 |
Federal FMLA Regulations for the Family and Medical Leave Act of 1993
What is the Family and Medical Leave Act, and to Whom Does It Apply?
| What is the Family and Medical Leave Act 825.100
|
| (a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows "eligible" employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months (see Sec. 825.200(b)) because of the birth of a child
and to care for the newborn child, because of the placement of a child
with the employee for adoption or foster care, because the employee is
needed to care for a family member (child, spouse, or parent) with a
serious health condition, because the employee's own serious health
condition makes the employee unable to perform the functions of his or
her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a covered
military member on active duty (or has been notified of an impending
call or order to active duty) in support of a contingency operation. In
addition, "eligible" employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 26 workweeks in
a "single 12-month period" to care for a covered service member with a
serious injury or illness (see Sec. 825.127(c)). In certain cases,
FMLA leave may be taken on an intermittent basis rather than all at
once, or the employee may work a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employer may recover
its share only if the employee does not return to work for a reason
other than the serious health condition of the employee or the
employee's covered family member, the serious injury or illness of a
covered service member, or another reason beyond the employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits, and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employer generally has a right to advance notice from the
employee. In addition, the employer may require an employee to submit
certification to substantiate that the leave is due to the serious
health condition of the employee or the employee's covered family
member, due to the serious injury or illness of a covered
service member, or because of a qualifying exigency. Failure to comply
with these requirements may result in a delay in the start of FMLA
leave. Pursuant to a uniformly applied policy, the employer may also
require that an employee present a certification of fitness to return
to work when the absence was caused by the employee's serious health
condition (see Sec. Sec. 825.312 and 825.313). The employer may delay
restoring the employee to employment without such certificate relating
to the health condition which caused the employee's absence.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68074, Nov. 17, 2008]
|
|
| What is the Purpose of of the Act? 825.101
|
| (a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, for the care of a child, spouse, or
parent who has a serious health condition, for the care of a covered
service member with a serious injury or illness, or because of a
qualifying exigency arising out of the fact that the employee's spouse,
son, daughter, or parent is on active duty or call to active duty
status in support of a contingency operation. The Act is intended to
balance the demands of the workplace with the needs of families, to
promote the stability and economic security of families, and to promote
national interests in preserving family integrity. It was intended that
the Act accomplish these purposes in a manner that accommodates the
legitimate interests of employers, and in a manner consistent with the
Equal Protection Clause of the Fourteenth Amendment in minimizing the
potential for employment discrimination on the basis of sex, while
promoting equal employment opportunity for men and women.
(b) The FMLA was predicated on two fundamental concerns--the needs
of the American workforce, and the development of high-performance
organizations. Increasingly, America's children and elderly are
dependent upon family members who must spend long hours at work. When a
family emergency arises, requiring workers to attend to seriously-ill
children or parents, or to newly-born or adopted infants, or even to
their own serious illness, workers need reassurance that they will
not be asked to choose between continuing their employment, and
meeting their personal and family obligations or tending to vital
needs at home.
(c) The FMLA is both intended and expected to benefit employers as
well as their employees. A direct correlation exists between stability
in the family and productivity in the workplace. FMLA will encourage
the development of high-performance organizations. When workers can
count on durable links to their workplace they are able to make their
own full commitments to their jobs. The record of hearings on family
and medical leave indicate the powerful productive advantages of stable
workplace relationships, and the comparatively small costs of
guaranteeing that those relationships will not be dissolved while
workers attend to pressing family health obligations or their own
serious illness.
[73 FR 68074, Nov. 17, 2008]
|
|
| When was the Act effective? 825.102
|
| (a) The Act became effective on August 5, 1993, for most employers.
If a collective bargaining agreement was in effect on that date, the
Act's effective date was delayed until February 5, 1994, or the date the
agreement expired, whichever date occurred sooner. This delayed
effective date was applicable only to employees covered by a collective
bargaining agreement that was in effect on August 5, 1993, and not, for
example, to employees outside the bargaining unit. Application of FMLA
to collective bargaining agreements is discussed further in
Sec. 825.700(c).
(b) The period prior to the Act's effective date must be considered
in determining employer coverage and employee eligibility. For example,
as discussed further below, an employer with no collective bargaining
agreements in effect as of August 5, 1993, must count employees/
workweeks for calendar year 1992 and calendar year 1993. If 50 or more
employees were employed during 20 or more workweeks in either 1992 or
1993(through August 5, 1993), the employer was covered under FMLA on
August 5, 1993. If not, the employer was not covered on August 5, 1993,
but must continue to monitor employment levels each workweek remaining
in 1993 and thereafter to determine if and when it might become covered.
|
|
| How did the Act affect leave in progress on, or taken before, the effective date of the Act? 825.103
|
| (a) An eligible employee's right to take FMLA leave began on the
date that the Act went into effect for the employer (see the discussion
of differing effective dates for collective bargaining agreements in
Secs. 825.102(a) and 825.700(c)). Any leave taken prior to the Act's
effective date may not be counted for purposes of FMLA. If leave
qualifying as FMLA leave was underway prior to the effective date of the
Act and continued after the Act's effective date, only that portion of
leave taken on or after the Act's effective date may be counted against
the employee's leave entitlement under the FMLA.
(b) If an employer-approved leave was underway when the Act took
effect, no further notice would be required of the employee unless the
employee requested an extension of the leave. For leave which commenced
on the effective date or shortly thereafter, such notice must have been
given which was practicable, considering the foreseeability of the need
for leave and the effective date of the statute.
(c) Starting on the Act's effective date, an employee is entitled to
FMLA leave if the reason for the leave is qualifying under the Act, even
if the event occasioning the need for leave (e.g., the birth of a child)
occurred before the effective date (so long as any other requirements
are satisfied).
|
|
| What employers are covered by the Act? 825.104
|
| (a) An employer covered by FMLA is any person engaged in commerce
or in any industry or activity affecting commerce, who employs 50 or
more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year. Employers covered
by FMLA also include any person acting, directly or indirectly, in the
interest of a covered employer to any of the employees of the employer,
any successor in interest of a covered employer, and any public agency.
Public agencies are covered employers without regard to the number of
employees employed. Public as well as private elementary and secondary
schools are also covered employers without regard to the number of
employees employed. (See Sec. 825.600.)
(b) The terms ``commerce' and ``industry affecting commerce' are
defined in accordance with section 501(1) and (3) of the Labor
Management Relations Act of 1947 (LMRA) (29 U.S.C. 142 (1) and (3)), as
set forth in the definitions at Sec. 825.800 of this part. For
purposes of the FMLA, employers who meet the 50-employee coverage test
are deemed to be engaged in commerce or in an industry or activity
affecting commerce.
(c) Normally the legal entity which employs the employee is the
employer under FMLA. Applying this principle, a corporation is a single
employer rather than its separate establishments or divisions.
(1) Where one corporation has an ownership interest in another
corporation, it is a separate employer unless it meets the ``joint
employment' test discussed in Sec. 825.106, or the ``integrated
employer' test contained in paragraph (c)(2) of this section.
(2) Separate entities will be deemed to be parts of a single
employer for purposes of FMLA if they meet the ``integrated employer'
test. Where this test is met, the employees of all entities making up
the integrated employer will be counted in determining employer
coverage and employee eligibility. A determination of whether or not
separate entities are an integrated employer is not determined by the
application of any single criterion, but rather the entire relationship
is to be reviewed in its totality. Factors considered in determining
whether two or more entities are an integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.
(d) An ``employer' includes any person who acts directly or
indirectly in the interest of an employer to any of the employer's
employees. The definition of ``employer' in section 3(d) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any
person acting directly or indirectly in the interest of an employer in
relation to an employee. As under the FLSA, individuals such as
corporate officers ``acting in the interest of an employer' are
individually liable for any violations of the requirements of FMLA.
[73 FR 68075, Nov. 17, 2008]
|
|
| How is "joint employment' treated under FMLA? 825.106
|
| a) Where two or more businesses exercise some control over the
work or working conditions of the employee, the businesses may be joint
employers under FMLA. Joint employers may be separate and distinct
entities with separate owners, managers, and facilities. Where the
employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during
the workweek, a joint employment relationship generally will be
considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee's services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest
of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control
of the employee, directly or indirectly, because one employer controls,
is controlled by, or is under common control with the other employer.
(b)(1) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when a temporary placement agency supplies employees to a second
employer.
(2) A type of company that is often called a ``Professional
Employer Organization' (PEO) contracts with client employers to
perform administrative functions such as payroll, benefits, regulatory
paperwork, and updating employment policies. The determination of
whether a PEO is a joint employer also turns on the economic realities
of the situation and must be based upon all the facts and
circumstances. A PEO does not enter into a joint employment
relationship with the employees of its client companies when it merely
performs such administrative functions. On the other hand, if in a
particular fact situation, a PEO has the right to hire, fire, assign,
or direct and control the client's employees, or benefits from the work
that the employees perform, such rights may lead to a determination
that the PEO would be a joint employer with the client employer,
depending upon all the facts and circumstances.
(c) In joint employment relationships, only the primary employer is
responsible for giving required notices to its employees, providing
FMLA leave, and maintenance of health benefits. Factors considered in
determining which is the ``primary' employer include authority/
responsibility to hire and fire, assign/place the employee, make
payroll, and provide employment benefits. For employees of temporary
placement agencies, for example, the placement agency most commonly
would be the primary employer. Where a PEO is a joint employer, the
client employer most commonly would be the primary employer.
(d) Employees jointly employed by two employers must be counted by
both employers, whether or not maintained on one of the employer's
payroll, in determining employer coverage and employee eligibility. For
example, an employer who jointly employs 15 workers from a temporary
placement agency and 40 permanent workers is covered by FMLA. (A
special rule applies to employees jointly employed who physically work
at a facility of the secondary employer for a period of at least one
year. See Sec. 825.111(a)(3).) An employee on leave who is working for
a secondary employer is considered employed by the secondary employer,
and must be counted for coverage and eligibility purposes, as long as
the employer has a reasonable expectation that that employee will
return to employment with that employer. In those cases in which a PEO
is determined to be a joint employer of a client employer's employees,
the client employer would only be required to count employees of the
PEO (or employees of other clients of the PEO) if the client employer
jointly employed those employees.
(e) Job restoration is the primary responsibility of the primary
employer. The secondary employer is responsible for accepting the
employee returning from FMLA leave in place of the replacement employee
if the secondary employer continues to utilize an employee from the
temporary placement agency, and the agency chooses to place the
employee with the secondary employer. A secondary employer is also
responsible for compliance with the prohibited acts provisions with
respect to its jointly employed employees, whether or not the secondary
employer is covered by FMLA. See Sec. 825.220(a). The prohibited acts
include prohibitions against interfering with an employee's attempt to
exercise rights under the Act, or discharging or discriminating against
an employee for opposing a practice which is unlawful under FMLA. A
covered secondary employer will be responsible for compliance with all
the provisions of the FMLA with respect to its regular, permanent
workforce.
[73 FR 68076, Nov. 17, 2008]
|
|
| What is meant by "successor in interest"? 825.107
|
| (a) For purposes of FMLA, in determining whether an employer is
covered because it is a "successor in interest" to a covered
employer, the factors used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Adjustment Act will be considered. However,
unlike Title VII, whether the successor has notice of the employee's
claim is not a consideration. Notice may be relevant, however, in
determining successor liability for violations of the predecessor. The
factors to be considered include:
(1) Substantial continuity of the same business 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 not determined by the application of any single criterion,
but rather the entire circumstances are to be viewed in their totality.
(c) When an employer is a "successor in interest," employees'
entitlements are the same as if the employment by the predecessor and
successor were continuous employment by a single employer. For example,
the successor, whether or not it meets FMLA coverage criteria, must
grant leave for eligible employees who had provided appropriate notice
to the predecessor, or continue leave begun while employed by the
predecessor, including maintenance of group health benefits during the
leave and job restoration at the conclusion of the leave. A successor
which meets FMLA's coverage criteria must count periods of employment
and hours worked for the predecessor for purposes of determining
employee eligibility for FMLA leave.
[73 FR 68076, Nov. 17, 2008]
|
|
| What is a ``public agency'? 825.108
|
| (a) An "employer" under FMLA includes any "public agency," as
defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C.
203(x). Section 3(x) of the FLSA defines "public agency" as the
government of the United States; the government of a State or political
subdivision of a State; or an agency of the United States, a State, or
a political subdivision of a State, or any interstate governmental
agency. "State" is further defined in Section 3(c) of the FLSA to
include any State of the United States, the District of Columbia, or
any Territory or possession of the United States.
(b) The determination of whether an entity is a "public" agency,
as distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. Whether two agencies of the same State or local government
constitute the same public agency can only be determined on a case-by-
case basis. One factor that would support a conclusion that two
agencies are separate is whether they are treated separately for
statistical purposes in the Census of Governments issued by the Bureau
of the Census, U.S. Department of Commerce.
(2) The Census Bureau takes a census of governments at 5-year
intervals. Volume I, Government Organization, contains the official
counts of the number of State and local governments. It includes
tabulations of governments by State, type of government, size, and
county location. Also produced is a universe list of governmental
units, classified according to type of government. Copies of Volume I,
Government Organization, and subsequent volumes are available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, U.S. Department of Commerce District Offices, or
can be found in Regional and selective depository libraries, or online
at http://www.census.gov/govs/www/index.html. For a list of all
depository libraries, write to the Government Printing Office, 710 N.
Capitol St., NW., Washington, DC 20402.
(d) All public agencies are covered by the FMLA regardless of the
number of employees; they are not subject to the coverage threshold of
50 employees carried on the payroll each day for 20 or more weeks in a
year. However, employees of public agencies must meet all of the
requirements of eligibility, including the requirement that the
employer (e.g., State) employ 50 employees at the worksite or within 75
miles.
[73 FR 68077, Nov. 17, 2008]
|
|
| Are Federal agencies covered by these regulations? 825.109
|
| (a) Most employees of the government of the United States, if they
are covered by the FMLA, are covered under Title II of the FMLA
(incorporated in Title V, Chapter 63, Subchapter 5 of the United States
Code) which is administered by the U.S. Office of Personnel Management
(OPM). OPM has separate regulations at 5 CFR Part 630, Subpart L.
Employees of the Government Printing Office are covered by Title II.
While employees of the Government Accountability Office and the Library
of Congress are covered by Title I of the FMLA, the Comptroller General
of the United States and the Librarian of Congress, respectively, have
responsibility for the administration of the FMLA with respect to these
employees. Other legislative branch employees, such as employees of the
Senate and House of Representatives, are covered by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
(b) The Federal Executive Branch employees within the jurisdiction
of this part 825 include:
(1) Employees of the Postal Service;
(2) Employees of the Postal Regulatory Commission;
(3) A part-time employee who does not have an established regular
tour of duty during the administrative workweek; and,
(4) An employee serving under an intermittent appointment or
temporary appointment with a time limitation of one year or less.
(c) Employees of other Federal executive agencies are also covered
by this part 825 if they are not covered by Title II of FMLA.
(d) Employees of the judicial branch of the United States are
covered by these regulations only if they are employed in a unit which
has employees in the competitive service. For example, employees of the
U.S. Tax Court are covered by this part 825.
(e) For employees covered by these regulations, the U.S. Government
constitutes a single employer for purposes of determining employee
eligibility. These employees must meet all of the requirements for
eligibility, including the requirement that the Federal Government
employ 50 employees at the worksite or within 75 miles.
[73 FR 68077, Nov. 17, 2008]
|
|
| Which employees are ``eligible' to take leave under FMLA? 825.110
|
| (a) An "eligible employee" is an employee of a covered employer
who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the
leave, and
(3) Is employed at a work site where 50 or more employees are
employed by the employer within 75 miles of that work site. (See Sec.
825.105(b) regarding employees who work outside the U.S.)
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months, provided
(1) Subject to the exceptions provided in paragraph (b)(2) of this
section, employment periods prior to a break in service of seven years
or more need not be counted in determining whether the employee has
been employed by the employer for at least 12 months.
(2) Employment periods preceding a break in service of more than
seven years must be counted in determining whether the employee has
been employed by the employer for at least 12 months where:
(i) The employee's break in service is occasioned by the
fulfillment of his or her National Guard or Reserve military service
obligation. The time served performing the military service must be
also counted in determining whether the employee has been employed for
at least 12 months by the employer. However, this section does not
provide any greater entitlement to the employee than would be available
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301, et seq.; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) If an employee is maintained on the payroll for any part of a
week, including any periods of paid or unpaid leave (sick, vacation)
during which other benefits or compensation are provided by the
employer (e.g., workers' compensation, group health plan benefits,
etc.), the week counts as a week of employment. For purposes of
determining whether intermittent/occasional/casual employment qualifies
as "at least 12 months," 52 weeks is deemed to be equal to 12 months.
(4) Nothing in this section prevents employers from considering
employment prior to a continuous break in service of more than seven
years when determining whether an employee has met the 12-month
employment requirement. However, if an employer chooses to recognize
such prior employment, the employer must do so uniformly, with respect
to all employees with similar breaks in service.
(c)(1) Except as provided in paragraph (c)(2) of this section,
whether an employee has worked the minimum 1,250 hours of service is
determined according to the principles established under the Fair Labor
Standards Act (FLSA) for determining compensable hours of work. (See 29
CFR part 785). The determining factor is the number of hours an
employee has worked for the employer within the meaning of the FLSA.
The determination is not limited by methods of recordkeeping, or by
compensation agreements that do not accurately reflect all of the hours
an employee has worked for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used.
(2) Pursuant to USERRA, an employee returning from fulfilling his
or her National Guard or Reserve military obligation shall be credited
with the hours of service that would have been performed but for the
period of military service in determining whether the employee worked
the 1,250 hours of service. Accordingly, a person reemployed following
military service has the hours that would have been worked for the
employer added to any hours actually worked during the previous 12-
month period to meet the 1,250 hour requirement. In order to determine
the hours that would have been worked during the period of military
service, the employee's pre-service work schedule can generally be used
for calculations.
(3) In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
An employer must be able to clearly demonstrate, for example, that
full-time teachers (see Sec. 825.800 for definition) of an elementary
or secondary school system, or institution of higher education, or
other educational establishment or institution (who often work outside
the classroom or at their homes) did not work 1,250 hours during the
previous 12 months in order to claim that the teachers are not eligible
for FMLA leave.
(d) The determination of whether an employee has worked for the
employer for at least 1,250 hours in the past 12 months and has been
employed by the employer for a total of at least 12 months must be made
as of the date the FMLA leave is to start. An employee may be on "non-
FMLA leave" at the time he or she meets the eligibility requirements,
and in that event, any portion of the leave taken for an FMLA-
qualifying reason after the employee meets the eligibility requirement
would be "FMLA leave." (See Sec. 825.300(b) for rules governing the
content of the eligibility notice given to employees.)
(e) Whether 50 employees are employed within 75 miles to ascertain
an employee's eligibility for FMLA benefits is determined when the
employee gives notice of the need for leave. Whether the leave is to be
taken at one time or on an intermittent or reduced leave schedule
basis, once an employee is determined eligible in response to that
notice of the need for leave, the employee's eligibility is not
affected by any subsequent change in the number of employees employed
at or within 75 miles of the employee's worksite, for that specific
notice of the need for leave. Similarly, an employer may not terminate
employee leave that has already started if the employee-count drops
below 50. For example, if an employer employs 60 employees in August,
but expects that the number of employees will drop to 40 in December,
the employer must grant FMLA benefits to an otherwise eligible employee
who gives notice of the need for leave in August for a period of leave
to begin in December.
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68077, Nov. 17, 2008]
|
|
| Under what kinds of circumstances are employers required to grant family or medical leave? 825.112
|
| (a) Circumstances qualifying for leave. Employers covered by FMLA
are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child (see Sec. 825.120);
(2) For placement with the employee of a son or daughter for
adoption or foster care (see Sec. 825.121);
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition (see Sec. Sec. 825.113 and 825.122);
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job (see Sec. Sec.
825.113 and 825.123);
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a covered military
member on active duty (or has been notified of an impending call or
order to active duty) in support of a contingency operation (see
Sec. Sec. 825.122 and 825.126); and
(6) To care for a covered servicemember with a serious injury or
illness if the employee is the spouse, son, daughter, parent, or next
of kin of the servicemember (see Sec. Sec. 825.122 and 825.127).
(b) Equal application. The right to take leave under FMLA applies
equally to male and female employees. A father, as well as a mother,
can take family leave for the birth, placement for adoption, or foster
care of a child.
(c) Active employee. In situations where the employer/employee
relationship has been interrupted, such as an employee who has been on
layoff, the employee must be recalled or otherwise be re-employed
before being eligible for FMLA leave. Under such circumstances, an
eligible employee is immediately entitled to further FMLA leave for a
qualifying reason.
[73 FR 68079, Nov. 17, 2008]
|
|
| What is a ``serious health condition' entitling an employee to FMLA leave? 825.113
|
| (a) For purposes of FMLA, ``serious health condition' entitling an
employee to FMLA leave means an illness, injury, impairment or physical
or mental condition that involves inpatient care as defined in Sec.
825.114 or continuing treatment by a health care provider as defined in
Sec. 825.115.
(b) The term ``incapacity' means inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefore, or recovery therefrom.
(c) The term ``treatment' includes (but is not limited to)
examinations to determine if a serious health condition exists and
evaluations of the condition. Treatment does not include routine
physical examinations, eye examinations, or dental examinations. A
regimen of continuing treatment includes, for example, a course of
prescription medication (e.g., an antibiotic) or therapy requiring
special equipment to resolve or alleviate the health condition (e.g.,
oxygen). A regimen of continuing treatment that includes the taking of
over-the-counter medications such as aspirin, antihistamines, or
salves; or bed-rest, drinking fluids, exercise, and other similar
activities that can be initiated without a visit to a health care
provider, is not, by itself, sufficient to constitute a regimen of
continuing treatment for purposes of FMLA leave.
(d) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic surgery) are not ``serious
health conditions' unless inpatient hospital care is required or
unless complications develop. Ordinarily, unless complications arise,
the common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet
the definition of a serious health condition and do not qualify for
FMLA leave. Restorative dental or plastic surgery after an injury or
removal of cancerous growths are serious health conditions provided all
the other conditions of this regulation are met. Mental illness or
allergies may be serious health conditions, but only if all the
conditions of this section are met.
[73 FR 68079, Nov. 17, 2008]
|
|
| What does it mean that an employee is ``needed to care for' a family member? 825.116
|
| (a) The medical certification provision that an employee is ``needed
to care for' a family member encompasses both physical and
psychological care. It includes situations where, for example, because
of a serious health condition, the family member is unable to care for
his or her own basic medical, hygienic, or nutritional needs or safety,
or is unable to transport himself or herself to the doctor, etc. The
term also includes providing psychological comfort and reassurance which
would be beneficial to a child, spouse or parent with a serious health
condition who is receiving inpatient or home care.
(b) The term also includes situations where the employee may be
needed to fill in for others who are caring for the family member, or to
make arrangements for changes in care, such as transfer to a nursing
home.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member includes not only a situation
where the family member's condition itself is intermittent, but also
where the employee is only needed intermittently--such as where other
care is normally available, or care responsibilities are shared with
another member of the family or a third party.
[73 FR 68080, Nov. 17, 2008]
|
|
| What is a ``health care provider'? 825.118
|
| (a) The Act defines ``health care provider' as:
(1) A doctor of medicine or osteopathy who is authorized to practice
medicine or surgery (as appropriate) by the State in which the doctor
practices; or
(2) Any other person determined by the Secretary to be capable of
providing health care services.
(b) Others ``capable of providing health care services' include
only:
(1) Podiatrists, dentists, clinical psychologists, optometrists, and
chiropractors (limited to treatment consisting of manual manipulation of the spine to correct a subluxation as demonstrated by X-ray to exist)
authorized to practice in the State and performing within the scope of
their practice as defined under State law;
(2) Nurse practitioners, nurse-midwives and clinical social workers
who are authorized to practice under State law and who are performing
within the scope of their practice as defined under State law;
(3) Christian Science practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts. Where an employee or family
member is receiving treatment from a Christian Science practitioner, an
employee may not object to any requirement from an employer that the
employee or family member submit to examination (though not treatment)
to obtain a second or third certification from a health care provider
other than a Christian Science practitioner except as otherwise provided
under applicable State or local law or collective bargaining agreement.
(4) Any health care provider from whom an employer or the employer's
group health plan's benefits manager will accept certification of the
existence of a serious health condition to substantiate a claim for
benefits; and
(5) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(c) The phrase ``authorized to practice in the State' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions without supervision by a
doctor or other health care provider.
[73 FR 68080, Nov. 17, 2008]
|
|
| In determining whether an employer is covered by FMLA, what does it mean to employ 50 or more employees for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year? 825.105
|
| (a) The definition of "employ" for purposes of FMLA is taken from
the Fair Labor Standards Act, Sec. 3(g), 29 U.S.C. 203(g). The courts
have made it clear that the employment relationship under the FLSA is
broader than the traditional common law concept of master and servant.
The difference between the employment relationship under the FLSA and
that under the common law arises from the fact that the term "employ"
as defined in the Act includes "to suffer or permit to work." The
courts have indicated that, while "to permit" requires a more
positive action than "to suffer," both terms imply much less positive
action than required by the common law. Mere knowledge by an employer
of work done for the employer by another is sufficient to create the
employment relationship under the Act. The courts have said that there
is no definition that solves all problems as to the limitations of the
employer-employee relationship under the Act; and that determination of
the relation cannot be based on "isolated factors" or upon a single
characteristic or "technical concepts," but depends "upon the
circumstances of the whole activity" including the underlying
"economic reality." In general an employee, as distinguished from an
independent contractor who is engaged in a business of his/her own, is
one who "follows the usual path of an employee" and is dependent on
the business which he/she serves.
(b) Any employee whose name appears on the employer's payroll will
be considered employed each working day of the calendar week, and must
be counted whether or not any compensation is received for the week.
However, the FMLA applies only to employees who are employed within any
State of the United States, the District of Columbia or any Territory
or possession of the United States. Employees who are employed outside
these areas are not counted for purposes of determining employer
coverage or employee eligibility.
(c) Employees on paid or unpaid leave, including FMLA leave, leaves
of absence, disciplinary suspension, etc., are counted as long as the
employer has a reasonable expectation that the employee will later
return to active employment. If there is no employer/employee
relationship (as when an employee is laid off, whether temporarily or
permanently) such individual is not counted. Part-time employees, like
full-time employees, are considered to be employed each working day of
the calendar week, as long as they are maintained on the payroll.
(d) An employee who does not begin to work for an employer until
after the first working day of a calendar week, or who terminates
employment before the last working day of a calendar week, is not
considered employed on each working day of that calendar week.
(e) A private employer is covered if it maintained 50 or more
employees on the payroll during 20 or more calendar workweeks (not
necessarily consecutive workweeks) in either the current or the
preceding calendar year.
(f) Once a private employer meets the 50 employees/20 workweeks
threshold, the employer remains covered until it reaches a future point
where it no longer has employed 50 employees for 20 (nonconsecutive)
workweeks in the current and preceding calendar year. For example, if
an employer who met the 50 employees/20 workweeks test in the calendar
year as of September 1, 2008, subsequently dropped below 50
employees before the end of 2008 and continued to employ fewer than 50
employees in all workweeks throughout calendar year 2009, the employer
would continue to be covered throughout calendar year 2009 because it
met the coverage criteria for 20 workweeks of the preceding (i.e.,
2008) calendar year.
[73 FR 68075, Nov. 17, 2008]
|
|
| In determining if an employee is ``eligible' under FMLA, how is the determination made whether the employer employs 50 employees within 75 miles of the worksite where the employee needing leave is employed? 825.111
|
| (a) Generally, a worksite can refer to either a single location or
a group of contiguous locations. Structures which form a campus or
industrial park, or separate facilities in proximity with one another,
may be considered a single site of employment. On the other hand, there
may be several single sites of employment within a single building,
such as an office building, if separate employers conduct activities
within the building. For example, an office building with 50 different
businesses as tenants will contain 50 sites of employment. The offices
of each employer will be considered separate sites of employment for
purposes of FMLA. An employee's worksite under FMLA will ordinarily be
the site the employee reports to or, if none, from which the employee's
work is assigned.
(1) Separate buildings or areas which are not directly connected or
in immediate proximity are a single worksite if they are in reasonable
geographic proximity, are used for the same purpose, and share the same
staff and equipment. For example, if an employer manages a number of
warehouses in a metropolitan area but regularly shifts or rotates the
same employees from one building to another, the multiple warehouses
would be a single worksite.
(2) For employees with no fixed worksite, e.g., construction
workers, transportation workers (e.g., truck drivers, seamen, pilots),
salespersons, etc., the ``worksite' is the site to which they are
assigned as their home base, from which their work is assigned, or to
which they report. For example, if a construction company headquartered
in New Jersey opened a construction site in Ohio, and set up a mobile
trailer on the construction site as the company's on-site office, the
construction site in Ohio would be the worksite for any employees hired
locally who report to the mobile trailer/company office daily for work
assignments, etc. If that construction company also sent personnel such
as job superintendents, foremen, engineers, an office manager, etc.,
from New Jersey to the job site in Ohio, those workers sent from New
Jersey continue to have the headquarters in New Jersey as their
``worksite.' The workers who have New Jersey as their worksite would
not be counted in determining eligibility of employees whose home base
is the Ohio worksite, but would be counted in determining eligibility
of employees whose home base is New Jersey. For transportation
employees, their worksite is the terminal to which they are assigned,
report for work, depart, and return after completion of a work
assignment. For example, an airline pilot may work for an airline with
headquarters in New York, but the pilot regularly reports for duty and
originates or begins flights from the company's facilities located in
an airport in Chicago and returns to Chicago at the completion of one
or more flights to go off duty. The pilot's worksite is the facility in
Chicago. An employee's personal residence is not a worksite in the case
of employees, such as salespersons, who travel a sales territory and
who generally leave to work and return from work to their personal
residence, or employees who work at home, as under the concept of
flexiplace or telecommuting. Rather, their worksite is the office
to which they report and from which assignments are made.
(3) For purposes of determining that employee's eligibility, when
an employee is jointly employed by two or more employers (see Sec.
825.106), the employee's worksite is the primary employer's office from
which the employee is assigned or reports, unless the employee has
physically worked for at least one year at a facility of a secondary
employer, in which case the employee's worksite is that location. The
employee is also counted by the secondary employer to determine
eligibility for the secondary employer's full-time or permanent
employees.
(b) The 75-mile distance is measured by surface miles, using
surface transportation over public streets, roads, highways and
waterways, by the shortest route from the facility where the employee
needing leave is employed. Absent available surface transportation
between worksites, the distance is measured by using the most
frequently utilized mode of transportation (e.g., airline miles).
(c) The determination of how many employees are employed within 75
miles of the worksite of an employee is based on the number of
employees maintained on the payroll. Employees of educational
institutions who are employed permanently or who are under contract are
``maintained on the payroll' during any portion of the year when
school is not in session. See Sec. 825.105(c).
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68078, Nov. 17, 2008]
|
|
| What do ``spouse,' ``parent,' and ``son or daughter' mean for purposes of an employee qualifying to take FMLA leave? 825.122
|
| (a) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where it is
recognized.
(b) Parent. Parent means a biological, adoptive, step or foster
father or mother, or any other individual who stood in loco parentis to
the employee when the employee was a son or daughter as defined in
paragraph (c) of this section. This term does not include parents "in
law."
(c) Son or daughter. For purposes of FMLA leave taken for birth or
adoption, or to care for a family member with a serious health
condition, son or daughter means a biological, adopted, or foster
child, a stepchild, a legal ward, or a child of a person standing in
loco parentis, who is either under age 18, or age 18 or older and
"incapable of self-care because of a mental or physical disability"
at the time that FMLA leave is to commence.
(1) "Incapable of self-care" means that the individual requires
active assistance or supervision to provide daily self-care in three or
more of the "activities of daily living" (ADLs) or "instrumental
activities of daily living" (IADLs). Activities of daily living
include adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
(2) "Physical or mental disability" means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and
(j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms.
(3) Persons who are "in loco parentis" include those with day-to-
day responsibilities to care for and financially support a child, or,
in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
(d) Next of kin of a covered servicemember. "Next of kin of a
covered servicemember" means the nearest blood relative other than the
covered servicemember's spouse, parent, son, or daughter, in the
following order of priority: Blood relatives who have been granted
legal custody of the covered servicemember by court decree or statutory
provisions, brothers and sisters, grandparents, aunts and uncles, and
first cousins, unless the covered servicemember has specifically
designated in writing another blood relative as his or her nearest
blood relative for purposes of military caregiver leave under the FMLA.
When no such designation is made, and there are multiple family members
with the same level of relationship to the covered servicemember, all
such family members shall be considered the covered servicemember's
next of kin and may take FMLA leave to provide care to the covered
servicemember, either consecutively or simultaneously. When such
designation has been made, the designated individual shall be deemed to
be the covered servicemember's only next of kin. See Sec.
825.127(b)(3).
(e) Adoption. "Adoption" means legally and permanently assuming
the responsibility of raising a child as one's own. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for FMLA leave.
See Sec. 825.121 for rules governing leave for adoption.
(f) Foster care. Foster care is 24-hour care for children in
substitution for, and away from, their parents or guardian. Such
placement is made by or with the agreement of the State as a result of
a voluntary agreement between the parent or guardian that the child be
removed from the home, or pursuant to a judicial determination of the
necessity for foster care, and involves agreement between the State and
foster family that the foster family will take care of the child.
Although foster care may be with relatives of the child, State action
is involved in the removal of the child from parental custody. See
Sec. 825.121 for rules governing leave for foster care.
(g) Son or daughter on active duty or call to active duty status.
"Son or daughter on active duty or call to active duty status" means
the employee's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the employee stood in loco parentis, who is
on active duty or call to active duty status, and who is of any age.
See Sec. 825.126(b)(1).
(h) Son or daughter of a covered servicemember. "Son or daughter
of a covered servicemember" means the servicemember's biological,
adopted, or foster child, stepchild, legal ward, or a child for whom
the servicemember stood in loco parentis, and who is of any age. See
Sec. 825.127(b)(1).
(i) Parent of a covered servicemember. "Parent of a covered
servicemember" means a covered servicemember's biological, adoptive,
step or foster father or mother, or any other individual who stood in
loco parentis to the covered servicemember. This term does not include
parents "in law." See Sec. 825.127(b)(2).
(j) Documenting relationships. For purposes of confirmation of
family relationship, the employer may require the employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a simple statement from the employee, or a child's birth
certificate, a court document, etc. The employer is entitled to examine
documentation such as a birth certificate, etc., but the employee is
entitled to the return of the official document submitted for this
purpose.
[73 FR 68082, Nov. 17, 2008]
|
|
| Continuing treatment. 825.115
|
| A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(2) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(3) The requirement in paragraphs (a)(1) and (2) of this section
for treatment by a health care provider means an in-person visit to a
health care provider. The first (or only) in-person treatment visit
must take place within seven days of the first day of incapacity.
(4) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(5) The term ``extenuating circumstances' in paragraph (a)(1) of
this section means circumstances beyond the employee's control that
[[Page 68080]]
prevent the follow-up visit from occurring as planned by the health
care provider. Whether a given set of circumstances are extenuating
depends on the facts. For example, extenuating circumstances exist if a
health care provider determines that a second in-person visit is needed
within the 30-day period, but the health care provider does not have
any available appointments during that time period.
