[Federal Register Volume 71, Number 231 (Friday, December 1, 2006)]
[Proposed Rules]
[Pages 69504-69514]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9489]
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
Request for Information on the Family and Medical Leave Act of
1993
AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.
ACTION: Request for information from the public.
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SUMMARY: This notice requests comments related to the Family and
Medical Leave Act of 1993 (the ``FMLA'' or the ``Act''). The Employment
Standards Administration, Wage and Hour Division, of the Department of
Labor (the ``Department'') seeks information for its consideration and
review of the Department's administration of the Act and implementing
regulations.
The Department held stakeholder meetings regarding the FMLA with
more than 20 groups from December 2002-February 2003. Many of the
subject matter areas in this request are derived from comments at those
stakeholder meetings and also from (1) rulings of the Supreme Court of
the United States and other federal courts over the past twelve years;
(2) the Department's experience in administering the law; and (3)
public input presented in numerous Congressional hearings and public
comments filed with the Office of Management and Budget (``OMB'') in
connection with three annual reports to Congress regarding the Costs
and Benefits of Federal regulations in 2001, 2002, 2004. In addition,
the Department has reviewed numerous source materials about issues
associated with the FMLA. During this process, the
[[Page 69505]]
Department has heard a variety of concerns expressed about the FMLA.
Some of those concerns, however, are beyond the Department's statutory
authority to address. Some are not. In this regard, the Department
invites interested parties having knowledge of, or experience with, the
FMLA to submit comments and welcomes any pertinent information that
will provide a basis for ascertaining the effectiveness of the current
implementing regulations and the Department's administration of the
Act. The questions posed are not meant to be an exclusive list of
issues for which the Department seeks commentary and information.
DATES: Public comments should be received by no later than 5 p.m. est,
February 2, 2007.
ADDRESSES: Address all written submissions to Richard M. Brennan,
Senior Regulatory Officer, Wage and Hour Division, Employment Standards
Administration, U.S. Department of Labor, Room S-3502, 200 Constitution
Avenue, NW., Washington, DC 20210. You may also submit comments by e-
mail to: [email protected]. Comments of 20 pages or less may be
submitted by FAX machine to (202) 693-1432, which is not a toll-free
number. Because we continue to experience delays in receiving mail in
the Washington, DC area, individuals are encouraged to submit comments
by mail early, or to transmit them electronically by FAX or e-mail.
FOR FURTHER INFORMATION CONTACT: Richard M. Brennan, Senior Regulatory
Officer, Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor, Room S-3502, 200 Constitution Avenue, NW.,
Washington, DC 20210; telephone: (202) 693-0066 (this is not a toll
free number).
SUPPLEMENTARY INFORMATION:
I. Background
A. What the Law Covers
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et seq.) (the ``FMLA'' or the ``Act'') was
enacted on February 5, 1993 and became effective on August 5, 1993 for
most covered employers. The FMLA entitles eligible employees of covered
employers to take up to a total of twelve weeks of unpaid leave during
a twelve-month period for the birth of a child; for the placement of a
child for adoption or foster care; to care for a newborn or newly-
placed child; to care for a spouse, parent, son or daughter with a
serious health condition; or when the employee is unable to work due to
the employee's own serious health condition. See 29 U.S.C. 2612.
Employers covered by the law must maintain for the employee any
preexisting group health coverage during the leave period and, once the
leave period has concluded, reinstate the employee to the same or an
equivalent job with equivalent employment benefits, pay, and other
terms and conditions of employment. See 29 U.S.C. 2614. If an employee
believes that his or her FMLA rights have been violated, the employee
may file a complaint with the Department or file a private lawsuit in
federal or state court. If the employer has violated an employee's FMLA
rights, the employee is entitled to reimbursement for any tangible loss
incurred, equitable relief as appropriate, interest, attorneys' fees,
expert witness fees, and court costs. Liquidated damages also may be
awarded. See 29 U.S.C. 2617.
Title I of the FMLA applies to private sector employers of fifty or
more employees, public agencies and certain federal employers and
entities, such as the U.S. Postal Service and Postal Rate Commission.
Title II applies to civil service employees covered by the annual and
sick leave system established under 5 U.S.C. Chapter 63, plus certain
employees covered by other federal leave systems. Title III established
a temporary Commission on Leave to conduct a study and report on
existing and proposed policies on leave and the costs, benefits, and
impact on productivity of such policies. Title IV contains
miscellaneous provisions, including rules governing the effect of the
FMLA on more generous leave policies, other laws, and existing
employment benefits. Title V originally extended leave provisions to
certain employees of the U.S. Senate and House of Representatives, but
such coverage was repealed and replaced by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
B. Implementing Regulations
The FMLA required the Department to issue regulations to implement
Title I and Title IV of the FMLA within 120 days of enactment, or by
June 5, 1993, with an effective date of August 5, 1993. Given this
short implementation period, the Department published a notice of
proposed rulemaking in the Federal Register on March 10, 1993 (58 FR
13394), inviting comments until March 31, 1993, on a variety of
questions and issues. The Department received a total of 393 comments
at that time from a wide variety of stakeholders, including employers,
trade and professional associations, advocacy organizations, labor
unions, state and local governments, law firms, employee benefit firms,
academic institutions, financial institutions, medical institutions,
Members of Congress, and others.
After considering these comments, the Department issued an interim
final rule on June 4, 1993 (58 FR 31794) that became effective on
August 5, 1993. The Department also invited further public comment on
the interim regulations through September 3, 1993, later extended to
December 3, 1993 (58 FR 45433). During this comment period, the
Department received more than 900 substantive and editorial comments on
the interim regulations, from a wide variety of stakeholders.
Based on this second round of public comments, the Department
published final regulations to implement the FMLA on January 6, 1995
(60 FR 2180). The regulations were amended on February 3, 1995 (60 FR
6658) and on March 30, 1995 (60 FR 16382) to make minor technical
corrections. The regulations went into effect on April 6, 1995.
C. Legal Challenges
The Ragsdale Decision
Since the enactment of the FMLA, hundreds of reported federal cases
have addressed the Act and/or implementing regulations. The most
significant court decision on the validity of the regulations is that
of the United States Supreme Court in Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81 (2002). In its first case involving the FMLA, the
Court ruled in March 2002 that the penalty provision in 29 CFR
825.700(a), which states ``[i]f an employee takes * * * leave and the
employer does not designate the leave as FMLA leave, the leave taken
does not count against an employee's leave entitlement[,]'' was invalid
because in some circumstances it required employers to provide leave to
employees beyond the 12-week statutory entitlement. ``The FMLA
guaranteed [Plaintiff] 12--not 42--weeks of leave[.]'' Ragsdale, 535
U.S. at 96. While the Supreme Court did not invalidate the notice and
designation provisions in the regulations, it made clear that any
categorical penalty for a violation of such requirements set forth in
the regulations would exceed the Department's statutory authority. See
id. at 91-96.
