[Federal Register Volume 73, Number 28 (Monday, February 11, 2008)]
[Proposed Rules]
[Pages 7876-8001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-2062]
[[Page 7875]]
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Part IV
Department of Labor
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Employment Standards Adminstration
Wage and Hour Division
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29 CFR Part 825
The Family and Medical Leave Act of 1993; Proposed Rule
Federal Register / Vol. 73, No. 28 / Monday, February 11, 2008 /
Proposed Rules
[[Page 7876]]
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DEPARTMENT OF LABOR
Employment Standards Administration
Wage and Hour Division
29 CFR Part 825
RIN 1215-AB35
The Family and Medical Leave Act of 1993
AGENCY: Employment Standards Administration, Wage and Hour Division,
Department of Labor.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Department of Labor's Employment Standards Administration/
Wage and Hour Division proposes to revise certain regulations
implementing the Family and Medical Leave Act of 1993 (``FMLA''), the
law that provides eligible workers with important rights to job
protection for absences due to the birth or adoption of a child or for
a serious health condition of the worker or a qualifying family member.
The proposed changes are based on the Department's experience of nearly
fifteen years administering the law, two previous Department of Labor
studies of the FMLA in 1996 and 2001, several U.S. Supreme Court and
lower court rulings, and the public comments received in response to a
Request for Information (``RFI'') published in the Federal Register in
December 2006 requesting information about experiences with the FMLA
and comments on the effectiveness of these regulations.
The Department is also seeking public comment on issues to be
addressed in final regulations regarding military family leave. Section
585(a) of the National Defense Authorization Act for FY 2008 amends the
FMLA to provide leave to eligible employees of covered employers to
care for injured servicemembers and because of any qualifying exigency
arising out of the fact that a covered family member is on active duty
or has been notified of an impending call to active duty status in
support of a contingency operation (collectively referred to herein as
military family leave). The provisions of this amendment providing FMLA
leave to care for a covered servicemember became effective on January
28, 2008, when the law was enacted. The provisions of this amendment
providing for FMLA leave due to a qualifying exigency arising out of a
covered family member's active duty (or call to active duty) status are
not effective until the Secretary of Labor issues regulations defining
``qualifying exigencies.'' Because of the need to issue regulations
under the military family leave provisions of the amendment as soon as
possible, the Department is including in this Notice a description of
the relevant military family leave statutory provisions, a discussion
of issues the Department has identified, and a series of questions
seeking comment on subjects and issues that may be considered in the
final regulations.
DATES: Comments must be received on or before April 11, 2008.
ADDRESSES: You may submit comments, identified by RIN 1215-AB35, by
either one of the following methods:
Electronic comments, through the Federal eRulemaking
Portal: http://www.regulations.gov. Follow the instructions for
submitting comments.
Mail: 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, N.W., Washington, DC 20210.
Instructions: Please submit one copy of your comments by only one
method. All submissions must include the agency name and Regulatory
Information Number (RIN) identified above for this rulemaking. Please
be advised that comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided. Because we continue to experience delays in receiving mail in
the Washington, DC area, commenters are strongly encouraged to transmit
their comments electronically via the Federal eRulemaking Portal at
http://www.regulations.gov or to submit them by mail early. For
additional information on submitting comments and the rulemaking
process, see the ``Public Participation'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket to read background documents or
comments received, go to the Federal eRulemaking Portal at http://www.regulations.gov.
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). Copies of this proposed rule may be obtained in
alternative formats (Large Print, Braille, Audio Tape or Disc), upon
request, by calling (202) 693-0675. TTY/TDD callers may dial toll-free
1-877-889-5627 to obtain information or request materials in
alternative formats.
Questions of interpretation and/or enforcement of the agency's
current regulations may be directed to the nearest Wage and Hour
Division District Office. Locate the nearest office by calling the Wage
and Hour Division's toll-free help line at (866) 4US-WAGE ((866) 487-
9243) between 8 a.m. and 5 p.m. in your local time zone, or log onto
the Wage and Hour Division's Web site for a nationwide listing of Wage
and Hour District and Area Offices at: http://www.dol.gov/esa/contacts/whd/america2.htm.
SUPPLEMENTARY INFORMATION:
I. Electronic Access and Filing Comments
Public Participation: This notice of proposed rulemaking is
available through the Federal Register and the http://www.regulations.gov Web site. You may also access this document via the
Wage and Hour Division's home page at http://www.wagehour.dol.gov. To
comment electronically on Federal rulemakings, go to the Federal
eRulemaking Portal at http://www.regulations.gov, which will allow you
to find, review, and submit comments on Federal documents that are open
for comment and published in the Federal Register. Please identify all
comments submitted in electronic form by the RIN docket number (1215-
AB35). Because of delays in receiving mail in the Washington, DC area,
commenters should transmit their comments electronically via the
Federal eRulemaking Portal at http://www.regulations.gov, or submit
them by mail early to ensure timely receipt prior to the close of the
comment period. Submit one copy of your comments by only one method.
II. Background
A. What the Law Provides
The Family and Medical Leave Act of 1993, Public Law 103-3, 107
Stat. 6 (29 U.S.C. 2601 et. seq.) (``FMLA'' or ``Act'') was enacted on
February 5, 1993, and became effective for most covered employers on
August 5, 1993. 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
[[Page 7877]]
condition. See 29 U.S.C. 2612. The twelve weeks of leave may be taken
in a block, or, under certain circumstances, intermittently or on a
reduced leave schedule. Id.
Employers covered by the law must maintain for the employee any
preexisting group health coverage during the leave period under the
same conditions coverage would have been provided if the employee had
not taken leave 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 of
Labor (``Department'' or ``DOL'') 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 monetary 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. Who the Law Covers
The FMLA generally covers employers with 50 or more employees, and
employees must have worked for the employer for 12 months and for 1,250
hours of service during the previous year to be eligible for FMLA
leave. Based on 2005 data, the latest year for which data are
available, the Department estimates that:
There were an estimated 95.8 million workers in
establishments covered by the FMLA regulations,
There were approximately 77.1 million workers in covered
establishments who met the FMLA's requirements for eligibility, and
About 7.0 million covered and eligible workers took FMLA
leave in 2005.
About 1.7 million covered and eligible employees who took
FMLA leave took at least some of it intermittently--and may have taken
that intermittent leave multiple times over the course of the year.
C. 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 final regulations went into effect on April 6, 1995.
D. 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 FMLA 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. Id.
at 91-96.
Other Challenges to ``Categorical Penalty'' Provisions
As the Department explained in its December 2006 RFI \1\ and the
subsequent 2007 Report on the RFI comments,\2\ Ragsdale is not the only
court decision addressing penalty provisions contained in the
regulations. Another provision of the regulations, Sec. 825.110(d),
requires an employer to 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
[[Page 7878]]
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'').
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\1\See 71 FR 69504, 69505 (Dec. 1, 2006).
\2\See ``Family and Medical Leave Act Regulations: A Report on
the Department of Labor's request for Information,'' 72 FR 35550,
35560 (June 28, 2007).
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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'' as a condition causing a period of
incapacity of more than three consecutive calendar days and continuing
treatment, 29 CFR 825.114(a)(2)(i), has 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).
As the Department explained in its December 2006 RFI \3\ and
subsequent Report on the RFI,\4\ the Department itself has struggled
with this definition. After the Act's passage, the Department
promulgated Sec. 825.114(c), which states that ``[o]rdinarily, unless
complications arise, the common cold, the flu, ear aches, upset
stomach, minor ulcers, headaches other than migraine, routine dental or
orthodontia problems, periodontal disease, etc., are examples of
conditions that do not meet the definition of a serious health
condition and do not qualify for FMLA leave.'' This regulatory language
was intended to reflect 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 and not by the FMLA. See H.R. Rep. No.
103-8, at 40 (1993); S. Rep. No. 103-3, at 28-29 (1993). Consequently,
in an early response about the proper handling of an employee's request
for leave due to the common cold, the Department responded by stating
``[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).'' Wage and Hour Opinion Letter FMLA-57
(Apr. 7, 1995). More than a year and a half later, however, the
Department reversed its interpretation, stating that Wage and Hour
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.''
Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996). The Department
further stated that such minor illnesses ordinarily would not be
expected to last more than three days, but if they do meet the
regulatory criteria for a serious health condition under Sec.
825.114(a), they qualify for FMLA leave. The Department received
significant commentary about its changing interpretations of the
definition of serious health condition in response to its RFI. See
Chapter III of the Department's 2007 Report on the RFI comments (72 FR
at 35563).
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\3\See 71 FR at 69506.
\4\See 72 FR at 35563.
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Other Legal Challenges
Many other legal issues have arisen over the nearly thirteen years
the final regulations have been in effect. For example, litigation has
ensued under Sec. Sec. 825.302-.303 as to what constitutes sufficient
employee notice to trigger an employer's obligations under the FMLA.
See, e.g., Sarnowski v. Air Brook Limousine, Inc.,--F.3d ,--2007 WL
4323259 (3rd Cir. 2007) (employee with chronic heart problems who
informed employer of need for continuing medical monitoring and
possible surgery provided sufficient notice); 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'').
Among other cases, the Tenth Circuit Court of Appeals considered
the definition of ``worksite'' for determining whether an employee
seeking FMLA leave was employed at a worksite where 50 or more
employees were employed by the employer within 75 miles. Section
825.111(a)(3) states that when an employee is jointly employed by two
or more employers, the employee's worksite is the primary employer's
office from which the employee has been assigned or to which the
employee reports. In Harbert v. Healthcare Services Group, Inc., 391
F.3d 1140 (10th Cir. 2004), the Court of Appeals invalidated Sec.
825.111(a)(3), insofar as it is applied to the situation of an employee
with a long-term fixed worksite at a facility of the secondary
employer. The First Circuit Court of Appeals looked at a different
eligibility criterion, the requirement that the employee has been
employed by the employer for at least 12 months, and addressed whether
an employee who had a break in service may count previous periods of
employment with the same employer toward satisfying the 12-month
employment requirement (29 U.S.C. 2611(2)(A)(i); 29 CFR 825.110(a)(1)
and (b)). See Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006) (a
complete break in service of a period of five years does not prevent
the employee from counting previous employment to meet the 12-month
employment requirement). Another regulation that has been the subject
of litigation is Sec. 825.220(d), which in part discusses the impact
of a light duty work assignment on an employee's FMLA rights. Further,
most recently, the Fourth Circuit Court of Appeals ruled in Taylor v.
Progress Energy, 493 F.3d 454 (4th Cir. 2007), petition for cert.
filed, 76 U.S.L.W. 3226 (U.S. Oct. 22, 2007) (No. 07-539), that other
language in Sec. 825.220(d) prevents an employee and employer from
independently settling past claims for FMLA violations without the
approval of the Department or a court.
E. Prior Studies and Reports
Title III of the FMLA 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. The Commission surveyed workers and employers in 1995 and
issued a report published by the Department in 1996, ``A Workable
Balance: Report to Congress on Family and Medical Leave Policies.'' \5\
In 1999, the Department contracted with Westat, Inc.,\6\ to update the
employee and establishment surveys conducted in 1995. The Department
published that report, ``Balancing the Needs of Families and Employers:
Family and Medical Leave Surveys, 2000 Update'' in January 2001.\7\
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\5\ See http://www.dol.gov/esa/whd/fmla/fmla/1995Report/Family.htm.
\6\ Westat is a statistical survey research organization serving
agencies of the U.S. Government, as well as businesses, foundations,
and State and local governments.
\7\See http://www.dol.gov/esa/whd/fmla/fmla/toc.htm.
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F. Request for Information
On December 1, 2006, the Department published a Request for
Information (RFI) in the Federal Register (71 FR 69504).
The RFI asked the public to comment on its experiences with, and
[[Page 7879]]
observations of, the Department's administration of the law and the
effectiveness of the FMLA regulations. The RFI's questions and subject
areas were derived from a series of stakeholder meetings the Department
conducted in 2002-2003, a number of rulings of the U.S. Supreme Court
and other Federal courts as discussed above, the Department's own
experience administering the law, information from Congressional
hearings, and public comments filed with the Office of Management and
Budget (OMB) as described by OMB in three annual reports to Congress on
the FMLA's costs and benefits.\8\ More than 15,000 comments were
received from workers, family members, employers, academics, and other
interested parties.\9\ This input ranged from personal accounts, legal
reviews, industry and academic studies, and surveys to recommendations
for regulatory and statutory changes to address particular areas of
concern. The Department published its Report on the comments received
in response to the Department's RFI in June 2007 (see 72 FR 35550 (June
28, 2007)).
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\8\ These OMB reports may be found at the following Web sites:
2001 report at: http://www.whitehouse.gov/omb/inforeg/costbenefitreport.pdf; 2002 report at: http://www.whitehouse.gov/omb/inforeg/2002_report_to_congress.pdf; and 2004 report at:
http://www.whitehouse.gov/omb/inforeg/2004_cb_final.pdf.
\9\ All comments are available for viewing via the public docket
of the Wage and Hour Division of the Employment Standards
Administration, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210. Many comments are also available on
http://www.regulations.gov.
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G. Stakeholder Meeting
The Department also conducted a stakeholder meeting regarding the
medical certification process on September 6, 2007. This meeting
included representatives from employee organizations, employer
organizations, and the health care provider community.
H. Other Statutory and Regulatory Developments
As discussed in the RFI and the Report on the RFI, in addition to
developments in the courts, several important legislative and
regulatory developments have occurred that either directly or
indirectly impact the FMLA regulations. In 1996, Congress enacted the
Health Insurance Portability and Accountability Act (HIPAA), Public Law
104-191, which addresses in part the privacy of individually
identifiable health information. On December 28, 2000, and as amended
on August 14, 2002, the Department of Health and Human Services issued
regulations that provide standards for the privacy of individually
identifiable health information, codified at 45 CFR Parts 160 and 164
(``HIPAA Privacy Rule''). These standards apply 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 privacy
regulations.\10\
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\10\See 45 CFR 160.102(a) and 45 CFR 160.03.
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The HIPAA Privacy Rule has had an impact on the FMLA's medical
certification process in a number of ways. For example, the FMLA
provides employers with the right to obtain medical information to
determine that a requested leave qualifies as FMLA leave, and the
employee is required to assure that this information, if requested, is
provided to the employer to be entitled to FMLA leave for a serious
health condition. If an employee does not do this, the absence does not
qualify for FMLA leave.\11\ While these rules are fairly
straightforward, recent enforcement experience reveals that there is
confusion with regard to the interaction of the HIPAA Privacy Rule and
FMLA. For example, some employees incorrectly believe that the HIPAA
Privacy Rule prevents employers from requiring FMLA certification. See
discussion of Sec. Sec. 825.306-.308 for further discussion of the
impact of the HIPAA Privacy Rule on the medical certification process.
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\11\See Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14,
2005).
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Similarly, since the final FMLA regulations were implemented in
1995, the Equal Employment Opportunity Commission (EEOC), the agency
responsible for enforcing 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). The FMLA looks to the ADA for
guidance on privacy of employee medical information.\12\
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\12\See 29 CFR 825.500(g).
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III. Proposed Changes to the FMLA Regulations
The following is a section-by-section discussion of the proposed
revisions. Where a change is proposed to a regulatory section, that
section is discussed below. However, even if a section is not
discussed, there may be minor editorial changes or corrections that did
not warrant discussion. The titles to each section of the existing
regulations are in the form of a question. The proposal would reword
each question into the more common format of a descriptive title and
the Department invites comments on whether this change is helpful. In
addition, several sections have been restructured and reorganized to
improve the accessibility of the information (e.g., guidance on leave
for pregnancy and birth of a child is addressed in one consolidated
section; an employer's notice obligations are combined in one section).
Section 825.102 (Effective date of the Act)
The proposal deletes this section, which discussed when the Act
became effective, because it is no longer needed. The section number
itself is reserved to avoid extensive renumbering of other sections in
the regulations.
Section 825.103 (How the Act affects leave in progress on, or taken
before, the effective date of the Act)
The proposal deletes and reserves this section, which discussed how
the Act affected leave in progress on, or taken before, the Act's
effective date, because it is no longer needed.
Section 825.106 (Joint employer coverage)
Sections 825.106 and 825.111(a)(3) of the existing regulations
govern employer coverage and employee eligibility in the case of joint
employment and set forth the responsibilities of the primary and
secondary employers. Under Sec. 825.106(d), employees jointly employed
by two employers must be counted by both employers in determining
employer coverage and employee eligibility. Thus, for example, an
employer who jointly employs 15 workers from a leasing or temporary
help agency and 40 permanent workers is covered by the FMLA. Likewise,
if an employer with 15 permanent workers jointly employs 40 workers
from a leasing company that employer is also covered by the FMLA.
Although job restoration is the primary responsibility of the
primary employer, the secondary employer is responsible for accepting
the employee returning from FMLA leave if the secondary employer
continues to utilize an employee from the temporary or leasing agency
and the agency chooses to place the employee with that secondary
employer. The secondary employer is also responsible for compliance
with the prohibited acts provisions with respect to its
[[Page 7880]]
temporary/leased employees, and thus may not interfere with an
employee's attempt to exercise rights under the Act, or discharge or
discriminate against an employee for opposing a practice that is
unlawful under FMLA. See the existing Sec. 825.106(e).
In Wage and Hour Opinion Letter FMLA-111 (Sept. 11, 2000), the
Department considered the application of the FMLA regulations' ``joint
employment'' test in current Sec. 825.106 to a ``Professional Employer
Organization'' (PEO). The PEO in question had a contract with the
client company under which it appeared to enter into an employer-
employee relationship with the client's employees (who were leased back
to the client and continued to work at the client's worksite pursuant
to the terms of the contract). The PEO in this case assumed substantial
employer rights, responsibilities and risks, including the
responsibility for personnel management, health benefits, workers'
compensation claims, payroll, payroll tax compliance, and unemployment
insurance claims. Moreover, the PEO in this case had the right to hire,
fire, assign, and direct and control the employees.
Based on the facts described in the incoming letter, the Opinion
Letter concluded that the PEO was in a joint employment relationship
with its client companies for these reasons:
1. The PEO was a separately owned and distinct entity under
contract with the client to lease employees for the purpose of
handling ``critical human resource responsibilities and employer
risks for the client.''
2. The PEO was acting directly in the interest of the client in
assuming human resource responsibilities.
3. The PEO appeared to also share control of the leased
employees consistent with the client's responsibility for its
product or service.
The Opinion Letter stated that ``it would appear that'' the PEO is
the ``primary employer'' for those employees ``leased'' under contract
with the client. Thus, under existing Sec. 825.106, the PEO would be
responsible for giving required FMLA notices to its employees,
providing FMLA leave, maintaining group health insurance benefits
during the leave, and restoring the employee to the same or equivalent
job upon return from leave. The ``secondary employer'' (i.e., the
client company) would be responsible for accepting the employee
returning from FMLA leave if the PEO chose to place the employee with
the client company. The Opinion Letter concluded that the client
company, as the ``secondary employer,'' whether a covered employer or
not under the FMLA, was prohibited from interfering with a ``leased''
employee's attempt to exercise rights under the Act, or discharging or
discriminating against an employee for opposing a practice that is
unlawful under the Act.
While no specific questions concerning PEOs were contained in the
RFI, the Department did seek information on ``any issues that may arise
when an employee is jointly employed by two or more employers'' (71 FR
at 69509). In response to the RFI, a number of stakeholders commented
that it is not correct to consider PEOs (sometimes called ``HR
Outsourcing Vendors'') to be joint employers with their client
companies and explained the differences between a temporary staffing
agency and a PEO. ``A temporary staffing agency is a labor supplier. It
supplies employees to a client while a PEO is a service provider
providing services to existing employees of a company.'' See comments
by Jackson-Lewis. Unlike a temporary staffing agency, a PEO does not
have the ability to place an employee returning from FMLA leave with a
different client employer. Id.
The AFL-CIO commented that PEOs engage in a practice known as
``payrolling,'' in which the client employers transfer the payroll and
related responsibilities for some or all of their employees to the PEO,
and that typically, the PEO also makes payments on behalf of the client
employer into State workers' compensation and unemployment insurance
funds, but the PEO does not provide placement services. In contrast
with temporary staffing agencies, the AFL-CIO commented, PEOs do not
match people to jobs.
The law firm of Littler Mendelson advised that ``Employee leasing
arrangements''--like those involving temporary services firms and other
staffing companies--refer to arrangements in which the staffing firm
places its own employees at a customer's place of business to perform
services for the recipient's enterprise. The PEO, in contrast, assumes
certain administrative functions for its clients such as payroll and
benefits coverage and administration (including workers' compensation
insurance and health insurance). The PEO typically has no direct
responsibility over the employees of its clients including ``hiring,
training, supervision, evaluation, discipline or discharge, among other
critical employer functions.''
The law firm of Fulbright & Jaworski commented that PEO
responsibilities vary by organization and contract, but that most are
not involved in the day-to-day operations of their client's business
and do not exercise the right to hire, fire, supervise or manage daily
activities of employees. The firm urged the Department to clarify that
opinion letter FMLA-111 (Sept. 11, 2000) is about an atypical PEO that
actually exercised control over the client's employees.
The Department proposes to amend Sec. 825.106(b) to clarify that
PEOs that contract with client employers merely to perform
administrative functions, including payroll, benefits, regulatory
paperwork, and updating employment policies, are not joint employers
with their clients, provided they merely perform such administrative
functions. On the other hand, if in a particular fact situation a PEO
has the right to hire, fire, assign, or direct and control the
employees, or benefits from the work that the employees perform, such a
PEO would be a joint employer with the client company.
Some of the comments concerning PEOs suggest confusion over how to
count employees jointly employed for purposes of employer coverage
(``over 50 workers'') and employee eligibility (``over 50 employees
within 75 miles''). Some of these comments suggest that all of the
employees of both the primary and secondary employers (and even those
of other secondary employers) must be combined and counted together for
purposes of these two tests. However, under the existing Sec.
825.106(d) only those employees who are jointly employed by the primary
and each of the secondary employers are included in the employee counts
of both firms. The home office employees of the primary employer and
the employees placed with other secondary employers are not included,
for example, in the employee counts for each secondary employer.
For the reasons discussed above, existing paragraph (b) of Sec.
825.106 is proposed to be changed to paragraph (b)(1) and a new
paragraph (b)(2) is proposed to be added to clarify how the joint
employment rules apply to PEOs. Under the proposal, PEOs that contract
with client employers merely to perform administrative functions--
including payroll, benefits, regulatory paperwork, and updating
employment policies--are not joint employers with their clients,
provided: (1) They do not have the right to exercise control over the
activities of the client's employees, and do not have the right to
hire, fire or supervise them, or determine their rates of pay, and (2)
do not benefit from the work that the employees perform. On the other
hand,
[[Page 7881]]
if in a particular fact situation a PEO has the right to hire, fire,
assign, or direct and control the employees, or benefits from the work
that the employees perform, such a PEO would be a joint employer with
the client employer. The proposal also includes a cross-reference in
paragraph (d) to proposed Sec. 825.111(a)(3), which, as discussed
below, would change the determination of the ``worksite'' for purposes
of employee eligibility with respect to employees who are placed by a
primary employer at the worksite of a secondary employer for more than
12 months.
Section 825.108 (Public agency coverage)
This section addresses what constitutes a ``public agency'' for
purposes of coverage under the Act. Under the current regulations, the
dispositive test for determining whether a public agency is a separate
and distinct entity (and therefore a separate employer for determining
employee eligibility) or simply is part of another public agency is the
U.S. Bureau of the Census' ``Census of Governments.'' See U.S. Census
Bureau, 2002 Census of Governments, Volume 1, Number 1, Government
Organization, GC02(1)-1, U.S. Government Printing Office, Washington,
DC 20002 \13\ (http://www.census.gov/prod/2003pubs/gc021x1.pdf). In
contrast, regulations issued under the Fair Labor Standards Act (FLSA)
use this test merely as one factor in determining what constitutes a
separate public agency for its purposes. See 29 CFR 553.102. The
Department proposes no changes to this section. Because the FMLA
definition of ``public agency'' refers to the definition under the FLSA
(29 U.S.C. 203(x)), however, the Department seeks public comment on
whether this test in the FMLA regulations should be amended to conform
with the test in the FLSA regulations.
---------------------------------------------------------------------------
\13\ The Census of Governments is taken at five-year intervals.
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Section 825.109 (Federal agency coverage)
This section of the existing regulations identifies the Federal
agencies that are covered by the Department of Labor's FMLA
regulations. Shortly after these regulations were promulgated, Congress
enacted the Congressional Accountability Act of 1995, 2 U.S.C. 1301
(CAA), which in part amended the FMLA by repealing Title V of the FMLA
pertaining to Congressional employees. See Section 504(b), Public Law
104-1. As a result, Congressional employees are now covered by the CAA
as administered by the Office of Compliance created by the CAA.
Section 202(c) of the CAA also specifically provided that the
General Accounting Office (now named the Government Accountability
Office) (GAO) and Library of Congress (LOC) are subject to Title I of
the FMLA. For those agencies, the FMLA is administered by the
Comptroller General and the Librarian of Congress, respectively. See 29
U.S.C. 2611(4)(A)(iv) and 2617(f).
The CAA also called for a study of how the FMLA is administered for
the Government Printing Office (GPO), as well as the GAO and LOC. 2
U.S.C. 1371. The Congressional Office of Compliance issued its study on
December 31, 1996. The study concluded that the GPO is covered by Title
II and the Office of Personnel Management's regulations, rather than
Title I and the Department of Labor regulations. In a letter dated
April 25, 2000, the GPO asked the Department to amend its FMLA
regulations to delete the reference to GPO coverage, because that
agency is covered by Title II. In its response of January 31, 2001, the
Department concurred with the conclusion that the GPO is covered by
Title II and stated that it would amend the regulations accordingly
whenever they were next modified. The proposal would amend paragraphs
(a) and (d) of this section to reflect these changes.
Pursuant to section 604(f) of the Postal Accountability and
Enhancement Act, Public Law 109-435, Dec. 20, 2006, 120 Stat. 3242, the
Postal Rate Commission was redesignated as the Postal Regulatory
Commission, and the proposed rule would amend paragraph (b)(2) of this
section to reflect this change.
Section 825.110 (``Eligible'' employee)
Current Sec. 825.110 sets forth the eligibility standards
employees must meet in order to take FMLA leave. Specifically, current
Sec. 825.110(a) restates the statutory requirement that to be eligible
for FMLA leave, an employee must have been employed by an employer for
at least 12 months, have been employed for at least 1,250 hours of
service during the 12 months preceding the leave, and be employed at a
worksite where 50 or more employees are employed by the employer within
75 miles of the worksite.
Current Sec. 825.110(b) provides detail on the requirement that
the employee must have been employed by the employer for at least 12
months, stating that the 12 months need not be consecutive. It further
explains that if the employee was maintained on the payroll for any
part of a week, that week counts towards the employee's fulfilling the
12 months employment requirement and that 52 weeks is deemed equal to
12 months.
In its RFI, the Department sought comment on whether and how to
address the treatment of combining nonconsecutive periods of employment
to meet the 12 months of employment requirement. (71 FR at 69508) This
eligibility criterion has been the subject of litigation. In Rucker v.
Lee Holding, Co., 471 F.3d 6 (1st Cir. 2006), the court considered
whether an employee's previous employment of five years counted toward
the 12-month employment eligibility requirement even though it was
separated by a five-year break in service from his current employment.
The First Circuit Court of Appeals held that ``the complete separation
of an employee from his or her employer for a period of years, here
five years, does not prevent the employee from counting earlier periods
of employment toward satisfying the 12-month requirement.'' Id. at 13.
In regard to whether a break in service of more than five years would
be permissible, the court stated that this important policy issue
should be resolved by the Department in the first instance as a part of
its exercise of its statutory authority. Id.
A number of commenters urged the Department to support the Rucker
decision that prior months of service may be combined for eligibility
purposes even when separated by breaks in service of many years. The
National Partnership for Women & Families, for example, stated that
``an arbitrary time limit on how long a worker could leave the
employment of a particular employer would operate as an unfair and
disproportionate burden on women workers. Many women leave work for
extended periods of time, for example, to stay home with young children
during their formative years.'' (See comments by National Partnership
for Women & Families.)
Employer comments received on this issue overwhelmingly disagreed
with the First Circuit ruling on combining prior periods of service
together. For example, the University of Notre Dame stated, ``There is
a tremendous administrative burden associated with adopting the First
Circuit Court of Appeals' interpretation of section 825.110 that an
employer has the duty to aggregate non-consecutive service to establish
`12 months of service.' As we understand this possible interpretation,
the ability to aggregate past service with current service to equate to
12 months
[[Page 7882]]
is virtually unlimited.'' Other comments received on this issue
included suggestions for amending the regulations to allow the employer
to: disregard prior employment periods if all ties between the company
and worker were severed; follow company policy or State law regarding
the treatment of previous employment; and require that the 12 months of
employment be consecutive. Employer commenters cited the administrative
burden associated with combining previous employment periods as the
rationale for their recommendations including that the FMLA itself only
requires recordkeeping for three years and not indefinitely.
The Department received comments similar to these in response to
the 1993 interim final regulations, which suggested limiting the period
of time used in determining whether the employee had been employed by
the employer for 12 months. In the final regulations, however, the
Department declined to include such a limit, reasoning that ``[m]any
employers require prospective employees to submit applications for
employment which disclose employees' previous employment histories.
Thus, the information regarding previous employment with an employer
should be readily available and may be confirmed by the employer's
records if a question arises.'' (60 FR at 2185) Furthermore, the
Department did not find a basis under the statute or its legislative
history for adopting the recommendations received in response to the
Interim Final Rule. Id. Indeed, the statute does not directly address
the issue of whether the 12 months of employment must be consecutive,
and the legislative history provides limited insight into Congressional
intent regarding extended breaks in employment. The Senate Committee
Report in discussing the requirement that the employee must have worked
for the employer for 12 months states ``[t]hese 12 months of employment
need not have been consecutive.'' S. Rep. No. 103-3, at 23 (1993). The
House Committee Report uses the same language in describing the 12-
month requirement. See H.R. Rep. No. 103-8, pt. 1, at 35 (1993).
Based on the Department's experience in administering the FMLA, the
First Circuit's ruling in Rucker, and comments received in response to
the RFI, the Department proposes a new Sec. 825.110(b)(1) to provide
that although the 12 months of employment need not be consecutive,
employment prior to a continuous break in service of five years or more
need not be counted. Thus, under the proposed rule, if an employee in
2008 has worked five months for an employer and worked for the same
employer for two full years in 1997-8, the employer would not have to
consider the two years of prior employment in determining whether the
employee currently is eligible for FMLA leave. The FMLA requires
covered employers to maintain records for three years. 29 CFR
825.500(b) (``[E]mployers must keep the records specified by these
regulations for no less than three years and make them available for
inspection, copying, and transcription by representatives of the
Department of Labor upon request.''). The Department is not proposing
to change the three-year record keeping requirements under FMLA. Thus,
employers would have documentation to confirm previous employment for a
former employee who at the time of rehiring had a break in service of
three years or less. Where an employee relies on a period of employment
that predates the employer's records, it will be incumbent upon the
employee to put forth some proof of the prior employment. This is
consistent with the employee's obligation to establish he or she is an
eligible employee. See Novak v. MetroHealth Medical Center, 503 F.3d
572, 577 (6th Cir. 2007); Burnett v. LFW, Inc., 472 F.3d 471, 477 (7th
Cir. 2006). Of course, in determining whether an employee has met the
eligibility criterion, an employer may have a policy to consider
employment prior to a longer break in service, but in that event must
do so in a uniform manner for all employees with similar breaks in
service.
The Department considered several alternatives in developing this
proposed change to Sec. 825.110(b). Because the legislative history
states that the 12 months of employment need not be consecutive, the
Department could not adopt suggestions that any break in service
``resets'' the count for determining whether the employee has met the
12 months employment eligibility criterion. On the other hand, the
Department believes it is not reasonable that the time frame used for
considering prior employment for eligibility should be without end. At
the same time, the Department is mindful of the comment by the National
Partnership for Women & Families about the burden on women workers who
may leave and reenter the workforce after the formative years of their
children. But see S. Rep. No. 103-3, at 16 (1993). The Department
believes that the proposed outer limit of a five year break in service
is a permissible interpretation of the statute and strikes an
appropriate balance between providing re-employed workers with FMLA
protections and not making the administration of the Act unduly
burdensome for employers.
However, the Department also proposes new paragraph (b)(2) of this
section to address two exceptions to the general rule contained in
proposed new paragraph (b)(1): a break in service resulting from the
employee's fulfillment of military obligations; and a period of
approved absence or unpaid leave, such as for education or child-
rearing purposes, where a written agreement or collective bargaining
agreement exists concerning the employer's intent to rehire the
employee. In these situations, employment prior to the break in service
must be used in determining whether the employee has been employed for
at least 12 months, regardless of the length of the break in service.
The current discussion of how weeks are counted for fulfilling the
12 months requirement is proposed to be re-designated as paragraph
(b)(3) of this section.
Further, the Department proposes to add a new paragraph (b)(4) in
this section to note that nothing prevents an employer from considering
employment prior to a continuous break in service of more than five
years when determining if an employee meets the 12-month employment
criterion provided the employer does so uniformly with respect to all
employees with similar breaks in service.
Paragraph (c) of Sec. 825.110 is proposed to be revised to address
hours an employee would have worked for his or her employer but for the
employee's fulfillment of military service obligations. This revision
codifies the protections and benefits offered by the Uniformed Services
Employment and Reemployment Rights Act (USERRA).
In addition, the Department proposes several changes to Sec.
825.110 in light of the Ragsdale decision. Current Sec. 825.110(c) may
result in some instances in employees who are ineligible for FMLA leave
nonetheless being ``deemed eligible'' because of an employer's failure
to meet its burden of maintaining records needed to establish the
employee's eligibility. Current Sec. 825.110(d) may also result in an
employee who is not eligible for FMLA leave being ``deemed eligible''
based on the employer's lack of (or incorrect) notice to the employee.
Read in concert with Ragsdale, in which the U.S. Supreme Court
invalidated a similar provision in the current Sec. 825.700(a),
[[Page 7883]]
the Department believes these provisions in current Sec. 825.110(c)
and (d) need to be modified.
On the other hand, the Court in Ragsdale suggested that if an
employer fails to notify an employee of his or her FMLA rights, the
employee may have a remedy if the employee can show that the employer
interfered with, restrained or denied the employee the exercise of his
or her FMLA rights and that the employee suffered damages as a result.
See Ragsdale, 535 U.S. at 89. Therefore, the Department has
incorporated into the proposed text of Sec. 825.300 a statement that
in these situations if an employee shows individualized harm because
the employer interferes with, restrains or denies the employee of his
or her FMLA rights, the employee is entitled to the remedies provided
by the statute. The Department also proposes to add this language to
Sec. 825.220, which addresses how employees are protected when they
assert their FMLA rights, and proposed Sec. 825.301, which addresses
designation of FMLA leave.
For organizational purposes, the notice provisions contained in
current Sec. 825.110(d) have been moved to proposed Sec. 825.300(b)
with other notice requirements employers must provide to employees
under the regulations. This organizational change should make it easier
for employees and employers to locate these requirements by
consolidating them into one section. The proposal includes a cross-
reference to Sec. 825.300 in paragraph (d) of Sec. 825.110.
The Department also proposes to clarify the language in current
Sec. 825.110(d) stating that employee eligibility determinations
``must be made as of the date leave commences.'' This language has led
to confusion when employees who have fulfilled the 1,250 hours worked
requirement for eligibility, but not the 12 months of employment
requirement, begin a block of leave. (Although periods of leave do not
count towards the 1,250 hour requirement because leave is not ``hours
worked,'' periods of leave do count towards the 12 months of employment
requirement because the employment relationship continues, and has not
been severed, during the leave.) For example, where an employee who has
worked for an employer for 11 months and 1,300 hours commences a three
month block of leave for birth and bonding, confusion exists as to
whether that portion of the leave that occurs after the employee
reaches 12 months of employment is FMLA protected. Compare Babcock v.
BellSouth Advertising and Publishing Corp., 348 F.3d 73 (4th Cir.
2003), with Willemssen v. The Conveyor Co., 359 F.Supp.2d 813 (N.D.
Iowa 2005). The proposal clarifies that when an employee is on leave at
the time he or she meets the 12-month eligibility requirement, the
period of leave prior to meeting the statutory requirement is non-FMLA
leave and the period of leave after the statutory requirement is met is
FMLA leave.
The Department proposes to delete current Sec. 825.110(e),
regarding counting periods of employment prior to the effective date of
the FMLA, because the revisions proposed in Sec. 825.110(b) discussed
above render the provision unnecessary.
The Department proposes no changes to current paragraph (f)
(paragraph (e) in the proposal) of this section, which states that
whether an employee works for an employer who employs 50 or more
employees within 75 miles of the worksite is determined as of the date
the leave request is made. In the RFI, the Department sought comment on
the differing regulatory tests used for determining employee
eligibility: the determination of whether the employee has been
employed for at least 12 months and for at least 1,250 hours in the 12
months preceding the leave is made as of the date the leave is to
commence; however, the determination of whether 50 employees are
employed by the employer within 75 miles of the worksite is made as of
the date the leave request is made (emphasis added). (71 FR at 69508).
Some of the comments received in response to the RFI urged the
Department to make these tests the same, namely, to require the
determination of employee eligibility in both cases as of the date the
leave is to begin. The Department appreciates the difficulty
experienced by many employers in complying with these different
regulatory tests; however, the proposal does not adopt this suggestion
for the reasons discussed in the preamble to the 1995 final
regulations:
[T]he purpose and structure of FMLA's notice provisions
intentionally encourage as much advance notice of an employee's need
for leave as possible, to enable both the employer to plan for the
absence and the employee to make necessary arrangements for the
leave. Both parties are served by making this determination when the
employee requests leave. Tying the worksite employee-count to the
date leave commences as suggested could create the anomalous result
of both the employee and employer planning for the leave, only to
have it denied at the last moment before it starts if fewer than 50
employees are employed within 75 miles of the worksite at that time.
This would entirely defeat the notice and planning aspects that are
so integral and indispensable to the FMLA leave process.
(60 FR at 2186)
Section 825.111 (Determining whether 50 employees are employed within
75 miles)
Current Sec. 825.111 sets forth the standards for determining
whether an employer employs 50 employees within 75 miles for purposes
of employee eligibility. Paragraph (a)(3) of this section provides that
when an employee is jointly employed by two or more employers, the
employee's worksite is the primary employer's office from which the
employee is assigned or reports.
In Harbert v. Healthcare Services Group, Inc., 391 F.3d 1140 (10th
Cir. 2004), the Court of Appeals held that Sec. 825.111(a)(3), as
applied 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 the term ``worksite''
as the place where an employee actually works (as opposed to the
location of the long-term care placement agency from which Harbert was
assigned); (2) contradicted Congressional intent 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 court noted that Congress did not define the term ``worksite''
in the FMLA, and it concluded that the common understanding of the term
``worksite'' is the site where the employee works. With respect to the
employee eligibility requirement of 50 employees within 75 miles, the
court noted that Congress recognized that even potentially large
employers may have difficulty finding temporary replacements for
employees who work at geographically scattered locations. The court
stated that Congress determined that if any employer (large or small)
has no significant pool of employees in close geographic proximity to
cover for an absent employee, that employer should not be required to
provide FMLA leave to that employee. Therefore, the court concluded:
An employer's ability to replace a particular employee during
his or her period of leave will depend on where that employee must
perform his or her work. In general, therefore, the congressional
purpose underlying the 50/75 provision is not effected if the
``worksite'' of an employee who has a regular place of work is
defined as any site other than that place.
[[Page 7884]]
391 F.3d at 1150.
In comparing how the regulations apply the term ``worksite'' to
joint employers and sole employers, the court stated:
The challenged regulation also creates an arbitrary distinction
between sole employers and joint employers. For example, if the
employer is a company that operates a chain of convenience stores,
the ``worksite'' of an employee hired to work at one of those
convenience stores is that particular convenience store. See 58 Fed.
Reg. 31794, 31798 (1993). If, on the other hand, the employer is a
placement company that hires certain specialized employees to work
at convenience stores owned by another entity (and therefore is
considered a joint employer), the ``worksite'' of that same employee
hired to work at that same convenience store is the office of the
placement company.
Id.
Importantly, the court did not invalidate the regulation with
respect to employees who work out of their homes: ``We do not intend
this statement to cast doubt on the portion of the agency's regulation
defining the `worksite' of employees whose regular workplace is his or
her home. See 29 C.F.R. Sec. 825.111(a)(2).'' Id. at 1150 n.1. Nor did
the court invalidate the regulatory definition in Sec. 825.111(a)(3)
with respect to employees of temporary help companies: ``An employee of
a temporary help agency does not have a permanent, fixed worksite. It
is therefore appropriate that the joint employment provision defines
the `worksite' of a temporary employee as the temporary help office,
rather than the various changing locations at which the temporary
employee performs his or her work.'' Id. at 1153.
The RFI requested specific information, in light of the court's
decision in Harbert, on the definition in Sec. 825.111 for determining
employer coverage under the statutory requirement that FMLA-covered
employers must employ 50 employees within 75 miles.
Some commenters who argued that the current regulations are sound
and do not require change pointed to the legislative history that the
term ``worksite'' is to be construed in the same manner as the term
``single site of employment'' under the WARN Act and the regulations
under that Act. See comments by AFL-CIO and National Partnership for
Women & Families. The AFL-CIO agreed with the dissent in Harbert that
the Secretary's interpretation of ``single site of employment'' under
the WARN Act regulations as applying equally to employees with and
without a fixed worksite is a ``permissible and reasonable
interpretation'' and does not result in arbitrary differences between
sole and joint employers under the FMLA. The National Partnership
commented that the purpose of designating the primary office as the
worksite is to ensure that the employer with the primary responsibility
for the employee's assignment is the one held accountable for
compliance with these regulations. The National Partnership stated that
the same principles articulated in the regulations with regard to ``no
fixed worksite'' situations also should apply to this factual scenario.
``In cases where employees have long-term assignments, we believe the
purposes of the FMLA are best served by using the primary employer from
which the employee is assigned as the worksite for determining FMLA
coverage.''
On the other hand, the law firm of Pilchak Cohen & Tice commented
that, under the current regulations, employees at the same size
establishment are treated differently because one works for a
traditional sole employer and the other works for a staffing firm:
For example, where a small retail store chain may have many
employees nationwide, each store could employ fewer than 50
employees. Those employees clearly would not be eligible for FMLA in
the traditional employment context. Yet, under the current
regulation, if that same retail chain utilized contract employees
from an entity which employed more than 50 employees from its home
office and that is where the contract employees received their
assignments from or reported to, those contract employees could have
FMLA rights at the retail chain. This creates an arbitrary
distinction between sole and joint employers. . . .Under 29 C.F.R.
Sec. 825.106(e), an employer could contract for an engineer,
Employee A, for a six-month project, and then find out after the
employee has only been there for two weeks, that Employee A will
need 12 weeks off due to the upcoming birth of his child. Upon
Employee A's departure, the employer would then have to spend the
time and expense training Employee B only to [be] forced to return
Employee A to the position, even though it had already spent time
training two individuals. The employer would then have to spend
additional time and expense bringing Employee A ``up to speed'' on
the project and complete the training initially started.
Pilchak Cohen & Tice stated that the regulation would be more palatable
if, to qualify for FMLA job restoration with the client company, the
contract employee had to have at least 12 months of service at that
location.
The National Coalition to Protect Family Leave commented that the
court in Harbert was correct in distinguishing between a jointly-
employed employee who is assigned to a fixed worksite and a jointly-
employed employee who has no fixed worksite and changes worksites
regularly. ``As for the former, the worksite for purposes of
determining whether they are eligible employees * * * would be the
fixed worksite of the secondary employer. As for the latter, the
worksite would continue as stated in the regulation[.]''
After weighing the comments on this issue submitted in response to
the RFI, the Department believes it needs to amend the regulations to
reflect the decision in Harbert. The proposed rule would modify Sec.
825.111(a)(3) to state that after an employee who is jointly employed
is stationed at a fixed worksite for a period of at least one year, the
employee's worksite for purposes of employee eligibility is the actual
physical place where the employee works. No changes are proposed with
respect to employees whose worksite has not been fixed for at least one
year. Also, no changes are proposed for Sec. 825.111(a)(2) with
respect to employees who work out of their homes, except to update the
current language ``as under the new concept of flexiplace'' to give it
a more modern meaning, ``as under the concept of flexiplace or
telecommuting.''
The Department has not adopted the comment from Pilchak Cohen &
Tice that in order to qualify for FMLA job restoration with the client
company, a contract employee should have at least 12 months of service
at that location. To do so would take away the job restoration
protections for an employee who is entitled to FMLA leave under the
law. However, the primary responsibility for placement following FMLA
leave rests with the primary employer, the staffing firm in the example
given. The client company must consent to the placement only if it has
used another contract employee from the same staffing firm to
temporarily fill the position during the period of the FMLA leave.\14\
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\14\ See 29 CFR 825.106(e). In the preamble to the final rule,
the Department agreed with comments that joint employment
relationships present special compliance concerns for temporary help
and leasing agencies in that the ease with which they may be able to
meet their statutory obligations under FMLA may depend largely on
the nature of the relationship they have established with their
client-employers. However, the Department found there were no viable
alternatives that could be implemented by regulation that would not
also deprive eligible employees of their statutory rights to job
reinstatement at the conclusion of FMLA leave. See 60 FR at 2182.
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Section 825.112 (Qualifying Reasons for Leave, General Rule)
To make it easier to find information in the regulations, the
Department has
[[Page 7885]]
reorganized some sections, including portions of current Sec. 825.112,
which sets forth the qualifying reasons that entitle an eligible
employee to FMLA-protected leave. For example, there is no single place
in the current regulations for the provisions that address leave taken
for the birth of a child or placement of a child for adoption or foster
care. Rather, these provisions are scattered throughout several
sections of the current regulations, including paragraphs (c) and (d)
of current Sec. 825.112.
No changes have been made to current paragraphs (a) and (b) of this
section except for the addition of new paragraph titles. Language from
current paragraphs (c) and (d) addressing leave taken prior to the
birth of a child or placement of a child for birth or adoption has been
moved to new sections in the proposed regulations that cover pregnancy,
birth, adoption and foster care. See proposed Sec. Sec. 825.120 and
825.121.
Current paragraph (e) of this section that addresses foster care
has been moved to proposed Sec. 825.122, which provides definitions
for the various family relationships covered by the Act. Similarly,
current paragraph (g) of this section, which addresses leave for
substance abuse treatment and an employer's ability to take
disciplinary action in connection with substance abuse, has been moved
to proposed Sec. 825.119 that specifically addresses leave in
connection with substance abuse.
Sections 825.113, 825.114, and 825.115 (Serious Health Condition,
Inpatient Care, and Continuing Treatment)
In response to the RFI, the Department received extensive
commentary on the regulatory definition of a serious health condition.
The full range of comments is discussed in detail in Chapters III and
IV of the Department's 2007 Report on the RFI comments (see 72 FR at
35563; 35571). There are six separate definitions of serious health
condition in the regulations. Many stakeholders addressed their
comments toward what is called the ``objective test'' contained in the
regulations at Sec. 825.114(a)(2), which defines ``continuing
treatment'' as:
(i) A period of incapacity * * * of more than three consecutive
calendar days * * * that also involves:
(A) Treatment two or more times by a health care provider * * *
or
(B) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the
supervision of the health care provider.
29 CFR 825.114(a)(2)(i)(A)-(B). Many of the comments--including several
from health care providers--reported that the current regulatory
definition is ``vague and confusing.'' The American College of
Occupational and Environmental Medicine stated, ``The term `serious
health condition' is unnecessarily vague. Employees, employers and
medical providers would be well served if the FMLA were to more clearly
define the criteria for considering a health condition serious.'' The
American Academy of Family Physicians agreed: ``The definition of a
serious health condition within the Act creates confusion not only for
the administrators of the program and employers but also for
physicians. Requiring a physician to certify that a gastrointestinal
virus or upper respiratory infection is a serious health condition in
an otherwise healthy individual is incongruous with medical training
and experience. * * * . [Moreover, t]he categories of `Serious Health
Conditions' are overly complicated and * * * contradictory.''
Many in the employer community focused their comments on the
perceived lack of ``seriousness'' inherent in certain conditions the
definition covers. The Coolidge Wall Company stated: ``The DOL needs to
limit the definition of serious health condition to what it was
originally intended by Congress. For example, while a common cold or
flu were never intended to be serious health conditions, in case law
courts have essentially done away with all the exclusions from the
original definition by stating that `complications' (without defining
this) could cause virtually anything (a cold, an earache, a cut on
finger) to become a serious health condition.'' ORC Worldwide
concurred: ``Uniformly, employers have found the definition of `serious
health condition' and the criteria for determining whether or not an
employee has a `serious health condition' to be extremely broad and
very confusing.'' The City of Philadelphia wrote, ``What constitutes a
serious health condition? The definition is not clear.''