(b) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(c) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(d) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity
of more than three consecutive, full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under paragraph (b) or (c)
of this section qualify for FMLA leave even though the employee or the
covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive, full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
[73 FR 68079, Nov. 17, 2008]
|
|
| For an employee seeking intermittent FMLA leave or leave on a reduced leave schedule, what is meant by ``the medical necessity for' such leave? 825.117
|
| For intermittent leave or leave on a reduced leave schedule, there
must be a medical need for leave (as distinguished from voluntary
treatments and procedures) and it must be that such medical need can be
best accommodated through an intermittent or reduced leave schedule. The
treatment regimen and other information described in the certification
of a serious health condition (see Sec. 825.306) meets the requirement
for certification of the medical necessity of intermittent leave or
leave on a reduced leave schedule. Employees needing intermittent FMLA
leave or leave on a reduced leave schedule must attempt to schedule
their leave so as not to disrupt the employer's operations. In addition,
an employer may assign an employee to an alternative position with
equivalent pay and benefits that better accommodates the employee's
intermittent or reduced leave schedule.
[Reserved]
[73 FR 68080, Nov. 17, 2008]
|
|
| Inpatient Care. 825.114
|
| Inpatient care means an overnight stay in a hospital,
hospice, or residential medical care facility, including any
period of incapacity as defined in § 825.113(b), or any
subsequent treatment in connection with such
inpatient care.
[73 FR 68079, Nov. 17, 2008]
|
|
| Leave for treatment of substance abuse. 825.119
|
| (a) Substance abuse may be a serious health condition if the
conditions of Sec. Sec. 825.113 through 825.115 are met. However, FMLA
leave may only be taken for treatment for substance abuse by a health
care provider or by a provider of health care services on referral by a
health care provider. On the other hand, absence because of the
employee's use of the substance, rather than for treatment, does not
qualify for FMLA leave.
(b) Treatment for substance abuse does not prevent an employer from
taking employment action against an employee. The employer may not take
action against the employee because the employee has exercised his or
her right to take FMLA leave for treatment. However, if the employer
has an established policy, applied in a non-discriminatory manner that
has been communicated to all employees, that provides under certain
circumstances an employee may be terminated for substance abuse,
pursuant to that policy the employee may be terminated whether or not
the employee is presently taking FMLA leave. An employee may also take
FMLA leave to care for a covered family member who is receiving
treatment for substance abuse. The employer may not take action against
an employee who is providing care for a covered family member receiving
treatment for substance abuse.
[73 FR 68080, Nov. 17, 2008]
|
|
| Leave for pregnancy or birth. 825.120
|
| (a) General rules. Eligible employees are entitled to FMLA leave
for pregnancy or birth of a child as follows:
(1) Both the mother and father are entitled to FMLA leave for the
birth of their child.
(2) Both the mother and father are entitled to FMLA leave to be
with the healthy newborn child (i.e., bonding time) during the 12-month
period beginning on the date of birth. An employee's entitlement to
FMLA leave for a birth expires at the end of the 12-month period
beginning on the date of the birth. If state law allows, or the
employer permits, bonding leave to be taken beyond this period, such
leave will not qualify as FMLA leave. See Sec. 825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under
this section, both the mother and father are entitled to FMLA leave
even if the newborn does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for birth of the employee's son or daughter or to care for the
child after birth, for placement of a son or daughter with the employee
for adoption or foster care or to care for the child after placement,
or to care for the employee's parent with a serious health condition.
This limitation on the total weeks of leave applies to leave taken for
the reasons specified as long as a husband and wife are employed by the
"same employer." It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 12 weeks of
FMLA leave. Where the husband and wife both use a portion of the total
12-week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newborn child, each could use an additional 6 weeks
due to his or her own serious health condition or to care for a child
with a serious health condition. Note, too, that many State pregnancy
disability laws specify a period of disability either before or after
the birth of a child; such periods would also be considered FMLA leave
for a serious health condition of the mother, and would not be subject
to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother
is entitled to leave for incapacity due to pregnancy even though
she does not receive treatment from a health care provider
during the absence, and even if the absence does not last for
more than three consecutive calendar days. For example, a pregnant
employee may be unable to report to work because of severe
morning sickness.
(5) The husband is entitled to FMLA leave if needed to care for his
pregnant spouse who is incapacitated or if needed to care for her
during her prenatal care, or if needed to care for the spouse following
the birth of a child if the spouse has a serious health condition. See
Sec. 825.124.
(6) Both the mother and father are entitled to FMLA leave if needed
to care for a child with a serious health condition if the requirements
of Sec. Sec. 825.113 through 825.115 and 825.122(c) are met. Thus, a
husband and wife may each take 12 weeks of FMLA leave if needed to care
for their newborn child with a serious health condition, even if both
are employed by the same employer, provided they have not exhausted
their entitlements during the applicable 12-month FMLA leave period.
(b) Intermittent and reduced schedule leave. An eligible employee
may use intermittent or reduced schedule leave after the birth to be
with a healthy newborn child only if the employer agrees. For example,
an employer and employee may agree to a part-time work schedule after
the birth. If the employer agrees to permit intermittent or reduced
schedule leave for the birth of a child, the employer may require the
employee to transfer temporarily, during the period the intermittent or
reduced leave schedule is required, to an available alternative
position for which the employee is qualified and which better
accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
mother or newborn child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.121 for rules governing leave for adoption or
foster care. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
[73 FR 68080, Nov. 17, 2008]
|
|
| Family & Medical Leave Act Final Rule: Part 12 825.100-825.803
|
| Sec. 825.603 Special rules for school employees, duration of FMLA
leave.
(a) If an employee chooses to take leave for periods of a
particular duration in the case of intermittent or reduced schedule
leave, the entire period of leave taken will count as FMLA leave.
(b) In the case of an employee who is required to take leave until
the end of an academic term, only the period of leave until the
employee is ready and able to return to work shall be charged against
the employee's FMLA leave entitlement. The employer has the option not
to require the employee to stay on leave until the end of the school
term. Therefore, any additional leave required by the employer to the
end of the school term is not counted as FMLA leave; however, the
employer shall be required to maintain the employee's group health
insurance and restore the employee to the same or equivalent job
including other benefits at the conclusion of the leave.
Sec. 825.604 Special rules for school employees, restoration to an
equivalent position.
The determination of how an employee is to be restored to an
equivalent position upon return from FMLA leave will be made on the
basis of ``established school board policies and practices, private
school policies and practices, and collective bargaining agreements.''
The ``established policies'' and collective bargaining agreements used
as a basis for restoration must be in writing, must be made known to
the employee prior to the taking of FMLA leave, and must clearly
explain the employee's restoration rights upon return from leave. Any
established policy which is used as the basis for restoration of an
employee to an equivalent position must provide substantially the same
protections as provided in the Act for reinstated employees. See Sec.
825.215. In other words, the policy or collective bargaining agreement
must provide for restoration to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of employment.
For example, an employee may not be restored to a position requiring
additional licensure or certification.
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
Sec. 825.700 Interaction with employer's policies.
(a) An employer must observe any employment benefit program or plan
that provides greater family or medical leave rights to employees than
the rights established by the FMLA. Conversely, the rights established
by the Act may not be diminished by any employment benefit program or
plan. For example, a provision of a CBA which provides for
reinstatement to a position that is not equivalent because of seniority
(e.g., provides lesser pay) is superseded by FMLA. If an employer
provides greater unpaid family leave rights than are afforded by FMLA,
the employer is not required to extend additional rights afforded by
FMLA, such as maintenance of health benefits (other than through
COBRA), to the additional leave period not covered by FMLA.
(b) Nothing in this Act prevents an employer from amending existing
leave and employee benefit programs, provided they comply with FMLA.
However, nothing in the Act is intended to discourage employers from
adopting or retaining more generous leave policies.
Sec. 825.701 Interaction with State laws.
(a) Nothing in FMLA supersedes any provision of State or local law
that provides greater family or medical leave rights than those
provided by FMLA. The Department of Labor will not, however, enforce
State family or medical leave laws, and States may not enforce the
FMLA. Employees are not required to designate whether the leave they
are taking is FMLA leave or leave under State law, and an employer must
comply with the appropriate (applicable) provisions of both. An
employer covered by one law and not the other has to comply only with
the law under which it is covered. Similarly, an employee eligible
under only one law must receive benefits in accordance with that law.
If leave qualifies for FMLA leave and leave under State law, the leave
used counts against the employee's entitlement under both laws.
Examples of the interaction between FMLA and State laws include:
(1) If State law provides 16 weeks of leave entitlement over two
years, an employee needing leave due to his or her own serious health
condition would be entitled to take 16 weeks one year under State law
and 12 weeks the next year under FMLA. Health benefits
[[Page 8945]]
maintenance under FMLA would be applicable only to the first 12 weeks
of leave entitlement each year. If the employee took 12 weeks the first
year, the employee would be entitled to a maximum of 12 weeks the
second year under FMLA (not 16 weeks). An employee would not be
entitled to 28 weeks in one year.
(2) If State law provides half-pay for employees temporarily
disabled because of pregnancy for six weeks, the employee would be
entitled to an additional six weeks of unpaid FMLA leave (or accrued
paid leave).
(3) If State law provides six weeks of leave, which may include
leave to care for a seriously-ill grandparent or a ``spouse
equivalent,'' and leave was used for that purpose, the employee is
still entitled to his or her full FMLA leave entitlement, as the leave
used was provided for a purpose not covered by FMLA. If FMLA leave is
used first for a purpose also provided under State law, and State leave
has thereby been exhausted, the employer would not be required to
provide additional leave to care for the grandparent or ``spouse
equivalent.''
(4) If State law prohibits mandatory leave beyond the actual period
of pregnancy disability, an instructional employee of an educational
agency subject to special FMLA rules may not be required to remain on
leave until the end of the academic term, as permitted by FMLA under
certain circumstances. See Subpart F of this part.
(b) [Reserved]
Sec. 825.702 Interaction with Federal and State anti-discrimination
laws.
(a) Nothing in FMLA modifies or affects any Federal or State law
prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability (e.g., Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act).
FMLA's legislative history explains that FMLA is ``not intended to
modify or affect the Rehabilitation Act of 1973, as amended, the
regulations concerning employment which have been promulgated pursuant
to that statute, or the Americans with Disabilities Act of 1990 [as
amended] or the regulations issued under that act. Thus, the leave
provisions of the [FMLA] are wholly distinct from the reasonable
accommodation obligations of employers covered under the [ADA],
employers who receive Federal financial assistance, employers who
contract with the Federal government, or the Federal government itself.
The purpose of the FMLA is to make leave available to eligible
employees and employers within its coverage, and not to limit already
existing rights and protection.'' S. Rep. No. 103-3, at 38 (1993). An
employer must therefore provide leave under whichever statutory
provision provides the greater rights to employees. When an employer
violates both FMLA and a discrimination law, an employee may be able to
recover under either or both statutes (double relief may not be awarded
for the same loss; when remedies coincide a claimant may be allowed to
utilize whichever avenue of relief is desired. Laffey v. Northwest
Airlines, Inc., 567 F.2d 429, 445 (D.C. Cir. 1976), cert. denied, 434
U.S. 1086 (1978).
(b) If an employee is a qualified individual with a disability
within the meaning of the ADA, the employer must make reasonable
accommodations, etc., barring undue hardship, in accordance with the
ADA. At the same time, the employer must afford an employee his or her
FMLA rights. ADA's ``disability'' and FMLA's ``serious health
condition'' are different concepts, and must be analyzed separately.
FMLA entitles eligible employees to 12 weeks of leave in any 12-month
period due to their own serious health condition, whereas the ADA
allows an indeterminate amount of leave, barring undue hardship, as a
reasonable accommodation. FMLA requires employers to maintain
employees' group health plan coverage during FMLA leave on the same
conditions as coverage would have been provided if the employee had
been continuously employed during the leave period, whereas ADA does
not require maintenance of health insurance unless other employees
receive health insurance during leave under the same circumstances.
(c)(1) A reasonable accommodation under the ADA might be
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employer did not
ordinarily provide health insurance for part-time employees. However,
FMLA would permit an employee to work a reduced leave schedule until
the equivalent of 12 workweeks of leave were used, with group health
benefits maintained during this period. FMLA permits an employer to
temporarily transfer an employee who is taking leave intermittently or
on a reduced leave schedule for planned medical treatment to an
alternative position, whereas the ADA allows an accommodation of
reassignment to an equivalent, vacant position only if the employee
cannot perform the essential functions of the employee's present
position and an accommodation is not possible in the employee's present
position, or an accommodation in the employee's present position would
cause an undue hardship. The examples in the following paragraphs of
this section demonstrate how the two laws would interact with respect
to a qualified individual with a disability.
(2) A qualified individual with a disability who is also an
eligible employee entitled to FMLA leave requests 10 weeks of medical
leave as a reasonable accommodation, which the employer grants because
it is not an undue hardship. The employer advises the employee that the
10 weeks of leave is also being designated as FMLA leave and will count
towards the employee's FMLA leave entitlement. This designation does
not prevent the parties from also treating the leave as a reasonable
accommodation and reinstating the employee into the same job, as
required by the ADA, rather than an equivalent position under FMLA, if
that is the greater right available to the employee. At the same time,
the employee would be entitled under FMLA to have the employer maintain
group health plan coverage during the leave, as that requirement
provides the greater right to the employee.
(3) If the same employee needed to work part-time (a reduced leave
schedule) after returning to his or her same job, the employee would
still be entitled under FMLA to have group health plan coverage
maintained for the remainder of the two-week equivalent of FMLA leave
entitlement, notwithstanding an employer policy that part-time
employees do not receive health insurance. This employee would be
entitled under the ADA to reasonable accommodations to enable the
employee to perform the essential functions of the part-time position.
In addition, because the employee is working a part-time schedule as a
reasonable accommodation, the FMLA's provision for temporary assignment
to a different alternative position would not apply. Once the employee
has exhausted his or her remaining FMLA leave entitlement while working
the reduced (part-time) schedule, if the employee is a qualified
individual with a disability, and if the employee is unable to return
to the same full-time position at that time, the employee might
continue to work part-time as a reasonable accommodation, barring undue
hardship; the employee would then be entitled to only those employment
benefits ordinarily provided by the employer to part-time employees.
(4) At the end of the FMLA leave entitlement, an employer is
required under FMLA to reinstate the employee
[[Page 8946]]
in the same or an equivalent position, with equivalent pay and
benefits, to that which the employee held when leave commenced. The
employer's FMLA obligations would be satisfied if the employer offered
the employee an equivalent full-time position. If the employee were
unable to perform the essential functions of that equivalent position
even with reasonable accommodation, because of a disability, the ADA
may require the employer to make a reasonable accommodation at that
time by allowing the employee to work part-time or by reassigning the
employee to a vacant position, barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employer may not,
in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an
employer offer an employee the opportunity to take such a position. An
employer may not change the essential functions of the job in order to
deny FMLA leave. See Sec. 825.220(b).
(2) An employee may be on a workers' compensation absence due to an
on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers' compensation absence and FMLA leave
may run concurrently (subject to proper notice and designation by the
employer). At some point the health care provider providing medical
care pursuant to the workers' compensation injury may certify the
employee is able to return to work in a light duty position. If the
employer offers such a position, the employee is permitted but not
required to accept the position. See Sec. 825.220(d). As a result, the
employee may no longer qualify for payments from the workers'
compensation benefit plan, but the employee is entitled to continue on
unpaid FMLA leave either until the employee is able to return to the
same or equivalent job the employee left or until the 12-week FMLA
leave entitlement is exhausted. See Sec. 825.207(e). If the employee
returning from the workers' compensation injury is a qualified
individual with a disability, he or she will have rights under the ADA.
(e) If an employer requires certifications of an employee's fitness
for duty to return to work, as permitted by FMLA under a uniform
policy, it must comply with the ADA requirement that a fitness for duty
physical be job-related and consistent with business necessity.
(f) Under Title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act, an employer should provide the same
benefits for women who are pregnant as the employer provides to other
employees with short-term disabilities. Because Title VII does not
require employees to be employed for a certain period of time to be
protected, an employee employed for less than 12 months by the employer
(and, therefore, not an eligible employee under FMLA) may not be denied
maternity leave if the employer normally provides short-term disability
benefits to employees with the same tenure who are experiencing other
short-term disabilities.
(g) Under the Uniformed Services Employment and Reemployment Rights
Act (USERRA), 38 U.S.C. 4301, et seq., veterans are entitled to receive
all rights and benefits of employment that they would have obtained if
they had been continuously employed. Therefore, under USERRA, a
returning servicemember would be eligible for FMLA leave if the months
and hours that he or she would have worked (or, for airline flight crew
employees, would have worked or been paid) for the civilian employer
during the period of absence due to or necessitated by USERRA-covered
service, combined with the months employed and the hours actually
worked (or, for airline flight crew employees, actually worked or
paid), meet the FMLA eligibility threshold of 12 months of employment
and the hours of service requirement. See Sec. Sec. 825.110(b)(2)(i)
and (c)(2) and 825802(c).
(h) For further information on Federal antidiscrimination laws,
including Title VII and the ADA, individuals are encouraged to contact
the nearest office of the U.S. Equal Employment Opportunity Commission.
Subpart H--Special Rules Applicable to Airline Flight Crew
Employees
Sec. 825.800 Special rules for airline flight crew employees,
general.
(a) Certain special rules apply only to airline flight crew
employees as defined in Sec. 825.102. These special rules affect the
hours of service requirement for determining the eligibility of airline
flight crew employees, the calculation of leave for those employees,
and the recordkeeping requirements for employers of those employees,
and are issued pursuant to the Airline Flight Crew Technical
Corrections Act (AFCTCA), Public Law 111-119.
(b) Except as otherwise provided in this subpart, FMLA leave for
airline flight crew employees is subject to the requirements of the
FMLA as set forth in Part 825, Subparts A through E, and G.
Sec. 825.801 Special rules for airline flight crew employees, hours
of service requirement.
(a) An airline flight crew employee's eligibility for FMLA leave is
to be determined in accordance with Sec. 825.110 except that whether
an airline flight crew employee meets the hours of service requirement
is to be determined as provided below.
(b) Except as provided in paragraph (c) of this section, whether an
airline flight crew employee meets the hours of service requirement is
determined by assessing the number of hours the employee has worked or
been paid over the previous 12 months. An airline flight crew employee
will meet the hours of service requirement during the previous 12-month
period if he or she has worked or been paid for not less than 60
percent of the employee's applicable monthly guarantee and has worked
or been paid for not less than 504 hours.
(1) The applicable monthly guarantee for an airline flight crew
employee who is not on reserve status is the minimum number of hours
for which an employer has agreed to schedule such employee for any
given month. The applicable monthly guarantee for an airline flight
crew employee who is on reserve status is the number of hours for which
an employer has agreed to pay the employee for any given month.
(2) The hours an airline flight crew employee has worked for
purposes of the hours of service requirement is the employee's duty
hours during the previous 12-month period. The hours an airline flight
crew employee has been paid is the number of hours for which an
employee received wages during the previous 12-month period. The 504
hours do not include personal commute time or time spent on vacation,
medical, or sick leave.
(c) An airline flight crew employee returning from USERRA-covered
service shall be credited with the hours of service that would have
been performed but for the period of absence from work due to or
necessitated by USERRA-covered service in determining the employee's
eligibility for FMLA-qualifying leave. Accordingly, an airline flight
crew employee re-employed following USERRA-covered service has the
hours that would have been worked for or paid by the employer added to
any hours actually worked or paid during the previous 12-month period
to meet the hours of service requirement. In order to determine the
hours that would have been worked or paid during the period of absence
from work due to or necessitated by USERRA-covered service, the
employee's pre-service work
[[Page 8947]]
schedule can generally be used for calculations.
(d) In the event an employer of airline flight crew employees does
not maintain an accurate record of hours worked or hours paid, the
employer has the burden of showing that the employee has not worked or
been paid for the requisite hours. Specifically, an employer must be
able to clearly demonstrate that an airline flight crew employee has
not worked or been paid for 60 percent of his or her applicable monthly
guarantee or for 504 hours during the previous 12 months in order to
claim that the airline flight crew employee is not eligible for FMLA
leave.
Sec. 825.802 Special rules for airline flight crew employees,
calculation of leave.
(a) Amount of leave. (1) An eligible airline flight crew employee
is entitled to 72 days of FMLA leave during any 12-month period for
one, or more, of the FMLA-qualifying reasons set forth in Sec. Sec.
825.112(a)(1)-(5). This entitlement is based on a uniform six-day
workweek for all airline flight crew employees, regardless of time
actually worked or paid, multiplied by the statutory 12-workweek
entitlement for FMLA leave. For example, if an employee took six weeks
of leave for an FMLA-qualifying reason, the employee would use 36 days
(6 days x 6 weeks) of the employee's 72-day entitlement.
(2) An eligible airline flight crew employee is entitled to 156
days of military caregiver leave during a single 12-month period to
care for a covered servicemember with a serious injury or illness under
Sec. 825.112(a)(6). This entitlement is based on a uniform six-day
workweek for all airline flight crew employees, regardless of time
actually worked or paid, multiplied by the statutory 26-workweek
entitlement for military caregiver leave.
(b) Increments of FMLA leave for intermittent or reduced schedule
leave. When an airline flight crew employee takes FMLA leave on an
intermittent or reduced schedule basis, the employer must account for
the leave using an increment no greater than one day. For example, if
an airline flight crew employee needs to take FMLA leave for a two-hour
physical therapy appointment, the employer may require the employee to
use a full day of FMLA leave. The entire amount of leave actually taken
(in this example, one day) is designated as FMLA leave and counts
against the employee's FMLA entitlement.
(c) Application of Sec. 825.205. The rules governing calculation
of intermittent or reduced schedule FMLA leave set forth in Sec.
825.205 do not apply to airline flight crew employees except that
airline flight crew employees are subject to Sec. 825.205(a)(2), the
physical impossibility provision.
Sec. 825.803 Special rules for airline flight crew employees,
recordkeeping requirements.
(a) Employers of eligible airline flight crew employees shall make,
keep, and preserve records in accordance with the requirements of
Subpart E of this Part (Sec. 825.500).
(b) Covered employers of airline flight crew employees are required
to maintain certain additional records ``on file with the Secretary.''
To comply with this requirement, those employers shall maintain:
(1) Records and documents containing information specifying the
applicable monthly guarantee with respect to each category of employee
to whom such guarantee applies, including copies of any relevant
collective bargaining agreements or employer policy documents; and
(2) Records of hours worked and hours paid, as those terms are
defined in Sec. 825.801(b)(2).
|
|
| Leave for adoption or foster care. 825.121
|
| (a) General rules. Eligible employees are entitled to FMLA leave
for placement with the employee of a son or daughter for adoption or
foster care as follows:
(1) Employees may take FMLA leave before the actual placement or
adoption of a child if an absence from work is required for the
placement for adoption or foster care to proceed. For example, the
employee may be required to attend counseling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, submit to a physical examination, or travel to
another country to complete an adoption. The source of an adopted child
(e.g., whether from a licensed placement agency or otherwise) is not a
factor in determining eligibility for leave for this purpose.
(2) An employee's entitlement to leave for adoption or foster care
expires at the end of the 12-month period beginning on the date of the
placement. If state law allows, or the employer permits, leave for
adoption or foster care to be taken beyond this period, such leave will
not qualify as FMLA leave. See Sec. 825.701 regarding non-FMLA leave
which may be available under applicable State laws. Under this section,
the employee is entitled to FMLA leave even if the adopted or foster
child does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for the placement of the employee's son or daughter or to care
for the child after placement, for the birth of the employee's son or
daughter or to care for the child after birth, or to care for the
employee's parent with a serious health condition. This limitation on
the total weeks of leave applies to leave taken for the reasons
specified as long as a husband and wife are employed by the "same
employer." It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newly placed child, each could use an additional 6
weeks due to his or her own serious health condition or to care for a
child with a serious health condition.
(4) An eligible employee is entitled to FMLA leave in order to care
for an adopted or foster child with a serious health condition if the
requirements of Sec. Sec. 825.113 through 825.115 and 825.122(c) are
met. Thus, a husband and wife may each take 12 weeks of FMLA leave if
needed to care for an adopted or foster child with a serious health
condition, even if both are employed by the same employer, provided
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
(b) Use of intermittent and reduced schedule leave. An eligible
employee may use intermittent or reduced schedule leave after the
placement of a healthy child for adoption or foster care only if the
employer agrees. Thus, for example, the employer and employee may agree
to a part-time work schedule after the placement for bonding purposes.
If the employer agrees to permit intermittent or reduced schedule leave
for the placement for adoption or foster care, the employer may require
the employee to transfer temporarily, during the period the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
adopted or foster child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.120 for general rules governing leave for
pregnancy and birth of a child. See Sec. 825.601 for special
rules applicable to instructional employees of schools.
[73 FR 68081, Nov. 17, 2008]
|
|
| Unable to perform the functions of the position. 825.123
|
| (a) Definition. An employee is "unable to perform the functions of
the position" where the health care provider finds that the employee
is unable to work at all or is unable to perform any one of the
essential functions of the employee's position within the meaning of
the Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101
et seq., and the regulations at 29 CFR 1630.2(n). An employee who must
be absent from work to receive medical treatment for a serious health
condition is considered to be unable to perform the essential functions
of the position during the absence for treatment.
(b) Statement of functions. An employer has the option, in
requiring certification from a health care provider, to provide a
statement of the essential functions of the employee's position for the
health care provider to review. A sufficient medical certification must
specify what functions of the employee's position the employee is
unable to perform so that the employer can then determine whether the
employee is unable to perform one or more essential functions of the
employee's position. For purposes of FMLA, the essential functions of
the employee's position are to be determined with reference to the
position the employee held at the time notice is given or leave
commenced, whichever is earlier. See Sec. 825.306.
[73 FR 68082, Nov. 17, 2008]
|
|
| Needed to care for a family member or covered servicemember. 825.124
|
| (a) The medical certification provision that an employee is
"needed to care for" a family member or covered servicemember
encompasses both physical and psychological care. It includes
situations where, for example, because of a serious health condition,
the family member is unable to care for his or her own basic medical,
hygienic, or nutritional needs or safety, or is unable to transport
himself or herself to the doctor. The term also includes providing
psychological comfort and reassurance which would be beneficial to a
child, spouse or parent with a serious health condition who is
receiving inpatient or home care.
(b) The term also includes situations where the employee may be
needed to substitute for others who normally care for the family member
or covered servicemember, or to make arrangements for changes in care,
such as transfer to a nursing home. The employee need not be the only
individual or family member available to care for the family member or
covered servicemember.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member or covered servicemember includes
not only a situation where the condition of the family member or
covered servicemember itself is intermittent, but also where the
employee is only needed intermittently--such as where other care is
normally available, or care responsibilities are shared with another
member of the family or a third party. See Sec. Sec. 825.202 through
825.205 for rules governing the use of intermittent or reduced schedule
leave.
[73 FR 68083, Nov. 17, 2008]
|
|
| Definition of health care provider. 825.125
|
| (a) The Act defines "health care provider" as:
(1) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(2) Any other person determined by the Secretary to be capable of
providing health care services.
(b) Others "capable of providing health care services" include
only:
(1) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(2) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(3) Christian Science Practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts. Where an employee or family
member is receiving treatment from a Christian Science practitioner, an
employee may not object to any requirement from an employer that the
employee or family member submit to examination (though not treatment)
to obtain a second or third certification from a health care provider
other than a Christian Science practitioner except as otherwise
provided under applicable State or local law or collective bargaining
agreement;
(4) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(5) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(c) The phrase "authorized to practice in the State" as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
[73 FR 68083, Nov. 17, 2008]
|
|
| Leave because of a qualifying exigency. 825.126
|
| (a) Eligible employees may take FMLA leave while the employee's
spouse, son, daughter, or parent (the "covered military member") is
on active duty or call to active duty status as defined in Sec.
825.126(b)(2) for one or more of the following qualifying exigencies:
(1) Short-notice deployment.
(i) To address any issue that arises from the fact that a covered
military member is notified of an impending call or order to active
duty in support of a contingency operation seven or less calendar days
prior to the date of deployment;
(ii) Leave taken for this purpose can be used for a period of seven
calendar days beginning on the date a covered military member is
notified of an impending call or order to active duty in support of a
contingency operation;
(2) Military events and related activities.
(i) To attend any official ceremony, program, or event sponsored by
the military that is related to the active duty or call to active duty
status of a covered military member; and
(ii) To attend family support or assistance programs and
informational briefings sponsored or promoted by the military, military
service organizations, or the American Red Cross that are related to
the active duty or call to active duty status of a covered military
member;
(3) Childcare and school activities.
(i) To arrange for alternative childcare when the active duty or
call to active duty status of a covered military member necessitates a
change in the existing childcare arrangement for a biological, adopted,
or foster child, a stepchild, or a legal ward of a covered military
member, or a child for whom a covered military member stands in loco
parentis, who is either under age 18, or age 18 or older and incapable
of self-care because of a mental or physical disability at the time
that FMLA leave is to commence;
(ii) To provide childcare on an urgent, immediate need basis (but
not on a routine, regular, or everyday basis) when the need to provide
such care arises from the active duty or call to active duty status of
a covered military member for a biological, adopted, or foster child, a
stepchild, or a legal ward of a covered military member, or a child for
whom a covered military member stands in loco parentis, who is either
under age 18, or age 18 or older and incapable of self-care because of
a mental or physical disability at the time that FMLA leave is to
commence;
(iii) To enroll in or transfer to a new school or day care facility
a biological, adopted, or foster child, a stepchild, or a legal ward of
the covered military member, or a child for whom the covered military
member stands in loco parentis, who is either under age 18, or age 18
or older and incapable of self-care because of a mental or physical
disability at the time that FMLA leave is to commence, when enrollment
or transfer is necessitated by the active duty or call to active duty
status of a covered military member; and
(iv) To attend meetings with staff at a school or a daycare
facility, such as meetings with school officials regarding disciplinary
measures, parent-teacher conferences, or meetings with school
counselors, for a biological, adopted, or foster child, a stepchild, or
a legal ward of the covered military member, or a child for whom the
covered military member stands in loco parentis, who is either under
age 18, or age 18 or older and incapable of self-care because of a
mental or physical disability at the time that FMLA leave is to
commence, when such meetings are necessary due to circumstances arising
from the active duty or call to active duty status of a covered
military member;
(4) Financial and legal arrangements.
(i) To make or update financial or legal arrangements to address
the covered military member's absence while on active duty or call to
active duty status, such as preparing and executing financial and
healthcare powers of attorney, transferring bank account signature
authority, enrolling in the Defense Enrollment Eligibility Reporting
System (DEERS), obtaining military identification cards, or preparing
or updating a will or living trust; and
(ii) To act as the covered military member's representative before
a federal, state, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the covered military
member is on active duty or call to active duty status, and for a
period of 90 days following the termination of the covered military
member's active duty status;
(5) Counseling. To attend counseling provided by someone other than
a health care provider for oneself, for the covered military member, or
for the biological, adopted, or foster child, a stepchild, or a legal
ward of the covered military member, or a child for whom the covered
military member stands in loco parentis, who is either under age 18, or
age 18 or older and incapable of self-care because of a mental or
physical disability at the time that FMLA leave is to commence,
provided that the need for counseling arises from the active duty or
call to active duty status of a covered military member;
(6) Rest and recuperation.
(i) To spend time with a covered military member who is on short-
term, temporary, rest and recuperation leave during the period of
deployment;
(ii) Eligible employees may take up to five days of leave for each
instance of rest and recuperation;
(7) Post-deployment activities.
(i) To attend arrival ceremonies, reintegration briefings and
events, and any other official ceremony or program sponsored by the
military for a period of 90 days following the termination of the
covered military member's active duty status; and
(ii) To address issues that arise from the death of a covered
military member while on active duty status, such as meeting and
recovering the body of the covered military member and making funeral
arrangements;
(8) Additional activities. To address other events which arise out
of the covered military member's active duty or call to active duty
status provided that the employer and employee agree that such leave
shall qualify as an exigency, and agree to both the timing and duration
of such leave.
(b) A "covered military member" means the employee's spouse, son,
daughter, or parent on active duty or call to active duty status.
(1) A "son or daughter on active duty or call to active duty
status" means the employee's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the employee stood in loco
parentis, who is on active duty or call to active duty status, and who
is of any age.
(2) "Active duty or call to active duty status" means duty under
a call or order to active duty (or notification of an impending call or
order to active duty) in support of a contingency operation pursuant
to: Section 688 of Title 10 of the United States Code, which authorizes
ordering to active duty retired members of the Regular Armed Forces and
members of the retired Reserve who retired after completing at least 20
years of active service; Section 12301(a) of Title 10 of the United
States Code, which authorizes ordering all reserve component members to
active duty in the case of war or national emergency; Section 12302 of
Title 10 of the United States Code, which authorizes ordering any unit
or unassigned member of the Ready Reserve to active duty; Section 12304
of Title 10 of the United States Code, which authorizes ordering any
unit or unassigned member of the Selected Reserve and certain members
of the Individual Ready Reserve to active duty; Section 12305 of Title
10 of the United States Code, which authorizes the suspension of
promotion, retirement or separation rules for certain Reserve
components; Section 12406 of Title 10 of the United States Code, which
authorizes calling the National Guard into federal service in certain
circumstances; chapter 15 of Title 10 of the United States Code, which
authorizes calling the National Guard and state military into federal
service in the case of insurrections and national emergencies; or any
other provision of law during a war or during a national emergency
declared by the President or Congress so long as it is in support of a
contingency operation.
(i) Employees are eligible to take FMLA leave because of a
qualifying exigency when the covered military member is on active duty
or call to active duty status in support of a contingency operation
pursuant to one of the provisions of law identified in paragraph (b)(2)
of this section as either a member of the reserve components (Army
National Guard of the United States, Army Reserve, Navy Reserve, Marine
Corps Reserve, Air National Guard of the United States, Air Force
Reserve and Coast Guard Reserve), or a retired member of the Regular
Armed Forces or Reserve. An employee whose family member is on active
duty or call to active duty status in support of a contingency
operation as a member of the Regular Armed Forces is not eligible to
take leave because of a qualifying exigency.
(ii) A call to active duty for purposes of leave taken because of a
qualifying exigency refers to a Federal call to active duty. State
calls to active duty are not covered unless under order of the
President of the United States pursuant to one of the provisions of law
identified in paragraph (b)(2) of this section in support of a
contingency operation.
(3) The active duty orders of a covered military member will
generally specify if the servicemember is serving in support of a
contingency operation by citation to the relevant section of Title 10
of the United States Code and/or by reference to the specific name of
the contingency operation. A military operation qualifies as a
contingency operation if it:
(i) is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(ii) results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. 10 U.S.C. 101(a)(13).
[73 FR 68083, Nov. 17, 2008]
|
|
| Leave to care for a covered servicemember with a serious injury or illness. 825.127
|
| (a) Eligible employees are entitled to FMLA leave to care for a
current member of the Armed Forces, including a member of the National
Guard or Reserves, or a member of the Armed Forces, the National Guard
or Reserves who is on the temporary disability retired list, who has a
serious injury or illness incurred in the line of duty on active duty
for which he or she is undergoing medical treatment, recuperation, or
therapy; or otherwise in outpatient status; or otherwise on the temporary
disability retired list. Eligible employees may not take leave under this
provision to care for former members of the Armed Forces, former members
of the National Guard and Reserves, and members on the permanent
disability retired list.
