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).
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. See also Sec. 825.126(b)(2).
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, Employment Standards Administration, 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.
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(b)(3).
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 (1)(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 (1)(i) of
this definition 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).
(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 military member means the employee's spouse, son, daughter,
or parent on active duty or call to active duty status. See also Sec.
825.126(b).
Covered servicemember means 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 incurred in the line of duty on active duty.
See also Sec. 825.127(a).
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 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, but 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)); 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
been employed for at least 1,250-hours of service with such employer
during the previous 12-month period, except that:
(i) 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);
(ii) 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; 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 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;
(iii) Christian Science Practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts. Where an employee or
family member is receiving treatment from a Christian Science
practitioner, an employee may not object to any requirement from an
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.
Mental disability: See the definition of Physical or mental
disability in this section.
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(b)(3).
Outpatient status means, with respect to a covered servicemember,
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(a)(2).
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(b)(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.
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 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 the
member's office, grade, rank, or rating. See also Sec. 825.127(a)(1).
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(b)(1).
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 also Sec. 825.126(b)(1).
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.
BILLING CODE 4510-27-P
Appendix A to Part 825--Index [Reserved]
Appendix B to Part 825--Certification of Health Care Provider (Forms
WH-380E & WH-380F)
[GRAPHIC] [TIFF OMITTED] TR17NO08.003
[GRAPHIC] [TIFF OMITTED] TR17NO08.004
[GRAPHIC] [TIFF OMITTED] TR17NO08.005
[GRAPHIC] [TIFF OMITTED] TR17NO08.006
[GRAPHIC] [TIFF OMITTED] TR17NO08.000
[GRAPHIC] [TIFF OMITTED] TR17NO08.001
[GRAPHIC] [TIFF OMITTED] TR17NO08.002
[GRAPHIC] [TIFF OMITTED] TR17NO08.007
[GRAPHIC] [TIFF OMITTED] TR17NO08.008
Appendix D to Part 825--Notice of Eligibility and Rights &
Responsibilities (Form WH-381)
[GRAPHIC] [TIFF OMITTED] TR17NO08.009
[GRAPHIC] [TIFF OMITTED] TR17NO08.010
Appendix E to Part 825--Designation Notice to Employee of FMLA Leave
(Form WH-382)
[GRAPHIC] [TIFF OMITTED] TR17NO08.011
Appendix F to Part 825--[Reserved]
Appendix G to Part 825--Certification of Qualifying Exigency for
Military Family Leave (Form WH-384)
[GRAPHIC] [TIFF OMITTED] TR17NO08.012
[GRAPHIC] [TIFF OMITTED] TR17NO08.013
[GRAPHIC] [TIFF OMITTED] TR17NO08.014
Appendix H to Part 825--Certification for Serious Injury or Illness of
Covered Servicemenber for Military Family Leave (Form WH-385)
[GRAPHIC] [TIFF OMITTED] TR17NO08.015
[GRAPHIC] [TIFF OMITTED] TR17NO08.016
[GRAPHIC] [TIFF OMITTED] TR17NO08.017
[GRAPHIC] [TIFF OMITTED] TR17NO08.018
[FR Doc. E8-26577 Filed 11-14-08; 8:45 am]
BILLING CODE 4510-27-C
[60 FR 2237, Jan. 6, 1995; 60 FR 16383, Mar. 30, 1995; 73 FR 68111, Nov. 17, 2008]
