.However, if the employer has anestablished policy, applied in a non-discriminatory manner that has beencommunicated to all employees, thatprovides under certain circumstances anemployee may be terminated for


substance abuse, pursuant to that policythe employee may be terminatedwhether or not the employee ispresently taking FMLA leave. Anemployee may also take FMLA leave tocare for an immediate family memberwho is receiving treatment for substanceabuse. The employer may not takeaction against an employee who isproviding care for an immediate familymember receiving treatment forsubstance abuse.

§ 825.113 What do ‘‘spouse,’’ ‘‘parent,’’and ‘‘son or daughter’’ mean for purposesof an employee qualifying to take FMLAleave?

(a) Spouse means a husband or wifeas defined or recognized under Statelaw for purposes of marriage in the Statewhere the employee resides, includingcommon law marriage in States where itis recognized.

(b) Parent means a biological parent oran individual who stands or stood inloco parentis to an employee when theemployee was a son or daughter asdefined in (c) below. This term does notinclude parents ‘‘in law’’.

(c) Son or daughter means abiological, adopted, or foster child, astepchild, a legal ward, or a child of aperson standing in loco parentis, who iseither under age 18, or age 18 or olderand ‘‘incapable of self-care because of amental or physical disability.’’

(1) ‘‘Incapable of self-care’’ means thatthe individual requires active assistanceor supervision to provide daily self-carein three or more of the ‘‘activities ofdaily living’’ (ADLs) or ‘‘instrumentalactivities of daily living’’ (IADLs).Activities of daily living includeadaptive activities such as caringappropriately for one’s grooming andhygiene, bathing, dressing and eating.Instrumental activities of daily livinginclude cooking, cleaning, shopping,taking public transportation, payingbills, maintaining a residence, usingtelephones and directories, using a postoffice, etc.

(2) ‘‘Physical or mental disability’’means a physical or mental impairmentthat substantially limits one or more ofthe major life activities of an individual.Regulations at 29 CFR § 1630.2(h), (i),and (j), issued by the Equal EmploymentOpportunity Commission under theAmericans with Disabilities Act (ADA),42 U.S.C. 12101 et seq., define theseterms.

(3) Persons who are ‘‘in loco parentis’’include those with day-to-dayresponsibilities to care for andfinancially support a child or, in thecase of an employee, who had suchresponsibility for the employee when

the employee was a child. A biologicalor legal relationship is not necessary.

(d) For purposes of confirmation offamily relationship, the employer mayrequire the employee giving notice ofthe need for leave to provide reasonabledocumentation or statement of familyrelationship. This documentation maytake the form of a simple statement fromthe employee, or a child’s birthcertificate, a court document, etc. Theemployer is entitled to examinedocumentation such as a birthcertificate, etc., but the employee isentitled to the return of the officialdocument submitted for this purpose.

§ 825.114 What is a ‘‘serious healthcondition’’ entitling an employee to FMLAleave?

(a) For purposes of FMLA, ‘‘serioushealth condition’’ entitling an employeeto FMLA leave means an illness, injury,impairment, or physical or mentalcondition that involves:

(1) Inpatient care (i.e., an overnightstay) in a hospital, hospice, orresidential medical care facility,including any period of incapacity (forpurposes of this section, defined tomean inability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefor, or recoverytherefrom), or any subsequent treatmentin connection with such inpatient care;or

(2) Continuing treatment by a healthcare provider. A serious healthcondition involving continuingtreatment by a health care providerincludes any one or more of thefollowing:

(i) A period of incapacity (i.e.,inability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefor, or recoverytherefrom) of more than threeconsecutive calendar days, and anysubsequent treatment or period ofincapacity relating to the samecondition, that also involves:

(A) Treatment two or more times bya health care provider, by a nurse orphysician’s assistant under directsupervision of a health care provider, orby 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 careprovider on at least one occasion whichresults in a regimen of continuingtreatment under the supervision of thehealth care provider.

(ii) Any period of incapacity due topregnancy, or for prenatal care.

(iii) Any period of incapacity ortreatment for such incapacity due to achronic serious health condition. Achronic serious health condition is onewhich:

(A) Requires periodic visits fortreatment by a health care provider, orby a nurse or physician’s assistant underdirect supervision of a health careprovider;

(B) Continues over an extendedperiod of time (including recurringepisodes of a single underlyingcondition); and

(C) May cause episodic rather than acontinuing period of incapacity (e.g.,asthma, diabetes, epilepsy, etc.).

(iv) A period of incapacity which ispermanent or long-term due to acondition for which treatment may notbe effective. The employee or familymember must be under the continuingsupervision of, but need not bereceiving active treatment by, a healthcare provider. Examples includeAlzheimer’s, a severe stroke, or theterminal stages of a disease.

(v) Any period of absence to receivemultiple treatments (including anyperiod of recovery therefrom) by ahealth care provider or by a provider ofhealth care services under orders of, oron referral by, a health care provider,either for restorative surgery after anaccident or other injury, or for acondition that would likely result in aperiod of incapacity of more than threeconsecutive calendar days in theabsence of medical intervention ortreatment, such as cancer(chemotherapy, radiation, etc.), severearthritis (physical therapy), kidneydisease (dialysis).

(b) Treatment for purposes ofparagraph (a) of this section includes(but is not limited to) examinations todetermine if a serious health conditionexists and evaluations of the condition.Treatment does not include routinephysical examinations, eyeexaminations, or dental examinations.Under paragraph (a)(2)(i)(B), a regimenof continuing treatment includes, forexample, a course of prescriptionmedication (e.g., an antibiotic) ortherapy requiring special equipment toresolve or alleviate the health condition(e.g., oxygen). A regimen of continuingtreatment that includes the taking ofover-the-counter medications such asaspirin, antihistamines, or salves; orbed-rest, drinking fluids, exercise, andother similar activities that can beinitiated without a visit to a health careprovider, is not, by itself, sufficient toconstitute a regimen of continuingtreatment for purposes of FMLA leave.

(c) Conditions for which cosmetictreatments are administered (such as


most treatments for acne or plasticsurgery) are not ‘‘serious healthconditions’’ unless inpatient hospitalcare is required or unless complicationsdevelop. Ordinarily, unlesscomplications arise, the common cold,the flu, ear aches, upset stomach, minorulcers, headaches other than migraine,routine dental or orthodontia problems,periodontal disease, etc., are examplesof conditions that do not meet thedefinition of a serious health conditionand do not qualify for FMLA leave.Restorative dental or plastic surgeryafter an injury or removal of cancerousgrowths are serious health conditionsprovided all the other conditions of thisregulation are met. Mental illnessresulting from stress or allergies may beserious health conditions, but only if allthe conditions of this section are met.

(d) Substance abuse may be a serioushealth condition if the conditions of thissection are met. However, FMLA leavemay only be taken for treatment forsubstance abuse by a health careprovider or by a provider of health careservices on referral by a health careprovider. On the other hand, absencebecause of the employee’s use of thesubstance, rather than for treatment,does not qualify for FMLA leave.

(e) Absences attributable to incapacityunder paragraphs (a)(2) (ii) or (iii)qualify for FMLA leave even though theemployee or the immediate familymember does not receive treatment froma health care provider during theabsence, and even if the absence doesnot last more than three days. Forexample, an employee with asthma maybe unable to report for work due to theonset of an asthma attack or because theemployee’s health care provider hasadvised the employee to stay homewhen the pollen count exceeds a certainlevel. An employee who is pregnantmay be unable to report to work becauseof severe morning sickness.

§ 825.115 What does it mean that ‘‘theemployee is unable to perform thefunctions of the position of the employee’’?

An employee is ‘‘unable to performthe functions of the position’’ where thehealth care provider finds that theemployee is unable to work at all or isunable to perform any one of theessential functions of the employee’sposition within the meaning of theAmericans with Disabilities Act (ADA),42 USC 12101 et seq., and theregulations at 29 CFR § 1630.2(n). Anemployee who must be absent fromwork to receive medical treatment for aserious health condition is consideredto be unable to perform the essentialfunctions of the position during theabsence for treatment. An employer has

the option, in requiring certificationfrom a health care provider, to providea statement of the essential functions ofthe employee’s position for the healthcare provider to review. For purposes ofFMLA, the essential functions of theemployee’s position are to bedetermined with reference to theposition the employee held at the timenotice is given or leave commenced,whichever is earlier.

§ 825.116 What does it mean that anemployee is ‘‘needed to care for’’ a familymember?

(a) The medical certification provisionthat an employee is ‘‘needed to care for’’a family member encompasses bothphysical and psychological care. Itincludes situations where, for example,because of a serious health condition,the family member is unable to care forhis or her own basic medical, hygienic,or nutritional needs or safety, or isunable to transport himself or herself tothe doctor, etc. The term also includesproviding psychological comfort andreassurance which would be beneficialto a child, spouse or parent with aserious health condition who isreceiving inpatient or home care.

(b) The term also includes situationswhere the employee may be needed tofill in for others who are caring for thefamily member, or to makearrangements for changes in care, suchas transfer to a nursing home.

(c) An employee’s intermittent leaveor a reduced leave schedule necessary tocare for a family member includes notonly a situation where the familymember’s condition itself isintermittent, but also where theemployee is only neededintermittently—such as where othercare is normally available, or careresponsibilities are shared with anothermember of the family or a third party.

§ 825.117 For an employee seekingintermittent FMLA leave or leave on areduced leave schedule, what is meant by‘‘the medical necessity for’’ such leave?

For intermittent leave or leave on areduced leave schedule, there must be amedical need for leave (as distinguishedfrom voluntary treatments andprocedures) and it must be that suchmedical need can be bestaccommodated through an intermittentor reduced leave schedule. Thetreatment regimen and otherinformation described in thecertification of a serious healthcondition (see § 825.306) meets therequirement for certification of themedical necessity of intermittent leaveor leave on a reduced leave schedule.Employees needing intermittent FMLAleave or leave on a reduced leave

schedule must attempt to schedule theirleave so as not to disrupt the employer’soperations. In addition, an employermay assign an employee to analternative position with equivalent payand benefits that better accommodatesthe employee’s intermittent or reducedleave schedule.

§ 825.118 What is a ‘‘health careprovider’’?

(a) The Act defines ‘‘health careprovider’’ as:

(1) A doctor of medicine orosteopathy who is authorized to practicemedicine or surgery (as appropriate) bythe State in which the doctor practices;or

(2) Any other person determined bythe Secretary to be capable of providinghealth care services.

(b) Others ‘‘capable of providinghealth care services’’ include only:

(1) Podiatrists, dentists, clinicalpsychologists, optometrists, andchiropractors (limited to treatmentconsisting of manual manipulation ofthe spine to correct a subluxation asdemonstrated by X-ray to exist)authorized to practice in the State andperforming within the scope of theirpractice as defined under State law;

(2) Nurse practitioners, nurse-midwives and clinical social workerswho are authorized to practice underState law and who are performingwithin the scope of their practice asdefined under State law;

(3) Christian Science practitionerslisted with the First Church of Christ,Scientist in Boston, Massachusetts.Where an employee or family member isreceiving treatment from a ChristianScience practitioner, an employee maynot object to any requirement from anemployer that the employee or familymember submit to examination (thoughnot treatment) to obtain a second orthird certification from a health careprovider other than a Christian Sciencepractitioner except as otherwiseprovided under applicable State or locallaw or collective bargaining agreement.

(4) Any health care provider fromwhom an employer or the employer’sgroup health plan’s benefits managerwill accept certification of the existenceof a serious health condition tosubstantiate a claim for benefits; and

(5) A health care provider listed abovewho practices in a country other thanthe United States, who is authorized topractice in accordance with the law ofthat country, and who is performingwithin the scope of his or her practiceas defined under such law.

(c) The phrase ‘‘authorized to practicein the State’’ as used in this sectionmeans that the provider must be


authorized to diagnose and treatphysical or mental health conditionswithout supervision by a doctor or otherhealth care provider.

Subpart B—What Leave Is anEmployee Entitled to Take Under theFamily and Medical Leave Act?

§ 825.200 How much leave may anemployee take?

(a) An eligible employee’s FMLAleave entitlement is limited to a total of12 workweeks of leave during any 12-month period for any one, or more, ofthe following reasons:

(1) The birth of the employee’s son ordaughter, and to care for the newbornchild;

(2) The placement with the employeeof a son or daughter for adoption orfoster care, and to care for the newlyplaced child;

(3) To care for the employee’s spouse,son, daughter, or parent with a serioushealth condition; and,

(4) Because of a serious healthcondition that makes the employeeunable to perform one or more of theessential functions of his or her job.

(b) An employer is permitted tochoose any one of the followingmethods for determining the ‘‘12-monthperiod’’ in which the 12 weeks of leaveentitlement occurs:

(1) The calendar year;(2) Any fixed 12-month ‘‘leave year,’’

such as a fiscal year, a year required byState law, or a year starting on anemployee’s ‘‘anniversary’’ date;

(3) The 12-month period measuredforward from the date any employee’sfirst FMLA leave begins; or,

(4) A ‘‘rolling’’ 12-month periodmeasured backward from the date anemployee uses any FMLA leave (exceptthat such measure may not extend backbefore August 5, 1993).

(c) Under methods in paragraphs(b)(1) and (b)(2) of this section anemployee would be entitled to up to 12weeks of FMLA leave at any time in thefixed 12-month period selected. Anemployee could, therefore, take 12weeks of leave at the end of the year and12 weeks at the beginning of thefollowing year. Under the method inparagraph (b)(3) of this section, anemployee would be entitled to 12 weeksof leave during the year beginning onthe first date FMLA leave is taken; thenext 12-month period would begin thefirst time FMLA leave is taken aftercompletion of any previous 12-monthperiod. Under the method in paragraph(b)(4) of this section, the ‘‘rolling’’ 12-month period, each time an employeetakes FMLA leave the remaining leaveentitlement would be any balance of the

12 weeks which has not been usedduring the immediately preceding 12months. For example, if an employeehas taken eight weeks of leave duringthe past 12 months, an additional fourweeks of leave could be taken. If anemployee used four weeks beginningFebruary 1, 1994, four weeks beginningJune 1, 1994, and four weeks beginningDecember 1, 1994, the employee wouldnot be entitled to any additional leaveuntil February 1, 1995. However,beginning on February 1, 1995, theemployee would be entitled to fourweeks of leave, on June 1 the employeewould be entitled to an additional fourweeks, etc.

(d)(1) Employers will be allowed tochoose any one of the alternatives inparagraph (b) of this section providedthe alternative chosen is appliedconsistently and uniformly to allemployees. An employer wishing tochange to another alternative is requiredto give at least 60 days notice to allemployees, and the transition must takeplace in such a way that the employeesretain the full benefit of 12 weeks ofleave under whichever method affordsthe greatest benefit to the employee.Under no circumstances may a newmethod be implemented in order toavoid the Act’s leave requirements.

(2) An exception to this requireduniformity would apply in the case ofa multi-State employer who has eligibleemployees in a State which has a familyand medical leave statute. The Statemay require a single method ofdetermining the period during whichuse of the leave entitlement ismeasured. This method may conflictwith the method chosen by theemployer to determine ‘‘any 12 months’’for purposes of the Federal statute. Theemployer may comply with the Stateprovision for all employees employedwithin that State, and uniformly useanother method provided by thisregulation for all other employees.

(e) If an employer fails to select oneof the options in paragraph (b) of thissection for measuring the 12-monthperiod, the option that provides themost beneficial outcome for theemployee will be used. The employermay subsequently select an option onlyby providing the 60-day notice to allemployees of the option the employerintends to implement. During therunning of the 60-day period any otheremployee who needs FMLA leave mayuse the option providing the mostbeneficial outcome to that employee. Atthe conclusion of the 60-day period theemployer may implement the selectedoption.

(f) For purposes of determining theamount of leave used by an employee,

the fact that a holiday may occur withinthe week taken as FMLA leave has noeffect; the week is counted as a week ofFMLA leave. However, if for somereason the employer’s business activityhas temporarily ceased and employeesgenerally are not expected to report forwork for one or more weeks (e.g., aschool closing two weeks for theChristmas/New Year holiday or thesummer vacation or an employer closingthe plant for retooling or repairs), thedays the employer’s activities haveceased do not count against theemployee’s FMLA leave entitlement.Methods for determining an employee’s12-week leave entitlement are alsodescribed in § 825.205.

§ 825.201 If leave is taken for the birth ofa child, or for placement of a child foradoption or foster care, when must theleave be concluded?

An employee’s entitlement to leavefor a birth or placement for adoption orfoster care expires at the end of the 12-month period beginning on the date ofthe birth or placement, unless state lawallows, or the employer permits, leaveto be taken for a longer period. Anysuch FMLA leave must be concludedwithin this one-year period. However,see § 825.701 regarding non-FMLA leavewhich may be available underapplicable State laws.

§ 825.202 How much leave may a husbandand wife take if they are employed by thesame employer?

(a) A husband and wife who areeligible for FMLA leave and areemployed by the same coveredemployer may be limited to a combinedtotal of 12 weeks of leave during any 12-month period if the leave is taken:

(1) for birth of the employee’s son ordaughter or to care for the child afterbirth;

(2) for placement of a son or daughterwith the employee for adoption or fostercare, or to care for the child afterplacement; or

(3) to care for the employee’s parentwith a serious health condition.

(b) This limitation on the total weeksof leave applies to leave taken for thereasons specified in paragraph (a) of thissection as long as a husband and wifeare employed by the ‘‘same employer.’’It would apply, for example, eventhough the spouses are employed at twodifferent worksites of an employerlocated more than 75 miles from eachother, or by two different operatingdivisions of the same company. On theother hand, if one spouse is ineligiblefor FMLA leave, the other spouse wouldbe entitled to a full 12 weeks of FMLAleave.


(c) Where the husband and wife bothuse a portion of the total 12-week FMLAleave entitlement for one of thepurposes in paragraph (a) of thissection, the husband and wife wouldeach be entitled to the differencebetween the amount he or she has takenindividually and 12 weeks for FMLAleave for a purpose other than thosecontained in paragraph (a) of thissection. For example, if each spousetook 6 weeks of leave to care for ahealthy, newborn child, each could usean additional 6 weeks due to his or herown serious health condition or to carefor a child or parent with a serioushealth condition. Note, too, that manyState pregnancy disability laws specifya period of disability either before orafter the birth of a child; such periodswould also be considered FMLA leavefor a serious health condition of themother, and would not be subject to thecombined limit.

§ 825.203 Does FMLA leave have to betaken all at once, or can it be taken inparts?

(a) FMLA leave may be taken‘‘intermittently or on a reduced leaveschedule’’ under certain circumstances.Intermittent leave is FMLA leave takenin separate blocks of time due to a singlequalifying reason. A reduced leaveschedule is a leave schedule thatreduces an employee’s usual number ofworking hours per workweek, or hoursper workday. A reduced leave scheduleis a change in the employee’s schedulefor a period of time, normally from full-time to part-time.

(b) When leave is taken after the birthor placement of a child for adoption orfoster care, an employee may take leaveintermittently or on a reduced leaveschedule only if the employer agrees.Such a schedule reduction might occur,for example, where an employee, withthe employer’s agreement, works part-time after the birth of a child, or takesleave in several segments. Theemployer’s agreement is not required,however, for leave during which themother has a serious health condition inconnection with the birth of her child orif the newborn child has a serioushealth condition.

(c) Leave may be taken intermittentlyor on a reduced leave schedule whenmedically necessary for planned and/orunanticipated medical treatment of arelated serious health condition by orunder the supervision of a health careprovider, or for recovery from treatmentor recovery from a serious healthcondition. It may also be taken toprovide care or psychological comfort toan immediate family member with aserious health condition.