(1) A "serious injury or illness" means an injury or illness
incurred by a covered servicemember in the line of duty on active duty
that may render the servicemember medically unfit to perform the duties
of his or her office, grade, rank or rating.
(2) "Outpatient status," with respect to a covered servicemember,
means the status of a member of the Armed Forces assigned to either a
military medical treatment facility as an outpatient; or a unit
established for the purpose of providing command and control of members
of the Armed Forces receiving medical care as outpatients.
(b) In order to care for a covered servicemember, an eligible
employee must be the spouse, son, daughter, or parent, or next of kin
of a covered servicemember.
(1) A "son or daughter of a covered servicemember" means the
covered servicemember's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the covered servicemember
stood in loco parentis, and who is of any age.
(2) A "parent of a covered servicemember" means a covered
servicemember's biological, adoptive, step or foster father or mother,
or any other individual who stood in loco parentis to the covered
servicemember. This term does not include parents "in law."
(3) The "next of kin of a covered servicemember" is the nearest
blood relative, other than the covered servicemember's spouse, parent,
son, or daughter, in the following order of priority: blood relatives
who have been granted legal custody of the servicemember by court
decree or statutory provisions, brothers and sisters, grandparents,
aunts and uncles, and first cousins, unless the covered servicemember
has specifically designated in writing another blood relative as his or
her nearest blood relative for purposes of military caregiver leave
under the FMLA. When no such designation is made, and there are
multiple family members with the same level of relationship to the
covered servicemember, all such family members shall be considered the
covered servicemember's next of kin and may take FMLA leave to provide
care to the covered servicemember, either consecutively or
simultaneously. When such designation has been made, the designated
individual shall be deemed to be the covered servicemember's only next
of kin. For example, if a covered servicemember has three siblings and
has not designated a blood relative to provide care, all three siblings
would be considered the covered servicemember's next of kin.
Alternatively, where a covered servicemember has a sibling(s) and
designates a cousin as his or her next of kin for FMLA purposes, then
only the designated cousin is eligible as the covered servicemember's
next of kin. An employer is permitted to require an employee to provide
confirmation of covered family relationship to the covered
servicemember pursuant to Sec. 825.122(j).
(c) An eligible employee is entitled to 26 workweeks of leave to
care for a covered servicemember with a serious injury or illness
during a "single 12-month period."
(1) The "single 12-month period" described in paragraph (c) of
this section begins on the first day the eligible employee takes FMLA
leave to care for a covered servicemember and ends 12 months after that
date, regardless of the method used by the employer to determine the
employee's 12 workweeks of leave entitlement for other FMLA-qualifying
reasons. If an eligible employee does not take all of his or her 26
workweeks of leave entitlement to care for a covered servicemember
during this "single 12-month period," the remaining part of his or
her 26 workweeks of leave entitlement to care for the covered
servicemember is forfeited.
(2) The leave entitlement described in paragraph (c) of this
section is to be applied on a per-covered-servicemember, per-injury
basis such that an eligible employee may be entitled to take more than
one period of 26 workweeks of leave if the leave is to care for
different covered servicemembers or to care for the same servicemember
with a subsequent serious injury or illness, except that no more than
26 workweeks of leave may be taken within any "single 12-month
period." An eligible employee may take more than one period of 26
workweeks of leave to care for a covered servicemember with more than
one serious injury or illness only when the serious injury or illness
is a subsequent serious injury or illness. When an eligible employee
takes leave to care for more than one covered servicemember or for a
subsequent serious injury or illness of the same covered servicemember,
and the "single 12-month periods" corresponding to the different
military caregiver leave entitlements overlap, the employee is limited
to taking no more than 26 workweeks of leave in each "single 12-month
period."
(3) An eligible employee is entitled to a combined total of 26
workweeks of leave for any FMLA-qualifying reason during the "single
12-month period" described in paragraph (c) of this section, provided
that the employee is entitled to no more than 12 weeks of leave for one
or more of the following: because of the birth of a son or daughter of
the employee and in order to care for such son or daughter; because of
the placement of a son or daughter with the employee for adoption or
foster care; in order to care for the spouse, son, daughter, or parent
with a serious health condition; because of the employee's own serious
health condition; or because of a qualifying exigency. Thus, for
example, an eligible employee may, during the "single 12-month
period," take 16 weeks of FMLA leave to care for a covered
servicemember and 10 weeks of FMLA leave to care for a newborn child.
However, the employee may not take more than 12 weeks of FMLA leave to
care for the newborn child during the "single 12-month period," even
if the employee takes fewer than 14 weeks of FMLA leave to care for a
covered servicemember.
(4) In all circumstances, including for leave taken to care for a
covered servicemember, the employer is responsible for designating
leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the
designation to the employee as provided in Sec. 825.300. In the case
of leave that qualifies as both leave to care for a covered
servicemember and leave to care for a family member with a serious
health condition during the "single 12-month period" described in
paragraph (c) of this section, the employer must designate such leave
as leave to care for a covered servicemember in the first instance.
Leave that qualifies as both leave to care for a covered servicemember
and leave taken to care for a family member with a serious health
condition during the "single 12-month period" described in paragraph
(c) of this section must not be designated and counted as both leave to
care for a covered servicemember and leave to care for a family member
with a serious health condition. As is the case with leave taken for
other qualifying reasons, employers may retroactively designate leave
as leave to care for a covered servicemember pursuant to Sec.
825.301(d).
(d) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 26 workweeks of leave during the "single 12-month period"
described in paragraph (c) of this section if the leave is taken for
birth of the employee's son or daughter or to care for the child after
birth, for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
limitation on the total weeks of leave applies to leave taken for the
reasons specified as long as a husband and wife are employed by the
"same employer." It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 26 workweeks
of FMLA leave.
[73 FR 68084, Nov. 17, 2008]
|
|
| Family & Medical Leave Act Final Rule: Part 1 825.100-825.803
|
| PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993
Subpart A--Coverage Under the Family and Medical Leave Act
Sec.
825.100 The Family and Medical Leave Act.
825.101 Purpose of the Act.
825.102 Definitions.
825.103 [Reserved]
825.104 Covered employer.
825.105 Counting employees for determining coverage.
825.106 Joint employer coverage.
825.107 Successor in interest coverage.
825.108 Public agency coverage.
825.109 Federal agency coverage.
825.110 Eligible employee.
825.111 Determining whether 50 employees are employed within 75
miles.
825.112 Qualifying reasons for leave, general rule.
825.113 Serious health condition.
825.114 Inpatient care.
[[Page 8903]]
825.115 Continuing treatment.
825.116 [Reserved]
825.117 [Reserved]
825.118 [Reserved]
825.119 Leave for treatment of substance abuse.
825.120 Leave for pregnancy or birth.
825.121 Leave for adoption or foster care.
825.122 Definitions of covered servicemember, spouse, parent, son or
daughter, next of kin of a covered servicemember, adoption, foster
care, son or daughter on covered active duty or call to covered
active duty status, son or daughter of a covered servicemember, and
parent of a covered servicemember.
825.123 Unable to perform the functions of the position.
825.124 Needed to care for a family member or covered servicemember.
825.125 Definition of health care provider.
825.126 Leave because of a qualifying exigency.
825.127 Leave to care for a covered servicemember with a serious
injury or illness (military caregiver leave).
Subpart B[m,dash]Employee Leave Entitlements Under the Family and
Medical Leave Act
825.200 Amount of leave.
825.201 Leave to care for a parent.
825.202 Intermittent leave or reduced leave schedule.
825.203 Scheduling of intermittent or reduced schedule leave.
825.204 Transfer of an employee to an alternative position during
intermittent leave or reduced schedule leave.
825.205 Increments of FMLA leave for intermittent or reduced
schedule leave.
825.206 Interaction with the FLSA.
825.207 Substitution of paid leave.
825.208 [Reserved]
825.209 Maintenance of employee benefits.
825.210 Employee payment of group health benefit premiums.
825.211 Maintenance of benefits under multi-employer health plans.
825.212 Employee failure to pay health plan premium payments.
825.213 Employer recovery of benefit costs.
825.214 Employee right to reinstatement.
825.215 Equivalent position.
825.216 Limitations on an employee's right to reinstatement.
825.217 Key employee, general rule.
825.218 Substantial and grievous economic injury.
825.219 Rights of a key employee.
825.220 Protection for employees who request leave or otherwise
assert FMLA rights.
Subpart C--Employee and Employer Rights and Obligations Under the Act
825.300 Employer notice requirements.
825.301 Designation of FMLA leave.
825.302 Employee notice requirements for foreseeable FMLA leave.
825.303 Employee notice requirements for unforeseeable FMLA leave.
825.304 Employee failure to provide notice.
825.305 Certification, general rule.
825.306 Content of medical certification for leave taken because of
an employee's own serious health condition or the serious health
condition of a family member.
825.307 Authentication and clarification of medical certification
for leave taken because of an employee's own serious health
condition or the serious health condition of a family member; second
and third opinions
825.308 Recertifications for leave taken because of an employee's
own serious health condition or the serious health condition of a
family member.
825.309 Certification for leave taken because of a qualifying
exigency.
825.310 Certification for leave taken to care for a covered
servicemember (military caregiver leave).
825.311 Intent to return to work.
825.312 Fitness-for-duty certification.
825.313 Failure to provide certification.
Subpart D--Enforcement Mechanisms
825.400 Enforcement, general rules.
825.401 Filing a complaint with the Federal Government.
825.402 Violations of the posting requirement.
825.403 Appealing the assessment of a penalty for willful violation
of the posting requirement.
825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
Subpart E--Recordkeeping Requirements
825.500 Recordkeeping requirements.
Subpart F--Special Rules Applicable to Employees of Schools
825.600 Special rules for school employees, definitions.
825.601 Special rules for school employees, limitations on
intermittent leave.
825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
825.603 Special rules for school employees, duration of FMLA leave.
825.604 Special rules for school employees, restoration to ``an
equivalent position.''
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
825.700 Interaction with employer's policies.
825.701 Interaction with State laws.
825.702 Interaction with Federal and State anti-discrimination laws.
Subpart H--Definitions Special Rules Applicable to Airline Flight Crew
Employees
825.800 Definitions. Special rules for airline flight crew
employees, general.
825.801 Special rules for airline flight crew employees, hours of
service requirement.
825.802 Special rules for airline flight crew employees, calculation
of leave.
825.803 Special rules for airline flight crew employees,
recordkeeping requirements.
Authority: 29 U.S.C. 2654.
Subpart A--Coverage Under the Family and Medical Leave Act
Sec. 825.100 The Family and Medical Leave Act.
(a) The Family and Medical Leave Act of 1993, as amended, (FMLA or
Act) allows eligible employees of a covered employer to take job-
protected, unpaid leave, or to substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 12 workweeks in
any 12 months (see Sec. 825.200(b)) because of the birth of a child
and to care for the newborn child, because of the placement of a child
with the employee for adoption or foster care, because the employee is
needed to care for a family member (child, spouse, or parent) with a
serious health condition, because the employee's own serious health
condition makes the employee unable to perform the functions of his or
her job, or because of any qualifying exigency arising out of the fact
that the employee's spouse, son, daughter, or parent is a military
member on active duty or call to covered active duty status (or has
been notified of an impending call or order to covered active duty). In
addition, eligible employees of a covered employer may take job-
protected, unpaid leave, or substitute appropriate paid leave if the
employee has earned or accrued it, for up to a total of 26 workweeks in
a single 12-month period to care for a covered servicemember with a
serious injury or illness. In certain cases, FMLA leave may be taken on
an intermittent basis rather than all at once, or the employee may work
a part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employer may recover
its share only if the employee does not return to work for a reason
other than the serious health condition of the employee or the
employee's covered family member, the serious injury or illness of a
covered servicemember, or another reason beyond the employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits, and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employer generally has a right to advance notice from the
employee. In
[[Page 8904]]
addition, the employer may require an employee to submit certification
to substantiate that the leave is due to the serious health condition
of the employee or the employee's covered family member, due to the
serious injury or illness of a covered servicemember, or because of a
qualifying exigency. Failure to comply with these requirements may
result in a delay in the start of FMLA leave. Pursuant to a uniformly
applied policy, the employer may also require that an employee present
a certification of fitness to return to work when the absence was
caused by the employee's serious health condition (see Sec. Sec.
825.312 and 825.313). The employer may delay restoring the employee to
employment without such certificate relating to the health condition
which caused the employee's absence.
Sec. 825.101 Purpose of the Act.
(a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, for the care of a child, spouse, or
parent who has a serious health condition, for the care of a covered
servicemember with a serious injury or illness, or because of a
qualifying exigency arising out of the fact that the employee's spouse,
son, daughter, or parent is a military member on covered active duty or
call to covered active duty status. The Act is intended to balance the
demands of the workplace with the needs of families, to promote the
stability and economic security of families, and to promote national
interests in preserving family integrity. It was intended that the Act
accomplish these purposes in a manner that accommodates the legitimate
interests of employers, and in a manner consistent with the Equal
Protection Clause of the Fourteenth Amendment in minimizing the
potential for employment discrimination on the basis of sex, while
promoting equal employment opportunity for men and women.
(b) The FMLA was predicated on two fundamental concerns--the needs
of the American workforce, and the development of high-performance
organizations. Increasingly, America's children and elderly are
dependent upon family members who must spend long hours at work. When a
family emergency arises, requiring workers to attend to seriously-ill
children or parents, or to newly-born or adopted infants, or even to
their own serious illness, workers need reassurance that they will not
be asked to choose between continuing their employment, and meeting
their personal and family obligations or tending to vital needs at
home.
(c) The FMLA is both intended and expected to benefit employers as
well as their employees. A direct correlation exists between stability
in the family and productivity in the workplace. FMLA will encourage
the development of high-performance organizations. When workers can
count on durable links to their workplace they are able to make their
own full commitments to their jobs. The record of hearings on family
and medical leave indicate the powerful productive advantages of stable
workplace relationships, and the comparatively small costs of
guaranteeing that those relationships will not be dissolved while
workers attend to pressing family health obligations or their own
serious illness.
Sec. 825.102 Definitions.
For purposes of this part:
Act or FMLA means the Family and Medical Leave Act of 1993, Public
Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq., as
amended).
ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et
seq., as amended).
Administrator means the Administrator of the Wage and Hour
Division, U.S. Department of Labor, and includes any official of the
Wage and Hour Division authorized to perform any of the functions of
the Administrator under this part.
Airline flight crew employee means an airline flight crewmember or
flight attendant as those terms are defined in regulations of the
Federal Aviation Administration. See also Sec. 825.800(a).
Applicable monthly guarantee means:
(1) For an airline flight crew employee who is not on reserve
status (line holder), the minimum number of hours for which an employer
has agreed to schedule such employee for any given month; and
(2) For an airline flight crew employee who is on reserve status,
the number of hours for which an employer has agreed to pay the
employee for any given month. See also Sec. 825.801(b)(1).
COBRA means the continuation coverage requirements of Title X of
the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended
(Pub. L. 99-272, title X, section 10002; 100 Stat 227; 29 U.S.C. 1161-
1168).
Commerce and industry or activity affecting commerce mean any
activity, business, or industry in commerce or in which a labor dispute
would hinder or obstruct commerce or the free flow of commerce, and
include ``commerce'' and any ``industry affecting commerce'' as defined
in sections 501(1) and 501(3) of the Labor Management Relations Act of
1947, 29 U.S.C. 142(1) and (3).
Contingency operation means a military operation that:
(1) Is designated by the Secretary of Defense as an operation in
which members of the Armed Forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(2) Results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10 of the United States Code,
chapter 15 of Title 10 of the United States Code, or any other
provision of law during a war or during a national emergency declared
by the President or Congress. See also Sec. 825.126(a)(2).
Continuing treatment by a health care provider means any one of the
following:
(1) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(i) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(ii) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(iii) The requirement in paragraphs (i) and (ii) of this definition
for treatment by a health care provider means an in-person visit to a
health care provider. The first in-person treatment visit must take
place within seven days of the first day of incapacity.
(iv) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(v) The term ``extenuating circumstances'' in paragraph (i) means
circumstances beyond the employee's control that prevent the follow-up
visit from occurring as planned by the health care provider. Whether a
given set of circumstances are extenuating depends on the facts. See
also Sec. 825.115(a)(5).
[[Page 8905]]
(2) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(3) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(i) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(ii) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(iii) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(5) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(i) Restorative surgery after an accident or other injury; or
(ii) A condition that would likely result in a period of incapacity
of more than three consecutive full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), kidney disease
(dialysis).
(6) Absences attributable to incapacity under paragraphs (2) or (3)
of this definition qualify for FMLA leave even though the employee or
the covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
Covered active duty or call to covered active duty status means:
(1) In the case of a member of the Regular Armed Forces, duty
during the deployment of the member with the Armed Forces to a foreign
country; and,
(2) In the case of a member of the Reserve components of the Armed
Forces, duty during the deployment of the member with the Armed Forces
to a foreign country under a Federal call or order to active duty in
support of a contingency operation pursuant to: Section 688 of Title 10
of the United States Code, which authorizes ordering to active duty
retired members of the Regular Armed Forces and members of the retired
Reserve who retired after completing at least 20 years of active
service; Section 12301(a) of Title 10 of the United States Code, which
authorizes ordering all reserve component members to active duty in the
case of war or national emergency; Section 12302 of Title 10 of the
United States Code, which authorizes ordering any unit or unassigned
member of the Ready Reserve to active duty; Section 12304 of Title 10
of the United States Code, which authorizes ordering any unit or
unassigned member of the Selected Reserve and certain members of the
Individual Ready Reserve to active duty; Section 12305 of Title 10 of
the United States Code, which authorizes the suspension of promotion,
retirement or separation rules for certain Reserve components; Section
12406 of Title 10 of the United States Code, which authorizes calling
the National Guard into Federal service in certain circumstances;
chapter 15 of Title 10 of the United States Code, which authorizes
calling the National Guard and state military into Federal service in
the case of insurrections and national emergencies; or any other
provision of law during a war or during a national emergency declared
by the President or Congress so long as it is in support of a
contingency operation. See 10 U.S.C. 101(a)(13)(B). See also Sec.
825.126(a).
Covered servicemember means:
(1) A current member of the Armed Forces, including a member of the
National Guard or Reserves, who is undergoing medical treatment,
recuperation, or therapy, is otherwise in outpatient status, or is
otherwise on the temporary disability retired list, for a serious
injury or illness, or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness.
Covered veteran means an individual who was a member of the Armed
Forces (including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. See Sec.
825.127(b)(2).
Eligible employee means:
(1) An employee who has been employed for a total of at least 12
months by the employer on the date on which any FMLA leave is to
commence, except that an employer need not consider any period of
previous employment that occurred more than seven years before the date
of the most recent hiring of the employee, unless:
(i) The break in service is occasioned by the fulfillment of the
employee's Uniformed Services Employment and Reemployment Rights Act
(USERRA), 38 U.S.C. 4301, et seq., covered service obligation (the
period of absence from work due to or necessitated by USERRA-covered
service must be also counted in determining whether the employee has
been employed for at least 12 months by the employer, but this section
does not provide any greater entitlement to the employee than would be
available under the USERRA; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes); and
(2) Who, on the date on which any FMLA leave is to commence, has
met the hours of service requirement by having been employed for at
least 1,250 hours of service with such employer during the previous 12-
month period, or for an airline flight crew employee, in the previous
12 months, having worked or been paid for not less than 60 percent of
the applicable total monthly guarantee and having worked or been paid
for not less than 504 hours, not counting personal commute time, or
vacation, medical or sick leave (see Sec. 825.801(b)), except that:
(i) An employee returning from fulfilling his or her USERRA-covered
service obligation shall be credited with the hours of service that
would have been performed but for the period of absence from work due
to or necessitated by USERRA-covered service in determining whether the
employee met the hours of service requirement (accordingly, a person
reemployed following absence from work due to or necessitated by
USERRA-covered service has the hours that would have been worked for
the employer (or, for an airline flight crew employee, would have been
worked for or paid by the employer) added to any hours actually worked
(or, for an airline
[[Page 8906]]
flight crew employee, actually worked or paid) during the previous 12-
month period to meet the hours of service requirement); and
(ii) To determine the hours that would have been worked (or, for an
airline flight crew employee, would have been worked or paid) during
the period of absence from work due to or necessitated by USERRA-
covered service, the employee's pre-service work schedule can generally
be used for calculations; and
(3) Who is employed in any State of the United States, the District
of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of
Representatives or the United States Senate covered by the
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which
the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that worksite is
also fewer than 50.
(7) Excludes any employee employed in any country other than the
United States or any Territory or possession of the United States.
Employ means to suffer or permit to work.
Employee has the meaning given the same term as defined in section
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
(1) The term employee means any individual employed by an employer;
(2) In the case of an individual employed by a public agency,
employee means--
(i) Any individual employed by the Government of the United
States--
(A) As a civilian in the military departments (as defined in
section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5,
United States Code), excluding any Federal officer or employee covered
under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the
Government which has positions in the competitive service, excluding
any employee of the United States House of Representatives or the
United States Senate who is covered by the Congressional Accountability
Act of 1995,
(D) In a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, or
(ii) Any individual employed by the United States Postal Service or
the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of
a State, or an interstate governmental agency, other than such an
individual--
(A) Who is not subject to the civil service laws of the State,
political subdivision, or agency which employs the employee; and
(B) Who--
(1) Holds a public elective office of that State, political
subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of
his personal staff,
(3) Is appointed by such an officeholder to serve on a policymaking
level,
(4) Is an immediate adviser to such an officeholder with respect to
the constitutional or legal powers of the office of such officeholder,
or
(5) Is an employee in the legislative branch or legislative body of
that State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency.
Employee employed in an instructional capacity. See the definition
of Teacher in this section.
Employer means any person engaged in commerce or in an industry or
activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current
or preceding calendar year, and includes--
(1) Any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
Employment benefits means all benefits provided or made available
to employees by an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are
provided by a practice or written policy of an employer or through an
employee benefit plan as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term
does not include non-employment related obligations paid by employees
through voluntary deductions such as supplemental insurance coverage.
See also Sec. 825.209(a).
FLSA means the Fair Labor Standards Act (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) to provide health care
(directly or otherwise) to the employer's employees, former employees,
or the families of such employees or former employees. For purposes of
FMLA the term group health plan shall not include an insurance program
providing health coverage under which employees purchase individual
policies from insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without endorsing the program, to permit the insurer to publicize
the program to employees, to collect premiums through payroll
deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
Health care provider means:
(1) The Act defines health care provider as:
(i) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(ii) Any other person determined by the Secretary to be capable of
providing health care services.
(2) Others ``capable of providing health care services'' include
only:
(i) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(ii) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
|
|
| Family & Medical Leave Act Final Rule: Part 2 825.100-825.803
|
| (iii) Christian Science Practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts. Where an employee or
family member is
[[Page 8907]]
receiving treatment from a Christian Science practitioner, an employee
may not object to any requirement from an employer that the employee or
family member submit to examination (though not treatment) to obtain a
second or third certification from a health care provider other than a
Christian Science practitioner except as otherwise provided under
applicable State or local law or collective bargaining agreement.
(iv) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(3) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Incapable of self-care means that the individual requires active
assistance or supervision to provide daily self-care in several of the
``activities of daily living'' (ADLs) or ``instrumental activities of
daily living'' (IADLs). Activities of daily living include adaptive
activities such as caring appropriately for one's grooming and hygiene,
bathing, dressing and eating. Instrumental activities of daily living
include cooking, cleaning, shopping, taking public transportation,
paying bills, maintaining a residence, using telephones and
directories, using a post office, etc.
Instructional employee: See the definition of Teacher in this
section.
Intermittent leave means leave taken in separate periods of time
due to a single illness or injury, rather than for one continuous
period of time, and may include leave of periods from an hour or more
to several weeks. Examples of intermittent leave would include leave
taken on an occasional basis for medical appointments, or leave taken
several days at a time spread over a period of six months, such as for
chemotherapy.
Invitational travel authorization (ITA) or Invitational travel
order (ITO) are orders issued by the Armed Forces to a family member to
join an injured or ill servicemember at his or her bedside. See also
Sec. 825.310(e).
Key employee means a salaried FMLA-eligible employee who is among
the highest paid 10 percent of all the employees employed by the
employer within 75 miles of the employee's worksite. See also Sec.
825.217.
Mental disability: See the definition of Physical or mental
disability in this section.
Military caregiver leave means leave taken to care for a covered
servicemember with a serious injury or illness under the Family and
Medical Leave Act of 1993. See also Sec. 825.127.
Next of kin of a covered servicemember means the nearest blood
relative other than the covered servicemember's spouse, parent, son, or
daughter, in the following order of priority: blood relatives who have
been granted legal custody of the covered servicemember by court decree
or statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood relative as his or her
nearest blood relative for purposes of military caregiver leave under
the FMLA. When no such designation is made, and there are multiple
family members with the same level of relationship to the covered
servicemember, all such family members shall be considered the covered
servicemember's next of kin and may take FMLA leave to provide care to
the covered servicemember, either consecutively or simultaneously. When
such designation has been made, the designated individual shall be
deemed to be the covered servicemember's only next of kin. See also
Sec. 825.127(d)(3).
Outpatient status means, with respect to a covered servicemember
who is a current member of the Armed Forces, the status of a member of
the Armed Forces assigned to either a military medical treatment
facility as an outpatient; or a unit established for the purpose of
providing command and control of members of the Armed Forces receiving
medical care as outpatients. See also Sec. 825.127(b)(1).
Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter as defined below. This
term does not include parents ``in law.''
Parent of a covered servicemember means a covered servicemember's
biological, adoptive, step or foster father or mother, or any other
individual who stood in loco parentis to the covered servicemember.
This term does not include parents ``in law.'' See also Sec.
825.127(d)(2).
Person means an individual, partnership, association, corporation,
business trust, legal representative, or any organized group of
persons, and includes a public agency for purposes of this part.
Physical or mental disability means a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual. Regulations at 29 CFR part 1630, issued by the Equal
Employment Opportunity Commission under the Americans with Disabilities
Act (ADA), 42 U.S.C. 12101 et seq., as amended, define these terms.
Public agency means the government of the United States; the
government of a State or political subdivision thereof; any agency of
the United States (including the United States Postal Service and
Postal Regulatory Commission), a State, or a political subdivision of a
State, or any interstate governmental agency. Under section 101(5)(B)
of the Act, a public agency is considered to be a ``person'' engaged in
commerce or in an industry or activity affecting commerce within the
meaning of the Act.
Reduced leave schedule means a leave schedule that reduces the
usual number of hours per workweek, or hours per workday, of an
employee.
Reserve components of the Armed Forces, for purposes of qualifying
exigency leave, include the Army National Guard of the United States,
Army Reserve, Navy Reserve, Marine Corps Reserve, Air National Guard of
the United States, Air Force Reserve, and Coast Guard Reserve, and
retired members of the Regular Armed Forces or Reserves who are called
up in support of a contingency operation. See also Sec.
825.126(a)(2)(i).
Secretary means the Secretary of Labor or authorized
representative.
Serious health condition means an illness, injury, impairment or
physical or mental condition that involves inpatient care as defined in
Sec. 825.114 or continuing treatment by a health care provider as
defined in Sec. 825.115. Conditions for which cosmetic treatments are
administered (such as most treatments for acne or plastic surgery) are
not serious health conditions unless inpatient hospital care is
required or unless complications develop. Restorative dental or plastic
surgery after an injury or removal of cancerous growths are serious
health conditions provided all the other conditions of this regulation
are met. Mental illness or allergies may be serious health conditions,
but only if all the conditions of Sec. 825.113 are met.
Serious injury or illness means: (1) In the case of a current
member of the Armed Forces, including a member of the National Guard or
Reserves, an injury or illness that was incurred by the covered
servicemember in the line
[[Page 8908]]
of duty on active duty in the Armed Forces or that existed before the
beginning of the member's active duty and was aggravated by service in
the line of duty on active duty in the Armed Forces and that may render
the servicemember medically unfit to perform the duties of the member's
office, grade, rank, or rating; and
(2) In the case of a covered veteran, an injury or illness that was
incurred by the member in the line of duty on active duty in the Armed
Forces (or existed before the beginning of the member's active duty and
was aggravated by service in the line of duty on active duty in the
Armed Forces) and manifested itself before or after the member became a
veteran, and is:
(i) A continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) A physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service-Related
Disability Rating (VASRD) of 50 percent or greater, and such VASRD
rating is based, in whole or in part, on the condition precipitating
the need for military caregiver leave; or
(iii) A physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(iv) An injury, including a psychological injury, on the basis of
which the covered veteran has been enrolled in the Department of
Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers. See also Sec. 825.127(c).
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''
at the time that FMLA leave is to commence.
Son or daughter of a covered servicemember means a covered
servicemember's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the covered servicemember stood in loco
parentis, and who is of any age. See also Sec. 825.127(d)(1).
Son or daughter on covered active duty or call to covered active
duty status means the employee's biological, adopted, or foster child,
stepchild, legal ward, or a child for whom the employee stood in loco
parentis, who is on covered active duty or call to covered active duty
status, and who is of any age. See also Sec. 825.126(a)(5).
Spouse means a husband or wife as defined or recognized under State
law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.
State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
Teacher (or employee employed in an instructional capacity, or
instructional employee) means an employee employed principally in an
instructional capacity by an educational agency or school whose
principal function is to teach and instruct students in a class, a
small group, or an individual setting, and includes athletic coaches,
driving instructors, and special education assistants such as signers
for the hearing impaired. The term does not include teacher assistants
or aides who do not have as their principal function actual teaching or
instructing, nor auxiliary personnel such as counselors, psychologists,
curriculum specialists, cafeteria workers, maintenance workers, bus
drivers, or other primarily noninstructional employees.
TRICARE is the health care program serving active duty
servicemembers, National Guard and Reserve members, retirees, their
families, survivors, and certain former spouses worldwide.
Sec. 825.103 [Reserved]
Sec. 825.104 Covered employer.
(a) An employer covered by FMLA is any person engaged in commerce
or in any industry or activity affecting commerce, who employs 50 or
more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year. Employers covered
by FMLA also include any person acting, directly or indirectly, in the
interest of a covered employer to any of the employees of the employer,
any successor in interest of a covered employer, and any public agency.
Public agencies are covered employers without regard to the number of
employees employed. Public as well as private elementary and secondary
schools are also covered employers without regard to the number of
employees employed. See Sec. 825.600.
(b) The terms commerce and industry affecting commerce are defined
in accordance with section 501(1) and (3) of the Labor Management
Relations Act of 1947 (LMRA) (29 U.S.C. 142 (1) and (3)), as set forth
in the definitions at Sec. 825.800 of this part. For purposes of the
FMLA, employers who meet the 50-employee coverage test are deemed to be
engaged in commerce or in an industry or activity affecting commerce.
(c) Normally the legal entity which employs the employee is the
employer under FMLA. Applying this principle, a corporation is a single
employer rather than its separate establishments or divisions.
(1) Where one corporation has an ownership interest in another
corporation, it is a separate employer unless it meets the joint
employment test discussed in Sec. 825.106, or the integrated employer
test contained in paragraph (c)(2) of this section.
(2) Separate entities will be deemed to be parts of a single
employer for purposes of FMLA if they meet the integrated employer
test. Where this test is met, the employees of all entities making up
the integrated employer will be counted in determining employer
coverage and employee eligibility. A determination of whether or not
separate entities are an integrated employer is not determined by the
application of any single criterion, but rather the entire relationship
is to be reviewed in its totality. Factors considered in determining
whether two or more entities are an integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.
(d) An employer includes any person who acts directly or indirectly
in the interest of an employer to any of the employer's employees. The
definition of employer in section 3(d) of the Fair Labor Standards Act
(FLSA), 29 U.S.C. 203(d), similarly includes any person acting directly
or indirectly in the interest of an employer in relation to an
employee. As under the FLSA, individuals such as corporate officers
``acting in the interest of an employer'' are individually liable for
any violations of the requirements of FMLA.
Sec. 825.105 Counting employees for determining coverage.
(a) The definition of employ for purposes of FMLA is taken from the
Fair Labor Standards Act, Sec. 3(g), 29 U.S.C. 203(g). The courts have
made it clear that the employment relationship under the FLSA is
broader than the traditional common law concept of master and servant.
The difference between the employment relationship under the FLSA and
that under the common law
[[Page 8909]]
arises from the fact that the term ``employ'' as defined in the Act
includes ``to suffer or permit to work.'' The courts have indicated
that, while ``to permit'' requires a more positive action than ``to
suffer,'' both terms imply much less positive action than required by
the common law. Mere knowledge by an employer of work done for the
employer by another is sufficient to create the employment relationship
under the Act. The courts have said that there is no definition that
solves all problems as to the limitations of the employer-employee
relationship under the Act; and that determination of the relation
cannot be based on isolated factors or upon a single characteristic or
technical concepts, but depends ``upon the circumstances of the whole
activity'' including the underlying ``economic reality.'' In general an
employee, as distinguished from an independent contractor who is
engaged in a business of his/her own, is one who ``follows the usual
path of an employee'' and is dependent on the business which he/she
serves.
(b) Any employee whose name appears on the employer's payroll will
be considered employed each working day of the calendar week, and must
be counted whether or not any compensation is received for the week.
However, the FMLA applies only to employees who are employed within any
State of the United States, the District of Columbia or any Territory
or possession of the United States. Employees who are employed outside
these areas are not counted for purposes of determining employer
coverage or employee eligibility.
(c) Employees on paid or unpaid leave, including FMLA leave, leaves
of absence, disciplinary suspension, etc., are counted as long as the
employer has a reasonable expectation that the employee will later
return to active employment. If there is no employer/employee
relationship (as when an employee is laid off, whether temporarily or
permanently) such individual is not counted. Part-time employees, like
full-time employees, are considered to be employed each working day of
the calendar week, as long as they are maintained on the payroll.
(d) An employee who does not begin to work for an employer until
after the first working day of a calendar week, or who terminates
employment before the last working day of a calendar week, is not
considered employed on each working day of that calendar week.
(e) A private employer is covered if it maintained 50 or more
employees on the payroll during 20 or more calendar workweeks (not
necessarily consecutive workweeks) in either the current or the
preceding calendar year.
(f) Once a private employer meets the 50 employees/20 workweeks
threshold, the employer remains covered until it reaches a future point
where it no longer has employed 50 employees for 20 (nonconsecutive)
workweeks in the current and preceding calendar year. For example, if
an employer who met the 50 employees/20 workweeks test in the calendar
year as of September 1, 2008, subsequently dropped below 50 employees
before the end of 2008 and continued to employ fewer than 50 employees
in all workweeks throughout calendar year 2009, the employer would
continue to be covered throughout calendar year 2009 because it met the
coverage criteria for 20 workweeks of the preceding (i.e., 2008)
calendar year.
Sec. 825.106 Joint employer coverage.
(a) Where two or more businesses exercise some control over the
work or working conditions of the employee, the businesses may be joint
employers under FMLA. Joint employers may be separate and distinct
entities with separate owners, managers, and facilities. Where the
employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during
the workweek, a joint employment relationship generally will be
considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee's services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest
of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control
of the employee, directly or indirectly, because one employer controls,
is controlled by, or is under common control with the other employer.