Stakeholders proposed a number of potential revisions to the
current definition of serious health condition. First, many commenters
focused on the list of ailments in Sec. 825.114(c), which states
``Ordinarily, unless complications arise, the common cold, the flu, ear
aches, upset stomach * * * etc., are examples of conditions that do not
meet the definition of a serious health condition.'' These commenters
recommended that, consistent with the legislative intent that these
conditions are not FMLA-covered conditions, this list be converted into
a per se rule whereby these conditions can never be covered under the
Act. That is, the flu--no matter how severe--could not be a serious
health condition. Second, some commenters recommended that the ``more
than three days'' period of incapacity in the objective test be
measured by work days as opposed to calendar days. Here, too, the
commenters cited to legislative history to support their position:
``[w]ith respect to an employee, the term `serious health condition' is
intended to cover conditions or illnesses that affect an employee's
health to the extent that he or she must be absent from work on a
recurring basis or for more than a few days for treatment or
recovery.'' H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28
(1993) (emphasis added). Third, a number of stakeholders commented that
the two health care provider visits in Sec. 825.114(a)(2)(i)(B) must
occur during the ``more than three days'' period of incapacity.
Finally, a number of comments recommended that the required period of
incapacity be extended from ``more than three days'' to five or seven
or ten days or more.
At the same time, the Department also received many comments from
employees and employee groups who felt that the current objective test
is a good, clear test that is serving its intended purpose. For
example, the National Partnership for Women & Families stated, ``[T]he
current regulations are crafted appropriately to provide guidance on
what constitutes a serious health condition without imposing overly
rigid criteria that could hinder the ability of workers to take leave
when necessary.'' Families USA concurred: ``To protect employers from
employee abuse of this provision, the regulations establish an
objective criteria to be used to determine whether conditions presented
qualify for leave. This criteria creates a standard that can be applied
in individual cases with sufficient flexibility to adjust for
differences in how individuals are affected by illness. It also
specifies that routine health matters cannot be considered serious
health conditions, unless complications arise.''
After a review of the statute, the legislative history, and the
significant feedback received from stakeholders in response to the RFI,
the Department has not identified an alternative approach to the
definition that would still cover all the types of conditions Congress
intended to cover under the FMLA, but without also including some
conditions that many believe the legislative history indicated should
not be covered. The Department is well aware, as evidenced
[[Page 7886]]
by the extensive comments on this issue to the RFI, that many of the
policy choices made in defining a serious health condition have not
been without consequence. For example, the Department could put a
higher degree of ``seriousness'' into the regulatory definition if we
chose to adopt any one of the suggestions offered by employers to
increase the required number of days of incapacity or to simply adopt a
work days rather than a calendar days standard. Doing so would also go
a long way to eliminate what many employers believe to be the
``weekend'' problem--that is, employers' inability to know or verify
that an employee, who works a regular Monday through Friday schedule,
is off on Saturday and Sunday, then calls in sick on Monday claiming an
FMLA absence, was in fact incapacitated during the two days he or she
was off work for the weekend, and meets the more than three consecutive
calendar days standard (see e.g., comment by Southwest Airlines Co.,
``Unscheduled intermittent leave, which is typically based on recurring
episodes of minor health conditions, gives employees many opportunities
to misuse FMLA leave--to take vacations or a long weekend when they
otherwise would be unable to do so * * *.''). However, Congress itself
did not provide a statutory ``bright line'' of demarcation for
``seriousness.'' The Act defines serious health condition as either
``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.'' 29 U.S.C. 2611(11). ``Continuing treatment'' is not further
defined by the Act and Congress declined to establish any bright-line
rules of what was covered and what was not. See discussion infra about
chronic conditions specifically.
A review of the Preamble accompanying the current regulations
reflects the struggle then, as now, to craft such an objective
definition of serious health condition that covers all the conditions
intended to be covered by the Act while still giving meaning to the
legislative history that minor ailments like colds and flus generally
not be covered. It also reflects the choice then, as now, between an
objective test versus a list of types of health conditions that would
qualify as serious. See 60 FR at 2191. There is no question, as
explained by the legislative history, that Congress expected minor
conditions (those that last less than a few days) to not be covered by
the FMLA because they would likely be covered by a company's sick leave
policy. See H.R. Rep. No. 103-8, at 40 (1993); S. Rep. No. 103-3, at 28
(1993). The difficulty is in adequately drawing the line between
conditions that usually resolve in a few days, and those that are
``serious.'' Medical conditions that are benign to some may be truly
incapacitating to others. For example, the Communication Workers of
America submitted a comment to the RFI noting an employee who had a
severe reaction to poison oak and was incapacitated for more than three
days even though most individuals would have only a mild reaction to
poison oak. As a result of all these factors, the Department has
retained essentially the current definition of ``serious health
condition,'' with some slight modifications as discussed below.
The Department has reorganized the structure of the definition so
both employees and employers can better understand what constitutes a
serious health condition. As noted above, serious health condition is
currently defined in six different ways, and only one of the
alternatives actually requires an absence of more than three
consecutive calendar days under the current regulations. The Department
believes that the new proposed structure will make the definition
clearer.
Section 825.113 (Serious Health Condition)
Current Sec. 825.113 addresses the definition of a parent, spouse,
son or daughter. In the proposed regulations, the Department has moved
this to Sec. 825.122 for purposes of organization. Proposed Sec.
825.113 is titled ``Serious health condition'' and provides the general
rules and accompanying definitions governing what constitutes a serious
health condition. Proposed Sec. 825.113(a) provides the basic
definition of what constitutes a serious health condition currently
found in Sec. 825.114(a). Proposed paragraph (b) contains a definition
of what constitutes ``incapacity'' and incorporates language from
current Sec. 825.114(a)(2)(i) and (ii) without change. Proposed
paragraph (c) contains the definition of ``treatment'' found in current
Sec. 825.114(b) without change.
Proposed paragraph (d) addresses the types of treatments and
conditions not ordinarily expected to be covered by the definition and
incorporates language from current Sec. 825.114(c). As discussed
above, this section has been the focus of considerable debate as to
when the list of conditions enumerated (colds, flus, etc.) are or are
not serious health conditions. The Department received many comments in
response to the RFI on this issue from both employer and employee
groups but has not been able to construct an alternative regulatory
definition better than the objective test of more than three days
incapacity plus treatment. The language of current Sec. 825.114(c)
listing common ailments and conditions--``Ordinarily, unless
complications arise, the common cold, the flu, ear aches, upset
stomach, * * * etc., are examples of conditions that do not meet the
definition of a serious health condition''--was intended to be merely
illustrative of the types of conditions that would not ordinarily
qualify as serious health conditions. This sentence was not intended to
create its own substantive definition of serious health condition that
categorically excluded the listed conditions. Section 825.114(c) did
not create a definition of covered conditions separate and apart from
the regulatory definitions of serious health condition in Sec.
825.114(a).
The Department's original opinion letter in 1995 stated that a
minor illness such as the common cold could not be a serious health
condition because colds were on the regulatory list of non-covered
ailments. ``The 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).'' Wage and Hour Opinion Letter FMLA-57
(Apr. 7, 1995). Unfortunately, this was an incorrect statement of the
law. As the Department explained in its subsequent 1996 opinion letter:
The FMLA regulations * * * provide examples, in section
825.114(c), of conditions that ordinarily, unless complications
arise, would not meet the regulatory definition of a serious health
condition and would not, therefore, qualify for FMLA leave: the
common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia
problems, periodontal disease, etc. Ordinarily, these health
conditions would not meet the definition in 825.114(a)(2), as they
would not be expected to last for more than three consecutive
calendar days and require continuing treatment by a health care
provider as defined in the regulations. If, however, any of these
conditions met the regulatory criteria for a serious health
condition, e.g., an incapacity of more than three consecutive
calendar days that also involves qualifying treatment, then the
absence would be protected by the FMLA.
[[Page 7887]]
Wage and Hour Opinion Letter FMLA-86 (Dec. 12, 1996) (emphasis in
original). This objective regulatory definition was upheld as a
reasonable implementation of the Act by two United States Courts of
Appeals even though the definition may sweep into its coverage some
conditions Congress did not necessarily anticipate would be covered.
See Miller v. AT&T Corp., 250 F.3d 820, 835 (4th Cir. 2001) (``It is
possible, of course, that the definition adopted by the Secretary will,
in some cases-- and perhaps even in this one--provide FMLA coverage to
illnesses that Congress never envisioned would be protected. We cannot
say, however, that the regulations adopted by the Secretary are so
manifestly contrary to congressional intent as to be considered
arbitrary.''); Thorson v. Gemini, Inc., 205 F.3d 370, 380 (8th Cir.
2000) (``Under the DOL's definition, it is possible that some absences
for minor illnesses that Congress did not intend to be classified as
`serious health conditions' may qualify for FMLA protection. But the
DOL reasonably decided that such would be a legitimate trade-off for
having a definition of `serious health condition' that sets out an
objective test that all employers can apply uniformly.'').
The Department considered whether the list of examples of non-
serious ailments such as colds and flus in current Sec. 825.114(c)
should be deleted as surplusage. Both the Fourth and Eighth Circuit
courts treated the list of examples of non-serious ailments in current
Sec. 825.114(c) as merely clarifying that common ailments such as
colds and flu normally will not qualify for FMLA leave because they
generally will not satisfy the regulatory criteria for a serious health
condition. The Department continues to believe that the Sec.
825.114(c) list serves a baseline purpose as explanatory language
similar to that which is included in a preamble. Therefore, the
sentence has been retained in the proposed regulations. Nevertheless,
the Department agrees with the Fourth and Eighth Circuit Courts of
Appeals and restates its view that the Department's objective
regulatory definition is dispositive.
Section 825.114 (Inpatient Care)
Proposed Sec. 825.114, titled, ``Inpatient care,'' defines what
constitutes inpatient care. As noted above, the Department proposes a
stand-alone definition of ``incapacity'' in Sec. 825.113(b) in
contrast to the current regulations. Therefore, the definitional
language of incapacity has been removed from the definition of
``inpatient'' care, but the requirement remains and a cross-reference
to Sec. 825.113(b) has been included.
Section 825.115 (Continuing Treatment)
Proposed Sec. 825.115, titled ``Continuing treatment,'' defines
continuing treatment for purposes of establishing a serious health
condition. The five different definitions are contained in Sec.
825.115(a)-(e). Proposed Sec. 825.115(a) (``Incapacity and
treatment'') incorporates language from current Sec.
825.114(a)(2)(i)(A) and (B), which establishes that an employee can
meet this definition if, in connection with a period of incapacity of
more than three consecutive calendar days, the employee or family
member has one visit to a health care provider and a regimen of
continuing treatment, such as a prescription, or two visits to a health
care provider.
As discussed further below concerning proposed Sec. 825.125, the
Department proposes a conforming change in the definition of
``continuing treatment'' to generally recognize physician assistants as
health care providers, which eliminates the need to refer to them
separately in this section as performing ``under direct supervision of
a health care provider'' (see current Sec. Sec. 825.114(a)(2)(i)(A)
and (iii)(A)). Otherwise, the current definition has been retained with
one further proposed clarification. The Department proposes to specify
that the two visits to a health care provider must occur within 30 days
of the beginning of the period of incapacity unless extenuating
circumstances exist, instead of the completely open-ended time frame
under the current regulations. Accordingly, if an ill employee visits
his/her health care provider, is told not to report to work for more
than 3 days due to the health condition but is not prescribed any
medication, whether the condition is considered a serious health
condition for FMLA purposes will depend on whether the health care
provider determines that additional treatment is needed within 30 days
of the beginning of the initial period of incapacity (for example,
whether the provider determines that an additional follow-up
appointment should be scheduled in two weeks or two months). The
beginning of the period of incapacity will usually correspond with the
date of the employee's first absence, however, as under the current
regulations, the more than three calendar day period of incapacity may
commence on a day on which the employee is not scheduled to work. See
60 FR 2195.
The Department proposes this clarification because it believes, as
a practical matter, that leaving the treatment requirement open-ended
does not provide sufficient guidance for determining when the employee
has a qualifying serious health condition. For example, under the
current definition, an employer could decide that an employee does not
qualify for FMLA coverage a week after an employee has been to see a
health care provider on one occasion and has had more than three days
of incapacity but no follow-up visit during that week-long time period.
If the employee had a follow-up visit three months later, however, the
test would be met but the employer may not be aware of that fact. The
Department does not believe the regulations should leave such
determinations open-ended and unresolved indefinitely. Rather, the
period of incapacity and the timing of the health care provider's
treatment regimen should be connected in a temporal sense to meet the
definitional requirement and not left undefined as under the current
rule.
The Department received many comments to the record on this issue,
including a number suggesting that the Department adopt into regulation
the interpretation offered by the United States Court of Appeals for
the Tenth Circuit that the two treatments actually occur during the
period of more than three days' incapacity in order to qualify as a
serious health condition. See Jones v. Denver Pub. Sch., 427 F.3d 1315,
1323 (10th Cir. 2005) (``[U]nder the regulations defining `continuing
treatment by a health care provider,' the `[t]reatment two or more
times' described in 825.114(a)(2)(i)(A) must take place during the
`period of incapacity' required by 825.114(a)(2)(i).''). However, the
Department believes the proposed 30-day limitation is more appropriate
in that it guards against employers making quick judgments that deny
FMLA leave when employees otherwise should qualify for FMLA
protections. The Department is also aware that occasionally an employee
may need a second visit to a health care provider or further diagnostic
testing within a 30-day period but may experience difficulty scheduling
the second appointment in time. The regulations therefore acknowledge
an ``extenuating circumstances'' exception to the 30-day rule in
proposed Sec. 825.115(a)(1).
The Department is not proposing to extend the 30-day rule to
treatment by a health care provider on at least one occasion, which
results in a regimen of continuing treatment under the supervision of
the health care provider. The Department's enforcement
[[Page 7888]]
experience suggests that the doctor visit which results in a regimen of
continuing treatment generally occurs close in time to the more than
three days of incapacity. Accordingly, the 30-day limitation is not
needed and could, in fact, extend the time period for receiving the
regimen of treatment well beyond what is current practice. The
Department, however, seeks comments on this approach, and whether this
regulatory provision should be changed.
Proposed Sec. 825.115(b), titled ``Pregnancy or prenatal care,''
incorporates language from current Sec. 825.114(a)(2)(ii) without
change except for a reference to the new consolidated section found in
proposed Sec. 825.120 addressing leave for pregnancy and childbirth
discussed in detail below. The Department wishes to emphasize, however,
that the phrase ``incapacity due to pregnancy, or for prenatal care''
includes time spent with a health care provider for prenatal care
purposes. By definition, while an employee is visiting a health care
provider for prenatal care purposes (i.e., a doctor's appointment), the
employee is unable to work and therefore incapacitated. In contrast,
however, an employee is not entitled to FMLA leave to visit the store
to purchase infant clothes because the employee is not incapacitated in
such circumstances. In a case where a male employee is needed to care
for (as defined by proposed Sec. 825.124) a pregnant spouse who is
incapacitated or requires prenatal care, the male employee will be
entitled to FMLA leave. For example, a male employee's pregnant spouse
may have severe morning sickness and need his assistance. Similarly, a
male employee may be entitled to FMLA leave to accompany his pregnant
spouse to a doctor's appointment for prenatal care. In this case,
physical care may not be needed, but psychological care may be
involved.
Proposed Sec. 825.115(c), titled ``Chronic conditions,''
incorporates language from current Sec. 825.114(a)(2)(iii) with one
modification. The Department received extensive comments about the
definition of ``chronic'' serious health conditions in response to the
RFI. As a result, the Department provided extensive discussion and
explanation in its Report on the RFI to the evolution of the
``chronic'' serious health condition definition. See Chapter IV of the
RFI Report, 72 FR at 35571.
As the Department explained in the Report on the RFI comments,
``[t]here is no definition or specific mention of a `chronic' serious
health condition in the Act. The House and Senate Committee Reports do,
however, refer to conditions where `the underlying health condition or
treatment for it requires that the employee be absent from work on a
recurring basis * * * [A] patient with severe arthritis may require
periodic treatment such as physical therapy.' '' 72 FR at 35572
(internal citations omitted). Many employer commenters were highly
critical of the choice made by the Department in the 1995 final rule to
allow employees to ``self-treat'' for ``any'' period of incapacity due
to chronic conditions. See current Sec. 825.114(e): ``Absences
attributable to incapacity under paragraphs (a)(2)(ii) or (iii)
[chronic conditions] qualify for FMLA leave even though the employee or
the family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three days.'' Indeed, many employer commenters believe that
coverage for absences due to chronic conditions which are accompanied
only by self-treatment impermissibly undercuts the statutory
requirement that intermittent leave may be taken only when medically
necessary (29 U.S.C. 2612(b)(1)) as there is no way to verify the
medical necessity of an absence for self-treatment. (See, e.g.,
discussion of Workplace Consequences of Unscheduled Intermittent Leave
in the Report on the RFI comments, 72 FR at 35575.) Employee
representatives commenting on the RFI, however, stressed that self-
treatment is appropriate for many chronic conditions and that coverage
for such absences is crucial to ensuring that employees with chronic
serious health conditions are able to maintain their employment. Id. at
35575; 35580.
While many employers urged the Department to alter the definition
so that only chronic conditions that they perceive to be ``serious''
will be covered, and to eliminate the self-treatment provision, the
Department declines to do so. As explained in the preamble when the
current rule was adopted in 1995,
The Department concurs with the comments that suggested that
special recognition should be given to chronic conditions. The
Department recognizes that certain conditions, such as asthma and
diabetes, continue over an extended period of time (i.e., from
several months to several years), often without affecting day-to-day
ability to work or perform other activities but may cause episodic
periods of incapacity of less than three days. Although persons with
such underlying conditions generally visit a health care provider
periodically, when subject to a flare-up or other incapacitating
episode, staying home and self-treatment are often more effective
than visiting the health care provider (e.g., the asthma sufferer
who is advised to stay home and inside due to the pollen count being
too high). The definition has, therefore, been revised to include
such conditions as serious health conditions, even if the individual
episodes of incapacity are not of more than three days duration.
60 FR at 2195.
Although the Department acknowledges employers' concerns regarding
the inability to verify the medical necessity for an absence involving
self-treatment, to eliminate coverage for such absences at this time
would, like changing the calendar days standard to a work days
standard, effectively render many currently-covered employees who have
received the protections of the law ineligible. As the Department
acknowledged in the Report on the RFI, it has no way to distinguish
between those employees with chronic conditions who may be, in their
employers' views, taking advantage of the self-treatment standard and
those who are not and for whom the standard has worked very well.
The Department does propose one modification to the definition of a
chronic serious health condition. Current Sec. 825.114(a)(2)(iii)
provides that a chronic serious health condition ``[r]equires periodic
visits for treatment'' (Sec. 825.114(a)(2)(iii)(A)). The current
regulations do not define the term ``periodic.'' The Department
understands that some employers have chosen to provide their own
definition of the term ``periodic'' for FMLA purposes to the detriment
of employees. For example, one employer defined the term to require a
visit to a health care provider at least once a month in order to
satisfy this prong of the continuing treatment definition. The
Department believes that not all serious health conditions Congress
intended to cover require such frequent visits. For example, an
employee may have epilepsy, which renders the employee unable to work
periodically but does not require monthly doctor visits since the
employee knows how to self-medicate. At the same time, because
``periodic'' is left open-ended in the current regulations, employers
have struggled with the ``periodic'' requirement. The Department
believes such a lack of definition leaves employers and employees in an
untenable situation. (See Executive Summary and Chapters IV and VI of
the Department's 2007 Report on the RFI comments, 72 FR at 35550,
35571, 35588.) The Department proposes to define the term ``periodic''
as twice or more a year, based on an expectation that employees with
chronic serious health conditions generally will visit their health
care providers with that minimum
[[Page 7889]]
frequency, but they may not visit them more frequently, especially if
their conditions are stable. The Department believes this is reasonable
but seeks public comments on whether the proposed definition of the
term ``periodic'' is appropriate.
Proposed Sec. 825.115(d), titled ``Permanent or long-term
conditions,'' incorporates language from current Sec.
825.114(a)(2)(iv) without change. Proposed Sec. 825.115(e), titled
``Conditions requiring multiple treatments,'' incorporates language
from current Sec. 825.114(a)(2)(v), which provides coverage for any
period of absence to receive multiple treatments by a health care
provider for restorative surgery after an accident or other injury, or
for a condition that would likely result in a period of incapacity of
more than three consecutive calendar days in the absence of medical
intervention or treatment for conditions such as cancer, severe
arthritis, and kidney disease. Multiple treatments are required to
satisfy this prong of the continuing treatment definition.
Sections 825.116 Through 825.118 (Reserved)
Provisions in current Sec. 825.116 defining the phrase ``needed to
care for'' a family member are moved to proposed Sec. 825.124,
discussed below. Provisions in current Sec. 825.117 addressing the
``medical necessity'' for taking and scheduling intermittent or reduced
schedule leave are moved to proposed Sec. Sec. 825.202 and .203,
discussed below. Current Sec. 825.118 defining ``health care
provider'' is renumbered as Sec. 825.125 of the proposed rule. Section
numbers .116-.118 of the current rule are, therefore, reserved to
reflect these organizational changes, as discussed further below.
Section 825.119 (Leave for Treatment of Substance Abuse)
The Department proposes to create a single, consolidated section to
address substance abuse, which is currently addressed in two different
sections of the regulations, specifically Sec. Sec. 825.112(g) and
.114(d). Current Sec. 825.112(g) provides that while FMLA leave is
available for substance abuse treatment, treatment does not prevent an
employer from taking employment action against an employee for
violating the employer's substance abuse policy, such as being
intoxicated at work. The section further explains when such action is
appropriate. Current Sec. 825.114(d) states that substance abuse
treatment may be covered as a serious health condition in certain
circumstances.
Section 825.120 (Leave for Pregnancy or Birth)
The Department proposes to create a single section that addresses
FMLA rights and responsibilities related to pregnancy and birth of a
child. The current regulations contain regulatory guidance pertaining
to pregnancy and birth throughout a number of regulatory sections. This
new proposed section collects the existing guidance from the various
regulatory sections into one comprehensive section.
Section 825.120(a)(1) of the proposed rule, titled ``[g]eneral
rules,'' restates language from current Sec. 825.112(b) that both the
mother and father are entitled to FMLA leave for the birth of their
child. Proposed paragraph (a)(2) of this section restates language from
current Sec. 825.201 explaining that leave following the birth of a
healthy child (``bonding time'') must be completed within a year from
the birth unless State law provides for a longer period of time or with
an employer's agreement. Based on the statutory requirements (see 29
U.S.C. 2612(a)(2)), if leave is extended beyond a year from the birth
per State law or employment agreement, the additional leave would not
receive the FMLA protections. Proposed paragraph (a)(3) of this section
incorporates language from current Sec. 825.202(a), that husbands and
wives who work for the same employer may be limited to a combined 12
weeks of FMLA leave for the birth or placement for adoption or foster
care of a healthy child, or to care for an employee's parent with a
serious health condition. (See 29 U.S.C. 2612(f).) This limitation does
not apply if only one spouse is eligible for FMLA leave. For example,
if a wife commenced employment with the employer only 6 months earlier
and therefore does not meet the 12-month/1,250-hour eligibility
requirement, but the husband has worked for the employer for five years
and otherwise meets the eligibility requirements, the husband could
take twelve weeks of leave to be with the newborn child. However, if
the husband and wife have both worked for the same employer for five
years and the husband already has used six weeks of his entitlement to
care for his parent, the wife may be limited to six weeks to be with
the newborn child (the wife would also be entitled to leave for her own
serious health condition related to the birth).
Proposed Sec. 825.120(a)(4) combines language from current
Sec. Sec. 825.114(a)(2)(ii), 825.114(e), and 825.112(a) and (c) to
make clear that a mother may be entitled to FMLA leave for both
prenatal care and incapacity related to pregnancy, and the mother's
serious health condition following the birth of a child.
Proposed Sec. 825.120(a)(6) has been added to reemphasize that
both spouses may each take their full 12 weeks of leave to care for a
child with a serious health condition, regardless of whether the
spouses work for the same employer.
Proposed Sec. 825.120(b), titled ``[i]ntermittent and reduced
schedule leave,'' combines language from current Sec. Sec. 825.203(b)
and 825.204(a) on the use of intermittent or reduced schedule leave for
pregnancy and birth of a child. See 29 U.S.C. 2612(b)(1). Current Sec.
825.203(b) provides that leave taken after the birth of a healthy
newborn child may only be taken on an intermittent or reduced leave
schedule if the employer agrees. Current Sec. 825.204(a) explains that
in these cases, an employer may temporarily transfer an employee to an
available alternative position that better accommodates the need for
intermittent or reduced schedule leave if the employer does in fact
agree to such a leave schedule. See 29 U.S.C. 2612(b)(2). The hours not
worked due to a reduced leave schedule in this situation are considered
intermittent FMLA leave and are counted toward the employee's FMLA
leave entitlement (see proposed Sec. 825.205). Proposed Sec.
825.120(b) emphasizes that if intermittent or reduced schedule leave is
medically necessary for a serious health condition of the mother or the
newborn child, no employer agreement is necessary.
Section 825.121 (Leave for Adoption or Foster Care)
For the same reasons discussed above, the Department also proposes
a single section that discusses FMLA rights and obligations with regard
to adoption and foster care. The current regulations contain guidance
pertaining to adoption and foster care throughout a number of sections.
This new proposed section collects the existing guidance from the
various regulatory sections into one comprehensive section on adoption
and foster care.
Proposed Sec. 825.121(a) is titled ``[g]eneral rules'' and
provides that leave for adoption or foster care may begin prior to the
actual birth or adoption. Examples incorporated from current Sec.
825.112(d) include leave to attend counseling sessions, appear in
court, consult with an attorney or doctor, or submit to a physical
examination. The proposed section also cross-references proposed
paragraph (b) of this section, which explains the statutory limitation
that leave following the placement for
[[Page 7890]]
adoption and foster care of a healthy child can only be taken on an
intermittent or reduced schedule basis if the employer agrees. See 29
U.S.C. 2612(b)(1).
Proposed Sec. 825.121(a)(2) contains language from current Sec.
825.201 explaining that leave for adoption or foster care must be
completed within a year from the placement unless State law provides
for a longer period of time or with an employer's agreement. Such leave
taken under State law or with an employer's agreement beyond the one
year period is not protected as FMLA leave. Section 825.121(a)(3) also
incorporates language from current Sec. 825.202(a), that husbands and
wives working for the same employer are limited to a combined 12 weeks
of leave for purposes of bonding with the healthy adopted or foster
child, to care for the healthy child following the birth of the child,
and to care for an employee's parent with a serious health condition.
As discussed above under proposed Sec. 825.120, this limitation does
not apply if only one spouse is eligible for FMLA leave. See 29 U.S.C.
2612(f).
Proposed Sec. 825.121(a)(4) has been added to emphasize that both
spouses may each take their full twelve weeks of FMLA leave to care for
an adopted or foster child with a serious health condition, regardless
of whether the spouses work for the same employer.
Proposed Sec. 825.121(b), titled ``[u]se of intermittent and
reduced schedule leave,'' combines language from current Sec. Sec.
825.203(b) and 825.204(a) on the use of intermittent or reduced
schedule leave for adoption and foster care. Current Sec. 825.203(b)
provides that leave taken after the placement of a healthy child for
adoption or foster care may only be taken on an intermittent or reduced
leave basis if the employer agrees. See 29 U.S.C. 2612(b)(1). Current
Sec. 825.204(a) explains that in such cases, an employer may
temporarily transfer an employee to an available alternative position
that better accommodates the need for intermittent or reduced schedule
leave. See 29 U.S.C. 2612(b)(2). The hours not worked due to a reduced
leave schedule in this situation are considered intermittent FMLA leave
and are counted toward the employee's FMLA leave entitlement (see
proposed Sec. 825.205). Proposed Sec. 825.121(b) provides that if
intermittent or reduced schedule leave is needed for a serious health
condition of the adopted or foster child, no employer agreement is
necessary.
Section 825.122 (Definition of Spouse, Parent, Son or Daughter,
Adoption and Foster Care)
Current Sec. 825.113 provides definitions of spouse, parent, and
son or daughter for purposes of determining whether an employee
qualifies for FMLA leave. These definitions are repeated in current and
proposed Sec. 825.800. The Department proposes to move the existing
section to proposed Sec. 825.122 for purposes of organization.
Proposed Sec. 825.122(a) and (b) defining spouse and parent are
unchanged except for minor editorial changes in paragraph (b) to the
definition of ``parent.''
Proposed Sec. 825.122(c) that addresses, and is now titled,
``[s]on or daughter,'' has been rewritten for clarity. The one
substantive addition the Department proposes is to specify that the
determination of whether an adult child has a disability should be made
at the time leave is to commence. In Bryant v. Delbar, 18 F.Supp.2d 799
(M.D. Tenn. 1998), the court conducted an analysis of whether an adult
child had a disability for purposes of FMLA coverage based on facts and
circumstances that occurred well after the leave commenced. In the
Department's view, employers should decide FMLA eligibility based on
information at the time the leave begins. A rule that takes into
account information acquired after-the-fact causes confusion about
coverage for both employees and employers. The Department aims to
eliminate such confusion by adding the proposed language.
Proposed Sec. 825.122(c)(1), (2) and (3) remain unchanged from
current Sec. 825.113(c)(1), (2) and (3).
A new Sec. 825.122(d) has been added that defines ``adoption.''
The current regulations do not define the term, and the Department
believes that providing such guidance will benefit both employees and
employers. Language from current Sec. 825.112(d) has been retained to
clarify that the adoption source is not relevant to FMLA leave
eligibility.
Proposed Sec. 825.122(e), titled ``[f]oster care,'' incorporates
the definition of foster care from the current Sec. 825.112(e) without
change.
Proposed Sec. 825.122(f) addresses the documentation of
relationships and incorporates the current language from Sec.
825.113(d) with two clarifications. First, the current regulation
states that in addition to a child's birth certificate or a court
document, a simple statement from an employee is sufficient to
establish a family relationship. The Department adds language in
proposed paragraph (f) to clarify that the example of a statement by
the employee as documentation should be a sworn, notarized statement.
This provides consistency with the other examples used in the current
regulations. Second, the Department proposes to add the example of a
submitted and signed tax return as evidence of a qualified family
relationship because in the case of an in loco parentis relationship,
it may be difficult to determine what kind of proof may be reasonable
to establish such a relationship.
Section 825.123 (Unable to Perform the Functions of the Position)
The Department proposes to renumber current Sec. 825.115 as Sec.
825.123 in the proposed regulation due to other organizational changes
made. Proposed paragraph (a), titled ``[d]efinition,'' defines the
statutory requirement that an individual be unable to perform the
functions of a job in order to qualify for FMLA leave. The current
regulatory definition states that the employee must be ``unable to work
at all'' or be unable to perform ``one or more of the essential
functions of the job.'' The Department proposes no substantive changes
to this definition.
The Department proposes no substantive changes to current paragraph
(b), now titled ``[s]tatement of functions,'' except to include
language from current Sec. 825.115 to clarify that the employer may
provide a statement of the employee's essential functions to the
employee's health care provider, and to clarify that the employer may
require that the health care provider's medical certification specify
what functions the employee cannot perform. This information is part of
the ``medical facts'' the statute states an employer may obtain as part
of the medical certification. See 29 U.S.C. 2613(b)(4)(B).
Section 825.124 (Needed to Care for a Family Member)
The current regulations define the phrase ``needed to care for'' a
family member in Sec. 825.116. The Department proposes to move this
section to proposed Sec. 825.124 and clarify that the employee need
not be the only individual or family member available to care for the
qualified family member. A number of comments received in response to
the RFI recommended that the Department impose some sort of limitation
on what it means for an employee to be ``needed to care for'' a family
member. A number of commenters, including the National Council of Chain
Restaurants suggested that ``care'' be limited to actual physical
[[Page 7891]]
care only. The National Council of Chain Restaurants also recommended
that the employee be required to provide a written certification ``that
explains why the employee cannot rely upon other family members to care
for'' the qualifying family member. Similarly, the law firm of Blank
Rome suggested that the regulations ``be modified to allow for leave
under these circumstances only when there is no other alternative care
giver or provider.'' The Pepsi Bottling Group recommended that
employers be ``able to deny or delay leave if an employee has a family
member at home who is available to provide necessary medical care.''
The United Parcel Service suggested ``add[ing] language requiring that
requests for intermittent leave to care for a family member be
supported by a representation that the employee is the only family
member available to provide such care.'' Finally, Manufacturers
Alliance recommended the Department clarify that the term ``needed to
care'' for a family member means ``that it [is] necessary for the
employee to actually be providing care during * * * work time.''
After review of these comments, the Department has declined to
adopt any of these proposals. The statute provides leave ``[i]n 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.'' 29 U.S.C. 2612(a)(1)(C). There is no additional limitation
that the employee be the only available care giver in order to take
FMLA leave. Indeed, it will often be the case that there are multiple
potential care givers--none of whom is the only care giver without
alternative--but all of whom would need to take FMLA leave in order to
provide care. Moreover the legislative history to the Act indicates
that the ``phrase `to care for' * * * be read broadly to include both
physical and psychological care.'' H.R. Rep. No. 103-8, at 36 (1993);
S. Rep. No. 103-3, at 24 (1993). The Department intends to retain the
psychological care language and to make clear that employers cannot
impose an additional requirement upon employees for FMLA leave purposes
that the employee needs to be the only individual, or even family
member, available to provide care to the qualified family member with a
serious health condition.
Section 825.125 (Definition of Health Care Provider)
Current Sec. 825.118 is renumbered as Sec. 825.125 in the
proposed rule to reflect organizational changes. In its comments to the
RFI, the American Academy of Physician Assistants noted that physician
assistants (PAs) are usually recognized as authorized health care
providers for FMLA purposes under the existing provision that
recognizes ``[a]ny health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits'' (current Sec. 825.118(b)(4)).
Other language in Sec. 825.118(c) of the current rule has created
confusion over the status of PAs, however, where the phrase
``authorized to practice in the State'' is defined to mean that ``the
provider must be authorized to diagnose and treat physical or mental
health conditions without supervision by a doctor or other health care
provider.'' The Department proposes to clarify the status of PAs as
health care providers under proposed Sec. 825.125(b)(2) (formerly
Sec. 825.118(b)(2) in the current rule) by adding ``physician
assistants'' to the list of recognized health care providers and by
deleting the requirement that PAs operate ``without supervision by a
doctor or other health care provider.'' The Department has made
corresponding changes to proposed Sec. 825.115 (Continuing treatment)
and Sec. 825.800 (Definitions) to reflect this change that PAs would
now generally be considered health care providers.
Section 825.200 (Amount of Leave)
This section explains the basic leave entitlement provided under
the Act, as well as how to determine the 12-month period during which
the FMLA leave entitlement may be used. The Department asked in its
December 2006 RFI whether ``scheduled holidays [should] count against
an employee's 12 weeks of FMLA leave when the employee is out for a
full week as they do now?'' (71 FR at 69509) The Department heard from
all sides on this issue. The Unum Group stated, ``Changing this process
could add difficulty to the already complex method of calculating FMLA
leave entitlements.'' The Pennsylvania Turnpike Commission agreed: ``We
feel that scheduled holidays should continue to count against the 12
weeks of FMLA. That block of time is covered in the employee request--
it is incidental that they would not have had to work due to a holiday.
Because of differing holiday eligibility for different employee groups
(i.e. mgmt/union), it would greatly complicate the calculation of
eligible days if holidays were excluded. It would be more time
consuming for an FMLA administrator to calculate the amount of time/
days an employee [would] be off under FMLA if they had to make sure to
subtract any holidays that the employee is eligible for during the time
period they need to be off.'' The State of Ohio said it ``supports the
current regulations in this area, and believes that scheduled holidays
should continue to be counted against an employee's 12 weeks of FMLA
leave when the employee is out a full week. This provision would allow
employee's 12 weeks of FMLA leave to be treated consistently with
employees participating in other Ohio benefit programs.'' The National
Partnership for Women & Families disagreed: ``Under the current
regulations, such holidays are counted as part of an employee's FMLA
leave. We believe such a policy is inconsistent with how holidays are
typically treated in other leave contexts. If an employee is out on
FMLA leave and a scheduled holiday occurs, we believe the employee
should be able to use holiday leave just like other employees rather
than losing a day of FMLA leave. Thus, we would urge DOL to modify the
regulations accordingly.''
A number of commenters noted a serious problem that would occur if
holidays were not counted toward FMLA leave when an employee is out on
a weekly block of leave; that is, such a rule could result in the
employee obtaining greater than 12 weeks of FMLA leave per year. One
commenter stated: ``For some employees counting holidays or days not
worked during a full week of absence, may mean employees could be gone
beyond the 12 weeks/60 days if it is determined that non-work days or
holidays are not counted as part of the work week thus pro-longing an
FMLA beyond the 60 days/12 weeks[.]'' The United Parcel Service
concurred: ``DOL should maintain its current position that holidays
occurring during an employee's scheduled work-week count against the 12
weeks of leave. That position is supported by the plain language of the
FMLA, which provides for 12 weeks of unpaid leave, not 12 weeks of
leave plus all holidays falling therein.'' The Commonwealth of
Pennsylvania noted, ``Because the law references the absence period in
terms of weeks, rather than days, and considers calendar days rather
than work days, the practice of counting holidays seems to be within
the spirit of the Act and regulations.''
Upon review of the comments received to the record, the Department
believes it may lack the authority to change this regulation to not
count against the FMLA entitlement holidays that fall within weeks-long
blocks of FMLA leave. The statute grants
[[Page 7892]]
employees ``12 workweeks of leave'' which the Department has
interpreted to mean 12 weeks of the employee's normal work schedule.
See 60 FR at 2203. (``The statute uses the `workweek' as the basis for
the leave entitlement, and an employee's normal `workweek' prior to the
start of the FMLA leave is the controlling factor for determining how
much leave an employee uses when switching to a reduced leave
schedule.'') Holidays regularly occur during normal workweeks.
Discounting the holidays that regularly fall within those weekly blocks
of leave could well impermissibly extend an employee's leave period
beyond the statutory 12 normal workweeks of leave that the Act permits.
Moreover, the current rule is clear and apparently working well. See,
e.g., Mellen v. Trustees of Boston University, 504 F.3d 21, 25 (1st
Cir. 2007) (``[The Department's regulations governing] [w]hether
holidays are to be counted against intermittent leave taken in an
interval of a week or more * * * fit together naturally.'').
However, consistent with the discussion regarding Sec. 825.205
below, when an employee is taking leave in increments of less than one
week, the pertinent question for both overtime and holidays is whether
the employee is required to be at work. If an employee is not required
to be at work because of a holiday on the day he or she requested
leave, then no leave would be charged to the employee's FMLA
entitlement. Thus, the Department proposes language in Sec. 825.200(f)
to clarify that, if an employee needs less than a full week of FMLA
leave, and a holiday falls within the partial week of leave, the hours
that the employee does not work on the holiday cannot be counted
against the employee's FMLA leave entitlement if the employee would not
otherwise have been required to report for work on that day. If an
employee needs a full week of leave in a week with a holiday, however,
the hours the employee does not work on the holiday will count against
the employee's FMLA entitlement. Accordingly, for an employee with a
Monday through Friday work week schedule, in a week with a Friday
holiday on which the employee would not normally be required to report,
if the employee needs FMLA leave only for Wednesday through Friday, the
employee would use only 2/5 of a week of FMLA leave because the
employee is not required to report for work on the holiday. However, if
the same employee needed FMLA leave for Monday through Friday of that
week, the employee would use a full week of FMLA leave despite not
being required to report to work on the Friday holiday.
Section 825.201 (Leave To Care for a Parent)
Current Sec. 825.201 on leave for the birth or placement for
adoption or foster care of a child has been incorporated into proposed
Sec. Sec. 825.120 and 825.121 discussed above. The current Sec.
825.202 addresses how much leave a husband and wife may take if they
are employed by the same employer, in situations where an employee
wants to be with a healthy child following a birth or placement for
adoption or foster care, or to care for a parent with a serious health
condition. The portions of current Sec. 825.202 pertaining to leave
for birth or placement of a child have been moved to proposed
Sec. Sec. 825.120 and 825.121, respectively. The remainder of the
section has been renumbered as Sec. 825.201. Consistent with the
current regulatory provisions, proposed Sec. 825.201 now highlights
when leave can be taken to care for a parent, as well as the statutory
limitations on taking such leave when a husband and wife work for the
same employer.
Section 825.202 (Intermittent Leave or Reduced Leave Schedule)
Current Sec. 825.203 explains that FMLA leave can be taken in
blocks or on an intermittent or reduced leave schedule basis. Current
paragraph (a) of this section explains that FMLA leave can be taken
intermittently or on a reduced leave schedule due to a qualifying
reason, and defines what constitutes intermittent and reduced schedule
leave. Current paragraph (b) explains that leave taken after the birth
or placement for adoption or foster care of a healthy child may only be
used intermittently or on a reduced leave schedule with the employer's
agreement. Current paragraph (c) explains that leave may be taken on an
intermittent or reduced leave schedule when medically necessary for
planned and/or unanticipated medical treatment of a related serious
health condition or for recovery therefrom, and to provide care or
psychological comfort to an immediate family member with a serious
health condition. Current paragraph (d) explains what limitations exist
with regard to tracking increments of intermittent leave and states
that employers may limit leave increments to the shortest period of
time that the employer's payroll system uses to account for absences or
use of leave, provided it is one hour or less.
This section has been renumbered as proposed Sec. 825.202 for
purposes of organization. Current paragraph (a) from Sec. 825.203 is
proposed to be titled ``[d]efinition,'' but no other changes are
proposed.
Language from current paragraph (b) of Sec. 825.203 governing the
use of intermittent or reduced schedule leave after the birth,
adoption, or foster care placement of a child has been moved to
proposed paragraph (c), titled ``[b]irth or placement,'' in proposed
Sec. 825.202, which also cross-references the birth and adoption/
foster care placement sections in proposed Sec. Sec. 825.120 and
825.121.
Proposed paragraph (b) now defines ``medical necessity'' and is so
titled. It combines existing language from current Sec. 825.117 and
illustrations from current Sec. 825.203(c). A cross-reference to
proposed Sec. 825.306 also is proposed in paragraph (b), which
explains what constitutes sufficient information on the medical
certification form.
Current paragraph (d), which explains how to count increments of
leave taken, has been moved to proposed Sec. 825.205, to be explained
below.
Section 825.203 (Scheduling of Intermittent or Reduced Schedule Leave)
Current Sec. 825.117 discusses an employee's statutory obligation
to schedule foreseeable intermittent or reduced schedule leave for
planned medical treatment so as to not unduly disrupt an employer's
operations. See 29 U.S.C. 2612(e)(2). The Department proposes to move
this discussion to proposed Sec. 825.203 for organizational purposes.
The statute does not limit this obligation to intermittent or reduced
schedule leave, but rather applies it to all foreseeable leave for
planned medical treatment. Proposed Sec. 825.302(e) (addressing
employee notice requirements for foreseeable leave) sets forth the
requirement as to any foreseeable leave for planned medical treatment.
Proposed Sec. 825.203 clarifies that an employee who takes
intermittent leave when medically necessary has a statutory obligation
to make a ``reasonable effort'' as opposed to an ``attempt'' to
schedule leave so as not to disrupt unduly the employer's operations.
The preamble accompanying current Sec. 825.203 also discussed
whether overtime hours not worked may be counted against an employee's
FMLA entitlement. See 60 FR at 2202. This issue is discussed in the
preamble below concerning proposed changes to Sec. 825.205, which
addresses how to determine the amount of leave used.
[[Page 7893]]
Section 825.204 (Transfer of an Employee to an Alternative Position
During Intermittent Leave or Reduced Schedule Leave)
Current Sec. 825.204 explains when an employer may transfer an
employee to an alternative position in order to accommodate
intermittent leave or a reduced leave schedule. The Department proposes
no substantive changes to this section, but proposes to add subheadings
for clarity. Specifically, proposed paragraph (a) is titled ``transfer
or reassignment,'' proposed paragraph (b) is titled ``compliance,''
proposed paragraph (c) is titled ``equivalent pay and benefits,''
proposed paragraph (d) is titled ``employer limitations,'' and proposed
paragraph (e) is titled ``reinstatement of employee.'' Other than
editorial changes, the Department proposes no other changes to this
section. The Department asked no questions about transfer in its RFI
but received a number of comments criticizing the current regulations
particularly as regards employees who have a recurring need for
unscheduled intermittent leave. The full range of comments is discussed
in Chapter VIII of the Report on the RFI comments (see 72 FR at 35608).
Some commenters saw no basis to differentiate between foreseeable and
unforeseeable need for leave in the context of this provision. ``We do
not see any basis for distinguishing between foreseeable vs.
unforeseeable leaves for purposes of such temporary transfers.'' See
comments by United Parcel Service, Inc. Similarly, The Southern Company
stated:
[Section 825.204 provides n]o similar option * * * for employers
to transfer or otherwise alter the duties of an employee who needs
unscheduled or unforeseeable intermittent leave. Even if the
employee's unscheduled intermittent absences may result in
substantial safety risks to the public or co-employees, or could
cause serious disruption to the operations of the employer, such
employee's duties or position cannot be altered as a result of the
unscheduled intermittent leave.
The Edison Electric Institute echoed the same concern that under the
current regulatory scheme ``[e]mployers do not have [the option] to
transfer or otherwise alter the duties of an employee who needs
unscheduled or unforeseeable intermittent leave.'' The Department
requests further comments on whether this regulatory provision should
be changed and if so how.
Section 825.205 (Increments of Leave for Intermittent or Reduced
Schedule Leave)
Current Sec. 825.205 explains how to determine the amount of leave
used when an employee takes intermittent or reduced schedule leave.
Current paragraph (a) makes clear that ``only the amount of leave
actually taken may be counted toward the 12 weeks of leave'' to which
an employee is entitled. Current paragraph (b) explains how to
calculate the use of intermittent or reduced schedule leave when an
employee works part-time or variable hours. Current paragraph (c)
explains how to calculate leave when an employee's permanent schedule
changes and current paragraph (d) explains how to calculate leave when
an employee's schedule varies from week to week.
The Department proposes to add language from current Sec.
825.203(d), which explains how to count increments of intermittent FMLA
leave, to paragraph (a) of this section, titled ``Minimum increment.''
Current paragraphs (b) through (d) of Sec. 825.205 have been
renumbered as Sec. 825.205(b)(1), (2), and (3) for purposes of
clarity, but no changes have been made to the text of those sections.
Paragraph (b) is proposed to be titled ``[c]alculation of leave.''
The Department received comments expressing concerns about the size
of increments of intermittent leave that may be taken. No issue
received more substantive commentary to the RFI than employee use of
unscheduled intermittent leave. Employers identified a number of
problems with current Sec. 825.203(d), which permits FMLA leave to be
taken in increments as small as the employer's payroll system will
capture. These difficulties include basic administrative problems.
Several commenters, including a supervisor at International Auto
Processing, noted that their payroll systems capture time down to one
minute, ``Since our clocks track time to the minute, I find myself
spending an unusual amount of time determining how many hours and
minutes the employee has used by using his weekly time sheet. * * *
This is a nightmare and I sometimes feel like the only thing I
accomplish during the day is tracking intermittent leave.'' Second,
employers also stated that the current rule does not allow them to
adequately staff their businesses, as it is very difficult to find
replacement employees to cover absences that are less than one half-
day. The Detroit Medical Center commented that, ``Scheduling of
sufficient staff is regularly compromised, negatively affecting the
quality of service or, in hospital settings, actual patient care
because of unscheduled intermittent leave.'' Third, as documented in
the Department's 2007 Report on the RFI comments, ``intermittent FMLA
leave can have significant impacts on time-sensitive business models.
In many situations, the absence of just a few employees can have a
significant impact.'' 72 FR at 35632; see generally 72 FR 35632-35638
(discussing impacts of unscheduled intermittent leave on certain time-
sensitive industries). For example, the City of New York stated that
when its 911 operators do not show up for work due to a chronic FMLA
condition, the remaining employees must work longer to maintain
appropriate staffing and response levels: ``The number of overtime
hours being worked leads to overtired people making critical life and
death decisions in an emergency driven environment.'' As a result of
all these factors, many employers suggested the Department allow
employers to require that intermittent leave be taken in greater
increments (e.g., two or four hour blocks or one day or one week
blocks).