(1) Intermittent leave may be taken fora serious health condition whichrequires treatment by a health careprovider periodically, rather than forone continuous period of time, and mayinclude leave of periods from an hour ormore to several weeks. Examples ofintermittent leave would include leavetaken on an occasional basis for medicalappointments, or leave taken severaldays at a time spread over a period ofsix months, such as for chemotherapy.A pregnant employee may take leaveintermittently for prenatal examinationsor for her own condition, such as forperiods of severe morning sickness. Anexample of an employee taking leave ona reduced leave schedule is anemployee who is recovering from aserious health condition and is notstrong enough to work a full-timeschedule.

(2) Intermittent or reduced scheduleleave may be taken for absences wherethe employee or family member isincapacitated or unable to perform theessential functions of the positionbecause of a chronic serious healthcondition even if he or she does notreceive treatment by a health careprovider.

(d) There is no limit on the size of anincrement of leave when an employeetakes intermittent leave or leave on areduced leave schedule. However, anemployer may limit leave increments tothe shortest period of time that theemployer’s payroll system uses toaccount for absences or use of leave,provided it is one hour or less. Forexample, an employee might take twohours off for a medical appointment, ormight work a reduced day of four hoursover a period of several weeks whilerecuperating from an illness. Anemployee may not be required to takemore FMLA leave than necessary toaddress the circumstance thatprecipitated the need for the leave,except as provided in §§ 825.601 and825.602.

§ 825.204 May an employer transfer anemployee to an ‘‘alternative position’’ inorder to accommodate intermittent leave ora reduced leave schedule?

(a) If an employee needs intermittentleave or leave on a reduced leaveschedule that is foreseeable based onplanned medical treatment for theemployee or a family member, includingduring a period of recovery from aserious health condition, or if theemployer agrees to permit intermittentor reduced schedule leave for the birthof a child or for placement of a child foradoption or foster care, the employermay require the employee to transfertemporarily, during the period the

intermittent or reduced leave scheduleis required, to an available alternativeposition for which the employee isqualified and which betteraccommodates recurring periods ofleave than does the employee’s regularposition. See § 825.601 for special rulesapplicable to instructional employees ofschools.

(b) Transfer to an alternative positionmay require compliance with anyapplicable collective bargainingagreement, federal law (such as theAmericans with Disabilities Act), andState law. Transfer to an alternativeposition may include altering anexisting job to better accommodate theemployee’s need for intermittent orreduced leave.

(c) The alternative position must haveequivalent pay and benefits. Analternative position for these purposesdoes not have to have equivalent duties.The employer may increase the pay andbenefits of an existing alternativeposition, so as to make them equivalentto the pay and benefits of theemployee’s regular job. The employermay also transfer the employee to a part-time job with the same hourly rate ofpay and benefits, provided theemployee is not required to take moreleave than is medically necessary. Forexample, an employee desiring to takeleave in increments of four hours perday could be transferred to a half-timejob, or could remain in the employee’ssame job on a part-time schedule,paying the same hourly rate as theemployee’s previous job and enjoyingthe same benefits. The employer maynot eliminate benefits which otherwisewould not be provided to part-timeemployees; however, an employer mayproportionately reduce benefits such asvacation leave where an employer’snormal practice is to base such benefitson the number of hours worked.

(d) An employer may not transfer theemployee to an alternative position inorder to discourage the employee fromtaking leave or otherwise work ahardship on the employee. For example,a white collar employee may not beassigned to perform laborer’s work; anemployee working the day shift may notbe reassigned to the graveyard shift; anemployee working in the headquartersfacility may not be reassigned to abranch a significant distance away fromthe employee’s normal job location. Anysuch attempt on the part of theemployer to make such a transfer will beheld to be contrary to the prohibitedacts of the FMLA.

(e) When an employee who is takingleave intermittently or on a reducedleave schedule and has been transferredto an alternative position, no longer


needs to continue on leave and is ableto return to full-time work, theemployee must be placed in the same orequivalent job as the job he/she leftwhen the leave commenced. Anemployee may not be required to takemore leave than necessary to addressthe circumstance that precipitated theneed for leave.

§ 825.205 How does one determine theamount of leave used where an employeetakes leave intermittently or on a reducedleave schedule?

(a) If an employee takes leave on anintermittent or reduced leave schedule,only the amount of leave actually takenmay be counted toward the 12 weeks ofleave to which an employee is entitled.For example, if an employee whonormally works five days a week takesoff one day, the employee would use 1/5 of a week of FMLA leave. Similarly,if a full-time employee who normallyworks 8-hour days works 4-hour daysunder a reduced leave schedule, theemployee would use 1/2 week of FMLAleave each week.

(b) Where an employee normallyworks a part-time schedule or variablehours, the amount of leave to which anemployee is entitled is determined on apro rata or proportional basis bycomparing the new schedule with theemployee’s normal schedule. Forexample, if an employee who normallyworks 30 hours per week works only 20hours a week under a reduced leaveschedule, the employee’s ten hours ofleave would constitute one-third of aweek of FMLA leave for each week theemployee works the reduced leaveschedule.

(c) If an employer has made apermanent or long-term change in theemployee’s schedule (for reasons otherthan FMLA, and prior to the notice ofneed for FMLA leave), the hours workedunder the new schedule are to be usedfor making this calculation.

(d) If an employee’s schedule variesfrom week to week, a weekly average ofthe hours worked over the 12 weeksprior to the beginning of the leaveperiod would be used for calculating theemployee’s normal workweek.

§ 825.206 May an employer deduct hourlyamounts from an employee’s salary, whenproviding unpaid leave under FMLA,without affecting the employee’squalification for exemption as an executive,administrative, or professional employee, orwhen utilizing the fluctuating workweekmethod for payment of overtime, under theFair Labor Standards Act?

(a) Leave taken under FMLA may beunpaid. If an employee is otherwiseexempt from minimum wage andovertime requirements of the Fair Labor

Standards Act (FLSA) as a salariedexecutive, administrative, orprofessional employee (underregulations issued by the Secretary), 29CFR Part 541, providing unpaid FMLA-qualifying leave to such an employeewill not cause the employee to lose theFLSA exemption. This means that underregulations currently in effect, where anemployee meets the specified dutiestest, is paid on a salary basis, and is paida salary of at least the amount specifiedin the regulations, the employer maymake deductions from the employee’ssalary for any hours taken asintermittent or reduced FMLA leavewithin a workweek, without affectingthe exempt status of the employee. Thefact that an employer provides FMLAleave, whether paid or unpaid, andmaintains records required by this partregarding FMLA leave, will not berelevant to the determination whetheran employee is exempt within themeaning of 29 CFR Part 541.

(b) For an employee paid inaccordance with the fluctuatingworkweek method of payment forovertime (see 29 CFR 778.114), theemployer, during the period in whichintermittent or reduced schedule FMLAleave is scheduled to be taken, maycompensate an employee on an hourlybasis and pay only for the hours theemployee works, including time andone-half the employee’s regular rate forovertime hours. The change to paymenton an hourly basis would include theentire period during which theemployee is taking intermittent leave,including weeks in which no leave istaken. The hourly rate shall bedetermined by dividing the employee’sweekly salary by the employee’s normalor average schedule of hours workedduring weeks in which FMLA leave isnot being taken. If an employer choosesto follow this exception from thefluctuating workweek method ofpayment, the employer must do souniformly, with respect to all employeespaid on a fluctuating workweek basis forwhom FMLA leave is taken on anintermittent or reduced leave schedulebasis. If an employer does not elect toconvert the employee’s compensation tohourly pay, no deduction may be takenfor FMLA leave absences. Once the needfor intermittent or reduced scheduledleave is over, the employee may berestored to payment on a fluctuatingwork week basis.

(c) This special exception to the‘‘salary basis’’ requirements of the FLSAexemption or fluctuating workweekpayment requirements applies only toemployees of covered employers whoare eligible for FMLA leave, and to leavewhich qualifies as (one of the four types

of) FMLA leave. Hourly or otherdeductions which are not in accordancewith 29 CFR Part 541 or 29 CFR§ 778.114 may not be taken, forexample, from the salary of an employeewho works for an employer with fewerthan 50 employees, or where theemployee has not worked long enoughto be eligible for FMLA leave withoutpotentially affecting the employee’seligibility for exemption. Nor maydeductions which are not permitted by29 CFR Part 541 or 29 CFR § 778.114 betaken from such an employee’s salaryfor any leave which does not qualify asFMLA leave, for example, deductionsfrom an employee’s pay for leaverequired under State law or under anemployer’s policy or practice for areason which does not qualify as FMLAleave, e.g., leave to care for agrandparent or for a medical conditionwhich does not qualify as a serioushealth condition; or for leave which ismore generous than provided by FMLA,such as leave in excess of 12 weeks ina year. Employers may comply withState law or the employer’s own policy/practice under these circumstances andmaintain the employee’s eligibility forexemption or for the fluctuatingworkweek method of pay by not takinghourly deductions from the employee’spay, in accordance with FLSArequirements, or may take suchdeductions, treating the employee as an‘‘hourly’’ employee and pay overtimepremium pay for hours worked over 40in a workweek.

§ 825.207 Is FMLA leave paid or unpaid?(a) Generally, FMLA leave is unpaid.

However, under the circumstancesdescribed in this section, FMLA permitsan eligible employee to choose tosubstitute paid leave for FMLA leave. Ifan employee does not choose tosubstitute accrued paid leave, theemployer may require the employee tosubstitute accrued paid leave for FMLAleave.

(b) Where an employee has earned oraccrued paid vacation, personal orfamily leave, that paid leave may besubstituted for all or part of any(otherwise) unpaid FMLA leave relatingto birth, placement of a child foradoption or foster care, or care for aspouse, child or parent who has aserious health condition. The term‘‘family leave’’ as used in FMLA refersto paid leave provided by the employercovering the particular circumstancesfor which the employee seeks leave foreither the birth of a child and to care forsuch child, placement of a child foradoption or foster care, or care for aspouse, child or parent with a serioushealth condition. For example, if the


employer’s leave plan allows use offamily leave to care for a child but notfor a parent, the employer is notrequired to allow accrued family leaveto be substituted for FMLA leave usedto care for a parent.

(c) Substitution of paid accruedvacation, personal, or medical/sickleave may be made for any (otherwise)unpaid FMLA leave needed to care fora family member or the employee’s ownserious health condition. Substitution ofpaid sick/medical leave may be electedto the extent the circumstances meet theemployer’s usual requirements for theuse of sick/medical leave. An employeris not required to allow substitution ofpaid sick or medical leave for unpaidFMLA leave ‘‘in any situation’’ wherethe employer’s uniform policy wouldnot normally allow such paid leave. Anemployee, therefore, has a right tosubstitute paid medical/sick leave tocare for a seriously ill family memberonly if the employer’s leave plan allowspaid leave to be used for that purpose.Similarly, an employee does not have aright to substitute paid medical/sickleave for a serious health conditionwhich is not covered by the employer’sleave plan.

(d)(1) Disability leave for the birth ofa child would be considered FMLAleave for a serious health condition andcounted in the 12 weeks of leavepermitted under FMLA. Because theleave pursuant to a temporary disabilitybenefit plan is not unpaid, the provisionfor substitution of paid leave isinapplicable. However, the employermay designate the leave as FMLA leaveand count the leave as runningconcurrently for purposes of both thebenefit plan and the FMLA leaveentitlement. If the requirements toqualify for payments pursuant to theemployer’s temporary disability plan aremore stringent than those of FMLA, theemployee must meet the more stringentrequirements of the plan, or may choosenot to meet the requirements of the planand instead receive no payments fromthe plan and use unpaid FMLA leave orsubstitute available accrued paid leave.

(2) The Act provides that a serioushealth condition may result from injuryto the employee ‘‘on or off’’ the job.Either the employee or the employermay choose to have the employee’sFMLA 12-week leave entitlement runconcurrently with a workers’compensation absence when the injuryis one that meets the criteria for aserious health condition. As theworkers’ compensation absence is notunpaid leave, the provision forsubstitution of the employee’s accruedpaid leave is not applicable. However, ifthe health care provider treating the

employee for the workers’ compensationinjury certifies the employee is able toreturn to a ‘‘light duty job’’ but is unableto return to the same or equivalent job,the employee may decline theemployer’s offer of a ‘‘light duty job’’.As a result the employee may loseworkers’ compensation payments, but isentitled to remain on unpaid FMLAleave until the 12-week entitlement isexhausted. As of the date workers’compensation benefits cease, thesubstitution provision becomesapplicable and either the employee mayelect or the employer may require theuse 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 betweenworkers’ compensation absences andFMLA leave.

(e) Paid vacation or personal leave,including leave earned or accrued underplans allowing ‘‘paid time off,’’ may besubstituted, at either the employee’s orthe employer’s option, for any qualifiedFMLA leave. No limitations may beplaced by the employer on substitutionof paid vacation or personal leave forthese purposes.

(f) If neither the employee nor theemployer elects to substitute paid leavefor unpaid FMLA leave under the aboveconditions and circumstances, theemployee will remain entitled to all thepaid leave which is earned or accruedunder the terms of the employer’s plan.

(g) If an employee uses paid leaveunder circumstances which do notqualify as FMLA leave, the leave willnot count against the 12 weeks of FMLAleave to which the employee is entitled.For example, paid sick leave used for amedical condition which is not aserious health condition does not countagainst the 12 weeks of FMLA leaveentitlement.

(h) When an employee or employerelects to substitute paid leave (of anytype) for unpaid FMLA leave undercircumstances permitted by theseregulations, and the employer’sprocedural requirements for taking thatkind of leave are less stringent than therequirements of FMLA (e.g., notice orcertification requirements), only the lessstringent requirements may be imposed.An employee who complies with anemployer’s less stringent leave planrequirements in such cases may nothave leave for an FMLA purposedelayed or denied on the grounds thatthe employee has not complied withstricter requirements of FMLA.However, where accrued paid vacationor personal leave is substituted forunpaid FMLA leave for a serious healthcondition, an employee may be requiredto comply with any less stringent

medical certification requirements ofthe employer’s sick leave program. See§§ 825.302(g), 825.305(e) and825.306(c).

(i) Section 7(o) of the Fair LaborStandards Act (FLSA) permits publicemployers under prescribedcircumstances to substitutecompensatory time off accrued at oneand one-half hours for each overtimehour worked in lieu of paying cash toan employee when the employee worksovertime hours as prescribed by the Act.There are limits to the amounts of hoursof compensatory time an employee mayaccumulate depending upon whetherthe employee works in fire protection orlaw enforcement (480 hours) orelsewhere for a public agency (240hours). Compensatory time off is not aform of accrued paid leave that anemployer may require the employee tosubstitute for unpaid FMLA leave. Theemployee may request to use his/herbalance of compensatory time for anFMLA reason. If the employer permitsthe accrual to be used in compliancewith regulations, 29 CFR 553.25, theabsence which is paid from theemployee’s accrued compensatory time‘‘account’’ may not be counted againstthe employee’s FMLA leave entitlement.

§ 825.208 Under what circumstances mayan employer designate leave, paid orunpaid, as FMLA leave and, as a result,count it against the employee’s total FMLAleave entitlement?

(a) In all circumstances, it is theemployer’s responsibility to designateleave, paid or unpaid, as FMLA-qualifying, and to give notice of thedesignation to the employee as providedin this section. In the case ofintermittent leave or leave on a reducedschedule, only one such notice isrequired unless the circumstancesregarding the leave have changed. Theemployer’s designation decision mustbe based only on information receivedfrom the employee or the employee’sspokesperson (e.g., if the employee isincapacitated, the employee’s spouse,adult child, parent, doctor, etc., mayprovide notice to the employer of theneed to take FMLA leave). In anycircumstance where the employer doesnot have sufficient information aboutthe reason for an employee’s use of paidleave, the employer should inquirefurther of the employee or thespokesperson to ascertain whether thepaid leave is potentially FMLA-qualifying.

(1) An employee giving notice of theneed for unpaid FMLA leave mustexplain the reasons for the needed leaveso as to allow the employer to determinethat the leave qualifies under the Act. If


the employee fails to explain thereasons, leave may be denied. In manycases, in explaining the reasons for arequest to use paid leave, especiallywhen the need for the leave wasunexpected or unforeseen, an employeewill provide sufficient information forthe employer to designate the paid leaveas FMLA leave. An employee usingaccrued paid leave, especially vacationor personal leave, may in some cases notspontaneously explain the reasons ortheir plans for using their accrued leave.

(2) As noted in § 825.302(c), anemployee giving notice of the need forunpaid FMLA leave does not need toexpressly assert rights under the Act oreven mention the FMLA to meet his orher obligation to provide notice, thoughthe employee would need to state aqualifying reason for the needed leave.An employee requesting or notifying theemployer of an intent to use accruedpaid leave, even if for a purpose coveredby FMLA, would not need to assert suchright either. However, if an employeerequesting to use paid leave for anFMLA-qualifying purpose does notexplain the reason for the leave—consistent with the employer’sestablished policy or practice—and theemployer denies the employee’s request,the employee will need to providesufficient information to establish anFMLA-qualifying reason for the neededleave so that the employer is aware ofthe employee’s entitlement (i.e., that theleave may not be denied) and, then, maydesignate that the paid leave beappropriately counted against(substituted for) the employee’s 12-weekentitlement. Similarly, an employeeusing accrued paid vacation leave whoseeks an extension of unpaid leave foran FMLA-qualifying purpose will needto state the reason. If this is due to anevent which occurred during the periodof paid leave, the employer may countthe leave used after the FMLA-qualifying event against the employee’s12-week entitlement.

(b)(1) Once the employer has acquiredknowledge that the leave is being takenfor an FMLA required reason, theemployer must promptly (within twobusiness days absent extenuatingcircumstances) notify the employee thatthe paid leave is designated and will becounted as FMLA leave. If there is adispute between an employer and anemployee as to whether paid leavequalifies as FMLA leave, it should beresolved through discussions betweenthe employee and the employer. Suchdiscussions and the decision must bedocumented.

(2) The employer’s notice to theemployee that the leave has beendesignated as FMLA leave may be orally

or in writing. If the notice is oral, it shallbe confirmed in writing, no later thanthe following payday (unless the paydayis less than one week after the oralnotice, in which case the notice must beno later than the subsequent payday).The written notice may be in any form,including a notation on the employee’spay stub.

(c) If the employer requires paid leaveto be substituted for unpaid leave, orthat paid leave taken under an existingleave plan be counted as FMLA leave,this decision must be made by theemployer within two business days ofthe time the employee gives notice ofthe need for leave, or, where theemployer does not initially havesufficient information to make adetermination, when the employerdetermines that the leave qualifies asFMLA leave if this happens later. Theemployer’s designation must be madebefore the leave starts, unless theemployer does not have sufficientinformation as to the employee’s reasonfor taking the leave until after the leavecommenced. If the employer has therequisite knowledge to make adetermination that the paid leave is foran FMLA reason at the time theemployee either gives notice of the needfor leave or commences leave and failsto designate the leave as FMLA leave(and so notify the employee inaccordance with paragraph (b)), theemployer may not designate leave asFMLA leave retroactively, and maydesignate only prospectively as of thedate of notification to the employee ofthe designation. In such circumstances,the employee is subject to the fullprotections of the Act, but none of theabsence preceding the notice to theemployee of the designation may becounted against the employee’s 12-weekFMLA leave entitlement.