(b)(1) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when a temporary placement agency supplies employees to a second
employer.
(2) A type of company that is often called a Professional Employer
Organization (PEO) contracts with client employers to perform
administrative functions such as payroll, benefits, regulatory
paperwork, and updating employment policies. The determination of
whether a PEO is a joint employer also turns on the economic realities
of the situation and must be based upon all the facts and
circumstances. A PEO does not enter into a joint employment
relationship with the employees of its client companies when it merely
performs such administrative functions. On the other hand, if in a
particular fact situation, a PEO has the right to hire, fire, assign,
or direct and control the client's employees, or benefits from the work
that the employees perform, such rights may lead to a determination
that the PEO would be a joint employer with the client employer,
depending upon all the facts and circumstances.
(c) In joint employment relationships, only the primary employer is
responsible for giving required notices to its employees, providing
FMLA leave, and maintenance of health benefits. Factors considered in
determining which is the primary employer include authority/
responsibility to hire and fire, assign/place the employee, make
payroll, and provide employment benefits. For employees of temporary
placement agencies, for example, the placement agency most commonly
would be the primary employer. Where a PEO is a joint employer, the
client employer most commonly would be the primary employer.
(d) Employees jointly employed by two employers must be counted by
both employers, whether or not maintained on one of the employer's
payroll, in determining employer coverage and employee eligibility. For
example, an employer who jointly employs 15 workers from a temporary
placement agency and 40 permanent workers is covered by FMLA. (A
special rule applies to employees jointly employed who physically work
at a facility of the secondary employer for a period of at least one
year. See Sec. 825.111(a)(3).) An employee on leave who is working for
a secondary employer is considered employed by the secondary employer,
and must be counted for coverage and eligibility purposes, as long as
the employer has a reasonable expectation that that employee will
return to employment with that employer. In those cases in which a PEO
is determined to be a joint employer of a client employer's employees,
the client employer would only be required to count employees of the
PEO (or employees of other clients of the PEO) if the client employer
jointly employed those employees.
[[Page 8910]]
(e) Job restoration is the primary responsibility of the primary
employer. The secondary employer is responsible for accepting the
employee returning from FMLA leave in place of the replacement employee
if the secondary employer continues to utilize an employee from the
temporary placement agency, and the agency chooses to place the
employee with the secondary employer. A secondary employer is also
responsible for compliance with the prohibited acts provisions with
respect to its jointly employed employees, whether or not the secondary
employer is covered by FMLA. See Sec. 825.220(a). The prohibited acts
include prohibitions against interfering with an employee's attempt to
exercise rights under the Act, or discharging or discriminating against
an employee for opposing a practice which is unlawful under FMLA. A
covered secondary employer will be responsible for compliance with all
the provisions of the FMLA with respect to its regular, permanent
workforce.
Sec. 825.107 Successor in interest coverage.
(a) For purposes of FMLA, in determining whether an employer is
covered because it is a ``successor in interest'' to a covered
employer, the factors used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Adjustment Act will be considered. However,
unlike Title VII, whether the successor has notice of the employee's
claim is not a consideration. Notice may be relevant, however, in
determining successor liability for violations of the predecessor. The
factors to be considered include:
(1) Substantial continuity of the same business 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 not determined by the application of any single criterion,
but rather the entire circumstances are to be viewed in their totality.
(c) When an employer is a successor in interest, employees'
entitlements are the same as if the employment by the predecessor and
successor were continuous employment by a single employer. For example,
the successor, whether or not it meets FMLA coverage criteria, must
grant leave for eligible employees who had provided appropriate notice
to the predecessor, or continue leave begun while employed by the
predecessor, including maintenance of group health benefits during the
leave and job restoration at the conclusion of the leave. A successor
which meets FMLA's coverage criteria must count periods of employment
and hours of service with the predecessor for purposes of determining
employee eligibility for FMLA leave.
Sec. 825.108 Public agency coverage.
(a) An employer under FMLA includes any public agency, as defined
in section 3(x) of the Fair Labor Standards Act, 29 U.S.C. 203(x).
Section 3(x) of the FLSA defines public agency as the government of the
United States; the government of a State or political subdivision of a
State; or an agency of the United States, a State, or a political
subdivision of a State, or any interstate governmental agency. State is
further defined in Section 3(c) of the FLSA to include any State of the
United States, the District of Columbia, or any Territory or possession
of the United States.
(b) The determination of whether an entity is a public agency, as
distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. Whether two agencies of the same State or local government
constitute the same public agency can only be determined on a case-by-
case basis. One factor that would support a conclusion that two
agencies are separate is whether they are treated separately for
statistical purposes in the Census of Governments issued by the Bureau
of the Census, U.S. Department of Commerce.
(2) The Census Bureau takes a census of governments at five-year
intervals. Volume I, Government Organization, contains the official
counts of the number of State and local governments. It includes
tabulations of governments by State, type of government, size, and
county location. Also produced is a universe list of governmental
units, classified according to type of government. Copies of Volume I,
Government Organization, and subsequent volumes are available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, U.S. Department of Commerce District Offices, or
can be found in Regional and selective depository libraries, or online
at http://www.census.gov/govs/www/index.html. For a list of all
depository libraries, write to the Government Printing Office, 710 N.
Capitol St. NW., Washington, DC 20402.
(d) All public agencies are covered by the FMLA regardless of the
number of employees; they are not subject to the coverage threshold of
50 employees carried on the payroll each day for 20 or more weeks in a
year. However, employees of public agencies must meet all of the
requirements of eligibility, including the requirement that the
employer (e.g., State) employ 50 employees at the worksite or within 75
miles.
|
|
| Family & Medical Leave Act Final Rule: Part 3 825.100-825.803
|
| Sec. 825.109 Federal agency coverage.
(a) Most employees of the government of the United States, if they
are covered by the FMLA, are covered under Title II of the FMLA
(incorporated in Title V, Chapter 63, Subchapter 5 of the United States
Code) which is administered by the U.S. Office of Personnel Management
(OPM). OPM has separate regulations at 5 CFR Part 630, Subpart L.
Employees of the Government Printing Office are covered by Title II.
While employees of the Government Accountability Office and the Library
of Congress are covered by Title I of the FMLA, the Comptroller General
of the United States and the Librarian of Congress, respectively, have
responsibility for the administration of the FMLA with respect to these
employees. Other legislative branch employees, such as employees of the
Senate and House of Representatives, are covered by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
(b) The Federal Executive Branch employees within the jurisdiction
of these regulations include:
(1) Employees of the Postal Service;
(2) Employees of the Postal Regulatory Commission;
(3) A part-time employee who does not have an established regular
tour of duty during the administrative workweek; and,
(4) An employee serving under an intermittent appointment or
temporary appointment with a time limitation of one year or less.
(c) Employees of other Federal executive agencies are also covered
by
[[Page 8911]]
these regulations if they are not covered by Title II of FMLA.
(d) Employees of the judicial branch of the United States are
covered by these regulations only if they are employed in a unit which
has employees in the competitive service. For example, employees of the
U.S. Tax Court are covered by these regulations.
(e) For employees covered by these regulations, the U.S. Government
constitutes a single employer for purposes of determining employee
eligibility. These employees must meet all of the requirements for
eligibility, including the requirement that the Federal Government
employ 50 employees at the worksite or within 75 miles.
Sec. 825.110 Eligible employee.
(a) An eligible employee is an employee of a covered employer who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the leave
(see Sec. 825.801 for special hours of service requirements for
airline flight crew employees), and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. See Sec.
825.105(b) regarding employees who work outside the U.S.
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months, provided
(1) Subject to the exceptions provided in paragraph (b)(2) of this
section, employment periods prior to a break in service of seven years
or more need not be counted in determining whether the employee has
been employed by the employer for at least 12 months.
(2) Employment periods preceding a break in service of more than
seven years must be counted in determining whether the employee has
been employed by the employer for at least 12 months where:
(i) The employee's break in service is occasioned by the
fulfillment of his or her Uniformed Services Employment and
Reemployment Rights Act (USERRA), 38 U.S.C. 4301, et seq., covered
service obligation. The period of absence from work due to or
necessitated by USERRA-covered service must be also counted in
determining whether the employee has been employed for at least 12
months by the employer. However, this section does not provide any
greater entitlement to the employee than would be available under the
USERRA; or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) If an employee is maintained on the payroll for any part of a
week, including any periods of paid or unpaid leave (sick, vacation)
during which other benefits or compensation are provided by the
employer (e.g., workers' compensation, group health plan benefits,
etc.), the week counts as a week of employment. For purposes of
determining whether intermittent/occasional/casual employment qualifies
as at least 12 months, 52 weeks is deemed to be equal to 12 months.
(4) Nothing in this section prevents employers from considering
employment prior to a continuous break in service of more than seven
years when determining whether an employee has met the 12-month
employment requirement. However, if an employer chooses to recognize
such prior employment, the employer must do so uniformly, with respect
to all employees with similar breaks in service.
(c)(1) Except as provided in paragraph (c)(2) of this section and
in Sec. 825.801 containing the special hours of service requirement
for airline flight crew employees, whether an employee has worked the
minimum 1,250 hours of service is determined according to the
principles established under the Fair Labor Standards Act (FLSA) for
determining compensable hours of work. See 29 CFR part 785. The
determining factor is the number of hours an employee has worked for
the employer within the meaning of the FLSA. The determination is not
limited by methods of recordkeeping, or by compensation agreements that
do not accurately reflect all of the hours an employee has worked for
or been in service to the employer. Any accurate accounting of actual
hours worked under FLSA's principles may be used.
(2) An employee returning from USERRA-covered service shall be
credited with the hours of service that would have been performed but
for the period of absence from work due to or necessitated by USERRA-
covered service in determining the employee's eligibility for FMLA-
qualifying leave. Accordingly, a person reemployed following USERRA-
covered service has the hours that would have been worked for the
employer added to any hours actually worked during the previous 12-
month period to meet the hours of service requirement. In order to
determine the hours that would have been worked during the period of
absence from work due to or necessitated by USERRA-covered service, the
employee's pre-service work schedule can generally be used for
calculations. See Sec. 825.801(c) for special rules applicable to
airline flight crew employees.
(3) In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
An employer must be able to clearly demonstrate, for example, that
full-time teachers (see Sec. 825.102 for definition) of an elementary
or secondary school system, or institution of higher education, or
other educational establishment or institution (who often work outside
the classroom or at their homes) did not work 1,250 hours during the
previous 12 months in order to claim that the teachers are not eligible
for FMLA leave. See Sec. 825.801(d) for special rules applicable to
airline flight crew employees.
(d) The determination of whether an employee meets the hours of
service requirement and has been employed by the employer for a total
of at least 12 months must be made as of the date the FMLA leave is to
start. An employee may be on non-FMLA leave at the time he or she meets
the 12-month eligibility requirement, and in that event, any portion of
the leave taken for an FMLA-qualifying reason after the employee meets
the eligibility requirement would be FMLA leave. See Sec. 825.300(b)
for rules governing the content of the eligibility notice given to
employees.
(e) Whether 50 employees are employed within 75 miles to ascertain
an employee's eligibility for FMLA benefits is determined when the
employee gives notice of the need for leave. Whether the leave is to be
taken at one time or on an intermittent or reduced leave schedule
basis, once an employee is determined eligible in response to that
notice of the need for leave, the employee's eligibility is not
affected by any subsequent change in the number of employees employed
at or within 75 miles of the employee's worksite, for that specific
notice of the need for leave. Similarly, an employer may not terminate
employee leave that has already started if the employee count drops
below 50. For example, if an employer employs 60 employees in August,
but expects that the number of
[[Page 8912]]
employees will drop to 40 in December, the employer must grant FMLA
benefits to an otherwise eligible employee who gives notice of the need
for leave in August for a period of leave to begin in December.
Sec. 825.111 Determining whether 50 employees are employed within 75
miles.
(a) Generally, a worksite can refer to either a single location or
a group of contiguous locations. Structures which form a campus or
industrial park, or separate facilities in proximity with one another,
may be considered a single site of employment. On the other hand, there
may be several single sites of employment within a single building,
such as an office building, if separate employers conduct activities
within the building. For example, an office building with 50 different
businesses as tenants will contain 50 sites of employment. The offices
of each employer will be considered separate sites of employment for
purposes of FMLA. An employee's worksite under FMLA will ordinarily be
the site the employee reports to or, if none, from which the employee's
work is assigned.
(1) Separate buildings or areas which are not directly connected or
in immediate proximity are a single worksite if they are in reasonable
geographic proximity, are used for the same purpose, and share the same
staff and equipment. For example, if an employer manages a number of
warehouses in a metropolitan area but regularly shifts or rotates the
same employees from one building to another, the multiple warehouses
would be a single worksite.
(2) For employees with no fixed worksite, e.g., construction
workers, transportation workers (e.g., truck drivers, seamen, pilots),
salespersons, etc., the worksite is the site to which they are assigned
as their home base, from which their work is assigned, or to which they
report. For example, if a construction company headquartered in New
Jersey opened a construction site in Ohio, and set up a mobile trailer
on the construction site as the company's on-site office, the
construction site in Ohio would be the worksite for any employees hired
locally who report to the mobile trailer/company office daily for work
assignments, etc. If that construction company also sent personnel such
as job superintendents, foremen, engineers, an office manager, etc.,
from New Jersey to the job site in Ohio, those workers sent from New
Jersey continue to have the headquarters in New Jersey as their
worksite. The workers who have New Jersey as their worksite would not
be counted in determining eligibility of employees whose home base is
the Ohio worksite, but would be counted in determining eligibility of
employees whose home base is New Jersey. For transportation employees,
their worksite is the terminal to which they are assigned, report for
work, depart, and return after completion of a work assignment. For
example, an airline pilot may work for an airline with headquarters in
New York, but the pilot regularly reports for duty and originates or
begins flights from the company's facilities located in an airport in
Chicago and returns to Chicago at the completion of one or more flights
to go off duty. The pilot's worksite is the facility in Chicago. An
employee's personal residence is not a worksite in the case of
employees, such as salespersons, who travel a sales territory and who
generally leave to work and return from work to their personal
residence, or employees who work at home, as under the concept of
flexiplace or telecommuting. Rather, their worksite is the office to
which they report and from which assignments are made.
(3) For purposes of determining that employee's eligibility, when
an employee is jointly employed by two or more employers (see Sec.
825.106), the employee's worksite is the primary employer's office from
which the employee is assigned or reports, unless the employee has
physically worked for at least one year at a facility of a secondary
employer, in which case the employee's worksite is that location. The
employee is also counted by the secondary employer to determine
eligibility for the secondary employer's full-time or permanent
employees.
(b) The 75-mile distance is measured by surface miles, using
surface transportation over public streets, roads, highways and
waterways, by the shortest route from the facility where the employee
needing leave is employed. Absent available surface transportation
between worksites, the distance is measured by using the most
frequently utilized mode of transportation (e.g., airline miles).
(c) The determination of how many employees are employed within 75
miles of the worksite of an employee is based on the number of
employees maintained on the payroll. Employees of educational
institutions who are employed permanently or who are under contract are
maintained on the payroll during any portion of the year when school is
not in session. See Sec. 825.105(c).
Sec. 825.112 Qualifying reasons for leave, general rule.
(a) Circumstances qualifying for leave. Employers covered by FMLA
are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child (see Sec. 825.120);
(2) For placement with the employee of a son or daughter for
adoption or foster care (see Sec. 825.121);
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition (see Sec. Sec. 825.113 and 825.122);
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job (see Sec. Sec.
825.113 and 825.123);
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a military member on
covered active duty (or has been notified of an impending call or order
to covered active duty status (see Sec. Sec. 825.122 and 825.126); and
(6) To care for a covered servicemember with a serious injury or
illness if the employee is the spouse, son, daughter, parent, or next
of kin of the covered servicemember. See Sec. Sec. 825.122 and
825.127.
(b) Equal application. The right to take leave under FMLA applies
equally to male and female employees. A father, as well as a mother,
can take family leave for the birth, placement for adoption, or foster
care of a child.
(c) Active employee. In situations where the employer/employee
relationship has been interrupted, such as an employee who has been on
layoff, the employee must be recalled or otherwise be re-employed
before being eligible for FMLA leave. Under such circumstances, an
eligible employee is immediately entitled to further FMLA leave for a
qualifying reason.
Sec. 825.113 Serious health condition.
(a) For purposes of FMLA, serious health condition entitling an
employee to FMLA leave means an illness, injury, impairment or physical
or mental condition that involves inpatient care as defined in Sec.
825.114 or continuing treatment by a health care provider as defined in
Sec. 825.115.
(b) The term incapacity means inability to work, attend school or
perform other regular daily activities due to the serious health
condition, treatment therefore, or recovery therefrom.
(c) The term treatment includes (but is not limited to)
examinations to
[[Page 8913]]
determine if a serious health condition exists and evaluations of the
condition. Treatment does not include routine physical examinations,
eye examinations, or dental examinations. A regimen of continuing
treatment includes, for example, a course of prescription medication
(e.g., an antibiotic) or therapy requiring special equipment to resolve
or alleviate the health condition (e.g., oxygen). A regimen of
continuing treatment that includes the taking of over-the-counter
medications such as aspirin, antihistamines, or salves; or bed-rest,
drinking fluids, exercise, and other similar activities that can be
initiated without a visit to a health care provider, is not, by itself,
sufficient to constitute a regimen of continuing treatment for purposes
of FMLA leave.
(d) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic surgery) are not serious health
conditions unless inpatient hospital care is required or unless
complications develop. Ordinarily, unless complications arise, the
common cold, the flu, ear aches, upset stomach, minor ulcers, headaches
other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet
the definition of a serious health condition and do not qualify for
FMLA leave. Restorative dental or plastic surgery after an injury or
removal of cancerous growths are serious health conditions provided all
the other conditions of this regulation are met. Mental illness or
allergies may be serious health conditions, but only if all the
conditions of this section are met.
Sec. 825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or
residential medical care facility, including any period of incapacity
as defined in Sec. 825.113(b), or any subsequent treatment in
connection with such inpatient care.
Sec. 825.115 Continuing treatment.
A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than
three consecutive, full calendar days, and any subsequent treatment or
period of incapacity relating to the same condition, that also
involves:
(1) Treatment two or more times, within 30 days of the first day of
incapacity, unless extenuating circumstances exist, by a health care
provider, by a nurse under direct supervision of a health care
provider, or by a provider of health care services (e.g., physical
therapist) under orders of, or on referral by, a health care provider;
or
(2) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(3) The requirement in paragraphs (a)(1) and (2) of this section
for treatment by a health care provider means an in-person visit to a
health care provider. The first (or only) in-person treatment visit
must take place within seven days of the first day of incapacity.
(4) Whether additional treatment visits or a regimen of continuing
treatment is necessary within the 30-day period shall be determined by
the health care provider.
(5) The term extenuating circumstances in paragraph (a)(1) of this
section means circumstances beyond the employee's control that prevent
the follow-up visit from occurring as planned by the health care
provider. Whether a given set of circumstances are extenuating depends
on the facts. For example, extenuating circumstances exist if a health
care provider determines that a second in-person visit is needed within
the 30-day period, but the health care provider does not have any
available appointments during that time period.
(b) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(c) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(d) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity
of more than three consecutive, full calendar days in the absence of
medical intervention or treatment, such as cancer (chemotherapy,
radiation, etc.), severe arthritis (physical therapy), or kidney
disease (dialysis).
(f) Absences attributable to incapacity under paragraph (b) or (c)
of this section qualify for FMLA leave even though the employee or the
covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive, full calendar days. For example, an employee
with asthma may be unable to report for work due to the onset of an
asthma attack or because the employee's health care provider has
advised the employee to stay home when the pollen count exceeds a
certain level. An employee who is pregnant may be unable to report to
work because of severe morning sickness.
Sec. 825.116 [Reserved]
Sec. 825.117 [Reserved]
Sec. 825.118 [Reserved]
Sec. 825.119 Leave for treatment of substance abuse.
(a) Substance abuse may be a serious health condition if the
conditions of Sec. Sec. 825.113 through 825.115 are met. However, FMLA
leave may only be taken for treatment for substance abuse by a health
care provider or by a provider of health care services on referral by a
health care provider. On the other hand, absence because of the
employee's use of the substance, rather than for treatment, does not
qualify for FMLA leave.
(b) Treatment for substance abuse does not prevent an employer from
taking employment action against an employee. The employer may not take
action against the employee because the employee has exercised his or
her right to take FMLA leave for treatment. However, if the employer
has an established policy, applied in a non-discriminatory manner that
has been communicated to all employees, that provides under certain
circumstances an employee may be terminated for
[[Page 8914]]
substance abuse, pursuant to that policy the employee may be terminated
whether or not the employee is presently taking FMLA leave. An employee
may also take FMLA leave to care for a covered family member who is
receiving treatment for substance abuse. The employer may not take
action against an employee who is providing care for a covered family
member receiving treatment for substance abuse.
Sec. 825.120 Leave for pregnancy or birth.
(a) General rules. Eligible employees are entitled to FMLA leave
for pregnancy or birth of a child as follows:
(1) Both the mother and father are entitled to FMLA leave for the
birth of their child.
(2) Both the mother and father are entitled to FMLA leave to be
with the healthy newborn child (i.e., bonding time) during the 12-month
period beginning on the date of birth. An employee's entitlement to
FMLA leave for a birth expires at the end of the 12-month period
beginning on the date of the birth. If state law allows, or the
employer permits, bonding leave to be taken beyond this period, such
leave will not qualify as FMLA leave. See Sec. 825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under
this section, both the mother and father are entitled to FMLA leave
even if the newborn does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for birth of the employee's son or daughter or to care for the
child after birth, for placement of a son or daughter with the employee
for adoption or foster care or to care for the child after placement,
or to care for the employee's parent with a serious health condition.
This limitation on the total weeks of leave applies to leave taken for
the reasons specified as long as a husband and wife are employed by the
same employer. It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took six weeks of leave to
care for a healthy, newborn child, each could use an additional six
weeks due to his or her own serious health condition or to care for a
child with a serious health condition. Note, too, that many State
pregnancy disability laws specify a period of disability either before
or after the birth of a child; such periods would also be considered
FMLA leave for a serious health condition of the mother, and would not
be subject to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother is
entitled to leave for incapacity due to pregnancy even though she does
not receive treatment from a health care provider during the absence,
and even if the absence does not last for more than three consecutive
calendar days. For example, a pregnant employee may be unable to report
to work because of severe morning sickness.
(5) The husband is entitled to FMLA leave if needed to care for his
pregnant spouse who is incapacitated or if needed to care for her
during her prenatal care, or if needed to care for the spouse following
the birth of a child if the spouse has a serious health condition. See
Sec. 825.124.
(6) Both the mother and father are entitled to FMLA leave if needed
to care for a child with a serious health condition if the requirements
of Sec. Sec. 825.113 through 825.115 and 825.122(d) are met. Thus, a
husband and wife may each take 12 weeks of FMLA leave if needed to care
for their newborn child with a serious health condition, even if both
are employed by the same employer, provided they have not exhausted
their entitlements during the applicable 12-month FMLA leave period.
(b) Intermittent and reduced schedule leave. An eligible employee
may use intermittent or reduced schedule leave after the birth to be
with a healthy newborn child only if the employer agrees. For example,
an employer and employee may agree to a part-time work schedule after
the birth. If the employer agrees to permit intermittent or reduced
schedule leave for the birth of a child, the employer may require the
employee to transfer temporarily, during the period the intermittent or
reduced leave schedule is required, to an available alternative
position for which the employee is qualified and which better
accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, Federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
mother or newborn child. See Sec. Sec. 825.202--825.205 for general
rules governing the use of intermittent and reduced schedule leave. See
Sec. 825.121 for rules governing leave for adoption or foster care.
See Sec. 825.601 for special rules applicable to instructional
employees of schools. See Sec. 825.802 for special rules applicable to
airline flight crew employees.
|
|
| Family & Medical Leave Act Final Rule: Part 4 825.100-825.803
|
| Sec. 825.121 Leave for adoption or foster care.
(a) General rules. Eligible employees are entitled to FMLA leave
for placement with the employee of a son or daughter for adoption or
foster care as follows:
(1) Employees may take FMLA leave before the actual placement or
adoption of a child if an absence from work is required for the
placement for adoption or foster care to proceed. For example, the
employee may be required to attend counseling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, submit to a physical examination, or travel to
another country to complete an adoption. The source of an adopted child
(e.g., whether from a licensed placement agency or otherwise) is not a
factor in determining eligibility for leave for this purpose.
(2) An employee's entitlement to leave for adoption or foster care
expires at the end of the 12-month period beginning on the date of the
placement. If state law allows, or the employer permits, leave for
adoption or foster care to be taken beyond this period, such leave will
not qualify as FMLA leave. See Sec. 825.701 regarding non-FMLA leave
which may be available under applicable State laws. Under this section,
the employee is entitled to
[[Page 8915]]
FMLA leave even if the adopted or foster child does not have a serious
health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for the placement of the employee's son or daughter or to care
for the child after placement, for the birth of the employee's son or
daughter or to care for the child after birth, or to care for the
employee's parent with a serious health condition. This limitation on
the total weeks of leave applies to leave taken for the reasons
specified as long as a husband and wife are employed by the same
employer. It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took six weeks of leave to
care for a healthy, newly placed child, each could use an additional
six weeks due to his or her own serious health condition or to care for
a child with a serious health condition.
(4) An eligible employee is entitled to FMLA leave in order to care
for an adopted or foster child with a serious health condition if the
requirements of Sec. Sec. 825.113 through 825.115 and 825.122(d) are
met. Thus, a husband and wife may each take 12 weeks of FMLA leave if
needed to care for an adopted or foster child with a serious health
condition, even if both are employed by the same employer, provided
they have not exhausted their entitlements during the applicable 12-
month FMLA leave period.
(b) Use of intermittent and reduced schedule leave. An eligible
employee may use intermittent or reduced schedule leave after the
placement of a healthy child for adoption or foster care only if the
employer agrees. Thus, for example, the employer and employee may agree
to a part-time work schedule after the placement for bonding purposes.
If the employer agrees to permit intermittent or reduced schedule leave
for the placement for adoption or foster care, the employer may require
the employee to transfer temporarily, during the period the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
adopted or foster child. See Sec. Sec. 825.202-825.205 for general
rules governing the use of intermittent and reduced schedule leave. See
Sec. 825.120 for general rules governing leave for pregnancy and birth
of a child. See Sec. 825.601 for special rules applicable to
instructional employees of schools. See Sec. 825.802 for special rules
applicable to airline flight crew employees.
Sec. 825.122 Definitions of covered servicemember, spouse, parent,
son or daughter, next of kin of a covered servicemember, adoption,
foster care, son or daughter on covered active duty or call to covered
active duty status, son or daughter of a covered servicemember, and
parent of a covered servicemember.
(a) Covered servicemember means: (1) A current member of the Armed
Forces, including a member of the National Guard or Reserves, who is
undergoing medical treatment, recuperation or therapy, is otherwise in
outpatient status, or is otherwise on the temporary disability retired
list, for a serious injury or illness; or
(2) A covered veteran who is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness. Covered
veteran means an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. See Sec.
825.127(b)(2).
(b) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where it is
recognized.
(c) Parent. Parent means a biological, adoptive, step or foster
father or mother, or any other individual who stood in loco parentis to
the employee when the employee was a son or daughter as defined in
paragraph (d) of this section. This term does not include parents ``in
law.''
(d) Son or daughter. For purposes of FMLA leave taken for birth or
adoption, or to care for a family member with a serious health
condition, son or daughter means a biological, adopted, or foster
child, a stepchild, a legal ward, or a child of a person standing in
loco parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''
at the time that FMLA leave is to commence.
(1) Incapable of self-care means that the individual requires
active assistance or supervision to provide daily self-care in three or
more of the activities of daily living (ADLs) or instrumental
activities of daily living (IADLs). Activities of daily living include
adaptive activities such as caring appropriately for one's grooming and
hygiene, bathing, dressing and eating. Instrumental activities of daily
living include cooking, cleaning, shopping, taking public
transportation, paying bills, maintaining a residence, using telephones
and directories, using a post office, etc.
(2) Physical or mental disability means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and
(j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms.
(3) Persons who are ``in loco parentis'' include those with day-to-
day responsibilities to care for and financially support a child, or,
in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
(e) Next of kin of a covered servicemember means the nearest blood
relative other than the covered servicemember's spouse, parent, son, or
daughter, in the following order of priority: blood relatives who have
been granted legal custody of the covered servicemember by court decree
or statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood relative as his or her
nearest blood relative for purposes of military caregiver leave under
the FMLA. When
[[Page 8916]]
no such designation is made, and there are multiple family members with
the same level of relationship to the covered servicemember, all such
family members shall be considered the covered servicemember's next of
kin and may take FMLA leave to provide care to the covered
servicemember, either consecutively or simultaneously. When such
designation has been made, the designated individual shall be deemed to
be the covered servicemember's only next of kin. See Sec.
825.127(d)(3).
(f) Adoption means legally and permanently assuming the
responsibility of raising a child as one's own. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for FMLA leave.
See Sec. 825.121 for rules governing leave for adoption.
(g) Foster care means 24-hour care for children in substitution
for, and away from, their parents or guardian. Such placement is made
by or with the agreement of the State as a result of a voluntary
agreement between the parent or guardian that the child be removed from
the home, or pursuant to a judicial determination of the necessity for
foster care, and involves agreement between the State and foster family
that the foster family will take care of the child. Although foster
care may be with relatives of the child, State action is involved in
the removal of the child from parental custody. See Sec. 825.121 for
rules governing leave for foster care.
(h) Son or daughter on covered active duty or call to covered
active duty status means the employee's biological, adopted, or foster
child, stepchild, legal ward, or a child for whom the employee stood in
loco parentis, who is on covered active duty or call to covered active
duty status, and who is of any age. See Sec. 825.126(a)(5).
(i) Son or daughter of a covered servicemember means the covered
servicemember's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the covered servicemember stood in loco
parentis, and who is of any age. See Sec. 825.127(d)(1).
(j) Parent of a covered servicemember means a covered
servicemember's biological, adoptive, step or foster father or mother,
or any other individual who stood in loco parentis to the covered
servicemember. This term does not include parents ``in law.'' See Sec.
825.127(d)(2).
(k) Documenting relationships. For purposes of confirmation of
family relationship, the employer may require the employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a simple statement from the employee, or a child's birth
certificate, a court document, etc. The employer is entitled to examine
documentation such as a birth certificate, etc., but the employee is
entitled to the return of the official document submitted for this
purpose.
Sec. 825.123 Unable to perform the functions of the position.
(a) Definition. An employee is unable to perform the functions of
the position where the health care provider finds that the employee is
unable to work at all or is unable to perform any one of the essential
functions of the employee's position within the meaning of the
Americans with Disabilities Act (ADA), as amended, 42 U.S.C. 12101 et
seq., and the regulations at 29 CFR 1630.2(n). An employee who must be
absent from work to receive medical treatment for a serious health
condition is considered to be unable to perform the essential functions
of the position during the absence for treatment.
(b) Statement of functions. An employer has the option, in
requiring certification from a health care provider, to provide a
statement of the essential functions of the employee's position for the
health care provider to review. A sufficient medical certification must
specify what functions of the employee's position the employee is
unable to perform so that the employer can then determine whether the
employee is unable to perform one or more essential functions of the
employee's position. For purposes of FMLA, the essential functions of
the employee's position are to be determined with reference to the
position the employee held at the time notice is given or leave
commenced, whichever is earlier. See Sec. 825.306.
Sec. 825.124 Needed to care for a family member or covered
servicemember.
(a) The medical certification provision that an employee is needed
to care for a family member or covered servicemember encompasses both
physical and psychological care. It includes situations where, for
example, because of a serious health condition, the family member is
unable to care for his or her own basic medical, hygienic, or
nutritional needs or safety, or is unable to transport himself or
herself to the doctor. The term also includes providing psychological
comfort and reassurance which would be beneficial to a child, spouse or
parent with a serious health condition who is receiving inpatient or
home care.
(b) The term also includes situations where the employee may be
needed to substitute for others who normally care for the family member
or covered servicemember, or to make arrangements for changes in care,
such as transfer to a nursing home. The employee need not be the only
individual or family member available to care for the family member or
covered servicemember.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member or covered servicemember includes
not only a situation where the condition of the family member or
covered servicemember itself is intermittent, but also where the
employee is only needed intermittently--such as where other care is
normally available, or care responsibilities are shared with another
member of the family or a third party. See Sec. Sec. 825.202-825.205
for rules governing the use of intermittent or reduced schedule leave.
Sec. 825.125 Definition of health care provider.
(a) The Act defines health care provider as:
(1) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(2) Any other person determined by the Secretary to be capable of
providing health care services.
(b) Others capable of providing health care services include only:
(1) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(2) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(3) Christian Science Practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts. Where an employee or family
member is receiving treatment from a Christian Science practitioner, an
employee may not object to any requirement from an employer that the
employee or family member submit to examination (though not treatment)
to obtain a second or third certification from a health care
[[Page 8917]]
provider other than a Christian Science practitioner except as
otherwise provided under applicable State or local law or collective
bargaining agreement;
(4) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(5) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(c) The phrase authorized to practice in the State as used in this
section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Sec. 825.126 Leave because of a qualifying exigency.
(a) Eligible employees may take FMLA leave for a qualifying
exigency while the employee's spouse, son, daughter, or parent (the
military member or member) is on covered active duty or call to covered
active duty status (or has been notified of an impending call or order
to covered active duty).
(1) Covered active duty or call to covered active duty status in
the case of a member of the Regular Armed Forces means duty during the
deployment of the member with the Armed Forces to a foreign country.
The active duty orders of a member of the Regular components of the
Armed Forces will generally specify if the member is deployed to a
foreign country.
(2) Covered active duty or call to covered active duty status in
the case of a member of the Reserve components of the Armed Forces
means duty during the deployment of the member with the Armed Forces to
a foreign country under a Federal call or order to active duty in
support of a contingency operation pursuant to: Section 688 of Title 10
of the United States Code, which authorizes ordering to active duty
retired members of the Regular Armed Forces and members of the retired
Reserve who retired after completing at least 20 years of active
service; Section 12301(a) of Title 10 of the United States Code, which
authorizes ordering all reserve component members to active duty in the
case of war or national emergency; Section 12302 of Title 10 of the
United States Code, which authorizes ordering any unit or unassigned
member of the Ready Reserve to active duty; Section 12304 of Title 10
of the United States Code, which authorizes ordering any unit or
unassigned member of the Selected Reserve and certain members of the
Individual Ready Reserve to active duty; Section 12305 of Title 10 of
the United States Code, which authorizes the suspension of promotion,
retirement or separation rules for certain Reserve components; Section
12406 of Title 10 of the United States Code, which authorizes calling
the National Guard into Federal service in certain circumstances;
chapter 15 of Title 10 of the United States Code, which authorizes
calling the National Guard and state military into Federal service in
the case of insurrections and national emergencies; or any other
provision of law during a war or during a national emergency declared
by the President or Congress so long as it is in support of a
contingency operation. See 10 U.S.C. 101(a)(13)(B).