Other Challenges to ``Categorical Penalty'' Provisions
Ragsdale is not the only court decision addressing penalty
provisions contained in the regulations. Another provision of the
regulations, 29 CFR 825.110(d), requires an employer to
[[Page 69506]]
notify an employee prior to the employee commencing leave as to whether
or not the employee is eligible for FMLA leave. If the employer fails
to provide the employee with such information or the information is not
accurate, the regulation bars the employer from challenging eligibility
at a later date, even if the employee is not eligible for FMLA leave
according to the statutory requirements. The majority of courts
addressing this notice provision have found it to be invalid, even
prior to the Ragsdale decision. See, e.g., Woodford v. Cmty. Action of
Greene County, Inc., 268 F.3d 51, 57 (2d Cir. 2001) (``The regulation
exceeds agency rulemaking powers by making eligible under the FMLA
employees who do not meet the statute's clear eligibility
requirements.''); Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791,
796-97 (11th Cir. 2000) (``There is no ambiguity in the statute
concerning eligibility for family medical leave, no gap to be
filled.''); Dormeyer v. Comerica Bank-Illinois, 223 F.3d 579, 582 (7th
Cir. 2000) (the regulation tries ``to change the Act'' because it makes
eligible employees who, under the language of the statute, are
ineligible for family leave; ``The statutory test is perfectly clear
and covers the issue. The right of family leave is conferred only on
employees who have worked at least 1,250 hours in the previous 12
months'').
Legal Challenges to the Definition of Serious Health Condition
Other regulatory provisions have been challenged as well. In
particular, challenges to the regulatory section defining the term
``serious health condition,'' 29 CFR 825.114, have received significant
attention. See, e.g., Miller v. AT&T Corp., 250 F.3d 820 (4th Cir.
2001); Thorson v. Gemini, Inc., 205 F.3d 370 (8th Cir. 2000). Employers
have reported to the Department that they have litigated this issue
because there is much confusion as to what constitutes a ``serious
health condition,'' and some employers have stated that the broad
definition has left them in the untenable position of having to either
guess what the Department and courts will deem to be serious or
designate all absences for a medical condition as FMLA-protected.
The Department itself has struggled with this definition. After the
Act's passage, the Department promulgated section 825.114(c), which
states that ``[o]rdinarily, unless complications arise, the common
cold, the flu, earaches, 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.'' This regulatory language implements the legislative history of
the FMLA and expresses the Congressional intent that minor, short-term
illnesses for which treatment and recovery are very brief would be
covered by employers' sick leave programs. See H. Rep. No. 103-8, at 40
(1993); S. Rep. No. 103-3, at 28-29 (1993). Therefore, when first asked
about the proper handling of an employee's request for leave due to the
common cold, the Department issued an Opinion Letter stating that
``[t]he fact that an employee is incapacitated for more than three
days, has been treated by a health care provider on at least one
occasion which has resulted in a regimen of continuing treatment
prescribed by the health care provider does not convert minor illnesses
such as the common cold into serious health conditions in the ordinary
case (absent complications).'' DOL Opinion Letter FMLA-57 (April 7,
1995). More than a year and a half later, however, the Department
issued an Opinion Letter changing its interpretation, stating that DOL
Opinion Letter FMLA-57 ``expresses an incorrect view, being
inconsistent with the Department's established interpretation of
qualifying ``serious health conditions'' under the FMLA regulations.''
DOL Opinion Letter FMLA-86 (December 12, 1996). The Department further
stated that such minor illnesses ordinarily would not be expected to
last more than three days, but if they did meet the regulatory criteria
for a serious health condition under section 825.114(a), they qualify
for FMLA leave.
Other Legal Challenges
Other legal issues have arisen under the regulations. For example,
litigation has ensued under section 29 CFR 825.302-.303 as to what
constitutes sufficient employee notice to trigger an employer's
obligations under the FMLA. See, e.g., Spangler v. Fed. Home Loan Bank
of Des Moines, 278 F.3d 847 (8th Cir. 2002) (employee who had made
employer aware that she had problems with depression gave sufficient
notice when she called in and indicated she was out because of
``depression again''). Another regulation that has been the subject of
litigation is 29 CFR 825.220(d), which discusses the impact of a light
duty work assignment on an employee's FMLA rights. See, e.g., Roberts
v. Owens-Illinois, Inc., 2004 WL 1087355 (S.D. Ind. May 14, 2004) (an
employee uses up his or her twelve week FMLA leave entitlement while
performing work in a light duty assignment); Artis v. Palos Cmty.
Hosp., 2004 WL 2125414 (N.D. Ill. Sept. 22, 2004) (same).
D. Statutory and Regulatory Developments
In addition to developments in the courts, over the past decade
several important legislative and regulatory developments have occurred
that interact with the FMLA regulations. Most significantly, in 1996
Congress enacted the Health Insurance Portability and Accountability
Act (``HIPAA''), Pub. L. 104-191, which addresses in part the privacy
of individually identifiable health information. On December 28, 2000,
and as amended on May 31, 2002, August 14, 2002, and February 16, 2006,
the Department of Health and Human Services (``HHS'') issued
regulations found at 45 CFR parts 160 and 164 that provide standards
for the privacy of individually identifiable health information. These
standards apply only to ``covered entities,'' defined as a health plan,
a health care clearinghouse, or a health care provider who transmits
any health information in electronic form in connection with a
transaction as defined in the HIPAA privacy regulations. See 45 CFR
160.102(a), 164.103. Further, HHS acknowledges that the HIPAA statute
does not include ``employers per se as covered entities.''
The HIPAA regulations do not impede the disclosure of the protected
health information for FMLA reasons if the employee has the health care
provider complete the medical certification form or a document
containing the equivalent information and requests a copy of that form
to personally take or send to the employer in order to exercise FMLA
rights. HIPAA regulations, however, clearly do come into play if, for
example, the employee asks the health care provider to send the
completed certification form or medical information directly to the
employer or the employer's representative. HIPAA will generally require
the health care provider to first receive a valid authorization from
the employee before sending the information to the employer or the
employer's representative.
In all cases, employers have the statutory right under the FMLA to
obtain sufficient medical information to determine whether an
employee's leave qualifies for FMLA protections and it is the
employee's responsibility to ensure that such information is provided
to the employer. If an employee does not fulfill his or her obligation
to provide such information upon the employer's request, the employee
will not qualify for FMLA leave. See 29 CFR 825.307-
[[Page 69507]]
.308; DOL Opinion Letter FMLA-2004-2-A (May 25, 2004). Although these
rules may appear straightforward, recent enforcement experience reveals
confusion with regard to the interaction of FMLA and HIPAA and
clarification may be needed.
Similarly, FMLA's interaction with other laws is also a potential
source of confusion. For example, since the final FMLA regulations were
implemented in 1995, the Equal Employment Opportunity Commission
(``EEOC''), the agency responsible for enforcing the employment
provisions of the Americans with Disabilities Act (``ADA''), has issued
guidance with regard to the privacy of employee medical information.
See, e.g., Enforcement Guidance: Disability-Related Inquiries and
Medical Examinations of Employees Under the Americans with Disabilities
Act (ADA) (EEOC 2000).
E. Employer Commentary
Employers report to the Department that they recognize the value of
the FMLA and attempt to comply with its requirements. For example, the
Department has not received complaints about the use of family leave--
i.e., leave for the birth or adoption of a child. Nor do employers for
the most part report problems with the use of scheduled intermittent
leave as contemplated by the statute, such as when an employee requests
leave for medical appointments or medical treatment like chemotherapy.
Rather, employers report job disruptions and adverse effects on the
workforce when employees take frequent, unscheduled, intermittent leave
from work with little or no advance notice to the employer.
