Collapse to view only § 2611. Definitions
- § 2611. Definitions
- § 2612. Leave requirement
- § 2613. Certification
- § 2614. Employment and benefits protection
- § 2615. Prohibited acts
- § 2616. Investigative authority
- § 2617. Enforcement
- § 2618. Special rules concerning employees of local educational agencies
- § 2619. Notice
- § 2620. Public health emergency leave
§ 2611. DefinitionsAs used in this subchapter:
(1) Commerce
(2) Eligible employee
(A) In generalThe term “eligible employee” means an employee who has been employed—
(i) for at least 12 months by the employer with respect to whom leave is requested under section 2612 of this title; and
(ii) for at least 1,250 hours of service with such employer during the previous 12-month period.
(B) ExclusionsThe term “eligible employee” does not include—
(i) any Federal officer or employee covered under subchapter V of chapter 63 of title 5; or
(ii) any employee of an employer who is employed at a worksite at which such employer employs less than 50 employees if the total number of employees employed by that employer within 75 miles of that worksite is less than 50.
(C) Determination
(D) Airline flight crews
(i) DeterminationFor purposes of determining whether an employee who is a flight attendant or flight crewmember (as such terms are defined in regulations of the Federal Aviation Administration) meets the hours of service requirement specified in subparagraph (A)(ii), the employee will be considered to meet the requirement if—(I) the employee has worked or been paid for not less than 60 percent of the applicable total monthly guarantee, or the equivalent, for the previous 12-month period, for or by the employer with respect to whom leave is requested under section 2612 of this title; and(II) the employee has worked or been paid for not less than 504 hours (not counting personal commute time or time spent on vacation leave or medical or sick leave) during the previous 12-month period, for or by that employer.
(ii) File
(iii) DefinitionIn this subparagraph, the term “applicable monthly guarantee” means—(I) for an employee described in clause (i) other than an employee on reserve status, the minimum number of hours for which an employer has agreed to schedule such employee for any given month; and(II) for an employee described in clause (i) who is on reserve status, the number of hours for which an employer has agreed to pay such employee on reserve status for any given month,
as established in the applicable collective bargaining agreement or, if none exists, in the employer’s policies.
(E) GAO employees
(3) Employ; employee; State
(4) Employer
(A) In generalThe term “employer”—
(i) means 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;
(ii) includes—(I) any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer; and(II) any successor in interest of an employer;
(iii) includes any “public agency”, as defined in section 203(x) of this title; and
(iv) includes the Government Accountability Office and the Library of Congress.
(B) Public agency
(5) Employment benefits
(6) Health care providerThe term “health care provider” means—
(A) 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
(B) any other person determined by the Secretary to be capable of providing health care services.
(7) Parent
(8) Person
(9) Reduced leave schedule
(10) Secretary
(11) Serious health conditionThe term “serious health condition” means an illness, injury, impairment, or physical or mental condition that involves—
(A) inpatient care in a hospital, hospice, or residential medical care facility; or
(B) continuing treatment by a health care provider.
(12) Son or daughterThe term “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—
(A) under 18 years of age; or
(B) 18 years of age or older and incapable of self-care because of a mental or physical disability.
(13) Spouse
(14) Covered active duty
(A) in the case of a member of a regular component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country; and
(B) in the case of a member of a reserve component of the Armed Forces, duty during the deployment of the member with the Armed Forces to a foreign country under a call or order to active duty under a provision of law referred to in section 101(a)(13)(B) of title 10.
(15) Covered servicememberThe term “covered servicemember” means—
(A) a member of the Armed Forces (including a member of the National Guard or Reserves) who is undergoing medical treatment, recuperation, or therapy, is otherwise in outpatient status, or is otherwise on the temporary disability retired list, for a serious injury or illness; or
(B) a veteran who is undergoing medical treatment, recuperation, or therapy, for a serious injury or illness and who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during the period of 5 years preceding the date on which the veteran undergoes that medical treatment, recuperation, or therapy.
(16) Outpatient statusThe term “outpatient status”, with respect to a covered servicemember, means the status of a member of the Armed Forces assigned to—
(A) a military medical treatment facility as an outpatient; or
(B) a unit established for the purpose of providing command and control of members of the Armed Forces receiving medical care as outpatients.