(i) For purposes of covered active duty or call to covered active
duty status, the Reserve components of the Armed Forces include the
Army National Guard of the United States, Army Reserve, Navy Reserve,
Marine Corps Reserve, Air National Guard of the United States, Air
Force Reserve and Coast Guard Reserve, and retired members of the
Regular Armed Forces or Reserves who are called up in support of a
contingency operation pursuant to one of the provisions of law
identified in paragraph (a)(2).
(ii) The active duty orders of a member of the Reserve components
will generally specify if the military member is serving in support of
a contingency operation by citation to the relevant section of Title 10
of the United States Code and/or by reference to the specific name of
the contingency operation and will specify that the deployment is to a
foreign country.
(3) Deployment of the member with the Armed Forces to a foreign
country means deployment to areas outside of the United States, the
District of Columbia, or any Territory or possession of the United
States, including international waters.
(4) A call to covered active duty for purposes of leave taken
because of a qualifying exigency refers to a Federal call to active
duty. State calls to active duty are not covered unless under order of
the President of the United States pursuant to one of the provisions of
law identified in paragraph (a)(2) of this section.
(5) Son or daughter on covered active duty or call to covered
active duty status means the employee's biological, adopted, or foster
child, stepchild, legal ward, or a child for whom the employee stood in
loco parentis, who is on covered active duty or call to covered active
duty status, and who is of any age.
(b) An eligible employee may take FMLA leave for one or more of the
following qualifying exigencies:
(1) Short-notice deployment. (i) To address any issue that arises
from the fact that the military member is notified of an impending call
or order to covered active duty seven or less calendar days prior to
the date of deployment;
(ii) Leave taken for this purpose can be used for a period of seven
calendar days beginning on the date the military member is notified of
an impending call or order to covered active duty;
(2) Military events and related activities. (i) To attend any
official ceremony, program, or event sponsored by the military that is
related to the covered active duty or call to covered active duty
status of the military member; and
(ii) To attend family support or assistance programs and
informational briefings sponsored or promoted by the military, military
service organizations, or the American Red Cross that are related to
the covered active duty or call to covered active duty status of the
military member;
(3) Childcare and school activities. For the purposes of leave for
childcare and school activities listed in (i) through (iv) of this
paragraph, a child of the military member must be the military member's
biological, adopted, or foster child, stepchild, legal ward, or child
for whom the military member stands in loco parentis, who is either
under 18 years of age or 18 years of age or older and incapable of
self-care because of a mental or physical disability at the time that
FMLA leave is to commence. As with all instances of qualifying exigency
leave, the military member must be the spouse, son, daughter, or parent
of the employee requesting qualifying exigency leave.
(i) To arrange for alternative childcare for a child of the
military member when the covered active duty or call to covered active
duty status of the military member necessitates a change in the
existing childcare arrangement;
(ii) To provide childcare for a child of the military member on an
urgent, immediate need basis (but not on a routine, regular, or
everyday basis) when the need to provide such care arises from the
covered active duty or call to covered active duty status of the
military member;
(iii) To enroll in or transfer to a new school or day care facility
a child of the military member when enrollment or transfer is
necessitated by the covered active duty or call to covered active duty
status of the military member; and
[[Page 8918]]
(iv) To attend meetings with staff at a school or a daycare
facility, such as meetings with school officials regarding disciplinary
measures, parent-teacher conferences, or meetings with school
counselors, for a child of the military member, when such meetings are
necessary due to circumstances arising from the covered active duty or
call to covered active duty status of the military member;
(4) Financial and legal arrangements. (i) To make or update
financial or legal arrangements to address the military member's
absence while on covered active duty or call to covered active duty
status, such as preparing and executing financial and healthcare powers
of attorney, transferring bank account signature authority, enrolling
in the Defense Enrollment Eligibility Reporting System (DEERS),
obtaining military identification cards, or preparing or updating a
will or living trust; and
(ii) To act as the military member's representative before a
federal, state, or local agency for purposes of obtaining, arranging,
or appealing military service benefits while the military member is on
covered active duty or call to covered active duty status, and for a
period of 90 days following the termination of the military member's
covered active duty status;
(5) Counseling. To attend counseling provided by someone other than
a health care provider, for oneself, for the military member, or for
the biological, adopted, or foster child, a stepchild, or a legal ward
of the military member, or a child for whom the military member stands
in loco parentis, who is either under age 18, or age 18 or older and
incapable of self-care because of a mental or physical disability at
the time that FMLA leave is to commence, provided that the need for
counseling arises from the covered active duty or call to covered
active duty status of the military member;
(6) Rest and Recuperation. (i) To spend time with the military
member who is on short-term, temporary, Rest and Recuperation leave
during the period of deployment;
(ii) Leave taken for this purpose can be used for a period of 15
calendar days beginning on the date the military member commences each
instance of Rest and Recuperation leave;
(7) Post-deployment activities. (i) To attend arrival ceremonies,
reintegration briefings and events, and any other official ceremony or
program sponsored by the military for a period of 90 days following the
termination of the military member's covered active duty status; and
(ii) To address issues that arise from the death of the military
member while on covered active duty status, such as meeting and
recovering the body of the military member, making funeral
arrangements, and attending funeral services;
(8) Parental care. For purposes of leave for parental care listed
in (i) through (iv) of this paragraph, the parent of the military
member must be incapable of self-care and must be the military member's
biological, adoptive, step, or foster father or mother, or any other
individual who stood in loco parentis to the military member when the
member was under 18 years of age. A parent who is incapable of self-
care means that the parent requires active assistance or supervision to
provide daily self-care in three or more of the activities of daily
living or instrumental activities of daily living. Activities of daily
living include adaptive activities such as caring appropriately for
one's grooming and hygiene, bathing, dressing, and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc. As with all
instances of qualifying exigency leave, the military member must be the
spouse, son, daughter, or parent of the employee requesting qualifying
exigency leave.
(i) To arrange for alternative care for a parent of the military
member when the parent is incapable of self-care and the covered active
duty or call to covered active duty status of the military member
necessitates a change in the existing care arrangement for the parent;
(ii) To provide care for a parent of the military member on an
urgent, immediate need basis (but not on a routine, regular, or
everyday basis) when the parent is incapable of self-care and the need
to provide such care arises from the covered active duty or call to
covered active duty status of the military member;
(iii) To admit to or transfer to a care facility a parent of the
military member when admittance or transfer is necessitated by the
covered active duty or call to covered active duty status of the
military member; and
(iv) To attend meetings with staff at a care facility, such as
meetings with hospice or social service providers for a parent of the
military member, when such meetings are necessary due to circumstances
arising from the covered active duty or call to covered active duty
status of the military member but not for routine or regular meetings;
(9) Additional activities. To address other events which arise out
of the military member's covered active duty or call to covered active
duty status provided that the employer and employee agree that such
leave shall qualify as an exigency, and agree to both the timing and
duration of such leave.
|
|
| Family & Medical Leave Act Final Rule: Part 5 825.100-825.803
|
| Sec. 825.127 Leave to care for a covered servicemember with a serious
injury or illness (military caregiver leave).
(a) Eligible employees are entitled to FMLA leave to care for a
covered servicemember with a serious illness or injury.
(b) Covered servicemember means:
(1) A current member of the Armed Forces, including a member of the
National Guard or Reserves, who is undergoing medical treatment,
recuperation, or therapy, is otherwise in outpatient status; or is
otherwise on the temporary disability retired list, for a serious
injury or illness. Outpatient status means the status of a member of
the Armed Forces assigned to either a military medical treatment
facility as an outpatient or a unit established for the purpose of
providing command and control of members of the Armed Forces receiving
medical care as outpatients.
(2) A covered veteran who is undergoing medical treatment,
recuperation or therapy for a serious injury or illness. Covered
veteran means an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves), and was
discharged or released under conditions other than dishonorable at any
time during the five-year period prior to the first date the eligible
employee takes FMLA leave to care for the covered veteran. An eligible
employee must commence leave to care for a covered veteran within five
years of the veteran's active duty service, but the single 12-month
period described in paragraph (e)(1) of this section may extend beyond
the five-year period.
(i) For an individual who was a member of the Armed Forces
(including a member of the National Guard or Reserves) and who was
discharged or released under conditions other than dishonorable prior
to the effective date of this Final Rule, the period between October
28, 2009 and the effective date of this Final Rule shall not count
towards the determination of the five-year period for covered veteran
status.
(c) A serious injury or illness means:
(1) In the case of a current member of the Armed Forces, including
a member of the National Guard or Reserves, means an injury or illness
that was incurred by the covered servicemember in the line of duty on
active duty in the
[[Page 8919]]
Armed Forces or that existed before the beginning of the member's
active duty and was aggravated by service in the line of duty on active
duty in the Armed Forces, and that may render the member medically
unfit to perform the duties of the member's office, grade, rank or
rating; and,
(2) In the case of a covered veteran, means an injury or illness
that was incurred by the member in the line of duty on active duty in
the Armed Forces (or existed before the beginning of the member's
active duty and was aggravated by service in the line of duty on active
duty in the Armed Forces) and manifested itself before or after the
member became a veteran, and is:
(i) a continuation of a serious injury or illness that was incurred
or aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember unable to perform the duties of the
servicemember's office, grade, rank, or rating; or
(ii) a physical or mental condition for which the covered veteran
has received a U.S. Department of Veterans Affairs Service-Related
Disability Rating (VASRD) of 50 percent or greater, and such VASRD
rating is based, in whole or in part, on the condition precipitating
the need for military caregiver leave; or
(iii) a physical or mental condition that substantially impairs the
covered veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(iv) an injury, including a psychological injury, on the basis of
which the covered veteran has been enrolled in the Department of
Veterans Affairs Program of Comprehensive Assistance for Family
Caregivers.
(d) In order to care for a covered servicemember, an eligible
employee must be the spouse, son, daughter, or parent, or next of kin
of a covered servicemember.
(1) Son or daughter of a covered servicemember means the covered
servicemember's biological, adopted, or foster child, stepchild, legal
ward, or a child for whom the covered servicemember stood in loco
parentis, and who is of any age.
(2) Parent of a covered servicemember means a covered
servicemember's biological, adoptive, step or foster father or mother,
or any other individual who stood in loco parentis to the covered
servicemember. This term does not include parents ``in law.''
(3) Next of kin of a covered servicemember means the nearest blood
relative, other than the covered servicemember's spouse, parent, son,
or daughter, in the following order of priority: blood relatives who
have been granted legal custody of the servicemember by court decree or
statutory provisions, brothers and sisters, grandparents, aunts and
uncles, and first cousins, unless the covered servicemember has
specifically designated in writing another blood relative as his or her
nearest blood relative for purposes of military caregiver leave under
the FMLA. When no such designation is made, and there are multiple
family members with the same level of relationship to the covered
servicemember, all such family members shall be considered the covered
servicemember's next of kin and may take FMLA leave to provide care to
the covered servicemember, either consecutively or simultaneously. When
such designation has been made, the designated individual shall be
deemed to be the covered servicemember's only next of kin. For example,
if a covered servicemember has three siblings and has not designated a
blood relative to provide care, all three siblings would be considered
the covered servicemember's next of kin. Alternatively, where a covered
servicemember has a sibling(s) and designates a cousin as his or her
next of kin for FMLA purposes, then only the designated cousin is
eligible as the covered servicemember's next of kin. An employer is
permitted to require an employee to provide confirmation of covered
family relationship to the covered servicemember pursuant to Sec.
825.122(k).
(e) An eligible employee is entitled to 26 workweeks of leave to
care for a covered servicemember with a serious injury or illness
during a single 12-month period.
(1) The single 12-month period described in paragraph (e) of this
section begins on the first day the eligible employee takes FMLA leave
to care for a covered servicemember and ends 12 months after that date,
regardless of the method used by the employer to determine the
employee's 12 workweeks of leave entitlement for other FMLA-qualifying
reasons. If an eligible employee does not take all of his or her 26
workweeks of leave entitlement to care for a covered servicemember
during this single 12-month period, the remaining part of his or her 26
workweeks of leave entitlement to care for the covered servicemember is
forfeited.
(2) The leave entitlement described in paragraph (e) of this
section is to be applied on a per-covered-servicemember, per-injury
basis such that an eligible employee may be entitled to take more than
one period of 26 workweeks of leave if the leave is to care for
different covered servicemembers or to care for the same servicemember
with a subsequent serious injury or illness, except that no more than
26 workweeks of leave may be taken within any single 12-month period.
An eligible employee may take more than one period of 26 workweeks of
leave to care for a covered servicemember with more than one serious
injury or illness only when the serious injury or illness is a
subsequent serious injury or illness. When an eligible employee takes
leave to care for more than one covered servicemember or for a
subsequent serious injury or illness of the same covered servicemember,
and the single 12-month periods corresponding to the different military
caregiver leave entitlements overlap, the employee is limited to taking
no more than 26 workweeks of leave in each single 12-month period.
(3) An eligible employee is entitled to a combined total of 26
workweeks of leave for any FMLA-qualifying reason during the single 12-
month period described in paragraph (e) of this section, provided that
the employee is entitled to no more than 12 workweeks of leave for one
or more of the following: because of the birth of a son or daughter of
the employee and in order to care for such son or daughter; because of
the placement of a son or daughter with the employee for adoption or
foster care; in order to care for the spouse, son, daughter, or parent
with a serious health condition; because of the employee's own serious
health condition; or because of a qualifying exigency. Thus, for
example, an eligible employee may, during the single 12-month period,
take 16 workweeks of FMLA leave to care for a covered servicemember and
10 workweeks of FMLA leave to care for a newborn child. However, the
employee may not take more than 12 weeks of FMLA leave to care for the
newborn child during the single 12-month period, even if the employee
takes fewer than 14 workweeks of FMLA leave to care for a covered
servicemember.
(4) In all circumstances, including for leave taken to care for a
covered servicemember, the employer is responsible for designating
leave, paid or unpaid, as FMLA-qualifying, and for giving notice of the
designation to the employee as provided in Sec. 825.300. In the case
of leave that qualifies as both leave to care for a covered
servicemember and leave to care for a family member with a serious
health condition during the single 12-month
[[Page 8920]]
period described in paragraph (e) of this section, the employer must
designate such leave as leave to care for a covered servicemember in
the first instance. Leave that qualifies as both leave to care for a
covered servicemember and leave taken to care for a family member with
a serious health condition during the single 12-month period described
in paragraph (e) of this section must not be designated and counted as
both leave to care for a covered servicemember and leave to care for a
family member with a serious health condition. As is the case with
leave taken for other qualifying reasons, employers may retroactively
designate leave as leave to care for a covered servicemember pursuant
to Sec. 825.301(d).
(f) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 26 workweeks of leave during the single 12-month period
described in paragraph (e) of this section if the leave is taken for
birth of the employee's son or daughter or to care for the child after
birth, for placement of a son or daughter with the employee for
adoption or foster care, or to care for the child after placement, to
care for the employee's parent with a serious health condition, or to
care for a covered servicemember with a serious injury or illness. This
limitation on the total weeks of leave applies to leave taken for the
reasons specified as long as a husband and wife are employed by the
same employer. It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 26 workweeks of
FMLA leave.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
Sec. 825.200 Amount of leave.
(a) Except in the case of leave to care for a covered servicemember
with a serious injury or illness, an eligible employee's FMLA leave
entitlement is limited to a total of 12 workweeks of leave during any
12-month period for any one, or more, of the following reasons:
(1) The birth of the employee's son or daughter, and to care for
the newborn child;
(2) The placement with the employee of a son or daughter for
adoption or foster care, and to care for the newly placed child;
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition;
(4) Because of a serious health condition that makes the employee
unable to perform one or more of the essential functions of his or her
job; and,
(5) Because of any qualifying exigency arising out of the fact that
the employee's spouse, son, daughter, or parent is a military member on
covered active duty status (or has been notified of an impending call
or order to covered active duty).
(b) An employer is permitted to choose any one of the following
methods for determining the 12-month period in which the 12 weeks of
leave entitlement described in paragraph (a) of this section occurs:
(1) The calendar year;
(2) Any fixed 12-month leave year, such as a fiscal year, a year
required by State law, or a year starting on an employee's anniversary
date;
(3) The 12-month period measured forward from the date any
employee's first FMLA leave under paragraph (a) begins; or,
(4) A ``rolling'' 12-month period measured backward from the date
an employee uses any FMLA leave as described in paragraph (a).
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section
an employee would be entitled to up to 12 weeks of FMLA leave at any
time in the fixed 12-month period selected. An employee could,
therefore, take 12 weeks of leave at the end of the year and 12 weeks
at the beginning of the following year. Under the method in paragraph
(b)(3) of this section, an employee would be entitled to 12 weeks of
leave during the year beginning on the first date FMLA leave is taken;
the next 12-month period would begin the first time FMLA leave is taken
after completion of any previous 12-month period. Under the method in
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each
time an employee takes FMLA leave the remaining leave entitlement would
be any balance of the 12 weeks which has not been used during the
immediately preceding 12 months. For example, if an employee has taken
eight weeks of leave during the past 12 months, an additional four
weeks of leave could be taken. If an employee used four weeks beginning
February 1, 2008, four weeks beginning June 1, 2008, and four weeks
beginning December 1, 2008, the employee would not be entitled to any
additional leave until February 1, 2009. However, beginning on February
1, 2009, the employee would again be eligible to take FMLA leave,
recouping the right to take the leave in the same manner and amounts in
which it was used in the previous year. Thus, the employee would recoup
(and be entitled to use) one additional day of FMLA leave each day for
four weeks, commencing February 1, 2009. The employee would also begin
to recoup additional days beginning on June 1, 2009, and additional
days beginning on December 1, 2009. Accordingly, employers using the
rolling 12-month period may need to calculate whether the employee is
entitled to take FMLA leave each time that leave is requested, and
employees taking FMLA leave on such a basis may fall in and out of FMLA
protection based on their FMLA usage in the prior 12 months. For
example, in the example above, if the employee needs six weeks of leave
for a serious health condition commencing February 1, 2009, only the
first four weeks of the leave would be FMLA protected.
(d)(1) Employers will be allowed to choose any one of the
alternatives in paragraph (b) of this section for the leave
entitlements described in paragraph (a) of this section provided the
alternative chosen is applied consistently and uniformly to all
employees. An employer wishing to change to another alternative is
required to give at least 60 days notice to all employees, and the
transition must take place in such a way that the employees retain the
full benefit of 12 weeks of leave under whichever method affords the
greatest benefit to the employee. Under no circumstances may a new
method be implemented in order to avoid the Act's leave requirements.
(2) An exception to this required uniformity would apply in the
case of a multi-State employer who has eligible employees in a State
which has a family and medical leave statute. The State may require a
single method of determining the period during which use of the leave
entitlement is measured. This method may conflict with the method
chosen by the employer to determine any 12 months for purposes of the
Federal statute. The employer may comply with the State provision for
all employees employed within that State, and uniformly use another
method provided by this regulation for the leave entitlements described
in paragraph (a) for all other employees.
(e) If an employer fails to select one of the options in paragraph
(b) of this section for measuring the 12-month period for the leave
entitlements described in paragraph (a), the option that provides the
most beneficial
[[Page 8921]]
outcome for the employee will be used. The employer may subsequently
select an option only by providing the 60-day notice to all employees
of the option the employer intends to implement. During the running of
the 60-day period any other employee who needs FMLA leave may use the
option providing the most beneficial outcome to that employee. At the
conclusion of the 60-day period the employer may implement the selected
option.
(f) An eligible employee's FMLA leave entitlement is limited to a
total of 26 workweeks of leave during a single 12-month period to care
for a covered servicemember with a serious injury or illness. An
employer shall determine the single 12-month period in which the 26-
weeks-of-leave-entitlement described in this paragraph occurs using the
12-month period measured forward from the date an employee's first FMLA
leave to care for the covered servicemember begins. See Sec.
825.127(e)(1).
(g) During the single 12-month period described in paragraph (f),
an eligible employee's FMLA leave entitlement is limited to a combined
total of 26 workweeks of FMLA leave for any qualifying reason. See
Sec. 825.127(e)(3).
(h) For purposes of determining the amount of leave used by an
employee, the fact that a holiday may occur within the week taken as
FMLA leave has no effect; the week is counted as a week of FMLA leave.
However, if an employee is using FMLA leave in increments of less than
one week, the holiday will not count against the employee's FMLA
entitlement unless the employee was otherwise scheduled and expected to
work during the holiday. Similarly, if for some reason the employer's
business activity has temporarily ceased and employees generally are
not expected to report for work for one or more weeks (e.g., a school
closing two weeks for the Christmas/New Year holiday or the summer
vacation or an employer closing the plant for retooling or repairs),
the days the employer's activities have ceased do not count against the
employee's FMLA leave entitlement. Methods for determining an
employee's 12-week leave entitlement are also described in Sec.
825.205. See Sec. 825.802 for special calculation of leave rules
applicable to airline flight crew employees.
Sec. 825.201 Leave to care for a parent.
(a) General rule. An eligible employee is entitled to FMLA leave if
needed to care for the employee's parent with a serious health
condition. Care for parents-in-law is not covered by the FMLA. See
Sec. 825.122(c) for definition of parent.
(b) Same employer limitation. A husband and wife who are eligible
for FMLA leave and are employed by the same covered employer may be
limited to a combined total of 12 weeks of leave during any 12-month
period if the leave is taken to care for the employee's parent with a
serious health condition, for the birth of the employee's son or
daughter or to care for the child after the birth, or for placement of
a son or daughter with the employee for adoption or foster care or to
care for the child after placement. This limitation on the total weeks
of leave applies to leave taken for the reasons specified as long as a
husband and wife are employed by the same employer. It would apply, for
example, even though the spouses are employed at two different
worksites of an employer located more than 75 miles from each other, or
by two different operating divisions of the same company. On the other
hand, if one spouse is ineligible for FMLA leave, the other spouse
would be entitled to a full 12 weeks of FMLA leave. Where the husband
and wife both use a portion of the total 12-week FMLA leave entitlement
for either the birth of a child, for placement for adoption or foster
care, or to care for a parent, the husband and wife would each be
entitled to the difference between the amount he or she has taken
individually and 12 weeks for FMLA leave for other purposes. For
example, if each spouse took six weeks of leave to care for a parent,
each could use an additional six weeks due to his or her own serious
health condition or to care for a child with a serious health
condition. See also Sec. 825.127(d).
Sec. 825.202 Intermittent leave or reduced leave schedule.
(a) Definition. FMLA leave may be taken intermittently or on a
reduced leave schedule under certain circumstances. Intermittent leave
is FMLA leave taken in separate blocks of time due to a single
qualifying reason. A reduced leave schedule is a leave schedule that
reduces an employee's usual number of working hours per workweek, or
hours per workday. A reduced leave schedule is a change in the
employee's schedule for a period of time, normally from full-time to
part-time.
(b) Medical necessity. For intermittent leave or leave on a reduced
leave schedule taken because of one's own serious health condition, to
care for a spouse, parent, son, or daughter with a serious health
condition, or to care for a covered servicemember with a serious injury
or illness, there must be a medical need for leave and it must be that
such medical need can be best accommodated through an intermittent or
reduced leave schedule. The treatment regimen and other information
described in the certification of a serious health condition and in the
certification of a serious injury or illness, if required by the
employer, addresses the medical necessity of intermittent leave or
leave on a reduced leave schedule. See Sec. Sec. 825.306, 825.310.
Leave may be taken intermittently or on a reduced leave schedule when
medically necessary for planned and/or unanticipated medical treatment
of a serious health condition or of a covered servicemember's serious
injury or illness, or for recovery from treatment or recovery from a
serious health condition or a covered servicemember's serious injury or
illness. It may also be taken to provide care or psychological comfort
to a covered family member with a serious health condition or a covered
servicemember with a serious injury or illness.
(1) Intermittent leave may be taken for a serious health condition
of a spouse, parent, son, or daughter, for the employee's own serious
health condition, or a serious injury or illness of a covered
servicemember which requires treatment by a health care provider
periodically, rather than for one continuous period of time, and may
include leave of periods from an hour or more to several weeks.
Examples of intermittent leave would include leave taken on an
occasional basis for medical appointments, or leave taken several days
at a time spread over a period of six months, such as for chemotherapy.
A pregnant employee may take leave intermittently for prenatal
examinations or for her own condition, such as for periods of severe
morning sickness. An example of an employee taking leave on a reduced
leave schedule is an employee who is recovering from a serious health
condition and is not strong enough to work a full-time schedule.
(2) Intermittent or reduced schedule leave may be taken for
absences where the employee or family member is incapacitated or unable
to perform the essential functions of the position because of a chronic
serious health condition or a serious injury or illness of a covered
servicemember, even if he or she does not receive treatment by a health
care provider. See Sec. Sec. 825.113 and 825.127.
(c) Birth or placement. When leave is taken after the birth of a
healthy child or placement of a healthy child for adoption or foster
care, an employee may take leave intermittently or on a
[[Page 8922]]
reduced leave schedule only if the employer agrees. Such a schedule
reduction might occur, for example, where an employee, with the
employer's agreement, works part-time after the birth of a child, or
takes leave in several segments. The employer's agreement is not
required, however, for leave during which the mother has a serious
health condition in connection with the birth of her child or if the
newborn child has a serious health condition. See Sec. 825.204 for
rules governing transfer to an alternative position that better
accommodates intermittent leave. See also Sec. 825.120 (pregnancy) and
Sec. 825.121 (adoption and foster care).
(d) Qualifying exigency. Leave due to a qualifying exigency may be
taken on an intermittent or reduced leave schedule basis.
Sec. 825.203 Scheduling of intermittent or reduced schedule leave.
Eligible employees may take FMLA leave on an intermittent or
reduced schedule basis when medically necessary due to the serious
health condition of a covered family member or the employee or the
serious injury or illness of a covered servicemember. See Sec.
825.202. Eligible employees may also take FMLA leave on an intermittent
or reduced schedule basis when necessary because of a qualifying
exigency. If an employee needs leave intermittently or on a reduced
leave schedule for planned medical treatment, then the employee must
make a reasonable effort to schedule the treatment so as not to disrupt
unduly the employer's operations.
|
|
| Family & Medical Leave Act Final Rule: Part 6 825.100-825.803
|
| Sec. 825.204 Transfer of an employee to an alternative position
during intermittent leave or reduced schedule leave.
(a) Transfer or reassignment. If an employee needs intermittent
leave or leave on a reduced leave schedule that is foreseeable based on
planned medical treatment for the employee, a family member, or a
covered servicemember, including during a period of recovery from one's
own serious health condition, a serious health condition of a spouse,
parent, son, or daughter, or a serious injury or illness of a covered
servicemember, or if the employer agrees to permit intermittent or
reduced schedule leave for the birth of a child or for placement of a
child for adoption or foster care, the employer may require the
employee to transfer temporarily, during the period that the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. See Sec. 825.601 for special rules applicable to
instructional employees of schools.
(b) Compliance. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, Federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced schedule leave.
(c) Equivalent pay and benefits. The alternative position must have
equivalent pay and benefits. An alternative position for these purposes
does not have to have equivalent duties. The employer may increase the
pay and benefits of an existing alternative position, so as to make
them equivalent to the pay and benefits of the employee's regular job.
The employer may also transfer the employee to a part-time job with the
same hourly rate of pay and benefits, provided the employee is not
required to take more leave than is medically necessary. For example,
an employee desiring to take leave in increments of four hours per day
could be transferred to a half-time job, or could remain in the
employee's same job on a part-time schedule, paying the same hourly
rate as the employee's previous job and enjoying the same benefits. The
employer may not eliminate benefits which otherwise would not be
provided to part-time employees; however, an employer may
proportionately reduce benefits such as vacation leave where an
employer's normal practice is to base such benefits on the number of
hours worked.
(d) Employer limitations. An employer may not transfer the employee
to an alternative position in order to discourage the employee from
taking leave or otherwise work a hardship on the employee. For example,
a white collar employee may not be assigned to perform laborer's work;
an employee working the day shift may not be reassigned to the
graveyard shift; an employee working in the headquarters facility may
not be reassigned to a branch a significant distance away from the
employee's normal job location. Any such attempt on the part of the
employer to make such a transfer will be held to be contrary to the
prohibited acts of the FMLA.
(e) Reinstatement of employee. When an employee who is taking leave
intermittently or on a reduced leave schedule and has been transferred
to an alternative position no longer needs to continue on leave and is
able to return to full-time work, the employee must be placed in the
same or equivalent job as the job he or she left when the leave
commenced. An employee may not be required to take more leave than
necessary to address the circumstance that precipitated the need for
leave.
Sec. 825.205 Increments of FMLA leave for intermittent or reduced
schedule leave.
(a) Minimum increment. (1) When an employee takes FMLA leave on an
intermittent or reduced leave schedule basis, the employer must account
for the leave using an increment no greater than the shortest period of
time that the employer uses to account for use of other forms of leave
provided that it is not greater than one hour and provided further that
an employee's FMLA leave entitlement may not be reduced by more than
the amount of leave actually taken. An employer may not require an
employee to take more leave than is necessary to address the
circumstances that precipitated the need for the leave, provided that
the leave is counted using the shortest increment of leave used to
account for any other type of leave. See also Sec. 825.205(a)(2) for
the physical impossibility exception, Sec. Sec. 825.600 and 825.601
for special rules applicable to employees of schools, and Sec. 825.802
for special rules applicable to airline flight crew employees. If an
employer uses different increments to account for different types of
leave, the employer must account for FMLA leave in the smallest
increment used to account for any other type of leave. For example, if
an employer accounts for the use of annual leave in increments of one
hour and the use of sick leave in increments of one-half hour, then
FMLA leave use must be accounted for using increments no larger than
one-half hour. If an employer accounts for use of leave in varying
increments at different times of the day or shift, the employer may
also account for FMLA leave in varying increments, provided that the
increment used for FMLA leave is no greater than the smallest increment
used for any other type of leave during the period in which the FMLA
leave is taken. If an employer accounts for other forms of leave use in
increments greater than one hour, the employer must account for FMLA
leave use in increments no greater than one hour. An employer may
account for FMLA leave in shorter increments than used for other forms
of leave. For example, an employer that accounts for other forms of
leave in one hour increments may account for FMLA leave in a shorter
increment when the employee arrives at work several minutes late, and
the employer wants the employee to begin work immediately. Such
accounting for FMLA leave will not alter the increment
[[Page 8923]]
considered to be the shortest period used to account for other forms of
leave or the use of FMLA leave in other circumstances. In all cases,
employees may not be charged FMLA leave for periods during which they
are working.
(2) Where it is physically impossible for an employee using
intermittent leave or working a reduced leave schedule to commence or
end work mid-way through a shift, such as where a flight attendant or a
railroad conductor is scheduled to work aboard an airplane or train, or
a laboratory employee is unable to enter or leave a sealed ``clean
room'' during a certain period of time and no equivalent position is
available, the entire period that the employee is forced to be absent
is designated as FMLA leave and counts against the employee's FMLA
entitlement. The period of the physical impossibility is limited to the
period during which the employer is unable to permit the employee to
work prior to a period of FMLA leave or return the employee to the same
or equivalent position due to the physical impossibility after a period
of FMLA leave. See Sec. 825.214.
(b) Calculation of leave. (1) When an employee takes leave on an
intermittent or reduced leave schedule, only the amount of leave
actually taken may be counted toward the employee's leave entitlement.
The actual workweek is the basis of leave entitlement. Therefore, if an
employee who would otherwise work 40 hours a week takes off eight
hours, the employee would use one-fifth (\1/5\) of a week of FMLA
leave. Similarly, if a full-time employee who would otherwise work
eight hour days works four-hour days under a reduced leave schedule,
the employee would use one-half (\1/2\) week of FMLA leave. Where an
employee works a part-time schedule or variable hours, the amount of
FMLA leave that an employee uses is determined on a pro rata or
proportional basis. If an employee who would otherwise work 30 hours
per week, but works only 20 hours a week under a reduced leave
schedule, the employee's 10 hours of leave would constitute one-third
(\1/3\) of a week of FMLA leave for each week the employee works the
reduced leave schedule. An employer may convert these fractions to
their hourly equivalent so long as the conversion equitably reflects
the employee's total normally scheduled hours. An employee does not
accrue FMLA-protected leave at any particular hourly rate. An eligible
employee is entitled to up to a total of 12 workweeks of leave, or 26
workweeks in the case of military caregiver leave, and the total number
of hours contained in those workweeks is necessarily dependent on the
specific hours the employee would have worked but for the use of leave.
See also Sec. Sec. 825.601 and 825.602, special rules for schools and
Sec. 825.802, special rules for airline flight crew employees.
(2) If an employer has made a permanent or long-term change in the
employee's schedule (for reasons other than FMLA, and prior to the
notice of need for FMLA leave), the hours worked under the new schedule
are to be used for making this calculation.
(3) If an employee's schedule varies from week to week to such an
extent that an employer is unable to determine with any certainty how
many hours the employee would otherwise have worked (but for the taking
of FMLA leave), a weekly average of the hours scheduled over the 12
months prior to the beginning of the leave period (including any hours
for which the employee took leave of any type) would be used for
calculating the employee's leave entitlement.
(c) Overtime. If an employee would normally be required to work
overtime, but is unable to do so because of a FMLA-qualifying reason
that limits the employee's ability to work overtime, the hours which
the employee would have been required to work may be counted against
the employee's FMLA entitlement. In such a case, the employee is using
intermittent or reduced schedule leave. For example, if an employee
would normally be required to work for 48 hours in a particular week,
but due to a serious health condition the employee is unable to work
more than 40 hours that week, the employee would utilize eight hours of
FMLA-protected leave out of the 48-hour workweek, or one-sixth (\1/6\)
of a week of FMLA leave. Voluntary overtime hours that an employee does
not work due to an FMLA-qualifying reason may not be counted against
the employee's FMLA leave entitlement.
Sec. 825.206 Interaction with the FLSA.
(a) Leave taken under FMLA may be unpaid. If an employee is
otherwise exempt from minimum wage and overtime requirements of the
Fair Labor Standards Act (FLSA) as a salaried executive,
administrative, professional, or computer employee (under regulations
issued by the Secretary, 29 CFR part 541), providing unpaid FMLA-
qualifying leave to such an employee will not cause the employee to
lose the FLSA exemption. See 29 CFR 541.602(b)(7). This means that
under regulations currently in effect, where an employee meets the
specified duties test, is paid on a salary basis, and is paid a salary
of at least the amount specified in the regulations, the employer may
make deductions from the employee's salary for any hours taken as
intermittent or reduced FMLA leave within a workweek, without affecting
the exempt status of the employee. The fact that an employer provides
FMLA leave, whether paid or unpaid, and maintains records required by
this part regarding FMLA leave, will not be relevant to the
determination whether an employee is exempt within the meaning of 29
CFR part 541.
(b) For an employee paid in accordance with the fluctuating
workweek method of payment for overtime (see 29 CFR 778.114), the
employer, during the period in which intermittent or reduced schedule
FMLA leave is scheduled to be taken, may compensate an employee on an
hourly basis and pay only for the hours the employee works, including
time and one-half the employee's regular rate for overtime hours. The
change to payment on an hourly basis would include the entire period
during which the employee is taking intermittent leave, including weeks
in which no leave is taken. The hourly rate shall be determined by
dividing the employee's weekly salary by the employee's normal or
average schedule of hours worked during weeks in which FMLA leave is
not being taken. If an employer chooses to follow this exception from
the fluctuating workweek method of payment, the employer must do so
uniformly, with respect to all employees paid on a fluctuating workweek
basis for whom FMLA leave is taken on an intermittent or reduced leave
schedule basis. If an employer does not elect to convert the employee's
compensation to hourly pay, no deduction may be taken for FMLA leave
absences. Once the need for intermittent or reduced scheduled leave is
over, the employee may be restored to payment on a fluctuating workweek
basis.