Conversely, a number of commenters defended the current rule on
minimum increments of leave. The Legal Aid Society's Employment Law
Center asked the Department to ``please be mindful of the employee who,
in an ideal world, would not suffer from such devastating illnesses
that wreck havoc on their own lives. Employees, too, struggle with
chronic and episodic illnesses. The FMLA was specifically designed to
provide leave in these instances.'' The National Partnership for Women
& Families noted its strong support for the current regulations and
specifically urged the Department to resist making any changes in the
minimum increment of leave that an employee could take: ``Intermittent
leave was designed to help employers by ensuring that workers are not
absent any longer than necessary. While some employers now argue for
half-day increments of intermittent leave, enforcing a four-hour leave
requirement would mean forcing employees to miss more work than
necessary, which is contrary to the statute and harmful to both
employees and employers.'' The organization 9to5, National Association
of Working Women also stated it ``opposes any regulatory change that
would impose additional obstacles or requirements on workers seeking to
utilize intermittent FMLA leave. Currently, workers may take just the
time needed for treatments, minimizing their own loss of pay and
[[Page 7894]]
the strain on employers and co-workers.''
The Department understands the burdens imposed on employers by
employees using unscheduled intermittent leave as demonstrated by the
comments received in response to the RFI. At the same time, the
Department is aware of the importance of such leave to employees with
serious health conditions. The Department is not proposing to increase
the minimum increment of intermittent leave at this time.
The Department also seeks comment as to whether, in situations in
which physical impossibility prevents an employee using intermittent
leave or working a reduced leave schedule from commencing work mid-way
through a shift, an exception should be made to allow the entire shift
to be designated as FMLA leave and counted against the employee's FMLA
entitlement. For example, if a railroad conductor is required to
conduct a train from one point to another, the employee cannot begin or
stop work in the middle of the trip. Similarly, an employee who works
in a lab sealed at the start of the day cannot enter the lab later or
the work performed would be lost. The Department has addressed this
scenario in prior guidance. See Wage and Hour Opinion Letter FMLA-42
(Aug. 23, 1994). In that 1994 Opinion Letter, the Department stated
that when a flight attendant needed only three hours of intermittent
leave to care for her sick mother every Friday, preventing her from
working a Friday flight assignment during a two month period, only the
three hours of leave needed each week could be charged to FMLA, and the
remainder of the time may be charged to some other form of paid or
unpaid leave. Upon further review, the Department questions whether
such an interpretation is appropriate. While the Department's
interpretation allows employees to preserve their FMLA entitlement, it
may expose them to disciplinary action based on the additional hours of
unprotected leave that they must take. The Department seeks comment on
whether it is more appropriate to extend FMLA protection to the entire
period of leave taken from the employee's assigned schedule in this
situation.
A number of commenters to the record addressed this phenomenon.
Southwest Airlines stated, ``When * * * employees are absent, flights
do not take off without another employee taking their place.''
Therefore, even a few minutes of FMLA leave can result in the employee
missing an entire flight. Similarly, the Air Transport Association of
America, Inc. and the Airline Industrial Relations Conference
commented,
In this industry, a six-minute absence can result in a flight
attendant avoiding a three-day trip to which she or he was assigned.
Most airlines ``bank'' flights or schedule multiple flights to
arrive and depart in a concentrated time frame, followed by a
relative lull in activity. An employee could use intermittent FMLA
leave to miss the heavy flight bank, causing the carrier to either
operate short-handed or to call in a replacement worker who likely
must be paid a shift premium, then come in to work the rest of the
shift during which no flights may arrive or depart, leaving the
carrier now over-staffed.
The Regional Transportation District in Denver, Colorado commented
that ``due to the particular needs of the industry, [there is]
difficulty scheduling intermittent leave for bus and light rail
operators, particularly if the operator must be relieved in the middle
of the run. [We] would like clear guidance on the limitations it can
place on an operator to avoid scheduling intermittent leave during a
run.'' This situation is also prevalent in the rail industry. The
Association of American Railroads commented,
Railroads typically establish ``pools'' (and ``extra boards'')
comprised of train service employees who report to duty when called
by the employer, based on train operations. When called in, the
worker leaves on the train and must be gone for the entire trip;
given the nature of the work, the worker cannot work a ``reduced
schedule leave'' or intermittently for less than the entire trip. If
the employee cannot work the entire trip, he or she must miss the
entire trip no matter how much FMLA leave the worker needs.
Instead of proposing specific language, the Department seeks
comment from the public on this issue and what if any language should
be included in the final rule to address these situations within the
statutory requirements.
The Department also wishes to clarify the application of FMLA leave
to overtime hours. An employee may be limited to working eight hours
per day or 40 hours per week due to a serious health condition and,
under FMLA, has the right not to work overtime hours without being
subject to any discipline. It is a reduced leave schedule. Employers
continue to have questions, however, as to whether and how the overtime
hours not worked due to the serious health condition may be counted
against the employee's FMLA entitlement. The preamble accompanying
current Sec. 825.203 stated that whether overtime hours not worked can
be counted against the employee's FMLA entitlement is determined by
whether the employee would be required to use some form of leave to
cover those hours in a non-FMLA situation. (60 FR at 2202) The preamble
also distinguished between mandatory overtime, voluntary overtime, and
overtime on an ``as needed'' basis. The Department's enforcement
experience and responses to the RFI lead us to believe that the
distinction between these three types of overtime, and the focus on
whether leave would normally need to be used to cover the hours not
worked, has caused confusion. See Wage and Hour Opinion Letter FMLA-107
(July 19, 1999) (``If overtime hours are on an `as needed' basis and
are not part of the employee's usual or normal workweek, or is
voluntary, such hours would neither be counted to calculate the amount
of the employee's FMLA leave entitlement nor charged to the employee's
FMLA leave entitlement.'') (emphasis in original). The confusion has
been compounded by language in the preamble discussing Sec. 825.205 of
the current rule, which states ``[a]n employee's FMLA leave entitlement
may only be reduced for time which the employee would otherwise be
required to report for duty, but for the taking of the leave.'' (60 FR
at 2203)
The Department recognizes that overtime by its nature is generally
assigned on an as needed basis, and the fact that it is assigned as
needed has no bearing on whether the employee has volunteered to work
or is being required to work the additional hours. The Department
believes the correct focus should be not on whether the employee would
normally be required to use leave to cover the overtime hours, but on
whether the employee would otherwise be required to report for duty but
for the taking of FMLA leave. If the employee would be required to work
the overtime hours were it not for being entitled to FMLA leave, then
the hours the employee would have been required to (but did not) work
may be counted against the employee's FMLA entitlement. Where, in such
a case, the employee works a part-time or reduced leave schedule, the
employee's leave usage in any given week is proportionate to the
employee's scheduled hours in the week in which the leave is used. For
example, if an employee has a certified serious health condition
limiting the employee's work hours to 40 per week and that employee is
scheduled for 48 hours in a week, the employee would take 8 hours of
FMLA protected leave that week. This translates into 8/48ths or 1/6th
of a week of FMLA leave. For ease of tracking, an employer may convert
these
[[Page 7895]]
fractions to their hourly equivalent so long as the conversion
equitably reflects the employee's total normally scheduled hours.
Where the employee's schedule so varies from week to week such that
no ``normal'' schedule or pattern can be discerned, a weekly average of
the hours worked for the 12 weeks prior to the start of the FMLA leave
is used to calculate the employee's normal workweek as in proposed
Sec. 825.205(b)(3) (current Sec. 825.205(d)). In all instances, the
employer must select employees for mandatory overtime in a manner that
does not discriminate against workers who need to use FMLA leave (see
Sec. 825.220). The Department is not proposing any regulatory changes
related to the overtime issue, which is not addressed in the text of
the current regulations and is discussed only in the 1995 preamble to
the current rule (see 60 FR at 2202).
Section 825.207 (Substitution of Paid Leave)
Current Sec. 825.207 addresses the interaction between unpaid FMLA
leave and employer provided paid leave. Current paragraph (a) repeats
the statutory language that paid leave may be substituted for unpaid
FMLA leave. Current paragraph (b) addresses substitution of accrued
paid vacation, personal, or family leave for unpaid FMLA family leave
for the birth or placement of a child for adoption or foster care or to
care for a spouse, child or parent with a serious health condition.
Current paragraph (c) addresses when accrued paid vacation, personal,
or medical/sick leave can run concurrently with the employee's unpaid
FMLA leave for the employee's own serious health condition or when the
employee is needed to care for a spouse, child or parent with a serious
health condition. Current paragraph (d) addresses the interaction
between a disability plan and unpaid FMLA leave, as well as the
interaction of unpaid FMLA leave with a workers' compensation absence.
Current paragraph (e) addresses the use of paid vacation or personal
leave when taking FMLA leave. Current paragraph (f) confirms that if
paid leave is not substituted at the option of the employer or the
employee, the employee remains entitled to all accrued paid leave.
Current paragraph (g) explains that paid leave used for purposes not
covered by the FMLA cannot count against the employee's FMLA
entitlement. Current paragraph (h) states that an employer cannot apply
the FMLA requirements if paid leave is substituted and the employer's
paid leave program applies less stringent procedural standards for
taking leave than the FMLA. Current paragraph (i) addresses the
interaction between the use of compensatory time off in the public
sector and the use of FMLA leave.
The Department's enforcement experience and responses to the RFI
lead us to believe that current Sec. 825.207 may be confusing to
employees and employers. For example, the differing treatment of
``medical leave,'' ``family leave,'' ``sick leave,'' and ``vacation
leave'' makes it difficult both for employers to administer these
provisions and for employees to know what their rights and obligations
are in substituting paid leave for unpaid FMLA leave. Additionally,
both employees and employers have expressed confusion as to the
application of the employer's normal leave rules when paid leave is
substituted for unpaid FMLA leave.
In response to the RFI, many employees and employee advocacy groups
commented that the ability to substitute paid leave for any portion of
an otherwise unpaid FMLA leave in many cases was essential to the
employee's ability to take leave at all. Several employers and employer
groups, however, commented that the substitution provisions of the
regulations require that employees seeking to use accrued paid leave
concurrently with FMLA leave be treated more favorably than those who
use paid leave for other reasons. Still other employers stated that the
various rules for substituting different types of paid leave have added
to the costs of administering FMLA leave and discouraged the employers
from adopting or retaining leave policies that are more generous than
required by the FMLA.
Section 102(d)(2) of the FMLA governs the substitution of paid
leave for unpaid FMLA leave. 29 U.S.C. 2612(d)(2). Paragraph (A) of
that section of the statute addresses substitution of ``accrued paid
vacation leave, personal leave, or family leave'' for unpaid FMLA leave
for the birth or placement of a child, or to care for a covered family
member. Paragraph (B) of that section addresses substitution of
``accrued paid vacation leave, personal leave, or medical or sick
leave'' for unpaid FMLA leave to care for a covered family member or
for the employee's own serious health condition. Language in paragraph
(B) clarifies that the FMLA does not require employers to provide paid
sick or medical leave in any situation in which they would not normally
do so.
In the current regulations, the Department interpreted the
clarifying clause regarding paid sick and medical leave in section
102(d)(2)(B) of the Act as indicating congressional intent to allow
employers to enforce their normal rules regarding the use of paid
medical and sick leave when such leave was substituted for unpaid FMLA
leave. The Department further interpreted the lack of a similar
clarifying clause in paragraph (A) of that section of the statute to
indicate that employers were not permitted to enforce normal rules
regarding the use of paid vacation leave or personal leave when such
leave was substituted for unpaid FMLA leave. See preamble to current
FMLA rule, 60 FR at 2205 (``There are no limitations, however, on the
employee's right to elect to substitute accrued paid vacation or
personal leave for qualifying FMLA leave, and the employer may not
limit the timing during the year in which paid vacation may be
substituted for FMLA-qualifying absences or impose other
limitations.'').
The Department's interpretation of the substitution of paid leave
provision has evolved over time, as has been reflected in the
Department's opinion letters on the subject. For example, while the
preamble to the current regulations specifically stated that employers
could not restrict the time during the year in which an employee could
substitute paid vacation leave for unpaid FMLA leave, the Department
has clarified in Opinion Letter FMLA-75 that where vacation leave was
accrued pursuant to a generally applied restriction on when it could be
used, an employee did not have the right to substitute vacation leave
for unpaid FMLA leave at any other time. Wage and Hour Opinion Letter
FMLA-75 (Nov. 14, 1995) (``[W]here an employee may only use leave under
the employer's plan during a specified period when the plant is shut
down, the employee has not fully vested in the right to substitute that
leave for purposes of FMLA.''). In two other opinion letters on the
substitution of paid vacation leave, the Department has recognized that
both an employee's right to use paid leave and an employer's right to
require substitution are subject to the policies pursuant to which the
leave was accrued. See Wage and Hour Opinion Letter FMLA-81 (June 18,
1996) (``[T]he Department interprets these provisions to mean that the
employee has both earned the [vacation] leave and is able to use that
leave during the FMLA leave period.''); Wage and Hour Opinion Letter
FMLA-61 (May 12, 1995) (``The Department interprets these provisions to
mean that
[[Page 7896]]
the employee has both earned the leave and is able to use that leave
during the FMLA period. * * * [I]n the particular situation that you
describe, the employer could not require the employee to substitute
[vacation] leave that is not yet available to the employee to use under
the terms of the employer's leave plan.'').
On further consideration, the Department now believes that the
better interpretation of paragraph (B) of section 102(d)(2) of the Act
is that it simply clarifies the limits on the employer's obligation to
allow the substitution of paid sick or medical leave. For example, it
clarifies that an employer is not obligated to allow an employee to
substitute paid sick leave for unpaid FMLA leave when the employee is
caring for a child with a serious health condition if the employer's
normal sick leave rules allow such paid leave to be used only for the
employee's own illness. However, as the language in both sections of
the statute makes clear, in all cases the substitution of paid leave
pursuant to section 102(d)(2) of the Act is limited to the substitution
of accrued paid leave. See FMLA's legislative history: ``Section 102(d)
assures that an employee is entitled to the benefits of applicable paid
leave, plus any remaining leave time made available by the act on an
unpaid basis.'' H.R. Rep. No. 103-8, Pt. 1, at 38 (1993); see also S.
Rep. No. 103-3, at 27-28 (1993).
Additionally, as several commenters to the RFI noted, by
prohibiting employers from applying their normal leave policies to
employees substituting paid vacation and personal leave for unpaid FMLA
leave, the current regulations may have provided an incentive to
employers to scale back on their provision of vacation and personal
leave because they are unable to control its usage. Moreover, as other
commenters pointed out, by allowing employees to substitute such paid
leave for unpaid FMLA leave without meeting their employer's normal
leave rules, the regulations have placed employees using FMLA leave in
a more favored position regarding the use of employer provided paid
leave than their coworkers taking vacation or personal leave for non-
FMLA reasons.
The Department agrees that an unintended consequence of the current
regulations on substitution has been to create tension with the plain
language of the FMLA, which states that nothing in the Act or any other
amendments made by it shall be construed to discourage employers from
adopting or retaining leave policies more generous than any policies
that comply with the requirements under the Act or any amendment made
by it. See 29 U.S.C. 2653. Additionally, while the FMLA prohibits
discrimination against FMLA leave users, there is nothing in the Act
that requires employers to treat FMLA users more favorably than other
employees with regard to the provision of paid leave. Furthermore,
while the Act's protections prohibit an employee from losing any
accrued benefits as a result of taking FMLA leave, nothing in that
section entitles an FMLA leave-taker to any right or benefit other than
that to which the employee would have been entitled had the employee
not taken the leave. See 29 U.S.C. 2614(a)(2) and (3).
To more consistently apply these principles, the Department
proposes to combine current paragraphs (a), (b), and (c) of Sec.
825.207 into one paragraph (a), which now clearly states that the terms
and conditions of an employer's paid leave policies apply and must be
followed by the employee in order to substitute any form of accrued
paid leave--including, for example, paid vacation, personal leave,
family leave, ``paid time off'' (PTO), or sick leave. Additionally, the
Department proposes to clarify what is meant in Sec. 825.207 by the
term ``substitution,'' which normally means replacing one thing with
another, but does not comfortably bear that meaning in the context of
the FMLA. Thus, the Department proposes to add language clarifying that
for FMLA purposes ``substitution'' means that the unpaid FMLA leave and
the paid leave provided by an employer run concurrently. This is
standard practice under the current regulations and is not a change in
enforcement policy.
Just as employees do not have the right to use leave which has not
yet accrued, an employee's ability to use accrued leave is also limited
by the leave policies pursuant to which the ``applicable'' leave is
accrued (i.e., available for use pursuant to the non-discriminatory
terms and conditions of the employer's policy). Therefore, for example,
if an employer's paid vacation leave policy prohibits the use of
vacation leave in less than full day increments, employees would have
no right to use less than a full day of vacation leave regardless of
whether the vacation leave was being substituted for unpaid FMLA leave.
Similarly, if an employer's paid personal leave policy requires two
days notice for the use of personal leave, an employee seeking to
substitute personal leave for unpaid FMLA leave would need to meet the
two-day notice requirement prior to receiving the paid personal leave.
Employers, of course, have the right to voluntarily waive the
application of such restrictions on an employee's use of paid leave,
but they are not required by the FMLA to do so.
The Department believes the proposed language on the substitution
of paid leave for unpaid FMLA leave also is more consistent with the
trend toward employers providing employees with ``paid time off'' (PTO)
policies that do not distinguish the right to leave based on the reason
(vacation versus illness) but instead give employees a pool of leave to
use for whatever reason they choose. PTO plans generally allow
employees to take paid leave for any reason as long as the employer's
procedures are satisfied. Under the current FMLA regulations, such PTO
policies were treated the same as paid vacation or personal leave and
employers were therefore not allowed to apply their normal leave rules
to the substitution of such leave for unpaid FMLA leave. As several
commenters to the RFI noted, this interpretation prohibited an employer
who chose to use a PTO leave plan from applying its existing policies
for taking leave when the leave was being used for sick or family leave
purposes.
In addition to the language proposed in this section as described
above, the Department also believes certain safeguards for employees
are necessary. Therefore, the Department also proposes to add language
clarifying that, when providing notice of eligibility for FMLA leave to
an employee pursuant to proposed Sec. 825.300, an employer must make
the employee aware of any additional requirements for the use of paid
leave and must inform the employee that he/she remains entitled to
unpaid FMLA leave even if he/she chooses not to meet the terms and
conditions of the employer's paid leave policies (such as using leave
only in full day increments or completing a specific leave request
form). The Department invites comment as to whether this proposal
appropriately implements Congressional intent regarding substitution of
paid leave. See 29 U.S.C. 2612(d)(2).
Language from current Sec. 825.207(d)(1), explaining that
employers may apply more stringent requirements for receipt of
disability payments, has been moved to new proposed Sec. 825.306(c).
The remaining language from current Sec. 825.207(d)(1), making clear
that substitution of paid leave does not apply where the employee is
receiving paid disability leave, is retained in the proposed section.
However, the Department also wishes to clarify that while the
substitution provisions are not
[[Page 7897]]
applicable when an employee receives disability benefits while taking
FMLA leave, if the employer and employee agree to have paid leave also
run concurrently with FMLA leave to supplement disability benefits,
such as in the case where an employee only receives two-thirds of his
or her salary from the disability plan, such an agreement is permitted
under FMLA to the degree that it is allowable under applicable State
law. This is in keeping with the statutory mandate not to discourage
more generous leave policies voluntarily provided by employers.
The language from current Sec. 825.207(d)(2), addressing the
interaction between workers' compensation, light duty and the FMLA, has
been moved to proposed Sec. 825.207(e). Additional discussion of light
duty also can be found in Sec. 825.220(c) of the proposed rule as
discussed below. Current Sec. 825.207(e), which states that no
limitations may be placed by the employer on substitution of paid
vacation or personal leave, including leave earned or accrued under PTO
plans, has been deleted in light of the discussion of paragraph (a)
above. Current Sec. 825.207(h), which states that when an employer's
procedural requirements for taking paid leave are less stringent than
the requirements of the FMLA, employees cannot be required to comply
with higher FMLA standards, has been deleted because it does not
properly implement section 103 of the FMLA, which states that employers
may require sufficient FMLA certification in support of any request for
FMLA leave for either the employee's own serious health condition or a
covered family member's serious health condition. It also is in
conflict with section 102(e) of the FMLA, which requires employees to
provide 30 days notice for foreseeable leave whenever possible for the
birth or placement of a child or for planned medical treatment. Current
Sec. 825.207(f) and (g) remain unchanged but have been redesignated as
paragraphs (b) and (c) of this section.
Finally, the Department proposes to revise current Sec. 825.207(i)
to allow the use of compensatory time accrued by public agency
employees under the Fair Labor Standards Act (FLSA) to run concurrently
with unpaid FMLA leave when leave is taken for an FMLA-qualifying
reason. Although the Department did not receive many comments dealing
specifically with the issue of compensatory time in response to the
RFI, those received indicate a general agreement that the substitution
of compensatory time for otherwise unpaid FMLA would be beneficial both
to the employee, by minimizing the financial impact of unpaid leave,
and to the employer, by allowing the two benefits to run concurrently.
Furthermore, the Department believes the proposed revision is
consistent with the U.S. Supreme Court's decision in Christensen v.
Harris County, 529 U.S. 576 (2000), in which the Court found that
public employers always have the right to cash out a public sector
employee's compensatory time or require the employee to use the time.
Section 825.208 (Reserved)
Current Sec. 825.208 has been renumbered as proposed Sec.
825.301, to be discussed below. The section is therefore reserved to
avoid extensive renumbering of other sections.
Section 825.210 (Employee Payment of Group Health Benefit Premiums)
This section addresses an employee's obligation to pay his or her
share of group health plan premiums while on FMLA leave. The Department
received few comments regarding this specific section in response to
the RFI. Some commenters stated that it was difficult to obtain payment
for an employee's share of health benefit premiums during the period
the employee is on FMLA leave. Employer representatives also expressed
concern about their ability to recoup their portion of health insurance
premiums when an employee decides not to return from FMLA leave. Other
commenters requested that the Department clarify an employer's
responsibility to maintain health insurance coverage when an employee
on FMLA leave fails to pay his or her portion of the premiums.
The Department is proposing to revise paragraph (f) of this section
by deleting the word ``unpaid.'' As noted in Sec. 825.207(e), an
individual who is simultaneously taking FMLA leave and receiving
payments as a result of a workers' compensation injury is not on unpaid
leave. No further changes are proposed for this section. For further
discussion of an employer's responsibility to maintain the health
insurance coverage of an employee on FMLA leave, see proposed Sec.
825.212 as discussed below.
Section 825.212 (Employee Failure To Make Health Premium Payments)
Current Sec. 825.212 explains that an employer may terminate an
employee's health insurance coverage while the employee is on FMLA
leave if the employee fails to pay the employee's share of the
premiums, the grace period has expired, and the employer provides
sufficient notification to the employee.
The Department received a number of comments regarding this
section. For example, the Disability Management Employer Coalition
requested that the Department better explain how employers should
respond to an employee's failure to pay his or her share of health
insurance premiums while on FMLA leave. In particular, the Coalition
stated that while many employers pay the employee's share of health
insurance premiums because of concerns regarding continuation of
coverage, employers have concerns about the cost of doing so. Other
commenters raised similar concerns, especially when individuals do not
return to work after their FMLA leave has expired, and requested
clarification regarding the timing of termination of an individual's
coverage for failure to make payment.
The Department proposes to add language to current paragraph (c) of
this section to make clear that if an employer allows an employee's
health insurance to lapse due to the employee's failure to pay his or
her share of the premium as set forth in the regulations, the employer
still has a duty to reinstate the employee's health insurance when the
employee returns to work and can be liable for harm suffered by the
employee if it fails to do so. Alternatives exist in most cases to
terminating an employee's health insurance when premium payments are
not made. For instance, an employer could make payroll deductions to
recoup such payments when an employee returns to work without violating
the FMLA. To the extent recovery is allowed, the employer may recover
the costs through deduction from any sums due to the employee (e.g.,
unpaid wages, vacation pay, profit sharing, etc.), provided such
deductions do not otherwise violate applicable Federal or State wage
payment or other laws. See Sec. 825.213 of the current and proposed
regulations.
Section 825.213 (Employer Recovery of Benefit Costs)
This section explains what process an employer must follow to
recoup insurance premiums from an employee when the employee does not
return from leave in certain circumstances. A few employer
representatives responded to the Department's RFI with concerns about
this process, with some suggesting that employees on FMLA leave be
provided coverage under the continuation coverage requirements of Title
X of the Consolidated Omnibus Budget Reconciliation Act of 1986, as
amended, 29 U.S.C. 1161-1168 (COBRA). These commenters were
particularly concerned that the current
[[Page 7898]]
system requires that employers provide health insurance, and pay the
majority of the premium, for individuals on FMLA leave who have no
intention of returning to work once their leave entitlement expires.
The Department understands these concerns, but cannot adopt the
suggested change under current law.
The Department proposes to move language from existing Sec.
825.310(h), which deals with certification requirements when an
employee fails to return to work due to the continuation, recurrence,
or onset of a serious health condition, to this section, as it believes
it is more appropriately placed here with other issues involving
repayment of health premiums. This language states that the cost of the
certification an employee must obtain to avoid the repayment of health
insurance premiums when the employee does not return from leave must be
borne by the employee, as well as any travel costs.
Section 825.214 (Employee Right to Reinstatement)
Current Sec. 825.214 addresses an employee's reinstatement rights
upon returning to work. This section also makes clear that even if an
employee is unable to return to work as a result of the serious health
condition and would not have FMLA reinstatement rights, the employee
may have rights under the ADA.
In response to the Department's RFI, employers expressed concern
about the impact on their business operations of reinstating an
individual to his or her same position. Many of these commenters were
particularly concerned about the interplay between the use of
intermittent leave by an employee and that employee's right to
reinstatement. These commenters argued that, in many cases, such
individuals should not be entitled to job restoration under current
Sec. 825.214(b) because they are unable to perform an essential
function of their position, such as to work overtime or meet regular
and reliable attendance requirements. Commenters in certain industries,
such as those where individuals are trained to work with particular
consumers, and smaller employers stated that returning an individual to
his or her same position can be difficult, even when the individual
takes block leave. These employers often have to hire an individual to
replace the employee taking FMLA leave, and are uncertain how to manage
the employee's return to work and their obligation to provide
reinstatement. On the other hand, numerous employees stated that the
ability to take FMLA leave, without having to worry whether their job
was secure, was critical to their being able to manage their own
serious health condition or caregiving responsibilities. The National
Partnership for Women & Families stated that the job restoration
provisions of FMLA ``promote[ ] greater workforce continuity and
stability by helping employees retain their jobs when an emergency
strikes.''
The Department believes that this regulatory provision meets the
intent of Congress in this area, by providing employees with job
protection while allowing employers some flexibility to return the
employee to the same or an equivalent position, and that no changes are
appropriate under current law.
The Department proposes minor clarifications along with
organizational changes to this section. First, the Department proposes
to add a heading titled ``[g]eneral rule,'' emphasizing that the
section sets forth the general rule on reinstatement obligations under
the FMLA. Proposed Sec. 825.214 retains the language from current
Sec. 825.214(a) without change. Language from current paragraph (b) on
limitations on reinstatement has been moved to proposed Sec.
825.216(c) and combined with language from current Sec. 825.216(d) on
concurrent workers' compensation absences during FMLA leave, for
organizational and clarification purposes.
Section 825.215 (Equivalent Position)
Current Sec. 825.215 defines what constitutes an ``equivalent
position'' for purposes of reinstatement. Current paragraph (a)
explains that an equivalent position is one ``virtually identical'' to
the employee's former position. Current paragraph (b) instructs
employers to give an employee a ``reasonable opportunity'' to fulfill
any conditions the employee needs to fulfill, such as attending a
course, if the employee is no longer qualified for his or her position
as a result of an FMLA absence. Current paragraph (c) defines
equivalent pay, including when an employee is entitled to pay increases
and certain types of bonuses when taking FMLA leave. Current paragraph
(d) defines what constitutes ``equivalent benefits.'' Current paragraph
(e) defines what constitutes ``equivalent terms and conditions'' of
employment, and current paragraph (f) confirms that the definition of
``equivalency'' does not extend to de minimis or intangible,
unmeasurable aspects of the job.
The Department received extensive feedback regarding the impact of
the requirements of this regulatory section on employer incentive
programs, especially perfect attendance awards. This issue has also
been the subject of many requests for clarification to the Department
over the years. Employers, and their representatives, almost uniformly
stated that the current regulatory distinction between an attendance
bonus and a production bonus has a ``chilling effect on employer
incentive plans.'' These commenters argued that the current regulatory
requirements are illogical and unfair, and have caused many companies
to modify, or eliminate altogether, perfect attendance reward programs.
Other employers stated that they would not consider implementing a
perfect attendance program because, by requiring that employers provide
awards to individuals with less than perfect attendance, these
commenters believe that the Department has placed employees taking FMLA
leave in a better position than those who take no leave. Many employees
also commented on the perceived unfairness of providing a ``perfect
attendance'' award to individuals who had been absent from work for up
to 12 weeks of the eligible time period. Several employer
representatives suggested that the Department permit employers to
administer attendance incentives and reward perfect attendance without
regard to the reason for an absence, thus allowing employers to treat
all individuals absent for work in the same manner.
Several employee organizations stated that the current regulatory
scheme appropriately recognizes that employees should not be penalized
for exercising their FMLA rights. These commenters believed that
permitting employers to exclude employees on FMLA leave from award
programs would discourage employees from taking FMLA leave.
The Department proposes several changes to this section. No
substantive changes have been made to proposed paragraph (a), titled
``[e]quivalent position,'' proposed paragraph (b), titled
``[c]onditions to qualify,'' or current paragraph (c)(1). The
Department proposes changes to current paragraph (c)(2) regarding
bonuses to allow an employer to disqualify an employee from a bonus or
award predicated on the achievement of a goal where the employee fails
to achieve that goal as a result of an FMLA absence. Of course, an
employer could not disqualify only those individuals on FMLA-qualified
leave and allow other employees on other forms of non-FMLA leave to
receive such an award without violating the FMLA's non-discrimination
requirement.
The Department proposes this change because the wording of current
[[Page 7899]]
Sec. 825.215(c)(2) on bonuses is confusing and because of the
unfairness perceived by both employees and employers as a result of
allowing an employee to obtain a perfect attendance award when the
employee has been absent on FMLA leave. The confusion stems from
language in the current section, which distinguishes between bonuses
for job performance, such as those based on production goals, versus
bonuses based on the absence of certain events occurring, and includes
as examples both bonuses for perfect attendance and for working safely
with no accidents. Moreover, the language of the current regulation
incorrectly groups together bonuses for perfect attendance and safety
as not requiring performance by the employee but rather the absence of
occurrences. This defies the plain meaning of attendance. Employers are
uncertain whether their employee incentive plans will be in violation
of the current regulation. See Wage and Hour Opinion Letter FMLA-110
(Sept. 11, 2000) (Employer inquiry regarding a plan the employer
believed to be a ``production incentive'' plan, which the Department
found analogous to a perfect attendance program).
Section 825.215(c)(2), containing this confusing distinction
between a bonus for perfect attendance or safety versus meeting or
exceeding production goals, also seems to conflict with the language in
current Sec. 825.215(d)(5), which states that an employee is
``entitled to changes in benefits plans, except those which may be
dependent upon seniority or accrual during the leave period,
immediately upon return from leave or to the same extent they would
have qualified if no leave had been taken. For example, if the benefit
plan is predicated on a pre-established number of hours worked each
year and the employee does not have sufficient hours as a result of
taking unpaid FMLA leave, the benefit is lost.'' Current Sec.
825.215(d)(5) is more consistent with 29 U.S.C. 2614(a)(3), which
provides that nothing in that 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.
The Department also is concerned that the regulatory language in
current Sec. 825.215(c)(2) provides the wrong incentive to employers
to eliminate perfect attendance awards because of the inequity
perceived by coworkers of allowing employees who have taken FMLA leave
to receive these awards. The Department did not intend, nor does the
Act itself intend, that the FMLA regulations result in a reduction of
benefits to all employees.
Therefore, the Department proposes to eliminate the existing
language of current Sec. 825.215(c)(2) and replace it with the
following:
Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent
with the provisions of paragraph (c)(1) of this section. However, if
a bonus or other payment is based on the achievement of a specified
goal such as hours worked, products sold or perfect attendance, and
the employee has not met the goal due to FMLA leave, then the
payment may be denied, unless otherwise paid to employees on an
equivalent non-FMLA leave status. For example, if an employee who
used paid vacation leave for a non-FMLA purpose would receive the
payment, then the employee who used vacation leave for an FMLA-
protected purpose also must receive the payment.
The Department believes this proposed language better reflects the
requirements of the statutory scheme.
The Department has re-titled paragraphs (e) and (f) in the proposed
rule. The final sentence of the current section, which reminds
employers that putting an employee in a job slated for lay-off when the
employee's original position would not be eliminated would not meet the
definition of an equivalent position, has been moved to proposed Sec.
825.216(a)(1) where related issues are discussed, for organizational
and clarification purposes.
Section 825.216 (Limitations on an employee's right to reinstatement)
Current Sec. 825.216 addresses the limitations on an employee's
right to reinstatement. Specifically, current paragraph (a)(1)
addresses what happens when an employee is laid off or the employee's
shift is eliminated while the employee is on FMLA leave. Current
paragraph (b) addresses what happens when an employee taking FMLA leave
was only hired for a specific term or project. Current paragraph (c)
addresses limitations on reinstatement with regard to ``key
employees.'' Current paragraph (d) addresses rules governing the
interaction between FMLA leave and a workers' compensation absence when
the employee is unable to return to work at the end of the 12-week FMLA
leave period.
The Department's RFI generated a handful of comments regarding this
section. Several of the comments focused on the difficulty in providing
job restoration rights to individuals who take intermittent leave for
chronic serious health conditions. For example, FNG Human Resources
argued that an employer should have the right to replace employees who
``consistently use up to 11+ weeks of FMLA for year after year.'' One
commenter requested that the Department more clearly define the
employer's obligations should a layoff occur. A law firm asked that the
Department clarify the interaction between Sec. 825.216(a), which
``suggests that a seniority provision in a [collective bargaining
agreement] would not yield to the FMLA'', and Sec. 825.700, which, the
commenter indicated, suggests the opposite result.
The Department is not proposing any changes to this section to
address the use of intermittent leave for chronic serious health
conditions. Likewise, the Department believes the current regulatory
language in this section and current Sec. 825.700 adequately explains
the interaction between the job restoration provisions of FMLA and
collectively-bargained seniority provisions.
Minor changes have been made to this section for purposes of
greater clarity. The only change the Department proposes to current
paragraph (a)(1) is to incorporate the last sentence of Sec.
825.215(f) which, as discussed above, states that restoration to a job
slated for lay-off would not meet the requirements of an equivalent
position. This is proposed for organizational and clarification
purposes, but no substantive change is intended. Similarly, the
Department proposes to re-order current paragraph (b) as paragraph
(a)(3) for purposes of organizational structure and clarity. The
Department proposes a new paragraph (c) to address an employer's
obligations when an employee cannot return to work after FMLA leave is
exhausted because the serious health condition continues. This section
combines language from current Sec. Sec. 825.214(b) and 825.216(d),
because both sections address limitations on reinstatement when an
employee has exhausted his or her FMLA leave entitlement and is unable
to perform the essential functions of his or her job, but no
substantive changes are intended. The Department has not made any
changes to current paragraph (c) except to re-designate it as paragraph
(b). Current Sec. 825.312 (g) and (h), which address the fraudulent
use of FMLA leave and outside employment during FMLA leave,
respectively, and therefore also address limitations on reinstatement,
have been renumbered as proposed Sec. 825.216 (d) and (e) for
organizational purposes.
[[Page 7900]]
Sections 825.217 through 825.219 (Explanation of key employees and
their rights)
Taken together, current Sec. Sec. 825.217, 825.218 and 825.219
define the term ``key employee''; explain the meaning of the phrase
``substantial and grievous economic injury'' to the employer's
operations; and provide an explanation of the rights of a key employee.
A handful of comments received in response to the Department's RFI
requested that the Department allow employers greater flexibility to
designate ``key employees'', particularly in the safety industry. A law
firm representing employers also requested that the Department provide
guidance regarding the responsibility of a placement agency to provide
job restoration rights when the secondary employer refuses to reinstate
the individual because the position was ``mission-critical.''
The exemption for highly compensated employees is defined by
statute as applying only to a salaried eligible employee who is among
the highest paid 10 percent of the employees employed by the employer
within 75 miles of the facility at which the employee is employed. See
29 U.S.C. 2614(b)(2). While the Department understands that requiring
job restoration for some lower-paid positions in public safety and
other industries may cause ``substantial and grievous economic injury''
in particular situations or may cause hardship to the employer, the
Department believes that any revisions to address such situations would
require a change in the statute.
Minor changes to Sec. 825.217(b) have been made to update the
reference to the definition of ``salary basis'' as now contained in 29
CFR 541.602 (previously codified in 29 CFR 541.118) and to add
``computer employees'' to the list of employees who may qualify for
exemption from the minimum wage and overtime requirements of the FLSA
under those regulations if they meet certain duties and salary tests.
The Department did not receive any comments specific to Sec. Sec.
825.218 and 825.219 in response to the RFI and is not proposing any
changes to these provisions.
Section 825.220 (Protection for Employees Who Request Leave or
Otherwise Assert FMLA Rights)
Current Sec. 825.220 explains what actions taken by employers
constitute an interference with an employee's rights under the FMLA.
The Department proposes to change two provisions in this section, and
to clarify two other provisions.
First, the Department proposes new language to current paragraph
(b) that sets forth the remedy for interfering with an employee's
rights under the FMLA. While this language also has been included in
proposed Sec. 825.300, which deals specifically with employer notice
obligations, and proposed Sec. 825.301, which addresses what triggers
an employer's designation obligations, the Department believes it is
important that the general rule governing an employer's obligations
under the Act also provide guidance on the remedy for such violations.
First, numerous commenters to the RFI asked the Department to
strengthen or clarify the regulatory provisions implementing the Act's
prohibitions on interference and discrimination. 29 U.S.C. 2615(a)(1)
and (2). For example, the University of California, Hastings College of
Law, Center for Worklife Law requested that the Department ``clarify
that interference with an employee's right to take FMLA leave includes
not only withholding information but also deterring employees from
exercising their rights. * * *'' The Center for Worklife Law asserted
that ``employees returning from [FMLA] leave have been given poorer
quality assignments, been subjected to heightened scrutiny of their
work and received undeservedly negative evaluations.'' Similarly, the
law firm of Kennedy, Reeve & Knoll and several individual workers
asserted that some employers actively discourage the taking of FMLA
leave, especially intermittent leave, or penalize those employees who
take such leave.
Second, the Department also received comments about the language
contained in current Sec. 825.220(d) stating that where an employee
has voluntarily accepted a light duty position in lieu of taking FMLA
leave, the employee's right to restoration to the same or an equivalent
position is available until 12 weeks have passed within the 12-month
period, including all FMLA leave taken and the period of ``light
duty.'' The Department is aware that at least two courts have
interpreted this language to mean that an employee uses up his or her
twelve week FMLA leave entitlement while performing work in a light
duty assignment. See Roberts v. Owens-Illinois, Inc., 2004 WL 1087355
(S.D. Ind. 2004); Artis v. Palos Community Hospital, 2004 WL 2125414
(N.D. Ill. 2004). These holdings differ from the Department's
interpretation of the current regulation, as further expressed in a
1995 DOL opinion letter which states that an employee who voluntarily
accepts a light duty position:
retains rights under FMLA to job restoration to the same or an
equivalent position held prior to the start of the leave for a
cumulative period of up to 12 workweeks. This ``cumulative period''
would be measured by the time designated as FMLA leave for the
workers' compensation leave of absence and the time employed in a
light duty assignment. The period of time employed in a light duty
assignment cannot count, however, against the 12 weeks of FMLA
leave.
Wage and Hour Opinion Letter FMLA-55 (Mar. 10, 1995).
Numerous employers, and their representatives, urged the Department
to apply the current regulatory language to both voluntary and
mandatory light duty assignments. The National Association of
Convenience Stores, the U.S. Chamber of Commerce, the Society for Human
Resource Management, and others asked the Department to require that
employees accept light duty assignments, consistent with their medical
restrictions, in lieu of taking FMLA leave. The College and University
Professional Association for Human Resources stated that ``[i]n many
cases, light duty may be a better alternative than placing the employee
on leave, as it allows the employer greater flexibility in meeting its
staffing needs'' while the Society for Human Resource Management noted
that ``[e]xperience has shown that employees with minor injuries
generally recover more quickly if they are working, gradually returning
to their former capabilities.'' As an alternative, many employers
suggested that the Department revise the regulation to make clear that
light duty work counts against an employee's 12-week FMLA entitlement.
The American Bakers Association, the National Coalition to Protect
Family Leave, the National Business Group on Health, the Retail
Industry Leaders Association, the National Restaurant Association,
several management-side law firms, and individual employers and human
resource professionals urged the Department to rescind Opinion Letter
FMLA-55 and explicitly provide ``that time spent in light duty away
from the employee's usual job counts against the 12 weeks of FMLA
entitlement for all purposes.''
Other commenters, including the AFL-CIO, the Coalition of Labor
Union Women, Families USA, the Maine Department of Labor, and the
University of Michigan Center for the Education of Women, argued that
counting light duty work as FMLA leave is not appropriate. Some
employers, and organizations representing human resource professionals,
also shared this view. For
[[Page 7901]]
example, MedStar Health, Inc. stated that ``[w]hen an employee works,
even in an alternate light duty capacity, he/she is not absent under
the meaning of the FMLA.''
Some commenters, such as the National Partnership for Women &
Families, argued that the Department's current position, which counts
the time spent in a light duty position for purposes of job restoration
rights but not FMLA leave entitlement, struck the appropriate balance.
Still others, such as the University of California, Hastings College of
Law, Center for Worklife Law, expressed concern that counting light
duty work against an employee's FMLA leave entitlement or reinstatement
rights could negatively impact pregnant women. The National Retail
Federation suggested that light duty not count against FMLA leave,
unless the individual's medical restrictions required reduced hours, in
which case any reduction in normal work hours would count against the
individual's FMLA leave entitlement.
Upon further review, the Department believes that the current
regulatory language does not serve the Act's purpose to provide job
protection when FMLA leave is taken. Accordingly, the Department
proposes deleting the final sentence of current Sec. 825.220(d), which
states that job restoration rights are available until 12 weeks have
passed within the 12-month period including all FMLA leave taken and
the period of light duty. This change will ensure that employees retain
their right to reinstatement for a full 12 weeks of leave instead of
having the right diminished by the amount of time spent in a light duty
position. The Department also is not proposing to require employees to
accept light duty work in lieu of taking FMLA leave. If an employee is
voluntarily performing a light duty assignment and performing work, the
employee is not on FMLA leave and the employee should not be deprived
of future FMLA-qualifying leave when performing such work. By deleting
this language, the Department in no way intends to discourage employees
and employers from engaging in such light duty work arrangements.
Rather, the Department simply wishes to make clear that when an
employee is performing a light duty assignment, that employee's rights
to FMLA leave and to job restoration are not affected by such light
duty assignment. The Department invites comment on whether the deletion
of this language may negatively impact an employee's ability to return
to his or her original position from a voluntary light duty position.
Many RFI commenters asked that the Department clarify the language
in subsection (d) that states ``[e]mployees cannot waive, nor may
employers induce employees to waive, their rights under FMLA.'' Some
courts have disagreed as to whether this language prohibits only the
prospective waiver of FMLA rights, such as the right to 12 weeks of
leave, or also prohibits the retrospective settlement of FMLA claims
based on past employer conduct, such as through a settlement agreement.
Compare Taylor v. Progress Energy, 493 F.3d 454 (4th Cir. 2007),
petition for cert. filed, 75 U.S.L.W. 3226 (Oct. 22, 2007) (No. 07-539)
(Department's regulation prevents employees from independently settling
past claims for FMLA violations with employers without the approval of
the Department or a court) with Faris v. Williams WPC-I, Inc., 332 F.3d
316 (5th Cir. 2003) (plain reading of the Department's regulation is
that it prohibits prospective waiver of rights only and not retroactive
settlement of claims).
A majority of commenters to the RFI, including the Connecticut
Department of Labor, the Ohio Department of Administration, the
National Coalition to Protect Family Leave, the National Retail
Federation, the Association of Corporate Counsel, the United Parcel
Service, American Electric Power, and the University of California,
argued that Sec. 825.220(d) should be amended to explicitly allow
waivers and releases in connection with the settlement of FMLA claims,
that is, claims for past violations. Commenters supporting this view
stated that any interpretation preventing the waiver or release of past
claims unnecessarily encourages litigation and interferes with the
public policy favoring private resolution of disputes, is neither
practical nor efficient (particularly in a reduction-in-force), may
discourage companies from providing severance or separation packages,
and is not required by the statutory language, which contains no
indication that Congress intended to prevent such waivers. Many of
these commenters, such as the Connecticut Department of Labor, the
Indiana Chamber of Commerce, the Detroit Medical Center, Clark Hill
PLC, and the Human Resource Management Association of Southeastern
Wisconsin, suggested that the Department adopt minimum standards for
knowing and voluntary waivers, similar to those provided for under the
Age Discrimination in Employment Act of 1967, 29 U.S.C. 621, 626(f).
Other RFI commenters, such as the National Employment Lawyers
Association, urged the Department to prohibit both prospective and
retrospective waivers, stating that requiring Departmental or court
approval of voluntary settlements in no way jeopardizes the public
policy in favor of settlement and protects vulnerable workers who might
be induced to waive their FMLA rights rather than forfeit income.
The Department proposes to clarify the language in paragraph (d) in
light of the Fourth Circuit's decision in Taylor which held that
employees cannot voluntarily settle their past FMLA claims. The
Department disagrees with that reading of the regulations. As the
example in the current regulations reveals, this provision was intended
to apply only to the waiver of prospective rights. In the interest of
clarity, however, the Department proposes to make explicit in paragraph
(d) that employees and employers should be permitted to voluntarily
agree to the settlement of past claims without having to first obtain
the permission or approval of the Department or a court. The Department
does not believe this is a change in the law as it has never been the
Department's practice, since the enactment of the FMLA, to supervise
such voluntary settlements.
Section 825.300 (Employer Notice Requirements)
The Act imposes notice obligations on both employers and employees.
Current Sec. Sec. 825.300 and 825.301 outline employers'
responsibilities to notify employees of their FMLA rights. Several
additional notice requirements, such as notifying employees of their
FMLA eligibility and designation of their FMLA leave, also appear
elsewhere in current Sec. Sec. 825.110 and 825.208.
Current Sec. 825.300(a) addresses the statutory posting
requirement (see 29 U.S.C. 2619(a)). Under current Sec. 825.300(b), an
employer that willfully violates the posting requirement may be
assessed a civil money penalty not to exceed $100 for each separate
offense (see 29 U.S.C. 2619(b)). Where an employer's workforce is
comprised of a significant portion of workers who are not literate in
English, the employer is responsible for providing notice in a language
in which the employees are literate. See Sec. 825.300(c).
Current Sec. 825.301(b) requires the employer to provide the
employee with written notice detailing the specific expectations and
obligations of the employee and explaining the consequences of a
failure to meet these obligations. The written notice must be provided
in a language in which the employee is literate and must include, as
appropriate:
[[Page 7902]]
(i) That the leave will be counted against the employee's annual
FMLA leave entitlement (see Sec. 825.208);
(ii) Any requirements for the employee to furnish medical
certification of a serious health condition and the consequences of
failing to do so (see Sec. 825.305);
(iii) The employee's right to substitute paid leave and whether
the employer will require the substitution of paid leave, and the
conditions related to any substitution;
(iv) Any requirement for the employee to make any premium
payments to maintain health benefits and the arrangements for making
such payments (see Sec. 825.210), and the possible consequences of
failure to make such payments on a timely basis (i.e., the
circumstances under which coverage may lapse);
(v) Any requirement for the employee to present a fitness-for-
duty certificate to be restored to employment (see Sec. 825.310);
(vi) The employee's status as a ``key employee'' and the
potential consequence that restoration may be denied following FMLA
leave, explaining the conditions required for such denial (see Sec.
825.218);
(vii) The employee's right to restoration to the same or an
equivalent job upon return from leave (see Sec. Sec. 825.214 and
825.604); and
(viii) The employee's potential liability for payment of health
insurance premiums paid by the employer during the employee's unpaid
FMLA leave if the employee fails to return to work after taking FMLA
leave (see Sec. 825.213).
29 CFR 825.301(b)(1). The specific notice may include other
information--e.g., whether the employer will require periodic reports
of the employee's status and intent to return to work, but is not
required to do so (Sec. 825.301(b)(2)). The notice must be given
within a reasonable time after notice of the need for leave is given by
the employee-within one or two business days if feasible (Sec.