(d) If the employer learns that leave isfor an FMLA purpose after leave hasbegun, such as when an employee givesnotice of the need for an extension ofthe paid leave with unpaid FMLA leave,the entire or some portion of the paidleave period may be retroactivelycounted as FMLA leave, to the extentthat the leave period qualified as FMLAleave. For example, an employee isgranted two weeks paid vacation leavefor a skiing trip. In mid-week of thesecond week, the employee contacts theemployer for an extension of leave asunpaid leave and advises that at thebeginning of the second week of paidvacation leave the employee suffered asevere accident requiringhospitalization. The employer maynotify the employee that both theextension and the second week of paidvacation leave (from the date of the

injury) is designated as FMLA leave. Onthe other hand, when the employeetakes sick leave that turns into a serioushealth condition (e.g., bronchitis thatturns into bronchial pneumonia) andthe employee gives notice of the needfor an extension of leave, the entireperiod of the serious health conditionmay be counted as FMLA leave.

(e) Employers may not designate leaveas FMLA leave after the employee hasreturned to work with two exceptions:

(1) If the employee was absent for anFMLA reason and the employer did notlearn the reason for the absence untilthe employee’s return (e.g., where theemployee was absent for only a briefperiod), the employer may, upon theemployee’s return to work, promptly(within two business days of theemployee’s return to work) designatethe leave retroactively with appropriatenotice to the employee. If leave is takenfor an FMLA reason and has not beenso designated by the employer, but theemployee desires that the leave becounted as FMLA leave, the employeemust notify the employer within twobusiness days of returning to work thatthe leave was for an FMLA reason. Inthe absence of such timely notificationby the employee, the employee may notsubsequently assert FMLA protectionsfor the absence.

(2) If the employer knows the reasonfor the leave but has not been able toconfirm that the leave qualifies underFMLA, or where the employer hasrequested medical certification whichhas not yet been received or the partiesare in the process of obtaining a secondor third medical opinion, the employershould make a preliminary designation,and so notify the employee, at the timeleave begins, or as soon as the reason forthe leave becomes known. Upon receiptof the requisite information from theemployee or of the medical certificationwhich confirms the leave is for anFMLA reason, the preliminarydesignation becomes final. If themedical certifications fail to confirmthat the reason for the absence was anFMLA reason, the employer mustwithdraw the designation (with writtennotice to the employee).

§ 825.209 Is an employee entitled tobenefits while using FMLA leave?

(a) During any FMLA leave, anemployer must maintain the employee’scoverage under any group health plan(as defined in the Internal RevenueCode of 1986 at 26 U.S.C. 5000(b)(1)) onthe same conditions as coverage wouldhave been provided if the employee hadbeen continuously employed during theentire leave period. All employerscovered by FMLA, including public


agencies, are subject to the Act’srequirements to maintain healthcoverage. The definition of ‘‘grouphealth plan’’ is set forth in § 825.800.For purposes of FMLA, the term ‘‘grouphealth plan’’ shall not include aninsurance program providing healthcoverage under which employeespurchase individual policies frominsurers provided that:

(1) no contributions are made by theemployer;

(2) participation in the program iscompletely voluntary for employees;

(3) the sole functions of the employerwith respect to the program are, withoutendorsing the program, to permit theinsurer to publicize the program toemployees, to collect premiums throughpayroll deductions and to remit them tothe insurer;

(4) the employer receives noconsideration in the form of cash orotherwise in connection with theprogram, other than reasonablecompensation, excluding any profit, foradministrative services actuallyrendered in connection with payrolldeduction; and,

(5) the premium charged with respectto such coverage does not increase inthe event the employment relationshipterminates.

(b) The same group health planbenefits provided to an employee priorto taking FMLA leave must bemaintained during the FMLA leave. Forexample, if family member coverage isprovided to an employee, familymember coverage must be maintainedduring the FMLA leave. Similarly,benefit coverage during FMLA leave formedical care, surgical care, hospitalcare, dental care, eye care, mental healthcounseling, substance abuse treatment,etc., must be maintained during leave ifprovided in an employer’s group healthplan, including a supplement to a grouphealth plan, whether or not providedthrough a flexible spending account orother component of a cafeteria plan.

(c) If an employer provides a newhealth plan or benefits or changes healthbenefits or plans while an employee ison FMLA leave, the employee is entitledto the new or changed plan/benefits tothe same extent as if the employee werenot on leave. For example, if anemployer changes a group health planso that dental care becomes coveredunder the plan, an employee on FMLAleave must be given the sameopportunity as other employees toreceive (or obtain) the dental carecoverage. Any other plan changes (e.g.,in coverage, premiums, deductibles,etc.) which apply to all employees of theworkforce would also apply to anemployee on FMLA leave.

(d) Notice of any opportunity tochange plans or benefits must also begiven to an employee on FMLA leave.If the group health plan permits anemployee to change from single tofamily coverage upon the birth of achild or otherwise add new familymembers, such a change in benefitsmust be made available while anemployee is on FMLA leave. If theemployee requests the changed coverageit must be provided by the employer.

(e) An employee may choose not toretain group health plan coverageduring FMLA leave. However, when anemployee returns from leave, theemployee is entitled to be reinstated onthe same terms as prior to taking theleave, including family or dependentcoverages, without any qualifyingperiod, physical examination, exclusionof pre- existing conditions, etc. See§ 825.212(b).

(f) Except as required by theConsolidated Omnibus BudgetReconciliation Act of 1986 (COBRA)and for ‘‘key’’ employees (as discussedbelow), an employer’s obligation tomaintain health benefits during leave(and to restore the employee to the sameor equivalent employment) under FMLAceases if and when the employmentrelationship would have terminated ifthe employee had not taken FMLA leave(e.g., if the employee’s position iseliminated as part of anondiscriminatory reduction in forceand the employee would not have beentransferred to another position); anemployee informs the employer of his orher intent not to return from leave(including before starting the leave if theemployer is so informed before the leavestarts); or the employee fails to returnfrom leave or continues on leave afterexhausting his or her FMLA leaveentitlement in the 12-month period.

(g) If a ‘‘key employee’’ (see § 825.218)does not return from leave whennotified by the employer that substantialor grievous economic injury will resultfrom his or her reinstatement, theemployee’s entitlement to group healthplan benefits continues unless and untilthe employee advises the employer thatthe employee does not desire restorationto employment at the end of the leaveperiod, or FMLA leave entitlement isexhausted, or reinstatement is actuallydenied.

(h) An employee’s entitlement tobenefits other than group health benefitsduring a period of FMLA leave (e.g.,holiday pay) is to be determined by theemployer’s established policy forproviding such benefits when theemployee is on other forms of leave(paid or unpaid, as appropriate).

§ 825.210 How may employees on FMLAleave pay their share of group health benefitpremiums?

(a) Group health plan benefits must bemaintained on the same basis ascoverage would have been provided ifthe employee had been continuouslyemployed during the FMLA leaveperiod. Therefore, any share of grouphealth plan premiums which had beenpaid by the employee prior to FMLAleave must continue to be paid by theemployee during the FMLA leaveperiod. If premiums are raised orlowered, the employee would berequired to pay the new premium rates.Maintenance of health insurancepolicies which are not a part of theemployer’s group health plan, asdescribed in § 825.209(a)(1), are the soleresponsibility of the employee. Theemployee and the insurer should makenecessary arrangements for payment ofpremiums during periods of unpaidFMLA leave.

(b) If the FMLA leave is substitutedpaid leave, the employee’s share ofpremiums must be paid by the methodnormally used during any paid leave,presumably as a payroll deduction.

(c) If FMLA leave is unpaid, theemployer has a number of options forobtaining payment from the employee.The employer may require that paymentbe made to the employer or to theinsurance carrier, but no additionalcharge may be added to the employee’spremium payment for administrativeexpenses. The employer may requireemployees to pay their share ofpremium payments in any of thefollowing ways:

(1) Payment would be due at the sametime as it would be made if by payrolldeduction;

(2) Payment would be due on thesame schedule as payments are madeunder COBRA;

(3) Payment would be prepaidpursuant to a cafeteria plan at theemployee’s option;

(4) The employer’s existing rules forpayment by employees on ‘‘leavewithout pay’’ would be followed,provided that such rules do not requireprepayment (i.e., prior to thecommencement of the leave) of thepremiums that will become due duringa period of unpaid FMLA leave orpayment of higher premiums than if theemployee had continued to workinstead of taking leave; or,

(5) Another system voluntarily agreedto between the employer and theemployee, which may includeprepayment of premiums (e.g., throughincreased payroll deductions when theneed for the FMLA leave is foreseeable).


(d) The employer must provide theemployee with advance written noticeof the terms and conditions underwhich these payments must be made.(See § 825.301.)

(e) An employer may not require moreof an employee using FMLA leave thanthe employer requires of otheremployees on ‘‘leave without pay.’’

(f) An employee who is receivingpayments as a result of a workers’compensation injury must makearrangements with the employer forpayment of group health plan benefitswhen simultaneously taking unpaidFMLA leave. See paragraph (c) of thissection and § 825.207(d)(1).

§ 825.211 What special health benefitsmaintenance rules apply to multi-employerhealth plans?

(a) A multi-employer health plan is aplan to which more than one employeris required to contribute, and which ismaintained pursuant to one or morecollective bargaining agreementsbetween employee organization(s) andthe employers.

(b) An employer under a multi-employer plan must continue to makecontributions on behalf of an employeeusing FMLA leave as though theemployee had been continuouslyemployed, unless the plan contains anexplicit FMLA provision formaintaining coverage such as throughpooled contributions by all employersparty to the plan.

(c) During the duration of anemployee’s FMLA leave, coverage bythe group health plan, and benefitsprovided pursuant to the plan, must bemaintained at the level of coverage andbenefits which were applicable to theemployee at the time FMLA leavecommenced.

(d) An employee using FMLA leavecannot be required to use ‘‘banked’’hours or pay a greater premium than theemployee would have been required topay if the employee had beencontinuously employed.

(e) As provided in § 825.209(f) of thispart, group health plan coverage mustbe maintained for an employee onFMLA leave until:

(1) the employee’s FMLA leaveentitlement is exhausted;

(2) the employer can show that theemployee would have been laid off andthe employment relationshipterminated; or,

(3) the employee providesunequivocal notice of intent not toreturn to work.

§ 825.212 What are the consequences ofan employee’s failure to make timely healthplan premium payments?

(a)(1) In the absence of an establishedemployer policy providing a longergrace period, an employer’s obligationsto maintain health insurance coveragecease under FMLA if an employee’spremium payment is more than 30 dayslate. In order to drop the coverage for anemployee whose premium payment islate, the employer must provide writtennotice to the employee that the paymenthas not been received. Such notice mustbe mailed to the employee at least 15days before coverage is to cease,advising that coverage will be droppedon a specified date at least 15 days afterthe date of the letter unless the paymenthas been received by that date. If theemployer has established policiesregarding other forms of unpaid leavethat provide for the employer to ceasecoverage retroactively to the date theunpaid premium payment was due, theemployer may drop the employee fromcoverage retroactively in accordancewith that policy, provided the 15-daynotice was given. In the absence of sucha policy, coverage for the employee maybe terminated at the end of the 30-daygrace period, where the required 15-daynotice has been provided.

(2) An employer has no obligationregarding the maintenance of a healthinsurance policy which is not a ‘‘grouphealth plan.’’ See § 825.209(a).

(3) All other obligations of anemployer under FMLA would continue;for example, the employer continues tohave an obligation to reinstate anemployee upon return from leave.

(b) The employer may recover theemployee’s share of any premiumpayments missed by the employee forany FMLA leave period during whichthe employer maintains health coverageby paying the employee’s share after thepremium payment is missed.

(c) If coverage lapses because anemployee has not made requiredpremium payments, upon theemployee’s return from FMLA leave theemployer must still restore theemployee to coverage/benefitsequivalent to those the employee wouldhave had if leave had not been takenand the premium payment(s) had notbeen missed, including family ordependent coverage. See§ 825.215(d)(1)–(5). In such case, anemployee may not be required to meetany qualification requirements imposedby the plan, including any newpreexisting condition waiting period, towait for an open season, or to pass amedical examination to obtainreinstatement of coverage.

§ 825.213 May an employer recover costsit incurred for maintaining ‘‘group healthplan’’ or other non-health benefits coverageduring FMLA leave?

(a) In addition to the circumstancesdiscussed in § 825.212(b), an employermay recover its share of health planpremiums during a period of unpaidFMLA leave from an employee if theemployee fails to return to work afterthe employee’s FMLA leave entitlementhas been exhausted or expires, unlessthe reason the employee does not returnis due to:

(1) The continuation, recurrence, oronset of a serious health condition ofthe employee or the employee’s familymember which would otherwise entitlethe employee to leave under FMLA; or

(2) Other circumstances beyond theemployee’s control. Examples of ‘‘othercircumstances beyond the employee’scontrol’’ are necessarily broad. Theyinclude such situations as where aparent chooses to stay home with anewborn child who has a serious healthcondition; an employee’s spouse isunexpectedly transferred to a joblocation more than 75 miles from theemployee’s worksite; a relative orindividual other than an immediatefamily member has a serious healthcondition and the employee is neededto provide care; the employee is laid offwhile on leave; or, the employee is a‘‘key employee’’ who decides not toreturn to work upon being notified ofthe employer’s intention to denyrestoration because of substantial andgrievous economic injury to theemployer’s operations and is notreinstated by the employer. Othercircumstances beyond the employee’scontrol would not include a situationwhere an employee desires to remainwith a parent in a distant city eventhough the parent no longer requires theemployee’s care, or a parent chooses notto return to work to stay home with awell, newborn child.

(3) When an employee fails to returnto work because of the continuation,recurrence, or onset of a serious healthcondition, thereby precluding theemployer from recovering its (share of)health benefit premium payments madeon the employee’s behalf during aperiod of unpaid FMLA leave, theemployer may require medicalcertification of the employee’s or thefamily member’s serious healthcondition. Such certification is notrequired unless requested by theemployer. The employee is required toprovide medical certification in a timelymanner which, for purposes of thissection, is within 30 days from the dateof the employer’s request. For purposesof medical certification, the employee


may use the optional DOL formdeveloped for this purpose (see§ 825.306(a) and Appendix B of thispart). If the employer requests medicalcertification and the employee does notprovide such certification in a timelymanner (within 30 days), or the reasonfor not returning to work does not meetthe test of other circumstances beyondthe employee’s control, the employermay recover 100% of the health benefitpremiums it paid during the period ofunpaid FMLA leave.

(b) Under some circumstances anemployer may elect to maintain otherbenefits, e.g., life insurance, disabilityinsurance, etc., by paying theemployee’s (share of) premiums duringperiods of unpaid FMLA leave. Forexample, to ensure the employer canmeet its responsibilities to provideequivalent benefits to the employeeupon return from unpaid FMLA leave,it may be necessary that premiums bepaid continuously to avoid a lapse ofcoverage. If the employer elects tomaintain such benefits during the leave,at the conclusion of leave, the employeris entitled to recover only the costsincurred for paying the employee’sshare of any premiums whether or notthe employee returns to work.

(c) An employee who returns to workfor at least 30 calendar days isconsidered to have ‘‘returned’’ to work.An employee who transfers directlyfrom taking FMLA leave to retirement,or who retires during the first 30 daysafter the employee returns to work, isdeemed to have returned to work.

(d) When an employee elects or anemployer requires paid leave to besubstituted for FMLA leave, theemployer may not recover its (share of)health insurance or other non-healthbenefit premiums for any period ofFMLA leave covered by paid leave.Because paid leave provided under aplan covering temporary disabilities(including workers’ compensation) isnot unpaid, recovery of health insurancepremiums does not apply to such paidleave.

(e) The amount that self-insuredemployers may recover is limited toonly the employer’s share of allowable‘‘premiums’’ as would be calculatedunder COBRA, excluding the 2 percentfee for administrative costs.

(f) When an employee fails to returnto work, any health and non-healthbenefit premiums which this section ofthe regulations permits an employer torecover are a debt owed by the non-returning employee to the employer.The existence of this debt caused by theemployee’s failure to return to workdoes not alter the employer’sresponsibilities for health benefit

coverage and, under a self-insuranceplan, payment of claims incurred duringthe period of FMLA leave. To the extentrecovery is allowed, the employer mayrecover the costs through deductionfrom any sums due to the employee(e.g., unpaid wages, vacation pay, profitsharing, etc.), provided such deductionsdo not otherwise violate applicableFederal or State wage payment or otherlaws. Alternatively, the employer mayinitiate legal action against theemployee to recover such costs.

§ 825.214 What are an employee’s rightson returning to work from FMLA leave?

(a) On return from FMLA leave, anemployee is entitled to be returned tothe same position the employee heldwhen leave commenced, or to anequivalent position with equivalentbenefits, pay, and other terms andconditions of employment. Anemployee is entitled to suchreinstatement even if the employee hasbeen replaced or his or her position hasbeen restructured to accommodate theemployee’s absence. See also§ 825.106(f) for the obligations of jointemployers.

(b) If the employee is unable toperform an essential function of theposition because of a physical or mentalcondition, including the continuation ofa serious health condition, the employeehas no right to restoration to anotherposition under the FMLA. However, theemployer’s obligations may be governedby the Americans with Disabilities Act(ADA). See § 825.702.

§ 825.215 What is an equivalent position?(a) An equivalent position is one that

is virtually identical to the employee’sformer position in terms of pay, benefitsand working conditions, includingprivileges, perquisites and status. Itmust involve the same or substantiallysimilar duties and responsibilities,which must entail substantiallyequivalent skill, effort, responsibility,and authority.

(b) If an employee is no longerqualified for the position because of theemployee’s inability to attend anecessary course, renew a license, fly aminimum number of hours, etc., as aresult of the leave, the employee shallbe given a reasonable opportunity tofulfill those conditions upon return towork.

(c) Equivalent Pay. (1) An employee isentitled to any unconditional payincreases which may have occurredduring the FMLA leave period, such ascost of living increases. Pay increasesconditioned upon seniority, length ofservice, or work performed would nothave to be granted unless it is the

employer’s policy or practice to do sowith respect to other employees on‘‘leave without pay.’’ In such case, anypay increase would be granted based onthe employee’s seniority, length ofservice, work performed, etc., excludingthe period of unpaid FMLA leave. Anemployee is entitled to be restored to aposition with the same or equivalentpay premiums, such as a shiftdifferential. If an employee departedfrom a position averaging ten hours ofovertime (and corresponding overtimepay) each week, an employee isordinarily entitled to such a position onreturn from FMLA leave.

(2) Many employers pay bonuses indifferent forms to employees for job-related performance such as for perfectattendance, safety (absence of injuries oraccidents on the job) and exceedingproduction goals. Bonuses for perfectattendance and safety do not requireperformance by the employee but rathercontemplate the absence of occurrences.To the extent an employee who takesFMLA leave had met all therequirements for either or both of thesebonuses before FMLA leave began, theemployee is entitled to continue thisentitlement upon return from FMLAleave, that is, the employee may not bedisqualified for the bonus(es) for thetaking of FMLA leave. See § 825.220 (b)and (c). A monthly production bonus,on the other hand does requireperformance by the employee. If theemployee is on FMLA leave during anypart of the period for which the bonusis computed, the employee is entitled tothe same consideration for the bonus asother employees on paid or unpaidleave (as appropriate). See paragraph(d)(2) of this section.

(d) Equivalent Benefits. ‘‘Benefits’’include all benefits provided or madeavailable to employees by an employer,including group life insurance, healthinsurance, disability insurance, sickleave, annual leave, educationalbenefits, and pensions, regardless ofwhether such benefits are provided bya practice or written policy of anemployer through an employee benefitplan as defined in Section 3(3) of theEmployee Retirement Income SecurityAct of 1974, 29 U.S.C. 1002(3).