Unforeseen, Intermittent Leave
The Department has received significant commentary on the
requirements associated with the administration and use of unforeseen,
intermittent leave set forth in 29 CFR 825.203. Employer stakeholders
who have met with the Department as well as those who have submitted
comments to Congress and OMB have indicated that the administration of
intermittent leave, which must be done in increments that correspond to
the employer's payroll system (section 825.203(d)), is overly
burdensome, especially in the case of unforeseeable, intermittent
leave. Similarly, many employer groups who participated in the
Department's stakeholder meetings stated that the requirement that
employees be permitted to take FMLA leave in the smallest increments
used by the employer's payroll system has provided an opportunity to
avoid compliance with accepted practices of timeliness in the
workplace. Employers contend that one of the unintended consequences of
the FMLA regulations has been that employers have little recourse to
prevent those employees who take FMLA leave improperly from doing so
under the current regulatory scheme.
While the Department acknowledges that the regulations and the
administrative details required by them may work in combination to
allow certain employees to attempt to evade legitimate absence control
policies, crafting the perfectly equipoised rule to single out only
alleged misuse has proven to be a difficult task. Moreover, employee
groups point to the 2000 Westat Report, at 6-7, and cite that ``a
majority of [establishments] reported most aspects of administering
FMLA are very or somewhat easy.'' \1\
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\1\ Westat, ``Balancing the Needs of Families and Employers,
Family and Medical Leave Surveys, 2000 Update,'' January 2001.
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Medical Certification Procedures
The proper flow of accurate medical information is critical to the
smooth functioning of the FMLA. The Department has heard repeated
concerns from both employers and employees with regard to the medical
certification procedures required by the regulations (see also Employee
Commentary, infra). Employers have complained that due to the confusing
nature of the medical certification form, health care providers often
do not complete it properly. Thus, in order for the employer to
determine whether a serious health condition exists, the employer
frequently must secure the employee's permission to contact the health
care provider or ask another doctor for a second opinion. Employers
assert, however, that the regulatory requirement that the employee's
health care provider be contacted only through the employer's health
care representative and only with the employee's permission has been
very costly for employers. See 29 CFR 825.307. Several stakeholders
have challenged the clarification and authentication process through
letters written to OMB, describing it as difficult and time-consuming.
Other commenters have noted that these limitations lead to either
the employer denying FMLA leave or, conversely, improvidently granting
FMLA leave because of the difficulty and expense of obtaining
sufficient factual support for the employee's condition. One often-
cited example is certification for chronic conditions. An employee's
health care provider may certify an employee's chronic condition and
list the duration as ``indefinite'' or ``lifetime.'' With respect to
the frequency of the episodes of incapacity, the health care provider
might write ``unknown.'' Employers argue that this leaves them in the
difficult position of guessing about the employee's regular attendance.
These regulatory limitations also apply to fitness-for-duty
certifications, which employers may request as a condition of restoring
an employee who has taken FMLA leave for the employee's own serious
health condition. See 29 CFR 825.310. Commenters state that these
regulatory limitations create risks to the employee and to co-workers
when an employee is in a safety-sensitive position.
Impact on Other Workers
Surveys conducted by both the Society for Human Resources
Management (SHRM) and the Department reveal that employers tend to
cover the work of employees out on FMLA leave with co-workers. A survey
conducted by SHRM of its members in 1997 indicated that co-workers
cover job duties 92% of the time when absences occur. According to the
1995 report by the Commission on Leave entitled ``A Workable Balance:
Report to Congress on Family and Medical Leave Policies'' (the ``1995
Commission on Leave Report''), the most prevalent method that employers
use to cover work is to assign the work temporarily to other co-workers
(72.3%). Similarly, in the Department's 2000 report, assigning work to
other employees was the most prevalent method (76.5%).
Impact on Benefit Programs
Many employer representatives also have stated that benefit
programs (excluding health benefits, which are statutorily addressed in
the FMLA itself) have suffered or have even been eliminated as a result
of the FMLA regulatory requirements. The most often cited example is
the regulatory requirement that FMLA leave cannot disqualify an
employee from a perfect attendance award, which may have the unintended
consequence of discouraging such awards and programs.
F. Employee Commentary
Groups and organizations representing employees have also provided
information to the Department about their concerns with the FMLA.
[[Page 69508]]
Notice and Awareness of FMLA Rights
One consistent concern expressed by the employee representatives
during the stakeholder meetings was that employees need to be better
aware of their rights under the FMLA. Awareness of FMLA rights and
responsibilities is critical to fulfilling the goals of the statute,
yet it has been a challenge from the inception of the FMLA.
The 1995 Commission on Leave Report found that 41.9 percent of
employees at covered establishments had not heard of the FMLA. In 2000,
a survey of employers and a survey of employees conducted for the
Department by Westat titled ``Balancing the Needs of Families and
Employers'' (``2000 Westat Report'') found that 40.7 percent of covered
employees had not heard of the FMLA and nearly half the employees did
not know whether the law applied to them. Additionally, the 2000 Westat
Report revealed a significant difference in the estimated number of
workers taking FMLA leave based upon the employee survey (2.4 million)
and the employer survey (6.1 million).\2\ The reason for this
discrepancy is not accounted for in the 2000 Westat Report. One reason
may have been that employers were designating the employee's leave as
covered FMLA leave and employees were unaware of it. This suggests the
need for better communication between employers and employees.
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\2\ See the section on the coverage and usages estimates for the
details of these estimates.
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The regulations require an employer, under certain circumstances,
to provide a posting of FMLA rights to employees in a language in which
they are literate. Nonetheless, the Department received comments at the
stakeholder meetings that ``language barriers'' continue to be an
impediment to employees' understanding and exercising of their rights.
Medical Certification Procedures
Employees have also complained to the Department that the medical
certification process is too burdensome. Section 825.305(a) states that
an employer may require medical certifications to support an employee's
or family member's serious health condition. Section 825.308 generally
provides that employers may ask for a recertification no more often
than every 30 days and only in connection with an employee's absence
from work. Employees have complained that the certification process is
too burdensome, and that employers repeatedly deny leave based on
``inadequate'' information provided by health care providers--
information that the employees think is sufficient. Employees have also
complained that every 30 days is too frequent to require
recertification for chronic, life-long serious health conditions.
At the same time, the Department's enforcement experience indicates
that health care providers of employees complain that the certification
requirements are too cumbersome, and they do not have the time to
complete the Wage and Hour Form 380 (``WH-380'') numerous times per
employee or to provide detailed information.
II. Public Comments Solicited--Key Issues On Which Information Is
Requested
The Department seeks comments and information from the public on
all issues related to the FMLA regulations. We specifically seek
comment on the following issues.
A. Eligible Employee
Section 825.110 of the regulations sets forth the
eligibility standards employees must meet in order to take FMLA leave.
Specifically, subsection 825.110(a) restates the statutory requirement
that an employee needs to work for an employer for 12 months, work for
1,250 hours in the 12 months prior to taking leave, and work for an
employer with 50 or more employees within 75 miles of the worksite in
order to be eligible for leave. Although this provision has been in
effect for over 10 years, several issues continue to arise which appear
to warrant clarification.