(c) This special exception to the salary basis requirements of the
FLSA exemption or fluctuating workweek payment requirements applies
only to employees of covered employers who are eligible for FMLA leave,
and to leave which qualifies as FMLA leave. Hourly or other deductions
which are not in accordance with 29 CFR part 541 or 29 CFR 778.114 may
not be taken, for example, from the salary of an employee who works for
an employer with fewer than 50 employees, or where the employee has not
worked long enough to be eligible for FMLA leave without potentially
affecting the employee's eligibility for exemption. Nor may deductions
which are not permitted by 29 CFR part 541 or 29 CFR 778.114 be taken
from such an employee's salary
[[Page 8924]]
for any leave which does not qualify as FMLA leave, for example,
deductions from an employee's pay for leave required under State law or
under an employer's policy or practice for a reason which does not
qualify as FMLA leave, e.g., leave to care for a grandparent or for a
medical condition which does not qualify as a serious health condition
or serious injury or illness; or for leave which is more generous than
provided by FMLA. Employers may comply with State law or the employer's
own policy/practice under these circumstances and maintain the
employee's eligibility for exemption or for the fluctuating workweek
method of pay by not taking hourly deductions from the employee's pay,
in accordance with FLSA requirements, or may take such deductions,
treating the employee as an hourly employee and pay overtime premium
pay for hours worked over 40 in a workweek.
Sec. 825.207 Substitution of paid leave.
(a) Generally, FMLA leave is unpaid leave. However, under the
circumstances described in this section, FMLA permits an eligible
employee to choose to substitute accrued paid leave for FMLA leave. If
an employee does not choose to substitute accrued paid leave, the
employer may require the employee to substitute accrued paid leave for
unpaid FMLA leave. The term substitute means that the paid leave
provided by the employer, and accrued pursuant to established policies
of the employer, will run concurrently with the unpaid FMLA leave.
Accordingly, the employee receives pay pursuant to the employer's
applicable paid leave policy during the period of otherwise unpaid FMLA
leave. An employee's ability to substitute accrued paid leave is
determined by the terms and conditions of the employer's normal leave
policy. When an employee chooses, or an employer requires, substitution
of accrued paid leave, the employer must inform the employee that the
employee must satisfy any procedural requirements of the paid leave
policy only in connection with the receipt of such payment. See Sec.
825.300(c). If an employee does not comply with the additional
requirements in an employer's paid leave policy, the employee is not
entitled to substitute accrued paid leave, but the employee remains
entitled to take unpaid FMLA leave. Employers may not discriminate
against employees on FMLA leave in the administration of their paid
leave policies.
(b) If neither the employee nor the employer elects to substitute
paid leave for unpaid FMLA leave under the above conditions and
circumstances, the employee will remain entitled to all the paid leave
which is earned or accrued under the terms of the employer's plan.
(c) If an employee uses paid leave under circumstances which do not
qualify as FMLA leave, the leave will not count against the employee's
FMLA leave entitlement. For example, paid sick leave used for a medical
condition which is not a serious health condition or serious injury or
illness does not count against the employee's FMLA leave entitlement.
(d) Leave taken pursuant to a disability leave plan would be
considered FMLA leave for a serious health condition and counted in the
leave entitlement permitted under FMLA if it meets the criteria set
forth above in Sec. Sec. 825.112 through 825.115. In such cases, the
employer may designate the leave as FMLA leave and count the leave
against the employee's FMLA leave entitlement. Because leave pursuant
to a disability benefit plan is not unpaid, the provision for
substitution of the employee's accrued paid leave is inapplicable, and
neither the employee nor the employer may require the substitution of
paid leave. However, employers and employees may agree, where state law
permits, to have paid leave supplement the disability plan benefits,
such as in the case where a plan only provides replacement income for
two-thirds of an employee's salary.
(e) The Act provides that a serious health condition may result
from injury to the employee on or off the job. If the employer
designates the leave as FMLA leave in accordance with Sec. 825.300(d),
the leave counts against the employee's FMLA leave entitlement. Because
the workers' compensation absence is not unpaid, the provision for
substitution of the employee's accrued paid leave is not applicable,
and neither the employee nor the employer may require the substitution
of paid leave. However, employers and employees may agree, where state
law permits, to have paid leave supplement workers' compensation
benefits, such as in the case where workers' compensation only provides
replacement income for two-thirds of an employee's salary. If the
health care provider treating the employee for the workers'
compensation injury certifies the employee is able to return to a light
duty job but is unable to return to the same or equivalent job, the
employee may decline the employer's offer of a light duty job. As a
result the employee may lose workers' compensation payments, but is
entitled to remain on unpaid FMLA leave until the employee's FMLA leave
entitlement is exhausted. As of the date workers' compensation benefits
cease, the substitution provision becomes applicable and either the
employee may elect or the employer may require the use of accrued paid
leave. See also Sec. Sec. 825.210(f), 825.216(d), 825.220(d),
825.307(a) and 825.702(d)(1) and (2) regarding the relationship between
workers' compensation absences and FMLA leave.
(f) Section 7(o) of the Fair Labor Standards Act (FLSA) permits
public employers under prescribed circumstances to substitute
compensatory time off accrued at one and one-half hours for each
overtime hour worked in lieu of paying cash to an employee when the
employee works overtime hours as prescribed by the Act. This section of
the FLSA limits the number of hours of compensatory time an employee
may accumulate depending upon whether the employee works in fire
protection or law enforcement (480 hours) or elsewhere for a public
agency (240 hours). In addition, under the FLSA, an employer always has
the right to cash out an employee's compensatory time or to require the
employee to use the time. Therefore, if an employee requests and is
permitted to use accrued compensatory time to receive pay for time
taken off for an FMLA reason, or if the employer requires such use
pursuant to the FLSA, the time taken may be counted against the
employee's FMLA leave entitlement.
Sec. 825.208 [Reserved]
Sec. 825.209 Maintenance of employee benefits.
(a) During any FMLA leave, an employer must maintain the employee's
coverage under any group health plan (as defined in the Internal
Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as
coverage would have been provided if the employee had been continuously
employed during the entire leave period. All employers covered by FMLA,
including public agencies, are subject to the Act's requirements to
maintain health coverage. The definition of group health plan is set
forth in Sec. 825.800. For purposes of FMLA, the term group health
plan shall not include an insurance program providing health coverage
under which employees purchase individual policies from insurers
provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without
[[Page 8925]]
endorsing the program, to permit the insurer to publicize the program
to employees, to collect premiums through payroll deductions and to
remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
(b) The same group health plan benefits provided to an employee
prior to taking FMLA leave must be maintained during the FMLA leave.
For example, if family member coverage is provided to an employee,
family member coverage must be maintained during the FMLA leave.
Similarly, benefit coverage during FMLA leave for medical care,
surgical care, hospital care, dental care, eye care, mental health
counseling, substance abuse treatment, etc., must be maintained during
leave if provided in an employer's group health plan, including a
supplement to a group health plan, whether or not provided through a
flexible spending account or other component of a cafeteria plan.
(c) If an employer provides a new health plan or benefits or
changes health benefits or plans while an employee is on FMLA leave,
the employee is entitled to the new or changed plan/benefits to the
same extent as if the employee were not on leave. For example, if an
employer changes a group health plan so that dental care becomes
covered under the plan, an employee on FMLA leave must be given the
same opportunity as other employees to receive (or obtain) the dental
care coverage. Any other plan changes (e.g., in coverage, premiums,
deductibles, etc.) which apply to all employees of the workforce would
also apply to an employee on FMLA leave.
(d) Notice of any opportunity to change plans or benefits must also
be given to an employee on FMLA leave. If the group health plan permits
an employee to change from single to family coverage upon the birth of
a child or otherwise add new family members, such a change in benefits
must be made available while an employee is on FMLA leave. If the
employee requests the changed coverage it must be provided by the
employer.
(e) An employee may choose not to retain group health plan coverage
during FMLA leave. However, when an employee returns from leave, the
employee is entitled to be reinstated on the same terms as prior to
taking the leave, including family or dependent coverages, without any
qualifying period, physical examination, exclusion of pre-existing
conditions, etc. See Sec. 825.212(c).
(f) Except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) and for key employees (as discussed
below), an employer's obligation to maintain health benefits during
leave (and to restore the employee to the same or equivalent
employment) under FMLA ceases if and when the employment relationship
would have terminated if the employee had not taken FMLA leave (e.g.,
if the employee's position is eliminated as part of a nondiscriminatory
reduction in force and the employee would not have been transferred to
another position); an employee informs the employer of his or her
intent not to return from leave (including before starting the leave if
the employer is so informed before the leave starts); or the employee
fails to return from leave or continues on leave after exhausting his
or her FMLA leave entitlement in the 12-month period.
(g) If a key employee (see Sec. 825.218) does not return from
leave when notified by the employer that substantial or grievous
economic injury will result from his or her reinstatement, the
employee's entitlement to group health plan benefits continues unless
and until the employee advises the employer that the employee does not
desire restoration to employment at the end of the leave period, or the
FMLA leave entitlement is exhausted, or reinstatement is actually
denied.
(h) An employee's entitlement to benefits other than group health
benefits during a period of FMLA leave (e.g., holiday pay) is to be
determined by the employer's established policy for providing such
benefits when the employee is on other forms of leave (paid or unpaid,
as appropriate).
Sec. 825.210 Employee payment of group health benefit premiums.
(a) Group health plan benefits must be maintained on the same basis
as coverage would have been provided if the employee had been
continuously employed during the FMLA leave period. Therefore, any
share of group health plan premiums which had been paid by the employee
prior to FMLA leave must continue to be paid by the employee during the
FMLA leave period. If premiums are raised or lowered, the employee
would be required to pay the new premium rates. Maintenance of health
insurance policies which are not a part of the employer's group health
plan, as described in Sec. 825.209(a), are the sole responsibility of
the employee. The employee and the insurer should make necessary
arrangements for payment of premiums during periods of unpaid FMLA
leave.
(b) If the FMLA leave is substituted paid leave, the employee's
share of premiums must be paid by the method normally used during any
paid leave, presumably as a payroll deduction.
(c) If FMLA leave is unpaid, the employer has a number of options
for obtaining payment from the employee. The employer may require that
payment be made to the employer or to the insurance carrier, but no
additional charge may be added to the employee's premium payment for
administrative expenses. The employer may require employees to pay
their share of premium payments in any of the following ways:
(1) Payment would be due at the same time as it would be made if by
payroll deduction;
(2) Payment would be due on the same schedule as payments are made
under COBRA;
(3) Payment would be prepaid pursuant to a cafeteria plan at the
employee's option;
(4) The employer's existing rules for payment by employees on leave
without pay would be followed, provided that such rules do not require
prepayment (i.e., prior to the commencement of the leave) of the
premiums that will become due during a period of unpaid FMLA leave or
payment of higher premiums than if the employee had continued to work
instead of taking leave; or,
(5) Another system voluntarily agreed to between the employer and
the employee, which may include prepayment of premiums (e.g., through
increased payroll deductions when the need for the FMLA leave is
foreseeable).
(d) The employer must provide the employee with advance written
notice of the terms and conditions under which these payments must be
made. See Sec. 825.300(c).
(e) An employer may not require more of an employee using unpaid
FMLA leave than the employer requires of other employees on leave
without pay.
(f) An employee who is receiving payments as a result of a workers'
compensation injury must make arrangements with the employer for
payment of group health plan benefits when simultaneously taking FMLA
leave. See Sec. 825.207(e).
[[Page 8926]]
Sec. 825.211 Maintenance of benefits under multi-employer health
plans.
(a) A multi-employer health plan is a plan to which more than one
employer is required to contribute, and which is maintained pursuant to
one or more collective bargaining agreements between employee
organization(s) and the employers.
(b) An employer under a multi-employer plan must continue to make
contributions on behalf of an employee using FMLA leave as though the
employee had been continuously employed, unless the plan contains an
explicit FMLA provision for maintaining coverage such as through pooled
contributions by all employers party to the plan.
(c) During the duration of an employee's FMLA leave, coverage by
the group health plan, and benefits provided pursuant to the plan, must
be maintained at the level of coverage and benefits which were
applicable to the employee at the time FMLA leave commenced.
(d) An employee using FMLA leave cannot be required to use banked
hours or pay a greater premium than the employee would have been
required to pay if the employee had been continuously employed.
(e) As provided in Sec. 825.209(f) of this part, group health plan
coverage must be maintained for an employee on FMLA leave until:
(1) The employee's FMLA leave entitlement is exhausted;
(2) The employer can show that the employee would have been laid
off and the employment relationship terminated; or,
(3) The employee provides unequivocal notice of intent not to
return to work.
|
|
| Family & Medical Leave Act Final Rule: Part 7 825.100-825.803
|
| Sec. 825.212 Employee failure to pay health plan premium payments.
(a)(1) In the absence of an established employer policy providing a
longer grace period, an employer's obligations to maintain health
insurance coverage cease under FMLA if an employee's premium payment is
more than 30 days late. In order to drop the coverage for an employee
whose premium payment is late, the employer must provide written notice
to the employee that the payment has not been received. Such notice
must be mailed to the employee at least 15 days before coverage is to
cease, advising that coverage will be dropped on a specified date at
least 15 days after the date of the letter unless the payment has been
received by that date. If the employer has established policies
regarding other forms of unpaid leave that provide for the employer to
cease coverage retroactively to the date the unpaid premium payment was
due, the employer may drop the employee from coverage retroactively in
accordance with that policy, provided the 15-day notice was given. In
the absence of such a policy, coverage for the employee may be
terminated at the end of the 30-day grace period, where the required
15-day notice has been provided.
(2) An employer has no obligation regarding the maintenance of a
health insurance policy which is not a group health plan. See Sec.
825.209(a).
(3) All other obligations of an employer under FMLA would continue;
for example, the employer continues to have an obligation to reinstate
an employee upon return from leave.
(b) The employer may recover the employee's share of any premium
payments missed by the employee for any FMLA leave period during which
the employer maintains health coverage by paying the employee's share
after the premium payment is missed.
(c) If coverage lapses because an employee has not made required
premium payments, upon the employee's return from FMLA leave the
employer must still restore the employee to coverage/benefits
equivalent to those the employee would have had if leave had not been
taken and the premium payment(s) had not been missed, including family
or dependent coverage. See Sec. 825.215(d)(1)-(5). In such case, an
employee may not be required to meet any qualification requirements
imposed by the plan, including any new preexisting condition waiting
period, to wait for an open season, or to pass a medical examination to
obtain reinstatement of coverage. If an employer terminates an
employee's insurance in accordance with this section and fails to
restore the employee's health insurance as required by this section
upon the employee's return, the employer may be liable for benefits
lost by reason of the violation, for other actual monetary losses
sustained as a direct result of the violation, and for appropriate
equitable relief tailored to the harm suffered.
Sec. 825.213 Employer recovery of benefit costs.
(a) In addition to the circumstances discussed in Sec. 825.212(b),
an employer may recover its share of health plan premiums during a
period of unpaid FMLA leave from an employee if the employee fails to
return to work after the employee's FMLA leave entitlement has been
exhausted or expires, unless the reason the employee does not return is
due to:
(1) The continuation, recurrence, or onset of either a serious
health condition of the employee or the employee's family member, or a
serious injury or illness of a covered servicemember, which would
otherwise entitle the employee to leave under FMLA; or
(2) Other circumstances beyond the employee's control. Examples of
other circumstances beyond the employee's control are necessarily
broad. They include such situations as where a parent chooses to stay
home with a newborn child who has a serious health condition; an
employee's spouse is unexpectedly transferred to a job location more
than 75 miles from the employee's worksite; a relative or individual
other than a covered family member has a serious health condition and
the employee is needed to provide care; the employee is laid off while
on leave; or, the employee is a key employee who decides not to return
to work upon being notified of the employer's intention to deny
restoration because of substantial and grievous economic injury to the
employer's operations and is not reinstated by the employer. Other
circumstances beyond the employee's control would not include a
situation where an employee desires to remain with a parent in a
distant city even though the parent no longer requires the employee's
care, or a parent chooses not to return to work to stay home with a
well, newborn child.
(3) When an employee fails to return to work because of the
continuation, recurrence, or onset of either a serious health condition
of the employee or employee's family member, or a serious injury or
illness of a covered servicemember, thereby precluding the employer
from recovering its (share of) health benefit premium payments made on
the employee's behalf during a period of unpaid FMLA leave, the
employer may require medical certification of the employee's or the
family member's serious health condition or the covered servicemember's
serious injury or illness. Such certification is not required unless
requested by the employer. The cost of the certification shall be borne
by the employee, and the employee is not entitled to be paid for the
time or travel costs spent in acquiring the certification. The employee
is required to provide medical certification in a timely manner which,
for purposes of this section, is within 30 days from the date of the
employer's request. For purposes of medical certification, the employee
may use the optional DOL forms developed for these
[[Page 8927]]
purposes. See Sec. Sec. 825.306(b), 825.310(c)-(d). If the employer
requests medical certification and the employee does not provide such
certification in a timely manner (within 30 days), or the reason for
not returning to work does not meet the test of other circumstances
beyond the employee's control, the employer may recover 100 percent of
the health benefit premiums it paid during the period of unpaid FMLA
leave.
(b) Under some circumstances an employer may elect to maintain
other benefits, e.g., life insurance, disability insurance, etc., by
paying the employee's (share of) premiums during periods of unpaid FMLA
leave. For example, to ensure the employer can meet its
responsibilities to provide equivalent benefits to the employee upon
return from unpaid FMLA leave, it may be necessary that premiums be
paid continuously to avoid a lapse of coverage. If the employer elects
to maintain such benefits during the leave, at the conclusion of leave,
the employer is entitled to recover only the costs incurred for paying
the employee's share of any premiums whether or not the employee
returns to work.
(c) An employee who returns to work for at least 30 calendar days
is considered to have returned to work. An employee who transfers
directly from taking FMLA leave to retirement, or who retires during
the first 30 days after the employee returns to work, is deemed to have
returned to work.
(d) When an employee elects or an employer requires paid leave to
be substituted for FMLA leave, the employer may not recover its (share
of) health insurance or other non-health benefit premiums for any
period of FMLA leave covered by paid leave. Because paid leave provided
under a plan covering temporary disabilities (including workers'
compensation) is not unpaid, recovery of health insurance premiums does
not apply to such paid leave.
(e) The amount that self-insured employers may recover is limited
to only the employer's share of allowable premiums as would be
calculated under COBRA, excluding the two percent fee for
administrative costs.
(f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits
an employer to recover are a debt owed by the non-returning employee to
the employer. The existence of this debt caused by the employee's
failure to return to work does not alter the employer's
responsibilities for health benefit coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA
leave. To the extent recovery is allowed, the employer may recover the
costs through deduction from any sums due to the employee (e.g., unpaid
wages, vacation pay, profit sharing, etc.), provided such deductions do
not otherwise violate applicable Federal or State wage payment or other
laws. Alternatively, the employer may initiate legal action against the
employee to recover such costs.
Sec. 825.214 Employee right to reinstatement.
General rule. On return from FMLA leave, an employee is entitled to
be returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent benefits, pay,
and other terms and conditions of employment. An employee is entitled
to such reinstatement even if the employee has been replaced or his or
her position has been restructured to accommodate the employee's
absence. See also Sec. 825.106(e) for the obligations of joint
employers.
Sec. 825.215 Equivalent position.
(a) Equivalent position. An equivalent position is one that is
virtually identical to the employee's former position in terms of pay,
benefits and working conditions, including privileges, perquisites and
status. It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill,
effort, responsibility, and authority.
(b) Conditions to qualify. If an employee is no longer qualified
for the position because of the employee's inability to attend a
necessary course, renew a license, fly a minimum number of hours, etc.,
as a result of the leave, the employee shall be given a reasonable
opportunity to fulfill those conditions upon return to work.
(c) Equivalent pay. (1) An employee is entitled to any
unconditional pay increases which may have occurred during the FMLA
leave period, such as cost of living increases. Pay increases
conditioned upon seniority, length of service, or work performed must
be granted in accordance with the employer's policy or practice with
respect to other employees on an equivalent leave status for a reason
that does not qualify as FMLA leave. An employee is entitled to be
restored to a position with the same or equivalent pay premiums, such
as a shift differential. If an employee departed from a position
averaging ten hours of overtime (and corresponding overtime pay) each
week, an employee is ordinarily entitled to such a position on return
from FMLA leave.
(2) Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent with
the provisions of paragraph (c)(1) of this section. However, if a bonus
or other payment is based on the achievement of a specified goal such
as hours worked, products sold or perfect attendance, and the employee
has not met the goal due to FMLA leave, then the payment may be denied,
unless otherwise paid to employees on an equivalent leave status for a
reason that does not qualify as FMLA leave. For example, if an employee
who used paid vacation leave for a non-FMLA purpose would receive the
payment, then the employee who used paid vacation leave for an FMLA-
protected purpose also must receive the payment.
(d) Equivalent benefits. Benefits include all benefits provided or
made available to employees by an employer, including group life
insurance, health insurance, disability insurance, sick leave, annual
leave, educational benefits, and pensions, regardless of whether such
benefits are provided by a practice or written policy of an employer
through an employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
(1) At the end of an employee's FMLA leave, benefits must be
resumed in the same manner and at the same levels as provided when the
leave began, and subject to any changes in benefit levels that may have
taken place during the period of FMLA leave affecting the entire
workforce, unless otherwise elected by the employee. Upon return from
FMLA leave, an employee cannot be required to requalify for any
benefits the employee enjoyed before FMLA leave began (including family
or dependent coverages). For example, if an employee was covered by a
life insurance policy before taking leave but is not covered or
coverage lapses during the period of unpaid FMLA leave, the employee
cannot be required to meet any qualifications, such as taking a
physical examination, in order to requalify for life insurance upon
return from leave. Accordingly, some employers may find it necessary to
modify life insurance and other benefits programs in order to restore
employees to equivalent benefits upon return from FMLA leave, make
arrangements for continued payment of costs to maintain such benefits
during unpaid FMLA leave, or pay these costs subject to recovery from
the employee on return from leave. See Sec. 825.213(b).
(2) An employee may, but is not entitled to, accrue any additional
[[Page 8928]]
benefits or seniority during unpaid FMLA leave. Benefits accrued at the
time leave began, however, (e.g., paid vacation, sick or personal leave
to the extent not substituted for FMLA leave) must be available to an
employee upon return from leave.
(3) If, while on unpaid FMLA leave, an employee desires to continue
life insurance, disability insurance, or other types of benefits for
which he or she typically pays, the employer is required to follow
established policies or practices for continuing such benefits for
other instances of leave without pay. If the employer has no
established policy, the employee and the employer are encouraged to
agree upon arrangements before FMLA leave begins.
(4) With respect to pension and other retirement plans, any period
of unpaid FMLA leave shall not be treated as or counted toward a break
in service for purposes of vesting and eligibility to participate.
Also, if the plan requires an employee to be employed on a specific
date in order to be credited with a year of service for vesting,
contributions or participation purposes, an employee on unpaid FMLA
leave on that date shall be deemed to have been employed on that date.
However, unpaid FMLA leave periods need not be treated as credited
service for purposes of benefit accrual, vesting and eligibility to
participate.
(5) Employees on unpaid FMLA leave are to be treated as if they
continued to work for purposes of changes to benefit plans. They are
entitled to changes in benefits plans, except those which may be
dependent upon seniority or accrual during the leave period,
immediately upon return from leave or to the same extent they would
have qualified if no leave had been taken. For example, if the benefit
plan is predicated on a pre-established number of hours worked each
year and the employee does not have sufficient hours as a result of
taking unpaid FMLA leave, the benefit is lost. (In this regard, Sec.
825.209 addresses health benefits.)
(e) Equivalent terms and conditions of employment. An equivalent
position must have substantially similar duties, conditions,
responsibilities, privileges and status as the employee's original
position.
(1) The employee must be reinstated to the same or a geographically
proximate worksite (i.e., one that does not involve a significant
increase in commuting time or distance) from where the employee had
previously been employed. If the employee's original worksite has been
closed, the employee is entitled to the same rights as if the employee
had not been on leave when the worksite closed. For example, if an
employer transfers all employees from a closed worksite to a new
worksite in a different city, the employee on leave is also entitled to
transfer under the same conditions as if he or she had continued to be
employed.
(2) The employee is ordinarily entitled to return to the same shift
or the same or an equivalent work schedule.
(3) The employee must have the same or an equivalent opportunity
for bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
(4) FMLA does not prohibit an employer from accommodating an
employee's request to be restored to a different shift, schedule, or
position which better suits the employee's personal needs on return
from leave, or to offer a promotion to a better position. However, an
employee cannot be induced by the employer to accept a different
position against the employee's wishes.
(f) De minimis exception. The requirement that an employee be
restored to the same or equivalent job with the same or equivalent pay,
benefits, and terms and conditions of employment does not extend to de
minimis, intangible, or unmeasurable aspects of the job.
Sec. 825.216 Limitations on an employee's right to reinstatement.
(a) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. An employer must be
able to show that an employee would not otherwise have been employed at
the time reinstatement is requested in order to deny restoration to
employment. For example:
(1) If an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer's responsibility to
continue FMLA leave, maintain group health plan benefits and restore
the employee cease at the time the employee is laid off, provided the
employer has no continuing obligations under a collective bargaining
agreement or otherwise. An employer would have the burden of proving
that an employee would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration. Restoration to a
job slated for lay-off when the employee's original position is not
would not meet the requirements of an equivalent position.
(2) If a shift has been eliminated, or overtime has been decreased,
an employee would not be entitled to return to work that shift or the
original overtime hours upon restoration. However, if a position on,
for example, a night shift has been filled by another employee, the
employee is entitled to return to the same shift on which employed
before taking FMLA leave.
(3) If an employee was hired for a specific term or only to perform
work on a discrete project, the employer has no obligation to restore
the employee if the employment term or project is over and the employer
would not otherwise have continued to employ the employee. On the other
hand, if an employee was hired to perform work on a contract, and after
that contract period the contract was awarded to another contractor,
the successor contractor may be required to restore the employee if it
is a successor employer. See Sec. 825.107.
(b) In addition to the circumstances explained above, an employer
may deny job restoration to salaried eligible employees (key employees,
as defined in Sec. 825.217(c)), if such denial is necessary to prevent
substantial and grievous economic injury to the operations of the
employer; or may delay restoration to an employee who fails to provide
a fitness-for-duty certificate to return to work under the conditions
described in Sec. 825.312.
(c) If the employee is unable to perform an essential function of
the position because of a physical or mental condition, including the
continuation of a serious health condition or an injury or illness also
covered by workers' compensation, the employee has no right to
restoration to another position under the FMLA. The employer's
obligations may, however, be governed by the Americans with
Disabilities Act (ADA), as amended. See Sec. 825.702, state leave
laws, or workers' compensation laws.
(d) An employee who fraudulently obtains FMLA leave from an
employer is not protected by FMLA's job restoration or maintenance of
health benefits provisions.
(e) If the employer has a uniformly-applied policy governing
outside or supplemental employment, such a policy may continue to apply
to an employee while on FMLA leave. An employer which does not have
such a policy may not deny benefits to which an employee is entitled
under FMLA on this basis unless the FMLA leave was fraudulently
obtained as in paragraph (d) of this section.
Sec. 825.217 Key employee, general rule.
(a) A key employee is a salaried FMLA-eligible employee who is
among the highest paid 10 percent of all the
[[Page 8929]]
employees employed by the employer within 75 miles of the employee's
worksite.
(b) The term salaried means paid on a salary basis, as defined in
29 CFR 541.602. This is the Department of Labor regulation defining
employees who may qualify as exempt from the minimum wage and overtime
requirements of the FLSA as executive, administrative, professional,
and computer employees.
(c) A key employee must be among the highest paid 10 percent of all
the employees--both salaried and non-salaried, eligible and
ineligible--who are employed by the employer within 75 miles of the
worksite.
(1) In determining which employees are among the highest paid 10
percent, year-to-date earnings are divided by weeks worked by the
employee (including weeks in which paid leave was taken). Earnings
include wages, premium pay, incentive pay, and non-discretionary and
discretionary bonuses. Earnings do not include incentives whose value
is determined at some future date, e.g., stock options, or benefits or
perquisites.
(2) The determination of whether a salaried employee is among the
highest paid 10 percent shall be made at the time the employee gives
notice of the need for leave. No more than 10 percent of the employer's
employees within 75 miles of the worksite may be key employees.
Sec. 825.218 Substantial and grievous economic injury.
(a) In order to deny restoration to a key employee, an employer
must determine that the restoration of the employee to employment will
cause substantial and grievous economic injury to the operations of the
employer, not whether the absence of the employee will cause such
substantial and grievous injury.
(b) An employer may take into account its ability to replace on a
temporary basis (or temporarily do without) the employee on FMLA leave.
If permanent replacement is unavoidable, the cost of then reinstating
the employee can be considered in evaluating whether substantial and
grievous economic injury will occur from restoration; in other words,
the effect on the operations of the company of reinstating the employee
in an equivalent position.
(c) A precise test cannot be set for the level of hardship or
injury to the employer which must be sustained. If the reinstatement of
a key employee threatens the economic viability of the firm, that would
constitute substantial and grievous economic injury. A lesser injury
which causes substantial, long-term economic injury would also be
sufficient. Minor inconveniences and costs that the employer would
experience in the normal course of doing business would certainly not
constitute substantial and grievous economic injury.
(d) FMLA's substantial and grievous economic injury standard is
different from and more stringent than the undue hardship test under
the ADA. See also Sec. 825.702.
Sec. 825.219 Rights of a key employee.
(a) An employer who believes that reinstatement may be denied to a
key employee, must give written notice to the employee at the time the
employee gives notice of the need for FMLA leave (or when FMLA leave
commences, if earlier) that he or she qualifies as a key employee. At
the same time, the employer must also fully inform the employee of the
potential consequences with respect to reinstatement and maintenance of
health benefits if the employer should determine that substantial and
grievous economic injury to the employer's operations will result if
the employee is reinstated from FMLA leave. If such notice cannot be
given immediately because of the need to determine whether the employee
is a key employee, it shall be given as soon as practicable after being
notified of a need for leave (or the commencement of leave, if
earlier). It is expected that in most circumstances there will be no
desire that an employee be denied restoration after FMLA leave and,
therefore, there would be no need to provide such notice. However, an
employer who fails to provide such timely notice will lose its right to
deny restoration even if substantial and grievous economic injury will
result from reinstatement.
(b) As soon as an employer makes a good faith determination, based
on the facts available, that substantial and grievous economic injury
to its operations will result if a key employee who has given notice of
the need for FMLA leave or is using FMLA leave is reinstated, the
employer shall notify the employee in writing of its determination,
that it cannot deny FMLA leave, and that it intends to deny restoration
to employment on completion of the FMLA leave. It is anticipated that
an employer will ordinarily be able to give such notice prior to the
employee starting leave. The employer must serve this notice either in
person or by certified mail. This notice must explain the basis for the
employer's finding that substantial and grievous economic injury will
result, and, if leave has commenced, must provide the employee a
reasonable time in which to return to work, taking into account the
circumstances, such as the length of the leave and the urgency of the
need for the employee to return.
(c) If an employee on leave does not return to work in response to
the employer's notification of intent to deny restoration, the employee
continues to be entitled to maintenance of health benefits and the
employer may not recover its cost of health benefit premiums. A key
employee's rights under FMLA continue unless and until the employee
either gives notice that he or she no longer wishes to return to work,
or the employer actually denies reinstatement at the conclusion of the
leave period.
(d) After notice to an employee has been given that substantial and
grievous economic injury will result if the employee is reinstated to
employment, an employee is still entitled to request reinstatement at
the end of the leave period even if the employee did not return to work
in response to the employer's notice. The employer must then again
determine whether there will be substantial and grievous economic
injury from reinstatement, based on the facts at that time. If it is
determined that substantial and grievous economic injury will result,
the employer shall notify the employee in writing (in person or by
certified mail) of the denial of restoration.
|
|
| Family & Medical Leave Act Final Rule: Part 9 825.100-825.803
|
| (g) An employer may waive employees' FMLA notice requirements. See
Sec. 825.304.
[[Page 8934]]
Sec. 825.303 Employee notice requirements for unforeseeable FMLA
leave.
(a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. It generally should be practicable for the
employee to provide notice of leave that is unforeseeable within the
time prescribed by the employer's usual and customary notice
requirements applicable to such leave. See Sec. 825.303(c). Notice may
be given by the employee's spokesperson (e.g., spouse, adult family
member, or other responsible party) if the employee is unable to do so
personally. For example, if an employee's child has a severe asthma
attack and the employee takes the child to the emergency room, the
employee would not be required to leave his or her child in order to
report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by a period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. Depending on the situation, such
information may include that a condition renders the employee unable to
perform the functions of the job; that the employee is pregnant or has
been hospitalized overnight; whether the employee or the employee's
family member is under the continuing care of a health care provider;
if the leave is due to a qualifying exigency, that a military member is
on covered active duty or call to covered active duty status (or has
been notified of an impending call or order to covered active duty),
that the requested leave is for one of the reasons listed in Sec.
825.126(b), and the anticipated duration of the absence; or if the
leave is for a family member that the condition renders the family
member unable to perform daily activities or that the family member is
a covered servicemember with a serious injury or illness; and the
anticipated duration of the absence, if known. When an employee seeks
leave for the first time for a FMLA-qualifying reason, the employee
need not expressly assert rights under the FMLA or even mention the
FMLA. When an employee seeks leave due to a qualifying reason, for
which the employer has previously provided the employee FMLA-protected
leave, the employee must specifically reference either the qualifying
reason for leave or the need for FMLA leave. Calling in ``sick''
without providing more information will not be considered sufficient
notice to trigger an employer's obligations under the Act. The employer
will be expected to obtain any additional required information through
informal means. An employee has an obligation to respond to an
employer's questions designed to determine whether an absence is
potentially FMLA-qualifying. Failure to respond to reasonable employer
inquiries regarding the leave request may result in denial of FMLA
protection if the employer is unable to determine whether the leave is
FMLA-qualifying.
(c) Complying with employer policy. When the need for leave is not
foreseeable, an employee must comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
absent unusual circumstances. For example, an employer may require
employees to call a designated number or a specific individual to
request leave. However, if an employee requires emergency medical
treatment, he or she would not be required to follow the call-in
procedure until his or her condition is stabilized and he or she has
access to, and is able to use, a phone. Similarly, in the case of an
emergency requiring leave because of a FMLA-qualifying reason, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved. If an employee does
not comply with the employer's usual notice and procedural
requirements, and no unusual circumstances justify the failure to
comply, FMLA-protected leave may be delayed or denied.
Sec. 825.304 Employee failure to provide notice.
(a) Proper notice required. In all cases, in order for the onset of
an employee's FMLA leave to be delayed due to lack of required notice,
it must be clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer's
proper posting of the required notice at the worksite where the
employee is employed and the employer's provision of the required
notice in either an employee handbook or employee distribution, as
required by Sec. 825.300.