(1) At the end of an employee’s FMLAleave, benefits must be resumed in thesame manner and at the same levels asprovided when the leave began, andsubject to any changes in benefit levelsthat may have taken place during theperiod of FMLA leave affecting theentire workforce, unless otherwiseelected by the employee. Upon returnfrom FMLA leave, an employee cannotbe required to requalify for any benefitsthe employee enjoyed before FMLA


leave began (including family ordependent coverages). For example, ifan employee was covered by a lifeinsurance policy before taking leave butis not covered or coverage lapses duringthe period of unpaid FMLA leave, theemployee cannot be required to meetany qualifications, such as taking aphysical examination, in order torequalify for life insurance upon returnfrom leave. Accordingly, someemployers may find it necessary tomodify life insurance and other benefitsprograms in order to restore employeesto equivalent benefits upon return fromFMLA leave, make arrangements forcontinued payment of costs to maintainsuch benefits during unpaid FMLAleave, or pay these costs subject torecovery from the employee on returnfrom leave. See § 825.213(b).

(2) An employee may, but is notentitled to, accrue any additionalbenefits or seniority during unpaidFMLA leave. Benefits accrued at thetime leave began, however, (e.g., paidvacation, sick or personal leave to theextent not substituted for FMLA leave)must be available to an employee uponreturn from leave.

(3) If, while on unpaid FMLA leave,an employee desires to continue lifeinsurance, disability insurance, or othertypes of benefits for which he or shetypically pays, the employer is requiredto follow established policies orpractices for continuing such benefitsfor other instances of leave without pay.If the employer has no establishedpolicy, the employee and the employerare encouraged to agree uponarrangements before FMLA leave begins.

(4) With respect to pension and otherretirement plans, any period of unpaidFMLA leave shall not be treated as orcounted toward a break in service forpurposes of vesting and eligibility toparticipate. Also, if the plan requires anemployee to be employed on a specificdate in order to be credited with a yearof service for vesting, contributions orparticipation purposes, an employee onunpaid FMLA leave on that date shallbe deemed to have been employed onthat date. However, unpaid FMLA leaveperiods need not be treated as creditedservice for purposes of benefit accrual,vesting and eligibility to participate.

(5) Employees on unpaid FMLA leaveare to be treated as if they continued towork for purposes of changes to benefitplans. They are entitled to changes inbenefits plans, except those which maybe dependent upon seniority or accrualduring the leave period, immediatelyupon return from leave or to the sameextent they would have qualified if noleave had been taken. For example if thebenefit plan is predicated on a pre-

established number of hours workedeach year and the employee does nothave sufficient hours as a result oftaking unpaid FMLA leave, the benefitis lost. (In this regard, § 825.209addresses health benefits.)

(e) Equivalent Terms and Conditionsof Employment. An equivalent positionmust have substantially similar duties,conditions, responsibilities, privilegesand status as the employee’s originalposition.

(1) The employee must be reinstatedto the same or a geographicallyproximate worksite (i.e., one that doesnot involve a significant increase incommuting time or distance) fromwhere the employee had previouslybeen employed. If the employee’soriginal worksite has been closed, theemployee is entitled to the same rightsas if the employee had not been on leavewhen the worksite closed. For example,if an employer transfers all employeesfrom a closed worksite to a newworksite in a different city, theemployee on leave is also entitled totransfer under the same conditions as ifhe or she had continued to beemployed.

(2) The employee is ordinarilyentitled to return to the same shift or thesame or an equivalent work schedule.

(3) The employee must have the sameor an equivalent opportunity forbonuses, profit-sharing, and othersimilar discretionary and non-discretionary payments.

(4) FMLA does not prohibit anemployer from accommodating anemployee’s request to be restored to adifferent shift, schedule, or positionwhich better suits the employee’spersonal needs on return from leave, orto offer a promotion to a better position.However, an employee cannot beinduced by the employer to accept adifferent position against the employee’swishes.

(f) The requirement that an employeebe restored to the same or equivalent jobwith the same or equivalent pay,benefits, and terms and conditions ofemployment does not extend to deminimis or intangible, unmeasurableaspects of the job. However, restorationto a job slated for lay-off when theemployee’s original position is notwould not meet the requirements of anequivalent position.

§ 825.216 Are there any limitations on anemployer’s obligation to reinstate anemployee?

(a) An employee has no greater rightto reinstatement or to other benefits andconditions of employment than if theemployee had been continuouslyemployed during the FMLA leave

period. An employer must be able toshow that an employee would nototherwise have been employed at thetime reinstatement is requested in orderto deny restoration to employment. Forexample:

(1) If an employee is laid off duringthe course of taking FMLA leave andemployment is terminated, theemployer’s responsibility to continueFMLA leave, maintain group healthplan benefits and restore the employeecease at the time the employee is laidoff, provided the employer has nocontinuing obligations under acollective bargaining agreement orotherwise. An employer would have theburden of proving that an employeewould have been laid off during theFMLA leave period and, therefore,would not be entitled to restoration.

(2) If a shift has been eliminated, orovertime has been decreased, anemployee would not be entitled toreturn to work that shift or the originalovertime hours upon restoration.However, if a position on, for example,a night shift has been filled by anotheremployee, the employee is entitled toreturn to the same shift on whichemployed before taking FMLA leave.

(b) If an employee was hired for aspecific term or only to perform work ona discrete project, the employer has noobligation to restore the employee if theemployment term or project is over andthe employer would not otherwise havecontinued to employ the employee. Onthe other hand, if an employee washired to perform work on a contract, andafter that contract period the contractwas awarded to another contractor, thesuccessor contractor may be required torestore the employee if it is a successoremployer. See § 825.107.

(c) In addition to the circumstancesexplained above, an employer may denyjob restoration to salaried eligibleemployees (‘‘key employees,’’ as definedin paragraph (c) of § 825.217) if suchdenial is necessary to preventsubstantial and grievous economicinjury to the operations of the employer;or may delay restoration to an employeewho fails to provide a fitness for dutycertificate to return to work under theconditions described in § 825.310.

(d) If the employee has been on aworkers’ compensation absence duringwhich FMLA leave has been takenconcurrently, and after 12 weeks ofFMLA leave the employee is unable toreturn to work, the employee no longerhas the protections of FMLA and mustlook to the workers’ compensationstatute or ADA for any relief orprotections.


§ 825.217 What is a ‘‘key employee’’?(a) A ‘‘key employee’’ is a salaried

FMLA-eligible employee who is amongthe highest paid 10 percent of all theemployees employed by the employerwithin 75 miles of the employee’sworksite.

(b) The term ‘‘salaried’’ means ‘‘paidon a salary basis,’’ as defined in 29 CFR541.118. This is the Department ofLabor regulation defining employeeswho may qualify as exempt from theminimum wage and overtimerequirements of the FLSA as executive,administrative, and professionalemployees.

(c) A ‘‘key employee’’ must be‘‘among the highest paid 10 percent’’ ofall the employees—both salaried andnon-salaried, eligible and ineligible—who are employed by the employerwithin 75 miles of the worksite.

(1) In determining which employeesare among the highest paid 10 percent,year-to-date earnings are divided byweeks worked by the employee(including weeks in which paid leavewas taken). Earnings include wages,premium pay, incentive pay, and non-discretionary and discretionary bonuses.Earnings do not include incentiveswhose value is determined at somefuture date, e.g., stock options, orbenefits or perquisites.

(2) The determination of whether asalaried employee is among the highestpaid 10 percent shall be made at thetime the employee gives notice of theneed for leave. No more than 10 percentof the employer’s employees within 75miles of the worksite may be ‘‘keyemployees.’’

§ 825.218 What does ‘‘substantial andgrievous economic injury’’ mean?

(a) In order to deny restoration to akey employee, an employer mustdetermine that the restoration of theemployee to employment will cause‘‘substantial and grievous economicinjury’’ to the operations of theemployer, not whether the absence ofthe employee will cause suchsubstantial and grievous injury.

(b) An employer may take intoaccount its ability to replace on atemporary basis (or temporarily dowithout) the employee on FMLA leave.If permanent replacement isunavoidable, the cost of then reinstatingthe employee can be considered inevaluating whether substantial andgrievous economic injury will occurfrom restoration; in other words, theeffect on the operations of the companyof reinstating the employee in anequivalent position.

(c) A precise test cannot be set for thelevel of hardship or injury to the

employer which must be sustained. Ifthe reinstatement of a ‘‘key employee’’threatens the economic viability of thefirm, that would constitute ‘‘substantialand grievous economic injury.’’ A lesserinjury which causes substantial, long-term economic injury would also besufficient. Minor inconveniences andcosts that the employer wouldexperience in the normal course ofdoing business would certainly notconstitute ‘‘substantial and grievouseconomic injury.’’

(d) FMLA’s ‘‘substantial and grievouseconomic injury’’ standard is differentfrom and more stringent than the‘‘undue hardship’’ test under the ADA(see, also § 825.702).

§ 825.219 What are the rights of a keyemployee?

(a) An employer who believes thatreinstatement may be denied to a keyemployee, must give written notice tothe employee at the time the employeegives notice of the need for FMLA leave(or when FMLA leave commences, ifearlier) that he or she qualifies as a keyemployee. At the same time, theemployer must also fully inform theemployee of the potential consequenceswith respect to reinstatement andmaintenance of health benefits if theemployer should determine thatsubstantial and grievous economicinjury to the employer’s operations willresult if the employee is reinstated fromFMLA leave. If such notice cannot begiven immediately because of the needto determine whether the employee is akey employee, it shall be given as soonas practicable after being notified of aneed for leave (or the commencement ofleave, if earlier). It is expected that inmost circumstances there will be nodesire that an employee be deniedrestoration after FMLA leave and,therefore, there would be no need toprovide such notice. However, anemployer who fails to provide suchtimely notice will lose its right to denyrestoration even if substantial andgrievous economic injury will resultfrom reinstatement.

(b) As soon as an employer makes agood faith determination, based on thefacts available, that substantial andgrievous economic injury to itsoperations will result if a key employeewho has given notice of the need forFMLA leave or is using FMLA leave isreinstated, the employer shall notify theemployee in writing of itsdetermination, that it cannot denyFMLA leave, and that it intends to denyrestoration to employment oncompletion of the FMLA leave. It isanticipated that an employer willordinarily be able to give such notice

prior to the employee starting leave. Theemployer must serve this notice eitherin person or by certified mail. Thisnotice must explain the basis for theemployer’s finding that substantial andgrievous economic injury will result,and, if leave has commenced, mustprovide the employee a reasonable timein which to return to work, taking intoaccount the circumstances, such as thelength of the leave and the urgency ofthe need for the employee to return.

(c) If an employee on leave does notreturn to work in response to theemployer’s notification of intent to denyrestoration, the employee continues tobe entitled to maintenance of healthbenefits and the employer may notrecover its cost of health benefitpremiums. A key employee’s rightsunder FMLA continue unless and untilthe employee either gives notice that heor she no longer wishes to return towork, or the employer actually deniesreinstatement at the conclusion of theleave period.

(d) After notice to an employee hasbeen given that substantial and grievouseconomic injury will result if theemployee is reinstated to employment,an employee is still entitled to requestreinstatement at the end of the leaveperiod even if the employee did notreturn to work in response to theemployer’s notice. The employer mustthen again determine whether there willbe substantial and grievous economicinjury from reinstatement, based on thefacts at that time. If it is determined thatsubstantial and grievous economicinjury will result, the employer shallnotify the employee in writing (inperson or by certified mail) of the denialof restoration.

§ 825.220 How are employees protectedwho request leave or otherwise assertFMLA rights?

(a) The FMLA prohibits interferencewith an employee’s rights under thelaw, and with legal proceedings orinquiries relating to an employee’srights. More specifically, the lawcontains the following employeeprotections:

(1) An employer is prohibited frominterfering with, restraining, or denyingthe exercise of (or attempts to exercise)any rights provided by the Act.

(2) An employer is prohibited fromdischarging or in any other waydiscriminating against any person(whether or not an employee) foropposing or complaining about anyunlawful practice under the Act.

(3) All persons (whether or notemployers) are prohibited fromdischarging or in any other waydiscriminating against any person


(whether or not an employee) becausethat person has—

(i) Filed any charge, or has instituted(or caused to be instituted) anyproceeding under or related to this Act;

(ii) Given, or is about to give, anyinformation in connection with aninquiry or proceeding relating to a rightunder this Act;

(iii) Testified, or is about to testify, inany inquiry or proceeding relating to aright under this Act.

(b) Any violations of the Act or ofthese regulations constitute interferingwith, restraining, or denying theexercise of rights provided by the Act.‘‘Interfering with’’ the exercise of anemployee’s rights would include, forexample, not only refusing to authorizeFMLA leave, but discouraging anemployee from using such leave. Itwould also include manipulation by acovered employer to avoidresponsibilities under FMLA, forexample:

(1) transferring employees from oneworksite to another for the purpose ofreducing worksites, or to keepworksites, below the 50-employeethreshold for employee eligibility underthe Act;

(2) changing the essential functions ofthe job in order to preclude the takingof leave;

(3) reducing hours available to workin order to avoid employee eligibility.

(c) An employer is prohibited fromdiscriminating against employees orprospective employees who have usedFMLA leave. For example, if anemployee on leave without pay wouldotherwise be entitled to full benefits(other than health benefits), the samebenefits would be required to beprovided to an employee on unpaidFMLA leave. By the same token,employers cannot use the taking ofFMLA leave as a negative factor inemployment actions, such as hiring,promotions or disciplinary actions; norcan FMLA leave be counted under ‘‘nofault’’ attendance policies.

(d) Employees cannot waive, nor mayemployers induce employees to waive,their rights under FMLA. For example,employees (or their collectivebargaining representatives) cannot‘‘trade off’’ the right to take FMLA leaveagainst some other benefit offered by theemployer. This does not prevent anemployee’s voluntary and uncoercedacceptance (not as a condition ofemployment) of a ‘‘light duty’’assignment while recovering from aserious health condition (see§ 825.702(d)). In such a circumstancethe employee’s right to restoration to thesame or an equivalent position isavailable until 12 weeks have passed

within the 12-month period, includingall FMLA leave taken and the period of‘‘light duty.’’

(e) Individuals, and not merelyemployees, are protected fromretaliation for opposing (e.g., file acomplaint about) any practice which isunlawful under the Act. They aresimilarly protected if they oppose anypractice which they reasonably believeto be a violation of the Act orregulations.

Subpart C—How do Employees Learnof Their FMLA Rights and Obligations,and What Can an Employer Require ofan Employee?

§ 825.300 What posting requirements doesthe Act place on employers?

(a) Every employer covered by theFMLA is required to post and keepposted on its premises, in conspicuousplaces where employees are employed,whether or not it has any ‘‘eligible’’employees, a notice explaining the Act’sprovisions and providing informationconcerning the procedures for filingcomplaints of violations of the Act withthe Wage and Hour Division. The noticemust be posted prominently where itcan be readily seen by employees andapplicants for employment. Employersmay duplicate the text of the noticecontained in Appendix C of this part, orcopies of the required notice may beobtained from local offices of the Wageand Hour Division. The poster and thetext must be large enough to be easilyread and contain fully legible text.

(b) An employer that willfully violatesthe posting requirement may beassessed a civil money penalty by theWage and Hour Division not to exceed$100 for each separate offense.Furthermore, an employer that fails topost the required notice cannot take anyadverse action against an employee,including denying FMLA leave, forfailing to furnish the employer withadvance notice of a need to take FMLAleave.

(c) Where an employer’s workforce iscomprised of a significant portion ofworkers who are not literate in English,the employer shall be responsible forproviding the notice in a language inwhich the employees are literate.

§ 825.301 What other notices to employeesare required of employers under the FMLA?

(a)(1) If an FMLA-covered employerhas any eligible employees and has anywritten guidance to employeesconcerning employee benefits or leaverights, such as in an employeehandbook, information concerningFMLA entitlements and employeeobligations under the FMLA must be

included in the handbook or otherdocument. For example, if an employerprovides an employee handbook to allemployees that describes the employer’spolicies regarding leave, wages,attendance, and similar matters, thehandbook must incorporate informationon FMLA rights and responsibilities andthe employer’s policies regarding theFMLA. Informational publicationsdescribing the Act’s provisions areavailable from local offices of the Wageand Hour Division and may beincorporated in such employerhandbooks or written policies.

(2) If such an employer does not havewritten policies, manuals, or handbooksdescribing employee benefits and leaveprovisions, the employer shall providewritten guidance to an employeeconcerning all the employee’s rights andobligations under the FMLA. Thisnotice shall be provided to employeeseach time notice is given pursuant toparagraph (b), and in accordance withthe provisions of that paragraph.Employers may duplicate and providethe employee a copy of the FMLA FactSheet available from the nearest office ofthe Wage and Hour Division to providesuch guidance.

(b)(1) The employer shall also providethe employee with written noticedetailing the specific expectations andobligations of the employee andexplaining any consequences of a failureto meet these obligations. The writtennotice must be provided to theemployee in a language in which theemployee is literate (see § 825.300(c)).Such specific notice must include, asappropriate:

(i) that the leave will be countedagainst the employee’s annual FMLAleave entitlement (see § 825.208);

(ii) any requirements for the employeeto furnish medical certification of aserious health condition and theconsequences of failing to do so (see§ 825.305);

(iii) the employee’s right to substitutepaid leave and whether the employerwill require the substitution of paidleave, and the conditions related to anysubstitution;

(iv) any requirement for the employeeto make any premium payments tomaintain health benefits and thearrangements for making such payments(see § 825.210), and the possibleconsequences of failure to make suchpayments on a timely basis (i.e., thecircumstances under which coveragemay lapse);

(v) any requirement for the employeeto present a fitness-for-duty certificate tobe restored to employment (see§ 825.309);


(vi) the employee’s status as a ‘‘keyemployee’’ and the potentialconsequence that restoration may bedenied following FMLA leave,explaining the conditions required forsuch denial (see § 825.218);

(vii) the employee’s right torestoration to the same or an equivalentjob upon return from leave (see§§ 825.214 and 825.604); and,

(viii) the employee’s potential liabilityfor payment of health insurancepremiums paid by the employer duringthe employee’s unpaid FMLA leave ifthe employee fails to return to workafter taking FMLA leave (see § 825.213).

(2) The specific notice may includeother information—e.g., whether theemployer will require periodic reportsof the employee’s status and intent toreturn to work, but is not required to doso. A prototype notice is contained inAppendix D of this part, or may beobtained from local offices of theDepartment of Labor’s Wage and HourDivision, which employers may adaptfor their use to meet these specificnotice requirements.

(c) Except as provided in thissubparagraph, the written noticerequired by paragraph (b) (and bysubparagraph (a)(2) where applicable)must be provided to the employee noless often than the first time in each six-month period that an employee givesnotice of the need for FMLA leave (ifFMLA leave is taken during the six-month period). The notice shall be givenwithin a reasonable time after notice ofthe need for leave is given by theemployee—within one or two businessdays if feasible. If leave has alreadybegun, the notice should be mailed tothe employee’s address of record.

(1) If the specific informationprovided by the notice changes withrespect to a subsequent period of FMLAleave during the six-month period, theemployer shall, within one or twobusiness days of receipt of theemployee’s notice of need for leave,provide written notice referencing theprior notice and setting forth any of theinformation in subparagraph (b) whichhas changed. For example, if the initialleave period were paid leave and thesubsequent leave period would beunpaid leave, the employer may need togive notice of the arrangements formaking premium payments.