One court has interpreted the requirement of 12 months of
service under section 825.110(a)(1) to preclude an employee from
aggregating for coverage purposes two separate and distinct work
periods (separated by a 5 year absence from the company). See Rucker v.
Lee Holding, Co., 419 F. Supp. 2d 1 (D. Me. 2006), appeal pending, No.
06-1633 (1st Cir.).\3\ The court acknowledged that the regulations at
section 825.110(b) state that the ``12 months an employee must have
been employed * * * need not be consecutive months'' and that an
employee who maintains an ongoing relationship with an employer
punctuated by brief interruptions in service may combine those time
periods in order to meet the 12-month requirement. The court also
stated, however, that while the regulation ``accommodates individuals
whose employment might be intermittent or casual, it makes no allowance
for an employee who severs all ties with the employer for a period of
years before returning.'' Id. at 3. The Department seeks input on
whether and how to address the treatment of combining non-consecutive
periods of service for purposes of meeting the 12 months requirement in
section 825.110.
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\3\ The Department filed an amicus brief in the First Circuit
arguing that, under the current regulations, a five-year break in
service is at the outer bounds of what is permissible.
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Subsection 825.110(d) states that employee eligibility
determinations ``must be made as of the date leave commences.'' This
language has led to differing opinions about whether employees who have
worked for 1,250 hours may begin a block of leave before they have met
the 12-month eligibility date. Compare Babcock v. BellSouth Advertising
and Publ'g Corp., 348 F.3d 73 (4th Cir. 2003), and Beffert v. Penn.
Dep't of Pub. Welfare, 2005 WL 906362 (E.D. Pa. Apr. 18, 2005), with
Willemssen v. Conveyor Co., 359 F. Supp. 2d 813 (N.D. Iowa 2005). The
Department solicits comment on how to appropriately clarify this
situation. For example, if an employee is on leave at the time he/she
meets the 12-month eligibility requirement, should the period of leave
after meeting the statutory 12-month requirement be considered
protected FMLA leave?
In addition, the Department seeks comment on the differing
regulatory tests used for determining employee eligibility. Subsection
(d) states that an employer must determine whether an employee has met
the 12-month/1,250-hour eligibility requirements as of the date leave
is to commence. See 29 CFR 825.110(d) (emphasis added). In contrast,
subsection (f) states that for purposes of determining whether an
employee works for an employer who employs 50 or more employees within
75 miles of the worksite, the determination is to be made as of the
date that the leave request is made. See 29 CFR 825.110(f) (emphasis
added).
Section 825.111 sets forth the standards for determining
employer coverage under the statutory requirement that employers must
employ 50 employees within 75 miles to be covered by the FMLA (29
U.S.C. 2611(2)(B)(ii)). In December 2004, the United States Court of
Appeals for the Tenth Circuit partially invalidated section
825.111(a)(3) of the existing regulations, which states that when an
employee is jointly employed by two or more employers under section
825.106, the employee's worksite is the primary employer's office from
which the employee has been assigned or to which the employee reports.
See Harbert v. Healthcare Servs. Group, Inc., 391 F.3d 1140 (10th Cir.
2004). The court ruled that the existing regulation, as applied
[[Page 69509]]
to the situation of an employee with a long-term fixed worksite at a
facility of the secondary employer, was arbitrary and capricious
because it: (1) Contravened the plain meaning of term ``worksite'' as
the place where an employee actually works (as opposed to the long-term
care placement agency from which she was assigned); (2) contradicted
Congressional intent (manifested in 29 U.S.C. 2611(2)(B)(ii) and the
legislative history) that if any employer, large or small, has no
significant pool of employees nearby (within 75 miles) to cover for an
absent employee, that employer should not be required to provide FMLA
leave to that employee; and (3) created an arbitrary distinction
between sole and joint employers. The Department seeks comment on these
situations and any issues that may arise when an employee is jointly
employed by two or more employers or when the employee works from home.
B. Definition of ``Serious Health Condition''
Section 825.114(c) states ``[o]rdinarily, unless
complications arise, the common cold, the flu, earaches, 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.'' Have these limitations
in section 825.114(c) been rendered inoperative by the regulatory tests
set forth in section 825.114(a)?
Is there a way to maintain the substantive standards of
section 825.114(a) while still giving meaning to section 825.114(c) and
congressional intent that minor illnesses like colds, earaches, etc.,
not be covered by the FMLA?
C. Definition of a ``Day''
Should scheduled holidays count against an employee's 12
weeks of FMLA leave when the employee is out for a full week as they do
now?
Should ``more than three consecutive calendar days'' for a
serious health condition in section 825.114(a)(2)(i) mean four days or
three days and any part of the fourth day? Compare Russell v. North
Broward Hosp., 346 F.3d 1335 (11th Cir. 2003) (three full days and a
partial day will meet the test for continuing treatment), with Murray
v. Red Kap Indus., Inc., 124 F.3d 696, 698 (5th Cir. 1997) (``where an
employee alleges that he has a serious health condition involving
continuing treatment by a health care provider, he must first
demonstrate a period of incapacity * * * for at least four consecutive
days''); Henderson v. Cent. Progressive Bank, 2002 WL 31086086, at *3
(E.D. La. Sept. 17, 2002) (``statute requires an absence of at least
four consecutive days''); Seidle v. Provident Mut. Life Ins. Co., 871
F. Supp. 238, 243-44 (E.D. Pa. 1994) (plaintiff could not show that her
son had ``serious health condition'' because he had been incapacitated
for only three days, not the statutory four or more); Bond v. Abbott
Labs., 7 F. Supp. 2d 967, 973 (N.D. Ohio 1998) (``[plaintiff] must show
that the period of incapacity was required to be at least four
consecutive days'').
D. Substitution of Paid Leave
What is the impact of section 825.207 which prohibits
employers from applying their normal leave policies to employees
substituting paid vacation and personal leave for unpaid FMLA leave?
Does the existence of paid leave policies affect the
nature and type of FMLA leave used?
Do employers allow employees to use paid leave such as
sick leave to cover short absences from work (such as late arrivals and
early departures) for FMLA covered conditions?
E. Attendance Policies
How does the FMLA impact the ability of employers to
adhere to attendance policies? Has section 825.215(c)(2) impacted the
employers' ability to use ``perfect attendance awards'' and other
incentives to encourage attendance? Is there a way to structure such
awards and still maintain their effectiveness as an attendance
incentive?
F. Different Types of FMLA Leave
Does scheduled FMLA leave present different problems or
benefits from unscheduled FMLA leave? Does intermittent leave present
different problems or benefits from leave taken for one continuous
block of time? Does the length of leave taken present different
problems or benefits?
Are there differences in leave usage based on occupation,
employee classification, or other factors?
How do employers cover the work of employees taking FMLA
leave? Does the length of leave impact this coverage? Does the fact
that the leave is scheduled or unscheduled impact this coverage? Does
the amount of notice given by the leave-taking employee impact this
coverage? Does the fact that the leave is intermittent impact this
coverage?
Do employers track late arrivals and early departures for
FMLA-covered conditions? If so, how is such leave counted against the
employee's allotment of twelve weeks of FMLA leave?
Is there any evidence that employers are improperly
denying requests for FMLA leave? If so, is the denial of FMLA leave
more prevalent for certain types of leave?