(b) Foreseeable leave--30 days. When the need for FMLA leave is
foreseeable at least 30 days in advance and an employee fails to give
timely advance notice with no reasonable excuse, the employer may delay
FMLA coverage until 30 days after the date the employee provides
notice. The need for leave and the approximate date leave would be
taken must have been clearly foreseeable to the employee 30 days in
advance of the leave. For example, knowledge that an employee would
receive a telephone call about the availability of a child for adoption
at some unknown point in the future would not be sufficient to
establish the leave was clearly foreseeable 30 days in advance.
(c) Foreseeable leave--less than 30 days. When the need for FMLA
leave is foreseeable fewer than 30 days in advance and an employee
fails to give notice as soon as practicable under the particular facts
and circumstances, the extent to which an employer may delay FMLA
coverage for leave depends on the facts of the particular case. For
example, if an employee reasonably should have given the employer two
weeks notice but instead only provided one week notice, then the
employer may delay FMLA-protected leave for one week (thus, if the
employer elects to delay FMLA coverage and the employee nonetheless
takes leave one week after providing the notice (i.e., a week before
the two week notice period has been met) the leave will not be FMLA-
protected).
(d) Unforeseeable leave. When the need for FMLA leave is
unforeseeable and an employee fails to give notice in accordance with
Sec. 825.303, the extent to which an employer may delay FMLA coverage
for leave depends on the facts of the particular case. For example, if
it would have been practicable for an employee to have given the
employer notice of the need for leave very soon after the need arises
consistent with the employer's policy, but instead the employee
provided notice two days after the leave began, then the employer may
delay FMLA coverage of the leave by two days.
(e) Waiver of notice. An employer may waive employees' FMLA notice
obligations or the employer's own internal rules on leave notice
requirements. If an employer does not waive the employee's obligations
under its internal leave rules, the employer may take appropriate
action under its internal rules and procedures for failure to follow
its usual and customary notification rules, absent unusual
circumstances, as long as the actions are taken in a manner that does
not discriminate against employees taking FMLA leave and the rules are
not inconsistent with Sec. 825.303(a).
[[Page 8935]]
Sec. 825.305 Certification, general rule.
(a) General. An employer may require that an employee's leave to
care for the employee's covered family member with a serious health
condition, or due to the employee's own serious health condition that
makes the employee unable to perform one or more of the essential
functions of the employee's position, be supported by a certification
issued by the health care provider of the employee or the employee's
family member. An employer may also require that an employee's leave
because of a qualifying exigency or to care for a covered servicemember
with a serious injury or illness be supported by a certification, as
described in Sec. Sec. 825.309 and 825.310, respectively. An employer
must give notice of a requirement for certification each time a
certification is required; such notice must be written notice whenever
required by Sec. 825.300(c). An employer's oral request to an employee
to furnish any subsequent certification is sufficient.
(b) Timing. In most cases, the employer should request that an
employee furnish certification at the time the employee gives notice of
the need for leave or within five business days thereafter, or, in the
case of unforeseen leave, within five business days after the leave
commences. The employer may request certification at some later date if
the employer later has reason to question the appropriateness of the
leave or its duration. The employee must provide the requested
certification to the employer within 15 calendar days after the
employer's request, unless it is not practicable under the particular
circumstances to do so despite the employee's diligent, good faith
efforts or the employer provides more than 15 calendar days to return
the requested certification.
(c) Complete and sufficient certification. The employee must
provide a complete and sufficient certification to the employer if
required by the employer in accordance with Sec. Sec. 825.306,
825.309, and 825.310. The employer shall advise an employee whenever
the employer finds a certification incomplete or insufficient, and
shall state in writing what additional information is necessary to make
the certification complete and sufficient. A certification is
considered incomplete if the employer receives a certification, but one
or more of the applicable entries have not been completed. A
certification is considered insufficient if the employer receives a
complete certification, but the information provided is vague,
ambiguous, or non-responsive. The employer must provide the employee
with seven calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to
cure any such deficiency. If the deficiencies specified by the employer
are not cured in the resubmitted certification, the employer may deny
the taking of FMLA leave, in accordance with Sec. 825.313. A
certification that is not returned to the employer is not considered
incomplete or insufficient, but constitutes a failure to provide
certification.
(d) Consequences. At the time the employer requests certification,
the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. If the employee fails to provide the employer with a
complete and sufficient certification, despite the opportunity to cure
the certification as provided in paragraph (c) of this section, or
fails to provide any certification, the employer may deny the taking of
FMLA leave, in accordance with Sec. 825.313. It is the employee's
responsibility either to furnish a complete and sufficient
certification or to furnish the health care provider providing the
certification with any necessary authorization from the employee or the
employee's family member in order for the health care provider to
release a complete and sufficient certification to the employer to
support the employee's FMLA request. This provision will apply in any
case where an employer requests a certification permitted by these
regulations, whether it is the initial certification, a
recertification, a second or third opinion, or a fitness for duty
certificate, including any clarifications necessary to determine if
such certifications are authentic and sufficient. See Sec. Sec.
825.306, 825.307, 825.308, and 825.312.
(e) Annual medical certification. Where the employee's need for
leave due to the employee's own serious health condition, or the
serious health condition of the employee's covered family member, lasts
beyond a single leave year (as defined in Sec. 825.200), the employer
may require the employee to provide a new medical certification in each
subsequent leave year. Such new medical certifications are subject to
the provisions for authentication and clarification set forth in Sec.
825.307, including second and third opinions.
Sec. 825.306 Content of medical certification for leave taken because
of an employee's own serious health condition or the serious health
condition of a family member.
(a) Required information. When leave is taken because of an
employee's own serious health condition, or the serious health
condition of a family member, an employer may require an employee to
obtain a medical certification from a health care provider that sets
forth the following information:
(1) The name, address, telephone number, and fax number of the
health care provider and type of medical practice/specialization;
(2) The approximate date on which the serious health condition
commenced, and its probable duration;
(3) A statement or description of appropriate medical facts
regarding the patient's health condition for which FMLA leave is
requested. The medical facts must be sufficient to support the need for
leave. Such medical facts may include information on symptoms,
diagnosis, hospitalization, doctor visits, whether medication has been
prescribed, any referrals for evaluation or treatment (physical
therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to
establish that the employee cannot perform the essential functions of
the employee's job as well as the nature of any other work
restrictions, and the likely duration of such inability (see Sec.
825.123(b) and (c));
(5) If the patient is a covered family member with a serious health
condition, information sufficient to establish that the family member
is in need of care, as described in Sec. 825.124, and an estimate of
the frequency and duration of the leave required to care for the family
member;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment of the employee's or a
covered family member's serious health condition, information
sufficient to establish the medical necessity for such intermittent or
reduced schedule leave and an estimate of the dates and duration of
such treatments and any periods of recovery;
(7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's serious health condition, including
pregnancy, that may result in unforeseeable episodes of incapacity,
information sufficient to establish the medical necessity for such
intermittent or reduced schedule leave and an estimate of the frequency
and duration of the episodes of incapacity; and
[[Page 8936]]
(8) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered family member with a serious
health condition, a statement that such leave is medically necessary to
care for the family member, as described in Sec. Sec. 825.124 and
825.203(b), which can include assisting in the family member's
recovery, and an estimate of the frequency and duration of the required
leave.
(b) DOL has developed two optional forms (Form WH-380E and Form WH-
380F, as revised) for use in obtaining medical certification, including
second and third opinions, from health care providers that meets FMLA's
certification requirements. Optional form WH-380E is for use when the
employee's need for leave is due to the employee's own serious health
condition. Optional form WH-380F is for use when the employee needs
leave to care for a family member with a serious health condition.
These optional forms reflect certification requirements so as to permit
the health care provider to furnish appropriate medical information.
Form WH-380-E and WH-380-F, as revised, or another form containing the
same basic information, may be used by the employer; however, no
information may be required beyond that specified in Sec. Sec.
825.306, 825.307, and 825.308. In all instances the information on the
form must relate only to the serious health condition for which the
current need for leave exists. Prototype forms WH-380-E and WH-380-F
may be obtained from local offices of the Wage and Hour Division or
from the Internet at www.dol.gov/whd.
(c) If an employee is on FMLA leave running concurrently with a
workers' compensation absence, and the provisions of the workers'
compensation statute permit the employer or the employer's
representative to request additional information from the employee's
workers' compensation health care provider, the FMLA does not prevent
the employer from following the workers' compensation provisions and
information received under those provisions may be considered in
determining the employee's entitlement to FMLA-protected leave.
Similarly, an employer may request additional information in accordance
with a paid leave policy or disability plan that requires greater
information to qualify for payments or benefits, provided that the
employer informs the employee that the additional information only
needs to be provided in connection with receipt of such payments or
benefits. Any information received pursuant to such policy or plan may
be considered in determining the employee's entitlement to FMLA-
protected leave. If the employee fails to provide the information
required for receipt of such payments or benefits, such failure will
not affect the employee's entitlement to take unpaid FMLA leave. See
Sec. 825.207(a).
(d) If an employee's serious health condition may also be a
disability within the meaning of the Americans with Disabilities Act
(ADA), as amended, the FMLA does not prevent the employer from
following the procedures for requesting medical information under the
ADA. Any information received pursuant to these procedures may be
considered in determining the employee's entitlement to FMLA-protected
leave.
(e) While an employee may choose to comply with the certification
requirement by providing the employer with an authorization, release,
or waiver allowing the employer to communicate directly with the health
care provider of the employee or his or her covered family member, the
employee may not be required to provide such an authorization, release,
or waiver. In all instances in which certification is requested, it is
the employee's responsibility to provide the employer with complete and
sufficient certification and failure to do so may result in the denial
of FMLA leave. See Sec. 825.305(d).
Sec. 825.307 Authentication and clarification of medical
certification for leave taken because of an employee's own serious
health condition or the serious health condition of a family member;
second and third opinions.
(a) Clarification and authentication. If an employee submits a
complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the
health care provider. However, the employer may contact the health care
provider for purposes of clarification and authentication of the
medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any deficiencies as set forth in Sec. 825.305(c).
To make such contact, the employer must use a health care provider, a
human resources professional, a leave administrator, or a management
official. Under no circumstances, however, may the employee's direct
supervisor contact the employee's health care provider. For purposes of
these regulations, authentication means providing the health care
provider with a copy of the certification and requesting verification
that the information contained on the certification form was completed
and/or authorized by the health care provider who signed the document;
no additional medical information may be requested. Clarification means
contacting the health care provider to understand the handwriting on
the medical certification or to understand the meaning of a response.
Employers may not ask health care providers for additional information
beyond that required by the certification form. The requirements of the
Health Insurance Portability and Accountability Act (HIPAA) Privacy
Rule (see 45 CFR parts 160 and 164), which governs the privacy of
individually-identifiable health information created or held by HIPAA-
covered entities, must be satisfied when individually-identifiable
health information of an employee is shared with an employer by a
HIPAA-covered health care provider. If an employee chooses not to
provide the employer with authorization allowing the employer to
clarify the certification with the health care provider, and does not
otherwise clarify the certification, the employer may deny the taking
of FMLA leave if the certification is unclear. See Sec. 825.305(d). It
is the employee's responsibility to provide the employer with a
complete and sufficient certification and to clarify the certification
if necessary.
(b) Second opinion. (1) An employer who has reason to doubt the
validity of a medical certification may require the employee to obtain
a second opinion at the employer's expense. Pending receipt of the
second (or third) medical opinion, the employee is provisionally
entitled to the benefits of the Act, including maintenance of group
health benefits. If the certifications do not ultimately establish the
employee's entitlement to FMLA leave, the leave shall not be designated
as FMLA leave and may be treated as paid or unpaid leave under the
employer's established leave policies. In addition, the consequences
set forth in Sec. 825.305(d) will apply if the employee or the
employee's family member fails to authorize his or her health care
provider to release all relevant medical information pertaining to the
serious health condition at issue if requested by the health care
provider designated to provide a second opinion in order to render a
sufficient and complete second opinion.
(2) The employer is permitted to designate the health care provider
to furnish the second opinion, but the selected health care provider
may not be employed on a regular basis by the employer. The employer
may not regularly contract with or otherwise
[[Page 8937]]
regularly utilize the services of the health care provider furnishing
the second opinion unless the employer is located in an area where
access to health care is extremely limited (e.g., a rural area where no
more than one or two doctors practice in the relevant specialty in the
vicinity).
(c) Third opinion. If the opinions of the employee's and the
employer's designated health care providers differ, the employer may
require the employee to obtain certification from a third health care
provider, again at the employer's expense. This third opinion shall be
final and binding. The third health care provider must be designated or
approved jointly by the employer and the employee. The employer and the
employee must each act in good faith to attempt to reach agreement on
whom to select for the third opinion provider. If the employer does not
attempt in good faith to reach agreement, the employer will be bound by
the first certification. If the employee does not attempt in good faith
to reach agreement, the employee will be bound by the second
certification. For example, an employee who refuses to agree to see a
doctor in the specialty in question may be failing to act in good
faith. On the other hand, an employer that refuses to agree to any
doctor on a list of specialists in the appropriate field provided by
the employee and whom the employee has not previously consulted may be
failing to act in good faith. In addition, the consequences set forth
in Sec. 825.305(d) will apply if the employee or the employee's family
member fails to authorize his or her health care provider to release
all relevant medical information pertaining to the serious health
condition at issue if requested by the health care provider designated
to provide a third opinion in order to render a sufficient and complete
third opinion.
(d) Copies of opinions. The employer is required to provide the
employee with a copy of the second and third medical opinions, where
applicable, upon request by the employee. Requested copies are to be
provided within five business days unless extenuating circumstances
prevent such action.
(e) Travel expenses. If the employer requires the employee to
obtain either a second or third opinion the employer must reimburse an
employee or family member for any reasonable ``out of pocket'' travel
expenses incurred to obtain the second and third medical opinions. The
employer may not require the employee or family member to travel
outside normal commuting distance for purposes of obtaining the second
or third medical opinions except in very unusual circumstances.
(f) Medical certification abroad. In circumstances in which the
employee or a family member is visiting in another country, or a family
member resides in another country, and a serious health condition
develops, the employer shall accept a medical certification as well as
second and third opinions from a health care provider who practices in
that country. Where a certification by a foreign health care provider
is in a language other than English, the employee must provide the
employer with a written translation of the certification upon request.
|
|
| Family & Medical Leave Act Final Rule: Part 10 825.100-825.803
|
| Sec. 825.308 Recertifications for leave taken because of an
employee's own serious health condition or the serious health condition
of a family member.
(a) 30-day rule. An employer may request recertification no more
often than every 30 days and only in connection with an absence by the
employee, unless paragraphs (b) or (c) of this section apply.
(b) More than 30 days. If the medical certification indicates that
the minimum duration of the condition is more than 30 days, an employer
must wait until that minimum duration expires before requesting a
recertification, unless paragraph (c) of this section applies. For
example, if the medical certification states that an employee will be
unable to work, whether continuously or on an intermittent basis, for
40 days, the employer must wait 40 days before requesting a
recertification. In all cases, an employer may request a
recertification of a medical condition every six months in connection
with an absence by the employee. Accordingly, even if the medical
certification indicates that the employee will need intermittent or
reduced schedule leave for a period in excess of six months (e.g., for
a lifetime condition), the employer would be permitted to request
recertification every six months in connection with an absence.
(c) Less than 30 days. An employer may request recertification in
less than 30 days if:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the absence,
the nature or severity of the illness, complications). For example, if
a medical certification stated that an employee would need leave for
one to two days when the employee suffered a migraine headache and the
employee's absences for his or her last two migraines lasted four days
each, then the increased duration of absence might constitute a
significant change in circumstances allowing the employer to request a
recertification in less than 30 days. Likewise, if an employee had a
pattern of using unscheduled FMLA leave for migraines in conjunction
with his or her scheduled days off, then the timing of the absences
also might constitute a significant change in circumstances sufficient
for an employer to request a recertification more frequently than every
30 days; or
(3) The employer receives information that casts doubt upon the
employee's stated reason for the absence or the continuing validity of
the certification. For example, if an employee is on FMLA leave for
four weeks due to the employee's knee surgery, including recuperation,
and the employee plays in company softball league games during the
employee's third week of FMLA leave, such information might be
sufficient to cast doubt upon the continuing validity of the
certification allowing the employer to request a recertification in
less than 30 days.
(d) Timing. The employee must provide the requested recertification
to the employer within the time frame requested by the employer (which
must allow at least 15 calendar days after the employer's request),
unless it is not practicable under the particular circumstances to do
so despite the employee`s diligent, good faith efforts.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification for leave taken because of a
serious health condition, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the
health care provider if the serious health condition and need for leave
is consistent with such a pattern.
(f) Any recertification requested by the employer shall be at the
employee's expense unless the employer provides otherwise. No second or
third opinion on recertification may be required.
Sec. 825.309 Certification for leave taken because of a qualifying
exigency.
(a) Active Duty Orders. The first time an employee requests leave
because of
[[Page 8938]]
a qualifying exigency arising out of the covered active duty or call to
covered active duty status (or notification of an impending call or
order to covered active duty)of a military member (see Sec.
825.126(a)), an employer may require the employee to provide a copy of
the military member's active duty orders or other documentation issued
by the military which indicates that the military member is on covered
active duty or call to covered active duty status, and the dates of the
military member's covered active duty service. This information need
only be provided to the employer once. A copy of new active duty orders
or other documentation issued by the military may be required by the
employer if the need for leave because of a qualifying exigency arises
out of a different covered active duty or call to covered active duty
status (or notification of an impending call or order to covered active
duty) of the same or a different military member;
(b) Required information. An employer may require that leave for
any qualifying exigency specified in Sec. 825.126 be supported by a
certification from the employee that sets forth the following
information:
(1) A statement or description, signed by the employee, of
appropriate facts regarding the qualifying exigency for which FMLA
leave is requested. The facts must be sufficient to support the need
for leave. Such facts should include information on the type of
qualifying exigency for which leave is requested and any available
written documentation which supports the request for leave; such
documentation, for example, may include a copy of a meeting
announcement for informational briefings sponsored by the military, a
document confirming an appointment with a counselor or school official,
or a copy of a bill for services for the handling of legal or financial
affairs;
(2) The approximate date on which the qualifying exigency commenced
or will commence;
(3) If an employee requests leave because of a qualifying exigency
for a single, continuous period of time, the beginning and end dates
for such absence;
(4) If an employee requests leave because of a qualifying exigency
on an intermittent or reduced schedule basis, an estimate of the
frequency and duration of the qualifying exigency;
(5) If the qualifying exigency involves meeting with a third party,
appropriate contact information for the individual or entity with whom
the employee is meeting (such as the name, title, organization,
address, telephone number, fax number, and email address) and a brief
description of the purpose of the meeting; and
(6) If the qualifying exigency involves Rest and Recuperation
leave, a copy of the military member's Rest and Recuperation orders, or
other documentation issued by the military which indicates that the
military member has been granted Rest and Recuperation leave, and the
dates of the military member's Rest and Recuperation leave.
(c) DOL has developed an optional form (Form WH-384) for employees'
use in obtaining a certification that meets FMLA's certification
requirements. Form WH-384 may be obtained from local offices of the
Wage and Hour Division or from the Internet at www.dol.gov/whd. This
optional form reflects certification requirements so as to permit the
employee to furnish appropriate information to support his or her
request for leave because of a qualifying exigency. Form WH-384, or
another form containing the same basic information, may be used by the
employer; however, no information may be required beyond that specified
in this section.
(d) Verification. If an employee submits a complete and sufficient
certification to support his or her request for leave because of a
qualifying exigency, the employer may not request additional
information from the employee. However, if the qualifying exigency
involves meeting with a third party, the employer may contact the
individual or entity with whom the employee is meeting for purposes of
verifying a meeting or appointment schedule and the nature of the
meeting between the employee and the specified individual or entity.
The employee's permission is not required in order to verify meetings
or appointments with third parties, but no additional information may
be requested by the employer. An employer also may contact an
appropriate unit of the Department of Defense to request verification
that a military member is on covered active duty or call to covered
active duty status (or has been notified of an impending call or order
to covered active duty); no additional information may be requested and
the employee's permission is not required.
Sec. 825.310 Certification for leave taken to care for a covered
servicemember (military caregiver leave).
(a) Required information from health care provider. When leave is
taken to care for a covered servicemember with a serious injury or
illness, an employer may require an employee to obtain a certification
completed by an authorized health care provider of the covered
servicemember. For purposes of leave taken to care for a covered
servicemember, any one of the following health care providers may
complete such a certification:
(1) A United States Department of Defense (``DOD'') health care
provider;
(2) A United States Department of Veterans Affairs (``VA'') health
care provider;
(3) A DOD TRICARE network authorized private health care provider;
(4) A DOD non-network TRICARE authorized private health care
provider; or
(5) Any health care provider as defined in Sec. 825.125.
(b) If the authorized health care provider is unable to make
certain military-related determinations outlined below, the authorized
health care provider may rely on determinations from an authorized DOD
representative (such as a DOD Recovery Care Coordinator) or an
authorized VA representative. An employer may request that the health
care provider provide the following information:
(1) The name, address, and appropriate contact information
(telephone number, fax number, and/or email address) of the health care
provider, the type of medical practice, the medical specialty, and
whether the health care provider is one of the following:
(i) A DOD health care provider;
(ii) A VA health care provider;
(iii) A DOD TRICARE network authorized private health care
provider;
(iv) A DOD non-network TRICARE authorized private health care
provider; or
(v) A health care provider as defined in Sec. 825.125.
(2) Whether the covered servicemember's injury or illness was
incurred in the line of duty on active duty or, if not, whether the
covered servicemember's injury or illness existed before the beginning
of the servicemember's active duty and was aggravated by service in the
line of duty on active duty;
(3) The approximate date on which the serious injury or illness
commenced, or was aggravated, and its probable duration;
(4) A statement or description of appropriate medical facts
regarding the covered servicemember's health condition for which FMLA
leave is requested. The medical facts must be sufficient to support the
need for leave.
(i) In the case of a current member of the Armed Forces, such
medical facts
[[Page 8939]]
must include information on whether the injury or illness may render
the covered servicemember medically unfit to perform the duties of the
servicemember's office, grade, rank, or rating and whether the member
is receiving medical treatment, recuperation, or therapy.
(ii) In the case of a covered veteran, such medical facts must
include:
(A) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is
the continuation of an injury or illness that was incurred or
aggravated when the covered veteran was a member of the Armed Forces
and rendered the servicemember medically unfit to perform the duties of
the servicemember's office, grade, rank, or rating; or
(B) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is a
physical or mental condition for which the covered veteran has received
a U.S. Department of Veterans Affairs Service-Related Disability Rating
(VASRD) of 50 percent or greater, and that such VASRD rating is based,
in whole or in part, on the condition precipitating the need for
military caregiver leave; or
(C) Information on whether the veteran is receiving medical
treatment, recuperation, or therapy for an injury or illness that is a
physical or mental condition that substantially impairs the covered
veteran's ability to secure or follow a substantially gainful
occupation by reason of a disability or disabilities related to
military service, or would do so absent treatment; or
(D) Documentation of enrollment in the Department of Veterans
Affairs Program of Comprehensive Assistance for Family Caregivers.
(5) Information sufficient to establish that the covered
servicemember is in need of care, as described in Sec. 825.124, and
whether the covered servicemember will need care for a single
continuous period of time, including any time for treatment and
recovery, and an estimate as to the beginning and ending dates for this
period of time;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment appointments for the
covered servicemember, whether there is a medical necessity for the
covered servicemember to have such periodic care and an estimate of the
treatment schedule of such appointments;
(7) If an employee requests leave on an intermittent or reduced
schedule basis to care for a covered servicemember other than for
planned medical treatment (e.g., episodic flare-ups of a medical
condition), whether there is a medical necessity for the covered
servicemember to have such periodic care, which can include assisting
in the covered servicemember's recovery, and an estimate of the
frequency and duration of the periodic care.
(c) Required information from employee and/or covered
servicemember. In addition to the information that may be requested
under Sec. 825.310(b), an employer may also request that such
certification set forth the following information provided by an
employee and/or covered servicemember:
(1) The name and address of the employer of the employee requesting
leave to care for a covered servicemember, the name of the employee
requesting such leave, and the name of the covered servicemember for
whom the employee is requesting leave to care;
(2) The relationship of the employee to the covered servicemember
for whom the employee is requesting leave to care;
(3) Whether the covered servicemember is a current member of the
Armed Forces, the National Guard or Reserves, and the covered
servicemember's military branch, rank, and current unit assignment;
(4) Whether the covered servicemember is assigned to a military
medical facility as an outpatient or to a unit established for the
purpose of providing command and control of members of the Armed Forces
receiving medical care as outpatients (such as a medical hold or
warrior transition unit), and the name of the medical treatment
facility or unit;
(5) Whether the covered servicemember is on the temporary
disability retired list;
(6) Whether the covered servicemember is a veteran, the date of
separation from military service, and whether the separation was other
than dishonorable. The employer may require the employee to provide
documentation issued by the military which indicates that the covered
servicemember is a veteran, the date of separation, and that the
separation is other than dishonorable. Where an employer requires such
documentation, an employee may provide a copy of the veteran's
Certificate of Release or Discharge from Active Duty issued by the U.S.
Department of Defense (DD Form 214) or other proof of veteran status.
See Sec. 825.127(c)(2).
(7) A description of the care to be provided to the covered
servicemember and an estimate of the leave needed to provide the care.
(d) DOL has developed optional forms (WH-385, WH-385-V) for
employees' use in obtaining certification that meets FMLA's
certification requirements, which may be obtained from local offices of
the Wage and Hour Division or on the Internet at www.dol.gov/whd. These
optional forms reflect certification requirements so as to permit the
employee to furnish appropriate information to support his or her
request for leave to care for a covered servicemember with a serious
injury or illness. WH-385, WH-385-V, or another form containing the
same basic information, may be used by the employer; however, no
information may be required beyond that specified in this section. In
all instances the information on the certification must relate only to
the serious injury or illness for which the current need for leave
exists. An employer may seek authentication and/or clarification of the
certification under Sec. 825.307. Second and third opinions under
Sec. 825.307 are not permitted for leave to care for a covered
servicemember when the certification has been completed by one of the
types of health care providers identified in Sec. 825.310(a)(1)-(4).
However, second and third opinions under Sec. 825.307 are permitted
when the certification has been completed by a health care provider as
defined in Sec. 825.125 that is not one of the types identified in
Sec. 825.310(a)(1)-(4). Additionally, recertifications under Sec.
825.308 are not permitted for leave to care for a covered
servicemember. An employer may require an employee to provide
confirmation of covered family relationship to the seriously injured or
ill servicemember pursuant to Sec. 825.122(k) of the FMLA.
(e) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification, in lieu of the Department's optional certification forms
(WH-385) or an employer's own certification form, invitational travel
orders (ITOs) or invitational travel authorizations (ITAs) issued to
any family member to join an injured or ill servicemember at his or her
bedside. An ITO or ITA is sufficient certification for the duration of
time specified in the ITO or ITA. During that time period, an eligible
employee may take leave to care for the covered servicemember in a
continuous block of time or on an intermittent basis. An eligible
employee who provides an ITO or ITA to support his or her request for
leave may not be required to provide any additional or separate
certification
[[Page 8940]]
that leave taken on an intermittent basis during the period of time
specified in the ITO or ITA is medically necessary. An ITO or ITA is
sufficient certification for an employee entitled to take FMLA leave to
care for a covered servicemember regardless of whether the employee is
named in the order or authorization.
(1) If an employee will need leave to care for a covered
servicemember beyond the expiration date specified in an ITO or ITA, an
employer may request that the employee have one of the authorized
health care providers listed under Sec. 825.310(a) complete the DOL
optional certification form (WH-385) or an employer's own form, as
requisite certification for the remainder of the employee's necessary
leave period.
(2) An employer may seek authentication and clarification of the
ITO or ITA under Sec. 825.307. An employer may not utilize the second
or third opinion process outlined in Sec. 825.307 or the
recertification process under Sec. 825.308 during the period of time
in which leave is supported by an ITO or ITA.
(3) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(k) when an employee supports
his or her request for FMLA leave with a copy of an ITO or ITA.
(f) An employer requiring an employee to submit a certification for
leave to care for a covered servicemember must accept as sufficient
certification of the servicemember's serious injury or illness
documentation indicating the servicemember's enrollment in the
Department of Veterans Affairs Program of Comprehensive Assistance for
Family Caregivers. Such documentation is sufficient certification of
the servicemember's serious injury or illness to support the employee's
request for military caregiver leave regardless of whether the employee
is the named caregiver in the enrollment documentation.
(1) An employer may seek authentication and clarification of the
documentation indicating the servicemember's enrollment in the
Department of Veterans Affairs Program of Comprehensive Assistance for
Family Caregivers under Sec. 825.307. An employer may not utilize the
second or third opinion process outlined in Sec. 825.307 or the
recertification process under Sec. 825.308 when the servicemember's
serious injury or illness is shown by documentation of enrollment in
this program.
(2) An employer may require an employee to provide confirmation of
covered family relationship to the seriously injured or ill
servicemember pursuant to Sec. 825.122(k) when an employee supports
his or her request for FMLA leave with a copy of such enrollment
documentation. An employer may also require an employee to provide
documentation, such as a veteran's Form DD-214, showing that the
discharge was other than dishonorable and the date of the veteran's
discharge.
(g) Where medical certification is requested by an employer, an
employee may not be held liable for administrative delays in the
issuance of military documents, despite the employee's diligent, good-
faith efforts to obtain such documents. See Sec. 825.305(b). In all
instances in which certification is requested, it is the employee's
responsibility to provide the employer with complete and sufficient
certification and failure to do so may result in the denial of FMLA
leave. See Sec. 825.305(d).
Sec. 825.311 Intent to return to work.
(a) An employer may require an employee on FMLA leave to report
periodically on the employee's status and intent to return to work. The
employer's policy regarding such reports may not be discriminatory and
must take into account all of the relevant facts and circumstances
related to the individual employee's leave situation.
(b) If an employee gives unequivocal notice of intent not to return
to work, the employer's obligations under FMLA to maintain health
benefits (subject to COBRA requirements) and to restore the employee
cease. However, these obligations continue if an employee indicates he
or she may be unable to return to work but expresses a continuing
desire to do so.
(c) It may be necessary for an employee to take more leave than
originally anticipated. Conversely, an employee may discover after
beginning leave that the circumstances have changed and the amount of
leave originally anticipated is no longer necessary. An employee may
not be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave. In both of these
situations, the employer may require that the employee provide the
employer reasonable notice (i.e., within two business days) of the
changed circumstances where foreseeable. The employer may also obtain
information on such changed circumstances through requested status
reports.
Sec. 825.312 Fitness-for-duty certification.
(a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate (including providing a complete and
sufficient certification or providing sufficient authorization to the
health care provider to provide the information directly to the
employer) in the fitness-for-duty certification process as in the
initial certification process. See Sec. 825.305(d).
(b) An employer may seek a fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification from the employee's health care
provider must certify that the employee is able to resume work.
Additionally, an employer may require that the certification
specifically address the employee's ability to perform the essential
functions of the employee's job. In order to require such a
certification, an employer must provide an employee with a list of the
essential functions of the employee's job no later than with the
designation notice required by Sec. 825.300(d), and must indicate in
the designation notice that the certification must address the
employee's ability to perform those essential functions. If the
employer satisfies these requirements, the employee's health care
provider must certify that the employee can perform the identified
essential functions of his or her job. Following the procedures set
forth in Sec. 825.307(a), the employer may contact the employee's
health care provider for purposes of clarifying and authenticating the
fitness-for-duty certification. Clarification may be requested only for
the serious health condition for which FMLA leave was taken. The
employer may not delay the employee's return to work while contact with
the health care provider is being made. No second or third opinions on
a fitness-for-duty certification may be required.
(c) The cost of the certification shall be borne by the employee,
and the employee is not entitled to be paid for
[[Page 8941]]
the time or travel costs spent in acquiring the certification.
(d) The designation notice required in Sec. 825.300(d) shall
advise the employee if the employer will require a fitness-for-duty
certification to return to work and whether that fitness-for-duty
certification must address the employee's ability to perform the
essential functions of the employee's job.
(e) An employer may delay restoration to employment until an
employee submits a required fitness-for-duty certification unless the
employer has failed to provide the notice required in paragraph (d) of
this section. If an employer provides the notice required, an employee
who does not provide a fitness-for-duty certification or request
additional FMLA leave is no longer entitled to reinstatement under the
FMLA. See Sec. 825.313(d).
(f) An employer is not entitled to a certification of fitness to
return to duty for each absence taken on an intermittent or reduced
leave schedule. However, an employer is entitled to a certification of
fitness to return to duty for such absences up to once every 30 days if
reasonable safety concerns exist regarding the employee's ability to
perform his or her duties, based on the serious health condition for
which the employee took such leave. If an employer chooses to require a
fitness-for-duty certification under such circumstances, the employer
shall inform the employee at the same time it issues the designation
notice that for each subsequent instance of intermittent or reduced
schedule leave, the employee will be required to submit a fitness-for-
duty certification unless one has already been submitted within the
past 30 days. Alternatively, an employer can set a different interval
for requiring a fitness-for-duty certification as long as it does not
exceed once every 30 days and as long as the employer advises the
employee of the requirement in advance of the employee taking the
intermittent or reduced schedule leave. The employer may not terminate
the employment of the employee while awaiting such a certification of
fitness to return to duty for an intermittent or reduced schedule leave
absence. Reasonable safety concerns means a reasonable belief of
significant risk of harm to the individual employee or others. In
determining whether reasonable safety concerns exist, an employer
should consider the nature and severity of the potential harm and the
likelihood that potential harm will occur.
(g) If State or local law or the terms of a collective bargaining
agreement govern an employee's return to work, those provisions shall
be applied.
(h) Requirements under the Americans with Disabilities Act (ADA),
as amended, apply. After an employee returns from FMLA leave, the ADA
requires any medical examination at an employer's expense by the
employer's health care provider be job-related and consistent with
business necessity. For example, an attorney could not be required to
submit to a medical examination or inquiry just because her leg had
been amputated. The essential functions of an attorney's job do not
require use of both legs; therefore such an inquiry would not be job
related. An employer may require a warehouse laborer, whose back
impairment affects the ability to lift, to be examined by an
orthopedist, but may not require this employee to submit to an HIV test
where the test is not related to either the essential functions of his
or her job or to his/her impairment. If an employee's serious health
condition may also be a disability within the meaning of the ADA, the
FMLA does not prevent the employer from following the procedures for
requesting medical information under the ADA.
|
|
| Family & Medical Leave Act Final Rule: Part 11 825.100-825.803
|
| Sec. 825.313 Failure to provide certification.
(a) Foreseeable leave. In the case of foreseeable leave, if an
employee fails to provide certification in a timely manner as required
by Sec. 825.305, then an employer may deny FMLA coverage until the
required certification is provided. For example, if an employee has 15
days to provide a certification and does not provide the certification
for 45 days without sufficient reason for the delay, the employer can
deny FMLA protections for the 30-day period following the expiration of
the 15-day time period, if the employee takes leave during such period.
(b) Unforeseeable leave. In the case of unforeseeable leave, an
employer may deny FMLA coverage for the requested leave if the employee
fails to provide a certification within 15 calendar days from receipt
of the request for certification unless not practicable due to
extenuating circumstances. For example, in the case of a medical
emergency, it may not be practicable for an employee to provide the
required certification within 15 calendar days. Absent such extenuating
circumstances, if the employee fails to timely return the
certification, the employer can deny FMLA protections for the leave
following the expiration of the 15-day time period until a sufficient
certification is provided. If the employee never produces the
certification, the leave is not FMLA leave.