(17) Next of kin
(18) Serious injury or illnessThe term “serious injury or illness”—
(A) in the case of a member of the Armed Forces (including a member of the National Guard or Reserves), means an injury or illness that was incurred by the member in 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 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
(B) in the case of a veteran who was a member of the Armed Forces (including a member of the National Guard or Reserves) at any time during a period described in paragraph (15)(B), means a qualifying (as defined by the Secretary of Labor) injury or illness that was incurred by the member in 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 line of duty on active duty in the Armed Forces) and that manifested itself before or after the member became a veteran.
(19) Veteran
(Pub. L. 103–3, title I, § 101, Feb. 5, 1993, 107 Stat. 7; Pub. L. 104–1, title II, § 202(c)(1)(A), Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–181, div. A, title V, § 585(a)(1), Jan. 28, 2008, 122 Stat. 128; Pub. L. 111–84, div. A, title V, § 565(a)(1)(A), (2), (3), Oct. 28, 2009, 123 Stat. 2309, 2310; Pub. L. 111–119, § 2(a), Dec. 21, 2009, 123 Stat. 3476; Pub. L. 116–92, div. F, title LXXVI, § 7604(b), Dec. 20, 2019, 133 Stat. 2308.)
§ 2612. Leave requirement
(a) In general
(1) Entitlement to leave
Subject to section 2613 of this title and subsection (d)(3), an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:
(A) Because of the birth of a son or daughter of the employee and in order to care for such son or daughter.
(B) Because of the placement of a son or daughter with the employee for adoption or foster care.
(C) In order to care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.
(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.
(E) Because of any qualifying exigency (as the Secretary shall, by regulation, determine) arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.
(F) During the period beginning on the date the Emergency Family and Medical Leave Expansion Act takes effect, and ending on December 31, 2020, because of a qualifying need related to a public health emergency in accordance with section 2620 of this title.
(2) Expiration of entitlement
(3) Servicemember family leave
(4) Combined leave total
(5) Calculation of leave for airline flight crews
(b) Leave taken intermittently or on reduced leave schedule
(1) In general
(2) Alternative position
If an employee requests intermittent leave, or leave on a reduced leave schedule, under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3), that is foreseeable based on planned medical treatment, the employer may require such employee to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified and that—
(A) has equivalent pay and benefits; and
(B) better accommodates recurring periods of leave than the regular employment position of the employee.
(c) Unpaid leave permitted
(d) Relationship to paid leave
(1) Unpaid leave
(2) Substitution of paid leave
(A) In general
(B) Serious health condition
(3) Special rule for GAO employees
(A) Substitution of paid leave
(B) Amount of paid leave
The paid leave that is available to an employee of the Government Accountability Office for purposes of subparagraph (A) is—
(i) the number of weeks of paid parental leave in connection with the birth or placement involved that corresponds to the number of administrative workweeks of paid parental leave available to employees under section 6382(d)(2)(B)(i) of title 5; and
(ii) during the 12-month period referred to in subsection (a)(1) and in addition to the administrative workweeks described in clause (i), any additional paid vacation, personal, family, medical, or sick leave provided by such employer.
(C) Limitation
(D) Additional rules
Paid parental leave under subparagraph (B)(i)—
(i) shall be payable from any appropriation or fund available for salaries or expenses for positions with the Government Accountability Office;
(ii) if not used by the employee of such employer before the end of the 12-month period (as referred to in subsection (a)(1)) to which it relates, shall not accumulate for any subsequent use; and
(iii) shall apply without regard to the limitations in subparagraph (E), (F), or (G) of section 6382(d)(2) of title 5 or section 2614(c)(2) of this title.
(4) Special rule for Library of Congress employees
(e) Foreseeable leave
(1) Requirement of notice
(2) Duties of employee
In any case in which the necessity for leave under subparagraph (C) or (D) of subsection (a)(1) or under subsection (a)(3) is foreseeable based on planned medical treatment, the employee—
(A) shall make a reasonable effort to schedule the treatment so as not to disrupt unduly the operations of the employer, subject to the approval of the health care provider of the employee or the health care provider of the son, daughter, spouse, parent, or covered servicemember of the employee, as appropriate; and
(B) shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee’s intention to take leave under such subparagraph, except that if the date of the treatment requires leave to begin in less than 30 days, the employee shall provide such notice as is practicable.