Is there any evidence that employees are misusing FMLA
leave? If so, how does this compare to other types of leave?
Is there any evidence of employers closing or relocating
facilities as a result of employee leave patterns (either scheduled or
unscheduled)?
Is there a way to appropriately balance employer absence
control policies and legitimate employee use of unscheduled,
intermittent leave?
G. Light Duty
At least two courts have interpreted section 825.220(d) to
mean that an employee uses his or her 12-week FMLA leave entitlement
while on a light duty assignment. Should ``light duty'' work count
against the employee's FMLA leave entitlement and/or reinstatement
rights?
H. Essential Functions
In order to qualify for FMLA leave, an employee must be
unable to work at all or unable to perform any one of the essential
functions of the employee's position. See 29 CFR 825.115. What are the
implications of permitting an employer to modify an employee's existing
job duties to meet any limitations caused by the employee's serious
health condition as specified by a health care provider, while
maintaining the employee's same job, pay, and benefits?
I. Waiver of Rights
Section 825.220(d) states that ``[e]mployees cannot waive,
nor may employers induce employees to waive, their rights under the
FMLA.'' Some courts have interpreted this language to prohibit not only
an employee's prospective or future waiver of rights but also the
ability of an employee to settle his or her past FMLA claim. See, e.g.,
Taylor v. Progress Energy, 415 F.3d 364 (4th Cir. 2005), vacated and
rehearing granted (June 14, 2006).\4\ The Department seeks input on
whether a limitation should be placed on the
[[Page 69510]]
ability of employees to settle their past FMLA claims.
---------------------------------------------------------------------------
\4\ The Department filed an amicus brief in the Fourth Circuit
on rehearing arguing that the regulation should be interpreted
solely to bar the waiver of prospective rights.
---------------------------------------------------------------------------
J. Communication Between Employers and Their Employees
Some commenters have expressed concern about the lack of
awareness of FMLA rights and responsibilities among some employees. The
Department requests information on whether employees continue to be
unaware of their rights under the Act and, if so, what steps could be
taken to improve this situation.
In addition, as is discussed in the FMLA Coverage and
Usage Estimates section presented below, the estimated number of
workers taking FMLA leave based upon the 2000 Westat employee survey
(2.4 million) is significantly lower than the estimate based upon the
employer survey (6.1 million). What may account for this difference?
Although there is evidence that some employers are failing
to advise workers that their leave is being charged to FMLA, the
Supreme Court in Ragsdale held that an employee is not automatically
entitled to additional FMLA leave if the employer fails to properly
advise the worker that the leave is being charged to FMLA because such
a categorical penalty is inconsistent with the statute. What methods
are used to notify employees that their leave has been designated as
FMLA leave? What improvements can be made so that employees have more
accurate information on their FMLA leave balances?
What changes could be made to the regulations in order to
comply with Ragsdale and yet assure that employers maintain proper
records and promptly and appropriately designate leave as FMLA leave?
Employers have reported that some employees do not
promptly notify their employers when they take unforeseeable FMLA
leave. The Department requests information on the prevalence and causes
of employees failing to notify their employers promptly that they are
taking FMLA leave and suggestions as to how to improve this situation.
K. FMLA Leave Determinations/Medical Certifications
Does the regulatory provision (section 825.307) that
permits an employer to contact the employee's health care provider for
purposes of clarification and authentication only through the
employer's health care provider result in unnecessary expenses for
employers (e.g., by requiring them to hire a health care professional
for purposes of this contact) and/or delay the certification process?
How should the FMLA be reconciled with the Americans with Disabilities
Act (``ADA''), which governs employee medical inquiries and contains no
such limitation on employer contact? What are the costs and benefits to
having this limitation?
Does the model certification form (WH-380) seek the
appropriate medical information? If not, what improvements could be
made to the form to make it clearer and easier for health care
providers to complete, so that it is more likely that the necessary and
appropriate information will be reported?
Does the two-day timeframe for providing notification to
employees that their FMLA leave request has been approved or denied
provide adequate time for employers to review sufficiently the
information and make a determination?
Section 825.308 generally permits an employer to request a
medical recertification no more often than every 30 days and only in
connection with the absence of the employee. Is that an appropriate
timeframe?
Section 825.308(e) permits employers to request a second
opinion only for the initial certification. What are the costs and
benefits to greater flexibility in requesting second opinions for
recertifications? Would it create any hardships?
Section 825.310(g) does not allow an employer to request a
fitness for duty statement in the case of a worker who is absent
intermittently. What are the benefits and burdens of permitting such
fitness for duty certifications?
L. Employee Turnover and Retention
How does the availability of FMLA leave affect employee
morale and productivity?
Is there any evidence that FMLA leave increases employee
retention, thereby, reducing employee turnover and the associated
costs?
III. FMLA Coverage and Usage Estimates
A. Introduction
In order to assist the Department's analysis of the impacts of the
FMLA discussed above, the Department in the following sections presents
estimates of the coverage and usage of FMLA leave in 2005. The
Department generally requests comment on these estimates and any data
that would allow the Department to better estimate the costs and
benefits of the FMLA. Throughout this section, the Department has also
identified particular issues for which we request additional
information and comment.
The Family and Medical Leave Act established a bipartisan
Commission on Family and Medical Leave to study family and medical
leave policies and their impact on workers and their employers. The
Commission surveyed workers and employers and issued a report in 1995.
In 1999 the Department contracted with Westat to update the
employee and establishment surveys conducted in 1995. The surveys were
completed in 2000. A report entitled ``Balancing the Needs of Families
and Employers: Family and Medical Leave Surveys, 2000 Update'' was
published in January 2001 (the ``2000 Westat Report'') and is available
on the Department's Web site at www.dol.gov/esa/whd/fmlacomments.htm.
The 2000 Westat Report is actually composed of two separate surveys:
(1) An employer or establishment survey; and (2) an employee survey.
The following analysis updates the Department's estimates of the number
of workers employed at establishments covered by the FMLA, and the
number of workers who took FMLA leave in 2005 (the latest year for
which BLS employment data is available). It also highlights a number of
important results and caveats in the 2000 Westat Report.
B. Westat's Estimates
The Department is interested in refining the coverage and
eligibility estimates in the 2000 Westat Report for two reasons. The
Department believes there are several methodological issues in the 2000
Westat Report that resulted in the overestimation of covered and
eligible workers, and an underestimation of workers not covered by the
Act.\5\ In addition, the employment estimates in the Westat Report are
based upon their 2000 survey and may not present an accurate picture of
the current workforce.
---------------------------------------------------------------------------
\5\ Westat, ``Balancing the Needs of Families and Employers.''
These methodological issues are footnoted in the report in a variety
of places, particularly Appendix C.
---------------------------------------------------------------------------
Although the Bureau of Labor Statistics (``BLS'') reports that
total employment in 1999 was 133.5 million, the 2000 Westat Report
estimated the number of covered workers by applying the percentages
developed in its surveys to a workforce of 144 million. As noted in
Appendix C of the 2000 report, this methodology (e.g., using an 18-20
month survey period) likely results in an overestimate of total
employment. Moreover, ``[h]ouseholds that refused to complete the 2000
screener tended to consist of persons that were not employed during the
reference period.