(2)(i) Except as provided insubparagraph (ii), if the employer isrequiring medical certification or a‘‘fitness-for-duty’’ report, written noticeof the requirement shall be given withrespect to each employee notice of aneed for leave.

(ii) Subsequent written notificationshall not be required if the initial notice

in the six-months period and theemployer handbook or other writtendocuments (if any) describing theemployer’s leave policies, clearlyprovided that certification or a ‘‘fitness-for-duty’’ report would be required (e.g.,by stating that certification would berequired in all cases, by stating thatcertification would be required in allcases in which leave of more than aspecified number of days is taken, or bystating that a ‘‘fitness-for-duty’’ reportwould be required in all cases for backinjuries for employees in a certainoccupation). Where subsequent writtennotice is not required, at least oralnotice shall be provided. (See§ 825.305(a).)

(d) Employers are also expected toresponsively answer questions fromemployees concerning their rights andresponsibilities under the FMLA.

(e) Employers furnishing FMLA-required notices to sensory impairedindividuals must also comply with allapplicable requirements under Federalor State law.

(f) If an employer fails to providenotice in accordance with theprovisions of this section, the employermay not take action against an employeefor failure to comply with any provisionrequired to be set forth in the notice.

§ 825.302 What notice does an employeehave to give an employer when the need forFMLA leave is foreseeable?

(a) An employee must provide theemployer at least 30 days advancenotice before FMLA leave is to begin ifthe need for the leave is foreseeablebased on an expected birth, placementfor adoption or foster care, or plannedmedical treatment for a serious healthcondition of the employee or of a familymember. If 30 days notice is notpracticable, such as because of a lack ofknowledge of approximately when leavewill be required to begin, a change incircumstances, or a medical emergency,notice must be given as soon aspracticable. For example, an employee’shealth condition may require leave tocommence earlier than anticipatedbefore the birth of a child. Similarly,little opportunity for notice may begiven before placement for adoption.Whether the leave is to be continuous oris to be taken intermittently or on areduced schedule basis, notice needonly be given one time, but theemployee shall advise the employer assoon as practicable if dates of scheduledleave change or are extended, or wereinitially unknown.

(b) ‘‘As soon as practicable’’ means assoon as both possible and practical,taking into account all of the facts andcircumstances in the individual case.

For foreseeable leave where it is notpossible to give as much as 30 daysnotice, ‘‘as soon as practicable’’ordinarily would mean at least verbalnotification to the employer within oneor two business days of when the needfor leave becomes known to theemployee.

(c) An employee shall provide at leastverbal notice sufficient to make theemployer aware that the employeeneeds FMLA-qualifying leave, and theanticipated timing and duration of theleave. The employee need not expresslyassert rights under the FMLA or evenmention the FMLA, but may only statethat leave is needed for an expectedbirth or adoption, for example. Theemployer should inquire further of theemployee if it is necessary to have moreinformation about whether FMLA leaveis being sought by the employee, andobtain the necessary details of the leaveto be taken. In the case of medicalconditions, the employer may find itnecessary to inquire further todetermine if the leave is because of aserious health condition and mayrequest medical certification to supportthe need for such leave (see § 825.305).

(d) An employer may also require anemployee to comply with theemployer’s usual and customary noticeand procedural requirements forrequesting leave. For example, anemployer may require that writtennotice set forth the reasons for therequested leave, the anticipatedduration of the leave, and theanticipated start of the leave. However,failure to follow such internal employerprocedures will not permit an employerto disallow or delay an employee’staking FMLA leave if the employeegives timely verbal or other notice.

(e) When planning medical treatment,the employee must consult with theemployer and make a reasonable effortto schedule the leave so as not todisrupt unduly the employer’soperations, subject to the approval ofthe health care provider. Employees areordinarily expected to consult with theiremployers prior to the scheduling oftreatment in order to work out atreatment schedule which best suits theneeds of both the employer and theemployee. If an employee who providesnotice of the need to take FMLA leaveon an intermittent basis for plannedmedical treatment neglects to consultwith the employer to make a reasonableattempt to arrange the schedule oftreatments so as not to unduly disruptthe employer’s operations, the employermay initiate discussions with theemployee and require the employee toattempt to make such arrangements,


subject to the approval of the health careprovider.

(f) In the case of intermittent leave orleave on a reduced leave schedulewhich is medically necessary, anemployee shall advise the employer,upon request, of the reasons why theintermittent/reduced leave schedule isnecessary and of the schedule fortreatment, if applicable. The employeeand employer shall attempt to work outa schedule which meets the employee’sneeds without unduly disrupting theemployer’s operations, subject to theapproval of the health care provider.

(g) An employer may waiveemployees’ FMLA notice requirements.In addition, an employer may notrequire compliance with stricter FMLAnotice requirements where theprovisions of a collective bargainingagreement, State law, or applicableleave plan allow less advance notice tothe employer. For example, if anemployee (or employer) elects tosubstitute paid vacation leave forunpaid FMLA leave (see § 825.207), andthe employer’s paid vacation leave planimposes no prior notificationrequirements for taking such vacationleave, no advance notice may berequired for the FMLA leave taken inthese circumstances. On the other hand,FMLA notice requirements would applyto a period of unpaid FMLA leave,unless the employer imposes lessernotice requirements on employeestaking leave without pay.

§ 825.303 What are the requirements for anemployee to furnish notice to an employerwhere the need for FMLA leave is notforeseeable?

(a) When the approximate timing ofthe need for leave is not foreseeable, anemployee should give notice to theemployer of the need for FMLA leave assoon as practicable under the facts andcircumstances of the particular case. Itis expected that an employee will givenotice to the employer within no morethan one or two working days oflearning of the need for leave, except inextraordinary circumstances where suchnotice is not feasible. In the case of amedical emergency requiring leavebecause of an employee’s own serioushealth condition or to care for a familymember with a serious health condition,written advance notice pursuant to anemployer’s internal rules andprocedures may not be required whenFMLA leave is involved.

(b) The employee should providenotice to the employer either in personor by telephone, telegraph, facsimile(‘‘fax’’) machine or other electronicmeans. Notice may be given by theemployee’s spokesperson (e.g., spouse,

adult family member or otherresponsible party) if the employee isunable to do so personally. Theemployee need not expressly assertrights under the FMLA or even mentionthe FMLA, but may only state that leaveis needed. The employer will beexpected to obtain any additionalrequired information through informalmeans. The employee or spokespersonwill be expected to provide moreinformation when it can readily beaccomplished as a practical matter,taking into consideration the exigenciesof the situation.

§ 825.304 What recourse do employershave if employees fail to provide therequired notice?

(a) An employer may waiveemployees’ FMLA notice obligations orthe employer’s own internal rules onleave notice requirements.

(b) If an employee fails to give 30 daysnotice for foreseeable leave with noreasonable excuse for the delay, theemployer may delay the taking of FMLAleave until at least 30 days after the datethe employee provides notice to theemployer of the need for FMLA leave.

(c) In all cases, in order for the onsetof an employee’s FMLA leave to bedelayed due to lack of required notice,it must be clear that the employee hadactual notice of the FMLA noticerequirements. This condition would besatisfied by the employer’s properposting of the required notice at theworksite where the employee isemployed. Furthermore, the need forleave and the approximate date leavewould be taken must have been clearlyforeseeable to the employee 30 days inadvance of the leave. For example,knowledge that an employee wouldreceive a telephone call about theavailability of a child for adoption atsome unknown point in the futurewould not be sufficient.

§ 825.305 When must an employee providemedical certification to support FMLAleave?

(a) An employer may require that anemployee’s leave to care for theemployee’s seriously-ill spouse, son,daughter, or parent, or due to theemployee’s own serious healthcondition that makes the employeeunable to perform one or more of theessential functions of the employee’sposition, be supported by a certificationissued by the health care provider of theemployee or the employee’s ill familymember. An employer must give noticeof a requirement for medicalcertification each time a certification isrequired; such notice must be writtennotice whenever required by § 825.301.

An employer’s oral request to anemployee to furnish any subsequentmedical certification is sufficient.

(b) When the leave is foreseeable andat least 30 days notice has beenprovided, the employee should providethe medical certification before theleave begins. When this is not possible,the employee must provide therequested certification to the employerwithin the time frame requested by theemployer (which must allow at least 15calendar days after the employer’srequest), unless it is not practicableunder the particular circumstances to doso despite the employee’s diligent, goodfaith efforts.

(c) In most cases, the employer shouldrequest that an employee furnishcertification from a health care providerat the time the employee gives notice ofthe need for leave or within twobusiness days thereafter, or, in the caseof unforeseen leave, within twobusiness days after the leavecommences. The employer may requestcertification at some later date if theemployer later has reason to questionthe appropriateness of the leave or itsduration.

(d) At the time the employer requestscertification, the employer must alsoadvise an employee of the anticipatedconsequences of an employee’s failureto provide adequate certification. Theemployer shall advise an employeewhenever the employer finds acertification incomplete, and providethe employee a reasonable opportunityto cure any such deficiency.

(e) If the employer’s sick or medicalleave plan imposes medical certificationrequirements that are less stringent thanthe certification requirements of theseregulations, and the employee oremployer elects to substitute paid sick,vacation, personal or family leave forunpaid FMLA leave where authorized(see § 825.207), only the employer’s lessstringent sick leave certificationrequirements may be imposed.

§ 825.306 How much information may berequired in medical certifications of aserious health condition?

(a) DOL has developed an optionalform (Form WH–380, as revised) foremployees’ (or their family members’)use in obtaining medical certification,including second and third opinions,from health care providers that meetsFMLA’s certification requirements. (SeeAppendix B to these regulations.) Thisoptional form reflects certificationrequirements so as to permit the healthcare provider to furnish appropriatemedical information within his or herknowledge.


(b) Form WH–380, as revised, oranother form containing the same basicinformation, may be used by theemployer; however, no additionalinformation may be required. In allinstances the information on the formmust relate only to the serious healthcondition for which the current need forleave exists. The form identifies thehealth care provider and type of medicalpractice (including pertinentspecialization, if any), makes maximumuse of checklist entries for ease incompleting the form, and containsrequired entries for:

(1) A certification as to which part ofthe definition of ‘‘serious healthcondition’’ (see § 825.114), if any,applies to the patient’s condition, andthe medical facts which support thecertification, including a brief statementas to how the medical facts meet thecriteria of the definition.

(2)(i) The approximate date theserious health condition commenced,and its probable duration, including theprobable duration of the patient’spresent incapacity (defined to meaninability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefor, or recoverytherefrom) if different.

(ii) Whether it will be necessary forthe employee to take leaveintermittently or to work on a reducedleave schedule basis (i.e., part-time) asa 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 ora chronic condition within the meaningof § 825.114(a)(2)(iii), whether thepatient is presently incapacitated andthe likely duration and frequency ofepisodes of incapacity.

(3)(i)(A) If additional treatments willbe required for the condition, anestimate of the probable number of suchtreatments.

(B) If the patient’s incapacity will beintermittent, or will require a reducedleave schedule, an estimate of theprobable number and interval betweensuch treatments, actual or estimateddates of treatment if known, and periodrequired for recovery if any.

(ii) If any of the treatments referred toin subparagraph (i) will be provided byanother provider of health services (e.g.,physical therapist), the nature of thetreatments.

(iii) If a regimen of continuingtreatment by the patient is requiredunder the supervision of the health careprovider, a general description of theregimen (see § 825.114(b)).

(4) If medical leave is required for theemployee’s absence from work because

of the employee’s own condition(including absences due to pregnancy ora chronic condition), whether theemployee:

(i) Is unable to perform work of anykind;

(ii) Is unable to perform any one ormore of the essential functions of theemployee’s position, including astatement of the essential functions theemployee is unable to perform (see§ 825.115), based on either informationprovided on a statement from theemployer of the essential functions ofthe position or, if not provided,discussion with the employee about theemployee’s job functions; or

(iii) Must be absent from work fortreatment.

(5)(i) If leave is required to care for afamily member of the employee with aserious health condition, whether thepatient requires assistance for basicmedical or personal needs or safety, orfor transportation; or if not, whether theemployee’s presence to providepsychological comfort would bebeneficial to the patient or assist in thepatient’s recovery. The employee isrequired to indicate on the form the carehe or she will provide and an estimateof the time period.

(ii) If the employee’s family memberwill need care only intermittently or ona reduced leave schedule basis (i.e.,part-time), the probable duration of theneed.

(c) If the employer’s sick or medicalleave plan requires less information tobe furnished in medical certificationsthan the certification requirements ofthese regulations, and the employee oremployer elects to substitute paid sick,vacation, personal or family leave forunpaid FMLA leave where authorized(see § 825.207), only the employer’slesser sick leave certificationrequirements may be imposed.

§ 825.307 What may an employer do if itquestions the adequacy of a medicalcertification?

(a) If an employee submits a completecertification signed by the health careprovider, the employer may not requestadditional information from theemployee’s health care provider.However, a health care providerrepresenting the employer may contactthe employee’s health care provider,with the employee’s permission, forpurposes of clarification andauthenticity of the medical certification.

(1) If an employee is on FMLA leaverunning concurrently with a workers’compensation absence, and theprovisions of the workers’ compensationstatute permit the employer or theemployer’s representative to have direct

contact with the employee’s workers’compensation health care provider, theemployer may follow the workers’compensation provisions.

(2) An employer who has reason todoubt the validity of a medicalcertification may require the employeeto obtain a second opinion at theemployer’s expense. Pending receipt ofthe second (or third) medical opinion,the employee is provisionally entitled tothe benefits of the Act, includingmaintenance of group health benefits. Ifthe certifications do not ultimatelyestablish the employee’s entitlement toFMLA leave, the leave shall not bedesignated as FMLA leave and may betreated as paid or unpaid leave underthe employer’s established leavepolicies. The employer is permitted todesignate the health care provider tofurnish the second opinion, but theselected health care provider may not beemployed on a regular basis by theemployer. See also § 825.305(a)(3).

(b) The employer may not regularlycontract with or otherwise regularlyutilize the services of the health careprovider furnishing the second opinionunless the employer is located in anarea where access to health care isextremely limited (e.g., a rural areawhere no more than one or two doctorspractice in the relevant specialty in thevicinity).

(c) If the opinions of the employee’sand the employer’s designated healthcare providers differ, the employer mayrequire the employee to obtaincertification from a third health careprovider, again at the employer’sexpense. This third opinion shall befinal and binding. The third health careprovider must be designated orapproved jointly by the employer andthe employee. The employer and theemployee must each act in good faith toattempt to reach agreement on whom toselect for the third opinion provider. Ifthe employer does not attempt in goodfaith to reach agreement, the employerwill be bound by the first certification.If the employee does not attempt ingood faith to reach agreement, theemployee will be bound by the secondcertification. For example, an employeewho refuses to agree to see a doctor inthe specialty in question may be failingto act in good faith. On the other hand,an employer that refuses to agree to anydoctor on a list of specialists in theappropriate field provided by theemployee and whom the employee hasnot previously consulted may be failingto act in good faith.

(d) The employer is required toprovide the employee with a copy of thesecond and third medical opinions,where applicable, upon request by the


employee. Requested copies are to beprovided within two business daysunless extenuating circumstancesprevent such action.

(e) If the employer requires theemployee to obtain either a second orthird opinion the employer mustreimburse an employee or familymember for any reasonable ‘‘out ofpocket’’ travel expenses incurred toobtain the second and third medicalopinions. The employer may not requirethe employee or family member to traveloutside normal commuting distance forpurposes of obtaining the second orthird medical opinions except in veryunusual circumstances.

(f) In circumstances when theemployee or a family member is visitingin another country, or a family memberresides in another country, and a serioushealth condition develops, the employershall accept a medical certification aswell as second and third opinions froma health care provider who practices inthat country.

§ 825.308 Under what circumstances mayan employer request subsequentrecertifications of medical conditions?

(a) For pregnancy, chronic, orpermanent/long-term conditions undercontinuing supervision of a health careprovider (as defined in§ 825.114(a)(2)(ii), (iii) or (iv)), anemployer may request recertification nomore often than every 30 days and onlyin connection with an absence by theemployee, unless:

(1) Circumstances described by theprevious certification have changedsignificantly (e.g., the duration orfrequency of absences, the severity ofthe condition, complications); or

(2) The employer receives informationthat casts doubt upon the employee’sstated reason for the absence.

(b)(1) If the minimum duration of theperiod of incapacity specified on acertification furnished by the healthcare provider is more than 30 days, theemployer may not request recertificationuntil that minimum duration has passedunless one of the conditions set forth inparagraph (c)(1), (2) or (3) of this sectionis met.

(2) For FMLA leave takenintermittently or on a reduced leaveschedule basis, the employer may notrequest recertification in less than theminimum period specified on thecertification as necessary for such leave(including treatment) unless one of theconditions set forth in paragraph (c)(1),(2) or (3) of this section is met.

(c) For circumstances not covered byparagraphs (a) or (b) of this section, anemployer may request recertification at

any reasonable interval, but not moreoften than every 30 days, unless:

(1) The employee requests anextension of leave;

(2) Circumstances described by theprevious certification have changedsignificantly (e.g., the duration of theillness, the nature of the illness,complications); or

(3) The employer receives informationthat casts doubt upon the continuingvalidity of the certification.

(d) The employee must provide therequested recertification to the employerwithin the time frame requested by theemployer (which must allow at least 15calendar days after the employer’srequest), unless it is not practicableunder the particular circumstances to doso despite the employee’s diligent, goodfaith efforts.

(e) Any recertification requested bythe employer shall be at the employee’sexpense unless the employer providesotherwise. No second or third opinionon recertification may be required.

§ 825.309 What notice may an employerrequire regarding an employee’s intent toreturn to work?

(a) An employer may require anemployee on FMLA leave to reportperiodically on the employee’s statusand intent to return to work. Theemployer’s policy regarding suchreports may not be discriminatory andmust take into account all of therelevant facts and circumstances relatedto the individual employee’s leavesituation.

(b) If an employee gives unequivocalnotice of intent not to return to work,the employer’s obligations under FMLAto maintain health benefits (subject toCOBRA requirements) and to restore theemployee cease. However, theseobligations continue if an employeeindicates he or she may be unable toreturn to work but expresses acontinuing desire to do so.

(c) It may be necessary for anemployee to take more leave thanoriginally anticipated. Conversely, anemployee may discover after beginningleave that the circumstances havechanged and the amount of leaveoriginally anticipated is no longernecessary. An employee may not berequired to take more FMLA leave thannecessary to resolve the circumstancethat precipitated the need for leave. Inboth of these situations, the employermay require that the employee providethe employer reasonable notice(i.e.,within two business days) of thechanged circumstances whereforeseeable. The employer may alsoobtain information on such changed

circumstances through requested statusreports.

§ 825.310 Under what circumstances mayan employer require that an employeesubmit a medical certification that theemployee is able (or unable) to return towork (i.e., a ‘‘fitness-for-duty’’ report)?

(a) As a condition of restoring anemployee whose FMLA leave wasoccasioned by the employee’s ownserious health condition that made theemployee unable to perform theemployee’s job, an employer may havea uniformly-applied policy or practicethat requires all similarly-situatedemployees (i.e., same occupation, sameserious health condition) who take leavefor such conditions to obtain andpresent certification from theemployee’s health care provider that theemployee is able to resume work.

(b) If State or local law or the termsof a collective bargaining agreementgovern an employee’s return to work,those provisions shall be applied.Similarly, requirements under theAmericans with Disabilities Act (ADA)that any return-to-work physical be job-related and consistent with businessnecessity apply. For example, anattorney could not be required to submitto a medical examination or inquiry justbecause her leg had been amputated.The essential functions of an attorney’sjob do not require use of both legs;therefore such an inquiry would not bejob related. An employer may require awarehouse laborer, whose backimpairment affects the ability to lift, tobe examined by an orthopedist, but maynot require this employee to submit toan HIV test where the test is not relatedto either the essential functions of his/her job or to his/her impairment.