825.301(c)). The written notification to the employee that the leave
has been designated as FMLA leave may be in any form, including a
notation on the employee's pay stub (Sec. 825.208(b)(2)).
The Department noted in its RFI that one consistent concern
expressed by the employee representatives during stakeholder meetings
was that employees need to be better aware of their rights under the
FMLA. The RFI solicited public input on the effectiveness of these
various regulatory notice provisions in promoting communications
between employees and employers and on what more could be done to
improve the general state of awareness of FMLA rights and
responsibilities by both employees and employers. The Department sought
information in response to several questions concerning the notice
provisions and how those provisions relate to employee awareness of
their rights and responsibilities.
Increasing employee and employer awareness of FMLA rights and
responsibilities continues to be a challenge based on comments
submitted to the RFI. International Auto Processing, Inc., suggested
that employees may be unaware of their FMLA rights due to the timing of
when they receive information about FMLA: ``If employees continue to be
unaware of their FMLA rights, it may be because most employers will
cover this at orientation. On the first day of the job, new employees
are nervous and are overwhelmed with paperwork and work rules. Since
FMLA won't affect them until they have in the requisite 12 months with
the company, they may shove that information to the back burner.''
Some comments addressed the sufficiency of the information
provided. The United Transportation Union stated that the ``posting
requirements for employers under FMLA do not go far enough in that they
do not actively educate employees on their rights under FMLA. In
addition to posting FMLA basic facts as required by the regulation,
employers should be required to give the information to employees, in
writing, once they become eligible under the regulations with that
employer. Contact phone numbers for the employer as well as detailed
appeals process afforded to the employee should be provided, as well as
recourse information for possible retaliatory practices by the
employer.'' The International Association of Machinists and Aerospace
Workers recommended that ``employees should be expressly notified of
their right to take intermittent leave. * * * This has proven a real
problem for some of our members. * * * An employee who suffers from a
condition that is still being diagnosed, but doctors believe it is
either lupus, a connective tissue disorder or rheumatoid arthritis,
arrived late to work due to her condition on a number of occasions
[and] was completely unaware that she could take FMLA on an
intermittent basis. She thought if she took any FMLA leave, she would
have to stop working altogether, something her illness did not
necessitate and something she could not afford to do.''
The AFL-CIO urged the Department to consider ``requiring employers
to provide an individualized notice provision to employees on an annual
basis,'' and referred to another commenter who suggested requiring
notice to employees at the point of hiring and annually thereafter. The
Communications Workers of America reiterated that employees need to
receive guidelines that ``explain their annual leave entitlement and
the process for making application for FMLA leave.''
Proposed Revisions
The Department believes that a key component of making the FMLA a
success is effective communication between employees and employers. To
improve the process, the Department proposes to collect the notice
requirements into one comprehensive section that better captures the
appropriate communications that need to occur between an employer and
employee in the FMLA process. Specifically, the Department proposes to
combine components of current Sec. Sec. 825.300, 825.301, 825.208, and
825.110 into one comprehensive section addressing an employer's notice
obligations.
Proposed Sec. 825.300 is divided into separate paragraphs that
address the major topics of ``(a): [g]eneral notice''; ``(b):
[e]ligibility notice''; ``(c): [d]esignation notice''; and ``(d):
[c]onsequences of failing to provide notice''. The ``general notice''
requirement requires an employer to post a notice explaining the Act's
provisions and complaint filing procedures, and to provide this same
notice in employee handbooks or by distributing a copy annually. The
``eligibility notice'' provides notice to the employee that he or she
is an eligible employee under FMLA (as defined in Sec. 825.110), has
FMLA leave available, and has certain rights and responsibilities.
Within five business days of having obtained sufficient information to
determine whether the requested leave is being taken for a qualifying
reason, the employer must provide the employee with a notice regarding
designation of FMLA leave--referred to as the ``designation notice.''
The designation notice informs the employee whether the particular
leave requested will be designated as FMLA leave.
While the current regulations contain the ``provisional
designation'' concept, the Department believes that this process may
cause confusion over whether leave is protected prior to the actual
designation. In some cases, the leave may not eventually qualify for
the Act's protections. Thus, the Department's proposal restructures the
regulations to recognize that employers may not be able to designate
leave as FMLA covered until the employee provides additional
information. The Department specifically invites
[[Page 7903]]
comment on whether this proposal will effectively communicate the
required information to employees about their FMLA rights while
relieving some of the administrative burdens for employers under the
current process.
General Notice Requirements
Proposed Sec. 825.300(a) is a ``general notice requirement'' that
merges the poster/notice requirement contained in current Sec. 825.300
with the written guidance required in current Sec. 825.301(a).
Proposed Sec. 825.300(a)(1) maintains the statutory requirement that
every covered employer post and keep posted in conspicuous places on
its premises a notice providing information about the FMLA. Given the
growth of the Internet since the Department issued the 1995
regulations, however, as well as the practical realities that more and
more employees do not physically report to a central location, the
Department proposes that this posting requirement may be satisfied
through an electronic posting of the notice as long as it otherwise
meets the requirements of this section. To provide sufficient notice
required by the statute (see 29 U.S.C. 2619), the employer must make
sure that the information is accessible to applicants as well as
employees, so simply posting such information on an intranet that is
not accessible to applicants will not meet the requirements. Electronic
posting could be accomplished, for example, by posting the notice in a
conspicuous manner on the employer's Internet web-page inviting
applicants to apply if the employer accepts applications only through
the Internet. If the employer also accepts applications on-site,
however, the notice would have to be physically posted for applicants
to view on-site unless the employer had a computer kiosk available for
applicants to view the poster on-line. Similarly, in order for
electronic-only posting to provide sufficient notice to employees, all
employees must have access to company computers that post the
information in a conspicuous manner. For example, the company may make
computer kiosks available for use in employee lunch rooms. The
Department specifically seeks comment on whether this ``posting''
alternative is considered workable and will ensure that employees and
applicants obtain the required FMLA information.
Poster Civil Money Penalty
Section 109(b) of the FMLA (29 U.S.C. 2619(b)) provides that any
employer who willfully violates the Act's requirement to post the FMLA
notice as required by section 109(a) may be assessed a civil money
penalty (CMP) not to exceed $100 for each separate offense. This CMP
amount was set by the Congress as part of the original FMLA of 1993.
The regulations, at Sec. 825.300(b), currently provide for assessment
of a $100 penalty for willful violations of the posting requirement.
The Department proposes to increase the civil money penalty for
violation of this posting to $110.00 to meet requirements of the Debt
Collection Improvement Act of 1996 (Pub. L. 104-134, Title III, Sec.
31001(s)(1), Apr. 26, 1996, 110 Stat. 1321-373). The Debt Collection
Improvement Act amended the Federal Civil Penalties Inflation
Adjustment Act of 1990 (Public Law 101-410, Oct. 5, 1990, 104 Stat.
890) to require that Federal agencies issue regulations to adjust
certain CMPs for inflation. As amended, the law requires each agency to
initially adjust for inflation all covered CMPs, and to periodically
make further inflationary adjustments thereafter. The adjustment
prescribed in the amended Act is based on a cost-of-living formula
according to the percentage determined by the Department of Labor's
Consumer Price Index (CPI). The statute provides for rounding the
penalty increases. Once the percentage change in the CPI is calculated,
the amount of the adjustment is rounded according to a table in the
Federal Civil Penalties Inflation Adjustment Act, which is scaled based
on the dollar amount of the current penalty. For penalties less than or
equal to $100, the increase is rounded to the nearest multiple of $10.
The statute applies a cap, for the initial adjustment only, which
limits the amount of the first penalty increase to 10 percent of the
current penalty amount. Any increase under the Act applies
prospectively to violations that occur after the date the increase
takes effect in amendments to the regulations.
The amount by which the current CPI-U exceeds the CPI-U for June of
1993 is more than the statutory cap of 10 percent. Consequently, due to
inflation since this CMP amount was first established in 1993, the
adjustment permitted by law is limited to the maximum 10 percent
initial cap. It is proposed, therefore, to amend Sec. 825.300(a) to
provide for assessment of a penalty of $110 for willful violations of
the posting requirement.
Clarification of Covered Employer Responsibilities
For purposes of clarity, the Department proposes to separate out
into a new paragraph the language from existing Sec. 825.300(a) that
requires a covered employer to post the general notice to individual
employees even if no employees are eligible for FMLA leave. For
example, an employer may employ 60 employees located in all 50 states,
and no employee meets the eligibility requirement of working at a site
to which 50 or more employees report within 75 miles. See 29 U.S.C.
2611(2)(B)(ii) and 29 CFR 825.110. In such a case, an employer still
would have to comply with the posting requirement. This is a statutory
posting requirement, see 29 U.S.C. 2611(4) and 2619(a), although some
confusion exists on this point since it is not obvious that such a
notice is required when an employer does not have any eligible
employees. The Department aims to minimize such confusion by
highlighting this requirement in a separate section.
Proposed Sec. 825.300(a)(3) states that covered employers with
eligible employees also must distribute the general notice described in
proposed Sec. 825.300(a) either by including it in an employee
handbook or by distributing a copy to each employee at least once a
year, either in paper or electronic form. This provision incorporates
the existing notice distribution requirement found in current Sec.
825.301(a)(1), which requires an employer to place in an employee
handbook, if one exists, a notice of FMLA rights and responsibilities
and the employer's policies on the FMLA. Current Sec. 825.301(a)(2)
states that if an employer does not have a handbook, when an employee
gives specific notice of the need for leave, the employer must provide
written guidance to an employee concerning all the employee's rights
and obligations under the FMLA, and the DOL Fact Sheet can meet this
requirement. The information found in the DOL Fact Sheet mirrors, in
part, information contained in the poster.
To streamline the notice requirement currently found in Sec.
825.301(a)(1) and the posting requirement, the Department proposes that
one document containing identical information be both posted and
distributed, thereby satisfying the posting and distribution
requirement. The Department intends that this proposed change will more
effectively convey consistent, relevant information to employees.
Moreover, the Department's proposed prototype notice is revised to
provide employees more useful information on their FMLA rights and
responsibilities.
To further address the concern that employees are unaware of their
rights as explained above, the Department proposes that if the proposed
notice is not contained in an employee handbook, it must be distributed
annually, regardless of specific
[[Page 7904]]
employee requests for leave. This new frequency requirement exceeds
that of the current regulations, but the Department is responding to
the concern that employees may not be aware of their FMLA rights in
many cases, and the Department believes that this requirement will
promote increased awareness. In addition, the communication will be
more effective if the notice is provided routinely and annually rather
than only when an employee is facing a significant family event like
the birth or adoption of a child or a serious medical emergency
affecting the employee or a family member.
The Department's proposal does not require that a covered employer
with no eligible employees distribute the general notice, although the
employer would have to comply with this requirement even if it only has
one eligible employee. The Department specifically seeks comments on
all aspects of these proposed notice provisions.
Prototype General Notice
Proposed Sec. 825.300(a)(4) explains that the Department has
included a prototype notice in Appendix C for employers to use and that
copies will be available from Wage and Hour offices and from the
Department's Internet website. Consistent with current Sec. Sec.
825.300(c) and 825.301(b)(1), proposed Sec. 825.300(a)(4) requires
that an employer provide the poster and general notice to employees in
a language in which they are literate when the employer employs a
significant portion of employees who are not literate in English. The
Department intends to make such notices available in alternative
languages in accordance with the requirements of this section on the
Internet and through local Wage and Hour district offices. This section
also includes language from current Sec. 825.301(e) requiring notice
to sensory-impaired individuals as required under applicable Federal
and State law.
Eligibility Notice
Proposed Sec. 825.300(b) consolidates the notice provisions
contained in existing Sec. Sec. 825.110(d) and 825.301(b) into a
paragraph entitled ``eligibility notice.'' Consistent with current
Sec. 825.110, the employer continues to be responsible under proposed
paragraph (b)(1) of this section for communicating eligibility status.
As under the current regulations, the employer's obligation to notify
the employee of his or her eligibility to take FMLA leave (i.e.,
whether the employee has been employed for 12 months and has worked for
1,250 hours of service in the preceding 12 months) is not triggered
until the employee has provided the employer with at least verbal
notice sufficient to indicate that the employee needs FMLA-qualifying
leave. See Sec. Sec. 825.302 and 825.303. The proposed regulations
require that the eligibility notice be conveyed within five business
days after the employee either requests leave or the employer acquires
knowledge that the employee's leave may be for an FMLA-qualifying
reason. While this proposal is a change from the current timeframe of
two business days, the Department is responding to significant comments
noting that the two-day turnaround time is in practice very difficult
to meet, and the Department does not believe that extending this time
frame to five business days will compromise an employee's FMLA rights.
The Department specifically seeks comment on whether this timeframe
will both impart sufficient information to employees in a timely manner
and whether it is workable for employers.
Proposed paragraph (b)(2) of this section specifies what
information an employer must convey when communicating with the
employee as to eligibility status. While not required under the current
regulations, the proposal requires the employer to notify the employee
whether leave is still available in the applicable 12-month period. If
the employee is not eligible or has no FMLA leave available, then,
pursuant to proposed paragraph (b)(2), the notice must indicate the
reasons why the employee is not eligible or that the employee has no
FMLA leave available. For example, an employer might need to indicate
that an employee has not worked long enough to meet the 12-month
eligibility requirement.
The Department proposes these new notification requirements to
address the concern that employees are not aware of their rights. The
Department believes that a better understanding on the part of both
employees and employers as to their respective FMLA rights and
obligations will better ensure that employees who qualify for FMLA
leave obtain such leave. In proposing these new notice requirements,
the Department believes that the additional burden will be minimal,
since the employer is already required to calculate such information in
any case to determine eligibility in order to meet the requirements of
the statute.
If the employee is eligible for FMLA leave, then proposed paragraph
(b)(3) also requires, consistent with current Sec. 825.301(b), that
the employer inform the employee of the employee's rights and
responsibilities, such as any requirement to provide sufficient medical
certification, pay premiums for continuing benefits, and job
restoration rights upon expiration of FMLA leave. The Department
proposes to add language to clarify in Sec. 825.300(b)(3)(iii) when an
employer notifies an eligible employee of the right to substitute
employer-provided paid leave and the conditions related to any such
substitution that the employer also inform the employee that he/she may
take unpaid FMLA leave if the employee does not comply with the terms
and conditions of the employer's paid leave policies (see discussion
supra at Sec. 825.207). The Department also proposes to add language
to Sec. 825.300(b)(3)(v) indicating that employers should include a
statement of the employee's essential job functions with the
eligibility notice if they will require that those functions be
addressed in a fitness-for-duty certification.
The remainder of proposed Sec. 825.300(b) relies upon existing
language in current Sec. 825.301 with limited modifications.
Specifically, proposed Sec. 825.300(b)(4) adopts language from current
Sec. 825.301(b)(2), which provides that the eligibility notice may
include other information on an employee's rights and responsibilities
such as providing periodic reports of the employee's status and intent
to return to work. Consistent with language from current Sec.
825.301(c), proposed Sec. 825.300(b)(6) states that the eligibility
notice need not be provided more frequently than once every six months
unless the specific information in the notice changes. If leave has
already begun, the notice should be mailed to the employee's address of
record. Proposed Sec. 825.300(b)(7) states that if information
changes, the employer should provide notice to the employee of any
information that has changed within five business days, a change from
the current two-day requirement. The proposal also contains new
language stating that the employer should include the medical
certification form, if the employer requires such information, along
with the eligibility notice.
Consistent with the current regulations, proposed Sec.
825.300(b)(8) provides that if an employer requires medical
certification or a fitness-for-duty report, written notice of the
requirement shall be given with respect to each employee notice of a
need for leave, unless the employer communicates in writing to
employees that such information will always be required in connection
with certain
[[Page 7905]]
absences and then oral notice must still be given.
Proposed paragraph (b)(9) is unchanged from current Sec.
825.301(d) and provides that employers will responsively answer
employees' questions on their rights and responsibilities under FMLA.
Proposed paragraph (b)(10) provides that an optional prototype
eligibility notice is included in Appendix D. This proposed prototype
reflects changes in the proposed regulation. The Department also has
attempted to simplify the form for easier use and adaptability.
Designation Notice
Proposed Sec. 825.300(c) outlines the proposed requirements of the
designation notice an employer must provide to an employee, currently
located in Sec. 825.208(b). This proposed designation notice requires
that an employer notify the employee within five business days (a
change from the current requirement of two business days) that leave is
designated as FMLA leave once the employer has sufficient information
to make such a determination.
The RFI sought comments on whether the current two business day
time frame was adequate for employers to notify employees that their
request for FMLA leave has been approved or denied. The majority of
comments on this topic indicated that the current two-day time frame
was too restrictive. United Parcel Service commented, ``In most cases,
the initial notification of an absence or need for leave is received by
front-line management, who conveys the information up the chain of
command and to the local HR representative, who notifies the FMLA
administrator, who is ultimately responsible for making a
determination. It is not unusual for it to take one to two business
days just for the right personnel to receive the information, much less
make a determination and communicate it back to the employee.'' Courier
Corporation noted similarly, ``The two-day timeframe is way too short
for notifying employees about their leave request, since as employers
we are often chasing information from the employee or physician.''
Spencer Fane Britt & Browne LLP agreed: ``For most employers, this is
virtually impossible. Although most employers designate leave within a
reasonable time frame, it is usually well outside the two-day time
frame, thus creating a risk that the designation will be ineffective.''
Employers suggested varying timeframes to replace the two-day limit.
See, e.g., comments by Fisher & Phillips LLP (fifteen days from receipt
of a certification form); National Coalition to Protect Family Leave
(ten business days); Association of Corporate Counsel (five working
days); Courier Corporation (five days); United States Postal Service
(same); Northrop Grumman Newport News Shipbuilding and Dry Dock Company
(same).
International Auto Processing, Inc., stated that while some
decisions can be made in two days, even a week might not be sufficient
in other cases, depending upon the amount of information supplied by an
employee and whether clarification is needed from the health care
provider. Hinshaw & Culbertson LLP commented similarly that the two-day
time frame for providing notification to employees that FMLA leave has
been approved or denied is inadequate, ``as there are many factors
which result in delays in both obtaining information and processing
requests.''
In light of the comments received, the proposed rule requires the
employer to provide the employee notice of the designation of FMLA
leave within five business days of receiving sufficient information
from the employee to designate the leave as FMLA leave. The proposed
designation notice also contains an additional provision that expressly
requires the employer to inform the employee of the number of hours,
days or weeks, if possible, that will be designated as FMLA leave.
Although current Sec. 825.208(b)(1) requires employers to inform
employees that leave ``is designated and will be counted as FMLA
leave,'' it does not specifically require employers to provide
employees with information detailing the amount of leave so designated.
When an employee requests a block of foreseeable leave and provides
appropriate notice to the employer, it should be relatively
straightforward for the employer to provide the employee with the
amount of leave that will be designated as FMLA. However, to the extent
that future leave will be needed by the employee for a condition but
the exact amount of leave is unknown (as is often the case with
unforeseeable intermittent leave for a chronic serious health
condition), the employer must inform the employee every 30 days that
leave has been designated and protected under the FMLA and advise the
employee as to the amount so designated if the employee took leave
during the 30-day period. Currently, the regulations do not
specifically address designation of unforeseen, intermittent leave, and
the Department believes that it is important for employees to be aware
when such leave is designated as FMLA leave in a timely fashion.
Further, the proposed section contains a new requirement that an
employer notify the employee if the leave is not designated as FMLA
leave due to insufficient information or a non-qualifying reason.
As noted above, the Department proposes to change the timeframe in
which an employer must designate leave as FMLA leave from two business
days to five business days. As discussed above with respect to the
change in timeframe for providing the eligibility notice, the
Department believes this will result in more accurate notice given to
employees. Moreover, this change is proposed in concert with new notice
requirements that would require employers to provide employees with
more substantive information than that required under the current
regulations. The Department does not believe that these new information
requirements should be burdensome for employers since the employer will
already need to determine in any event whether or not the leave should
be designated and counted against the employee's 12-week FMLA leave
entitlement. The proposed requirement merely requires the employer to
expressly communicate this information to the employee. The Department
specifically seeks comment on whether these proposed revisions both
adequately protect employee rights and are workable for employers.
Neither the proposed nor current regulations mandate a specific format
for the written notice. The proposed paragraph (c)(2), consistent with
current Sec. 825.208(b)(2), indicates that this information may be
communicated on a pay stub.
Proposed Sec. 825.300(c)(3) improves the notices employers must
provide to employees. It explicitly permits an employer to provide an
employee with both the eligibility and designation notice at the same
time in cases where the employer has adequate information to designate
leave as FMLA leave when an employee requests the leave. This is an
acknowledgement that in some cases there will be no question that a
leave request qualifies as FMLA leave and the proposal encourages an
employer to designate the leave as soon as possible.
Section 825.300(c)(4) states that a prototype designation notice is
contained in Appendix E. This form is a new optional ``designation
notice'' that an employer can use to satisfy its obligation to notify
an employee that leave is being designated as FMLA leave because it is
being taken for a qualifying reason, as required by proposed Sec.
825.300(c)(1).
[[Page 7906]]
Remedy Provision
Proposed paragraph (d) has been added in light of Ragsdale, and
expands on current Sec. 825.301(f). Consistent with the Department's
discussion of proposed Sec. 825.301, the Department believes that the
U.S. Supreme Court's Ragsdale decision requires a remedy provision for
a notice violation that is tailored to individualized harm. Therefore,
as noted in the discussion of Sec. Sec. 825.110, 825.301, and 825.220,
the Department has added a provision explaining that failure to comply
with the notice requirements set forth in this section could result in
the interference with, restraint of, or denial of the use of FMLA
leave. If the employee is able to demonstrate harm as a result of the
employer's failure to provide notice of eligibility or designation of
FMLA leave as required, an employer may be liable for the harm suffered
as a result of the violation, such as lost compensation and benefits,
other monetary losses, and appropriate equitable or other relief,
including employment, reinstatement, or promotion.
Section 825.301 (Employer Designation of FMLA Leave)
The Department proposes to delete current Sec. 825.301, which
addresses employer notices to employees, because its requirements have
been incorporated into proposed Sec. 825.300 as discussed above.
Current Sec. 825.208 addressing designation of FMLA leave has been
moved to proposed Sec. 825.301. Current Sec. 825.208 explains under
what circumstances an employer can designate leave as FMLA leave.
Paragraph (a) of that section explains that it is the employer's
obligation to designate leave as FMLA leave. Paragraph (a)(1) of that
section explains that the employee has an obligation to provide the
employer with enough information to determine if the leave is
potentially FMLA-qualifying. Paragraph (a)(2) explains that the
employee need not specifically request FMLA leave, although if an
employee requests paid leave for an FMLA reason and the employer denies
the request, the employee must provide the employer with sufficient
information to make the determination that the leave is for an FMLA-
qualifying reason. Paragraph (a) also explains that if the employer
does not have sufficient information to designate paid leave as FMLA-
covered, the employer has an obligation to inquire further in order to
ascertain whether the paid leave is potentially covered by the FMLA.
Current paragraph (b)(1) of that section states that once an employer
has enough information that leave is taken for an FMLA-qualifying
reason, the employer must designate the leave as FMLA leave. Paragraph
(b)(2) explains that the designation may be oral or in writing and must
be confirmed in writing no later than the following payday. Current
paragraph (c) of that section provides that paid leave must be
designated as FMLA-covered leave within two business days of when the
employee gives notice of leave, or when the employer has sufficient
information to make such a determination if not available until later.
It also requires the employer to advise the employee if substitution of
paid leave will be required. The section also explains that if the
employer knows that paid leave is for an FMLA reason when the employee
advises of the need for leave or when the leave commences and does not
at that time designate (and notify the employee) that the leave is
being charged to the employee's FMLA leave entitlement, the leave may
not be designated as FMLA leave retroactively and may only be
designated as FMLA leave prospectively. In such case, none of the
absence preceding the notice to the employee of the designation may be
counted against the employee's 12-week FMLA leave entitlement, but
``the employee is subject to the full protections of the Act'' during
that period of absence.
Current paragraph (d) of that section explains the rules for
designating leave after leave has begun. Current paragraph (e) explains
that leave may not be retroactively designated except in limited
circumstances such as when a non-FMLA leave turns into an FMLA-
qualifying leave or when an employee has taken leave for a short
duration and only notifies the employer when the employee returns from
leave.
The proposed revisions maintain the basic requirement from current
Sec. 825.208 that employers designate qualifying leave as FMLA
promptly and notify employees of that designation. See the Department's
2007 Report on the RFI comments, Chapter V, Section D (72 FR at 35585).
The revisions, however, account for the Supreme Court's ruling in
Ragsdale prohibiting categorical penalties based on an employer's
failure to appropriately designate FMLA leave.
The Department also proposes a new paragraph (b) in this section
that specifically addresses employee responsibilities. The substance of
the language contained in current paragraph (a) of Sec. 825.208 that
addresses such responsibilities has been retained and moved to this new
section, but the proposal simplifies the language and mirrors changes
made to Sec. Sec. 825.302 and 825.303. The proposed paragraph cross-
references Sec. Sec. 825.302 and 825.303 that address what constitutes
sufficient information an employee must communicate to an employer when
needing FMLA leave, as further explained below. Proposed Sec.
825.301(b) also incorporates the substance of the provision in current
Sec. 825.208(a)(2) that an employee need not invoke the FMLA when
asserting rights under the Act. As a matter of clarification, the word
``unpaid'' is deleted, as these employee responsibilities apply whether
the leave is paid or unpaid. The proposed section also explains that
the consequences for an employee's failure to satisfy these
responsibilities may include delay as well as denial of FMLA leave.
The substance of current Sec. 825.208(b) has been moved to
proposed Sec. 825.300(c) that addresses the other notice obligations
of employers. As noted above, current Sec. 825.208(c) explains an
employer's designation obligations with regard to paid leave and the
consequences that apply when an employer fails to properly and timely
designate leave. In light of Ragsdale, the Department cannot prohibit
the retroactive designation of FMLA leave absent a showing of
individual harm. By the same token, the Department believes that it is
important that employers timely designate FMLA leave so that both
employees and employers are aware as to what employee rights attach
when a specific FMLA leave period is at issue. Indeed, in the preamble
accompanying the current regulations, the Department explained that
this section was intended to resolve the question of FMLA designation
as early as possible in the leave request process, to eliminate
protracted ``after the fact'' disputes. (60 FR at 2207) The Department
has received comments, however, that in certain cases, the prohibition
on retroactive designation actually may harm the employee.
The Department has reevaluated the original rationale for this rule
and still believes it is beneficial to both employees and employers to
know in advance, or at least as soon as possible, when leave is
considered FMLA-protected leave. Therefore, the Department proposes to
make clear that an employer has an obligation to timely designate leave
(within five business days, absent extenuating circumstances) as
proposed in Sec. 825.301(a). However, in light of Ragsdale and the
comments the Department has received, proposed paragraph (d) of this
section acknowledges that retroactive designation may occur, but that
if an employer fails to timely designate leave
[[Page 7907]]
as specified in Sec. 825.300 and paragraph (a) of this section, and if
an employee establishes that he or she has suffered harm as a result of
the employer's actions, a remedy may be available. The Department
provides examples in paragraph (e) to illustrate the type of
circumstance where an employee may or may not be able to show that harm
has occurred as a result of the employer's actions. In many cases where
an employee's own serious health condition is involved, the Department
believes it will be difficult to show harm as a result of the
employer's failure to timely designate FMLA leave, as the employee will
frequently be unable to delay or forgo the leave. Cf. Downey v.
Strain,--F.3d--, 2007 WL 4328487 (5th Cir. 2007) (finding employee was
harmed by employer's failure to designate leave as FMLA leave). On the
other hand, if an employee knows he or she would need the FMLA leave
later in the year for planned medical treatment, he or she may choose
to have another family member provide care for a child with a serious
health condition instead of taking leave at a certain point if the
employee knew that the time off would count against the employee's FMLA
entitlement. In addition, this proposal can benefit employees who did
not fulfill their FMLA notice obligations at the time of taking leave,
by allowing employers to retroactively designate leave to prevent
disciplinary action.
The last sentence in proposed paragraph (d) states that in all
cases where a leave is FMLA-qualifying, an employer and an employee can
mutually agree that leave be retroactively designated as FMLA leave.
Proposed paragraph (e), titled ``[r]emedies,'' mirrors the
statutory scheme and provides that failure to timely designate could
constitute an interference with, restraint of, or denial of, the
exercise of an employee's FMLA rights. Specifically, if the employee is
able to establish prejudice as a result of the employer's failure to
designate leave properly, an employer may be liable for compensation
and benefits lost by reason of the violation, for other monetary losses
sustained as a direct result of the violation, and for appropriate
equitable relief, including employment, reinstatement, promotion, or
any other relief tailored to the harm suffered. This language mirrors
the statutory remedies set forth in 29 U.S.C. 2617, as well as language
in the Ragsdale decision.
In light of proposed paragraphs (d) and (e) discussed above,
current paragraphs (d) and (e) of Sec. 825.208 discussing when leave
can be retroactively designated under the current regulations have been
deleted.
Section 825.302 (Employee Notice Requirements for Foreseeable FMLA
Leave)
Current Sec. 825.302(a) explains what notice an employee must give
an employer when the need for FMLA leave is foreseeable. The
requirement, as set forth in the statute, 29 U.S.C. 2612(e), is that an
employee must give at least 30 days' notice if the need for FMLA leave
is foreseeable. If 30 days' notice is not possible, the employee must
give notice ``as soon as practicable.'' The current regulations define
``as soon as practicable'' in Sec. 825.302(b) to mean ``as soon as
both possible and practical, taking into account all of the facts and
circumstances in the individual case.'' It further states that
``ordinarily'' as soon as practicable would mean ``at least verbal
notification to the employer within one or two business days of when
the need for leave becomes known to the employee.'' Current paragraph
(c) explains the form and content of notice an employee must provide
when taking leave and the obligations of employers to obtain follow-up
information when needed. Current paragraph (d) explains that an
employer can require an employee to comply with its usual and customary
notice procedures, but that an employer cannot disallow or delay leave
if such procedures are not followed if timely notice is given. Current
paragraph (e) explains that an employee has a duty to plan medical
treatment so as to not unduly disrupt an employer's operations; current
paragraph (f) explains an employee's notification obligations with
regard to intermittent leave; and current paragraph (g) explains that
while an employer can waive an employee's FMLA notice requirements, an
employer cannot require an employee to comply with stricter FMLA
requirements if a collective bargaining agreement, State law, or the
employer's leave policies allow less notice.
Timing of Notice
Proposed Sec. 825.302(a) retains both the current requirement that
an employee must give at least 30 days' notice when the need for FMLA
leave is foreseeable at least 30 days in advance, and the requirement
that notice be provided ``as soon as practicable'' if leave is
foreseeable but 30 days' notice is not practicable. The Department
further proposes to add that when an employee gives less than 30 days'
advance notice, the employee must respond to a request from the
employer and explain why it was not practicable to give 30 days'
notice.
The Department proposes to delete the second sentence of current
paragraph (b) of this section, which defines ``as soon as practicable''
as ``ordinarily * * * within one or two business days of when the need
for leave becomes known to the employee.'' While the ``one to two
business days' '' timeframe was intended as an illustrative outer
limit, Wage and Hour Opinion Letter FMLA-101 (Jan. 15, 1999), in
effect, mistakenly read the regulation as allowing employees two
business days from learning of their need for leave to provide notice
to their employers, regardless of whether it would have been
practicable to provide notice more quickly. In that letter, the
Department found that an absence policy that required employees to
report their absences within one hour after the start of their shift,
unless they were unable to do so due to circumstances beyond their
control, was contrary to the FMLA's notice procedures. The Department
provided the following example of the employee's notice obligation:
For example, an employee receives notice on Monday that his/her
therapy session for a seriously injured back, which normally is
scheduled for Fridays, must be rescheduled for Thursday. If the
employee failed to provide the employer notice of this scheduling
change by close of business Wednesday (as would be required under
FMLA's two-day notification rule), the employer could take an
adverse action against the employee for failure to provide timely
notice under the company's attendance policy.
Comments received in response to the RFI indicated that the ``two-day
rule'' has created significant problems for employers in maintaining
appropriate staffing levels. See, e.g., Southwest Airlines Co. (``[T]he
DOL's informal two-day notice practice is an arbitrary standard that
fails to recognize an employer's legitimate operational need for timely
notice and that contradicts with an employee's statutory duty to
provide such notice as is practicable.''); National Coalition to
Protect Family Leave (``The phrase `as much notice as is practicable'
is not well-defined. The current phrase puts employers in the difficult
position of having to approve leaves where questionable notice has been
given. The current regulatory definition--within one or two business
days--has been applied by the Department to both foreseeable and
unforeseeable leaves, and to protect employees who provide notice
within two days, even if notice could have been
[[Page 7908]]
provided sooner under the particular facts and circumstances.'').
The Department is aware that timely notice of an employee's need
for FMLA leave is critical to the balance struck in the Act between the
employee's ability ``to take reasonable leave for medical reasons, for
the birth or adoption of a child, and for the care of a child, spouse,
or parent who has a serious health condition'' and ``the legitimate
interests of employers.'' 29 U.S.C. 2601(b). Absent emergency
situations, where an employee becomes aware of a need for FMLA leave
less than 30 days in advance, the Department expects that it will be
practicable for the employee to provide notice of the need for leave
either the same day (if the employee becomes aware of the need for
leave during work hours) or the next business day (if the employee
becomes aware of the need for leave after work hours). Accordingly, the
Department proposes to add examples to proposed paragraph (b)
clarifying the employee's obligation to provide notice ``as soon as
practicable.''
Content of Notice
Many commenters responding to the RFI identified issues relating to
the sufficiency of the information provided by employees when notifying
their employers of the need for FMLA leave, which is addressed in
current Sec. 825.302(c). For example, the National Coalition To
Protect Family Leave stated that ``employees who call in because of
their own or a family member's medical condition do not necessarily
provide sufficient information for an employer to [determine whether
the leave qualifies for FMLA protection]. Since what constitutes
`sufficient' information is not clearly defined anywhere in the
regulations, both employees and employers face difficulties in meeting
their rights and responsibilities under the FMLA.'' Jackson Lewis LLP
similarly noted that employers sometimes have difficulty in identifying
FMLA-qualifying absences: ``Employers are not `mind readers' and they
often refrain from asking employees why they are absent for fear that
they may invade an employee's medical privacy. It is also n[auml]ive to
think that employers can effectively train front line supervisors on
the myriad of health conditions and personal family emergencies that
might qualify for FMLA protection.''
A number of commenters offered suggestions for how the Department
could clarify what information constitutes sufficient notice. Some
commenters suggested that an employee's leave request should have to be
in writing, or that the request should have to specifically mention the
FMLA. See, e.g., Edison Electric Institute, Miles & Stockbridge, P.C.,
Pierce County, Washington, Spencer Fane Britt & Browne LLP, and DST
Systems, Inc. The South Central Human Resource Management Association
suggested:
It would eliminate many disputes if an employee were required to
request leave in writing or to follow up an oral request with a
written request within a reasonable time (such as within two work
days after returning to work in the case of intermittent leave, or
five work days after requesting leave in the event of unforeseen
continuous leave). * * * It would help both parties immensely if the
employee were required to mention the FMLA when making such a
request.
Other stakeholders expressed a desire for more information from
employees, but stopped short of suggesting a requirement that the
employee must specifically ask for FMLA leave. The Williams Mullen law
firm suggested that the Department should implement detailed
regulations that provide necessary language or actions that must be
taken by employees to put their employers on notice of their intent to
take FMLA leave. The U.S. Chamber of Commerce suggested that employees
should be required to specify the purpose of any instance of FMLA
leave, such as a doctor's appointment, physical treatment, etc., so
that employers can assess veracity when employees appear to be abusing
the leave policy. The Association of Corporate Counsel proposed that
the DOL should revise the regulations to make clear that an employee's
notice to the employer must go beyond merely requesting leave and must
provide a basis for the employer to conclude that the requested leave
is covered by the FMLA.
One reason employees may provide less notice than employers want
may be employees' lack of awareness of their rights and obligations. As
noted above, numerous commenters to the RFI emphasized that employees
remain unaware of their rights under the FMLA. See comments by National
Partnership for Women & Families, Madison Gas and Electric Company,
Legal Aid Society-Employer Law Center. As the AARP commented, even
employees who have some general awareness of the law do not know the
details of the law or whether it applies to them. These commenters also
noted that employers fail to provide employees with effective
information about their rights.
In light of these comments, the Department proposes to retain in
Sec. 825.302(c) the standard that an employee need not assert his or
her rights under the FMLA or even mention the FMLA to put the employer
on notice of the need for FMLA leave, but at the same time employees
must provide sufficient information to make an employer aware that FMLA
rights may be at issue. The Department proposes to clarify that
sufficient information must indicate that the employee is unable to
perform the functions of the job (or that a covered family member is
unable to participate in regular daily activities), the anticipated
duration of the absence, and whether the employee (or family member)
intends to visit a health care provider or is receiving continuing
treatment.
The Department believes that this proposal will provide employers
with the information necessary to determine whether absences may be
covered by the FMLA, without being overly prescriptive in the wording
that an employee must use to request leave. The proposal will also
facilitate the early identification of potentially FMLA-protected
absences. Finally, the increased specificity in the proposed rule will
protect employees from losing FMLA rights by inadvertently failing to
put the employer on notice of the need for FMLA leave. The Department
also proposes to include such information in the general notice that
employers are required to post and either to provide in an employee
handbook or distribute at least annually, as specified in proposed
Sec. 825.300(a), to ensure that employees are aware of the information
they must provide.
This proposed section continues to require employers to inquire
further if they need additional information in order to obtain the
necessary details about the leave. The proposed rule also states that
employees must respond to employers' inquiries designed to determine
whether leave is FMLA-qualifying or risk losing FMLA protection if the
employer is unable to determine whether the leave qualifies.
The Department seeks comment as to whether a different notice
standard requiring employees to expressly assert their FMLA rights
should apply in situations in which an employee has previously provided
sufficient notice of a serious health condition necessitating leave and
is subsequently providing notice of dates of leave due to the condition
that were either previously unknown or changed. For example, where an
employee has taken two weeks of FMLA leave for surgery and recovery,
and then learns that he or she will need to undergo physical therapy
once a week for four to six weeks upon returning to work, should the
employee be required to specifically notify the
[[Page 7909]]
employer that the additional leave is due to the FMLA-covered
condition?
Usual and Customary Employer Procedures
A number of commenters responding to the RFI also addressed the
provisions in Sec. 825.302(d) regarding compliance with employers'
usual and customary notice procedures for requesting leave. Many
employers specifically asserted that call-in procedures, which are
enforced routinely outside the FMLA context, can serve as a crucial
element of an attendance program and are often critical to an
employer's ability to ensure appropriate staffing levels. In discussing
the effect call-in requirements have on State agencies in particular,
the Ohio Department of Administrative Services commented that such
procedures are especially critical in institutional agencies that
provide direct care and supervision of inmates or patients. A number of
commenters urged reforming the regulations to allow employers to
enforce attendance policies that require employees to observe
reasonable call-in procedures, including policies that require
employees to call in to their direct supervisors or to a designated
person in human resources, and to allow a penalty for noncompliance.
See, e.g., comments by American Electric Power, Ohio Public Employer
Relations Association, and National Association of Convenience Stores.
The University of Wisconsin-Milwaukee stated that requiring employees
to comply with regular attendance policies unless there is a medical
emergency would be helpful, because the simple need for FMLA leave does
not mean that regular notification is impossible.
In response to these comments, the proposed revision of Sec.
825.302(d) retains the current rule providing that an employer may
require an employee to comply with the employer's usual notice and
procedural requirements for calling in absences and requesting leave.
However, the Department proposes to eliminate the current language
stating that an employer cannot delay or deny FMLA leave if an employee
fails to follow such procedures. The combination of requiring employees
to comply with employer absence policies, yet prohibiting employers
from delaying or denying leave if such procedures are not met in the
current regulation, has proved confusing. This confusion has been
exacerbated by language in the preamble accompanying the current rule
stating that while employers may not delay or deny FMLA leave for
failure to follow absence policies, they may ``take appropriate
disciplinary action.'' 60 FR at 2221. Cases addressing various types of
employee call-in procedures, including employer requirements that
employees report absences to specific individuals or offices and that
they keep employers updated regarding their need for leave, have
analyzed the issue differently. Compare, e.g., Bones v. Honeywell Int'l
Inc., 366 F.3d 869, 878 (10th Cir. 2004) (``[Employee's] request for an
FMLA leave does not shelter her from the obligation, which is the same
as that of any other Honeywell employee, to comply with Honeywell's
employment policies, including its absence policy.''); Cavin v. Honda
of America Mfg., Inc., 346 F.3d 713, 723 (6th Cir. 2003) (``[E]mployers
cannot deny FMLA relief for failure to comply with their internal
notice requirements [to call a specified department].''); Lewis v.
Holsum of Fort Wayne, Inc., 278 F.3d 706, 710 (7th Cir. 2002) (failure
to follow three-day no-call rule legitimate basis for termination and
did not violate FMLA); Gilliam v. UPS, 233 F.3d 969 (7th Cir. 2000)
(upholding application of three-day no-call rule).
Accordingly, the Department proposes that, absent unusual
circumstances, employees may be required to follow established call-in
procedures (except one that imposes a more stringent timing requirement
than the regulations provide), and failure to properly notify employers
of absences may cause a delay or denial of FMLA protections (as
explained in Sec. 825.304). Unusual circumstances would include
situations such as when an employee is hospitalized and his/her spouse
calls the supervisor to report the absence, unaware that the attendance
policy requires that the human resources department be called instead
of the supervisor. However, FMLA-protected leave cannot be delayed or
denied for failure to meet the employer's timing standard where the
standard is more stringent than those established in Sec. 825.302(a).
This proposed revision of Sec. 825.302(d) recognizes that call-in
procedures are necessary for employers to provide proper coverage to
run their businesses. The proposal also benefits employees by ensuring
early identification and protection of absences covered by the FMLA.
Where FMLA protection is appropriately delayed because the employee
did not provide timely notice of the need for leave, and the employee
has an absence during the period in which he/she accordingly is not
entitled to FMLA protection, that absence is unprotected and can be
treated in the same manner the employer would treat any other unexcused
absence. This is a clarification of the ramifications of failing to
provide timely notice, and not a change in current law. For example, if
an employee could have provided two weeks notice of a doctor's
appointment for treatment of a serious health condition, but instead
provides only one week's notice of the appointment, the employer may
delay FMLA-protected leave for one week (i.e., if the employee could
have provided notice on the 7th day of the month of an appointment on
the 21st day, but instead only provides notice on the 14th day, the
employer may delay FMLA leave until the 28th day (two weeks after the
notice was provided)). If the employee does not delay the taking of the
leave, the absence will be unprotected and the employer can treat the
absence in the same manner as any unexcused absence (i.e., if the
employee in the example above is absent on the 21st day, instead of
delaying the absence until the notice period is met, the employer may
treat the absence as an unexcused absence under its normal leave
policies). Alternatively, the employer would have the option of
accepting the employee's late notice and counting the leave against the
employee's FMLA entitlement. See Sec. 825.302(g).
Proposed Sec. 825.302(g) retains language stating that employers
may waive employees' FMLA notice requirements. The Department proposes
to delete language, however, stating that employers cannot enforce FMLA
notice requirements if those requirements are stricter than the terms
of a collective bargaining agreement, State law or employer leave
policy. The example provided in current Sec. 825.302(g) of an employee
substituting paid vacation leave and the employer not being able to
require notice from the employee under the FMLA because the vacation
leave policy does not require advance notice has proved confusing
because it is inconsistent with the employer's right to require notice
under the FMLA. Accordingly, this language has been deleted. Sections
825.700 and 825.701 address in more detail the interaction between the
FMLA and the provisions of collective bargaining agreements, State law,
and employer policies.
Section 825.303 (Employee notice requirements for unforeseeable FMLA
leave)
Current Sec. 825.303 explains what notice an employee must give in
the case of unforeseeable leave. Specifically, current paragraph (a)
explains the ``as soon as practicable'' required timing of the notice,
and current paragraph (b) sets forth the method by which notice can be
given. The Department has heard from numerous employers that the
[[Page 7910]]
taking of unforeseeable leave is central to the administrative problems
they experience with the FMLA, and the SHRM FMLA Survey revealed that
in its members' experiences, 60 percent of all FMLA leave is
unforeseeable leave. Indeed, the significant number of cases that have
been litigated as to what constitutes sufficient notice from an
employee in the case of unforeseeable leave confirms the difficulties
both employers and employees experience under the current regulation.
See Spangler v. Federal Home Loan Bank, 278 F.3d 847, 852 (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''); Gay v. Gilman Paper Co., 125
F.3d 1432, 1434-35 (11th Cir. 1997) (husband calling for employee and
indicating wife in the hospital having some tests run was not
sufficient notice); Carter v. Ford Motor Co., 121 F.3d 1146, 1148-49
(8th Cir. 1997) (employee's wife calling and indicating he would be out
because of family problems did not provide sufficient notice); Barr v.
New York City Transit Auth., 2002 WL 257823, at *7-8 (E.D.N.Y. 2002)
(employee calling in sick reporting ``swelling and tightness'' in legs
and follow-up doctor's note indicating swelling in legs and rapid heart
beat provided sufficient notice); Mora v. Chem-Tronics, Inc., 16 F.
Supp. 2d 1192, 1216-17 (S.D. Cal. 1998) (invalidating call-in rule
requiring employees to call in 30 minutes prior to shift in all
circumstances); Hendry v. GTE North, Inc., 896 F. Supp. 816, 828 (N.D.
Ind. 1995) (employee calling in ill with a migraine headache provided
sufficient notice).
Employers and their representatives also mentioned the timing of
employee notification of the need for unforeseeable intermittent leave
as a particular problem in their administration of the FMLA. For
example, Spokane County commented that it is often not notified that an
employee is out for a serious health condition until after the employee
returns to work. The Pennsylvania Turnpike Commission stated:
The issue of [employees] failing to notify their supervisors
promptly that they are taking FMLA leave is very prevalent in our
company. Some employees that are approved for intermittent FMLA
simply don't show up for work, and then email or call their
supervisor when the work day is almost over to inform them that they
are taking FMLA. This is extremely frustrating as an employer, and
there does not ever seem to be a valid reason that the employee
could not notify the supervisor earlier.
Numerous other employer commenters asserted that the ``two day
rule'' interpreted in Wage and Hour Opinion Letter FMLA-101 (see
discussion in Sec. 825.302) is even more unworkable in the context of
unforeseen FMLA leave because the employee is not required to report
the absence prior to the start of his/her shift even where it is
practicable to do so. See, e.g., Southwest Airlines Co. (the two-day
rule allows employees to remain silent when they have the knowledge and
ability to give timely notice, and it ``fails to recognize an
employer's legitimate operational need for timely notice''); National
Association of Manufacturers (employees taking ``unscheduled
intermittent leave routinely ignore mandatory shift call-in procedures
(even if they are fully able to comply), wait two working days * * *
and then report their absence as FMLA-qualifying'').
The National Partnership for Women & Families and other employee
advocates agreed that employees should notify their employers about
their need for leave as quickly as is reasonably possible, but asserted
that it also is important to ensure that employees are not penalized
unfairly when confronted with unexpected emergencies. The Center for
WorkLife Law similarly noted that for ``working caregivers with a
seriously ill child or family member, medical emergencies are a way of
life. Intermittent FMLA leave allows these employees to be available to
their families when they are needed most without the stress of losing
their jobs.'' The Legal Aid Society's Employment Law Center noted that
chronic illnesses are devastating and wreak havoc on employees' lives
also, and that the FMLA was specifically designed to cover such
episodic absences. The AFL-CIO and the Association of Professional
Flight Attendants emphasized that employees who experience
unforeseeable absences due to chronic conditions are precisely those
most in need of the FMLA's protections, because their jobs are more in
jeopardy than those of employees who suffer from a longer illness only
once every two or three years. In explaining the difficulties for
employees who live with unforeseeable health conditions, an employee
described her personal experiences with her daughter's chronic serious
health condition:
My daughter had a major asthma attack which caused a bronchial
infection, swelling and bacteria in her throat. * * * No one is
capable of predicting an[ ] asthma attack or the severity of the
attack; I just would like the assurance of knowing that if or when
the situation should arise, I have the time off required to handle
her needs without the threat of being * * * terminated.
In light of the apparent confusion with regard to timing and
sufficiency of the required notice, and the critically important nature
of this topic, the Department proposes to further clarify what
constitutes timely and sufficient notice when the need for leave is not
foreseeable.
Timing of Notice When ``Not Foreseeable''
In the case of unforeseeable leave, the Department proposes to
maintain the requirement that an employee provide notice as soon as
practicable under the facts and circumstances of the particular case.