(3) Notice for leave due to covered active duty of family member
(f) Spouses employed by same employer
(1) In general
In any case in which a husband and wife entitled to leave under subsection (a) are employed by the same employer, the aggregate number of workweeks of leave to which both may be entitled may be limited to 12 workweeks during any 12-month period, if such leave is taken—
(A) under subparagraph (A) or (B) of subsection (a)(1); or
(B) to care for a sick parent under subparagraph (C) of such subsection.
(2) Servicemember family leave
(A) In general
The aggregate number of workweeks of leave to which both that husband and wife may be entitled under subsection (a) may be limited to 26 workweeks during the single 12-month period described in subsection (a)(3) if the leave is—
(i) leave under subsection (a)(3); or
(ii) a combination of leave under subsection (a)(3) and leave described in paragraph (1).
(B) Both limitations applicable
(Pub. L. 103–3, title I, § 102, Feb. 5, 1993, 107 Stat. 9; Pub. L. 110–181, div. A, title V, § 585(a)(2), (3)(A)–(D), Jan. 28, 2008, 122 Stat. 129, 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(B), (4), Oct. 28, 2009, 123 Stat. 2309, 2311; Pub. L. 111–119, § 2(b), Dec. 21, 2009, 123 Stat. 3477; Pub. L. 116–92, div. F, title LXXVI, § 7604(a), Dec. 20, 2019, 133 Stat. 2307; Pub. L. 116–127, div. C, § 3102(a), Mar. 18, 2020, 134 Stat. 189.)
§ 2613. Certification
(a) In general
(b) Sufficient certification
Certification provided under subsection (a) shall be sufficient if it states—
(1) the date on which the serious health condition commenced;
(2) the probable duration of the condition;
(3) the appropriate medical facts within the knowledge of the health care provider regarding the condition;
(4)
(A) for purposes of leave under section 2612(a)(1)(C) of this title, a statement that the eligible employee is needed to care for the son, daughter, spouse, or parent and an estimate of the amount of time that such employee is needed to care for the son, daughter, spouse, or parent; and
(B) for purposes of leave under section 2612(a)(1)(D) of this title, a statement that the employee is unable to perform the functions of the position of the employee;
(5) in the case of certification for intermittent leave, or leave on a reduced leave schedule, for planned medical treatment, the dates on which such treatment is expected to be given and the duration of such treatment;
(6) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 2612(a)(1)(D) of this title, a statement of the medical necessity for the intermittent leave or leave on a reduced leave schedule, and the expected duration of the intermittent leave or reduced leave schedule; and
(7) in the case of certification for intermittent leave, or leave on a reduced leave schedule, under section 2612(a)(1)(C) of this title, a statement that the employee’s intermittent leave or leave on a reduced leave schedule is necessary for the care of the son, daughter, parent, or spouse who has a serious health condition, or will assist in their recovery, and the expected duration and schedule of the intermittent leave or reduced leave schedule.
(c) Second opinion
(1) In general
(2) Limitation
(d) Resolution of conflicting opinions
(1) In general
(2) Finality
(e) Subsequent recertification
(f) Certification related to covered active duty or call to covered active duty
(Pub. L. 103–3, title I, § 103, Feb. 5, 1993, 107 Stat. 11; Pub. L. 110–181, div. A, title V, § 585(a)(3)(E), Jan. 28, 2008, 122 Stat. 130; Pub. L. 111–84, div. A, title V, § 565(a)(1)(C), Oct. 28, 2009, 123 Stat. 2310.)
§ 2614. Employment and benefits protection
(a) Restoration to position
(1) In generalExcept as provided in subsection (b), any eligible employee who takes leave under section 2612 of this title for the intended purpose of the leave shall be entitled, on return from such leave—
(A) to be restored by the employer to the position of employment held by the employee when the leave commenced; or
(B) to be restored to an equivalent position with equivalent employment benefits, pay, and other terms and conditions of employment.
(2) Loss of benefits
(3) LimitationsNothing in this section shall be construed to entitle any restored employee to—
(A) the accrual of any seniority or employment benefits during any period of leave; or
(B) any right, benefit, or position of employment other than any right, benefit, or position to which the employee would have been entitled had the employee not taken the leave.