(c) An employer may seek fitness-for-duty certification only with regard tothe particular health condition thatcaused the employee’s need for FMLAleave. The certification itself need onlybe a simple statement of an employee’sability to return to work. A health careprovider employed by the employermay contact the employee’s health careprovider with the employee’spermission, for purposes of clarificationof the employee’s fitness to return towork. No additional information may beacquired, and clarification may berequested only for the serious healthcondition for which FMLA leave wastaken. The employer may not delay theemployee’s return to work while contactwith the health care provider is beingmade.

(d) The cost of the certification shallbe borne by the employee and theemployee is not entitled to be paid for


the time or travel costs spent inacquiring the certification.

(e) The notice that employers arerequired to give to each employee givingnotice of the need for FMLA leaveregarding their FMLA rights andobligations (see § 825.301) shall advisethe employee if the employer willrequire fitness-for-duty certification toreturn to work. If the employer has ahandbook explaining employmentpolicies and benefits, the handbookshould explain the employer’s generalpolicy regarding any requirement forfitness-for-duty certification to return towork. Specific notice shall also be givento any employee from whom fitness-for-duty certification will be required eitherat the time notice of the need for leaveis given or immediately after leavecommences and the employer is advisedof the medical circumstances requiringthe leave, unless the employee’scondition changes from one that did notpreviously require certification pursuantto the employer’s practice or policy. Nosecond or third fitness-for-dutycertification may be required.

(f) An employer may delay restorationto employment until an employeesubmits a required fitness-for-dutycertification unless the employer hasfailed to provide the notices required inparagraph (c) of this section.

(g) An employer is not entitled tocertification of fitness to return to dutywhen the employee takes intermittentleave as described in § 825.203.

(h) When an employee is unable toreturn to work after FMLA leavebecause of the continuation, recurrence,or onset of the employee’s or familymember’s serious health condition,thereby preventing the employer fromrecovering its share of health benefitpremium payments made on theemployee’s behalf during a period ofunpaid FMLA leave, the employer mayrequire medical certification of theemployee’s or the family member’sserious health condition. (See§ 825.213(a)(3).) The cost of thecertification shall be borne by theemployee and the employee is notentitled to be paid for the time or travelcosts spent in acquiring thecertification.

§ 825.311 What happens if an employeefails to satisfy the medical certification and/or recertification requirements?

(a) In the case of foreseeable leave, anemployer may delay the taking of FMLAleave to an employee who fails toprovide timely certification after beingrequested by the employer to furnishsuch certification ( i.e., within 15calendar days, if practicable), until therequired certification is provided.

(b) When the need for leave is notforeseeable, or in the case ofrecertification, an employee mustprovide certification (or recertification)within the time frame requested by theemployer (which must allow at least 15days after the employer’s request) or assoon as reasonably possible under theparticular facts and circumstances. Inthe case of a medical emergency, it maynot be practicable for an employee toprovide the required certification within15 calendar days. If an employee fails toprovide a medical certification within areasonable time under the pertinentcircumstances, the employer may delaythe employee’s continuation of FMLAleave. If the employee never producesthe certification, the leave is not FMLAleave.

(c) When requested by the employerpursuant to a uniformly applied policyfor similarly-situated employees, theemployee must provide medicalcertification at the time the employeeseeks reinstatement at the end of FMLAleave taken for the employee’s serioushealth condition, that the employee isfit for duty and able to return to work(see § 825.310(a)) if the employer hasprovided the required notice (see§ 825.301(c); the employer may delayrestoration until the certification isprovided. In this situation, unless theemployee provides either a fitness-for-duty certification or a new medicalcertification for a serious healthcondition at the time FMLA leave isconcluded, the employee may beterminated. See also § 825.213(a)(3).

§ 825.312 Under what circumstances maya covered employer refuse to provide FMLAleave or reinstatement to eligibleemployees?

(a) If an employee fails to give timelyadvance notice when the need forFMLA leave is foreseeable, the employermay delay the taking of FMLA leaveuntil 30 days after the date theemployee provides notice to theemployer of the need for FMLA leave.(See § 825.302.)

(b) If an employee fails to provide ina timely manner a requested medicalcertification to substantiate the need forFMLA leave due to a serious healthcondition, an employer may delaycontinuation of FMLA leave until anemployee submits the certificate. (See§§ 825.305 and 825.310.) If theemployee never produces thecertification, the leave is not FMLAleave.

(c) If an employee fails to provide arequested fitness-for-duty certificationto return to work, an employer maydelay restoration until the employee

submits the certificate. (See §§ 825.309and 825.310.)

(d) An employee has no greater rightto reinstatement or to other benefits andconditions of employment than if theemployee had been continuouslyemployed during the FMLA leaveperiod. Thus, an employee’s rights tocontinued leave, maintenance of healthbenefits, and restoration cease underFMLA if and when the employmentrelationship terminates (e.g., layoff),unless that relationship continues, forexample, by the employee remaining onpaid FMLA leave. If the employee isrecalled or otherwise re-employed, aneligible employee is immediatelyentitled to further FMLA leave for anFMLA-qualifying reason. An employermust be able to show, when anemployee requests restoration, that theemployee would not otherwise havebeen employed if leave had not beentaken in order to deny restoration toemployment. (See § 825.216.)

(e) An employer may require anemployee on FMLA leave to reportperiodically on the employee’s statusand intention to return to work. (See§ 825.309.) If an employeeunequivocally advises the employereither before or during the taking ofleave that the employee does not intendto return to work, and the employmentrelationship is terminated, theemployee’s entitlement to continuedleave, maintenance of health benefits,and restoration ceases unless theemployment relationship continues, forexample, by the employee remaining onpaid leave. An employee may not berequired to take more leave thannecessary to address the circumstancesfor which leave was taken. If theemployee is able to return to workearlier than anticipated, the employeeshall provide the employer two businessdays notice where feasible; theemployer is required to restore theemployee once such notice is given, orwhere such prior notice was notfeasible.

(f) An employer may deny restorationto employment, but not the taking ofFMLA leave and the maintenance ofhealth benefits, to an eligible employeeonly under the terms of the ‘‘keyemployee’’ exemption. Denial ofreinstatement must be necessary toprevent ‘‘substantial and grievouseconomic injury’’ to the employer’soperations. The employer must notifythe employee of the employee’s status asa ‘‘key employee’’ and of the employer’sintent to deny reinstatement on thatbasis when the employer makes thesedeterminations. If leave has started, theemployee must be given a reasonable


opportunity to return to work after beingso notified. (See § 825.220.)

(g) An employee who fraudulentlyobtains FMLA leave from an employeris not protected by FMLA’s jobrestoration or maintenance of healthbenefits provisions.

(h) If the employer has a uniformly-applied policy governing outside orsupplemental employment, such apolicy may continue to apply to anemployee while on FMLA leave. Anemployer which does not have such apolicy may not deny benefits to whichan employee is entitled under FMLA onthis basis unless the FMLA leave wasfraudulently obtained as in paragraph(g) of this section.

Subpart D—What EnforcementMechanisms Does FMLA Provide?

§ 825.400 What can employees do whobelieve that their rights under FMLA havebeen violated?

(a) The employee has the choice of:(1) Filing, or having another person

file on his or her behalf, a complaintwith the Secretary of Labor, or

(2) Filing a private lawsuit pursuantto section 107 of FMLA.

(b) If the employee files a privatelawsuit, it must be filed within twoyears after the last action which theemployee contends was in violation ofthe Act, or three years if the violationwas willful.

(c) If an employer has violated one ormore provisions of FMLA, and ifjustified by the facts of a particular case,an employee may receive one or moreof the following: wages, employmentbenefits, or other compensation deniedor lost to such employee by reason ofthe violation; or, where no such tangibleloss has occurred, such as when FMLAleave was unlawfully denied, any actualmonetary loss sustained by theemployee as a direct result of theviolation, such as the cost of providingcare, up to a sum equal to 12 weeks ofwages for the employee. In addition, theemployee may be entitled to interest onsuch sum, calculated at the prevailingrate. An amount equalling the precedingsums may also be awarded as liquidateddamages unless such amount is reducedby the court because the violation wasin good faith and the employer hadreasonable grounds for believing theemployer had not violated the Act.When appropriate, the employee mayalso obtain appropriate equitable relief,such as employment, reinstatement andpromotion. When the employer is foundin violation, the employee may recovera reasonable attorney’s fee, reasonableexpert witness fees, and other costs ofthe action from the employer in

addition to any judgment awarded bythe court.

§ 825.401 Where may an employee file acomplaint of FMLA violations with theFederal government?

(a) A complaint may be filed inperson, by mail or by telephone, withthe Wage and Hour Division,Employment Standards Administration,U.S. Department of Labor. A complaintmay be filed at any local office of theWage and Hour Division; the addressand telephone number of local officesmay be found in telephone directories.

(b) A complaint filed with theSecretary of Labor should be filedwithin a reasonable time of when theemployee discovers that his or herFMLA rights have been violated. In noevent may a complaint be filed morethan two years after the action which isalleged to be a violation of FMLAoccurred, or three years in the case ofa willful violation.

(c) No particular form of complaint isrequired, except that a complaint mustbe reduced to writing and shouldinclude a full statement of the acts and/or omissions, with pertinent dates,which are believed to constitute theviolation.

§ 825.402 How is an employer notified of aviolation of the posting requirement?

Section 825.300 describes therequirements for covered employers topost a notice for employees thatexplains the Act’s provisions. If arepresentative of the Department ofLabor determines that an employer hascommitted a willful violation of thisposting requirement, and that theimposition of a civil money penalty forsuch violation is appropriate, therepresentative may issue and serve anotice of penalty on such employer inperson or by certified mail. Whereservice by certified mail is not accepted,notice shall be deemed received on thedate of attempted delivery. Whereservice is not accepted, the notice maybe served by regular mail.

§ 825.403 How may an employer appealthe assessment of a penalty for willfulviolation of the posting requirement?

(a) An employer may obtain a reviewof the assessment of penalty from theWage and Hour Regional Administratorfor the region in which the allegedviolation(s) occurred. If the employerdoes not seek such a review or fails todo so in a timely manner, the notice ofthe penalty constitutes the final rulingof the Secretary of Labor.

(b) To obtain review, an employermay file a petition with the Wage andHour Regional Administrator for theregion in which the alleged violations

occurred. No particular form of petitionfor review is required, except that thepetition must be in writing, shouldcontain the legal and factual bases forthe petition, and must be mailed to theRegional Administrator within 15 daysof receipt of the notice of penalty. Theemployer may request an oral hearingwhich may be conducted by telephone.

(c) The decision of the RegionalAdministrator constitutes the final orderof the Secretary.

§ 825.404 What are the consequences ofan employer not paying the penaltyassessment after a final order is issued?

The Regional Administrator may seekto recover the unpaid penalty pursuantto the Debt Collection Act (DCA), 31U.S.C. 3711 et seq., and, in addition toseeking recovery of the unpaid finalorder, may seek interest and penalties asprovided under the DCA. The finalorder may also be referred to theSolicitor of Labor for collection. TheSecretary may file suit in any court ofcompetent jurisdiction to recover themonies due as a result of the unpaidfinal order, interest, and penalties.

Subpart E—What Records Must BeKept to Comply With the FMLA?

§ 825.500 What records must an employerkeep to comply with the FMLA?

(a) FMLA provides that coveredemployers shall make, keep, andpreserve records pertaining to theirobligations under the Act in accordancewith the recordkeeping requirements ofsection 11(c) of the Fair Labor StandardsAct (FLSA) and in accordance withthese regulations. FMLA also restrictsthe authority of the Department of Laborto require any employer or plan, fund orprogram to submit books or recordsmore than once during any 12-monthperiod unless the Department hasreasonable cause to believe a violationof the FMLA exists or the DOL isinvestigating a complaint. Theseregulations establish no requirement forthe submission of any records unlessspecifically requested by a Departmentalofficial.

(b) Form of records. No particularorder or form of records is required.These regulations establish norequirement that any employer revise itscomputerized payroll or personnelrecords systems to comply. However,employers must keep the recordsspecified by these regulations for no lessthan three years and make themavailable for inspection, copying, andtranscription by representatives of theDepartment of Labor upon request. Therecords may be maintained andpreserved on microfilm or other basicsource document of an automated data


processing memory provided thatadequate projection or viewingequipment is available, that thereproductions are clear and identifiableby date or pay period, and thatextensions or transcriptions of theinformation required herein can be andare made available upon request.Records kept in computer form must bemade available for transcription orcopying.

(c) Items required. Covered employerswho have eligible employees mustmaintain records that must disclose thefollowing:

(1) Basic payroll and identifyingemployee data, including name,address, and occupation; rate or basis ofpay and terms of compensation; dailyand weekly hours worked per payperiod; additions to or deductions fromwages; and total compensation paid.

(2) Dates FMLA leave is taken byFMLA eligible employees (e.g., availablefrom time records, requests for leave,etc., if so designated). Leave must bedesignated in records as FMLA leave;leave so designated may not includeleave required under State law or anemployer plan which is not also coveredby FMLA.

(3) If FMLA leave is taken by eligibleemployees in increments of less thanone full day, the hours of the leave.

(4) Copies of employee notices ofleave furnished to the employer underFMLA, if in writing, and copies of allgeneral and specific written noticesgiven to employees as required underFMLA and these regulations (see§ 825.301(c)). Copies may be maintainedin employee personnel files.

(5) Any documents (including writtenand electronic records) describingemployee benefits or employer policiesand practices regarding the taking ofpaid and unpaid leaves.

(6) Premium payments of employeebenefits.

(7) Records of any dispute betweenthe employer and an eligible employeeregarding designation of leave as FMLAleave, including any written statementfrom the employer or employee of thereasons for the designation and for thedisagreement.

(d) Covered employers with noeligible employees must maintain therecords set forth in paragraph (c)(1)above.

(e) Covered employers in a jointemployment situation (see § 825.106)must keep all the records required byparagraph (c) of this section withrespect to any primary employees, andmust keep the records required byparagraph (c)(1) with respect to anysecondary employees.

(f) If FMLA-eligible employees are notsubject to FLSA’s recordkeepingregulations for purposes of minimumwage or overtime compliance (i.e., notcovered by or exempt from FLSA), anemployer need not keep a record ofactual hours worked (as otherwiserequired under FLSA, 29 CFR516.2(a)(7)), provided that:

(1) eligibility for FMLA leave ispresumed for any employee who hasbeen employed for at least 12 months;and

(2) with respect to employees whotake FMLA leave intermittently or on areduced leave schedule, the employerand employee agree on the employee’snormal schedule or average hoursworked each week and reduce theiragreement to a written recordmaintained in accordance withparagraph (b) of this section.

(g) Records and documents relating tomedical certifications, recertifications ormedical histories of employees oremployees’ family members, created forpurposes of FMLA, shall be maintainedas confidential medical records inseparate files/records from the usualpersonnel files, and if ADA is alsoapplicable, such records shall bemaintained in conformance with ADAconfidentiality requirements (see 29CFR § 1630.14(c)(1)), except that:

(1) Supervisors and managers may beinformed regarding necessaryrestrictions on the work or duties of anemployee and necessaryaccommodations;

(2) First aid and safety personnel maybe informed (when appropriate) if theemployee’s physical or medicalcondition might require emergencytreatment; and

(3) Government officials investigatingcompliance with FMLA (or otherpertinent law) shall be providedrelevant information upon request.

Subpart F—What Special Rules Applyto Employees of Schools?

§ 825.600 To whom do the special rulesapply?

(a) Certain special rules apply toemployees of ‘‘local educationalagencies,’’ including public schoolboards and elementary and secondaryschools under their jurisdiction, andprivate elementary and secondaryschools. The special rules do not applyto other kinds of educationalinstitutions, such as colleges anduniversities, trade schools, andpreschools.

(b) Educational institutions arecovered by FMLA (and these specialrules) and the Act’s 50-employeecoverage test does not apply. The usual

requirements for employees to be‘‘eligible’’ do apply, however, includingemployment at a worksite where at least50 employees are employed within 75miles. For example, employees of a ruralschool would not be eligible for FMLAleave if the school has fewer than 50employees and there are no otherschools under the jurisdiction of thesame employer (usually, a school board)within 75 miles.

(c) The special rules affect the takingof intermittent leave or leave on areduced leave schedule, or leave nearthe end of an academic term (semester),by instructional employees.‘‘Instructional employees’’ are thosewhose principal function is to teach andinstruct students in a class, a smallgroup, or an individual setting. Thisterm includes not only teachers, but alsoathletic coaches, driving instructors,and special education assistants such assigners for the hearing impaired. It doesnot include, and the special rules do notapply to, teacher assistants or aides whodo not have as their principal job actualteaching or instructing, nor does itinclude auxiliary personnel such ascounselors, psychologists, or curriculumspecialists. It also does not includecafeteria workers, maintenance workers,or bus drivers.

(d) Special rules which apply torestoration to an equivalent positionapply to all employees of localeducational agencies.

§ 825.601 What limitations apply to thetaking of intermittent leave or leave on areduced leave schedule?

(a) Leave taken for a period that endswith the school year and begins the nextsemester is leave taken consecutivelyrather than intermittently. The periodduring the summer vacation when theemployee would not have been requiredto report for duty is not counted againstthe employee’s FMLA leave entitlement.An instructional employee who is onFMLA leave at the end of the schoolyear must be provided with any benefitsover the summer vacation thatemployees would normally receive ifthey had been working at the end of theschool year.

(1) If an eligible instructionalemployee needs intermittent leave orleave on a reduced leave schedule tocare for a family member, or for theemployee’s own serious healthcondition, which is foreseeable based onplanned medical treatment, and theemployee would be on leave for morethan 20 percent of the total number ofworking days over the period the leavewould extend, the employer mayrequire the employee to choose eitherto:


(i) Take leave for a period or periodsof a particular duration, not greater thanthe duration of the planned treatment;or

(ii) Transfer temporarily to anavailable alternative position for whichthe employee is qualified, which hasequivalent pay and benefits and whichbetter accommodates recurring periodsof leave than does the employee’sregular position.

(2) These rules apply only to a leaveinvolving more than 20 percent of theworking days during the period overwhich the leave extends. For example,if an instructional employee whonormally works five days each weekneeds to take two days of FMLA leaveper week over a period of several weeks,the special rules would apply.Employees taking leave whichconstitutes 20 percent or less of theworking days during the leave periodwould not be subject to transfer to analternative position. ‘‘Periods of aparticular duration’’ means a block, orblocks, of time beginning no earlier thanthe first day for which leave is neededand ending no later than the last day onwhich leave is needed, and may includeone uninterrupted period of leave.

(b) If an instructional employee doesnot give required notice of foreseeableFMLA leave (see § 825.302) to be takenintermittently or on a reduced leaveschedule, the employer may require theemployee to take leave of a particularduration, or to transfer temporarily to analternative position. Alternatively, theemployer may require the employee todelay the taking of leave until the noticeprovision is met. See § 825.207(h).

§ 825.602 What limitations apply to thetaking of leave near the end of an academicterm?

(a) There are also different rules forinstructional employees who beginleave more than five weeks before theend of a term, less than five weeksbefore the end of a term, and less thanthree weeks before the end of a term.Regular rules apply except incircumstances when:

(1) An instructional employee beginsleave more than five weeks before theend of a term. The employer mayrequire the employee to continue takingleave until the end of the term if—

(i) The leave will last at least threeweeks, and

(ii) The employee would return towork during the three-week periodbefore the end of the term.