[[Page 69511]]
All other things being equal, this would lead to a higher estimate of
the total number of employed persons in the 2000 survey.'' \6\
---------------------------------------------------------------------------
\6\ Westat, ``Balancing the Needs of Families and Employers,''
at C-12.
---------------------------------------------------------------------------
Further, the 133.5 million employment estimate includes workers who
are not covered by the Department's regulations implementing the Act,
such as the self-employed, unpaid volunteers, and many federal
employees. Including these groups in the total also distorts the
estimates of covered and eligible employees.\7\
---------------------------------------------------------------------------
\7\ For example, the self-employed do not need to be included in
the FMLA coverage estimates since they do not have to be told to
rehire themselves after they return from ``family leave.''
---------------------------------------------------------------------------
C. Number of Workers Employed at FMLA Covered Establishments and the
Number of Workers Eligible To Take FMLA Leave
The FMLA coverage estimates presented in this analysis are based
upon applying the percentages in the 2000 Westat Report to the number
of wage and salary workers in private industry and state and local
governments in the 2005 Current Population Survey (see Table 1).\8\
---------------------------------------------------------------------------
\8\ Of the two major BLS employment surveys, the Current
Population Survey was used because it covers agriculture, while the
Current Employment Statistics survey does not.
Table 1.--Civilian U.S. Employment Age 16 Years and Over in 2005
------------------------------------------------------------------------
Millions of
employees
------------------------------------------------------------------------
Total Employment........................................... 141.7
Self-Employed and Unpaid Volunteers/Family Members....... 15.8
Federal Employees (covered by OPM's FMLA regs)........... 2.6
Wage and Salary Workers in Private Industry and State and 123.3
Local Government*.........................................
------------------------------------------------------------------------
Source: U.S. DOL, ESA estimates based upon 2005 Current Population
Survey.
* Includes some Federal government workers employed by certain agencies
such as the USPS.
The best available FMLA coverage estimates were published in Table
A2-3.1 of the 2000 Westat Report, which are presented in Table 2 below.
Table 2.--Coverage and Eligibility of Employees Under the Family and
Medical Leave Act: 2000 Survey
------------------------------------------------------------------------
Percent of
all
employees
------------------------------------------------------------------------
Eligible Employees at FMLA-Covered Worksites............... 61.7
Non-eligible Employees at Covered Worksites................ 14.9
Employees at Non-covered Worksites......................... 23.3
------------------------------------------------------------------------
Source: Westat, ``Balancing the Needs of Families and Employers,'' at A-
2-21.
Does not sum to 100.0% due to rounding.
The estimates of the number of workers covered and eligible for
FMLA leave under the regulations administered by the Department were
developed by multiplying the 123.3 million wage and salary workers in
private industry and state and local governments in 2005 by the
percentage estimates in Table 2 above.
Table 3.--Number of Covered and Eligible Employees Under the Family and
Medical Leave Act in 2005
------------------------------------------------------------------------
Millions of
employees
------------------------------------------------------------------------
Employees at FMLA-Covered Worksites........................ 94.4
Eligible Employees at FMLA-Covered Worksites............... 76.1
Non-eligible Employees at FMLA Covered Worksites........... 18.4
Employees at Non-FMLA covered Worksites.................... 28.7
------------------------------------------------------------------------
Source: U.S. DOL, ESA based upon 2005 Current Population Survey and the
2000 Westat Report.
Does not sum to 123.3 million due to rounding.
The Department requests comment on the approach used here
to estimate the number of FMLA eligible workers employed at covered
worksites. The Department also requests that commenters submit
alternative methodologies and other available data that could be used
to refine these estimates.
D. Number of Covered and Eligible FMLA Leave Takers
According to the 2000 Westat Report, 17.1 percent of covered and
eligible employees took leave for a ``covered reason.'' \9\ Applying
this percentage to the 76.1 million eligible employees at covered
worksites in Table 3 yields an estimate of 13.0 million workers who
took leave that they reported was for reasons covered by the FMLA.
However, 13.0 million may be an upper-bound estimate in that it may
over-estimate the number of covered and eligible workers who actually
took FMLA leave because many of the ``covered reason[s]'' for leave may
not rise to the level of a serious health condition. In fact, Westat
cautioned ``that the leave-takers discussed in this section [the one
where the 17.1 percent estimate appears] did not necessarily take leave
under the FMLA.'' \10\ Moreover, 33.6 percent of FMLA-covered
establishments report that at least some of the time employees take
leave for family and medical reasons, that leave is not counted as FMLA
leave.\11\
---------------------------------------------------------------------------
\9\ Westat, ``Balancing the Needs of Families and Employers,''
at 3-5 to 3-6.
\10\ Id. at 3-5. Westat provided this caution because the
questions Westat asked employees did not inquire about the
seriousness of the health conditions. See questions A3, A4, and A5
of Westat's 2000 Survey of Employees Questionnaire.
\11\ U.S. Department of Labor, Employment Standards
Administration estimate based on Westat's 2000 FMLA Establishment
Survey data.
---------------------------------------------------------------------------
The distinction between leave taken for family and medical reasons
and leave that qualifies as FMLA leave is important. Only leave that
qualifies as FMLA leave triggers the employee's job protection rights
and counts against the 12 weeks of leave provided by the Act. In order
to estimate the number of covered and eligible employees who took FMLA
leave, additional analysis is necessary.
According to the 2000 Westat employee survey, only 18.3 percent of
covered and eligible workers who took leave that they reported was for
reasons covered by the FMLA actually took FMLA leave.\12\ Applying this
percentage to the 13.0 million covered and eligible workers who took
leave that they reported was for reasons covered by the FMLA yields an
estimate of 2.4 million workers who took FMLA leave in 2005.\13\
However, 2.4 million may be a lower-bound estimate in that it may
under-estimate the number of covered and eligible workers who actually
took FMLA leave, because evidence exists that many workers are unaware
that their leave qualified and that their employers may have designated
their leave as FMLA leave.\14\
---------------------------------------------------------------------------
\12\ Westat, ``Balancing the Needs of Families and Employers,''
at 3-14.
\13\ This estimate is consistent with Westat's estimate of
``between 2.2 and 3.3 million people'' based on the employee survey.
Westat, ``Balancing the Needs of Families and Employers,'' at 3-13.
\14\ According to U.S. Department of Labor, Employment Standards
Administration tabulation of data in Westat's 2000 FMLA Employee
Survey, 34.5 percent of covered and eligible workers who reported
taking leave for an FMLA covered reason also reported that they had
never heard of the FMLA.
---------------------------------------------------------------------------
[[Page 69512]]
Because of the data limitations described above, the Department
developed estimates of the number of covered and eligible employees who
took FMLA leave based upon Westat's 2000 establishment survey rather
than the employee survey. According to the 2000 Westat Report's
establishment survey, 6.5 percent of employees in covered
establishments took FMLA leave.\15\ Applying this percentage to the
94.4 million workers employed at FMLA-covered establishments in 2005
yields an estimate of 6.1 million covered and eligible employees who
took FMLA leave in 2005.\16\ The Department notes that the results of
the 2000 Westat establishment survey for large employers are consistent
with the results of a recent WorldatWork survey.\17\
---------------------------------------------------------------------------
\15\ Westat, ``Balancing the Needs of Families and Employers,''
at 3-14 to 3-15.