(4) Certification
(5) Construction
(b) Exemption concerning certain highly compensated employees
(1) Denial of restorationAn employer may deny restoration under subsection (a) to any eligible employee described in paragraph (2) if—
(A) such denial is necessary to prevent substantial and grievous economic injury to the operations of the employer;
(B) the employer notifies the employee of the intent of the employer to deny restoration on such basis at the time the employer determines that such injury would occur; and
(C) in any case in which the leave has commenced, the employee elects not to return to employment after receiving such notice.
(2) Affected employees
(c) Maintenance of health benefits
(1) Coverage
(2) Failure to return from leaveThe employer may recover the premium that the employer paid for maintaining coverage for the employee under such group health plan during any period of unpaid leave under section 2612 of this title if—
(A) the employee fails to return from leave under section 2612 of this title after the period of leave to which the employee is entitled has expired; and
(B) the employee fails to return to work for a reason other than—
(i) the continuation, recurrence, or onset of a serious health condition that entitles the employee to leave under subparagraph (C) or (D) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title; or
(ii) other circumstances beyond the control of the employee.
(3) Certification
(A) IssuanceAn employer may require that a claim that an employee is unable to return to work because of the continuation, recurrence, or onset of the serious health condition described in paragraph (2)(B)(i) be supported by—
(i) a certification issued by the health care provider of the son, daughter, spouse, or parent of the employee, as appropriate, in the case of an employee unable to return to work because of a condition specified in section 2612(a)(1)(C) of this title;
(ii) a certification issued by the health care provider of the eligible employee, in the case of an employee unable to return to work because of a condition specified in section 2612(a)(1)(D) of this title; or
(iii) a certification issued by the health care provider of the servicemember being cared for by the employee, in the case of an employee unable to return to work because of a condition specified in section 2612(a)(3) of this title.
(B) Copy
(C) Sufficiency of certification
(i) Leave due to serious health condition of employee
(ii) Leave due to serious health condition of family member
(Pub. L. 103–3, title I, § 104, Feb. 5, 1993, 107 Stat. 12; Pub. L. 110–181, div. A, title V, § 585(a)(3)(F), Jan. 28, 2008, 122 Stat. 131.)
§ 2615. Prohibited acts
(a) Interference with rights
(1) Exercise of rights
(2) Discrimination
(b) Interference with proceedings or inquiries
It shall be unlawful for any person to discharge or in any other manner discriminate against any individual because such individual—
(1) has filed any charge, or has instituted or caused to be instituted any proceeding, under or related to this subchapter;
(2) has given, or is about to give, any information in connection with any inquiry or proceeding relating to any right provided under this subchapter; or
(3) has testified, or is about to testify, in any inquiry or proceeding relating to any right provided under this subchapter.
(Pub. L. 103–3, title I, § 105, Feb. 5, 1993, 107 Stat. 14.)
§ 2616. Investigative authority
(a) In general
(b) Obligation to keep and preserve records
(c) Required submissions generally limited to annual basis
(d) Subpoena powers
(Pub. L. 103–3, title I, § 106, Feb. 5, 1993, 107 Stat. 15.)
§ 2617. Enforcement
(a) Civil action by employees
(1) LiabilityAny employer who violates section 2615 of this title shall be liable to any eligible employee affected—
(A) for damages equal to—
(i) the amount of—(I) any wages, salary, employment benefits, or other compensation denied or lost to such employee by reason of the violation; or(II) in a case in which wages, salary, employment benefits, or other compensation have not been denied or lost to the employee, any actual monetary losses sustained by the employee as a direct result of the violation, such as the cost of providing care, up to a sum equal to 12 weeks (or 26 weeks, in a case involving leave under section 2612(a)(3) of this title) of wages or salary for the employee;
(ii) the interest on the amount described in clause (i) calculated at the prevailing rate; and
(iii) an additional amount as liquidated damages equal to the sum of the amount described in clause (i) and the interest described in clause (ii), except that if an employer who has violated section 2615 of this title proves to the satisfaction of the court that the act or omission which violated section 2615 of this title was in good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation of section 2615 of this title, such court may, in the discretion of the court, reduce the amount of the liability to the amount and interest determined under clauses (i) and (ii), respectively; and
(B) for such equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(2) Right of actionAn action to recover the damages or equitable relief prescribed in paragraph (1) may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of—
(A) the employees; or
(B) the employees and other employees similarly situated.