While this is the same standard as notice for FMLA leave that is
foreseeable less than 30 days in advance, the Department is aware that
the employer's need for prompt notice of the need for leave is
heightened in situations in which the need for leave is not
foreseeable. It is critical in such situations that the employer be
notified of the employee's absence promptly so that the employer can
assure appropriate staffing. Accordingly, the Department expects that
in all but the most extraordinary circumstances, employees will be able
to provide notice to their employers of the need for leave at least
prior to the start of their shift.
To emphasize the importance of notice when the need for FMLA leave
was unforeseen, the Department proposes to add language to Sec.
825.302(a) to clarify that it is expected employees will provide notice
to their employers promptly. For example, if an employee's child has a
severe asthma attack and the employee takes the child to the emergency
room, the employee would not be required to leave his/her child in
order to report the absence while the child is receiving emergency
treatment; once the child's medical situation has stabilized, the
employee can be expected to report the absence. However, if the child's
asthma attack is resolved by the use of an inhaler at home followed by
a period of rest, the employee would be expected to call the employer
promptly after ensuring the child has used the inhaler. The Department
believes that this proposal better balances the needs of employees to
take unforeseeable FMLA leave with the interests of employers and other
employees.
Content of Notice When ``Not Foreseeable''
In proposed paragraph (b), the Department retains the standard that
an employee need not assert his or her rights under the FMLA or even
mention
[[Page 7911]]
the FMLA to put the employer on notice of the need for FMLA leave.
However, consistent with the proposed changes discussed above with
respect to Sec. 825.302, the Department proposes to require that the
employee provide the employer with sufficient information to put the
employer on notice that the absence may be FMLA-protected. See
Sarnowski v. Air Brook Limousine, Inc., F.3d--, 2007 WL 4323259, at *3
(3rd Cir. 2007) (``In providing notice, the employee need not use any
magic words. The critical question is how the information conveyed to
the employer is reasonably interpreted.''). Sufficient information is
defined in the same manner as proposed Sec. 825.302(c), which is
information that indicates that the employee is unable to perform the
functions of the job, the anticipated duration of the absence, and
whether the employee intends to visit a health care provider. In
addition, because issues are frequently raised with employees giving
notice of unforeseen absences by simply calling in ``sick,'' proposed
Sec. 825.303(b) clarifies that calling in with the simple statement
that the employee or the employee's family member is ``sick'' without
providing more information will not be considered sufficient notice to
trigger an employer's obligations under the Act in the case of
unforeseeable leave. Of course, many unforeseeable conditions do
develop and deteriorate over a period of a few days, and a condition
that did not initially appear to be a serious health condition may
develop into one. The employee would be expected to provide the
employer the additional information needed to determine if the serious
health condition standard is met as it became available.
The Department seeks comment as to whether a different notice
standard requiring employees to expressly assert their FMLA rights
should apply in situations in which an employee has previously provided
sufficient notice of a serious health condition necessitating leave and
is subsequently providing notice of dates of leave due to the condition
that were either previously unknown or changed.
Complying With Employer Policy When ``Not Foreseeable''
Proposed Sec. 825.303(c) clarifies that an employee must comply
with the employer's usual procedures for calling in and requesting
unforeseeable leave, except when extraordinary circumstances exist (or
the procedure imposes a more stringent timing requirement than the
regulations provide), such as when the employee or a family member
needs emergency medical treatment. For example, an employee who seeks
emergency treatment at a hospital may not be able to comply with the
employer's absence reporting procedures if the employee does not have
the telephone number for reporting absences with him or her and
therefore leaves a message on the supervisor's voicemail (the employee
may also be unable to comply with the employer's timing requirements
due to the emergency treatment). In contrast, an employee who suffers a
flare-up of a chronic condition for which rest and self-medication are
the appropriate treatment should be able to comply with the employer's
normal absence reporting procedure.
If an employee fails to follow the employer's call-in procedures
(assuming any required timing is not more stringent than required by
Sec. 825.303(a)), except under extraordinary circumstances, then the
employee is subject to whatever discipline the employer's rules provide
for such a failure and the employer may delay FMLA coverage until the
employee complies with the rules. For example, an employer requires
that workers needing unscheduled leave call a designated call-in number
instead of leaving a message on the supervisor's voicemail. An employee
with a medical certification under FMLA for migraines leaves a message
on the supervisor's voicemail indicating that the employee will be
absent due to a migraine. Unless some extraordinary circumstance
prevented the employee from complying with the employer's requirement
that the employee call the designated call-in number, the employer may
treat the employee's failure to comply with the call-in rule in the
same manner it would normally handle such an infraction. The employer
may also delay FMLA protected leave until the employee complies with
the call-in procedure. Of course, if the employer chooses to delay the
employee's FMLA leave until the employee complies with the call-in
procedure, any leave that is not FMLA protected may not be counted
against the employee's FMLA entitlement.
Proposed Sec. 825.303(c) also contains language from current Sec.
825.303(a) stating that employers may not enforce advance written
notice requirements where the leave is due to a medical emergency.
Section 825.304 (Employee failure to provide notice)
Current Sec. 825.304 addresses what employers may do if an
employee fails to provide the required notice for FMLA leave.
Specifically, current paragraph (a) states that an employer may waive
FMLA notice obligations or its own internal rules. Current paragraph
(b) explains that if 30 days notice is not provided to the employer for
foreseeable leave, an employer may delay the taking of FMLA leave for
30 days after the date notice is given if no reasonable excuse is
provided. Current paragraph (c) states that leave cannot be delayed if
the employee was not aware of his or her notice requirements or the
need for leave and its timing were not clearly foreseeable to the
employee 30 days in advance.
The proposal states the rules applicable to leave foreseeable at
least 30 days in advance, foreseeable less than 30 days in advance, and
unforeseeable in different paragraphs for purposes of clarity.
Specifically, the Department proposes language that provides practical
examples of what it means to delay FMLA leave in cases of both
foreseeable and unforeseeable leave, such as a case where an employee
reasonably should have given the employer two weeks notice but instead
only provided one week notice. The proposal provides that in such a
case, the employer may delay FMLA protected leave for one week. The
proposal also provides that an employer can take disciplinary action
for the employee's violation of the employer's internal call-in
procedures, as long as such procedures and discipline are applied
equally to employees taking leave for non-FMLA reasons and the
procedures do not require more advance notice than the standard in
Sec. 825.303.
Finally, the Department proposes to retain language from current
paragraph (c) stating that FMLA leave cannot be delayed due to lack of
required notice if the employer has not complied with its notice
requirements, which now will also include providing the general notice
in an employee handbook or annual distribution, as set forth in
proposed Sec. 825.300.
Section 825.305 (Medical certification, general rule)
Current Sec. 825.305(a) sets forth the general rule as to when an
employer may request that an employee provide a medical certification
form to substantiate the need for FMLA leave in connection with a
serious health condition.
Current Sec. 825.305(b) states that when leave is foreseeable and
at least 30 (calendar) days notice has been given, ``the employee
should provide the medical certification before the leave begins.'' If
that is not possible, then the employer must give the employee at least
15 calendar days to provide the certification, unless it is not
practicable
[[Page 7912]]
to do so despite the employee's diligent, good-faith efforts.
To help ensure that both employees and employers better understand
this requirement, the Department proposes that the time-frame in this
section for submitting a medical certification be modified to clearly
apply the 15-day standard for both foreseeable and unforeseeable leave,
consistent with the language in current Sec. 825.311(a) and (b).
The Department solicits comments on whether language should be
added to paragraph (b) of this section that would state that an
employer must notify the employee if the certification has not been
returned in the 15-day time period, and give the employee another seven
calendar days to provide the certification unless it is not practicable
under the particular circumstances to do so despite the employee's
diligent, good faith efforts. The Department believes that this
proposed requirement may be necessary in light of Urban v. Dolgencorp
of Texas, Inc., 393 F.3d 572 (5th Cir. 2004), a decision which found an
employee was not entitled to FMLA leave because a certification was not
returned to the employer after a 15-day extension was granted to the
employee to submit the certification. In Urban, the employee argued
that she did not realize that her health care provider had not returned
the certification to the employer. She argued that since it was not
sent to her employer, she provided an ``incomplete'' certification, and
therefore should have had an opportunity to `cure' the deficiency under
Sec. 825.305(d). The court rejected this argument, finding that a
certification that was never given to the employer was not
``incomplete,'' and therefore the employee could not avail herself of
the provisions in Sec. 825.305(d). The court also observed that, as a
policy matter, the stated purpose of the FMLA was to ``balance the
demands of the workplace with the needs of families'' and ``to entitle
employees to take reasonable leave for medical reasons'' in a ``manner
that accommodates the legitimate interests of employers.'' The court
reasoned that ``it would seem illogical to require an employer to
continually notify an employee who failed to submit medical
certification within a specified deadline,'' observing that in the case
of Urban, a 15-day extension had already been granted. Id. at 577.
Current Sec. 825.305(c) provides that an employer should request
medical certification from the employee within two business days of
receiving the employee notice. Consistent with the modifications made
to proposed Sec. 825.300, the Department proposes a five-business day
standard and the requirement has been incorporated into proposed
paragraph (b).
The Department proposes to create a new paragraph (c) entitled
``complete and sufficient certification,'' incorporated in part from
paragraph (d) of the current regulation. The Department has retained
the standard from the current regulations, which advises employers that
in the case of an incomplete certification, they must give the employee
a reasonable period of time to cure any deficiency. The Department
proposes new language that states ``a certification is considered
incomplete if the employer receives a certification, but one or more of
the applicable entries have not been completed.'' In response to the
RFI, many commenters, including employers, employees, and health care
providers, expressed dissatisfaction with the current medical
certification process. The Department held a stakeholder meeting with
representatives of each of these groups in September 2007. Multiple
employers commented to the RFI that a certification should require not
just that the form is completed, but that meaningful responses are
given to the questions. See, e.g., National Coalition To Protect Family
Leave (``If health care providers * * * do not provide direct responses
to the questions, the regulations should be modified to specify that
the certification is not considered `complete' for purposes of the
employee's certification obligations, thereby not qualifying the
employee for FMLA leave.''); South Central Human Resource Management
Association (``We recommend the Regulations make clear that a
`complete' certification is required, that meaningful answers have to
be furnished for all questions, and that a certification is
`incomplete' if a doctor provides `unknown' or `as needed' to any
question.''). The Department agrees that an adequate FMLA certification
requires responsive answers and therefore also proposes to define an
insufficient certification as one where the information provided is
``vague, ambiguous or non-responsive.'' The Department proposes to
define these terms because it is aware that employers are unsure in
many circumstances what the distinction is between an incomplete versus
an insufficient certification, and whether they must give an employee
another opportunity to provide sufficient certification when the
initial certification does not establish that the employee has a
serious health condition or whether they can simply deny FMLA leave.
The Department believes that by defining these terms, employers will
better understand what triggers their obligations to give employees
further opportunity to provide sufficient certification, which will in
turn protect employees from having employers immediately deny them FMLA
protections based on the initial certification provided or deny their
certifications based on technicalities. For example, under the current
regulation, an employer could interpret a ``vague'' answer to simply be
insufficient and a basis to deny FMLA leave. Under the proposed
regulation, an employer must allow an employee an opportunity to
provide sufficient certification when the initial certification is
either incomplete or insufficient.
The Department also proposes to clarify the process for curing an
incomplete or insufficient certification. The Department received many
comments in response to the RFI indicating that employers were unsure
how many opportunities an employee must be given to cure an
insufficient certification. See, e.g., Waste Management, Inc. (``The
current regulation is open to interpretation regarding when information
is due and how much additional time should be afforded to employees who
do not share the FMLA certification forms timely.''); Federal Reserve
Bank of Chicago (``There should be an absolute cut off when an employer
can require the employee to submit a completed certification form and
the consequence of not meeting that deadline is that the absence(s) is
not covered by FMLA.''); Society for Human Resource Management (``HR
professionals often have difficulty in determining how many times an
employer must give an employee an opportunity to `cure' a deficiency,
and how long to allow them to provide such a complete
certification.''). Employees and their representatives expressed a
related concern that some employers repeatedly indicated that
certifications were incomplete but failed to specify what additional
information was necessary, oftentimes necessitating that the employee
make repeated appointments with the health care provider in an effort
to obtain a complete and sufficient certification. See, e.g., An
Employee Comment (``[I]nsurmountable hurdle which many employees
encounter is, upon application for family leave, the Company returns
the forms asking for `more information'. Even though the employee's
Health Care Provider has filled out the application sections
[[Page 7913]]
relevant to the illness/injury, the Company is able to delay, and many
times deny, for many weeks and months the benefits and protections
which the Act affords.''); Association of Professional Flight
Attendants (``[I]t is simply unfair to send FMLA leave requests back to
the employees and their treating health care providers for more medical
facts, without ever indicating what kinds of additional medical facts
are required before the employer will make a determination of medical
eligibility or medical ineligibility.''); International Association of
Machinists and Aerospace Workers (``We have many members who have their
doctors fill out the paper work only to be told it is not properly
filled out. The employee fixes that problem and the Company tells them
there is another problem with the paper work. This occurs over and over
until finally the doctor or the employee, or both give up.'') (emphasis
in original). To address these concerns, proposed Sec. 825.305(c)
requires that when an employer determines that a certification is
incomplete or insufficient, the employer must state in writing what
additional information is necessary and provide the employee with seven
calendar days to cure the deficiency. Additional time must be allowed
where the employee notifies the employer within the seven calendar day
period that he or she is unable to obtain the additional information
despite diligent good faith efforts. The current regulations provide an
employee ``a reasonable opportunity'' but no timeframe for curing an
insufficient certification and the Department believes that a clear
timeframe will be helpful to employees and employers. If the
deficiencies specified by the employer are not corrected in the
resubmitted certification, the employer may deny the taking of FMLA
leave. Finally, in light of the Urban decision discussed above and the
confusion that exists on this issue, language also is proposed that
specifies that a certification never submitted to the employer does not
qualify as an incomplete or insufficient certification but constitutes
a failure to provide certification.
Proposed paragraph (d), titled ``[c]onsequences,'' now sets forth
the consequences if an employee fails to provide a complete and
sufficient medical certification, and reiterates the standard under the
existing regulations that an employer may deny leave. It clarifies that
it is the employee's responsibility either to provide such a complete
and sufficient certification or to furnish the health care provider
providing the certification with any necessary authorization from the
employee or the employee's family member--such as that required by the
Health Insurance Portability and Accountability Act (HIPAA) Privacy
Regulations, 45 CFR Part 160 and 164, or any other applicable law--in
order for the health care provider to release a sufficient and complete
certification to the employer to support the employee's FMLA request.
See Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14, 2005) (``When
requested, medical certification is a basic qualification for FMLA-
qualifying leave for a serious health condition, and the employee is
responsible for providing such certification to his or her employer. If
an employee fails to submit a requested certification, the leave is not
FMLA-protected leave.'').
Finally, current Sec. 825.305(e) explains the interaction between
the employer's sick or medical leave plan and the FMLA when paid leave
(of any type) is substituted for unpaid FMLA leave. The current
regulation explains that if less stringent medical certification
standards apply to the sick leave plan, those standards must be
followed when paid leave is substituted. The Department proposes to
delete this section. The Department has heard feedback that it is
unclear what constitutes less stringent information and how that
information would allow an employer to determine if the leave should be
designated as FMLA leave. For example, a plan that requires a doctor's
note may be considered less stringent or more stringent depending on
what type of information is provided on the note, and that information
may or may not indicate whether the leave is FMLA-qualified. See Wage
and Hour Opinion Letter FMLA-108 (Apr. 13, 2000) (finding that
certification requirements the employer asserted were ``less
stringent'' were, in fact, more stringent than FMLA requirements).
Given this confusion, and the fact that Congress clearly provided in 29
U.S.C. 2613 that an employer could request a medical certification to
substantiate a ``serious health condition'' as a prerequisite to being
required to provide FMLA leave, the Department proposes to eliminate
this language. Under the proposed rule, if an employee seeks the
protections of FMLA leave for a serious health condition of the
employee or qualifying family member, an employer has a right to have
the medical information permitted by the statute. Such information will
best enable an employer to determine if the leave is in fact FMLA-
qualified. In place of the deleted text of current Sec. 825.305(e),
the Department proposes to add a provision allowing for annual medical
certifications in those cases in which the serious health condition
extends beyond a leave year. This proposal incorporates in the
regulation the Department's statement in Wage and Hour Opinion Letter
FMLA2005-2-A (Sept. 14, 2005) that a new medical certification may be
required once each leave year.
Section 825.306 (Content of medical certification)
The information necessary for a sufficient certification is set
forth in section 103 of the Act. See 29 U.S.C. 2613(b). The statute
states that a medical certification ``shall be sufficient'' if it
states the following: the date the condition commenced; the probable
duration of the condition; ``appropriate medical facts'' regarding the
condition; a statement that the employee is needed to care for a
covered family member or a statement that the employee is unable to
perform the functions of his/her position (as applicable); dates and
duration of any planned treatment; and a statement of the medical
necessity for intermittent leave or leave on a reduced leave schedule
and expected duration of such leave. Id.
Current Sec. 825.306 addresses how much information an employer
can obtain in the medical certification to substantiate the fact that a
serious health condition exists. This section currently explains that
DOL has developed an optional form (Form WH-380) for employees or their
family members to use in obtaining medical certifications and second
and third opinions from a health care provider to substantiate the
existence of a serious health condition for purposes of FMLA.
Passage of HIPAA
Since the current FMLA regulations were issued in 1995, Congress
enacted the Health Insurance Portability and Accountability Act (HIPAA)
in 1996. HIPAA addresses in part the privacy of individually
identifiable health information. The Department of Health and Human
Services (HHS) promulgated regulations in December 2000 found at 45 CFR
Parts 160 and 164 that provide for the privacy of individually
identifiable medical information.\15\ These regulations 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
[[Page 7914]]
form in connection with a transaction as defined in the privacy
regulations. See 45 CFR 160.102(a), 160.103. HHS has stated that the
statute does not include ``employers per se as covered entities.''
Therefore, the HHS regulations do not regulate an employer, ``even when
it is a covered entity acting as an employer.'' See 67 FR 53192 (Aug.
14, 2002).
---------------------------------------------------------------------------
\15\ See 65 FR 82462 (Dec. 28, 2000).
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The final regulations issued by HHS may have an impact, either
directly or indirectly, on the medical certification process for FMLA
purposes. Under the HIPAA Privacy Rule, the health care provider is
permitted to disclose protected health information directly to the
patient. Therefore, if the employee has the health care provider
complete the medical certification form or a document containing the
equivalent information and personally requests a copy of that form to
take or send to the employer, the HIPAA Privacy Rule does not and
should not impede the disclosure of the protected health information.
If 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, however, the HIPAA Privacy Rule will
require the health care provider to receive a valid authorization from
the employee before the health care provider can share the protected
medical information with the employer. As employers have a statutory
right to require sufficient medical information to support an
employee's request for FMLA leave for a serious health condition, if an
employee does not fulfill his or her obligation to provide such
information upon request, the employee will not qualify for FMLA leave.
See Wage and Hour Opinion Letter FMLA2005-2-A (Sept. 14, 2005).
Current Certification Requirements
With regard to what constitutes sufficient medical certification,
current Sec. 825.306(b)(1) states that the health care provider must
identify which part of the definition of ``serious health condition,''
if any, applies to the patient's condition, and the medical facts which
support the certification, including a brief statement as to how the
medical facts meet the criteria of the definition. Current Sec.
825.306(b)(2)(i) asks for the approximate date the serious health
condition commenced, and its probable duration, including the probable
duration of the patient's present incapacity (defined to mean inability
to work, attend school or perform other regular daily activities due to
the serious health condition, treatment therefor, or recovery
therefrom) if different.
Paragraph (b)(2)(ii) of this section asks whether it will be
necessary for the employee to take leave intermittently or to work on a
reduced leave schedule basis (i.e., part-time) as a result of the
serious health condition (see current Sec. Sec. 825.117, 825.203), and
if so, the probable duration of such schedule. Current paragraph
(b)(2)(iii) asks if the condition is pregnancy or a chronic condition
within the meaning of current Sec. 825.114(a)(2)(iii), whether the
patient is presently incapacitated and the likely duration and
frequency of episodes of incapacity.
Current paragraph (b)(3)(i)(A) asks if additional treatments will
be required for the condition, and an estimate of the probable number
of such treatments. Paragraph (b)(3)(i)(B) asks if the patient's
incapacity will be intermittent, or will require a reduced leave
schedule, an estimate of the probable number of and interval between
such treatments, actual or estimated dates of treatment if known, and
period required for recovery if any. Paragraph (b)(3)(ii) asks if any
of the treatments will be provided by another provider of health
services (e.g., physical therapist), and the nature of the treatments.
Paragraph (b)(3)(iii) asks if a regimen of continuing treatment by the
patient is required under the supervision of the health care provider,
and if so, a general description of the regimen (see current Sec.
825.114(b)).
Paragraph (b)(4) asks, if medical leave is required for the
employee's absence from work because of the employee's own condition
(including absences due to pregnancy or a chronic condition), whether
the employee: (i) is unable to perform work of any kind; (ii) is unable
to perform any one or more of the essential functions of the employee's
position, including a statement of the essential functions the employee
is unable to perform (see current Sec. 825.115), based on either
information provided on a statement from the employer of the essential
functions of the position or, if not provided, discussion with the
employee about the employee's job functions; or (iii) must be absent
from work for treatment.
Paragraph (b)(5)(i) asks, if leave is required to care for the
employee's family member with a serious health condition, whether the
patient requires assistance for basic medical or personal needs or
safety, or for transportation; or if not, whether the employee's
presence to provide psychological comfort would be beneficial to the
patient or assist in the patient's recovery. The employee is required
to indicate on the form the care he or she will provide and an estimate
of the time period. Paragraph (b)(5)(ii) asks if the employee's family
member will need care only intermittently or on a reduced leave
schedule basis (i.e., part-time), and the probable duration of the
need.
The RFI sought comments on how the current form WH-380 is working
and what improvements could be made to it to facilitate the
certification process. The Department received significant feedback
from the stakeholder community, including health care providers, that
the existing form is confusing. See, e.g., American Academy of Family
Physicians (``The form WH-380 is overly complicated and confusing in
its format.''); United Parcel Service, Inc. (``The current WH-380 form
is poorly drafted and confusing.''); Association of Corporate Counsel
(``The current form is confusing and often results in incomplete or
vague responses by health care providers that are insufficient to
assess the employee's eligibility for leave or the timing of the
leave.''). Indeed, stakeholders have shared with the Department that in
a number of cases, health care providers have refused to complete the
certification form. As the employee has the statutory burden of
providing sufficient medical information to substantiate the need for
FMLA leave, this confusion poses a serious hardship to the employee.
Several stakeholders also have criticized the form for asking health
care providers to render legal conclusions by certifying whether a
serious health condition exists as defined by the FMLA.
Several commenters suggested that the form could be simplified if
it was broken into multiple forms, with separate forms either for
intermittent and block leave, or for leave for the employee and leave
for the employee's family member. See, e.g., Yellow Book USA
(suggesting separate forms for block and intermittent leave); National
Council of Chain Restaurants (suggesting separate forms for employee
and family members); Spencer Fane suggesting forms for: ``(a)
continuous leave for employee's own serious health condition; (b)
continuous leave for serious health condition of a family member; (c)
reduced schedule/intermittent leave for employee's own serious health
condition; and (d) reduced schedule/intermittent leave for serious
health condition of a family member.''). A physicians group suggested
that use of a standard form, as opposed to individual employer
variations, would reduce the burden on health care providers. See
American Academy of Family Physicians; see also Kennedy Reeve & Knoll
(``The model certification form must be simplified,
[[Page 7915]]
and then it must be the required form for employers to use.'').
In reviewing the criticisms of the medical certification form, the
Department notes that employers have a statutory right to obtain
sufficient medical certification from an employee to substantiate the
existence of a serious health condition. See 29 U.S.C. 2613(a), (b).
However, the Department believes that the form can be simplified to
make it easier for health care providers to understand and complete.
The Department proposes the following revisions to the medical
certification form, to implement the statutory requirements for
``sufficiency'' of the medical certification as set forth in 29 U.S.C.
2613(b). The Department has declined at this time to create multiple
forms. However, the Department seeks feedback as to whether multiple
forms would be clearer than the revised Form WH-380 proposed in this
rulemaking (see Appendix B to these proposed regulations).
Proposed Certification Requirements
Before detailing the proposed changes to this section, the
Department notes that the medical certification process remains
optional for the employer. That is, an employer is always free to
designate qualifying leave as FMLA leave without requiring medical
certification of the underlying condition. See 29 CFR Sec. 825.305(a).
Proposed Sec. 825.306(a)(1) still requires that the name and
address of the health care provider and type of medical practice be
identified, but also requires that the pertinent specialization and fax
number of the health care provider be provided. This addition allows
the employer to more efficiently contact the health care provider for
purposes of clarification and authentication as appropriate and in
accordance with proposed Sec. 825.307 (discussed below). The question
of the approximate date on which the serious health condition commenced
and the probable duration has been retained in proposed Sec.
825.306(a)(2).
Consistent with the statute, the Department proposes to retain the
requirement that a complete certification contain appropriate medical
facts regarding the patient's health condition for which FMLA leave is
requested. See 29 U.S.C. 2613(b)(3). The Department also has added
guidance in this regulatory section as to what constitutes sufficient
medical facts for purposes of responding to this question.
Specifically, the Department proposes that such medical facts may
include information on symptoms, hospitalization, doctors visits,
whether medication has been prescribed, referrals for evaluation or
treatment (physical therapy, for example) or any other regimen of
continuing treatment. These examples of what constitutes sufficient
medical facts streamline the certification form by eliminating the need
to ask several other questions that are contained in the current
regulations, specifically those listed in Sec. 825.306(b)(2)(iii),
(b)(3)(i)(A), (b)(3)(ii), and (b)(3)(iii), and are intended to simplify
the certification process for health care providers.
Proposed Sec. 825.306(a)(3) also states that the health care
provider may provide information on the diagnosis of the patient's
health condition. The term ``diagnosis'' was specifically not included
in the 1995 final regulations due to concerns expressed under the
Americans with Disabilities Act. See Preamble to Final FMLA
Regulations, 60 FR at 2222. As noted, in response to the RFI, several
commenters specifically requested that the Department require the
employee's health care provider to specify a diagnosis. See, e.g.,
South Central Human Resource Management Association (``an employer
should be permitted to obtain diagnosis and prognosis''); Detroit
Medical Center (``It is critical that the regulations and WH-380 form
be changed to require actual diagnoses to determine whether an
employee's absences correlate with the medical certification.'');
MedStar Health, Inc. (``[T]he FMLA's current restriction on obtaining a
diagnosis creates an unnecessary and awkward limitation on the
employee's health care provider in completing the medical certification
form and the employer's health care provider in seeking clarification
of information contained in that form. Generally, meaningful
communications between the health care providers cannot take place
without some discussion about the actual diagnosis, particularly if
second and third opinions are involved.''). In practice, in many cases
it may be difficult to provide sufficient medical facts without
providing the actual diagnosis, and in some cases the employee may
prefer that a diagnosis be provided as opposed to more detailed medical
facts. The Department is also aware that the diagnosis may often be
provided in practice under the current regulation. For example, many
health care providers may currently write a diagnosis such as
``asthma'' on the certification form instead of describing symptoms
such as ``intermittent difficulty in breathing due to inflamed
airways.'' The Department proposes, therefore, that such information be
allowed on the FMLA leave certification form. However, the Department
does not intend to suggest, by including such language, that a
diagnosis is a necessary component of a complete FMLA certification. If
the medical facts set forth by the health care provider's medical
certification establish the necessity for leave due to a serious health
condition without reference to the employee's diagnosis, a diagnosis is
not necessary and may not be required. The health care provider
determines the appropriate relevant medical facts in any case and the
employer determines if the certification is complete and sufficient to
meet the regulatory definition of a serious health condition.
Proposed Sec. 825.306(a)(4) requires that the health care provider
provide sufficient information to establish that the employee cannot
perform the functions of the employee's job and the likely duration of
such inability, consistent with current Sec. 825.306(b)(4).
Proposed Sec. 825.306(a)(5) retains the requirement currently
found in Sec. 825.306(b)(5)(i) that information be provided sufficient
to establish that the employee is needed to care for a family member,
if applicable.
Proposed Sec. 825.306(a)(6), (7), and (8) address the need for
certification in connection with the need for reduced schedule or
intermittent leave for the employee's own serious health condition or
that of a family member. These paragraphs incorporate the requirements
set forth in current Sec. 825.306(b)(2)(i) and (ii), (b)(3)(i)(B), and
(b)(5)(ii). In response to the RFI, several commenters noted that
current Sec. 825.306 and the WH-380 model certification form do not
require the health care provider to certify the medical necessity for
intermittent leave, which is a statutory requirement for the taking of
such leave under section 102(b) of the Act. See, e.g., National
Coalition to Protect Family Leave (``In the case of intermittent leave,
the medical necessity for the intermittent or reduced schedule also
should be specified in accordance with 29 C.F.R. Sec. 825.117 (not
currently asked on the model form).''); Society for Human Resource
Management (same); American Electric Power (``Unfortunately, the
statutory requirement that `medical necessity' be demonstrated by
employees seeking intermittent leave has been effectively eliminated by
the Department's regulations.''). Consistent with the statutory and the
current regulatory requirements, the proposed section would now clarify
that the health care provider must certify that intermittent or reduced
schedule leave is medically necessary.
[[Page 7916]]
Interaction Between FMLA and Employer Policies
Current paragraph (c) of this section provides that an employer
cannot request all of the information set forth above to substantiate
the existence of a serious health condition if an employer's sick leave
plan requires less information. Consistent with the change made to
Sec. 825.305(e), the Department proposes to eliminate this language.
Instead, the proposal incorporates language from current Sec.
825.307(a)(1), which explains the interaction between workers'
compensation and the FMLA with regard to the clarification of medical
information. Specifically, the current regulation provides that if a
workers' compensation statute provides for an employer to have direct
contact with the workers' compensation health care provider, the
employer may do so even if the leave also may be designated FMLA leave.
The Department proposes to amend this language to state that if the
employer is permitted ``to request additional information'' from the
workers' compensation health care provider, the FMLA does not prevent
the employer from following the workers' compensation provisions. The
Department notes that for purposes of HIPAA, ``individuals do not have
a right under the Privacy Rule at 56 CFR 164.522(a) to request that a
covered entity restrict a disclosure of protected health information
about them for workers' compensation purposes when that disclosure is
required by law or authorized by, and necessary to comply with, a
workers' compensation or similar law.'' See Department of Health and
Human Services, Office of Civil Rights Publication, ``Disclosures For
Workers' Compensation Purposes: Frequently Asked Questions,'' December
3, 2002.
The Department also proposes to add language to this section that
clarifies the interaction between paid leave or benefit plans and FMLA
leave. Consistent with Wage and Hour Opinion Letter FMLA2004-3-A (Oct.
4, 2004), the proposed language in this section clarifies that if an
employee ordinarily is required to provide additional medical
information to receive payments under a paid leave plan or benefit
plan, an employer may require that the employee provide the additional
information to receive those payments, as long as it is made clear to
the employee that the additional information is requested only in
connection with qualifying for the paid leave benefit and does not
affect the employee's unpaid FMLA leave entitlement. This language
reiterates what is contained in existing Sec. 825.207(d)(1) with
regard to temporary disability benefit plans and proposed Sec.
825.207(a), although the existing regulations do not define what
constitutes a disability plan. For consistency and clarity, the
Department proposes that all disability and paid leave plans be covered
by this provision.
Interaction Between FMLA Certification and ADA Medical Inquiries
The Department received comments in response to the RFI indicating
that employers were frustrated and confused by the differing processes
for gathering medical information under the FMLA and the ADA. See
generally RFI Report, Chapter VII, Interplay Between the Family and
Medical Leave Act and the Americans With Disabilities Act, 72 FR at
35599. The United Parcel Service, Inc. explained the dilemma faced by
employers: ``When an FMLA-qualifying `serious health condition' is also
a potential `disability' under the ADA, [Sec. 825.306's] restriction
on medical information is in conflict with the ADA interactive process,
which allows--and arguably requires--an employer to gather far more
medical information regarding an employee so that it can make an
informed decision regarding possible accommodations.'' See also Temple
University (``FMLA restrictions particularly are problematic when
employers face a request from an employee that triggers obligations
under both the FMLA and ADA, given that the latter requires the
employer to engage in interactive processes to accommodate the
employee.''). The Department recognizes that an employee's request for
leave due to a serious health condition may also trigger the
interactive process under the ADA to determine whether the condition is
also a disability. The Department therefore proposes to add a new Sec.
825.306(d), which clarifies that where a serious health condition may
also be a disability, employers are not prevented from following the
procedures under the ADA for requesting medical information.
Finally, the Department received comments from employees and their
representatives indicating that employers are incorporating medical
releases into their FMLA certification forms and requiring employees to
sign the release as a condition of providing FMLA leave. See An
Employee Comment (``Also, my employer [has] requested me to sign a
medical release form for my son's medical records, or I wouldn't be
certified for FMLA.''); Legal Aid Society--Employment Law Center (``In
some cases, a medical release is attached to the FMLA form requesting
leave, with no explanation of its purpose. As a result, many employees
unwittingly forego their right to medical privacy and agree to the
unlimited disclosure of their entire medical history, believing that
they must sign the release in order to qualify for the FMLA.''); United
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied
Industrial and Service Workers International Union (``The USW asks the
DOL to clarify that employees are not required to provide a release of
medical information to the employer as a condition of applying for or
receiving FMLA leave.''). In the preamble to the current regulations,
the Department specifically rejected suggestions that employees be
required to sign a release or waiver as part of the medical
certification process. See 60 FR 2222 (``The Department has not adopted
the suggestion that a waiver by the employee is necessary for FMLA
purposes.''). The Department continues to believe that employees should
not be required to sign a release as a condition of taking FMLA leave
and has added a new Sec. 825.306(e) to clarify this issue. Of course,
when certification is requested, the employee is required to provide
the employer with a complete and sufficient certification and failure
to do so may result in the delay or denial of FMLA leave.
Section 825.307 (Authentication and clarification of medical
certification)
Current Sec. 825.307(a) explains that a health care provider
working for an employer can contact the employee's health care provider
with the employee's permission for purposes of clarification and
authentication of the medical certification. Commenters raised two
major areas of concern in their response to the RFI regarding the
authentication and clarification process: (1) The requirement that
employers obtain employee permission to contact the employee's health
care provider, and (2) the requirement that a health care provider
working for the employer be utilized to contact the employee's health
care provider, rather than allowing direct employer contact.
Several commenters asserted that the requirement that an employer
obtain the employee's permission prior to seeking authentication of the
certification from the employee's health care provider makes it
extremely difficult for employers to investigate suspected fraud
related to medical certifications. See, e.g., Robert Haynes, HR--
Compliance Supervisor, Pemco Aeroplex, Inc. (noting difficulty in
[[Page 7917]]
investigating fraud when employee's consent is necessary for the
employer to authenticate form with employee's health care provider);
United States Postal Service (suggesting that a ``simple and fair way
to remedy this problem is to allow an employer to make contact with the
provider for the purpose of confirming authenticity''); Taft,
Stettinius & Hollister LLP (``Where authenticity is suspect, the
employer's inquiry is not medically related but rather, is intended to
determine whether the employee's health care provider issued the
certificate and that it has not been altered. In such circumstances,
the restrictions contained in Section 825.307(a) serve no useful
purpose, impose unnecessary expense on employers, and are not justified
by any language in the Act.''). The Department notes that
authentication involves only verifying that the certification was
completed, or authorized, by the employee's health care provider and
does not involve disclosure of any additional medical information.
Accordingly, proposed Sec. 825.307(a) clarifies the limited nature of
the authentication process and removes the requirement of employee
consent to authenticate the certification.
Unlike authentication, clarification does involve communication
with the employee's health care provider regarding the substance of the
medical information contained in the certification. Several commenters
noted that the passage of HIPAA (discussed above in Sec. 825.306) has
complicated the process of clarification of FMLA certifications. See,
e.g., Methodist Hospital, Thomas Jefferson University Hospital (``With
[HIPAA] regulations physicians are reluctant to share information with
Employers who are trying to accommodate Employee medical conditions to
minimize absence.''); American Academy of Family Physicians (``We agree
with comments that the Health Insurance Portability and Accountability
Act (HIPAA) has created confusion about the disclosure of information
on the FMLA form. As employers are not covered entities, disclosure
directly to the employer is prohibited without an authorization by the
patient.''); AIG Employee Benefit Solutions' Disability Claims Center
(``More than one Provider has written `HIPAA' across the Form and
returned it.''); Briggs & Stratton Corporation (``[M]any physicians
still insist that they are prohibited by [HIPAA] from responding to
questions on the Certification.'').
The Department notes that the HIPAA Privacy Rule provides far more
protection for employee medical information than current Sec.
825.307(a). For example, a valid authorization under the HIPAA Privacy
Rule requires, in part, a written document containing: (1) A
description of the information that may be disclosed; (2) the name or
specific identification of the person(s) to whom the requested
disclosure may be made; (3) a description of the purpose of the
requested disclosure; (4) an expiration date or event for the
authorization; and (5) a signature of the individual and date. 45 CFR
164.508(c)(1). In any instance in which the employee's health care
provider is disclosing medical information to the employer, the HIPAA
Privacy Rule requires that the employee execute a valid authorization
prior to the disclosure. The Department agrees with those commenters
who suggested that the protections afforded to employee medical
information by the HIPAA Privacy Rule have supplanted the requirement
in current Sec. 825.307(a) for employee permission to clarify the
certification. See Ohio Public Employer Labor Relations Association
(``With HIPAA laws protecting confidential medical information, the
excessive restrictions found in 29 C.F.R. Sec. 825.307 are unnecessary
and should be removed.''); Taft, Stettinius & Hollister LLP (``HIPAA
and similar laws provide ample protection for personal health data and
the employee's health care provider can always refuse to disclose
information if he or she considers a request for clarification to
implicate privacy issues.''); Hewitt Associates LLC (``[G]iven HIPAA
concerns, it's likely that the employee will still have a check over
the process as the health care provider would require the employee's
permission before he or she would speak with the employer.'').
Accordingly, in lieu of the requirement in current Sec. 825.307(a)
that the employee provide permission for the employer to clarify the
medical certification, the Department proposes language highlighting
that contact between the employer and the employee's health care
provider for the purpose of clarifying the medical certification must
comply with the HIPAA Privacy Rule. Language has also been added to
make clear that if such consent is not given, an employee may
jeopardize his or her FMLA rights if the information provided is
incomplete or insufficient.
The second major area of concern raised in the comments to the RFI
regarding Sec. 825.307(a) was the requirement that the employer
utilize a health care provider to contact the employee's health care
provider. Many employers commented that the requirement that they
communicate only through a health care practitioner resulted in
significant cost and delay. See, e.g., Milwaukee Transport Services,
Inc. (``In 2006 alone, MTS spent $23,000.00 for the services of a
designated health care provider because it was not itself permitted
under the FMLA regulations to ask questions which that provider was
then forced to ask on its behalf.''); City of Portland (``The Act
requires employers to use the employee as an intermediary to
communicate with doctors or incur substantial costs hiring additional
doctors to consult with employee physicians or, in narrow
circumstances, to give second and third opinions.''); Hewitt Associates
LLC (``The employer's engagement of its own health care provider is
expensive, takes additional time and ultimately delays the decision to
approve or deny a leave request.''). Other commenters suggested that
their human resources professionals could more efficiently clarify the
certification with the employee's health care provider because they
were both better versed in the FMLA and more familiar with the
employee's job duties and the work environment than the employer's
health care provider. See, e.g., Association of Corporate Counsel
(``[T]he employer's staff members--often its Human Resources
employees--are usually more knowledgeable about the specific job
requirements and other information that may be relevant or helpful to
the employee's health care provider in making his/her assessment.'').
Commenters also noted that the ADA does not contain a similar
restriction requiring employers to engage medical providers to contact
employees' doctors. See, e.g., Commonwealth of Pennsylvania; Clark Hill
PLC; City of New York; Edison Electric Instituted. The AFL-CIO,
however, commented that the use of a health care provider was necessary
to preserve employee privacy.
The Department has considered the comments on this issue
particularly in light of the HIPAA Privacy Rule, and has determined
that employers should be allowed to directly contact the employee's
health care provider for the purposes of authenticating and clarifying
the medical certification. Accordingly, proposed Sec. 825.307(a)
eliminates the requirement that the employer's health care provider, as
opposed to the employer itself, make the contact to an employee's
health care provider. The Department believes that this change would
significantly address the unnecessary administrative burdens
[[Page 7918]]
the current requirement creates and, in light of the protections
provided by the HIPAA Privacy Rule, will not significantly impact
employee privacy. The Department notes again, however, that such
contact by the employer may only take place after the employee has been
afforded the opportunity to cure any deficiencies with the
certification.
Current Sec. 825.307(a)(1), which addresses rules governing access
to medical information when a workers' compensation absence also is at
issue, has been moved to proposed Sec. 825.306 because that section
also addresses what medical information an employer can obtain in
connection with an FMLA absence.
Current Sec. 825.307(a)(2) and (b) cover the requirements an
employer must meet when obtaining a second opinion. The existing
language of current Sec. 825.307(a)(2) and (b) has been incorporated
into proposed Sec. 825.307(b), titled ``[s]econd opinion''. Employers
expressed significant frustration with the second and third opinion
process in responding to the RFI-- and questioned its utility.
Specifically, several employers commented on the expense involved in
the second and third opinion process. See, e.g., Honda (``Based upon
Honda's experience, second and third opinions average over $700 per
second or third opinion, and cost the employees their time.''); Yellow
Book USA (asserting that second opinions are so expensive they are not
used). Other commenters noted practical concerns regarding finding
physicians to perform second opinions. See, e.g., United States Postal
Service (``We are experiencing increasing difficulty finding physicians
who will perform a second opinion medical exam.''); FNG Human Resources
(``Requesting a second opinion is neither economically feasible nor
beneficial in our area. We do not find healthcare providers willing to
state that another provider is incorrect in his/her diagnosis.''). The
Department notes that the statute itself mandates the second and third
opinion process, including that the employer cannot use a health care
provider it regularly employs to render the second opinion, and that
the employer bears the costs of the second and third opinions. 29
U.S.C. 2613(c), (d). Thus, the Department has determined that it is not
appropriate to change the current regulation. In order to increase the
utility of the second and third opinion process, however, the
Department proposes to add language to Sec. 825.307(b)(1) and (c)
requiring the employee (or family member) to authorize the release of
relevant medical information regarding the condition for which leave is
sought from the employee's (or family member's) health care provider to
the second or third opinion provider.
The final issue in Sec. 825.307 that garnered significant comments
and an issue which the Department is hearing about more is the
requirement in current Sec. 825.307(f) that under certain
circumstances, the employer shall accept the medical certification and
second and third opinions from a foreign health care provider. In
response to the RFI, several commenters stated that this requirement
has caused numerous problems. See, e.g., Spencer, Fane, Britt & Browne
LLP (``First, employers have no idea whether the health care provider
has training and credentials equivalent to U.S.-licensed health care
providers. Second, it is difficult to verify that the foreign health
care provider even completed the form. * * * Third, obtaining a second
and third opinion is next to impossible * * * .''); U.S. Chamber of
Commerce (``These companies have had to obtain the services of
translators and health care providers with foreign language skills to
discuss the certification with foreign doctors.''); Fairfax County
Public Schools (``Approximately 20% of the FCPS FMLA requests are for
leave for immediate family members who live outside the U.S. and have
received medical diagnoses from individuals of unclear medical
qualifications.''). Commenters suggested that there should be
additional requirements for certifications for foreign health care
providers. See, e.g., Spencer, Fane, Britt & Browne LLP; U.S. Chamber
of Commerce; Fry's Electronics, Inc. At the present time, the substance
of Sec. 825.307(f) remains unchanged. Nevertheless, the Department
seeks further public comment about what specific changes would allow
for better authentication in this area.
In order to assist individuals referring to the regulations on
second and third opinions, proposed changes have been made to add
titles to each paragraph in this section. Paragraph (c) is now titled,
``[t]hird opinion,'' paragraph (d) is titled, ``[c]opies of opinions,''
paragraph (e) is titled ``[t]ravel expenses,'' and paragraph (f) is
titled, ``[m]edical certification abroad.'' The timeframe for employers
to provide employees with copies of second and third medical opinions
upon the employees' request under paragraph (d) is proposed to be
extended from two to five business days, to be uniform with other
similar timeframes.
Section 825.308 (Recertifications)
Current Sec. 825.308 specifies when an employer may request
subsequent recertifications of medical conditions. In cases of
pregnancy, chronic, or permanent/long-term conditions, recertifications
may be requested no more often than every 30 days (and only in
connection with an absence) unless circumstances described in the
initial certification have changed significantly, or the employer
receives information to cast doubt on the employee's stated reason for
the absence. If the time period specified by the health care provider
for the duration of the incapacity or its treatment is longer than 30
days, an employer may not request recertification until the minimum
duration has passed, unless the employee requests an extension of
leave, circumstances have changed significantly, or an employer has
received information that casts doubt on the validity of the
certification. This same rule applies to intermittent leaves of
absence. If no time period is specified and the condition is other than
pregnancy, chronic, or long-term or permanent, an employer can request
recertification every 30 days or more frequently if the employee
requests an extension of leave, circumstances have changed
significantly, or an employer has received information that casts doubt
on the validity of the certification.
The Department proposes to re-structure Sec. 825.308 for the sake
of clarity. Proposed paragraphs (a), (b), and (c) now clearly apply to
all medical conditions and work in conjunction with each other.
Paragraph (a), titled ``30-day rule,'' merely states a general rule
that an employer may request recertification no more often than every
30 days and only in connection with the absence of the employee. This
rule is subject to the more specific occurrences described in
paragraphs (b) and (c).
Paragraph (b), titled ``[m]ore than 30 days,'' explains, consistent
with the existing regulation, that if a minimum duration for the period
of incapacity is specified, the employer may not request
recertification until that time period has expired, but adds that in
all cases, recertifications may be requested every six months. An
example has been provided to give further guidance on this issue. This
proposal addresses situations where a certification is provided that
states an employee may be incapacitated and in need of intermittent
leave for an extended period. There is confusion under the existing
requirements as to whether an employer would be able to obtain
recertification in a given year absent a
[[Page 7919]]
significant change in circumstance or a reason that casts doubt on the
validity of the absence where the certification indicates that the
duration of the condition is ``lifetime.'' Conversely, under current
law, where an employee has a chronic condition certified to last an
``indefinite'' period of time, that certification may be treated as
having no durational timeframe and the employer may require a
recertification every 30 days in connection with an absence. See Wage
and Hour Opinion Letter FMLA2004-2-A (May 25, 2004).
In response to the RFI, some employers argued that recertification
should be permitted every 30 days even where the certification
indicates that the condition will last for an extended duration. See,
e.g., University of Minnesota (``In all cases, employers should have
the right to request recertification from an employee on FMLA leave
every thirty days.''); Carolyn Cooper, FMLA Coordinator, City of Los
Angeles (``A remedy to this manipulation or gaming of the medical
recertification restriction pertaining to intermittent/reduced work
schedule leaves is to allow employers to request recertification every
30 days, regardless if the duration indicated in the initial medical
certification is greater than 30 days.'') (emphasis in original);
United Parcel Service, Inc. (``As currently drafted, [the] language
permits employees to evade the 30-day recertification requirement by
having their health care provider specify a longer period of time.'').
Employees and their representatives, however, commented that frequent
recertifcations are burdensome for employees. See, e.g., International
Association of Machinists and Aerospace Workers (``[O]ur members find
that the requirement to recertify every 30 days is incredibly
burdensome. * * * [I]t is very expensive for employees to get re-
certifications. Some employees, particularly in rural areas, have to
travel long distances to even see their doctor. It is ironic that often
these employees actually have to miss more work time just to get the
recertification.''); An Employee Comment (``For an employer to
repeatedly request for recertifications every 30 days, for an chronic
Asthmatic who has an unforeseeable mild flare-up that can be taken care
of with prescription medication, seems unreasonable and
repetitious.''); Kennedy Reeve & Knoll (``The frequency with which some
employers are requiring notes and recertification is both logistically
(due to the availability of doctor's appointment times) and financially
burdensome on the employee and physician.''). The American Academy of
Family Physicians also objected to allowing recertifications every 30
days for conditions that are medically stable: ``This is a burden to
physicians who must spend time completing the form to indicate that a
chronic condition is still being managed. It would lessen this burden
to allow recertification only for those conditions which are not
categorized as chronic care or permanent disability.'' See also Mark
Blick DO, Rene Darveaux MD, Eric Reiner MD, Susan R. Manuel PA-C (``One
employer requires us to complete the form every 60 days (ATT/SBC), one
employer every 90 days and another every year. Chronic conditions
extending a patient's lifetime such as diabetes and hypertension are
not going to change and there is no reason the form has to be updated
multiple times throughout the year.''); An Employee Comment (``[E]ven
though my mother's illness is terminal and my father's condition is
considered lifetime, I still am required to fill out forms and have a
doctor sign them every 3 months. The physician's office now charges me
$20 for each form I have to have them sign. As you can imagine, this
takes a lot of time and money.'').