(2) The employee begins leave for apurpose other than the employee’s ownserious health condition during the five-week period before the end of a term.The employer may require the employee

to continue taking leave until the end ofthe term if—

(i) The leave will last more than twoweeks, and

(ii) The employee would return towork during the two-week period beforethe end of the term.

(3) The employee begins leave for apurpose other than the employee’s ownserious health condition during thethree-week period before the end of aterm, and the leave will last more thanfive working days. The employer mayrequire the employee to continue takingleave until the end of the term.

(b) For purposes of these provisions,‘‘academic term’’ means the schoolsemester, which typically ends near theend of the calendar year and the end ofspring each school year. In no case maya school have more than two academicterms or semesters each year forpurposes of FMLA. An example of leavefalling within these provisions would bewhere an employee plans two weeks ofleave to care for a family member whichwill begin three weeks before the end ofthe term. In that situation, the employercould require the employee to stay outon leave until the end of the term.

§ 825.603 Is all leave taken during‘‘periods of a particular duration’’ countedagainst the FMLA leave entitlement?

(a) If an employee chooses to takeleave for ‘‘periods of a particularduration’’ in the case of intermittent orreduced schedule leave, the entireperiod of leave taken will count asFMLA leave.

(b) In the case of an employee who isrequired to take leave until the end ofan academic term, only the period ofleave until the employee is ready andable to return to work shall be chargedagainst the employee’s FMLA leaveentitlement. The employer has theoption not to require the employee tostay on leave until the end of the schoolterm. Therefore, any additional leaverequired by the employer to the end ofthe school term is not counted as FMLAleave; however, the employer shall berequired to maintain the employee’sgroup health insurance and restore theemployee to the same or equivalent jobincluding other benefits at theconclusion of the leave.

§ 825.604 What special rules apply torestoration to ‘‘an equivalent position?’’

The determination of how anemployee is to be restored to ‘‘anequivalent position’’ upon return fromFMLA leave will be made on the basisof ‘‘established school board policiesand practices, private school policiesand practices, and collective bargainingagreements.’’ The ‘‘established policies’’

and collective bargaining agreementsused as a basis for restoration must bein writing, must be made known to theemployee prior to the taking of FMLAleave, and must clearly explain theemployee’s restoration rights uponreturn from leave. Any establishedpolicy which is used as the basis forrestoration of an employee to ‘‘anequivalent position’’ must providesubstantially the same protections asprovided in the Act for reinstatedemployees. See § 825.215. In otherwords, the policy or collectivebargaining agreement must provide forrestoration to an ‘‘equivalent position’’with equivalent employment benefits,pay, and other terms and conditions ofemployment. For example, an employeemay not be restored to a positionrequiring additional licensure orcertification.

Subpart G—How Do Other Laws,Employer Practices, and CollectiveBargaining Agreements AffectEmployee Rights Under FMLA?

§ 825.700 What if an employer providesmore generous benefits than required byFMLA?

(a) An employer must observe anyemployment benefit program or planthat provides greater family or medicalleave rights to employees than the rightsestablished by the FMLA. Conversely,the rights established by the Act maynot be diminished by any employmentbenefit program or plan. For example, aprovision of a CBA which provides forreinstatement to a position that is notequivalent because of seniority (e.g.,provides lesser pay) is superseded byFMLA. If an employer provides greaterunpaid family leave rights than areafforded by FMLA, the employer is notrequired to extend additional rightsafforded by FMLA, such as maintenanceof health benefits (other than throughCOBRA), to the additional leave periodnot covered by FMLA. If an employeetakes paid or unpaid leave and theemployer does not designate the leaveas FMLA leave, the leave taken does notcount against an employee’s FMLAentitlement.

(b) Nothing in this Act prevents anemployer from amending existing leaveand employee benefit programs,provided they comply with FMLA.However, nothing in the Act is intendedto discourage employers from adoptingor retaining more generous leavepolicies.

(c)(1) The Act does not apply toemployees under a collective bargainingagreement (CBA) in effect on August 5,1993, until February 5, 1994, or the datethe agreement terminates (i.e., its


expiration date), whichever is earlier.Thus, if the CBA contains family ormedical leave benefits, whether greateror less than those under the Act, suchbenefits are not disturbed until the Act’sprovisions begin to apply to employeesunder that agreement. A CBA whichprovides no family or medical leaverights also continues in effect. For CBAssubject to the Railway Labor Act andother CBAs which do not have anexpiration date for the general terms,but which may be reopened at specifiedtimes, e.g., to amend wages and benefits,the first time the agreement is amendedafter August 5, 1993, shall be consideredthe termination date of the CBA, and theeffective date for FMLA.

(2) As discussed in § 825.102(b), theperiod prior to the Act’s delayedeffective date must be considered indetermining employer coverage andemployee eligibility for FMLA leave.

§ 825.701 Do State laws providing familyand medical leave still apply?

(a) Nothing in FMLA supersedes anyprovision of State or local law thatprovides greater family or medical leaverights than those provided by FMLA.The Department of Labor will not,however, enforce State family ormedical leave laws, and States may notenforce the FMLA. Employees are notrequired to designate whether the leavethey are taking is FMLA leave or leaveunder State law, and an employer mustcomply with the appropriate(applicable) provisions of both. Anemployer covered by one law and notthe other has to comply only with thelaw under which it is covered.Similarly, an employee eligible underonly one law must receive benefits inaccordance with that law. If leavequalifies for FMLA leave and leaveunder State law, the leave used countsagainst the employee’s entitlementunder both laws. Examples of theinteraction between FMLA and Statelaws include:

(1) If State law provides 16 weeks ofleave entitlement over two years, anemployee would be entitled to take 16weeks one year under State law and 12weeks the next year under FMLA.Health benefits maintenance underFMLA would be applicable only to thefirst 12 weeks of leave entitlement eachyear. If the employee took 12 weeks thefirst year, the employee would beentitled to a maximum of 12 weeks thesecond year under FMLA (not 16weeks). An employee would not beentitled to 28 weeks in one year.

(2) If State law provides half-pay foremployees temporarily disabled becauseof pregnancy for six weeks, theemployee would be entitled to an

additional six weeks of unpaid FMLAleave (or accrued paid leave).

(3) A shorter notice period underState law must be allowed by theemployer unless an employer hasalready provided, or the employee isrequesting, more leave than requiredunder State law.

(4) If State law provides for only onemedical certification, no additionalcertifications may be required by theemployer unless the employer hasalready provided, or the employee isrequesting, more leave than requiredunder State law.

(5) If State law provides six weeks ofleave, which may include leave to carefor a seriously-ill grandparent or a‘‘spouse equivalent,’’ and leave wasused for that purpose, the employee isstill entitled to 12 weeks of FMLA leave,as the leave used was provided for apurpose not covered by FMLA. If FMLAleave is used first for a purpose alsoprovided under State law, and Stateleave has thereby been exhausted, theemployer would not be required toprovide additional leave to care for thegrandparent or ‘‘spouse equivalent.’’

(6) If State law prohibits mandatoryleave beyond the actual period ofpregnancy disability, an instructionalemployee of an educational agencysubject to special FMLA rules may notbe required to remain on leave until theend of the academic term, as permittedby FMLA under certain circumstances.(See Subpart F of this part.)

§ 825.702 How does FMLA affect Federaland State anti-discrimination laws?

(a) Nothing in FMLA modifies oraffects any Federal or State lawprohibiting discrimination on the basisof race, religion, color, national origin,sex, age, or disability (e.g., Title VII ofthe Civil Rights Act of 1964, as amendedby the Pregnancy Discrimination Act).FMLA’s legislative history explains thatFMLA is ‘‘not intended to modify oraffect the Rehabilitation Act of 1973, asamended, the regulations concerningemployment which have beenpromulgated pursuant to that statute, orthe Americans with Disabilities Act of1990, or the regulations issued underthat act. Thus, the leave provisions ofthe [FMLA] are wholly distinct from thereasonable accommodation obligationsof employers covered under the [ADA],employers who receive Federal financialassistance, employers who contract withthe Federal government, or the Federalgovernment itself. The purpose of theFMLA is to make leave available toeligible employees and employerswithin its coverage, and not to limitalready existing rights and protection.’’S. Rep. No. 3, 103d Cong., 1st Sess. 38

(1993). An employer must thereforeprovide leave under whichever statutoryprovision provides the greater rights toemployees. When an employer violatesboth FMLA and a discrimination law,an employee may be able to recoverunder either or both statutes (doublerelief may not be awarded for the sameloss; when remedies coincide a claimantmay be allowed to utilize whicheveravenue of relief is desired (Laffey v.Northwest Airlines, Inc., 567 F.2d 429,445 (D.C. Cir. 1976), cert. denied, 434U.S. 1086 (1978))).

(b) If an employee is a qualifiedindividual with a disability within themeaning of the Americans withDisabilities Act (ADA), the employermust make reasonable accommodations,etc., barring undue hardship, inaccordance with the ADA. At the sametime, the employer must afford anemployee his or her FMLA rights.ADA’s ‘‘disability’’ and FMLA’s‘‘serious health condition’’ are differentconcepts, and must be analyzedseparately. FMLA entitles eligibleemployees to 12 weeks of leave in any12-month period, whereas the ADAallows an indeterminate amount ofleave, barring undue hardship, as areasonable accommodation. FMLArequires employers to maintainemployees’ group health plan coverageduring FMLA leave on the sameconditions as coverage would have beenprovided if the employee had beencontinuously employed during the leaveperiod, whereas ADA does not requiremaintenance of health insurance unlessother employees receive healthinsurance during leave under the samecircumstances.

(c)(1) A reasonable accommodationunder the ADA might be accomplishedby providing an individual with adisability with a part-time job with nohealth benefits, assuming the employerdid not ordinarily provide healthinsurance for part-time employees.However, FMLA would permit anemployee to work a reduced leaveschedule until the equivalent of 12workweeks of leave were used, withgroup health benefits maintained duringthis period. FMLA permits an employerto temporarily transfer an employeewho is taking leave intermittently or ona reduced leave schedule to analternative position, whereas the ADAallows an accommodation ofreassignment to an equivalent, vacantposition only if the employee cannotperform the essential functions of theemployee’s present position and anaccommodation is not possible in theemployee’s present position, or anaccommodation in the employee’spresent position would cause an undue


hardship. The examples in the followingparagraphs of this section demonstratehow the two laws would interact withrespect to a qualified individual with adisability.

(2) A qualified individual with adisability who is also an ‘‘eligibleemployee’’ entitled to FMLA leaverequests 10 weeks of medical leave as areasonable accommodation, which theemployer grants because it is not anundue hardship. The employer advisesthe employee that the 10 weeks of leaveis also being designated as FMLA leaveand will count towards the employee’sFMLA leave entitlement. Thisdesignation does not prevent the partiesfrom also treating the leave as areasonable accommodation andreinstating the employee into the samejob, as required by the ADA, rather thanan equivalent position under FMLA, ifthat is the greater right available to theemployee. At the same time, theemployee would be entitled underFMLA to have the employer maintaingroup health plan coverage during theleave, as that requirement provides thegreater right to the employee.

(3) If the same employee needed towork part-time (a reduced leaveschedule) after returning to his or hersame job, the employee would still beentitled under FMLA to have grouphealth plan coverage maintained for theremainder of the two-week equivalent ofFMLA leave entitlement,notwithstanding an employer policythat part-time employees do not receivehealth insurance. This employee wouldbe entitled under the ADA to reasonableaccommodations to enable the employeeto perform the essential functions of thepart-time position. In addition, becausethe employee is working a part-timeschedule as a reasonableaccommodation, the employee would beshielded from FMLA’s provision fortemporary assignment to a differentalternative position. Once the employeehas exhausted his or her remainingFMLA leave entitlement while workingthe reduced (part-time) schedule, if theemployee is a qualified individual witha disability, and if the employee isunable to return to the same full-timeposition at that time, the employeemight continue to work part-time as areasonable accommodation, barringundue hardship; the employee wouldthen be entitled to only thoseemployment benefits ordinarilyprovided by the employer to part-timeemployees.

(4) At the end of the FMLA leaveentitlement, an employer is requiredunder FMLA to reinstate the employeein the same or an equivalent position,with equivalent pay and benefits, to that

which the employee held when leavecommenced. The employer’s FMLAobligations would be satisfied if theemployer offered the employee anequivalent full-time position. If theemployee were unable to perform theessential functions of that equivalentposition even with reasonableaccommodation, because of a disability,the ADA may require the employer tomake a reasonable accommodation atthat time by allowing the employee towork part-time or by reassigning theemployee to a vacant position, barringundue hardship.

(d)(1) If FMLA entitles an employee toleave, an employer may not, in lieu ofFMLA leave entitlement, require anemployee to take a job with a reasonableaccommodation. However, ADA mayrequire that an employer offer anemployee the opportunity to take sucha position. An employer may not changethe essential functions of the job inorder 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 qualifiesas a serious health condition underFMLA. The workers’ compensationabsence and FMLA leave may runconcurrently (subject to proper noticeand designation by the employer). Atsome point the health care providerproviding medical care pursuant to theworkers’ compensation injury maycertify the employee is able to return towork in a ‘‘light duty’’ position. If theemployer offers such a position, theemployee is permitted but not requiredto accept the position (see § 825.220(d)).As a result, the employee may no longerqualify for payments from the workers’compensation benefit plan, but theemployee is entitled to continue onunpaid FMLA leave either until theemployee is able to return to the sameor equivalent job the employee left oruntil the 12-week FMLA leaveentitlement is exhausted. See§ 825.207(d)(1). If the employeereturning from the workers’compensation injury is a qualifiedindividual with a disability, he or shewill have rights under the ADA.

(e) If an employer requirescertifications of an employee’s fitnessfor duty to return to work, as permittedby FMLA under a uniform policy, itmust comply with the ADA requirementthat a fitness for duty physical be job-related and consistent with businessnecessity.

(f) Under Title VII of the Civil RightsAct of 1964, as amended by thePregnancy Discrimination Act, anemployer should provide the samebenefits for women who are pregnant as

the employer provides to otheremployees with short-term disabilities.Because Title VII does not requireemployees to be employed for a certainperiod of time to be protected, anemployee employed for less than 12months by the employer (and, therefore,not an ‘‘eligible’’ employee underFMLA) may not be denied maternityleave if the employer normally providesshort-term disability benefits toemployees with the same tenure whoare experiencing other short-termdisabilities.

(g) For further information on Federalantidiscrimination laws, including TitleVII and the ADA, individuals areencouraged to contact the nearest officeof the U.S. Equal EmploymentOpportunity Commission.

Subpart H—Definitions

§ 825.800 Definitions.For purposes of this part:Act or FMLA means the Family and

Medical Leave Act of 1993, Public Law103–3 (February 5, 1993), 107 Stat. 6 (29U.S.C. 2601 et seq.)

ADA means the Americans WithDisabilities Act (42 USC 12101 et seq.)

Administrator means theAdministrator of the Wage and HourDivision, Employment StandardsAdministration, U.S. Department ofLabor, and includes any official of theWage and Hour Division authorized toperform any of the functions of theAdministrator under this part.

COBRA means the continuationcoverage requirements of Title X of theConsolidated Omnibus BudgetReconciliation Act of 1986, AsAmended (Pub.L. 99–272, title X,section 10002; 100 Stat 227; 29 U.S.C.1161–1168).

Commerce and industry or activityaffecting commerce mean any activity,business, or industry in commerce or inwhich a labor dispute would hinder orobstruct commerce or the free flow ofcommerce, and include ‘‘commerce’’and any ‘‘industry affecting commerce’’as defined in sections 501(1) and 501(3)of the Labor Management Relations Actof 1947, 29 U.S.C. 142(1) and (3).

Continuing treatment means: Aserious health condition involvingcontinuing treatment by a health careprovider includes any one or more ofthe following:

(1) A period of incapacity (i.e.,inability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefor, or recoverytherefrom) of more than threeconsecutive calendar days, and anysubsequent treatment or period of


incapacity relating to the samecondition, that also involves:

(i) Treatment two or more times by ahealth care provider, by a nurse orphysician’s assistant under directsupervision of a health care provider, orby 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 careprovider on at least one occasion whichresults in a regimen of continuingtreatment under the supervision of thehealth care provider.

(2) Any period of incapacity due topregnancy, or for prenatal care.

(3) Any period of incapacity ortreatment for such incapacity due to achronic serious health condition. Achronic serious health condition is onewhich:

(i) Requires periodic visits fortreatment by a health care provider, orby a nurse or physician’s assistant underdirect supervision of a health careprovider;

(ii) Continues over an extendedperiod of time (including recurringepisodes of a single underlyingcondition); and

(iii) May cause episodic rather than acontinuing period of incapacity (e.g.,asthma, diabetes, epilepsy, etc.).

(4) A period of incapacity which ispermanent or long-term due to acondition for which treatment may notbe effective. The employee or familymember must be under the continuingsupervision of, but need not bereceiving active treatment by, a healthcare provider. Examples includeAlzheimer’s, a severe stroke, or theterminal stages of a disease.

(5) Any period of absence to receivemultiple treatments (including anyperiod of recovery therefrom) by ahealth care provider or by a provider ofhealth care services under orders of, oron referral by, a health care provider,either for restorative surgery after anaccident or other injury, or for acondition that would likely result in aperiod of incapacity of more than threeconsecutive calendar days in theabsence of medical intervention ortreatment, such as cancer(chemotherapy, radiation, etc.), severearthritis (physical therapy), kidneydisease (dialysis).

Eligible employee means:(1) An employee who has been

employed for a total of at least 12months by the employer on the date onwhich any FMLA leave is to commence;and

(2) Who, on the date on which anyFMLA leave is to commence, has beenemployed for at least 1,250 hours of

service with such employer during theprevious 12-month period; and

(3) Who is employed in any State ofthe United States, the District ofColumbia or any Territories orpossession of the United States.

(4) Excludes any Federal officer oremployee covered under subchapter Vof chapter 63 of title 5, United StatesCode; and

(5) Excludes any employee of the U.S.Senate or the U.S. House ofRepresentatives covered under title V ofthe FMLA; and

(6) Excludes any employee who isemployed at a worksite at which theemployer employs fewer than 50employees if the total number ofemployees employed by that employerwithin 75 miles of that worksite is alsofewer than 50.

(7) Excludes any employee employedin any country other than the UnitedStates or any Territory or possession ofthe United States.

Employ means to suffer or permit towork.

Employee has the meaning given thesame term as defined in section 3(e) ofthe Fair Labor Standards Act, 29 U.S.C.203(e), as follows:

(1) The term ‘‘employee’’ means anyindividual employed by an employer;

(2) In the case of an individualemployed by a public agency,‘‘employee’’ means—

(i) Any individual employed by theGovernment of the United States—

(A) As a civilian in the militarydepartments (as defined in section 102of Title 5, United States Code),

(B) In any executive agency (asdefined in section 105 of Title 5, UnitedStates Code), excluding any Federalofficer or employee covered undersubchapter V of chapter 63 of Title 5,United States Code,

(C) In any unit of the legislative orjudicial branch of the Governmentwhich has positions in the competitiveservice, excluding any employee of theU.S. Senate or U.S. House ofRepresentatives who is covered underTitle V of FMLA,

(D) In a nonappropriated fundinstrumentality under the jurisdiction ofthe Armed Forces, or

(ii) Any individual employed by theUnited States Postal Service or thePostal Rate Commission; and

(iii) Any individual employed by aState, political subdivision of a State, oran interstate governmental agency, otherthan such an individual—

(A) Who is not subject to the civilservice laws of the State, politicalsubdivision, or agency which employsthe employee; and

(B) Who—

(1) Holds a public elective office ofthat State, political subdivision, oragency,

(2) Is selected by the holder of suchan office to be a member of his personalstaff,

(3) Is appointed by such anofficeholder to serve on a policymakinglevel,

(4) Is an immediate adviser to such anofficeholder with respect to theconstitutional or legal powers of theoffice of such officeholder, or

(5) Is an employee in the legislativebranch or legislative body of that State,political subdivision, or agency and isnot employed by the legislative libraryof such State, political subdivision, oragency.