\16\ This estimate is consistent with Westat's estimate of
``between 4.6 million and 6.1 million'' based on the establishment
survey. Westat, ``Balancing the Needs of Families and Employers,''
at 3-14.
\17\ A recent survey of large companies found that 9.5 percent
of covered employees took FMLA leave compared to 8.9 percent for
large employers in the 2000 Westat establishment survey. See
WorldatWork, FMLA Perspectives and Practices, April 2005, at 7, and
Westat, ``Balancing the Needs of Families and Employers,'' Table
3.6, at 3-15.
---------------------------------------------------------------------------
The Department requests comments on the approach that was
used to estimate the number of covered and eligible employees who took
FMLA leave. The Department also requests that commenters submit
alternative methodologies and other available data that could be used
to refine the estimate.
Although the Department previously estimated that ``over 35 million
covered and eligible workers have benefited from taking leave for
family and medical reasons since 1993'' (emphasis added),\18\ the
Department is concerned that this estimate has been misinterpreted to
be equivalent to the number of workers who actually took FMLA leave
since 1993.\19\ This is not an accurate estimate of the number of
workers who took FMLA leave. As noted above, there is an important
difference between leave taken for reasons covered by the FMLA and
leave actually qualified as FMLA leave. The two are not the same and it
is important to differentiate the two in order to estimate the marginal
impact of the FMLA itself, as opposed to estimating the impact of all
sick leave policies in the workforce. In addition, as noted in the 2000
Westat Report, ``establishments may double count persons that took more
than one FMLA leave'' during the 18-20 month survey period that began
in January 1999.\20\ Moreover, this double counting is even more likely
to occur over the longer period that began in 1993 due to workers who
have chronic conditions, more than one family member with a serious
health condition, or multiple pregnancies or adoptions. After reviewing
the 2000 Westat Report, the Department has determined that the
available data do not enable the accurate estimation of the total
number of workers who took FMLA leave since 1993.
---------------------------------------------------------------------------
\18\ Westat, ``Balancing the Needs of Families and Employers,''
Statement from Alexis M. Herman, Secretary of Labor.
\19\ In the past few years, several press accounts reported that
50 million workers have taken advantage of FMLA leave since 1993 and
have attributed this estimate to the Department. There is no
Department estimate of 50 million workers having taken FMLA leave.
While it might be possible to develop such an estimate by
extrapolating from estimates in the 2000 Westat Report, such
estimates would suffer from the same problems as those discussed
above.
\20\ Westat, ``Balancing the Needs of Families and Employers,''
at 3-14 n. 25.
---------------------------------------------------------------------------
The Department requests that commenters submit alternative
methodologies and other available data that could be used to develop
this estimate given the data limitations and methodological issues in
the 1995 and 2000 FMLA reports.
E. Estimated Number of Workers Taking Intermittent FMLA Leave
Although the Westat surveys tended to focus on the longest leaves
taken for family and medical reasons rather than the leaves taken
intermittently, the Department believes that the report can be used to
develop an estimate of the number of workers that use intermittent FMLA
leave. Almost one-quarter (23.9 percent) of covered and eligible
workers who took FMLA leave reported taking their leave
intermittently.\21\ That is, they repeatedly took leave for a few hours
or days at a time because of ongoing family or medical reasons.\22\
Assuming that the 23.9 percent estimate applies to leave-takers as well
as leave (i.e., the intermittent leave is not concentrated in a small
group of leave-takers), then about 1.5 million FMLA leave-takers (i.e.,
23.9% of 6.1 million FMLA leave-takers) use intermittent leave in a
year.
---------------------------------------------------------------------------
\21\ U.S. Department of Labor, Employment Standards
Administration, estimate based on Westat's 2000 FMLA Employee Survey
data.
\22\ Those that answered yes to Question A5B of Westat's
employee questionnaire.
---------------------------------------------------------------------------
The Department requests comment on the approach that was
used to estimate the number of FMLA eligible workers employed at
covered worksites taking intermittent FMLA leave. The Department also
requests that commenters submit alternative methodologies and other
available data that could be used to refine this estimate.
F. The Financial Impact of Intermittent FMLA Leave
In the foreword to the 2000 Westat Report, the Department noted:
Two-thirds of covered employers reported that, overall,
complying with the Act was very or somewhat easy * * * The survey
found that for most employers, intermittent leave had no impact on
their business. Slightly more than 81 percent of employers said the
use of intermittent leave had no impact on productivity and 94
percent said it had no impact on their profitability.\23\
\23\ Westat, ``Balancing the Needs of Families and Employers,''
at xii.
---------------------------------------------------------------------------
However, because employers have reported that recurring unforeseen
(i.e., unscheduled), intermittent FMLA leave is a problem, the
Department has reexamined the estimates in the Westat Report. According
to Table A2-6.13 of the Westat Report (presented below and renumbered
as Table 4), 32.3 percent of establishments with over 250 employees
reported a negative impact on productivity.\24\ Moreover, 17.4 percent
of establishments with over 250 employees reported a negative impact on
profits.\25\ Additionally, ``[a]cross the board, administrative issues
are perceived to be more difficult in 2000 than they were in 1995'';
\26\
---------------------------------------------------------------------------
\24\ Id. at A-2-59.
\25\ Id.
\26\ Id. at 6-8.
[[Page 69513]]
Table 4.--The Impact of Intermittent Leave Taken Under FMLA on Covered
Establishments by Size: 2000 Survey
------------------------------------------------------------------------
Percent of covered
establishments with:
-------------------------- All covered
1-250 251+ establishments
employees employees
------------------------------------------------------------------------
Productivity:
Large negative impact..... -- 3.2% 0.5%
Moderate negative impact.. 12.0% 14.6% 12.2%
Small negative impact**... 4.8% 14.5% 5.4%
No impact*................ 82.3% 65.7% 81.2%
Small positive impact..... -- -- --
Moderate positive impact.. -- -- --
Large positive impact..... & & &
Profitability:
Large negative impact**... -- 1.2% 0.1%
Moderate negative impact** 1.5% 5.5% 1.7%
Small negative impact**... 3.8% 10.7% 4.2%
No impact**............... 94.5% 81.7% 93.7%
Small positive impact..... -- -- --
Moderate positive impact.. & -- --
Large positive impact..... & & &
------------------------------------------------------------------------
* Significant at p<.10, using a t-test.
** Significant at p<.05, using a t-test.
& Indicates no significance test was conducted because of zero cell.
-- Indicates less than 10 unweighted cases.
Note: Column percents may not total to 100% due to rounding.
Source: Westat, ``Balancing the Needs of Families and Employers,'' pg. A-
2-59.
A possible explanation of the differing impact of intermittent
leave by establishment size may be that FMLA leave usage varies by
establishment size. In fact, Westat found ``Taking FMLA leave is
apparently more frequent in larger establishments (8.9 leave-takers per
100 employees) than in smaller establishments (5.5 leave-takers per 100
employees).''\27\ Thus, the higher negative impacts reported by the
larger firms (i.e., those with 251 or more employees) may be due to
that fact that they have a higher percentage of employees taking FMLA
leave than small firms (i.e., those with 50 to 250 employees).
---------------------------------------------------------------------------
\27\ Id. at 3-14.