Taking all of the comments into consideration, the Department
believes that it would be reasonable for employers to obtain
recertifications every six months in circumstances in which the
certification indicates that the condition will last for an extended
period of time. An extended period of time includes not only specific
months or years (e.g., one year) but certified durations of
``indefinite,'' ``unknown,'' or ``lifetime.'' This is a change in the
law from the current construction as explained above and expounded in
Wage and Hour Opinion Letter FMLA2004-2-A (May 25, 2004). The
Department feels six months is a reasonable timeframe for permitting
recertification of such conditions but requests comments on this
proposal. This is also consistent with the Department's proposal in
Sec. 825.115(c) that ``periodic'' visits to a health care provider for
a chronic serious health condition is defined as at least twice per
year.
Proposed paragraph (c) of this section explains, with some
modifications to the current rule, what circumstances must exist to
request medical recertification in less than 30 days and is now titled
``[l]ess than 30 days.'' The proposed paragraph explains that
recertification may be requested in less than 30 days if the employee
requests an extension of leave, the circumstances have changed
significantly based on the duration or frequency of the absence or the
nature or severity of the illness, or if the employer receives
information that casts doubt upon the employee's stated reason for the
absence or the continuing validity of the certification. The remaining
provisions of the existing regulation have been incorporated without
any substantive changes. However, examples have been added to
illustrate what constitutes a change in circumstances or information
that would ``cast doubt.'' See also Wage and Hour Opinion Letter
FMLA2004-2-A (May 25, 2004) (noting that a pattern of Friday/Monday
absences would permit an employer to request recertification in less
than 30 days provided that there was no evidence of a medical basis for
the timing of the absences).
No changes have been proposed to paragraph (d) from the current
regulations except it is titled, ``[t]iming.''
A new paragraph (e) has been proposed, titled ``[c]ontent,'' that
confirms an employer may ask for the same information when obtaining
recertification as that permitted for the original certification as set
forth in current Sec. 825.306. In addition, consistent with Wage and
Hour Opinion Letter FMLA2004-2-A (May 25, 2004), the proposed
regulation states that as part of the information allowed to be
obtained on recertification, the employer may provide the health care
provider with a record of the employee's absence pattern and ask the
health care provider if the serious health condition and need for leave
is consistent with such a pattern.
Proposed paragraph (f) sets forth without change the requirements
of current Sec. 825.308(e) that the employee is responsible for the
costs associated with the recertification and that no second or third
opinion may be required. The Department notes that several employers
responding to the RFI requested that the Department allow second and
third opinions on recertifications. See, e.g., United States Postal
Service (``[A] second opinion should be allowed during the lifetime of
an employee's condition, so long as there is reason to doubt the
validity of the information in the certification.''); Air Transport
Association of America, Inc. and Airline Industrial Relations
Conference (``Second and third opinions should also be available to
employers on a medical recertification.''). The National Partnership
for Women & Families, however, argued that the fact that the statute
only refers to second and third opinions on initial certifications
supports the current regulatory
[[Page 7920]]
prohibition on second and third opinions on recertification. However,
both Honda and the AFL-CIO noted that employers are already permitted
to reinitiate the certification process on an annual basis, which
offers the employer the opportunity to seek a second opinion annually.
See supra discussion of proposed Sec. 825.305(e). The Department
believes that allowing employers to request a new medical certification
on an annual basis (and a second and third opinion, if appropriate)
allows employers sufficient opportunity to verify the serious health
condition. Accordingly, the Department has retained the regulatory
prohibition on second and third opinions on recertification, but seeks
comment about this in light of the restructuring of Sec. 825.308.
Section 825.310 (Fitness-for-duty certification)
Current Sec. 825.310 explains when an employer may require an
employee to provide a fitness-for-duty certification. Current paragraph
(a) of this section explains that employers may have a uniformly
applied policy or practice that requires similarly situated employees
who take leave to provide a certification that they are able to resume
work. The Department proposes to add a sentence to paragraph (a)
clarifying that employees have the same obligation to provide a
complete certification or provide sufficient authorization to the
health care provider to provide the information directly to the
employer at the fitness-for-duty stage as they do in the initial
certification stage.
No changes have been proposed to paragraph (b), which explains that
if State or local law or the terms of a collective bargaining agreement
govern an employee's return to work, those provisions apply, and that
the ADA requires that any return-to-work physical be job-related and
consistent with business necessity. The court in Harrell v. USPS, 445
F.3d 913, 926-27 (7th Cir.), cert. denied, 127 S. Ct. 845 (2006),
deferred to this regulation, holding that it reasonably implements the
statute and is consistent with the legislative history by providing
that a collective bargaining agreement ``may impose more stringent
return-to-work requirements on the employee than those set forth in the
statute.''
Current paragraph (c) of this section explains the procedures for
obtaining a fitness-for-duty certification and states that an employer
may seek certification only with regard to the condition that caused
the employee's need for leave. The existing regulation provides that
the certification itself need only be a simple statement of ability to
return to work. It also provides that a health care provider employed
by the employer can contact the employee's health care provider with
the employee's permission for purposes of clarifying the employee's
fitness to return to work, that no additional information may be
acquired, and that the employee's reinstatement may not be delayed
while contact with the health provider is made. A number of commenters
responding to the RFI addressed the ``simple statement'' rule. Some
employers noted that particular safety concerns inherent in their
workplaces necessitated that they obtain clear information regarding an
employee's ability to safely return from leave. For example, Union
Pacific Railroad Company noted that clear information regarding its
employees' ability to work is critical as ``those very employees are
entrusted with jobs that affect the safety and security of the general
public.'' The Association of American Railroads also stated that
``returning an employee to work is not a `simple' process in cases
where the employee performs a safety sensitive job.'' Therefore, it
recommended that the Department should ``define a return to work
`certification' in such a way as to allow employers to require a
detailed certification similar to what is required when an employee
first requests FMLA leave.'' Similarly, the Maine Pulp & Paper
Association stated:
Employees in the paper industry routinely work with hazardous
materials in close proximity to heavy machinery. Forcing employers
to accept the employee's medical provider's simple statement that
the employee ``is able to resume work,'' or worse, in the case of an
intermittent leave-taker, accept the employee's word alone with no
medical verification whatsoever jeopardizes the safety of co-workers
and increases exposure to expensive workers' compensation claims.
MPPA's members have strong safety programs which should not be
undercut by administrative requirements of the FMLA.
Jackson Lewis LLP stated that the ``simple statement'' provision allows
employees to present ``cursory and conclusory notes asserting, without
any factual explanation, that they are `cleared to return to work
without restrictions.' Employers must ignore facts suggesting employees
are not qualified to perform their jobs or might pose a direct threat
of harm to themselves or others.'' The National Coalition To Protect
Family Leave also noted that ``the inability of an employer to obtain
more than a `statement' that the employee can return to work, and lack
of opportunity to challenge such a statement, creates risk for everyone
involved.'' The Coalition and a number of other commenters stated that
the return to work process under the FMLA conflicts with the return to
work process under the ADA, with the latter providing a better model
because it allows both more substantive information and physical
examinations.
In contrast, as explained in more detail with regard to paragraph
(g) of this section, several commenters representing employees,
including the National Partnership for Women & Families, cautioned that
altering the fitness for duty certification procedures under the FMLA
would place an ``unwarranted burden'' on employees.
The proposed regulation retains the basic fitness-for-duty
certification procedures, but states that for purposes of
authenticating and clarifying the fitness-for-duty statement, the
employer may contact the employee's health care provider consistent
with the procedures set forth in Sec. 825.307 above. The proposal also
replaces the requirement that the certification must only be a ``simple
statement'' with the statutory language that the employee must obtain a
certification from his or her health care provider that the employee is
able to resume work. The employer may provide the employee with a list
of the employee's essential job duties together with the eligibility
notice, in which (as provided for in proposed Sec. 825.300(b)(3)(v))
the employer advises the employee of the necessity for a fitness-for-
duty certification. If the employer provides such a list of essential
functions, it may require the employee's health care provider to
certify that the employee can perform them. When providing a fitness-
for-duty certification, the health care provider therefore must assess
the employee's ability to return to work against these identified
essential functions. However, if the employer wants the health care
provider to consider a list of essential functions, it must provide
them with the eligibility notice; providing the list at a later date
could force the employee to make an extra visit to the health care
provider or to incur extra expense or delay. The statement in the
current regulations that no additional information may be acquired has
been deleted, as the process of clarifying the fitness-for-duty
certification may result in the employer obtaining additional
information not initially provided on the fitness-for-duty
certification. But the employer may not request or require additional
information in a certification to establish fitness-for-duty than is
specified under these regulations.
The Department also requests further input concerning the
appropriate level
[[Page 7921]]
of information that may be obtained and the process that employers may
follow in connection with a fitness-for-duty certification. This
includes, but is not limited to, whether additional information or
procedures (such as a second and third opinion process) should be
permitted where an employer has reason to doubt the validity of the
fitness-for-duty certification. Although the Department did not ask
specific questions regarding these topics in the RFI, some commenters
did address them. For example, the Association of Corporate Counsel
suggested that employers should be permitted to require an employee
returning from FMLA leave to undergo a return to work physical
conducted by the employer's physician, so long as the employer
regularly requires such a physical for all employees returning to work.
The Ohio Department of Administrative Services and the National Council
of Chain Restaurants stated that employers should be allowed to get a
second opinion on a return to work certification when they have reason
to doubt the validity of the release. Briggs & Stratton Corporation
similarly suggested that an employer should be permitted, ``at its
expense, to require verification of the treating health care providers'
return to work certification,'' arguing that the current prohibition
impedes an employer's ability to fulfill its OSHA obligation to provide
a safe work place. The National Coalition To Protect Family Leave also
stated that the prohibition on second and third opinions on fitness for
duty certifications is ``problematic from a safety perspective'' and
conflicts with the ADA process. Therefore, it suggested that employers
should be able to challenge a certification obtained from an employee's
health care provider and ``to delay the employee's return to work
pending receipt of a second opinion if the employer has a reasonable
basis to believe that the employee may not be able to safely return to
work and perform all the essential functions of the job.'' The
Department is proposing no changes in this area, but requests further
comments on these issues.
The Department proposes no changes to current paragraph (d) of this
section, which explains who bears the cost of the fitness-for-duty
certification. Under both the current and proposed regulations, the
employee is responsible for the cost of obtaining a fitness-for-duty
certification.
Current paragraph (e) of this section explains that advance notice
of the need to provide a fitness-for-duty certification must be given
when an employee goes out on leave. It also requires that if an
employer has a handbook, the employer should include its general policy
with regard to fitness-for-duty certifications. The current regulations
further provide that no second or third opinions on fitness-for-duty
certifications may be required. The Department proposes to modify this
section by specifying that the notice of the fitness-for-duty
certification requirement is to be provided in the eligibility notice
set forth in proposed Sec. 825.300(b).
Current paragraph (f) of this section provides that an employer may
delay restoration to employment until an employee submits a required
fitness-for-duty certification unless the employer has failed to
provide the notice required by paragraph (e). This language has been
retained in the proposed regulations. The Department proposes, however,
to add language, consistent with current Sec. 825.311(c), to make
clear that the employee is not entitled to the reinstatement
protections of the Act if he or she does not provide such a requested
certification or request additional FMLA leave.
Current Sec. 825.310(g) provides that an employer cannot obtain a
fitness-for-duty certification when an employee returns from an
intermittent leave absence. Numerous commenters responding to the
request for information addressed this provision. The employer comments
indicate that the primary purpose of requiring a fitness-for-duty
certification is to make sure the employee is able to resume work
safely without harming the employee, co-workers, or the public. When
leave is taken intermittently, employers state that they may need to
determine whether the employee is fit for duty when safety concerns are
at issue, the same as when an employee returns from a block of leave.
For example, the United States Postal Service stated:
Exempting chronic conditions from return to work clearance seems
to make little sense because those conditions are just as likely as
any other to compromise the health or safety of the workforce.
Indeed, some chronic conditions are even more likely to give rise to
a justifiable need for return to work clearance than the other
serious health conditions under the FMLA. For example, an employer
may have little concern about the clerical assistant returning to
work after giving birth, but far more (and legitimate) concern about
allowing a utility worker to return after a series of epileptic
seizures on the job.
Honda similarly stated that, ``[i]n manufacturing, many of the jobs
include safety-sensitive duties. Therefore, the current regulation
prohibiting a fitness-for-duty form for intermittent leaves puts the
employee and his/her co-workers at risk and requires the employer to
assume a legal risk for liability, if there is an accident caused by
the reinstated employee.'' Therefore, Honda suggested that employers
should be permitted to require a fitness-for-duty form for employees
returning from intermittent leave, but only ``when it is consistent
with the employer's `uniformly-applied policy or practice' applicable
to all similarly-situated employees [the general standard for fitness-
for-duty certifications in Sec. 825.310(a)].'' The City of New York
commented that ``Fitness for Duty Certifications for employees in
safety-sensitive positions who are intermittently absent should be an
option for employers. For example, if a sanitation worker responsible
for driving a two-ton truck on public roadways takes intermittent leave
to treat high blood pressure, a fitness for duty certification should
be required before the employee is restored to the position which
carries an extreme responsibility to the public.'' Dallas Area Rapid
Transit similarly stated that allowing employers ``to request a Fitness
for Duty certification [for employees returning from intermittent
leave] would protect the safety of both the employee and the public,
and support the employer's efforts and regulatory requirement to
provide a safe workplace, while also providing a safe efficient service
to its customers.'' Such employers suggested that the FMLA return to
work process undercuts legitimate employer safety programs. Therefore,
numerous commenters, including Willcox & Savage, Foley & Lardner LLP,
the National Retail Federation, the National Council of Chain
Restaurants, and the National Coalition to Protect Family Leave,
suggested that the Department should delete or revise this section of
the regulations so that employers would have the same right to seek
fitness for duty certifications from employees returning to work from
intermittent leave as they do for block leave. Hinshaw & Culbertson LLP
suggested that fitness-for-duty certifications ``could be regulated to
prevent abuse by the employer by limiting such statements to certain
time frames, such as once a quarter. It could also be based on the
frequency of the intermittent leave; the more frequent the leave, the
more frequent the statement.''
However, numerous commenters representing employees vigorously
supported the existing regulation. The National Partnership for Women &
Families commented that requiring
[[Page 7922]]
employees returning from intermittent leave to provide fitness for duty
certifications--which are at the employee's expense--would
significantly undermine the statutory purpose behind allowing employees
to take intermittent leave. It stated that ``[a]ny benefit to the
employer of obtaining fitness for duty statements from intermittent
leave-takers is far outstripped by the unwarranted burden that such a
change in the regulations would impose on employees. * * * The
intermittent leave option helps to take some of the financial strain
off employees by enabling them to continue earning a paycheck while
addressing serious health or family needs, and allows employees to
preserve as much of the twelve weeks of leave as possible.'' The
American Federation of Teachers, Local 2026, stated that ``[t]here is
no reason to disturb the current rule barring employers from requesting
fitness for duty statements from workers who take intermittent leave.''
The AFL-CIO noted that ``[r]equiring employees who take intermittent
leave to present fitness for duty certifications for potentially every
absence is burdensome and unnecessary.'' The Pennsylvania Social
Services Union, SEIU 668, concurred, stating that there is no reason to
disturb the current rule. Kennedy Reeve & Knoll commented that ``the
logistical impossibility and financial burdens of allowing employers to
require fitness-for-duty statements for each and every day of absence
make such a policy not feasible.'' The National Business Group on
Health also stated that ``[i]t would be an administrative headache to
require a fitness for duty statement from an employee who is absent
intermittently. The added paperwork to cover this would be overly
burdensome.'' The Indiana State Personnel Department, Employee
Relations Division, also recognized that the burden of providing
fitness for duty certifications after every intermittent absence would
be significant for employees and health care providers, but beneficial
to employers. In an attempt to address the cost concern, the United
Parcel Service suggested that employers bear the cost of fitness for
duty certifications when the employee is returning from intermittent
leave.
The Department believes, as the comments from employee
representatives assert, that it would be unduly burdensome on employees
to have to provide a fitness-for-duty certificate for each intermittent
leave absence. However, the numerous employer comments addressing the
significant safety risks that can exist when some employees return from
intermittent leave absences indicate that the current regulation does
not appropriately address those concerns. Therefore, the Department
proposes that an employer be permitted to require an employee to
furnish a fitness-for-duty certificate every 30 days if an employee has
used intermittent leave during that period and reasonable safety
concerns exist. For example, if an employee is out periodically for
high blood pressure, and the employee operates heavy equipment as part
of the employee's essential functions, an employer may have reason to
get certification that the employee can perform the essential functions
of the job. The employer may not terminate the employment of the
employee while awaiting such a certification of fitness for duty for an
intermittent or reduced schedule leave absence. The Department is
cognizant of the potential burdens on employees who may need to provide
both a recertification and a fitness-for-duty certificate within a
short period of time. The Department specifically seeks comment on ways
to minimize this burden and asks whether this proposal strikes the
appropriate balance.
Current paragraph (h) of this section would be deleted to avoid
redundancy. This paragraph, which provides an explanation as to the
repayment of health insurance premiums if the employee is unable to
return to work as a result of a continuation of a serious health
condition, is duplicative of the provisions set forth in Sec. 825.213.
The last sentence of current Sec. 825.310(h), which explains who bears
the cost of the certification in such circumstances, is moved to
proposed Sec. 825.213(a)(3).
Section 825.311 (Failure to provide medical certification)
Current Sec. 825.311(a) provides that, in the case of foreseeable
leave, if an employee fails to provide medical certification in a
timely manner, the employer may delay the taking of FMLA leave until it
has been provided. In response to the RFI, Foley & Lardner LLP noted
that the regulation ``does not explain how long the delay may last or
what the consequences of a 'delay' can be.'' The Department agrees and
proposes to explain more clearly the implications of an employee's
failure to provide the medical certification in a timely manner.
Currently, the regulation states that an employer may ``delay the
taking of FMLA leave.'' If the employee takes leave without timely
providing a sufficient medical certification for foreseeable leave,
then any leave during the time period that the certification was
``delayed'' is not FMLA-protected. To make sure both employees and
employers understand the intended meaning of this provision, the
Department proposes to amend the wording to state that the employer may
``deny FMLA coverage'' for the period at issue. This proposed language
ensures that there is no misunderstanding as to the impact of the
ultimate failure to provide a medical certification in a timely manner,
but substantively this is not a change from the current regulation. See
current Sec. 825.312(b) (``If the employee never produces the
certification, the leave is not FMLA leave.''); see also Sherman &
Howard LLC (``The regulations should make clear that if an employee
does not ultimately qualify for FMLA leave, or fails to provide medical
certification to support the requested leave, the employee's absence
will be unprotected. This means that the employer may appropriately
enforce its attendance policy which may result in disciplinary action
being taken against the employee.''). Proposed paragraph (a) is titled
``[f]oreseeable leave.'' Current Sec. 825.311(b) contains similar
language to current paragraph (a) with regard to unforeseeable leave.
The Department proposes language similar to that proposed in paragraph
(a), to be titled ``[u]nforeseeable leave,'' in proposed Sec.
825.311(b). Section 825.311(b) is proposed to be reworded for purposes
of clarity, but no other substantive changes have been made. The
Department proposes a new paragraph (c), to be titled
``[r]ecertification,'' that addresses the consequences of failing to
provide a timely recertification when requested by the employer. The
proposed regulations provide that if a recertification is not provided
within 15 days of the request, or as soon as practicable, the employer
may deny the continuation of the FMLA leave protections until the
recertification is provided. Former paragraph (c) is moved to proposed
paragraph (d) but no changes have been made in the requirement to
provide medical certification that an employee is fit for duty and able
to return to work when seeking reinstatement following FMLA leave for a
serious health condition.
Section 825.312 (When can an employer refuse reinstatement)
Current Sec. 825.312(a) through (f) address when an employer can
delay or deny FMLA leave to an employee, or deny reinstatement after
FMLA leave, when an employee fails to timely provide the required
notifications and certifications set forth in the regulations. As these
sections are duplicative of
[[Page 7923]]
other regulatory sections, they have been deleted from the proposed
rule. Current paragraphs (g) and (h) of Sec. 825.312, which address
the fraudulent use of leave and outside employment, have been
renumbered as Sec. 825.216(d) and (e), which also deal with
limitations on reinstatement, but no substantive changes have been
made.
Sections 825.400 through 825.600
No changes are proposed in Sec. Sec. 825.400 through 825.600 other
than to the titles of the sections and very minor editorial changes
(adding a reference to the Department's website in proposed Sec.
825.401(a), updating the reference in proposed Sec. 825.500(c)(4) to
the new employer eligibility notice requirement proposed in Sec.
825.300(b), and deleting a cross-reference in proposed section
825.601(b)).
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
Section 825.700 (Interaction with employer's policies)
Current Sec. 825.700(a) provides that an employer may not diminish
the rights established by the FMLA through an employment benefit
program or plan, but that an employer may provide greater leave rights
than the FMLA requires. As noted previously, the U.S. Supreme Court in
Ragsdale invalidated the last sentence of current Sec. 825.700(a),
which states that if an employee takes paid or unpaid leave and the
employer does not designate the leave as FMLA leave, the leave taken
does not count against an employee's FMLA entitlement.
A number of commenters responding to the RFI addressed the effect
of Ragsdale. For example, the National Coalition to Protect Family
Leave stated that Sec. 825.700(a) should be removed from the
regulations. The Air Transport Association of America, Inc. and the
Airline Industrial Relations Conference suggested that the regulations
should be revised in light of Ragsdale, because employers do not know
which regulations they must follow and which are no longer valid, and
employees who read them also are confused about which regulations their
employers must follow. The Association of Corporate Counsel similarly
suggested that Sec. 825.700(a) should be deleted to clarify that an
employer's failure to timely designate leave does not increase the
statutory leave period. Hewitt Associates LLC commented that ``by
deleting the `penalty' provision and simply reinforcing employer
notification obligations,'' the Department would appropriately respond
to Ragsdale. The National Partnership for Women & Families stated that
while the Supreme Court struck down the ``categorical penalty'' in the
current regulations, it left intact the requirement that employers
designate leave, and it ``did not prohibit DOL from imposing any
penalties on employers for failing to properly designate and notify
employee about leave'' (emphasis in original). (Related comments from
both employer and employee representatives addressing possible changes
to the notice and designation of leave requirements are addressed in
the preamble discussing changes to Sec. 825.208.)
In light of these comments, the Department proposes to delete the
last sentence from paragraph (a) of this section struck down by
Ragsdale. Other than this change required by the Court's decision, the
Department proposes no changes to current paragraph (a).
The Department proposes no changes to current Sec. 825.700(b),
which provides that an employer may amend existing leave programs, so
long as they comply with the FMLA, and that nothing in the Act is
intended to discourage employers from adopting or retaining more
generous leave policies.
The Department proposes to delete Sec. 825.700(c)(1) and (2) from
the current regulations, as they discuss the initial applicability of
the statute and periods of employment prior to the statute's effective
date, which are no longer necessary.
Section 825.702 (Interaction with Federal and State anti-discrimination
laws)
Current Sec. 825.702 addresses the interaction between the FMLA
and other Federal and State anti-discrimination laws. Current paragraph
(a) confirms that the FMLA and other Federal or State laws are wholly
distinct and must be complied with independently. Paragraphs (b), (c),
(d) and (e) primarily focus on the interaction between the FMLA and the
Americans with Disabilities Act (ADA), particularly with regard to
leave rights, job modification, light duty, reassignment, and
reinstatement. Paragraph (f) focuses on the interaction of the FMLA
with Title VII of the Civil Rights Act of 1964, as amended by the
Pregnancy Discrimination Act, and paragraph (g) states that the U.S.
Equal Employment Opportunity Commission can provide further information
on Title VII and the ADA.
The Department proposes to add a new paragraph (g) in this section.
Existing paragraph (g) would become proposed paragraph (h) in this
section. Proposed paragraph (g) incorporates a discussion of the
interaction between the Uniformed Services Employment and Reemployment
Rights Act of 1994 (USERRA) and the FMLA. The current regulations
contain no such reference, and the interaction between these two laws
has been confusing to employees and employers alike. On July 22, 2002,
the Department issued guidance stating that, based upon the
reinstatement rights provided by USERRA, an employee is entitled to
credit for FMLA eligibility purposes for the months and hours that the
employee would have worked during the 12 months preceding the start of
the leave but for his or her qualifying active duty uniformed service.
See http://www.dol.gov/vets/media/fmlarights.pdf. This guidance has
been incorporated into paragraph (g) of the proposed regulations. The
only other change the Department is proposing is to conform the cross-
reference in paragraph (d)(2) to the proper paragraph in proposed Sec.
825.207.
The Department received numerous comments in response to the RFI
that discussed the relationship between the FMLA and the ADA. Many of
those comments were discussed in Chapter VII of the Department's 2007
Report on the RFI comments (see 72 FR at 35599), and other sections of
this preamble address comments that are relevant to those sections
(see, e.g., Sec. Sec. 825.306-.307). The Department also received
comments regarding the interaction between the FMLA and the ADA that
are relevant to the job modification, light duty, and reassignment
issues addressed in this section.
A number of organizations commented on the differences between the
FMLA's and ADA's treatment of light duty work. Sections 825.702(d)(2)
and 825.220(d) of the FMLA regulations provide that an employee may
voluntarily accept a ``light duty'' assignment while recovering from a
serious health condition, but cannot be coerced to do so. Under the
ADA, an employer does not have to create a light duty position for an
individual with a disability but, if a vacant, light duty position
already exists, the employer must reassign the individual with a
disability to the position if there is no other effective accommodation
available and the reassignment would not pose an undue hardship. See
EEOC, Workers' Compensation Guidance, at Questions 27 and 28. In
addition, if the only effective accommodation available is similar or
equivalent to a light duty position, an employer must provide that
accommodation, absent undue
[[Page 7924]]
hardship. See EEOC, Workers' Compensation Guidance, at Question 27.
The Department also received comments regarding the differing
standards under the FMLA and the ADA for transferring or reassigning
employees to alternative positions. The FMLA permits an employer to
temporarily transfer an employee who needs foreseeable intermittent or
reduced schedule leave for planned medical treatment to an alternative
position; however, the position must have equivalent pay and benefits.
The position also must be one for which the employee is qualified and
which better accommodates recurring periods of leave. Under the ADA,
part-time work or occasional time-off may be a reasonable
accommodation. As a general matter, reassignment is the accommodation
of last resort under the ADA. However, if or when an employee's need
for part-time work or reduced hours in his or her current position
creates an undue hardship for an employer, the employer must transfer
the employee to a vacant, equivalent position for which the employee is
qualified, unless doing so would present an undue hardship for the
employer. If an equivalent position is not available, the employer must
look for a vacant position at a lower level. Further accommodation is
not required if a lower level position is also unavailable. See EEOC,
Fact Sheet: ``The Family and Medical Leave Act, the Americans with
Disabilities Act, and Title VII of the Civil Rights Act of 1964''
(hereafter ``EEOC FMLA and ADA Fact Sheet''), at Question 13. Under the
ADA, employers who place employees in lower level positions are not
required to maintain the employee's salary at the level of the higher
grade, unless the employer does so for other employees. See EEOC
Technical Assistance Manual Sec. 3.10.5.
Commenters also focused on the differences between the FMLA and the
ADA with regard to the use of leave. Under current Sec. 825.115, an
eligible employee may use leave ``where the health care provider finds
that the employee is unable to work at all or is unable to perform any
one of the essential functions of the employee's position.'' Other
provisions of the FMLA allow an employee to take leave intermittently
or on a reduced schedule. See 29 U.S.C. 2612(b); 29 CFR 825.203-.205.
Under the ADA, an employee is entitled to reasonable accommodation,
including medical leave, only if he or she has an impairment that
``substantially limits'' one or more major life activities. Moreover,
an employer is not required to provide any accommodation that would
pose an ``undue hardship'' on the operation of the employer's business.
Neither the FMLA regulations nor the statute limits the availability of
FMLA leave to situations where the employee's absence does not impose
an ``undue hardship'' on the employer.
Although the Department received many comments seeking greater
consistency between the FMLA and the ADA, the Department can do nothing
to alter the fact that the two statutes serve distinctly different
purposes, provide different rights, and have different eligibility
criteria. Moreover, the FMLA legislative history clearly states that
the ``purpose of the FMLA is to make leave available to eligible
employees and employers within its coverage, and not to limit already
existing rights and protection,'' and it specifically recognizes that
``the leave provisions of the [FMLA] are wholly distinct from the
reasonable accommodation obligations of employers covered under the
[ADA].'' S. Rep. No. 103-3, at 38 (1993). Therefore, the Department
proposes no changes to this section (other than the addition of a new
section addressing USERRA and the changed internal cross-reference, as
described previously). However, the Department believes that both
employees and employers would benefit from a better understanding of
the interaction between the ADA and FMLA, and provides the following
additional description of that interaction.
Although the FMLA adopts the ADA definition of ``essential
functions,'' an FMLA ``serious health condition'' is not necessarily an
ADA ``disability.'' An ADA ``disability'' is an impairment that
substantially limits one or more major life activities, a record of
such an impairment, or being regarded as having such an impairment. 42
U.S.C. 12102(2). Some FMLA ``serious health conditions'' may be ADA
disabilities, for example, most cancers and serious strokes and some
chronic conditions. Other ``serious health conditions'' may not be ADA
disabilities, for example, pregnancy or a routine broken leg or hernia.
This is because the condition is not an impairment (e.g., normal
pregnancy), or because the impairment is not substantially limiting
(e.g., a routine broken leg or hernia). See EEOC FMLA and ADA Fact
Sheet, at Question 9.
Under the ADA, an employer is required to make a reasonable
accommodation to the known physical or mental limitations of an
otherwise qualified employee with a disability if it would not impose
an ``undue hardship'' on the operation of the employer's business.
Undue hardship is defined as an action requiring significant difficulty
or expense when considered in light of factors such as an employer's
size, financial resources, and the nature and structure of its
operation. Reasonable accommodation may include adapting existing
facilities, job restructuring, modifying work schedules, acquiring or
modifying equipment or devices, or adjusting or modifying policies.
Reasonable accommodation can include reassignment to a vacant
equivalent position, if available, or to a lesser position if an
equivalent one is unavailable or causes undue hardship. An employer
must provide an effective reasonable accommodation that does not pose
an undue hardship, but need not provide the employee's preferred
accommodation.
Generally, an individual with a disability (or his or her
representative) must notify the employer of a request for reasonable
accommodation. An individual may use ``plain English'' and the request
need not be in writing or mention the ADA or the phrase ``reasonable
accommodation.'' Instead, an individual must let the employer know that
he or she needs an adjustment or change at work for a reason related to
a medical condition. After receiving a request for reasonable
accommodation, an employer and the individual with a disability should
engage in an informal, ``interactive process'' to clarify what the
individual needs and identify the appropriate reasonable accommodation.
See 29 CFR pt. 1630 app. Sec. 1630.9. As part of this ``interactive
process,'' the employer may ask the individual relevant questions that
will enable it to make an informed decision about the request. This
includes asking what type of reasonable accommodation is needed. When
the disability and/or the need for accommodation is not obvious, the
employer may ask the individual for reasonable documentation about his
or her disability and functional limitations. See ``EEOC Enforcement
Guidance: Reasonable Accommodation and Undue Hardship Under the
Americans with Disabilities Act,'' revised Oct. 17, 2002, at Questions
1, 3, 5, and 6. This is similar to the rule under the FMLA (see Sec.
825.302), where an employee need not assert his or her rights under the
FMLA or even mention the FMLA to put the employer on notice of the need
for FMLA leave, but must provide sufficient information to an employer
so that the employer is aware that FMLA rights may be at issue. The
proposed rule states that sufficient information includes information
that indicates that
[[Page 7925]]
the employee is unable to perform the functions of the job, the
anticipated duration of the absence, and whether the employee intends
to visit a health care provider. Once the employer is put on notice of
a FMLA leave request, the regulations specify what information must be
exchanged between the employee and employer, rather than them engaging
in an informal, ``interactive'' process.
Unpaid leave is a potential reasonable accommodation that an
employer might need to provide to an otherwise qualified individual
with a disability, unless (or until) it imposes an undue hardship on
the operation of the employer's business. See 29 CFR pt. 1630 app.
Sec. 1630.2(o). An otherwise qualified individual with a disability
may be entitled to additional unpaid leave as a reasonable
accommodation under the ADA, beyond the 12 weeks of unpaid leave
available under the FMLA, if the additional leave would not impose an
undue hardship on the operation of the employer's business. Generally,
unpaid leave is explored as a reasonable accommodation only after
examining, through the interactive process, whether reasonable
accommodations can be made to the employee's job to keep the employee
at work. No set amount of leave is required as a reasonable
accommodation under the ADA. The existence of the FMLA does not mean
that more than 12 weeks of unpaid leave automatically imposes an undue
hardship for purposes of the ADA. To evaluate whether additional leave
would impose an undue hardship, the employer may consider the impact on
its operations caused by the employee's initial 12-week absence, along
with the undue hardship factors specified in the ADA and its
regulations found at 29 CFR 1630.2(p). See EEOC FMLA and ADA Fact
Sheet.
Under the ADA, a qualified individual with a disability may work
part-time in his or her current position, or occasionally take time
off, as a reasonable accommodation if it would not impose an undue
hardship on the employer. If (or when) reduced hours create an undue
hardship in the current position, the employer must see if there is
another effective accommodation or if there is a vacant, equivalent
position for which the employee is qualified and to which the employee
can be reassigned without undue hardship while working a reduced
schedule. If an equivalent position is not available, the employer must
look for a vacant position at a lower level for which the employee is
qualified. Continued accommodation is not required if a vacant position
at a lower level is also unavailable. See EEOC FMLA and ADA Fact Sheet,
at Question 13.
Under the ADA, an employer must continue health insurance coverage
for an employee taking leave or working part-time only if the employer
also provides coverage for other employees in the same leave or part-
time status. The coverage must be on the same terms normally provided
to those in the same leave or part-time status. See EEOC FMLA and ADA
Fact Sheet, at Question 15. Under the FMLA, an employer must maintain
the employee's existing level of coverage (including family or
dependent coverage) under a group health plan during the period of FMLA
leave, provided the employee pays his or her share of the premiums. 29
CFR 825.209-.210. An employer may not discriminate against an employee
using FMLA leave, and therefore must also provide such an employee with
the same benefits (e.g., life or disability insurance) normally
provided to an employee in the same leave or part-time status. 29 CFR
825.220(c).
Under the ADA, an employer and employee may agree to a transfer, on
either a temporary or a permanent basis, if both parties believe that
such a transfer is preferable to accommodating the employee in his or
her current position. Note that a qualified individual with a
disability who is using FMLA leave to work reduced hours, and/or has
been temporarily transferred into another job under the FMLA, may also
need a reasonable accommodation (e.g., special equipment) to perform an
essential function of the job. See 29 CFR 825.204(b).
Section 825.800 (Definitions)
Current Sec. 825.800 contains the definitions of significant terms
used in the regulations. Changes to definitions that were affected by
the Department's proposed changes and clarifications have been made.
Specifically, changes and clarifications have been made to the terms
``continuing treatment,'' ``eligible employee,'' ``employee,'' ``health
care provider,'' ``serious health condition,'' ``parent,'' and ``son or
daughter.''
Family Leave in Connection With Injured Members of the Armed Forces and
Qualifying Exigencies Related to Active Duty
Section 585(a) of H.R. 4986, the National Defense Authorization Act
for FY 2008, amends the FMLA to provide leave to eligible employees of
covered employers to care for covered servicemembers and because of any
qualifying exigency arising out of the fact that a covered family
member is on active duty or has been notified of an impending call to
active duty status in support of a contingency operation (collectively
referred to herein as the military family leave provisions of H.R.
4986). The provisions of H.R. 4986 providing FMLA leave to care for a
covered servicemember became effective on January 28, 2008, when the
law was enacted. The provisions of H.R. 4986 providing for FMLA leave
due to a qualifying exigency arising out of a covered family member's
active duty (or call to active duty) status are not effective until the
Secretary of Labor issues regulations defining ``qualifying
exigencies.'' Because a significant number of United States military
servicemembers are currently on active duty or call to active duty
status, the Department is fully aware of the need to issue regulations
under the military family leave provisions of H.R. 4986 as soon as
possible. Towards that end, the Department began preliminary
consultations with the Departments of Defense and Veterans Affairs and
the U.S. Office of Personnel Management (which will administer similar
provisions regarding leave to care for a covered servicemember for most
Federal employees) prior to the passage of H.R. 4986.
As it did in the initial notice of proposed rulemaking under the
FMLA in 1993, 58 FR 13394 (Mar. 10, 1993), and in the interest of
ensuring the expedient publication of regulations, the Department is
including in this Notice a description of the relevant military family
leave statutory provisions, a discussion of issues the Department has
identified, and a series of questions seeking comment on subjects and
issues that may be considered in the final regulations. 5 U.S.C.
553(b)(3) (notice of proposed rulemaking shall include ``either the
terms or substance of the proposed rule or a description of the
subjects and issues involved''). Because of the need to issue
regulations as soon as possible so that employees and employers are
aware of their respective rights and obligations regarding military
family leave under the FMLA, the Department anticipates that the next
step in the rulemaking process, after full consideration of the
comments received in response to this Notice, will be the issuance of
final regulations.
The Department strongly encourages the submission of any comments
or concerns which should be considered in the course of developing the
final regulations. Commenters are encouraged to identify any issues
related to military family leave they believe need to be addressed--
even if the Department has not identified such issues--and to offer
[[Page 7926]]
their views, with supporting rationale, as to how such issues should be
addressed by the Department. Commenters also are invited to submit data
relating to the economic impact of the FMLA provisions in H.R. 4986.
The Department will undertake to implement the new military family
leave provisions so as to maximize the benefits and minimize the
burdens on both employees and employers consistent with the purposes of
the FMLA.
Summary of the Military Family Leave Provisions and Regulatory Issues
The FMLA amendments in Section 585(a) of H.R. 4986 are summarized
below. In addition to creating new leave entitlements, the FMLA
provisions of H.R. 4986 include conforming amendments to incorporate
the new leave entitlements into the current FMLA statutory provisions
relating to the use of leave and to add certain new terms to the FMLA's
statutory definitions. The FMLA amendments in H.R. 4986 raise a number
of issues about which the Department seeks comment. Although specific
issues for public comment are listed below after the discussion of each
FMLA statutory amendment in H.R. 4986, commenters are encouraged to
identify any issues they believe need to be addressed.
Section 101--Definitions
The military family leave provisions of H.R. 4986 add certain new
terms to the FMLA's definitions. The Department is considering adding
these definitions to proposed FMLA regulatory Sec. 825.800 as follows:
The term ``Active duty'' is defined by H.R. 4986 as duty under a
call or order to active duty under a provision of law referred to in 10
U.S.C. 101(a)(13)(B). This definition will be codified in the FMLA at
29 U.S.C. 2611(14). The Department believes that the Department of
Defense is in the best position to determine when a servicemember has
been called to active duty. Title 10 provides extensive information
regarding a servicemember's active duty or call to active duty status,
the terms of which, as noted in H.R. 4986, are referenced in Section
101(a)(13)(B) of that Title. Accordingly, the Department believes that
the definition of ``active duty'' in the military family leave
provisions of H.R. 4986 does not require further clarification and is
considering adding it to proposed FMLA regulatory Sec. 825.800 as
currently defined in H.R. 4986, and cross-referencing 10 U.S.C.
101(a)(13)(B).
``Contingency operation'' is defined by the military family leave
provisions of H.R. 4986 as a military operation designated by the
Secretary of Defense as provided under 10 U.S.C. 101(a)(13). This
definition will be codified in the FMLA at 29 U.S.C. 2611(15). The
Department believes that the Department of Defense's definition of
``contingency operation'' found in Title 10 does not require further
clarification; therefore, the Department is considering including a
definition of ``contingency operations'' in proposed FMLA regulatory
Sec. 825.800 as currently defined in Section 585(a)(1) of H.R. 4986,
and cross-referencing 10 U.S.C. 101(a)(13).
``Covered servicemember'' is defined by the military family leave
provisions of H.R. 4986 as a member of the Armed Forces (including
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.'' This definition will be codified in the FMLA at 29
U.S.C. 2611(16). The Department believes that determining whether a
member of the Armed Forces is in outpatient status or is otherwise on
the temporary disability retired list for a serious illness or injury
is likely to be relatively straightforward. There may be issues,
however, regarding what it means for a servicemember to be ``undergoing
medical treatment, recuperation, or therapy'' for a serious illness or
injury. The Department's initial view is that any treatment,
recuperation, or therapy provided to a servicemember for a serious
injury or illness, and not just that provided by the Armed Forces,
should be covered. The Department solicits public comments on this
issue. Should there be a temporal proximity requirement between the
covered servicemember's injury or illness and the treatment,
recuperation, or therapy for which care is required? Should the
Department rely on a determination made by the Department of Defense as
to whether a servicemember is undergoing medical treatment,
recuperation, or therapy for a serious injury or illness?
``Outpatient status'' for a covered servicemember is defined by the
military family leave provisions of H.R. 4986 as the status of a member
of the Armed Forces assigned to (a) a medical treatment facility as an
outpatient or (b) a unit established to provide command and control of
members of the Armed Forces receiving medical care as outpatients. This
definition will be codified in the FMLA at 29 U.S.C. 2611(17). The
Department believes this definition does not require further
clarification, and is considering including it in proposed FMLA
regulatory Sec. 825.800 as currently drafted in Section 585(a)(1) of
H.R. 4986.
``Next of kin'' is defined by the military family leave provisions
of H.R. 4986 as the ``nearest blood relative'' of an individual. This
definition will be codified in the FMLA at 29 U.S.C. 2611(18). The
Department is consulting with the Department of Defense regarding this
definition. Preliminary information suggests that, for disposition of
remains, personal effects and the release of records, the Department of
Defense generally considers the following individuals ``next of kin''
of a servicemember in the following order: (1) Unremarried surviving
spouse; (2) natural and adopted children; (3) parents; (4) remarried
surviving spouses (except those who obtained a divorce from the
servicemember or who remarried before a finding of death by the
military); (4) blood or adoptive relatives who have been granted legal
custody of the servicemember by court decree or statutory provisions;
(5) brothers or sisters; (6) grandparents; (7) other relatives of legal
age in order of relationship to the individual according to civil laws;
and (8) persons standing in loco parentis to the servicemember. The
Department seeks comments on whether it should adopt the above list of
next of kin for purposes of the military family leave provisions. The
Department also seeks comments on whether a definition of ``next of
kin'' that relies on differing State law interpretations is
appropriate, and whether a certification of ``next of kin'' status
should be required. If such a certification is required, the Department
seeks comments on who should issue such a certification, and its
contents.
The Department also seeks public comments on the requirement in the
military family leave provisions of H.R. 4986 that the next of kin be
the ``nearest'' blood relative. Should the Department interpret this
provision to mean that each covered servicemember may only have one
next of kin who is eligible to take FMLA leave to provide care if the
servicemember is undergoing medical treatment, recuperation, or
therapy, is otherwise in outpatient status, or is otherwise on the
temporary disability retired list, for a serious illness or injury? The
Department seeks comments on how to determine if an employee is the
nearest blood relative of a covered servicemember when a servicemember
has several relatives of close consanguinity still alive, and whether
this language could be
[[Page 7927]]
interpreted to provide military caregiver leave to any eligible next of
kin of a covered servicemember. If the nearest blood relative of a
covered servicemember is unable or unwilling to provide care, should
the next nearest blood relative of the covered servicemember be
eligible to take FMLA leave to care for the wounded servicemember? The
Department also seeks comments on whether it would be appropriate to
permit a covered servicemember to designate any blood relative, or
other individuals such as those recognized by the Department of Defense
as the servicemember's Committed And Designated Representative (CADRE),
as next of kin for purposes of FMLA leave taken to care for the
servicemember.
``Serious injury or illness'' in the case of members of the Armed
Forces, National Guard, or Reserves is defined by the military family
leave provisions of H.R. 4986 as ``an injury or illness incurred by the
member in line of duty on active duty in the Armed Forces that may
render the member medically unfit to perform the duties of the member's
office, grade, rank, or rating.'' This definition will be codified in
the FMLA at 29 U.S.C. 2611(19). The Department believes that the
Departments of Defense or Veterans Affairs are likely in the best
position to provide the standard for what constitutes a ``serious
illness or injury'' that may ``render the member medically unfit to
perform the duties of the member's office, grade, rank, or rating.''
Preliminary information suggests that the military branches already
regularly provide, when requested, a medical certification to family
members of covered servicemembers certifying that the member is
seriously injured or ill and is actively receiving medical treatment.
The Department seeks comments on whether a certification from the
Departments of Defense or Veterans Affairs should be sufficient to
establish whether a servicemember has a serious injury or illness that
was incurred by the member in the line of duty while on active duty
status in the Armed Forces, as well as on other approaches to
determining whether a servicemember has an injury or illness that may
render a servicemember medically unfit. The Department also seeks
comments on whether H.R. 4986 permits eligible employees to take
military caregiver leave under FMLA to care for a servicemember whose
serious injury or illness was incurred in the line of duty but does not
manifest itself until after the servicemember has left military
service. In such circumstances, how would one determine whether the
injury or illness renders, or may render, the servicemember medically
unfit to perform the duties of the member's office, grade, rank, or
rating, when the servicemember is no longer serving in the military?
The military family leave provisions of H.R. 4986 appear to rely on
certain of the FMLA's existing definitions (e.g., ``parent'', ``son or
daughter'', and ``spouse''). Although H.R. 4986 does not change these
definitions, the legislative history includes statements by members of
Congress that suggest that the term ``son or daughter'' should be given
a broader meaning under the military family leave provisions to include
adult children. As discussed in greater detail below, the Department
seeks comment on whether it would be appropriate to define some of
these terms differently for purposes of leave taken because of a
qualifying exigency or to care for a covered servicemember under the
military family leave provisions of H.R. 4986.
Section 102(a)--Leave Entitlement
The military family leave provisions of H.R. 4986 add a new
qualifying reason to take FMLA leave: ``[b]ecause 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 active duty (or has been notified of an impending call
or order to active duty) in the Armed Forces in support of a
contingency operation.'' This provision will be codified in the FMLA at
29 U.S.C. 2612(a)(1)(E) and, by its terms, is not operative until the
Secretary of Labor determines, by regulation, the qualifying exigencies
that will entitle an eligible employee to take FMLA leave.
Representative Jason Altmire, who introduced this provision, made
the following three statements on the House Floor regarding leave taken
for a qualifying exigency:
This amendment allows the immediate family of military personnel
to use Family Medical Leave Act time for issues directly arising
from deployment and extended deployments. The wife of a recently
deployed military servicemember could use the Family and Medical
Leave Act to arrange for childcare. The husband of a servicemember
could use the Family Medical Leave Act to attend predeployment
briefings and family support sessions. The parents of a deployed
servicemember could take Family Medical Leave Act time to see their
raised child off or welcome them back home. This amendment does not
expand eligibility to employees not already covered by the Family
Medical Leave Act * * *
[W]hat this legislation does is allow family members of our
brave men and women serving in the Guard and Reserve to use Family
and Medical Leave Act time to see off, to see the deployment, or to
see the members return when they come back, and to use that,
importantly, to deal with economic issues, and get the household
economics in order * * *
It will allow military families to use family and medical leave
time to manage issues such as childcare and financial planning that
arise as a result of the deployment of an immediate family member.
153 Cong. Rec. H5258 (daily ed. May 16, 2007); 153 Cong. Rec. H15325
(daily ed. Dec. 12, 2007); 153 Cong. Rec. H15349 (daily ed. Dec. 12,
2007) (statements of Representative Altmire).
In addition to Representative Altmire's statements, in remarks on
the Floor, Representative Tom Udall stated:
For every soldier who is deployed overseas, there is a family
back home faced with new and challenging hardships. The toll extends
beyond emotional stress. From raising a child to managing household
finances to day-to-day events, families have to find the time and
resources to deal with the absence of a loved one. * * * The
Altmire-Udall amendment would allow spouses, parents or children of
military personnel to use Family and Medical Leave Act benefits for
issues related directly to the deployment of a soldier. Current FMLA
benefits allow individuals to take time off for the birth of a child
or to care for a family member with a serious illness. The
deployment of a soldier is no less of a crisis and certainly puts
new demands on families. We should ensure that the FMLA benefits
given in other circumstances are provided to our fighting families
during their time of need.