(3) Fees and costs
(4) LimitationsThe right provided by paragraph (2) to bring an action by or on behalf of any employee shall terminate—
(A) on the filing of a complaint by the Secretary in an action under subsection (d) in which restraint is sought of any further delay in the payment of the amount described in paragraph (1)(A) to such employee by an employer responsible under paragraph (1) for the payment; or
(B) on the filing of a complaint by the Secretary in an action under subsection (b) in which a recovery is sought of the damages described in paragraph (1)(A) owing to an eligible employee by an employer liable under paragraph (1),
unless the action described in subparagraph (A) or (B) is dismissed without prejudice on motion of the Secretary.
(b) Action by Secretary
(1) Administrative action
(2) Civil action
(3) Sums recovered
(c) Limitation
(1) In general
(2) Willful violation
(3) Commencement
(d) Action for injunction by SecretaryThe district courts of the United States shall have jurisdiction, for cause shown, in an action brought by the Secretary—
(1) to restrain violations of section 2615 of this title, including the restraint of any withholding of payment of wages, salary, employment benefits, or other compensation, plus interest, found by the court to be due to eligible employees; or
(2) to award such other equitable relief as may be appropriate, including employment, reinstatement, and promotion.
(e) Solicitor of Labor
(f) Government Accountability Office and Library of Congress
(Pub. L. 103–3, title I, § 107, Feb. 5, 1993, 107 Stat. 15; Pub. L. 104–1, title II, § 202(c)(1)(B), Jan. 23, 1995, 109 Stat. 9; Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814; Pub. L. 110–181, div. A, title V, § 585(a)(3)(G), Jan. 28, 2008, 122 Stat. 131.)
§ 2618. Special rules concerning employees of local educational agencies
(a) Application
(1) In generalExcept as otherwise provided in this section, the rights (including the rights under section 2614 of this title, which shall extend throughout the period of leave of any employee under this section), remedies, and procedures under this subchapter shall apply to—
(A) any “local educational agency” (as defined in section 7801 of title 20) and an eligible employee of the agency; and
(B) any private elementary or secondary school and an eligible employee of the school.
(2) DefinitionsFor purposes of the application described in paragraph (1):
(A) Eligible employee
(B) Employer
(b) Leave does not violate certain other Federal laws
(c) Intermittent leave or leave on reduced schedule for instructional employees
(1) In generalSubject to paragraph (2), in any case in which an eligible employee employed principally in an instructional capacity by any such educational agency or school requests leave under subparagraph (C) or (D) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title that is foreseeable based on planned medical treatment and the employee would be on leave for greater than 20 percent of the total number of working days in the period during which the leave would extend, the agency or school may require that such employee elect either—
(A) to take leave for periods of a particular duration, not to exceed the duration of the planned medical treatment; or
(B) to transfer temporarily to an available alternative position offered by the employer for which the employee is qualified, and that—
(i) has equivalent pay and benefits; and
(ii) better accommodates recurring periods of leave than the regular employment position of the employee.
(2) Application
(d) Rules applicable to periods near conclusion of academic termThe following rules shall apply with respect to periods of leave near the conclusion of an academic term in the case of any eligible employee employed principally in an instructional capacity by any such educational agency or school:
(1) Leave more than 5 weeks prior to end of termIf the eligible employee begins leave under section 2612 of this title more than 5 weeks prior to the end of the academic term, the agency or school may require the employee to continue taking leave until the end of such term, if—
(A) the leave is of at least 3 weeks duration; and
(B) the return to employment would occur during the 3-week period before the end of such term.
(2) Leave less than 5 weeks prior to end of termIf the eligible employee begins leave under subparagraph (A), (B), or (C) of section 2612(a)(1) of this title or under section 2612(a)(3) of this title during the period that commences 5 weeks prior to the end of the academic term, the agency or school may require the employee to continue taking leave until the end of such term, if—
(A) the leave is of greater than 2 weeks duration; and
(B) the return to employment would occur during the 2-week period before the end of such term.
(3) Leave less than 3 weeks prior to end of term
(e) Restoration to equivalent employment position
(f) Reduction of amount of liability
(Pub. L. 103–3, title I, § 108, Feb. 5, 1993, 107 Stat. 17; Pub. L. 103–382, title III, § 394(e), Oct. 20, 1994, 108 Stat. 4027; Pub. L. 107–110, title X, § 1076(v), Jan. 8, 2002, 115 Stat. 2093; Pub. L. 110–181, div. A, title V, § 585(a)(3)(H), Jan. 28, 2008, 122 Stat. 131; Pub. L. 114–95, title IX, § 9215(hh), Dec. 10, 2015, 129 Stat. 2175.)