---------------------------------------------------------------------------
The Department also requests that commenters submit
alternative information related to the different impacts that
intermittent leave has on large employers compared to smaller
employers.
The definition of intermittent leave used in the 2000 Westat Report
may also mask issues of concern. As Westat specifically noted, the
employee survey defined intermittent leave as ``repeatedly tak[ing]
leave for a few hours or days at a time because of ongoing family or
medical reasons,'' \28\ whereas the regulations at 29 CFR 825.203(a)
define it as ``leave taken in separate blocks of time due to a single
qualifying reason.'' (Emphasis added.)
---------------------------------------------------------------------------
\28\ Id. at 2-10 n. 10.
---------------------------------------------------------------------------
Finally, the Westat survey did not distinguish between unscheduled,
intermittent leave and scheduled, intermittent leave. By including
leaves that do not occur repeatedly (i.e., 2 or 3 leaves in 18-20
months) in the surveys and by not asking questions about the impact of
unscheduled, intermittent leave, the report may underestimate issues
associated with frequent unscheduled, intermittent leaves of a day or
less.
The Department also requests that commenters submit
alternative information regarding any impact that recurring unforeseen,
intermittent FMLA leave may have on covered employers.
G. Estimated Number of Workers Taking Unforeseen, Intermittent FMLA
Leave
Although the Westat Report does not provide information on the
portions of the intermittent leave that are foreseeable and
unforeseeable, the 2000 survey did provide some data that may be used
as a rough ``proxy.'' Question A8a of the survey was ``Did you take
leave on a regular routine or as needed? '' and had two responses:
``Regular Routine'' and ``As Needed.'' Of the employees who took
intermittent FMLA leave for their longest leave, 45.4 percent reported
that they took it as needed.\29\ Assuming that all of the intermittent
FMLA leave-takers who took unforeseeable leave answered ``As Needed''
to question A8a, then about 700,000 workers (i.e., 45.4% of 1.5
million) took unforeseen, intermittent FMLA leave.
---------------------------------------------------------------------------
\29\ U.S. Department of Labor, Employment Standards
Administration estimate based on 2000 FMLA Employee Survey data.
---------------------------------------------------------------------------
The Department requests comment on the approach that was
used to estimate the number of FMLA eligible workers employed at
covered worksites taking unforeseen, intermittent FMLA leave.
The Department also requests that commenters submit
alternative methodologies and other available data that could be used
to refine this estimate.
The Department also requests comment on the prevalence,
durations, and causes of intermittent leave.
H. The Financial Impact of Unforeseen, Intermittent FMLA Leave
Based upon the preceding analysis, less than one-percent (700,000
of the 94.4 million) of the workers employed at FMLA covered
establishments may be taking unforeseen, intermittent FMLA leave. If
this estimate is accurate, it would seem to explain why most employers
in the Westat survey reported that intermittent leave had little impact
on productivity or profits. The temporary absence of less than 1 in
about 135 workers probably would not have a significant impact on the
overall efficiency of most employers' operations.
[[Page 69514]]
This does not preclude the possibility, however, that unforeseen,
intermittent FMLA leave may be a significant problem for some
employers. The unexpected absence of certain employees may create
problems in the workplace. For example, an unannounced absence can
cause other workers or equipment to be idled. An unannounced absence
can result in lost business or performance penalties to be imposed upon
the employer. It is noteworthy that the two industries with the highest
FMLA costs in the 2004 Employment Policy Foundation (``EPF'') survey
were transportation (an industry which has performance penalties) and
telecommunications (an industry where quality of service agreements are
common).\30\ Anecdotal reports also indicate that some employers
schedule extra workers for some positions to avoid the negative impacts
of unforeseen, intermittent leave.
---------------------------------------------------------------------------
\30\ Mulvey, Janemarie, ``The Cost and Characteristics of Family
and Medical Leave,'' Employment Policy Foundation Issue Backgrounder
(Apr. 19, 2005). But see Institute for Women's Policy Research,
``Assessing the Family and Medical Leave Act: An Analysis of an
Employment Policy Foundation Paper on Costs (June 29, 2005).
---------------------------------------------------------------------------
The Department also requests comment on the impact that
unscheduled, intermittent leave has on productivity and profits.
There is some indication that the use of unscheduled, intermittent
FMLA leave is not evenly distributed across employers or even across
the facilities of a given employer. Rather, it may be concentrated in
some facilities and only becomes a problem for employers when the
portion of workers taking unscheduled, intermittent FMLA leave in a
given facility or operation exceeds some critical point.
Some believe that the apparent concentration of workers taking
unscheduled, intermittent FMLA leave may be due to poor management or
other labor-relations problems. Others believe that as more and more
workers in a particular facility take unscheduled leave, the likelihood
that the remaining workers will become sick or injured and begin to
take FMLA leave also increases. See, e.g., Workers' Compensation and
Family and Medical Leave Act Claim Contagion.\31\
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\31\ Gardner, Harold H., Kleinman, Nathan L., and Butler,
Richard J., Workers' Compensation and Family and Medical Leave Act
Claim Contagion, Journal of Risk and Uncertainty, Volume 20, Jan.
2000, at 89-112.
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The Department requests that commenters submit information
on the concentration of workers taking unscheduled, intermittent FMLA
leave in specific industries and employers.
The Department requests that commenters submit information
on the factors contributing to large portions of the work force in some
facilities taking unscheduled, intermittent FMLA leave.
Finally, the problems associated with employees taking unscheduled,
intermittent FMLA leave may be related to the salaried or hourly-pay
status of the employees. Anecdotal reports indicate that employers do
not appear to have problems when workers who are salaried and exempt
from the Fair Labor Standards Act (``FLSA'') under 29 CFR part 541 take
small blocks of unscheduled, intermittent FMLA leave so long as these
workers complete their work. In fact, some employers may not even
record absences of a couple hours or less because of the scheduling
flexibility typically afforded to salaried workers, and because the
absences often have no impact on such workers' pay or productivity.
Employers report they have both administrative and production problems
when non-exempt (typically hourly-paid) workers take unscheduled,
intermittent FMLA leave, especially when these workers do not notify
their employers that they are not coming to work at their scheduled
reporting time. Unlike salaried employees, many non-exempt employees
may not be paid when they take unscheduled, intermittent FMLA leave.
The Department requests that commenters submit information
related to the different treatment of FLSA exempt and nonexempt
employees taking unscheduled, intermittent FMLA leave.
The Department also requests information on the different
impact the leave taking by FLSA exempt and nonexempt employees may have
on the workers who are taking leave and their employers.
I. Additional Questions Related to the Coverage Estimates and Their
Impacts
The Department requests public comment on the estimates
and the methodology used to produce these estimates, including any
available information that can be used to improve the estimates of the
impact that FMLA leave has on employers and employees.
IV. Conclusion
The Department invites interested parties having knowledge of the
FMLA to submit comments and welcomes any pertinent information that
will provide a basis for ascertaining the effectiveness of the current
implementing regulations and the Department's administration of the
Act. The issues posed in this notice are not meant to be an exclusive
list of issues for which the Department seeks commentary.
Victoria A. Lipnic,
Assistant Secretary for Employment Standards.
Paul DeCamp,
Administrator, Wage and Hour Division.
[FR Doc. 06-9489 Filed 11-30-06; 8:45 am]
BILLING CODE 4510-27-P