153 Cong. Rec. E1076 (daily ed. May 17, 2007) (statement of
Representative Udall).
Finally, Representative George Miller stated that:
Under the amendment * * * a worker can take family and medical
leave to deal with the issues that arise as a result of a spouse,
parent, or child's deployment to a combat zone like Iraq or
Afghanistan. Under this amendment family members can use the leave
to take care of issues like making legal and financial arrangements
and making child care arrangements or other family obligations that
arise and double when family members are on active duty deployments
* * * These deployments and extended tours are not easy on families,
and two-parent households can suddenly become a single-parent
household and one parent is left alone to deal with paying the
bills, going to the bank, picking up the kids from school, watching
the kids, providing emotional support to the rest of the family. You
have got to deal with these predeployment preparations.
153 Cong. Rec. H5336 (daily ed. May 17, 2007) (statement of
Representative Miller).
[[Page 7928]]
Given the statements above and Webster's Dictionary definition of
``exigency'' as ``the quality or state of requiring immediate aid or
action, or a state of affairs that makes urgent demands,'' how should
the Department define qualifying exigencies for purposes of the
military family leave provisions of H.R. 4986? Should qualifying
exigencies be limited to those items of an urgent or one-time nature
arising from deployment as opposed to routine, everyday life
occurrences? The military family leave provisions of H.R. 4986 would
allow leave for any ``qualifying'' exigency arising out of the fact
that the spouse, son, daughter, or parent of an eligible employee is on
active duty (or has been notified of an impending call or order to
active duty) in support of a contingency operation. Because the statute
uses the word ``qualifying'', it is the Department's initial view that
not every exigency necessarily will entitle a military family member to
leave. It also is the Department's initial view that there must be some
nexus between the eligible employee's need for leave and the
servicemember's active duty status. The Department solicits comments on
the degree of nexus required to demonstrate that the exigency arises
out of the servicemember's active duty status. In light of the fact
that this new entitlement to leave would be in addition to the existing
qualifying reasons for FMLA leave, which already permit an eligible
employee to take FMLA leave to care for a son or daughter, parent, or
spouse with a serious health condition, the Department's initial view
is that leave for qualifying exigencies should be limited to non-
medical related exigencies, as suggested by Representative Altmire's
statements. The Department seeks comment on these issues and on whether
it would be appropriate to develop a list of pre-deployment,
deployment, and post-deployment qualifying exigencies. If so, should
the following types of exigencies qualify: making arrangements for
child care; making financial and legal arrangements to address the
servicemember's absence; attending counseling related to the active
duty of the servicemember; attending official ceremonies or programs
where the participation of the family member is requested by the
military; attending to farewell or arrival arrangements for a
servicemember; and attending to affairs caused by the missing status or
death of a servicemember? Are there other types of exigencies that
should qualify? Additionally, should such a list be a per se list of
qualified exigencies?
Although Representative Altmire's statements suggest that a parent
of an adult son or daughter should be permitted to take FMLA leave for
a qualifying exigency arising out of the deployment of the son or
daughter, the military family leave provisions of H.R. 4986 do not
alter the current FMLA definition of ``son or daughter.'' Under this
definition, a son or daughter must either be (1) under the age of 18 or
(2) 18 years of age or older and incapable of self-care because of a
mental or physical disability. 29 U.S.C. 2611(12). The Department
recognizes that applying this definition of ``son or daughter'' to
leave taken because of a qualifying exigency would mean parents would
only be able to take FMLA leave because of a qualifying exigency if
their son or daughter is under the age of 18 or older than age 18 and
incapable of self-care because of a mental or physical disability. By
Federal law, however, the minimum age for enlistment in the United
States Military is 17 (with parental consent). 10 U.S.C. 505. Moreover,
children over the age of 18 who are incapable of self-care are unlikely
to be found medically qualified to perform military duties. Therefore,
the Department seeks comments on whether it would be appropriate, given
the language of H.R. 4986, to define the term ``son or daughter''
differently for purposes of FMLA leave taken because of a qualifying
exigency.
The military family leave provisions of H.R. 4986 also establish an
additional leave entitlement that permits an ``an eligible employee who
is the spouse, son, daughter, parent, or next of kin of a covered
servicemember'' to ``a total of 26 workweeks of leave during a 12-month
period to care for the servicemember.'' This provision will be codified
in the FMLA at 29 U.S.C. 2612(a)(3). A number of issues regarding the
application of this new FMLA leave entitlement are discussed below. The
Department invites comments on these, and any other issues, related to
the provision of FMLA leave to care for a covered servicemember.
First, as with leave taken for a qualifying exigency, the military
caregiver provision of H.R. 4986 does not alter the current FMLA
definition of ``son or daughter'' for purposes of defining who is
eligible to take leave to care for a covered servicemember. Thus, the
only sons or daughters who will be eligible to take FMLA leave to care
for a seriously injured servicemember will be those who are under the
age of 18 or age 18 or older and incapable of self-care because of a
mental or physical disability. One alternative would be for the
Department to define ``next of kin'' as including children of covered
servicemembers. The Department could then define the term ``children''
more expansively than the term ``son or daughter'' is currently defined
in the FMLA to allow adult children of covered servicemembers to take
FMLA leave to care for a covered servicemember. Alternatively, the
Department could define the term ``son or daughter of a covered
servicemember'' differently than the term ``son or daughter.'' The
Department seeks comments on these approaches, whether these approaches
are allowed by the military family leave provisions of H.R. 4986, and
whether it is appropriate to define the term ``son or daughter''
differently for purposes of FMLA leave taken to care for a covered
servicemember.
Second, the military family leave provisions of H.R. 4986 provide
that leave to care for a covered servicemember shall only be available
``during a single 12-month period.'' The amendments do not specify
whether that 12-month period should be calculated from the date of the
servicemember's injury, the date of the determination that the
servicemember has a serious injury or illness, the first date on which
an eligible employee is needed to care for a seriously injured
servicemember, or on some other basis. Current and proposed Sec.
825.200 of the FMLA regulations permits an employer to choose any of
the following methods when determining the 12-month period in which the
current 12 weeks of FMLA leave entitlement occurs: (1) The calendar
year; (2) any fixed 12-month ``leave year,'' such as a fiscal year, a
year required by State law, or a year starting on an employee's
anniversary date; (3) the 12-month period measured forward from the
date any employee's first FMLA leave begins; or, (4) a ``rolling'' 12-
month period measured backward from the date an employee uses any FMLA
leave. The Department seeks comments on how the ``single 12-month
period'' should be measured for purposes of determining entitlement to
leave to care for a covered servicemember. For example, should an
employer be permitted to choose a method when determining the 12-month
period in which the 26 workweeks of leave entitlement to care for a
covered servicemember occurs, as is the case for other types of FMLA-
qualifying leave? What distinctions should the Department draw between
calculating the 12-month period for leave to care for a covered
servicemember and the other
[[Page 7929]]
qualifying reasons for FMLA leave? The Department also seeks comments
on how to reconcile this single 12-month period to the employer's
regular FMLA leave year, if different 12-month periods are used.
Third, the military family leave provisions of H.R. 4986 provide
that the eligible employee is entitled to a total of 26 workweeks of
leave during a single 12-month period to care for a covered
servicemember. Is the 26 workweek leave entitlement to care for a
covered servicemember a one-time entitlement or may an employee have
multiple entitlements? The FMLA currently provides that an eligible
employee is entitled to a total of 12 workweeks of leave during the
relevant 12-month period. The 12 workweeks of leave may be taken for
any qualifying FMLA reason until the leave is exhausted in the relevant
12-month period. Assuming the employee continues to meet the
eligibility requirements, the employee may take leave again (up to 12
weeks) for any qualifying FMLA reason in a new leave year. The
Department seeks comments on whether a similar approach to leave taken
to care for a covered servicemember would be appropriate even though
the leave entitlement to care for a covered servicemember is limited to
a ``single 12-month period'' under the military family leave provisions
of H.R. 4986.
Given the statutory language of H.R. 4986, can the 26 workweek
leave entitlement be interpreted to apply per covered servicemember,
i.e., each eligible employee may take 26 workweeks of leave to care for
each covered servicemember? Under this reading, an eligible employee
would be permitted to take 26 workweeks of leave to care for his or her
spouse who is a covered servicemember in a 12-month period, and could
take another 26 workweeks of leave to care for his or her parent who is
a covered servicemember in another 12-month period. Could an employee
take leave to care for both a spouse and a child who are covered
servicemembers in the same 12-month period? Alternatively, could the 26
workweek leave entitlement be calculated per injury of a covered
servicemember, such that an eligible employee may take 26 workweeks of
leave during a single 12-month period to provide care to a covered
servicemember and then may take another 26 workweeks of leave during a
different 12-month period to provide care to the same covered
servicemember who is experiencing a second serious injury or illness?
The 26 workweek leave entitlement also may be viewed as a one-time
entitlement to each eligible employee. This interpretation would permit
each eligible employee to take 26 workweeks of leave during any single
12-month period, but would not entitle that employee to any additional
periods of military family leave to care for the same or other covered
servicemembers while still employed by the same covered employer. In
this circumstance, does the 12-month limitation continue to apply to
the employee in the event he or she goes to work for a different
employer? Under any of these examples, should an employee be permitted
to take more than 26 workweeks of leave during a single 12-month
period? The Department seeks comments on these and any other options
relating to how this provision should be interpreted.
Fourth, because leave to care for a covered servicemember with a
serious illness or injury may, in some circumstances, also qualify as
leave to care for a spouse, parent, or child with a serious health
condition, the Department seeks comments on how such leave should be
designated. In particular, the Department seeks comments on whether the
employee or employer should be able to select whether the leave is
counted as FMLA leave taken to care for a covered servicemember or FMLA
leave taken to care for a spouse, parent or child with a serious health
condition. The Department also seeks comments on whether an initial
designation of this leave as one type of FMLA leave may be changed
retroactively in any circumstances.
Finally, the military family leave provisions of H.R. 4986 provide
for a combined total of 26 workweeks of FMLA leave for an eligible
employee who takes leave to care for a covered servicemember as well as
leave for other FMLA-qualifying reasons during the applicable 12-month
period. The military family leave provisions of H.R. 4986 do not limit
the availability of leave to an eligible employee for other FMLA-
qualifying reasons during any other 12-month period. These provisions
will be codified in the FMLA at 29 U.S.C. 2612(a)(4). How should these
provisions be implemented if different methods are used to calculate
the 12-month period for leave taken to care for a covered servicemember
versus leave for other FMLA-qualifying reasons?
Section 102(b)--Requirements Relating to Leave Taken Intermittently or
on a Reduced Leave Schedule
The military family leave provisions of H.R. 4986 allow eligible
employees to take FMLA leave to care for a covered servicemember
intermittently or on a reduced leave schedule when medically necessary.
Eligible employees also are permitted to take FMLA leave for a
qualifying exigency intermittently or on a reduced leave schedule.
These provisions will be codified in the FMLA at 29 U.S.C. 2612(b)(1).
The military family leave provisions of H.R. 4986 also permit an
employer to require an employee taking FMLA leave to care for a covered
servicemember who is undergoing planned treatment to temporarily
transfer to an available alternative position with equivalent pay and
benefits that better accommodates recurring periods of intermittent
leave or leave on a reduced leave schedule. This is the case currently
for FMLA leave taken for planned medical treatment due to the
employee's own serious health condition or the serious health condition
of a spouse, son, daughter, or parent. The military family leave
provisions of H.R. 4986 do not specifically provide for such temporary
transfers when FMLA leave is taken for a qualifying exigency. The
Department seeks comment on whether it would be appropriate to permit
temporary transfers when FMLA leave is taken on an intermittent or
reduced leave schedule basis for a qualifying exigency. The Department
also seeks comment on how H.R. 4986's provisions regarding leave taken
intermittently or on a reduced leave schedule should be incorporated
into proposed FMLA regulatory Sec. 825.202, which generally explains
the taking of FMLA leave intermittently or on a reduced leave schedule,
and proposed FMLA regulatory Sec. 825.204, which covers temporary
transfers.
Section 102(d)--Relationship to Paid Leave
The military family leave provisions of H.R. 4986 amend the
statutory provisions for substitution of paid leave to include the new
FMLA leave entitlements. These amendments will be codified in the FMLA
at 29 U.S.C. 2612(d). Under the military family leave provisions of
H.R. 4986, an eligible employee may elect, or an employer may require,
that an employee substitute any accrued paid vacation leave, personal
leave, or family leave for unpaid FMLA leave taken because of a
qualifying exigency. In addition, the military family leave provisions
of H.R. 4986 permit an eligible employee to elect, or an employer to
require, that an employee substitute any accrued paid vacation leave,
personal leave, family leave, or medical or sick leave for unpaid FMLA
leave taken to care for a covered servicemember. The Department is
considering how to
[[Page 7930]]
incorporate the military family leave provisions into proposed FMLA
regulatory Sec. 825.207, which addresses the substitution of paid
leave for unpaid FMLA leave. Because that section as currently proposed
in this NPRM refers generally to the substitution of paid leave for
unpaid FMLA leave, the Department does not believe that specific
reference to the new types of leave entitlement is required. The
Department also seeks comments on alternative approaches relating to
substitution of paid leave for military family leave provided under
H.R. 4986.
Section 102(e)--Employee Notice
The military family leave provisions of H.R. 4986 extend to the new
leave provision related to care for a servicemember the FMLA's existing
requirements for employees to provide advance notice when the need for
leave is foreseeable based on planned medical treatment, and for making
reasonable efforts to schedule planned medical treatment so as not to
disrupt unduly the employer's operations. The military family leave
provisions of H.R. 4986 also provide for new notice requirements for
leave taken due to qualifying exigencies whenever the need for such
leave is foreseeable. The military family leave provisions of H.R. 4986
require that eligible employees provide notice to the employer that is
``reasonable and practicable'' in these circumstances. These amendments
will be codified in the FMLA at 29 U.S.C. 2612(e)(2) and (e)(3).
Under the proposed FMLA regulations in this NPRM, an employee must
generally provide the employer at least 30 days advance notice before
FMLA leave is to begin if the need for the leave is foreseeable based
on an expected birth, placement for adoption or foster care, or planned
medical treatment for a serious health condition of the employee or of
a family member. If 30 days notice is not practicable, such as because
of a lack of knowledge of approximately when leave will be required to
begin, a change in circumstances, a medical emergency, or because the
leave is unforeseeable, notice must be given as soon as practicable
under the particular facts and circumstances. For a further discussion
of the employee notice requirements proposed in this NPRM, see the
preamble discussion of proposed FMLA regulatory Sec. Sec. 825.302 and
825.303.
The Department's initial view is that these same notice
requirements should be extended to leave taken to care for a covered
servicemember. If the same notice requirements were adopted, an
employee taking FMLA leave to care for a covered servicemember
generally would be expected to provide the employer at least 30 days
advance notice before FMLA leave is to begin when the need for the
leave is foreseeable based on planned medical treatment for the covered
servicemember. If 30 days notice is not practicable, such as because of
a lack of knowledge of approximately when leave will be required to
begin, a change in circumstances, a medical emergency, or because the
leave is unforeseeable, notice must be given as soon as practicable
under the particular facts and circumstances. The Department seeks
comments on whether it should incorporate leave to care for a covered
servicemember into the notice provisions of proposed FMLA regulatory
Sec. Sec. 825.302 and 825.303. The Department also is considering
applying the requirements in proposed FMLA regulatory Sec. Sec.
825.302(c) and 825.303(b), which require that the employee provide at
least verbal notice sufficient to make the employer aware that the
employee needs FMLA-qualifying leave and provide information regarding
the anticipated timing and duration of the leave, to the taking of FMLA
leave to care for a covered servicemember. Finally, the Department
requests comments on whether proposed FMLA regulatory Sec. Sec.
825.203 and 825.302(e), which address an employee's obligation to make
a reasonable effort to schedule foreseeable leave for planned medical
treatment so as not to disrupt unduly the employer's operations, should
specifically reference the requirement in H.R. 4986 that servicemember
family leave that is foreseeable based on planned medical treatment be
scheduled in the same manner.
The military family leave provisions of H.R. 4986 provide that an
employee taking leave due to a qualifying exigency provide ``such
notice to the employer as is reasonable and is practicable.'' The
Department's initial view is that the notice requirements in proposed
FMLA regulatory Sec. Sec. 825.302 and 825.303 also should be applied
to leave taken due to qualifying exigencies. If different notice
requirements should be used, the Department seeks comments on what
should be required. For example, should the notice timing requirements
for leave taken due to qualifying exigencies distinguish between
foreseeable leave and unforeseeable leave, as proposed FMLA regulatory
Sec. Sec. 825.302 and 825.303 do? Additionally, leave taken because of
a qualifying exigency may not involve a medical condition; therefore,
the Department seeks comments on the type of information an employee
should provide to the employer in order for the notice to be sufficient
to make the employer aware that the employee's need is FMLA-qualifying.
These changes also will likely require that the Department make
conforming changes to proposed FMLA regulatory Sec. 825.301(b), which
generally addresses employee responsibilities to provide notice of the
need for FMLA leave. The exact nature of the changes will depend on
whether the same notice standards are applied to all qualifying reasons
for FMLA leave. The Department believes that the general notice
principles set forth in proposed FMLA regulatory Sec. 825.301 should
apply to all qualifying reasons for FMLA leave. The public is invited,
however, to comment on this issue and provide alternative views.
Section 102(f)--Leave Entitlements for Spouses Employed by the Same
Employer
Under the military family leave provisions of H.R. 4986, an
employer may limit the aggregate amount of leave to which eligible
spouses employed by the same employer may be entitled in some
circumstances. H.R. 4986 provides that a husband and wife employed by
the same employer are limited to a combined total of 26 workweeks of
leave during the relevant 12-month period if the leave taken is to care
for a covered servicemember or a combination of leave taken to care for
a covered servicemember and leave for the birth or placement of a
healthy child or to care for a parent with a serious health condition.
This provision does not alter the existing 12-week limitation that
applies to leave taken by a husband and wife employed by the same
employer for leave for the birth or placement of a healthy child or to
care for a parent with a serious health condition (e.g., a husband and
wife employed by the same employer could take no more than a combined
total of 12 weeks of FMLA leave for the birth or placement of a healthy
child in a 12-month period, even if the husband and wife combined took
fewer than 14 weeks of leave to care for a covered servicemember, in
that same period). These provisions will be codified in the FMLA at 29
U.S.C. 2612(f). How should the Department incorporate the same employer
limitation of the military family leave provisions of H.R. 4986 into
the regulatory scheme proposed in this NPRM? The Department
specifically seeks comments on how H.R. 4986's limitation on spouses
employed by the same employer would interact with FMLA's existing
limitation
[[Page 7931]]
on spouses employed by the same employer if different 12-month periods
are used to determine eligibility for leave taken to care for a covered
servicemember and other FMLA-qualifying leave.
Conforming regulatory changes likely will be required to proposed
FMLA regulatory Sec. 825.120(a)(3), which discusses the applicability
of the same employer limit to FMLA leave taken for pregnancy or birth;
proposed FMLA regulatory Sec. 825.121(a)(3), applying the same
employer limit to FMLA leave taken for adoption or foster care; and
proposed FMLA regulatory Sec. 825.201(b), which discusses the same
employer limit in the context of FMLA leave taken to care for a parent
with a serious health condition. The Department requests comments on
how these sections should be changed to incorporate the same employer
limit in the military family leave provisions of H.R. 4986.
Section 103--Certification
The military family leave provisions of H.R. 4986 allow employers
to apply the FMLA's existing medical certification requirements for
serious health conditions to leave taken to care for a covered
servicemember. In addition, the military family leave provisions of
H.R. 4986 provide for a new certification related to leave taken
because of a qualifying exigency. Under the military family leave
provisions of H.R. 4986, an employer may require that leave taken
because of a qualifying exigency be ``supported by a certification
issued at such time and in such manner as the Secretary may by
regulation prescribe.'' These provisions will be codified in the FMLA
at 29 U.S.C. 2613.
The military family leave provisions of H.R. 4986 amend FMLA's
current certification requirements to permit an employer to request
that leave taken to care for a covered servicemember be supported by a
medical certification. FMLA's current certification requirements,
however, focus on providing information related to a serious health
condition--a term that is not relevant to leave taken to care for a
covered servicemember. At the same time, the military family leave
provisions of H.R. 4986 do not explicitly require that a sufficient
certification for purposes of military caregiver leave provide relevant
information regarding the covered servicemember's serious injury or
illness, such as whether the injury was incurred by the member in the
line of duty while on active duty in the Armed Forces, or whether the
injury may render the member medically unfit to perform the duties of
the member's office, grade, rank, or rating. In light of this, the
Department seeks comments on the appropriate certification requirements
for military caregiver leave, including whether it would be appropriate
to interpret FMLA's statutory certification requirements differently
for purposes of leave taken to care for a covered servicemember.
Furthermore, FMLA currently provides that an employer may request a
medical certification issued by the health care provider of the
employee's son, daughter, spouse, or parent in order to support a
request for FMLA leave to care for a spouse, parent, or child with a
serious health condition. 29 U.S.C. 2613. Although the leave
entitlement provisions of H.R. 4986 permit an eligible employee who is
the next of kin of a covered servicemember to take military family
leave, H.R. 4986's certification requirements appear to permit an
employer to obtain certification issued by the health care provider of
the employee's next of kin, rather than the covered servicemember. The
Department believes that an employer should only be able to obtain a
certification from the health care provider or military branch of the
covered servicemember for whom the eligible employee is caring. The
Department seeks comment on whether it is appropriate to interpret the
military family leave provisions of H.R. 4986 in this manner when a
medical certification is sought for leave taken by an eligible employee
who is the next of kin of a covered servicemember.
The Department is considering whether a medical certification to
support leave taken to care for a covered servicemember issued by the
Departments of Defense or Veterans Affairs would, in all cases,
eliminate the need to both define a sufficient medical certification
for purposes of taking leave to care for a covered servicemember and
develop a clarification, authentication, validation, and
recertification process for leave taken for this purpose. The
Department also seeks comment on whether, and how, to incorporate the
new certification requirement for leave taken to care for a covered
servicemember into proposed FMLA regulatory Sec. 825.305, which
describes the general rule applicable to FMLA medical certifications;
and proposed FMLA regulatory Sec. 825.306, which addresses the
required content of a FMLA medical certification. In light of the fact
that many of the certifications supporting leave taken to care for a
covered servicemember may be issued by the Departments of Defense or
Veterans Affairs, the Department specifically seeks comment on whether
there should be different timing requirements that an employee must
follow when providing such certification. Likewise, should the content
of a sufficient medical certification be different when it is required
to support a leave request to care for a covered servicemember? Should
the clarification, authentication, and second and third opinion
provisions of proposed FMLA regulatory Sec. 825.307 and the
recertification provisions in proposed FMLA regulatory Sec. 825.308 be
applied to certifications supporting FMLA leave taken to care for a
covered servicemember, and, if so, how?
The military family leave provisions of H.R. 4986 also permit the
Secretary of Labor to prescribe a new certification requirement for
leave taken because of a qualifying exigency arising out of a
servicemember's active duty or call to active duty. The Department is
considering how to implement such a requirement and seeks comments on
the following specific issues:
(A) What type of information should be provided in a certification
related to active duty or call to active duty status in order for it to
be considered complete and sufficient? Should the certification merely
require confirmation of the covered servicemember's active duty status?
(B) Who may issue a certification related to active duty or call to
active duty status? Should anyone other than the Department of Defense
provide a certification of the covered servicemember's active duty or
call to active duty status?
(C) The Department's initial view is that an employee also must
provide certification that an absence(s) is due to a qualifying
exigency. Because the military family leave provisions of H.R. 4986
require that the qualifying exigency arise out of the covered
servicemember's active duty or call to active duty status in support of
a contingency operation, should any required certification specify that
the requested leave is a qualifying exigency or that it arises out of
the covered servicemember's active duty or call to active duty status
in support of a contingency operation?
(D) Should an employee seeking FMLA leave due to a qualifying
exigency provide certification of the qualifying exigency by statement
or affidavit? Who else might certify that a particular request for FMLA
leave is because of a qualifying exigency?
(E) Should the certification requirements for leave taken because
of a qualifying exigency vary depending on
[[Page 7932]]
the nature of the qualifying exigency for which leave is being taken?
(F) What timing requirements should be applied to certifications
related to leave taken because of a qualifying exigency?
(G) Who should bear the cost, if any, of obtaining certifications
related to leave taken because of a qualifying exigency?
(H) Should an employer be permitted to clarify, authenticate, or
validate an active duty or call to active duty certification? Likewise,
should an employer be permitted to clarify, authenticate, or validate a
certification that a particular event is a qualifying exigency? If so,
what limitations, if any, should be imposed on an employer's ability to
seek such clarification, authentication, or validation for both types
of certifications?
(I) Should a recertification process be established for
certifications related to leave taken because of a qualifying exigency?
If so, how would that process compare to the current FMLA
recertification process?
Section 104(c)--Maintenance of Health Benefits
Under the FMLA, an employer must maintain group health insurance
coverage for an eligible employee on FMLA leave on the same terms as if
the employee continued to work. 29 U.S.C. 2614(c). When an eligible
employee takes qualifying leave to care for a covered servicemember and
fails to return from leave after the period of leave entitlement has
expired, under the FMLA amendments in H.R. 4986, the employer may
recover the premiums paid for maintaining the employee's group health
plan coverage during any period of unpaid leave if the employee fails
to return to work for a reason other than the continuation, recurrence,
or onset of a serious health condition that entitles the employee to
leave or other circumstances beyond the control of the employee. In
addition, the military family leave provisions of H.R. 4986 provide
that an employer may require an employee to support a claim that he or
she did not return to work after taking military caregiver leave
because of the continuation, recurrence, or onset of a serious health
condition with a certification issued by the health care provider of
the servicemember being cared for by the employee. These provisions
will be codified in the FMLA at 29 U.S.C. 2614(c)(2)-(3).
These new requirements focus on whether an employee does not return
to work because of the continuation, recurrence, or onset of a serious
health condition--a term that is not relevant to leave taken to care
for a covered servicemember. At the same time, the military family
leave provisions of H.R. 4986 do not explicitly address whether an
employer may recover premiums paid when an employee fails to return to
work because of the continuation, recurrence, or onset of a serious
injury or illness of the covered servicemember. Likewise, the military
family leave provisions of H.R. 4986 do not specifically provide that
an employer may obtain a certification regarding the continuation,
recurrence, or onset of the servicemember's serious injury or illness
if an employee does not return to work after taking FMLA leave to care
for a covered servicemember. In light of this, the Department seeks
comments on how to appropriately implement these provisions of H.R.
4986.
The Department is considering revisions to proposed FMLA regulatory
Sec. 825.213(a) to incorporate these new requirements. The Department
believes that proposed FMLA regulatory Sec. 825.213(a)(1) will need to
be changed in order to address an employee's failure to return to work
after taking leave to care for a covered servicemember. Proposed FMLA
regulatory Sec. 825.213(a)(3) also will need to be changed to provide
that an employer may require an employee to provide a certification
issued by the health care provider of the covered servicemember being
cared for by the employee. The Department requests comments on how the
requirements in H.R. 4986 should be incorporated into these proposed
FMLA regulatory provisions, and whether any additional guidance may be
required on this topic.
Section 107--Enforcement
The military family leave provisions of H.R. 4986 provide for
conforming amendments to the FMLA to include the new leave entitlements
in the FMLA's statutory enforcement scheme. These provisions will be
codified in the FMLA at 29 U.S.C. 2617 and amend FMLA's damages
provision to provide for the recovery of damages equal to any actual
monetary losses sustained by the employee up to a total of 26 weeks
(rather than the current 12 weeks) in a case involving leave to care
for a covered servicemember in which wages, salary, employment benefits
or other compensation have not been denied or lost to the employee.
The Department believes that a similar revision is required to FMLA
regulatory Sec. 825.400(c). That regulatory provision currently and as
proposed in this NPRM provides that an employee is entitled to actual
monetary losses sustained by an employee as a direct result of an
employer's violation of one or more of the provisions of FMLA up to a
total of 12 weeks of wages. In order to reflect that the leave
provisions relating to care for a covered servicemember provide up to
26 weeks of leave, the Department anticipates changing FMLA regulatory
Sec. 825.400(c) to provide that, in a case involving a violation of
the military family leave provisions, an employee is entitled to actual
monetary losses sustained up to a total of 26 weeks of wages. The
Department does not believe that further changes to the FMLA regulatory
provisions on enforcement are required in order to implement the
military family leave provisions of H.R. 4986. The Department invites
the public to comment on this and any other enforcement provisions that
they believe may need to be revised.
Section 108--Instructional Employees
The military family leave provisions of H.R. 4986 also extend the
entitlement to take FMLA leave to care for a covered servicemember and
because of a qualifying exigency to eligible instructional employees of
local educational agencies. In order to implement this revision, H.R.
4986 contains three statutory changes to the FMLA, which will be
codified in subsections (c)(1), (d)(2), and (d)(3) of 29 U.S.C. 2618,
and apply the current FMLA rules regarding the taking of intermittent
leave or leave on a reduced leave schedule, or leave near the end of an
academic term, by employees of local educational agencies to certain
leave taken to care for a covered servicemember by these same
employees. The Department believes that three related regulatory
changes are required to incorporate these provisions of H.R. 4986 into
the FMLA regulatory scheme proposed in this NPRM, which other than
changes to titles and very minor editorial changes is the same as the
instructional employee provisions in the current FMLA regulations.
First, the military family leave provisions of H.R. 4986 provide
that an employer covered by 29 U.S.C. 2618 could require that, in the
case of an instructional employee who requests FMLA leave
intermittently or on a reduced leave schedule for foreseeable planned
medical treatment of a covered servicemember and who, as a result, will
be on leave for greater than 20 percent of the total number of working
days during the period of leave, the employee choose to either (1) take
leave for a period or periods of particular duration; or (2) transfer
temporarily to an available alternative position with equivalent pay
and benefits that better
[[Page 7933]]
accommodates recurring periods of leave. In order to incorporate this
change, the Department believes a minor technical revision is required
to current and proposed FMLA regulatory Sec. 825.601(a)(1) to provide
that the provisions of that section apply when an eligible
instructional employee needs intermittent leave or leave on a reduced
schedule to care for a covered servicemember, in addition to applying
to situations where the employee takes such leave to care for a family
member or for the employee's own serious health condition. In all three
cases, the provision would continue to apply only to intermittent leave
or leave on a reduced leave schedule which is foreseeable based on
planned medical treatment and requires the employee to be on leave for
more than 20 percent of the total number of working days over the
period the leave would extend.
Second, the military family leave provisions of H.R. 4986 extend
some of the limitations on leave near the end of an academic term to
leave requested during this period to care for a covered servicemember.
The Department believes that several FMLA regulatory sections will need
to be changed in order to apply the limitations on leave near the end
of an academic term to military family leave. Current and proposed FMLA
regulatory Sec. 825.602(a)(2) provides that, where an instructional
employee begins leave for a purpose other than the employee's own
serious health condition during the five-week period before the end of
the term, the employer may require the employee to continue taking
leave until the end of the term if the leave will last more than two
weeks and the employee would return to work during the two-week period
before the end of the term. Because the military family leave
provisions of H.R. 4986 only extend this limitation on leave near the
end of an academic term to leave taken to care for a covered
servicemember, and not leave taken because of a qualifying exigency,
the Department believes that this FMLA regulatory section may need to
be changed in order to specifically reference the types of leave that
are subject to the limitation: (1) Leave because of the birth of a son
or daughter, (2) leave because of the placement of a son or daughter
for adoption or foster care, (3) leave taken to care for a spouse,
parent, or child with a serious health condition, and (4) leave taken
to care for a covered servicemember. A similar revision also may be
required to FMLA regulatory Sec. 825.602(a)(3), which currently and as
proposed in this NPRM provides that an employer may require an
instructional employee to continue taking leave until the end of the
term where the employee begins leave which will last more than five
working days for a purpose other than the employee's own serious health
condition during the three-week period before the end of the term.
The Department invites comments on whether additional revisions are
required to the regulatory provisions governing local educational
institutions in light of the military family leave provisions of H.R.
4986.
Incorporation of New FMLA Leave Entitlements Into Proposed FMLA
Regulatory Scheme
In addition to the issues discussed above, the Department
specifically requests comments on whether the FMLA leave entitlements
in H.R. 4986 should generally be incorporated into the FMLA regulatory
scheme proposed in this NPRM, or whether stand-alone regulatory
sections should be created for one or both of the military family leave
provisions of H.R. 4986. The Department seeks comments on which of
these approaches would be most beneficial for employees and employers.
Although not specified in the military family leave provisions of
H.R. 4986, the Department believes that a number of additional
conforming changes may be required to the proposed FMLA regulations in
this NPRM in order to fully integrate the military family leave
provisions into FMLA's regulatory scheme. For example, proposed FMLA
regulatory Sec. 825.100 may need to be changed to incorporate a
discussion of the new leave entitlements into the general description
of what the FMLA provides. Similarly, proposed FMLA regulatory Sec.
825.112(a), which provides the general rule regarding the circumstances
that will qualify for leave, may need to be changed to reference the
two qualifying reasons for FMLA leave in H.R. 4986.
The Department also plans on changing the proposed poster and
general notice to incorporate the military family leave provisions of
H.R. 4986. The Department's initial view is that these new qualifying
reasons for FMLA leave should be incorporated into the poster and
general notice discussed in proposed FMLA regulatory Sec. 825.300(a).
However, the Department seeks comments on whether a separate poster and
general notice should be created for military family leave. The
proposed eligibility and designation notices in FMLA regulatory Sec.
825.300(b) and (c) also will need to incorporate appropriate references
to military family leave. The Department seeks comments on how these
notices should be revised in order to incorporate these new FMLA leave
entitlements.
The Department seeks public comment on whether there are additional
regulatory sections that should be reexamined in light of the military
family leave provisions of H.R. 4986. The questions set forth above are
not intended to be an exhaustive list of issues that might arise when
FMLA leave is taken to care for a covered servicemember or because of a
qualifying exigency. The Department encourages the public to identify
any other issues which should be considered during the rulemaking
process.
Paperwork Reduction Act
In accordance with requirements of the Paperwork Reduction Act
(PRA), 44 U.S.C. 3501 et seq., and its attendant regulations, 5 CFR
part 1320, the DOL seeks to minimize the paperwork burden for
individuals, small businesses, educational and nonprofit institutions,
Federal contractors, State, local and tribal governments, and other
persons resulting from the collection of information by or for the
agency. The PRA typically requires an agency to provide notice and seek
public comments on any proposed collection of information contained in
a proposed rule. See 44 U.S.C. 3506(c)(2)(B); 5 CFR 1320.8. Persons are
not required to respond to the information collection requirements as
contained in this proposal unless and until they are approved by the
OMB under the PRA at the final rule stage.
This ``paperwork burden'' analysis estimates the burdens for the
proposed regulations as drafted. In addition and as already discussed,
the military family leave provisions of H.R. 4986 amend the FMLA to
provide leave to eligible employees of covered employers to care for
covered servicemembers and because of any qualifying exigency arising
out of the fact that a covered family member is on active duty or has
been notified of an impending call to active duty status in support of
a contingency operation. The new statutory provisions will be codified
at 29 U.S.C. 2612(e)(2) and (e)(3). The earlier preamble discussion on
Family Leave in Connection with Injured Members of the Armed Forces and
Qualifying Exigencies Related to Active Duty provides a fuller
explanation of the specific provisions and issues on which the
Department seeks public comments. Because of the need to issue
regulations as soon as possible so that employees and employers are
aware of the respective rights and obligations
[[Page 7934]]
regarding military family leave under the FMLA, the Department
anticipates issuing, after full consideration of the comments received
in response to this Notice, final regulations that will include
necessary revisions to the currently proposed FMLA information
collections.
As will be more fully explained later, many of the estimates in the
analysis of the ``paperwork'' requirements derive from data developed
for the Preliminary Regulatory Impact Analysis (PRIA) under E.O. 12866.
However, the specific needs that the PRA analysis and PRIA are intended
to meet often require that the data undergo a different analysis to
estimate the burdens imposed by the ``paperwork'' requirements from the
analysis used in estimating the effect the regulations will have on the
economy. Consequently, the differing treatment that must be undertaken
in the PRA analysis and the PRIA may result in different results. For
example, the PRA analysis measures the total burden of the information
collection; however, the PRIA measures the incremental changes expected
to result from the proposed regulatory changes. Thus, the PRA analysis
will calculate a paperwork burden for an information collection that
remains unchanged from the current regulation and the PRIA will not
consider that item. Conversely, the regulatory definition for
``collection of information'' for PRA purposes specifically excludes
the public disclosure of information originally supplied by the Federal
government to the recipient for the purpose of disclosure to the
public. 5 CFR 1320.3(c)(2). The PRIA, however, may need to consider the
impact of any regulatory changes in such notifications provided by the
government. For example, in the context of the proposed FMLA changes,
the general notice that employers currently must develop and provide to
their workers is proposed to be replaced with a notice using wording
provided by the DOL that employers must periodically provide to their
employees. This proposed DOL-provided FMLA notice would not be a
``collection of information'' for PRA purposes; therefore, the proposal
reduces burden for PRA purposes. The PRIA, however, must address the
economic impact of the frequency with which employers must provide the
DOL's FMLA notice under the proposed change to the regulations.
Finally, the PRA definition of ``burden'' can exclude the time, effort,
and financial resources necessary to comply with a collection of
information that would be incurred by persons in the normal course of
their activities (e.g., in compiling and maintaining business records).
5 CFR 1320.3(b)(2). The PRIA, however, must consider the economic
impact of any changes in the proposed regulation.
Circumstances Necessitating Collection: The FMLA requires private
sector employers of 50 or more employees and public agencies to provide
up to 12 weeks of unpaid, job-protected leave during any 12-month
period to ``eligible'' employees for certain family and medical reasons
(i.e., for birth of a son or daughter, and to care for the newborn
child; for placement with the employee of a son or daughter for
adoption or foster care; to care for the employee's spouse, son,
daughter, or parent with a serious health condition; and because of a
serious health condition that makes the employee unable to perform the
functions of the employee's job). FMLA section 404 requires the
Secretary of Labor to prescribe such regulations as necessary to
enforce this Act. 29 U.S.C. 2654. The proposed regulations provide for
the following information collections, many of which are third-party
notifications between employers and employees.
A. Employee Notice of Need for FMLA Leave [29 U.S.C. 2612(e); 29
CFR 825.100(d), 825.301(b), 825.302, and 825.303]. An employee must
provide the employer at least 30 days' advance notice before FMLA leave
is to begin if the need for the leave is foreseeable based on an
expected birth, placement for adoption or foster care, or planned
medical treatment for a serious health condition of the employee or of
a family member. If 30 days' notice is not practicable, such as because
of a lack of knowledge of approximately when leave will be required to
begin, a change in circumstances, or a medical emergency, notice must
be given as soon as practicable under the facts and circumstances of
the particular case. In neither case must an employee expressly assert
rights under the FMLA or even mention the FMLA. The employee must,
however, provide information that indicates that a condition renders
the employee unable to perform the functions of the job, or if the
leave is for a family member, that the condition renders the family
member unable to perform daily activities; the anticipated duration of
the absence; and whether the employee or the employee's family member
intends to visit a health care provider or has a condition for which
the employee or the employee's family member is under the continuing
care of a health care provider. An employer, generally, may require an
employee to comply with its usual and customary notice and procedural
requirements for requesting leave.
B. Notice to Employee of FMLA Eligibility [29 CFR 825.219 and
825.300(b)]. When an employee requests FMLA leave or when the employer
acquires knowledge that an employee's leave may be for an FMLA-
qualifying condition, the employer must notify the employee within five
business days of the employee's eligibility to take FMLA leave and any
additional requirements for qualifying for such leave. This eligibility
notice must provide information regarding the employee's eligibility
for FMLA leave, detail the specific responsibilities of the employee,
and explain any consequences of a failure to meet these
responsibilities. The employer generally must provide the notice the
first time in each six-month period that an employee gives notice of
the need for FMLA leave; however, if the specific information provided
by the notice changes with respect to a subsequent period of FMLA
leave, the employer would need to provide an updated notice.
C. Medical Certification and Recertification [29 U.S.C. 2613,
2614(c)(3); 29 CFR 825.100(d) and 825.305 through 825.308]. An employer
may require that an employee's leave to care for the employee's
seriously-ill spouse, son, daughter, or parent, or due to the
employee's own serious health condition that makes the employee unable
to perform one or more essential functions of the employee's position,
be supported by a certification issued by the health care provider of
the eligible employee or of the ill family member. The proposal
provides that the employer may contact the employee's health care
provider for purposes of clarification and authentication of the
medical certification (whether initial certification or
recertification) after the employer has given the employee an
opportunity to cure any deficiencies. In addition, an employer must
advise an employee whenever it finds a certification incomplete or
insufficient and state in writing what additional information is
necessary to make the certification complete and sufficient. An
employer, at its own expense and subject to certain limitations, also
may require an employee to obtain a second and third medical opinion.
In addition, an employer may also request recertification under certain
conditions. The employer must provide the employee at least 15 calendar
days to provide the initial certification and any subsequent
recertification. The proposed regulations would provide that the
employer must provide seven
[[Page 7935]]
calendar days (unless not practicable under the particular
circumstances despite the employee's diligent good faith efforts) to
cure any deficiency identified by the employer.
D. Notice to Employees of FMLA Designation [29 CFR 825.300(c) and
825.301(a)]. When the employer has enough information to determine
whether the leave qualifies as FMLA leave (after receiving a medical
certification, for example), the employer must notify the employee
within five business days of making such determination whether the
leave has or has not been designated as FMLA leave and the number of
hours, days or weeks that will be counted against the employee's FMLA
leave entitlement. If it is not possible to provide the hours, days or
weeks that will be counted against the employee's FMLA leave
entitlement (such as in the case of unforeseeable intermittent leave),
then such information must be provided every 30 days to the employee if
leave is taken during the prior 30-day period. If the employer requires
paid leave to be substituted for unpaid leave, or that paid leave taken
under an existing leave plan be counted as FMLA leave, this designation
also must be made at the time of the FMLA designation.
E. Fitness-for-Duty Medical Certification [29 U.S.C. 2614(a)(4); 29
CFR 825.100(d) and 825.310]. As a condition of restoring an employee
whose FMLA leave was occasioned by the employee's own serious health
condition that made the employee unable to perform the employee's job,
an employer may have a uniformly-applied policy or practice that
requires all similarly-situated employees (i.e., same occupation, same
serious health condition) who take leave for such conditions to obtain
and present certification from the employee's health care provider that
the employee is able to resume work. The employee has the same
obligations to participate and cooperate in providing a complete and
sufficient certification to the employer in the fitness-for-duty
certification process as in the initial certification process. The DOL
is also proposing in Sec. 825.310(g) that an employer be permitted to
require an employee to furnish a fitness-for-duty certificate every 30
days if an employee has used intermittent leave during that period and
reasonable safety concerns exist.
F. Notice to Employees of Change of 12-Month Period for Determining
FMLA Entitlement [29 CFR 825.200(d)(1)]. An employer generally must
choose a single uniform method from four options available under the
regulations for determining the 12-month period in which the 12-week
entitlement occurs for purposes of FMLA leave. An employer wishing to
change to another alternative is required to give at least 60 days'
notice to all employees.
G. Key Employee Notification [29 U.S.C. 2614(b)(1)(B); 29 CFR
825.219 and 825.300(b)(3)(vi)]. An employer that believes that it may
deny reinstatement to a key employee must give written notice to the
employee at the time the employee gives notice of the need for FMLA
leave (or when FMLA leave commences, if earlier) that he or she
qualifies as a key employee. At the same time, the employer must also
fully inform the employee of the potential consequences with respect to
reinstatement and maintenance of health benefits if the employer should
determine that substantial and grievous economic injury to the
employer's operations would result if the employer were to reinstate
the employee from FMLA leave. If the employer cannot immediately give
such notice, because of the need to determine whether the employee is a
key employee, the employer must give the notice as soon as practicable
after receiving the employee's notice of a need for leave (or the
commencement of leave, if earlier). If an employer fails to provide
such timely notice it loses its right to deny restoration, even if
substantial and grievous economic injury will result from
reinstatement.
As soon as an employer makes a good faith determination--based on
the facts available--that substantial and grievous economic injury to
its operations will result if a key employee who has given notice of
the need for FMLA leave or is using FMLA leave is reinstated, the
employer must notify the employee in writing of its determination; that
the employer cannot deny FMLA leave; and that the employer intends to
deny restoration to employment on completion of the FMLA leave. The
employer must serve this notice either in person or by certified mail.
This notice must explain the basis for the employer's finding that
substantial and grievous economic injury will result, and, if leave has
commenced, must provide the employee a reasonable time in which to
return to work, taking into account the circumstances, such as the
length of the leave and the urgency of the need for the employee to
return.
An employee may still request reinstatement at the end of the leave
period, even if the employee did not return to work in response to the
employer's notice. The employer must then determine whether there will
be substantial and grievous economic injury from reinstatement, based
on the facts at that time. If the employer determines that substantial
and grievous economic injury will result from reinstating the employee,
the employer must notify the employee in writing (in person or by
certified mail) of the denial of restoration.
H. Periodic Employee Status Reports [29 CFR 825.300(b)(4) and
825.309]. An employer may require an employee to provide periodic
reports regarding the employee's status and intent to return to work.
I. Notice to Employee of Pending Cancellation of Health Benefits
[29 CFR 825.212(a)]. Unless an employer establishes a policy providing
a longer grace period, an employer's obligation to maintain health
insurance coverage ceases under FMLA if an employee's premium payment
is more than 30 days late. In order to drop the coverage for an
employee whose premium payment is late, the employer must provide
written notice to the employee that the payment has not been received.
Such notice must be mailed to the employee at least 15 days before
coverage is to cease and advise the employee that coverage will be
dropped on a specified date at least 15 days after the date of the
letter unless the payment has been received by that date.
J. Documenting Family Relationship [29 CFR 825.122(f)]. An employer
may require an employee giving notice of the need for leave to provide
reasonable documentation or statement of family relationship. This
documentation may take the form of a child's birth certificate, a court
document, a sworn notarized statement, a submitted or signed tax
return, etc. The employer is entitled to examine documentation such as
a birth certificate, etc., but the employee is entitled to the return
of the official document submitted for this purpose.
K. Recordkeeping [29 U.S.C. 2616; 29 CFR 825.500]. The FMLA
provides that employers shall make, keep, and preserve records
pertaining to the FMLA in accordance with the recordkeeping
requirements of Fair Labor Standards Act section 11(c), 29 U.S.C.
211(c), and regulations issued by the Secretary of Labor. This
statutory authority provides that no employer or plan, fund, or program
shall be required to submit books or records more than once during any
12-month period unless the DOL has reasonable cause to believe a
violation of the FMLA exists or is investigating a complaint.
Employers must maintain basic payroll and identifying employee
data, including name, address, and occupation; rate or basis of pay and
terms of compensation; daily and
[[Page 7936]]
weekly hours worked per pay period; additions to or deductions from
wages; and total compensation paid; dates FMLA leave is taken by FMLA
eligible employees (available from time records, requests for leave,
etc., if so designated). Leave must be designated in records as FMLA
leave; leave so designated may not include leave required under State
law or an employer plan which is not also covered by FMLA; if FMLA
leave is taken by eligible employees in increments of less than one
full day, the hours of the leave; copies of employee notices of leave
furnished to the employer under FMLA, if in writing, and copies of all
eligibility notices given to employees as required under FMLA and these
regulations; any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leaves; premium payments of
employee benefits; records of any dispute between the employer and an
eligible employee regarding designation of leave as FMLA leave,
including any written statement from the employer or employee of the
reasons for the designation and for the disagreement.
Covered employers with no eligible employees must maintain the
basic payroll and identifying employee data already discussed. Covered
employers that jointly employ workers with other employers must keep
all the records required by the regulations with respect to any primary
employees, and must keep the basic payroll and identifying employee
data with respect to any secondary employees.
If FMLA-eligible employees are not subject to FLSA recordkeeping
regulations for purposes of minimum wage or overtime compliance (i.e.,
not covered by, or exempt from, FLSA), an employer need not keep a
record of actual hours worked (as otherwise required under FLSA, 29 CFR
516.2(a)(7)), provided that: eligibility for FMLA leave is presumed for
any employee who has been employed for at least 12 months; and with
respect to employees who take FMLA leave intermittently or on a reduced
leave schedule, the employer and employee agree on the employee's
normal schedule or average hours worked each week and reduce their
agreement to a written record.