Employee employed in aninstructional capacity. See Teacher.

Employer means any person engagedin commerce or in an industry oractivity affecting commerce whoemploys 50 or more employees for eachworking day during each of 20 or morecalendar workweeks in the current orpreceding calendar year, and includes—

(1) Any person who acts, directly orindirectly, in the interest of an employerto any of the employees of suchemployer;

(2) Any successor in interest of anemployer; and

(3) Any public agency.Employment benefits means all

benefits provided or made available toemployees by an employer, includinggroup life insurance, health insurance,disability insurance, sick leave, annualleave, educational benefits, andpensions, regardless of whether suchbenefits are provided by a practice orwritten policy of an employer orthrough an ‘‘employee benefit plan’’ asdefined in section 3(3) of the EmployeeRetirement Income Security Act of 1974,29 U.S.C. 1002(3). The term does notinclude non-employment relatedobligations paid by employees throughvoluntary deductions such assupplemental insurance coverage. (See§ 825.209(a)).

FLSA means the Fair Labor StandardsAct (29 U.S.C. 201 et seq.).

Group health plan means any plan of,or contributed to by, an employer(including a self-insured plan) toprovide health care (directly orotherwise) to the employer’s employees,former employees, or the families ofsuch employees or former employees.For purposes of FMLA the term ‘‘grouphealth plan’’ shall not include aninsurance program providing healthcoverage under which employeespurchase individual policies frominsurers provided that:


(1) No contributions are made by theemployer;

(2) Participation in the program iscompletely voluntary for employees;

(3) The sole functions of the employerwith respect to the program are, withoutendorsing the program, to permit theinsurer to publicize the program toemployees, to collect premiums throughpayroll deductions and to remit them tothe insurer;

(4) The employer receives noconsideration in the form of cash orotherwise in connection with theprogram, other than reasonablecompensation, excluding any profit, foradministrative services actuallyrendered in connection with payrolldeduction; and,

(5) the premium charged with respectto such coverage does not increase inthe event the employment relationshipterminates.

Health care provider means:(1) A doctor of medicine or

osteopathy who is authorized to practicemedicine or surgery by the State inwhich the doctor practices; or

(2) Podiatrists, dentists, clinicalpsychologists, optometrists, andchiropractors (limited to treatmentconsisting of manual manipulation ofthe spine to correct a subluxation asdemonstrated by X-ray to exist)authorized to practice in the State andperforming within the scope of theirpractice as defined under State law; and

(3) Nurse practitioners, nurse-midwives and clinical social workerswho are authorized to practice underState law and who are performingwithin the scope of their practice asdefined under State law; and

(4) Christian Science practitionerslisted with the First Church of Christ,Scientist in Boston, Massachusetts.

(5) Any health care provider fromwhom an employer or a group healthplan’s benefits manager will acceptcertification of the existence of a serioushealth condition to substantiate a claimfor benefits.

(6) A health care provider as definedabove who practices in a country otherthan the United States, who is licensedto practice in accordance with the lawsand regulations of that country.

‘‘Incapable of self-care’’ means thatthe individual requires active assistanceor supervision to provide daily self-carein several of the ‘‘activities of dailyliving’’ (ADLs) or ‘‘instrumentalactivities of daily living’’ (IADLs).Activities of daily living includeadaptive activities such as caringappropriately for one’s grooming andhygiene, bathing, dressing and eating.Instrumental activities of daily livinginclude cooking, cleaning, shopping,

taking public transportation, payingbills, maintaining a residence, usingtelephones and directories, using a postoffice, etc.

Instructional employee: See Teacher.Intermittent leave means leave taken

in separate periods of time due to asingle illness or injury, rather than forone continuous period of time, and mayinclude leave of periods from an hour ormore to several weeks. Examples ofintermittent leave would include leavetaken on an occasional basis for medicalappointments, or leave taken severaldays at a time spread over a period ofsix months, such as for chemotherapy.

Mental disability: See Physical ormental disability.

Parent means the biological parent ofan employee or an individual whostands or stood in loco parentis to anemployee when the employee was achild.

Person means an individual,partnership, association, corporation,business trust, legal representative, orany organized group of persons, andincludes a public agency for purposes ofthis part.

Physical or mental disability means aphysical or mental impairment thatsubstantially limits one or more of themajor life activities of an individual.Regulations at 29 CFR Part 1630.2(h), (i),and (j), issued by the Equal EmploymentOpportunity Commission under theAmericans with Disabilities Act (ADA),42 U.S.C. 12101 et seq., define theseterms.

Public agency means the governmentof the United States; the government ofa State or political subdivision thereof;any agency of the United States(including the United States PostalService and Postal Rate Commission), aState, or a political subdivision of aState, or any interstate governmentalagency. Under section 101(5)(B) of theAct, a public agency is considered to bea ‘‘person’’ engaged in commerce or inan industry or activity affectingcommerce within the meaning of theAct.

Reduced leave schedule means aleave schedule that reduces the usualnumber of hours per workweek, orhours per workday, of an employee.

Secretary means the Secretary ofLabor or authorized representative.

Serious health condition entitling anemployee to FMLA leave means:

(1) an illness, injury, impairment, orphysical or mental condition thatinvolves:

(i) Inpatient care (i.e., an overnightstay) in a hospital, hospice, orresidential medical care facility,including any period of incapacity (forpurposes of this section, defined to

mean inability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefor, or recoverytherefrom), or any subsequent treatmentin connection with such inpatient care;or

(ii) Continuing treatment by a healthcare provider. A serious healthcondition involving continuingtreatment by a health care providerincludes:

(A) A period of incapacity (i.e.,inability to work, attend school orperform other regular daily activitiesdue to the serious health condition,treatment therefore, or recoverytherefrom) of more than threeconsecutive calendar days, includingany subsequent treatment or period ofincapacity relating to the samecondition, that also involves:

(1) Treatment two or more times by ahealth care provider, by a nurse orphysician’s assistant under directsupervision of a health care provider, orby 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 careprovider on at least one occasion whichresults in a regimen of continuingtreatment under the supervision of thehealth care provider.

(B) Any period of incapacity due topregnancy, or for prenatal care.

(C) Any period of incapacity ortreatment for such incapacity due to achronic serious health condition. Achronic serious health condition is onewhich:

(1) Requires periodic visits fortreatment by a health care provider, orby a nurse or physician’s assistant underdirect supervision of a health careprovider;

(2) Continues over an extended periodof time (including recurring episodes ofa single underlying condition); and

(3) May cause episodic rather than acontinuing period of incapacity (e.g.,asthma, diabetes, epilepsy, etc.).

(D) A period of incapacity which ispermanent or long-term due to acondition for which treatment may notbe effective. The employee or familymember must be under the continuingsupervision of, but need not bereceiving active treatment by, a healthcare provider. Examples includeAlzheimer’s, a severe stroke, or theterminal stages of a disease.

(E) Any period of absence to receivemultiple treatments (including anyperiod of recovery therefrom) by ahealth care provider or by a provider ofhealth care services under orders of, oron referral by, a health care provider,


either for restorative surgery after anaccident or other injury, or for acondition that would likely result in aperiod of incapacity of more than threeconsecutive calendar days in theabsence of medical intervention ortreatment, such as cancer(chemotherapy, radiation, etc.), severearthritis (physical therapy), kidneydisease (dialysis).

(2) Treatment for purposes ofparagraph (1) of this definition includes(but is not limited to) examinations todetermine if a serious health conditionexists and evaluations of the condition.Treatment does not include routinephysical examinations, eyeexaminations, or dental examinations.Under paragraph (1)(ii)(A)(2) of thisdefinition, a regimen of continuingtreatment includes, for example, acourse of prescription medication (e.g.,an antibiotic) or therapy requiringspecial equipment to resolve or alleviatethe health condition (e.g., oxygen). Aregimen of continuing treatment thatincludes the taking of over-the-countermedications such as aspirin,antihistamines, or salves; or bed-rest,drinking fluids, exercise, and othersimilar activities that can be initiatedwithout a visit to a health care provider,is not, by itself, sufficient to constitutea regimen of continuing treatment forpurposes of FMLA leave.

(3) Conditions for which cosmetictreatments are administered (such asmost treatments for acne or plasticsurgery) are not ‘‘serious healthconditions’’ unless inpatient hospitalcare is required or unless complicationsdevelop. Ordinarily, unlesscomplications arise, the common cold,the flu, ear aches, upset stomach, ulcers,headaches other than migraine, routinedental or orthodontia problems,periodontal disease, etc., are examplesof conditions that do not meet thedefinition of a serious health conditionand do not qualify for FMLA leave.Restorative dental or plastic surgeryafter an injury or removal of cancerousgrowths are serious health conditionsprovided all the other conditions of thisregulation are met. Mental illnessresulting from stress or allergies may beserious health conditions, but only if allthe conditions of this section are met.

(4) Substance abuse may be a serioushealth condition if the conditions of thissection are met. However, FMLA leavemay only be taken for treatment forsubstance abuse by a health careprovider or by a provider of health careservices on referral by a health careprovider. On the other hand, absencebecause of the employee’s use of thesubstance, rather than for treatment,does not qualify for FMLA leave.

(5) Absences attributable to incapacityunder paragraphs (1)(ii) (B) or (C) of thisdefinition qualify for FMLA leave eventhough the employee or the immediatefamily member does not receivetreatment from a health care providerduring the absence, and even if theabsence does not last more than threedays. For example, an employee withasthma may be unable to report for workdue to the onset of an asthma attack orbecause the employee’s health careprovider has advised the employee tostay home when the pollen countexceeds a certain level. An employeewho is pregnant may be unable to reportto work because of severe morningsickness.

Son or daughter means a biological,adopted, or foster child, a stepchild, alegal ward, or a child of a personstanding in loco parentis, who is under18 years of age or 18 years of age orolder and incapable of self-care becauseof a mental or physical disability.

Spouse means a husband or wife asdefined or recognized under State lawfor purposes of marriage in the Statewhere the employee resides, includingcommon law marriage in States where itis recognized.

State means any State of the UnitedStates or the District of Columbia or anyTerritory or possession of the UnitedStates.

Teacher (or employee employed in aninstructional capacity, or instructionalemployee) means an employeeemployed principally in aninstructional capacity by an educationalagency or school whose principalfunction is to teach and instructstudents in a class, a small group, or anindividual setting, and includes athleticcoaches, driving instructors, and specialeducation assistants such as signers forthe hearing impaired. The term does notinclude teacher assistants or aides whodo not have as their principal functionactual teaching or instructing, norauxiliary personnel such as counselors,psychologists, curriculum specialists,cafeteria workers, maintenance workers,bus drivers, or other primarilynoninstructional employees.

Appendix A to Part 825—Index

The citations listed in this Appendix are tosections in 29 CFR Part 825.1,250 hours of service 825.110, 825.80012 workweeks of leave 825.200, 825.202,

825.20512-month period 825.110, 825.200, 825.201,

825.202, 825.500, 825.80020 or more calendar workweeks 825.104(a),

825.105, 825.108(d), 825.80050 or more employees 825.102, 825.105,

825.106(f), 825.108(d), 825.109(e),825.111(d), 825.600(b)

75 miles of worksite/radius 825.108(d),825.109(e), 825.110, 825.111, 825.202(b),825.213(a), 825.217, 825.600(b), 825.800

Academic term 825.600(c), 825.602, 825.603,825.701(a)

Adoption 825.100(a), 825.101(a), 825.112,825.200(a), 825.201, 825.202(a), 825.203,825.207(b), 825.302, 825.304(c)

Alternative position 825.117, 825.204,825.601

Americans with Disabilities Act 825.113(c),825.115, 825.204(b), 825.215(b),825.310(b), 825.702(b), 825.800 as soonas practicable 825.219(a), 825.302,825.303

Birth/birth of a child 825.100(a), 825.101(a),825.103(c), 825.112, 825.200(a), 825.201,825.202, 825.203, 825.207, 825.209(d),825.302(a), 825.302(c)

Certification requirements 825.207(g),825.305, 825.306, 825.310, 825.311

Christian science practitioners 825.118(b),825.800

COBRA 825.209(f), 825.210(c), 825.213(d),825.309(b), 825.700(a), 825.800

Collective bargaining agreements 825.102(a),825.211(a), 825.604, 825.700

Commerce 825.104, 825.800Complaint 825.220, 825.400, 825.401,

825.500(a)Continuing treatment by a health care

provider 825.114, 825.800Definitions 825.800Designate paid leave as FMLA 825.208Disability insurance 825.213(f), 825.215(d)Discharging 825.106(f), 825.220Discriminating 825.106(f), 825.220Educational institutions 825.111(c), 825.600Effective date 825.102, 825.103, 825.110(e),

825.700(c)Eligible employee 825.100, 825.110, 825.111,

825.112, 825.200, 825.202, 825.206(b),825.207, 825.216(c), 825.217, 825.312,825.600(b), 825.601, 825.800

Employer 825.104, 825.105, 825.106,825.107, 825.108, 825.109, 825.111,825.800

Enforcement 825.400–825.404Equivalent benefits 825.213(f), 825.214,

825.215(d)Equivalent pay 825.100(c), 825.117,

825.204(c), 825.215, 825.601(a),825.702(c)

Eequivalent position 825.100(c), 825.214,825.215, 825.218(b), 825.604, 825.702(c)

Farm Credit Administration 825.109(b)Fitness for duty 825.216(c), 825.310,

825.702(e)Foster care 825.100(a), 825.112, 825.200(a),

825.201, 825.202(a), 825.203(a),825.207(b), 825.302(a)

Government Printing Office 825.109(d)Group health plan 825.209, 825.213, 825.800Health benefits 825.100(b), 825.106(e),

825.209, 825.210, 825.211, 825.212,825.215(d), 825.219, 825.220(c),825.301(c), 825.309, 825.312, 825.603,825.700, 825.702(c)

Health care provider 825.100(d), 825.114,825.115, 825.118, 825.302, 825.305,825.306, 825.307, 825.310(a), 825.800

Health plan premiums 825.210, 825.213(a)Husband and wife 825.202In loco parentis 825.113, 825.800Incapable of self-care 825.113(c), 825.800


Industry affecting commerce 825.104,825.800

Instructional employee 825.601, 825.602,825.604, 825.701(f), 825.800

Integrated employer 825.104(c)Intermittent leave 825.116(c), 825.117,

825.203, 825.302(f), 825.600(c), 825.601,825.800

Joint employment 825.104(c), 825.105,825.106

Key employee 825.209(g), 825.213(a),825.217, 825.218, 825.219, 825.301(c),825.312(f)

Library of Congress 825.109(b), 825.800Life insurance 825.213(f), 825.215(d),

825.800Maintain health benefits 825.209, 825.212,

825.215(d), 825.301(c), 825.309, 825.603Medical certification 825.116, 825.213(a),

825.301(c), 825.302(c), 825.305, 825.306,825.307, 825.308, 825.310, 825.311,825.312(b), 825.701(d)

Medical necessity 825.114(d), 825.117,825.306(d)

Multi-employer health plans 825.211Needed to care for 825.100(a), 825.114(d),

825.116, 825.207(c)Not foreseeable 825.303, 825.311(b)Notice 825.100(d), 825.103(b), 825.110(d),

825.200(d), 825.207(g), 825.208(a),825.208(c), 825.209(d), 825.210(e),825.219(a), 825.219(b), 825.220(c),825.300, 825.301(c), 825.302, 825.303,825.304, 825.309, 825.310(c), 825.310(d),825.312(a), 825.402, 825.403(b),825.601(b), 825.701(a)

Notice requirements 825.110(d), 825.301(c),825.302(g), 825.304(a), 825.304(e),825.601(b)

Paid leave 825.100(a), 825.207, 825.208,825.210, 825.213(c), 825.217(c),825.219(c), 825.301(c), 825.304(d),825.700(a), 825.701(a)

Parent 825.100(a), 825.101(a), 825.112,825.113, 825.116(a), 825.200(a),825.202(a), 825.207(b), 825.213(a),825.305(a), 825.306(d), 825.800

Physical or mental disability 825.113(c),825.114, 825.215(b), 825.500(e), 825.800

Placement of a child 825.100(a), 825.201,825.203(a), 825.207(b)

Postal Rate Commission 825.109(b), 825.800Posting requirement 825.300, 825.402Premium payments 825.100(b), 825.210,

825.212, 825.213(f), 825.301(c),825.308(d), 825.500(c)

Private employer 825.105, 825.108(b)Public agency 825.104(a), 825.108, 825.109,

825.800Recertification 825.301(c), 825.308Records 825.110(c), 825.206(a), 825.500Reduced leave schedule 825.111(d),

825.114(d), 825.116(c), 825.117, 825.203,825.205, 825.302(f), 825.306(d),825.500(c), 825.601, 825.702(c), 825.800

Restoration 825.100(d), 825.106(e),825.209(g), 825.213(a), 825.216, 825.218,825.219, 825.301(c), 825.311(c), 825.312

Returning to work 825.214Right to reinstatement 825.100(c), 825.209(g),

825.214(b), 825.216(a), 825.219,825.301(c), 825.311(c), 825.312, 825.400,825.700

Secondary employer 825.106(f)Serious health condition 825.100, 825.101(a),

825.112(a), 825.114, 825.116(a),825.200(a), 825.202(a), 825.203,825.204(a), 825.206(b), 825.207, 825.213,825.215(b), 825.301(c), 825.302, 825.303,825.305, 825.306, 825.308(d), 825.310(a),825.311(c), 825.312(b), 825.601(a),825.602(a), 825.800

Son or daughter 825.112(a), 825.113(c),825.202(a), 825.800

Spouse 825.100(a), 825.101(a), 825.112(a),825.113(a), 825.200(a), 825.202,825.213(a), 825.303(b), 825.305(a),825.306(d), 825.701(a), 825.800

State laws 825.701Substantial and grievous economic injury

825.213(a), 825.216(c), 825.218, 825.219,825.312(f)

Successor in interest 825.104(a), 825.107,825.800

Teacher(s) 825.110(c), 825.600(c), 825.800U.S. Tax Court 825.109(b)Unpaid leave 825.100, 825.101(a), 825.105(b),

825.206, 825.208, 825.601(b)Waive rights 825.220(d)Workers’ compensation 825.207(d)(1),

825.210(f), 825.216(d), 825.307(a)(1),825.720(d)(1)

Worksite 825.108(d), 825.110(a), 825.111,825.213(a), 825.214(e), 825.217,825.220(b), 825.304(c), 825.800

BILLING CODE 4510–27–P


Appendix B to Part 825—Certification of Physician or Practitioner (Optional Form WH–380)


Appendix C to Part 825—Notice to Employees of Rights under FMLA (WH Publication 1420)


Appendix D to Part 825—Prototype Notice: Employer Response to Employee Request for Family and Medical Leave(Form WH–381)


Appendix E to Part 825—IRS Notice Discussing Relationship Between FMLA and COBRA


[FR Doc. 94–32342 Filed 12–30–94; 3:44 pm]BILLING CODE 4510–27–P