(c) Recertification. An employee must provide recertification
within the time requested by the employer (which must allow at least 15
calendar days after the request) or as soon as practicable under the
particular facts and circumstances. If an employee fails to provide a
recertification within a reasonable time under the particular facts and
circumstances, then the employer may deny continuation of the FMLA
leave protections until the employee produces a sufficient
recertification. If the employee never produces the recertification,
the leave is not FMLA leave. Recertification does not apply to leave
taken for a qualifying exigency or to care for a covered servicemember.
(d) Fitness-for-duty certification. When requested by the employer
pursuant to a uniformly applied policy for similarly-situated
employees, the employee must provide medical certification, at the time
the employee seeks reinstatement at the end of FMLA leave taken for the
employee's serious health condition, that the employee is fit for duty
and able to return to work (see Sec. 825.312(a)) if the employer has
provided the required notice (see Sec. 825.300(e)); the employer may
delay restoration until the certification is provided. Unless the
employee provides either a fitness-for-duty certification or a new
medical certification for a serious health condition at the time FMLA
leave is concluded, the employee may be terminated. See also Sec.
825.213(a)(3).
Subpart D--Enforcement Mechanisms
Sec. 825.400 Enforcement, general rules.
(a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed
within two years after the last action which the employee contends was
in violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: wages, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation; or, where no such tangible loss has occurred, such as when
FMLA leave was unlawfully denied, any actual monetary loss sustained by
the employee as a direct result of the violation, such as the cost of
providing
[[Page 8942]]
care, up to a sum equal to 26 weeks of wages for the employee in a case
involving leave to care for a covered servicemember or 12 weeks of
wages for the employee in a case involving leave for any other FMLA
qualifying reason. In addition, the employee may be entitled to
interest on such sum, calculated at the prevailing rate. An amount
equaling the preceding sums may also be awarded as liquidated damages
unless such amount is reduced by the court because the violation was in
good faith and the employer had reasonable grounds for believing the
employer had not violated the Act. When appropriate, the employee may
also obtain appropriate equitable relief, such as employment,
reinstatement and promotion. When the employer is found in violation,
the employee may recover a reasonable attorney's fee, reasonable expert
witness fees, and other costs of the action from the employer in
addition to any judgment awarded by the court.
Sec. 825.401 Filing a complaint with the Federal Government.
(a) A complaint may be filed in person, by mail or by telephone,
with the Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor. A complaint may be filed at any local office
of the Wage and Hour Division; the address and telephone number of
local offices may be found in telephone directories or on the
Department's Web site.
(b) A complaint filed with the Secretary of Labor should be filed
within a reasonable time of when the employee discovers that his or her
FMLA rights have been violated. In no event may a complaint be filed
more than two years after the action which is alleged to be a violation
of FMLA occurred, or three years in the case of a willful violation.
(c) No particular form of complaint is required, except that a
complaint must be reduced to writing and should include a full
statement of the acts and/or omissions, with pertinent dates, which are
believed to constitute the violation.
Sec. 825.402 Violations of the posting requirement.
Section 825.300 describes the requirements for covered employers to
post a notice for employees that explains the Act's provisions. If a
representative of the Department of Labor determines that an employer
has committed a willful violation of this posting requirement, and that
the imposition of a civil money penalty for such violation is
appropriate, the representative may issue and serve a notice of penalty
on such employer in person or by certified mail. Where service by
certified mail is not accepted, notice shall be deemed received on the
date of attempted delivery. Where service is not accepted, the notice
may be served by regular mail.
Sec. 825.403 Appealing the assessment of a penalty for willful
violation of the posting requirement.
(a) An employer may obtain a review of the assessment of penalty
from the Wage and Hour Regional Administrator for the region in which
the alleged violation(s) occurred. If the employer does not seek such a
review or fails to do so in a timely manner, the notice of the penalty
constitutes the final ruling of the Secretary of Labor.
(b) To obtain review, an employer may file a petition with the Wage
and Hour Regional Administrator for the region in which the alleged
violations occurred. No particular form of petition for review is
required, except that the petition must be in writing, should contain
the legal and factual bases for the petition, and must be mailed to the
Regional Administrator within 15 days of receipt of the notice of
penalty. The employer may request an oral hearing which may be
conducted by telephone.
(c) The decision of the Regional Administrator constitutes the
final order of the Secretary.
Sec. 825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
The Regional Administrator may seek to recover the unpaid penalty
pursuant to the Debt Collection Act (DCA), 31 U.S.C. 3711 et seq., and,
in addition to seeking recovery of the unpaid final order, may seek
interest and penalties as provided under the DCA. The final order may
also be referred to the Solicitor of Labor for collection. The
Secretary may file suit in any court of competent jurisdiction to
recover the monies due as a result of the unpaid final order, interest,
and penalties.
Subpart E--Recordkeeping Requirements
Sec. 825.500 Recordkeeping requirements.
(a) FMLA provides that covered employers shall make, keep, and
preserve records pertaining to their obligations under the Act in
accordance with the recordkeeping requirements of section 11(c) of the
Fair Labor Standards Act (FLSA) and in accordance with these
regulations. FMLA also restricts the authority of the Department of
Labor to require any employer or plan, fund, or program to submit books
or records more than once during any 12-month period unless the
Department has reasonable cause to believe a violation of FMLA exists
or the Department is investigating a complaint. These regulations
establish no requirement for the submission of any records unless
specifically requested by a Departmental official.
(b) No particular order or form of records is required. These
regulations establish no requirement that any employer revise its
computerized payroll or personnel records systems to comply. However,
employers must keep the records specified by these regulations for no
less than three years and make them available for inspection, copying,
and transcription by representatives of the Department of Labor upon
request. The records may be maintained and preserved on microfilm or
other basic source document of an automated data processing memory
provided that adequate projection or viewing equipment is available,
that the reproductions are clear and identifiable by date or pay
period, and that extensions or transcriptions of the information
required herein can be and are made available upon request. Records
kept in computer form must be made available for transcription or
copying.
(c) Covered employers who have eligible employees must maintain
records that must disclose the following:
(1) Basic payroll and identifying employee data, including name,
address, and occupation; rate or basis of pay and terms of
compensation; daily and weekly hours worked per pay period; additions
to or deductions from wages; and total compensation paid.
(2) Dates FMLA leave is taken by FMLA eligible employees (e.g.,
available from time records, requests for leave, etc., if so
designated). Leave must be designated in records as FMLA leave; leave
so designated may not include leave required under State law or an
employer plan which is not also covered by FMLA.
(3) If FMLA leave is taken by eligible employees in increments of
less than one full day, the hours of the leave.
(4) Copies of employee notices of leave furnished to the employer
under FMLA, if in writing, and copies of all written notices given to
employees as required under FMLA and these regulations See Sec.
825.300(b)-(c). Copies may be maintained in employee personnel files.
(5) Any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leaves.
[[Page 8943]]
(6) Premium payments of employee benefits.
(7) Records of any dispute between the employer and an eligible
employee regarding designation of leave as FMLA leave, including any
written statement from the employer or employee of the reasons for the
designation and for the disagreement.
(d) Covered employers with no eligible employees must maintain the
records set forth in paragraph (c)(1) of this section.
(e) Covered employers in a joint employment situation (see Sec.
825.106) must keep all the records required by paragraph (c) of this
section with respect to any primary employees, and must keep the
records required by paragraph (c)(1) with respect to any secondary
employees.
(f) If FMLA-eligible employees are not subject to FLSA's
recordkeeping regulations for purposes of minimum wage or overtime
compliance (i.e., not covered by or exempt from FLSA), an employer need
not keep a record of actual hours worked (as otherwise required under
FLSA, 29 CFR 516.2(a)(7)), provided that:
(1) Eligibility for FMLA leave is presumed for any employee who has
been employed for at least 12 months; and
(2) With respect to employees who take FMLA leave intermittently or
on a reduced leave schedule, the employer and employee agree on the
employee's normal schedule or average hours worked each week and reduce
their agreement to a written record maintained in accordance with
paragraph (b) of this section.
(g) Records and documents relating to certifications,
recertifications or medical histories of employees or employees' family
members, created for purposes of FMLA, shall be maintained as
confidential medical records in separate files/records from the usual
personnel files. If the Genetic Information Nondiscrimination Act of
2008 (GINA) is applicable, records and documents created for purposes
of FMLA containing family medical history or genetic information as
defined in GINA shall be maintained in accordance with the
confidentiality requirements of Title II of GINA (see 29 CFR 1635.9),
which permit such information to be disclosed consistent with the
requirements of FMLA. If the ADA, as amended, is also applicable, such
records shall be maintained in conformance with ADA confidentiality
requirements (see 29 CFR 1630.14(c)(1)), except that:
(1) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of an employee and necessary
accommodations;
(2) First aid and safety personnel may be informed (when
appropriate) if the employee's physical or medical condition might
require emergency treatment; and
(3) Government officials investigating compliance with FMLA (or
other pertinent law) shall be provided relevant information upon
request.
(h) Special rules regarding recordkeeping apply to employers of
airline flight crew employees. See Sec. 825.803.
Subpart F--Special Rules Applicable to Employees of Schools
Sec. 825.600 Special rules for school employees, definitions.
(a) Certain special rules apply to employees of local educational
agencies, including public school boards and elementary and secondary
schools under their jurisdiction, and private elementary and secondary
schools. The special rules do not apply to other kinds of educational
institutions, such as colleges and universities, trade schools, and
preschools.
(b) Educational institutions are covered by FMLA (and these special
rules) and the Act's 50-employee coverage test does not apply. The
usual requirements for employees to be eligible do apply, however,
including employment at a worksite where at least 50 employees are
employed within 75 miles. For example, employees of a rural school
would not be eligible for FMLA leave if the school has fewer than 50
employees and there are no other schools under the jurisdiction of the
same employer (usually, a school board) within 75 miles.
(c) The special rules affect the taking of intermittent leave or
leave on a reduced leave schedule, or leave near the end of an academic
term (semester), by instructional employees. Instructional employees
are those whose principal function is to teach and instruct students in
a class, a small group, or an individual setting. This term includes
not only teachers, but also athletic coaches, driving instructors, and
special education assistants such as signers for the hearing impaired.
It does not include, and the special rules do not apply to, teacher
assistants or aides who do not have as their principal job actual
teaching or instructing, nor does it include auxiliary personnel such
as counselors, psychologists, or curriculum specialists. It also does
not include cafeteria workers, maintenance workers, or bus drivers.
(d) Special rules which apply to restoration to an equivalent
position apply to all employees of local educational agencies.
Sec. 825.601 Special rules for school employees, limitations on
intermittent leave.
(a) Leave taken for a period that ends with the school year and
begins the next semester is leave taken consecutively rather than
intermittently. The period during the summer vacation when the employee
would not have been required to report for duty is not counted against
the employee's FMLA leave entitlement. An instructional employee who is
on FMLA leave at the end of the school year must be provided with any
benefits over the summer vacation that employees would normally receive
if they had been working at the end of the school year.
(1) If an eligible instructional employee needs intermittent leave
or leave on a reduced leave schedule to care for a family member with a
serious health condition, to care for a covered servicemember, or for
the employee's own serious health condition, which is foreseeable based
on planned medical treatment, and the employee would be on leave for
more than 20 percent of the total number of working days over the
period the leave would extend, the employer may require the employee to
choose either to:
(i) Take leave for a period or periods of a particular duration,
not greater than the duration of the planned treatment; or
(ii) Transfer temporarily to an available alternative position for
which the employee is qualified, which has equivalent pay and benefits
and which better accommodates recurring periods of leave than does the
employee's regular position.
(2) These rules apply only to a leave involving more than 20
percent of the working days during the period over which the leave
extends. For example, if an instructional employee who normally works
five days each week needs to take two days of FMLA leave per week over
a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days
during the leave period would not be subject to transfer to an
alternative position. Periods of a particular duration means a block,
or blocks, of time beginning no earlier than the first day for which
leave is needed and ending no later than the last day on which leave is
needed, and may include one uninterrupted period of leave.
[[Page 8944]]
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently
or on a reduced leave schedule, the employer may require the employee
to take leave of a particular duration, or to transfer temporarily to
an alternative position. Alternatively, the employer may require the
employee to delay the taking of leave until the notice provision is
met.
Sec. 825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
(a) There are also different rules for instructional employees who
begin leave more than five weeks before the end of a term, less than
five weeks before the end of a term, and less than three weeks before
the end of a term. Regular rules apply except in circumstances when:
(1) An instructional employee begins leave more than five weeks
before the end of a term. The employer may require the employee to
continue taking leave until the end of the term if --
(i) The leave will last at least three weeks, and
(ii) The employee would return to work during the three-week period
before the end of the term.
(2) The employee begins leave during the five-week period before
the end of a term because of the birth of a son or daughter; the
placement of a son or daughter for adoption or foster care; to care for
a spouse, son, daughter, or parent with a serious health condition; or
to care for a covered servicemember. The employer may require the
employee to continue taking leave until the end of the term if--
(i) The leave will last more than two weeks, and
(ii) The employee would return to work during the two-week period
before the end of the term.
(3) The employee begins leave during the three-week period before
the end of a term because of the birth of a son or daughter; the
placement of a son or daughter for adoption or foster care; to care for
a spouse, son, daughter, or parent with a serious health condition; or
to care for a covered servicemember. The employer may require the
employee to continue taking leave until the end of the term if the
leave will last more than five working days.
(b) For purposes of these provisions, academic term means the
school semester, which typically ends near the end of the calendar year
and the end of spring each school year. In no case may a school have
more than two academic terms or semesters each year for purposes of
FMLA. An example of leave falling within these provisions would be
where an employee plans two weeks of leave to care for a family member
which will begin three weeks before the end of the term. In that
situation, the employer could require the employee to stay out on leave
until the end of the term.
|
|
| Family & Medical Leave Act Final Rule: Part 8 825.100-825.803
|
| Sec. 825.220 Protection for employees who request leave or otherwise
assert FMLA rights.
(a) The FMLA prohibits interference with an employee's rights under
the law, and with legal proceedings or inquiries relating to an
employee's rights. More specifically, the law contains the following
employee protections:
(1) An employer is prohibited from interfering with, restraining,
or denying the exercise of (or attempts to exercise) any rights
provided by the Act.
(2) An employer is prohibited from discharging or in any other way
discriminating against any person (whether or not an employee) for
opposing or complaining about any unlawful practice under the Act.
(3) All persons (whether or not employers) are prohibited from
discharging or in any other way discriminating against any person
(whether or not an employee) because that person has--
(i) Filed any charge, or has instituted (or caused to be
instituted) any proceeding under or related to this Act;
[[Page 8930]]
(ii) Given, or is about to give, any information in connection with
an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or
proceeding relating to a right under this Act.
(b) Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights
provided by the Act. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered. See Sec. 825.400(c). Interfering with the exercise of an
employee's rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such
leave. It would also include manipulation by a covered employer to
avoid responsibilities under FMLA, for example:
(1) Transferring employees from one worksite to another for the
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
(2) Changing the essential functions of the job in order to
preclude the taking of leave;
(3) Reducing hours available to work in order to avoid employee
eligibility.
(c) The Act's prohibition against interference prohibits an
employer from discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA
rights. For example, if an employee on leave without pay would
otherwise be entitled to full benefits (other than health benefits),
the same benefits would be required to be provided to an employee on
unpaid FMLA leave. By the same token, employers cannot use the taking
of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions; nor can FMLA leave be
counted under no fault attendance policies. See Sec. 825.215.
(d) Employees cannot waive, nor may employers induce employees to
waive, their prospective rights under FMLA. For example, employees (or
their collective bargaining representatives) cannot trade off the right
to take FMLA leave against some other benefit offered by the employer.
This does not prevent the settlement or release of FMLA claims by
employees based on past employer conduct without the approval of the
Department of Labor or a court. Nor does it prevent an employee's
voluntary and uncoerced acceptance (not as a condition of employment)
of a light duty assignment while recovering from a serious health
condition. See Sec. 825.702(d). An employee's acceptance of such light
duty assignment does not constitute a waiver of the employee's
prospective rights, including the right to be restored to the same
position the employee held at the time the employee's FMLA leave
commenced or to an equivalent position. The employee's right to
restoration, however, ceases at the end of the applicable 12-month FMLA
leave year.
(e) Individuals, and not merely employees, are protected from
retaliation for opposing (e.g., filing a complaint about) any practice
which is unlawful under the Act. They are similarly protected if they
oppose any practice which they reasonably believe to be a violation of
the Act or regulations.
Subpart C--Employee and Employer Rights and Obligations Under the
Act
Sec. 825.300 Employer notice requirements.
(a) General notice. (1) Every employer covered by the FMLA is
required to post and keep posted on its premises, in conspicuous places
where employees are employed, a notice explaining the Act's provisions
and providing information concerning the procedures for filing
complaints of violations of the Act with the Wage and Hour Division.
The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must
be large enough to be easily read and contain fully legible text.
Electronic posting is sufficient to meet this posting requirement as
long as it otherwise meets the requirements of this section. An
employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $110 for each separate offense.
(2) Covered employers must post this general notice even if no
employees are eligible for FMLA leave.
(3) If an FMLA-covered employer has any eligible employees, it
shall also provide this general notice to each employee by including
the notice in employee handbooks or other written guidance to employees
concerning employee benefits or leave rights, if such written materials
exist, or by distributing a copy of the general notice to each new
employee upon hiring. In either case, distribution may be accomplished
electronically.
(4) To meet the requirements of paragraph (a)(3) of this section,
employers may duplicate the text of the Department's prototype notice
(WHD Publication 1420) or may use another format so long as the
information provided includes, at a minimum, all of the information
contained in that notice. Where an employer's workforce is comprised of
a significant portion of workers who are not literate in English, the
employer shall provide the general notice in a language in which the
employees are literate. Prototypes are available from the nearest
office of the Wage and Hour Division or on the Internet at www.dol.gov/whd. Employers furnishing FMLA notices to sensory-impaired individuals
must also comply with all applicable requirements under Federal or
State law.
(b) Eligibility notice. (1) When an employee requests FMLA leave,
or when the employer acquires knowledge that an employee's leave may be
for an FMLA-qualifying reason, the employer must notify the employee of
the employee's eligibility to take FMLA leave within five business
days, absent extenuating circumstances. See Sec. 825.110 for
definition of an eligible employee and Sec. 825.801 for special hours
of service eligibility requirements for airline flight crews. Employee
eligibility is determined (and notice must be provided) at the
commencement of the first instance of leave for each FMLA-qualifying
reason in the applicable 12-month period. See Sec. Sec. 825.127(c) and
825.200(b). All FMLA absences for the same qualifying reason are
considered a single leave and employee eligibility as to that reason
for leave does not change during the applicable 12-month period.
(2) The eligibility notice must state whether the employee is
eligible for FMLA leave as defined in Sec. 825.110. If the employee is
not eligible for FMLA leave, the notice must state at least one reason
why the employee is not eligible, including as applicable the number of
months the employee has been employed by the employer, the hours of
service with the employer during the 12-month period, and whether the
employee is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. Notification
of eligibility may be oral or in writing; employers may use optional
Form WH-381 (Notice of Eligibility and Rights and Responsibility) to
provide such notification to employees. Prototypes are available from
the nearest office of the Wage and Hour Division or on the Internet at
www.dol.gov/whd. The employer is obligated to translate this
[[Page 8931]]
notice in any situation in which it is obligated to do so in Sec.
825.300(a)(4).
(3) If, at the time an employee provides notice of a subsequent
need for FMLA leave during the applicable 12-month period due to a
different FMLA-qualifying reason, and the employee's eligibility status
has not changed, no additional eligibility notice is required. If,
however, the employee's eligibility status has changed (e.g., if the
employee has not met the hours of service requirement in the 12 months
preceding the commencement of leave for the subsequent qualifying
reason or the size of the workforce at the worksite has dropped below
50 employees), the employer must notify the employee of the change in
eligibility status within five business days, absent extenuating
circumstances.
(c) Rights and responsibilities notice. (1) Employers shall provide
written notice detailing the specific expectations and obligations of
the employee and explaining any consequences of a failure to meet these
obligations. The employer is obligated to translate this notice in any
situation in which it is obligated to do so in Sec. 825.300(a)(4).
This notice shall be provided to the employee each time the eligibility
notice is provided pursuant to paragraph (b) of this section. If leave
has already begun, the notice should be mailed to the employee's
address of record. Such specific notice must include, as appropriate:
(i) That the leave may be designated and counted against the
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.
825.300(c) and 825.301) and the applicable 12-month period for FMLA
entitlement (see Sec. Sec. 825.127(c), 825.200(b), (f), and (g));
(ii) Any requirements for the employee to furnish certification of
a serious health condition, serious injury or illness, or qualifying
exigency arising out of covered active duty or call to covered active
duty status, and the consequences of failing to do so (see Sec. Sec.
825.305, 825.309, 825.310, 825.313);
(iii) The employee's right to substitute paid leave, whether the
employer will require the substitution of paid leave, the conditions
related to any substitution, and the employee's entitlement to take
unpaid FMLA leave if the employee does not meet the conditions for paid
leave (see Sec. 825.207);
(iv) Any requirement for the employee to make any premium payments
to maintain health benefits and the arrangements for making such
payments (see Sec. 825.210), and the possible consequences of failure
to make such payments on a timely basis (i.e., the circumstances under
which coverage may lapse);
(v) The employee's status as a key employee and the potential
consequence that restoration may be denied following FMLA leave,
explaining the conditions required for such denial (see Sec. 825.218);
(vi) The employee's rights to maintenance of benefits during the
FMLA leave and restoration to the same or an equivalent job upon return
from FMLA leave (see Sec. Sec. 825.214 and 825.604); and
(vii) The employee's potential liability for payment of health
insurance premiums paid by the employer during the employee's unpaid
FMLA leave if the employee fails to return to work after taking FMLA
leave (see Sec. 825.213).
(2) The notice of rights and responsibilities may include other
information--e.g., whether the employer will require periodic reports
of the employee's status and intent to return to work--but is not
required to do so.
(3) The notice of rights and responsibilities may be accompanied by
any required certification form.
(4) If the specific information provided by the notice of rights
and responsibilities changes, the employer shall, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, provide written notice referencing the prior
notice and setting forth any of the information in the notice of rights
and responsibilities that has changed. For example, if the initial
leave period was paid leave and the subsequent leave period would be
unpaid leave, the employer may need to give notice of the arrangements
for making premium payments.
(5) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(6) A prototype notice of rights and responsibilities may be
obtained from local offices of the Wage and Hour Division or from the
Internet at www.dol.gov/whd. Employers may adapt the prototype notice
as appropriate to meet these notice requirements. The notice of rights
and responsibilities may be distributed electronically so long as it
otherwise meets the requirements of this section.
(d) Designation notice. (1) The employer is responsible in all
circumstances for designating leave as FMLA-qualifying, and for giving
notice of the designation to the employee as provided in this section.
When the employer has enough information to determine whether the leave
is being taken for a FMLA-qualifying reason (e.g., after receiving a
certification), the employer must notify the employee whether the leave
will be designated and will be counted as FMLA leave within five
business days absent extenuating circumstances. Only one notice of
designation is required for each FMLA-qualifying reason per applicable
12-month period, regardless of whether the leave taken due to the
qualifying reason will be a continuous block of leave or intermittent
or reduced schedule leave. If the employer determines that the leave
will not be designated as FMLA-qualifying (e.g., if the leave is not
for a reason covered by FMLA or the FMLA leave entitlement has been
exhausted), the employer must notify the employee of that
determination. If the employer requires paid leave to be substituted
for unpaid FMLA leave, or that paid leave taken under an existing leave
plan be counted as FMLA leave, the employer must inform the employee of
this designation at the time of designating the FMLA leave.
(2) If the employer has sufficient information to designate the
leave as FMLA leave immediately after receiving notice of the
employee's need for leave, the employer may provide the employee with
the designation notice at that time.
(3) If the employer will require the employee to present a fitness-
for-duty certification to be restored to employment, the employer must
provide notice of such requirement with the designation notice. If the
employer will require that the fitness-for-duty certification address
the employee's ability to perform the essential functions of the
employee's position, the employer must so indicate in the designation
notice, and must include a list of the essential functions of the
employee's position. See Sec. 825.312. If the employer handbook or
other written documents (if any) describing the employer's leave
policies clearly provide that a fitness-for-duty certification will be
required in specific circumstances (e.g., by stating that fitness-for-
duty certification will be required in all cases of back injuries for
employees in a certain occupation), the employer is not required to
provide written notice of the requirement with the designation notice,
but must provide oral notice no later than with the designation notice.
(4) The designation notice must be in writing. A prototype
designation notice may be obtained from local offices of the Wage and
Hour Division or from the Internet at www.dol.gov/whd. If the leave is
not designated as FMLA leave because it does not meet the requirements
of the Act, the notice to
[[Page 8932]]
the employee that the leave is not designated as FMLA leave may be in
the form of a simple written statement.
(5) If the information provided by the employer to the employee in
the designation notice changes (e.g., the employee exhausts the FMLA
leave entitlement), the employer shall provide, within five business
days of receipt of the employee's first notice of need for leave
subsequent to any change, written notice of the change.
(6) The employer must notify the employee of the amount of leave
counted against the employee's FMLA leave entitlement. If the amount of
leave needed is known at the time the employer designates the leave as
FMLA-qualifying, the employer must notify the employee of the number of
hours, days, or weeks that will be counted against the employee's FMLA
leave entitlement in the designation notice. If it is not possible to
provide the hours, days, or weeks that will be counted against the
employee's FMLA leave entitlement (such as in the case of unforeseeable
intermittent leave), then the employer must provide notice of the
amount of leave counted against the employee's FMLA leave entitlement
upon the request by the employee, but no more often than once in a 30-
day period and only if leave was taken in that period. The notice of
the amount of leave counted against the employee's FMLA entitlement may
be oral or in writing. If such notice is oral, it shall be confirmed in
writing, no later than the following payday (unless the payday is less
than one week after the oral notice, in which case the notice must be
no later than the subsequent payday). Such written notice may be in any
form, including a notation on the employee's pay stub.
(e) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint, or denial of the exercise of an
employee's FMLA rights. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered See Sec. 825.400(c).
Sec. 825.301 Designation of FMLA leave.
(a) Employer responsibilities. The employer's decision to designate
leave as FMLA-qualifying must be based only on information received
from the employee or the employee's spokesperson (e.g., if the employee
is incapacitated, the employee's spouse, adult child, parent, doctor,
etc., may provide notice to the employer of the need to take FMLA
leave). In any circumstance where the employer does not have sufficient
information about the reason for an employee's use of leave, the
employer should inquire further of the employee or the spokesperson to
ascertain whether leave is potentially FMLA-qualifying. Once the
employer has acquired knowledge that the leave is being taken for a
FMLA-qualifying reason, the employer must notify the employee as
provided in Sec. 825.300(d).
(b) Employee responsibilities. An employee giving notice of the
need for FMLA leave does not need to expressly assert rights under the
Act or even mention the FMLA to meet his or her obligation to provide
notice, though the employee would need to state a qualifying reason for
the needed leave and otherwise satisfy the notice requirements set
forth in Sec. 825.302 or Sec. 825.303 depending on whether the need
for leave is foreseeable or unforeseeable. An employee giving notice of
the need for FMLA leave must explain the reasons for the needed leave
so as to allow the employer to determine whether the leave qualifies
under the Act. If the employee fails to explain the reasons, leave may
be denied. In many cases, in explaining the reasons for a request to
use leave, especially when the need for the leave was unexpected or
unforeseen, an employee will provide sufficient information for the
employer to designate the leave as FMLA leave. An employee using
accrued paid leave may in some cases not spontaneously explain the
reasons or their plans for using their accrued leave. However, if an
employee requesting to use paid leave for a FMLA-qualifying reason does
not explain the reason for the leave and the employer denies the
employee's request, the employee will need to provide sufficient
information to establish a FMLA-qualifying reason for the needed leave
so that the employer is aware that the leave may not be denied and may
designate that the paid leave be appropriately counted against
(substituted for) the employee's FMLA leave entitlement. Similarly, an
employee using accrued paid vacation leave who seeks an extension of
unpaid leave for a FMLA-qualifying reason will need to state the
reason. If this is due to an event which occurred during the period of
paid leave, the employer may count the leave used after the FMLA-
qualifying reason against the employee's FMLA leave entitlement.
(c) Disputes. If there is a dispute between an employer and an
employee as to whether leave qualifies as FMLA leave, it should be
resolved through discussions between the employee and the employer.
Such discussions and the decision must be documented.
(d) Retroactive designation. If an employer does not designate
leave as required by Sec. 825.300, the employer may retroactively
designate leave as FMLA leave with appropriate notice to the employee
as required by Sec. 825.300 provided that the employer's failure to
timely designate leave does not cause harm or injury to the employee.
In all cases where leave would qualify for FMLA protections, an
employer and an employee can mutually agree that leave be retroactively
designated as FMLA leave.
(e) Remedies. If an employer's failure to timely designate leave in
accordance with Sec. 825.300 causes the employee to suffer harm, it
may constitute an interference with, restraint of, or denial of the
exercise of an employee's FMLA rights. An employer may be liable for
compensation and benefits lost by reason of the violation, for other
actual monetary losses sustained as a direct result of the violation,
and for appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered. See Sec. 825.400(c). For example, if an employer that was
put on notice that an employee needed FMLA leave failed to designate
the leave properly, but the employee's own serious health condition
prevented him or her from returning to work during that time period
regardless of the designation, an employee may not be able to show that
the employee suffered harm as a result of the employer's actions.
However, if an employee took leave to provide care for a son or
daughter with a serious health condition believing it would not count
toward his or her FMLA entitlement, and the employee planned to later
use that FMLA leave to provide care for a spouse who would need
assistance when recovering from surgery planned for a later date, the
employee may be able to show that harm has occurred as a result of the
employer's failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative
caregiver for the seriously ill son or daughter if the leave had been
designated timely.
Sec. 825.302 Employee notice requirements for foreseeable FMLA leave.
(a) Timing of notice. An employee must provide the employer at
least 30 days advance notice before FMLA leave is to begin if the need
for the leave is foreseeable based on an expected birth,
[[Page 8933]]
placement for adoption or foster care, planned medical treatment for a
serious health condition of the employee or of a family member, or the
planned medical treatment for a serious injury or illness of a covered
servicemember. If 30 days notice is not practicable, such as because of
a lack of knowledge of approximately when leave will be required to
begin, a change in circumstances, or a medical emergency, notice must
be given as soon as practicable. For example, an employee's health
condition may require leave to commence earlier than anticipated before
the birth of a child. Similarly, little opportunity for notice may be
given before placement for adoption. For foreseeable leave due to a
qualifying exigency notice must be provided as soon as practicable,
regardless of how far in advance such leave is foreseeable. Whether
FMLA leave is to be continuous or is to be taken intermittently or on a
reduced schedule basis, notice need only be given one time, but the
employee shall advise the employer as soon as practicable if dates of
scheduled leave change or are extended, or were initially unknown. In
those cases where the employee is required to provide at least 30 days
notice of foreseeable leave and does not do so, the employee shall
explain the reasons why such notice was not practicable upon a request
from the employer for such information.
(b) As soon as practicable means as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case. When an employee becomes aware of a need for FMLA
leave less than 30 days in advance, it should be practicable for the
employee to provide notice of the need for leave either the same day or
the next business day. In all cases, however, the determination of when
an employee could practicably provide notice must take into account the
individual facts and circumstances.
(c) Content of notice. An employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. Depending on the situation, such information may include that a
condition renders the employee unable to perform the functions of the
job; that the employee is pregnant or has been hospitalized overnight;
whether the employee or the employee's family member is under the
continuing care of a health care provider; if the leave is due to a
qualifying exigency, that a military member is on covered active duty
or call to covered active duty status (or has been notified of an
impending call or order to covered active duty), and that the requested
leave is for one of the reasons listed in Sec. 825.126(b); if the
leave is for a family member, that the condition renders the family
member unable to perform daily activities, or that the family member is
a covered servicemember with a serious injury or illness; and the
anticipated duration of the absence, if known. When an employee seeks
leave for the first time for a FMLA-qualifying reason, the employee
need not expressly assert rights under the FMLA or even mention the
FMLA. When an employee seeks leave due to a FMLA-qualifying reason, for
which the employer has previously provided FMLA-protected leave, the
employee must specifically reference the qualifying reason for leave or
the need for FMLA leave. In all cases, the employer should inquire
further of the employee if it is necessary to have more information
about whether FMLA leave is being sought by the employee, and obtain
the necessary details of the leave to be taken. In the case of medical
conditions, the employer may find it necessary to inquire further to
determine if the leave is because of a serious health condition and may
request medical certification to support the need for such leave. See
Sec. 825.305. An employer may also request certification to support
the need for leave for a qualifying exigency or for military caregiver
leave. See Sec. Sec. 825.309, 825.310). When an employee has been
previously certified for leave due to more than one FMLA-qualifying
reason, the employer may need to inquire further to determine for which
qualifying reason the leave is needed. An employee has an obligation to
respond to an employer's questions designed to determine whether an
absence is potentially FMLA-qualifying. Failure to respond to
reasonable employer inquiries regarding the leave request may result in
denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.
(d) Complying with employer policy. An employer may require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances. For example, an employer may require that written notice
set forth the reasons for the requested leave, the anticipated duration
of the leave, and the anticipated start of the leave. An employee also
may be required by an employer's policy to contact a specific
individual. Unusual circumstances would include situations such as when
an employee is unable to comply with the employer's policy that
requests for leave should be made by contacting a specific number
because on the day the employee needs to provide notice of his or her
need for FMLA leave there is no one to answer the call-in number and
the voice mail box is full. Where an employee does not comply with the
employer's usual notice and procedural requirements, and no unusual
circumstances justify the failure to comply, FMLA-protected leave may
be delayed or denied. However, FMLA-protected leave may not be delayed
or denied where the employer's policy requires notice to be given
sooner than set forth in paragraph (a) of this section and the employee
provides timely notice as set forth in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning medical
treatment, the employee must consult with the employer and make a
reasonable effort to schedule the treatment so as not to disrupt unduly
the employer's operations, subject to the approval of the health care
provider. Employees are ordinarily expected to consult with their
employers prior to the scheduling of treatment in order to work out a
treatment schedule which best suits the needs of both the employer and
the employee. For example, if an employee who provides notice of the
need to take FMLA leave on an intermittent basis for planned medical
treatment neglects to consult with the employer to make a reasonable
effort to arrange the schedule of treatments so as not to unduly
disrupt the employer's operations, the employer may initiate
discussions with the employee and require the employee to attempt to
make such arrangements, subject to the approval of the health care
provider. See Sec. Sec. 825.203 and 825.205.
(f) Intermittent leave or leave on a reduced leave schedule must be
medically necessary due to a serious health condition or a serious
injury or illness. An employee shall advise the employer, upon request,
of the reasons why the intermittent/reduced leave schedule is necessary
and of the schedule for treatment, if applicable. The employee and
employer shall attempt to work out a schedule for such leave that meets
the employee's needs without unduly disrupting the employer's
operations, subject to the approv
|
|
|
|