§ 2619. Notice
(a) In general
(b) Penalty
(Pub. L. 103–3, title I, § 109, Feb. 5, 1993, 107 Stat. 19.)
§ 2620. Public health emergency leave
(a) DefinitionsThe following shall apply with respect to leave under section 2612(a)(1)(F) of this title:
(1) Application of certain termsThe definitions in section 2611 of this title shall apply, except as follows:
(A) Eligible employee
(i) In general
(ii)1
1 So in original. Two cls. (ii) have been enacted.
Rule regarding rehired employees(ii)1 Special rule
(B) Employer threshold
(2) Additional definitionsIn addition to the definitions described in paragraph (1), the following definitions shall apply with respect to leave under section 2612(a)(1)(F) of this title:
(A) Qualifying need related to a public health emergency
(B) Public health emergency
(C) Child care provider
(D) School
(3) Regulatory authoritiesThe Secretary of Labor shall have the authority to issue regulations for good cause under sections 553(b)(B) and 553(d)(3) of title 5—
(A) to exclude certain health care providers and emergency responders from the definition of eligible employee under subsection (a)(1)(A);
(B) to exempt small businesses with fewer than 50 employees from the requirements of section 2612(a)(1)(F) of this title when the imposition of such requirements would jeopardize the viability of the business as a going concern; and
(C) as necessary to carry out the purposes of this Act, including to ensure consistency between this Act and Division E and Division G of the Families First Coronavirus Response Act.
(4) The Director of the Office of Management and Budget shall have the authority to exclude for good cause from the requirements under subsection (b) certain employers of the United States Government with respect to certain categories of Executive Branch employees.
(b) Relationship to paid leave
(1) Unpaid leave for initial 10 days
(A) In general
(B) Employee election
(2) Paid leave for subsequent days
(A) In general
(B) Calculation
(i) In generalSubject to clause (ii), paid leave under subparagraph (A) for an employee shall be calculated based on—(I) an amount that is not less than two-thirds of an employee’s regular rate of pay (as determined under section 207(e) of this title); and(II) the number of hours the employee would otherwise be normally scheduled to work (or the number of hours calculated under subparagraph (C)).
(ii) Limitation
(C) Varying schedule hours calculationIn the case of an employee whose schedule varies from week to week to such an extent that an employer is unable to determine with certainty the number of hours the employee would have worked if such employee had not taken leave under section 2612(a)(1)(F) of this title, the employer shall use the following in place of such number:
(i) Subject to clause (ii), a number equal to the average number of hours that the employee was scheduled per day over the 6-month period ending on the date on which the employee takes such leave, including hours for which the employee took leave of any type.
(ii) If the employee did not work over such period, the reasonable expectation of the employee at the time of hiring of the average number of hours per day that the employee would normally be scheduled to work.
(c) Notice
(d) Restoration to position
(1) In general
(2) ConditionsThe conditions described in this paragraph are the following:
(A) The employee takes leave under section 2612(a)(1)(F) of this title.
(B) The position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the employer—
(i) that affect employment; and
(ii) are caused by a public health emergency during the period of leave.
(C) The employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment.
(D) If the reasonable efforts of the employer under subparagraph (C) fail, the employer makes reasonable efforts during the period described in paragraph (3) to contact the employee if an equivalent position described in subparagraph (C) becomes available.
(3) Contact periodThe period described under this paragraph is the 1-year period beginning on the earlier of—
(A) the date on which the qualifying need related to a public health emergency concludes; or
(B) the date that is 12 weeks after the date on which the employee’s leave under section 2612(a)(1)(F) of this title commences.
(Pub. L. 103–3, title I, § 110, as added Pub. L. 116–127, div. C, § 3102(b), Mar. 18, 2020, 134 Stat. 189; Pub. L. 116–136, div. A, title III, §§ 3601, 3604(a), 3605, 3611(1), (3), (7), div. B, title IX, § 19008, Mar. 27, 2020, 134 Stat. 410, 411, 414, 415, 579.)