Employers must maintain records and documents relating to any
medical certification, recertification or medical history of an
employee or employee's family member, created for FMLA purposes as
confidential medical records in separate files/records from the usual
personnel files. Employers must also maintain such records in
conformance with any applicable ADA confidentiality requirements;
except that: supervisors and managers may be informed regarding
necessary restrictions on the work or duties of an employee and
necessary accommodations; first aid and safety personnel may be
informed, when appropriate, if the employee's physical or medical
condition might require emergency treatment; and government officials
investigating compliance with the FMLA, or other pertinent law, shall
be provided relevant information upon request.
The FLSA recordkeeping requirements, contained in 29 CFR part 516,
are currently approved under Office of Management and Budget (OMB)
control number 1215-0017; consequently, this information collection
does not duplicate their burden, despite the fact that for the
administrative ease of the regulated community this information
collection restates them.
L. Military Family Leave [29 U.S.C. 2612(e), 2613]: The military
family leave provisions of H.R. 4986 extend to the new leave provision
related to care for a servicemember the FMLA's existing requirements
for employees to provide advance notice when the need for leave is
foreseeable based on planned medical treatment, and for making
reasonable efforts to schedule planned medical treatment so as not to
disrupt unduly the employer's operations. The military family leave
provisions of H.R. 4986 also provide for new notice requirements for
leave taken due to qualifying exigencies whenever the need for such
leave is foreseeable. The military family leave provisions of H.R. 4986
require that eligible employees provide notice to the employer that is
``reasonable and practicable'' in these circumstances.
The military family leave provisions of H.R. 4986 allow employers
to apply the FMLA's existing medical certification requirements for
serious health conditions to leave taken to care for a covered
servicemember. In addition, the military family leave provisions of
H.R. 4986 also permit the Secretary of Labor to prescribe a new
certification requirement to leave taken because of a qualifying
exigency arising out of a servicemember's active duty or call to active
duty.
The earlier preamble discussion on Family Leave in Connection with
Injured Members of the Armed Forces and Qualifying Exigencies Related
to Active Duty provides a fuller explanation of the specific provisions
and issues on which the Department seeks public comments.
Purpose and Use: The WHD has created optional use Forms WH-380, WH-
381, and the proposed WH-382 to assist employees and employers in
meeting their FMLA third-party notification obligations. Form WH-380
allows an employee requesting FMLA leave based on a serious health
condition to satisfy the statutory requirement to furnish, upon the
employer's request, a medical certification (including a second or
third opinion and recertification) from the health care provider. See
Sec. Sec. 825.306 and 825.307 and Appendices B, D, and E. Form WH-381
allows an employer to satisfy the regulatory requirement to provide
employees taking FMLA leave with written notice detailing specific
expectations and obligations of the employee and explaining any
consequences of a failure to meet these obligations. See Sec.
825.301(b). Form WH-382 allows an employer to meet its obligation to
designate an absence as FMLA leave. See Sec. Sec. 825.300(c) and 825
.301(a). While the use of the DOL forms is optional, the regulations
require employers and employees to make the third-party disclosures
that the forms cover. The FMLA third-party disclosures ensure that both
employers and employees are aware of and can exercise their rights and
meet their respective obligations under FMLA.
The recordkeeping requirements are necessary in order for the DOL
to carry out its statutory obligation under FMLA section 106 to
investigate and ensure employer compliance. The WHD uses these records
to determine employer compliance.
Information Technology: The proposed regulations continue to
prescribe no particular order or form of records. See Sec. 825.500(b).
The preservation of records in such forms as microfilm or automated
word or data processing memory is acceptable, provided the employer
maintains the information and provides adequate facilities to the DOL
for inspection, copying, and transcription of the records. In addition,
photocopies of records are also acceptable under the regulations. Id.
Aside from the basic requirement that all third-party notifications
be in writing, with a possible exception for the employee's FMLA
request that depends on the employer's leave policies, there are no
restrictions on the method of transmission. Respondents may meet many
of their notification obligations by using DOL-prepared publications
available on the WHD Web site. These forms are in a PDF, fillable
[[Page 7937]]
format for downloading and printing. The employers may keep
recordkeeping requirements covered by this information collection in
any form, including electronic.
Minimizing Duplication: The FMLA information collections do not
duplicate other existing information collections. In order to provide
all relevant FMLA information in one set of requirements, the
recordkeeping requirements restate a portion of the records employers
must maintain under the FLSA. Employers do not need to duplicate the
records when basic records maintained to meet FLSA requirements also
document FMLA compliance. The additional records required by the FMLA
regulations, with the exception of specifically tracking FMLA leave,
are records that employers ordinarily maintain for monitoring employee
leave in the usual and ordinary course of business. The regulations do
impose, however, a three-year minimum time limit that employers must
make the records available for inspection, copying, and transcription
by the DOL. The DOL minimizes the FMLA information collection burden by
accepting records maintained by employers as a matter of usual or
customary business practices. The DOL also accepts records kept due to
requirements of other governmental requirements (e.g., records
maintained for tax and payroll purposes). The DOL has reviewed the
needs of both employers and employees to determine the frequency of the
third-party notifications covered by this collection to establish
frequencies that provide timely information with the least burden. The
DOL has further minimized burden by developing prototype notices for
many of the third-party disclosures covered by this information
collection.
Agency Need: The DOL is assigned a statutory responsibility to
ensure employer compliance with the FMLA. The DOL uses records covered
by the FMLA information collection to determine compliance, as required
of the agency by FMLA section 107(b)(1). 29 U.S.C. 2617(b)(1). Without
the third-party notifications required by the law and/or regulations,
employers and employees would have difficulty knowing their FMLA rights
and obligations.
Special Circumstances: Because of the unforeseeable and often
urgent nature of the need for FMLA leave, notice and response times
must be of short duration to ensure that employers and employees are
sufficiently informed and can exercise their FMLA rights and
obligations. The discussion above outlines the circumstances
necessitating the information collection and provides the details of
when employees and employers must provide certain notices.
Employers must maintain employee medical information they obtain
for FMLA purposes as confidential medical records in separate files/
records from the usual personnel files. Employers must also maintain
such records in conformance with any applicable ADA confidentiality
requirements, except that: supervisors and managers may be informed
regarding necessary restrictions on the work or duties of an employee
and necessary accommodations; first aid and safety personnel may be
informed (when appropriate) if the employee's physical or medical
condition might require emergency treatment; and government officials
investigating compliance with FMLA (or other pertinent law) shall be
provided relevant information upon request.
Public Comments: On December 1, 2006, the DOL published a Request
for Information (RFI) in the Federal Register inviting public comment
about the FMLA paperwork requirements and other issues. 71 FR 69504. On
June 28, 2007, the DOL published a report that summarized the comments
received in response to the RFI. 72 FR 35550. The DOL also engaged
various stakeholders representing the interests of employees,
employers, and healthcare providers to discuss the FMLA information
collection requirements. The proposed FMLA regulations reflect the
results of these efforts.
The DOL seeks additional public comments regarding the burdens
imposed by information collections contained in this proposed rule. In
particular, the DOL seeks comments that: evaluate whether the proposed
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; evaluate the accuracy of the agency's estimate
of the burden of the proposed collection of information, including the
validity of the methodology and assumptions used; enhance the quality,
utility and clarity of the information to be collected; and minimize
the burden of the collection of information on those who are to
respond, including through the use of appropriate automated,
electronic, mechanical, or other technological collection techniques or
other forms of information technology, e.g., permitting electronic
submissions of responses. Commenters may send their views about these
information collections to the DOL in the same way as all other
comments (e.g., through the regulations.gov Web site). All comments
received will be made a matter of public record, and posted without
change to http://www.regulations.gov, including any personal
information provided.
An agency may not conduct an information collection unless it has a
currently valid OMB approval, and the DOL has submitted the identified
information collections contained in the proposed rule to the OMB for
review under the PRA under Control Number 1215-0181. See 44 U.S.C.
3507(d); 5 CFR 1320.11. While much of the information provided to the
OMB in support of the information collection request appears in this
preamble, interested parties may obtain a copy of the full supporting
statement by sending a written request to the mail address shown in the
ADDRESSES section at the beginning of this preamble or by visiting the
http://www.reginfo.gov/public/do/PRAMain Web site.
In addition to having an opportunity to file comments with the DOL,
comments about the paperwork implications of the proposed regulations
may be addressed to the OMB. Comments to the OMB should be directed to:
Office of Information and Regulatory Affairs, Attention OMB Desk
Officer for the Employment Standards Administration (ESA), Office of
Management and Budget, Room 10235, Washington, DC 20503, Telephone:
202-395-7316/Fax: 202-395-6974 (these are not toll-free numbers).
Confidentiality: The DOL makes no assurances of confidentiality to
respondents. Much of the information covered by this information
collection consists of third-party disclosures. Employers generally
must maintain records and documents relating to any medical
certification, recertification, or medical history of an employee or
employee's family members as confidential medical records in separate
files/records from usual personnel files. Employers must also generally
maintain such records in conformance with any applicable ADA
confidentiality requirements. As a practical matter, the DOL would only
disclose agency investigation records of materials subject to this
collection in accordance with the provisions of the Freedom of
Information Act, 5 U.S.C. 552, and the attendant regulations, 29 CFR
part 70, and the Privacy Act, 5 U.S.C. 552a, and its attendant
regulations, 29 CFR part 71.
Hours Burden Estimates: The DOL bases the following burden
estimates on the estimates the PRIA presented elsewhere in this
document, except as otherwise noted. The DOL estimates 77.1 million
employees were eligible for FMLA leave in 2005. The FMLA applied
[[Page 7938]]
to approximately 415,000 private business establishments and State and
local governments in 2005. See County Business Patterns, 2005, U.S.
Census Bureau, http://censtats.census.gov/cgi-bin/cbpnaic/cbpsel.pl;
and Census of Governments, Volume 3, Public Employment, Compendium of
Public Employment: 2002 at 248-249, http://www.census.gov/prod/2004pubs/gc023x2.pdf. The PRIA data also suggest 7 million employees
took FMLA leave in 2005.
A. Employee Notice of Need for FMLA Leave. While employees normally
will provide general information regarding their absences, the
regulations may impose requirements for workers to provide their
employers with more detailed information than might otherwise be the
case. The DOL estimates that providing this additional information will
take approximately two minutes per employee notice of the need to take
FMLA leave. In addition, Westat Report data indicate about 75 percent
of FMLA users take leave in a single block, 15 percent take leave in
two blocks, and 10 percent take leave in more than two blocks. See 2000
Westat Report at 2-3, http://www.dol.gov/esa/whd/fmla/fmla/chapter2.pdf. The DOL, consequently, estimates FMLA leave takers, on a
per capita basis, annually provide 1.5 notices of the need for FMLA
leave. In addition, the PRIA estimates some employees who are not
eligible for FMLA protections will make some 2,200,000 requests for
FMLA leave.
(7,000,000 FMLA covered employee respondents x 1.5 valid responses
[i.e., notices to employers]) + 2,200,000 ineligible FMLA requests =
12,700,000 total responses
12,700,000 total responses x 2 minutes/60 minutes per hour = 423,333
hours
B. Notice to Employee of FMLA Eligibility. The DOL estimates that
each written notice to an employee of FMLA eligibility, rights, and
responsibilities takes approximately ten minutes. Consistent with the
estimates for the number of notices employees provide, the DOL
estimates that employers will provide 12,700,000 FMLA eligibility
notices to employees. Employers may use optional Form WH-381 to satisfy
this requirement.
12,700,000 total responses x 10 minutes/60 minutes per hour = 2,116,667
hours
C. Medical Certification and Recertification. The DOL estimates
81.5 percent of employees taking FMLA leave do so because of their own
serious health condition or that of a family member. See 2000 Westat
Report at 2-5, http://www.dol.gov/esa/whd/fmla/fmla/chapter2.pdf. The
DOL also estimates 92 percent of these employees provide medical
certifications. See 2000 Westat Report at A-2-51. Additionally, the DOL
estimates that second or third opinions and/or recertifications add 15
percent to the total number of certifications and that employees spend
an average of 20 minutes in obtaining the certifications. Employers may
have employees use optional Form WH-380 to satisfy this requirement.
7,000,000 employees taking FMLA leave x 81.5% rate for serious health
condition x 92% asked to provide initial medical certifications =
5,248,600 employee respondents
5,248,600 employee respondents x 1.15 responses = 6,035,890 total
responses
6,035,890 total responses x 20 minutes/60 minutes per hour = 2,011,963
hours
The DOL associates no paperwork burden with the portion of this
information collection employers complete, since--even absent the
FMLA--similar information would customarily appear in their internal
instructions requesting a medical certification or recertification. The
DOL accounts for health care provider burdens to complete these
certifications as a ``maintenance and operation'' cost burden,
discussed later.
D. Notice to Employees of FMLA Designation. The DOL estimates that
each written FMLA designation notice takes approximately ten minutes
and that there are 10,500,000 FMLA leaves taken each year. Employers
can designate FMLA leave at the same time they provide the eligibility
notice about 25 percent of the time, based on the number of instances
where employers request a medical certification. According to a 2005
WorldatWork survey, 28.6 percent of absences result from either chronic
or permanent/long term conditions. (See FMLA Perspectives and
Practices: Survey of WorldatWork Members, April 2005, WorldatWork,
Figure 9a, p. 8.) Assuming that this applies to FMLA leave takers, the
DOL estimates that the notices will have to be sent to about 2,000,000
workers (i.e., 28.6% of 7 million) taking FMLA for either chronic or
permanent/long term conditions. For purposes of estimating the
paperwork burden, the DOL assumes that for workers with chronic
conditions (either temporary or permanent) ten additional notices will
have to be provided each year to each of these employees.
7,875,000 initial notices + 20,000,000 additional notices = 27,875,000
total responses
27,875,000 total responses x 10 minutes/60 minutes per hour = 4,645,833
hours
E. Fitness-for-Duty Medical Certification. The DOL estimates that
367,000 employees will each have to provide one fitness for duty
certification and 44,000 employees will each have to provide three such
certifications, for a total of 499,000 certifications provided by
411,000 employees and that each fitness for duty certification will
require ten minutes of the employee's time.
499,000 responses x 10 minutes/60 minutes per hour = 83,167 hours
The DOL accounts for health care provider burdens to complete these
certifications as a ``maintenance and operation'' cost burden,
discussed later.
F. Notice to Employees of Change of 12-Month Period for Determining
FMLA Entitlement. The DOL estimates that annually 10 percent of FMLA
covered employers choose to change their 12-month period for
determining FMLA eligibility and must notify employees of the change,
requiring approximately 10 minutes per change.
415,000 covered employers x 10% response rate = 41,500 respondents
41,500 respondents x 10 minutes/60 minutes = 6917 hours
G. Key Employee Notification. The ``key employee'' status
notification to an employee is part of the employee eligibility notice;
accordingly, the DOL associates no additional burden for the initial
notification. The DOL estimates that annually 10 percent of employers
notify one employee of the intent not to restore the employee at the
conclusion of FMLA leave. In addition, the DOL estimates half of these
cases will require the employer to issue a second notice from the
employer to address a key employee's subsequent request for
reinstatement. Finally, the DOL estimates each key employee
notification takes approximately 5 minutes. The DOL associates no
paperwork burden with the employee requests, since these employees
would ordinarily ask for reinstatement even if the rule were not to
exist.
415,000 covered employers x 10% response rate = 41,500 employer
respondents
41,500 employer respondents x 1.5 responses = 62,250 total responses
62,250 total responses x 5 minutes/60 minutes = 5188 hours
H. Periodic Employee Status Reports. The DOL estimates employers
require periodic reports from 25 percent of FMLA leave users (based on
the percentage of FMLA leave takers with absences lasting more than 30
days). See
[[Page 7939]]
2000 Westat Report at A-2-29, http://www.dol.gov/esa/whd/fmla/fmla/appendixa-2.pdf. The DOL also estimates a typical employee would
normally respond to an employer's request for a status report; however,
to account for any additional burden the regulations might impose, the
DOL estimates a 10 percent response rate and a burden of two minutes
per response. The DOL also estimates that each such respondent annually
provides two periodic status reports. While the DOL believes most
employers would only seek these reports in accordance with customary
business practices, the agency has accounted for any potential
additional employer burden in the ``Eligibility Notice.''
7,000,000 FMLA leave takers x 25% rate of employer requests x 10%
regulatory burden = 175,000 employee respondents
175,000 employee respondents x 2 responses = 350,000 total responses
350,000 total responses x 2 minutes/60 minutes per hour = 11,667 hours
I. Notice to Employee of Pending Cancellation of Health Benefits.
The DOL estimates the regulations require employers send notifications
of not having received health insurance premiums to 2% of leave takers,
based on the number of employees indicating they have lost benefits.
For purposes of estimating the paperwork burden associated with this
information collection, the DOL expects that unique respondents would
send all responses. See 2000 Westat Report at 4-4, http://www.dol.gov/esa/whd/fmla/fmla/chapter4.pdf. The DOL also estimates each
notification will take 5 minutes.
7,000,000 FMLA leave takers x 2% rate notification = 140,000
respondents and responses
140,000 responses x 5 minutes/60 minutes per hour = 11,667 hours
J. Documenting Family Relationships. The DOL estimates 50% of FMLA
leave takers do so for ``family'' related reasons, such as caring for a
newborn or recently adopted child or a qualifying family member with a
serious health condition. See 2000 Westat Report at 2-5, http://www.dol.gov/esa/whd/fmla/fmla/chapter2.pdf. The DOL also estimates
employers require additional documentation to support a family
relationship in 5 percent of these cases, and the additional
documentation requires 20 minutes.
7,000,000 employees taking FMLA leave x 50% rate for family leave x 5%
response rate = 175,000 employee respondents
175,000 x 20 minutes/60 minutes per hour = 58,333 hours
K. General Recordkeeping. The DOL estimates the FMLA imposes an
additional general recordkeeping burden on each employer that equals
1.25 minutes for each notation of an employee absence.
10,500,000 total records x 1.25 minutes/60 minutes per hour = 218,750
hours
L. Military Family Leave. This ``paperwork burden'' analysis
estimates the burdens for the proposed regulations as drafted. The
Department anticipates issuing, after full consideration of the
comments received in response to the Proposed Rule, final regulations
that will include necessary revisions to the currently proposed FMLA
information burden estimates to account for the military family leave
provisions of H.R. 4986.
GRAND TOTAL ANNUAL BURDEN HOURS = 9,593,485 HOURS
Persons responding to the various FMLA information collections may
be employees of any of a wide variety of businesses. Absent specific
wage data regarding respondents, the DOL has used the average hourly
rate of non-supervisory workers on non-farm payrolls for September 2007
of $17.62 plus 40 percent for fringe benefits to estimate respondent
costs. See The Employment Situation, November 2007, at DOL, Bureau of
Labor Statistics (BLS) (http://www.bls.gov/news.release/archives/empsit_12072007.pdf). The DOL estimates total annual respondent costs
for the value of their time to be $236,652,088 ($17.62 x 1.4 x
9,593,485 hours).
Other Respondent Cost Burdens (Maintenance and Operation):
Employees seeking FMLA leave for a serious health condition must
obtain, upon their employer's request, a certification of the serious
health condition from a health care provider. Often the heath care
provider's office staff completes the form for the provider's
signature. In other cases, the health care provider personally
completes it. While most health care providers do not charge for
completing these certifications, some do. The DOL estimates completion
of Form WH-380 to take about 20 minutes and a fitness-for-duty
certification to require 10 minutes; thus, the time would equal the
respondent's time in obtaining the certification. The DOL has used the
2005 average hourly wage rate for a physician's assistant of $36.49
plus 40 percent in fringe benefits to compute a $17.03 cost for Form
WH-380 ($51.09 x 20 minutes/60 minutes per hour) and $8.52 cost for
fitness-for-duty certifications ($51.09 x 10 minutes/60 minutes per
hour) See National Compensation Survey 2005, DOL, BLS.
The DOL also attributes an average $1.00 cost for each
documentation of a family relationship to cover notary costs when an
employee does not have other documentation available.
------------------------------------------------------------------------
------------------------------------------------------------------------
6,035,890 total medical certifications x $17.03 cost $102,791,207
per certification =.................................
499,000 fitness-for-duty certifications x $8.52 cost 4,251,480
per certification =.................................
+175,000 documentations of family relationship x 175,000
$1.00 each =........................................
------------------
Total Maintenance and Operations Cost Burden for 107,217,687
Respondents.....................................
------------------------------------------------------------------------
Federal Costs: The Federal costs that the DOL associates with this
information collection relate to printing/duplicating and mailing the
subject forms. The DOL also estimates it will annually provide an
average of one copy of each form covered by this information collection
to each FMLA-covered employer, and that the agency will mail all forms
simultaneously to any given requestor. The DOL further estimates
information technology costs will offset some of the printing and
duplicating costs in an equal amount; therefore, the agency is
presenting only the costs of the latter:
------------------------------------------------------------------------
------------------------------------------------------------------------
415,000 WH-380s (Certification of 1,660,000 pages.
Health Care Provider) x 4 pages =.
415,000 WH-381s (Notice to Employee 830,000 pages.
of FMLA Eligibility) x 2 pages =.
415,000 WH-382s (Notice to Employee 415,000 pages.
of FMLA Designation) x 1 page =.
Total Forms = 1,245,000, Total
pages = 2,905,000.
2,905,000 pages x $0.03 $87,150.
printing costs =.
1,245,000 forms x $0.03 $37,350.
envelopes =.
[[Page 7940]]
1,245,000 forms x $0.41 $510,450.
postage =.
------------------------------------
Total Estimated Annual $634,950.
Federal Costs =.
------------------------------------------------------------------------
Displaying OMB Expiration Date: The DOL will display the expiration
dates for OMB clearances on the DOL forms cleared under this
information collection.
Executive Order 12866, the Small Business Regulatory Enforcement
Fairness Act, and the Regulatory Flexibility Act
This rule has been drafted and reviewed in accordance with
Executive Order 12866, Section 1(b), Principles of Regulation. The
Department has preliminarily determined that this proposed rule is an
``economically significant'' regulatory action under Section 3(f)(1) of
Executive Order 12866, based on the analysis presented below. As a
result, the Office of Management and Budget has reviewed this proposed
rule. The Department also has concluded that this proposed rule is a
major rule under the Small Business Regulatory Enforcement Fairness Act
of 1996 (5 U.S.C. 801 et seq.). In addition, the Department has
certified that the proposed rule as drafted will not have ``a
significant economic impact on a substantial number of small entities''
and, therefore, has not prepared an initial regulatory flexibility
analysis under the Regulatory Flexibility Act of 1980 (see the
Regulatory Flexibility Act section below). However, the new military
family leave provisions of H.R. 4986 will result in an increase in the
annual number of FMLA leaves taken. If these additional leaves
significantly increase the economic impacts imposed by the FMLA
regulation on a substantial number of small businesses, then a
regulatory flexibility analysis will be required.
The Department has prepared a Preliminary Regulatory Impact
Analysis (PRIA) in connection with this rule, which is presented below
in its entirety.
Preliminary Regulatory Impact Analysis of the Proposed Revisions to the
Family and Medical Leave Act Regulations
Chapter 1: Industry Profile
Background
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.\16\
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\16\ ``A Workable Balance: Report to Congress on Family and
Medical Leave Policies.'' The report is available at: http://www.dol.gov/esa/whd/fmlacoments.htm.
---------------------------------------------------------------------------
In 1999, the Department contracted with Westat to update the
employee and establishment surveys conducted in 1995.\17\ The two
surveys were completed in 2000. A report entitled ``Balancing the Needs
of Families and Employers: Family and Medical Leave Surveys, 2000
Update'' (the ``2000 Westat Report'') was published in January
2001.\18\
---------------------------------------------------------------------------
\17\ Westat is a statistical survey research organization
serving agencies of the U.S. Government, as well as businesses,
foundations, and State and local governments.
\18\ The report is available at http://www.dol.gov/esa/whd/fmlacomments.htm.
---------------------------------------------------------------------------
In 2006, the Department published a Request for Information (RFI)
seeking public comment on the Department's administration and
implementation of the FMLA regulations.\19\ To assist in analyzing the
impacts of the FMLA, the Department presented estimates of the coverage
and usage of FMLA leave in 2005 in the ``FMLA Coverage and Usage
Estimates'' section of the RFI (71 FR 69510). That presentation updated
Westat's estimates of the number of workers employed at establishments
covered by the FMLA, the number of workers eligible for FMLA leave at
covered establishments, and the number of workers who took FMLA leave
in 2005 (the latest year for which BLS employment data was available).
It also highlighted a number of important findings in the 2000 Westat
Report including some of the limitations in using the estimates
presented in the report that were noted by Westat and others.
---------------------------------------------------------------------------
\19\ The Department received many comments about how the 2000
Westat Report in response to the RFI.
---------------------------------------------------------------------------
The methodology to calculate the estimates presented in the RFI was
to apply coverage, eligibility, and usage rates from the 2000 Westat
Report to employment estimates from the 2005 Current Population Survey
to produce national estimates of FMLA coverage, eligibility, and usage.
The estimates the Department developed using this methodology are
reproduced in Table 1 below.
Table 1.--Estimates of Number of Covered and Eligible Employees and
Leave Taken 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 taking FMLA-protected leave..................... 6.1
Employees taking intermittent FMLA leave **............... 1.5
------------------------------------------------------------------------
** Note: Many of these 1.5 million workers repeatedly take intermittent
leave.
Source: U.S. Department of Labor, Request for Information, (71 FR 69510
and 69511).
As discussed in the Department's report entitled ``Family and
Medical Leave Act Regulations: A Report on the Department of Labor's
Request for Information'' (the ``RFI Report''), the Department did not
receive any substantive comments on its coverage or eligibility
estimates, or the methodology it used to produce those estimates.\20\
However, the Department received many comments regarding the FMLA leave
usage rates that the Department used.
---------------------------------------------------------------------------
\20\ The report is available at: www.dol.gov/esa/whd/Fmla2007Report.htm and 72 FR at 35550.
---------------------------------------------------------------------------
In the RFI, the Department presented three estimates of the percent
(or rate) of covered and eligible workers who took FMLA leave in 2005,
and asked for information and data on the estimates. These estimates
are reproduced in Table 2 below.
[[Page 7941]]
Table 2.--Percent of Covered and Eligible Employees Taking FMLA Leave in
2005
------------------------------------------------------------------------
Percent
------------------------------------------------------------------------
Upper-bound Estimate *....................................... 17.1
Employer Survey Based Estimate **............................ 8.0
Lower-bound Estimate *....................................... 3.2
------------------------------------------------------------------------
* From the Westat Employee Survey.
** The Department used a rate of 6.5 percent of covered workers in the
RFI. The rate presented here is the percentage of covered and eligible
workers calculated by dividing 6.1 million by 76.1 million.
Source: U.S. Department of Labor, ``Family and Medical Leave Act
Regulations: A Report on the Department of Labor's Request for
Information'' (72 FR at 35622).
In response to the RFI the Department received a significant amount
of data on FMLA leave usage from a wide variety of sources, including
nationally representative survey data and detailed information from
specific employers, both large and small, in a wide variety of
industries. Although many of the comments concerning FMLA usage rates
submitted data higher than the employer survey based estimate presented
in Table 2 above, many of the comments included usage rates that were
consistent with the range of estimates presented in the RFI and Table
2. Clearly, some employers in some industries will experience higher
rates of usage just as other employers in other industries may
experience lower rates. Indeed, a few comments to the RFI suggested the
Department develop industry specific estimates because the issues
related to the FMLA vary by industry.
The RFI was a useful information collection method that yielded a
wide variety of objective survey data and research, as well as a
considerable amount of company-specific data and information. As
explained in the RFI and the RFI Report, despite the criticisms and
limitations of the 2000 Westat Report,\21\ the Department believes that
it provides a great deal of useful information and data on FMLA leave-
takers. Moreover, based upon that data, coupled with the information
received in response to the RFI, the Department has significantly
supplemented and updated its knowledge of the impacts of FMLA leave,
particularly intermittent FMLA leave.
---------------------------------------------------------------------------
\21\ For comments on, and critiques of, the 2000 Westat Report
see Chapter XI, Section A, of the RFI Report (72 FR at 35550).
---------------------------------------------------------------------------
Data Sources and Total Estimates by Industry
The estimates presented in this Preliminary Regulatory Impact
Analysis (PRIA) are primarily derived from an industry profile
developed by CONSAD Research.\22\ Just as the Department did for the
RFI, CONSAD used data from the 2000 Westat Report as the basis for many
of its estimates. However, rather than applying the Westat coverage,
eligibility, and usage rates to data from the Current Population Survey
(CPS), CONSAD primarily used data from the U.S. Census Bureau, 2005
County Business Patterns (CBP). The CBP data was used because it
provides data on the number of employees, establishments, and the size
of the payroll in each industry, as well as these data by size of
establishment. However, since the CBP only covers most non-agricultural
businesses in the private sector, CONSAD supplemented the CBP with data
from other sources including the U.S. Department of Agriculture, Census
of Agriculture, 2002, the U.S. Census Bureau, Census of Governments,
Compendium of Public Employment, 2002, the annual reports of certain
Federal agencies (Bonneville Power Authority and Tennessee Valley
Authority), the Association of American Railroads, Railroad Service in
the United States, 2005, and the U.S. Postal Service, Annual Report,
2006.
---------------------------------------------------------------------------
\22\ CONSAD Research Corporation is an economic and public
policy analysis consulting firm serving agencies of the U.S.
Government, as well as businesses, foundations, and State and local
governments.
---------------------------------------------------------------------------
CONSAD estimated the number of firms based upon the U.S. Census
Bureau, Statistics of U.S. Business, 2004. The Statistics of U.S.
Business is based upon the same underlying data as CBP, but presents
the data on a firm basis rather than the establishment basis presented
in the CBP. This was an important consideration in studying the FMLA
regulations, since the 50-employee cutoff above which the FMLA applies
refers to the number of employees at a particular firm within a
geographic area. The Statistics of U.S. Business contains both the
number of firms and the number of establishments in those firms at the
2-digit industry level.
CONSAD based its estimates of revenues at the 2-digit industry
level primarily on data from the U.S. Census Bureau, 2002 Economic
Census series (2005). Depending upon the particular industry sector,
CONSAD used the value of shipments, value of business done, receipts,
sales, or revenues, in conjunction with the employment estimates in the
Economic Census. In addition, CONSAD obtained some revenue estimates
directly from the Census of Agriculture, as well as in the annual
reports for the Bonneville Power Authority, the Tennessee Valley
Authority, and the U.S. Postal Service.\23\
---------------------------------------------------------------------------
\23\ Revenue estimates were not available for parts of Forestry,
Fishing, and Hunting; Public Utilities; Public Transit and
Transportation; Public Educational Services; and Public
Administration.
---------------------------------------------------------------------------
CONSAD developed estimates of net income before taxes (profits) for
each 2-digit industry primarily from the Statistics of Income, 2004,
published by the Internal Revenue Service. In addition, CONSAD obtained
net income estimates directly from the annual reports for the
Bonneville Power Authority, the Tennessee Valley Authority, and the
U.S. Postal Service.\24\
---------------------------------------------------------------------------
\24\ For certain industry sectors net income estimates were not
available.
---------------------------------------------------------------------------
Table 3 below presents CONSAD's estimates of the total number of
firms, establishments, and employees in the 2-digit industries in which
Title I of the FMLA applies. It also presents the annual payroll,
revenues, and profits for each 2-digit industry sector. See the CONSAD
Report for the complete details on these estimates.\25\
---------------------------------------------------------------------------
\25\ Available at: http://www.wagehour.dol.gov.
[[Page 7942]]
Table 3.--Number of Firms, Establishments, Employment, Payrolls, Annual Revenue, and Profits, That Title I of
the FMLA Applies to, by Industry, 2005
----------------------------------------------------------------------------------------------------------------
Annual
NAICS codes Industry Number of Number of Number of payroll Revenues Profits
description firms establishments employees ($million) ($million) ($million)
----------------------------------------------------------------------------------------------------------------
11.......... Agriculture, 563,692 578,536 3,205,214 $23,664 $200,646 $16,001
Forestry,
Fishing and
Hunting.
21.......... Mining, 19,271 24,696 497,272 30,823 190,349 24,598
Quarrying, and
Oil and Gas
Extraction.
22.......... Utilities........ 6,565 17,328 908,106 57,540 391,226 20,509
23.......... Construction..... 778,065 787,672 6,781,327 292,519 1,139,542 71,579
31-33....... Manufacturing.... 288,595 333,460 13,667,337 600,696 3,641,146 257,170
42.......... Wholesale Trade.. 337,905 429,823 5,968,929 308,918 4,706,128 181,334
44-45....... Retail Trade..... 737,188 1,123,207 15,338,672 348,047 3,200,607 119,040
48-49....... Transportation 168,769 249,211 6,067,022 257,686 556,815 27,340
and Warehousing.
51.......... Information...... 76,138 141,290 3,402,599 203,130 812,244 88,977
52.......... Finance and 255,273 476,806 6,431,837 446,740 2,741,213 416,135
Insurance.
53.......... Real Estate and 300,555 370,651 2,144,077 81,790 369,242 58,386
Rental and
Leasing.
54.......... Professional, 754,580 826,101 7,689,366 456,456 941,493 87,964
Scientific, and
Technical
Services.
55.......... Management of 27,353 47,593 2,856,418 243,267 119,588 20,295
Companies and
Enterprises.
56.......... Administrative 320,615 369,507 9,280,282 255,400 459,221 28,777
and Support and
Waste Management
and Remediation
Services.
61.......... Educational 87,807 95,500 13,210,374 405,009 205,433 23,715
Services.
62.......... Health Care and 599,987 746,600 16,025,147 589,654 1,285,333 111,556
Social
Assistance.
71.......... Arts, 114,072 121,777 1,936,484 52,936 148,644 18,926
Entertainment,
and Recreation.
72.......... Accommodation and 462,956 603,435 11,025,909 156,041 489,690 33,202
Food Services.
81.......... Other Services 676,401 740,034 5,390,954 127,481 476,300 31,751
(except Public
Administration).
92.......... Public 74,067 74,067 7,534,000 222,832 ........... ...........
Administration.
----------------------------------------------------------------------------------------------------------------
All Industry Sectors Covered by 6,649,854 8,157,294 139,361,326 $5,160,628 $22,074,860 $1,637,255
Title 1 of the FMLA.
----------------------------------------------------------------------------------------------------------------
Source: CONSAD 2007.
--Data Not Available.
The totals may not sum due to rounding.
Note the total number of employees in Table 3, 139.361 million, is
very close to the total number of workers (less Federal employees) in
2005 published by the Bureau of Labor Statistics, 139.773 million. The
difference is just 412,000, or 0.3 percent--not enough to significantly
affect the estimates presented below.
FMLA Coverage and Eligibility Estimates
Title I of the FMLA covers private-sector employers of 50 or more
employees, public agencies and certain Federal employers and entities,
such as the U.S. Postal Service and the Postal Rate Commission. To be
eligible for FMLA benefits, an employee must: (1) Work for a covered
employer; (2) have worked for the employer for a total of 12 months;
(3) have worked at least 1,250 hours over the previous 12 months; and
4) work at a location where at least 50 employees are employed by the
employer within 75 miles.
CONSAD's best estimate of FMLA coverage, by 2-digit industry, was
developed by summing the number of establishments with 50 or more
employees from the CBP with data from the U.S. Census Bureau,
Statistics of U.S. Business for estimates of employment in private
firms with 50 or more employees within a 75 mile radius of each other.
Some additional data for the operations not covered by the CBP and
Statistics of U.S. Business (i.e., the estimates from Census of
Agriculture, Census of Governments, U.S. Postal Service, Association of
American Railroads, Bonneville Power Authority, and Tennessee Valley
Authority) were also used.
All employers in primary and secondary education are covered.
Although data for the U.S. Postal Service, classified by the employment
size of the post office, are not available, CONSAD assumed that all
career postal workers are employed at worksites where 50 or more
employees work for the U.S. Postal Service within 75 miles of those
locations and that all non-career postal workers, which primarily
include casual workers and workers at rural substations, likely do not
meet the coverage and eligibility requirements relating to worksite
location or to job tenure and working hours (and are not included in
these estimates).
For the railroad industry (more specifically, the freight railroad
industry), data for 2005 from the Association of American Railroads
include Class I railroads, regional line haul railroads, local line
haul carriers, and switching and terminal carriers. Based on the
average employment in each type of freight railroad, CONSAD assumed
that Class I railroads and regional line haul railroads are, in
general, covered under the FMLA, while local line haul carriers and
switching and terminal carriers are generally not covered because they
generally do not employ 50 or more workers.
Data for the agricultural sectors are from the 2002 Census of
Agriculture for both crop production and animal production combined.
These data identify those farms with 10 or more workers and those
workers on these farms who are employed at least 150 days per year. To
the extent that these farms have a total of 50 or more employees (and
the data suggest that they likely would when the average number of
workers employed on these farms working less than 150 days per year is
added into the average number of workers employed on these farms
working at least 150 days per year), these farms would then be covered
under the FMLA. Their employees include those workers employed at least
150 days per year (and likely eligible for FMLA leave), as well as
workers employed less than 150 days per year (and not eligible for FMLA
leave).
[[Page 7943]]
Table 4 below presents CONSAD's estimates for covered
establishments. Note the 95.8 million estimate of the total number of
workers employed at covered establishments based upon this methodology
and data is close to the Department's estimate of 94.4 million
(presented in the RFI and the report on the RFI) based upon the 2005
CPS and the methodology in the RFI.
Table 4.--Number of FMLA Covered Firms and Establishments, Employment, Payrolls, Annual Revenue, and Profits by
Industry, 2005
----------------------------------------------------------------------------------------------------------------
Annual
NAICS codes Industry Number of Number of Number of payroll Revenues Profits
description firms establishments employees ($million) ($million) ($million)
----------------------------------------------------------------------------------------------------------------
11.......... Agriculture, 7,893 16,399 1,008,802 $7,485 $62,902 $5,016
Forestry,
Fishing and
Hunting.
21.......... Mining, 881 3,914 336,604 21,389 128,848 16,651
Quarrying, and
Oil and Gas
Extraction.
22.......... Utilities........ 570 4,773 796,896 50,865 324,319 16,933
23.......... Construction..... 16,650 24,291 2,741,450 133,635 460,676 28,937
31-33....... Manufacturing.... 29,765 66,333 11,065,335 501,498 2,947,941 208,210
42.......... Wholesale Trade.. 11,926 59,989 3,390,529 184,438 2,673,220 103,003
44-45....... Retail Trade..... 14,512 218,674 9,229,640 206,364 1,925,881 71,629
48-49....... Transportation 5,175 80,665 4,922,320 213,610 418,618 19,793
and Warehousing.
51.......... Information...... 3,703 31,089 2,664,028 164,743 635,938 69,663
52.......... Finance and 5,335 89,035 4,367,850 325,031 1,861,553 282,597
Insurance.
53.......... Real Estate and 3,726 62,188 1,033,014 39,438 177,900 28,130
Rental and
Leasing.
54.......... Professional, 17,492 70,715 4,315,079 269,222 528,342 49,363
Scientific, and
Technical
Services.
55.......... Management of 2,800 11,322 2,500,373 211,486 104,682 17,765
Companies and
Enterprises.
56.......... Administrative 12,945 52,333 7,428,951 191,044 367,611 23,036
and Support and
Waste Management
and Remediation
Services.
61.......... Educational 18,130 27,610 12,655,139 391,513 165,820 19,142
Services.
62.......... Health Care and 22,161 89,592 11,330,723 400,431 908,806 78,877
Social
Assistance.
71.......... Arts, 3,626 14,661 1,276,356 34,243 97,973 12,475
Entertainment,
and Recreation.
72.......... Accommodation and 19,882 80,376 5,352,996 80,221 237,741 16,119
Food Services.
81.......... Other Services 13,997 56,587 1,843,408 44,489 162,868 10,857
(except Public
Administration).
92.......... Public 74,067 74,067 7,534,000 222,832 ........... ...........
Administration.
----------------------------------------------------------------------------------------------------------------
All Establishments Covered by 285,237 1,134,612 95,793,493 $3,693,976 $14,191,639 $1,078,197
Title 1 of the FMLA.
----------------------------------------------------------------------------------------------------------------
Source: CONSAD 2007.
--Data Not Available.
Note: The totals may not sum due to rounding.
Estimates of Workers Eligible To Take FMLA Leave and FMLA Leave Usage
The estimates of the number of workers eligible to take FMLA leave
and FMLA leave usage were developed by applying estimates from the 2000
Westat Report to the coverage estimates. The number of workers eligible
to take FMLA leave in each industry was calculated by multiplying
Westat's estimate that 80.5 percent of workers employed at covered
establishments are eligible to take FMLA leave \26\ by the number of
workers covered by the FMLA in each industry. Note that CONSAD's
estimates of the total number of workers covered by the FMLA is
relatively close to the Department's estimates published in the RFI,
because both were developed by applying the same Westat estimate to the
number of covered employees.
---------------------------------------------------------------------------
\26\ DOL estimate developed from 2000 Westat Report, p. A-2-21.
---------------------------------------------------------------------------
In the RFI, the Department estimated the number of workers who took
FMLA leave in 2005 by multiplying the number of workers employed in
establishments covered by the FMLA by Westat's estimate that 6.5
percent of workers employed at establishments covered by the FMLA took
FMLA leave.\27\ However, the Department received many comments in
response to RFI that noted this estimate does not represent current
conditions because employees today are more aware of their FMLA rights
than they were in 1999 when Westat conducted its survey. In the RFI
Report, the Department concurred and stated that ``awareness of the
FMLA appears to be higher in 2005 than in 1999 when Westat conducted
its surveys. So just as FMLA usage increased between the times the two
surveys sponsored by the Department were conducted in the 1990s, given
the comments received it is likely that FMLA usage increased between
1999 and 2005.'' (72 FR at 35623)
---------------------------------------------------------------------------
\27\ See 2000 Westat Report, pp. 3-14--3-15.
---------------------------------------------------------------------------
To account for the increase in employee awareness of the FMLA,
CONSAD examined the changes in FMLA usage between the 1995 and the 1999
surveys commissioned by the Department. CONSAD then assumed that the
extrapolation would look like a typical learning curve and plotted
three points corresponding to zero FMLA leave taking in 1993, 3.6
percent in 1995, and 6.5 percent in 2000, and sketched a smooth,
monotonically increasing curve through the points and projected it
through 2007. On this basis, CONSAD estimated that the curve would have
a value of roughly 7.3 in 2007 (i.e., 7.3 percent of workers employed
at establishments covered by the FMLA currently take FMLA leave).
Estimates of the number of workers taking FMLA in each industry
were then calculated by multiplying the estimated number of workers
covered by the FMLA in each industry by 7.3 percent. See Table 5 below.
The number of workers who took intermittent FMLA leave in 2005 in
each industry was estimated by multiplying Westat's estimate that 23.9
percent of workers who take FMLA leave take some of the leave
intermittently (i.e., they repeatedly took leave for a few hours or
days at a time because of ongoing family or medical
[[Page 7944]]
reasons) \28\ by the estimated number of workers taking FMLA leave in
each industry. Table 5 below also presents these estimates.
---------------------------------------------------------------------------
\28\ Those that answered yes to Question A5B of Westat's
employee questionnaire: See 2000 Westat Report, Appendix D, p. 10.
Table 5.--Estimated of Number of FMLA Eligible Workers and FMLA Leave Usage, by Industry, 2005
----------------------------------------------------------------------------------------------------------------
Number of employees
--------------------------------------------
NAICS codes Industry description Eligible to Taking
take FMLA Taking FMLA intermittent
leave leave FMLA leave
----------------------------------------------------------------------------------------------------------------
11.......................... Agriculture, Forestry, Fishing and 812,085 73,643 17,601
Hunting.
21.......................... Mining, Quarrying, and Oil and Gas 270,966 24,572 5,873
Extraction.
22.......................... Utilities............................ 641,501 58,173 13,903
23.......................... Construction......................... 2,206,867 200,126 47,830
31-33....................... Manufacturing........................ 8,907,594 807,769 193,057
42.......................... Wholesale Trade...................... 2,729,376 247,509 59,155
44-45....................... Retail Trade......................... 7,429,860 673,764 161,030
48-49....................... Transportation and Warehousing....... 3,962,468 359,329 85,880
51.......................... Information.......................... 2,144,543 194,474 46,479
52.......................... Finance and Insurance................ 3,516,119 318,853 76,206
53.......................... Real Estate and Rental and Leasing... 831,576 75,410 18,023
54.......................... Professional, Scientific, and 3,473,638 315,001 75,285
Technical Services.
55.......................... Management of Companies and 2,012,800 182,527 43,624
Enterprises.
56.......................... Administrative and Support and Waste 5,980,306 542,313 129,613
Management and Remediation Services.
61.......................... Educational Services................. 10,187,387 923,825 220,794
62.......................... Health Care and Social Assistance.... 9,121,232 827,143 197,687
71.......................... Arts, Entertainment, and Recreation.. 1,027,467 93,174 22,269
72.......................... Accommodation and Food Services...... 4,309,162 390,769 93,394
81.......................... Other Services (except Public 1,483,944 134,569 32,162
Administration).
92.......................... Public Administration................ 6,064,870 549,982 131,446
----------------------------------------------------------------------------------------------------------------
All Establishments Covered by Title 1 of the FMLA.................. 77,113,762 6,992,925 ** 1,671,309
----------------------------------------------------------------------------------------------------------------
** Note: Many of these workers are likely to take multiple FMLA leaves. See Chapter XI, Section E, of the RFI
Report (72 FR at 35550).
Source: CONSAD 2007.
Although the Department presented a range for the number of FMLA
leave-takers in the RFI Report (see Chapter XI, Section D, of the RFI
Report (72 FR at 35550)), for this PRIA the Department presents its
best estimate--7.0 million workers. The Department departed from
presenting a range here because the comments received in response to
the RFI strongly suggested that the Department's Employer Survey Based
(point) Estimate that it presented in the RFI (6.1 million workers) was
reasonable and the Department received very few comments on the
approach that it used to develop that estimate.
Estimates of the Number of FMLA Leaves Taken
Because the impacts of some of the proposed revisions are related
to the number of FMLA leaves taken rather than the number of workers
taking FMLA leave, for this analysis it was necessary to estimate the
number of FMLA leaves taken. To do this, CONSAD examined the data
collected by the Westat employee survey. From this survey, CONSAD
estimated that during 1999, 8.8 million leave-takers working in FMLA
covered establishments took 13.3 million leaves. Therefore, on average
each leave-taker took 1.5 leaves.\29\ Assuming this rate applies to
workers taking FMLA leave in 2005, CONSAD estimates that the 7.0
million workers taking FMLA leave took about 10.5 million leaves in
2005.\30\ The Department did not develop estimates of the number of
FMLA leaves by industry based upon the national average, because
comments to the RFI indicate that leave usage can vary greatly by
industry.\31\
---------------------------------------------------------------------------
\29\ It is important to note that the average number of leaves
is higher for many leave-takers. For example, as was noted in the
CONSAD Report, the covered and eligible leave-takers who reported
taking both leave intermittently (i.e., repeatedly at different
times) and taking more than one leave, took an average of 4.6
leaves. There also is some uncertainty over how respondents
interpreted the term ``leave'' (i.e., whether it means each
incident/absence or a group of absences for a single qualifying
condition). For example, 1.3 percent of the covered and eligible
leave-takers who reported taking leave intermittently reported
taking no FMLA leaves. Another 53.2 percent of the covered and
eligible leave-takers who reported taking leave intermittently
reported taking only one FMLA leave. Thus, it would appear that many
workers considered a leave to be a single qualified reason (e.g.,
pregnancy and birth of a child) regardless of the number of
incidents/absences (e.g., for pre-natal care, morning sickness,
childbirth, recovery from child birth). On the other hand, 8.3
percent of the covered and eligible leave-takers who reported taking
leave intermittently reported taking 10 or more FMLA leaves.
Presumably, many of these leave-takers were reporting the number of
incidents (e.g., absences, late arrivals, etc.) rather than the
number of leaves based on different qualifying conditions.
\30\ Although there is some uncertainty over how respondents
interpreted the term ``leave'' in the Westat employee survey (see
footnote 29), this is the Department's best estimate given available
data.
\31\ In addition to the difficulty interpreting the term
``leave'' discussed in footnote 29, the Westat surveys were not
large enough to develop industry-specific leave usage estimates.
Although information provided in response to the RFI suggests that
leave usage varies by industry, the data submitted do not permit the
development of estimates by industry.
---------------------------------------------------------------------------
Chapter 2: Estimated Impacts of the Proposed Revisions Introduction
In this Chapter, the Department presents its estimates of the
impacts of the proposed revisions to the FMLA. The approach utilized
was to present a summary of the changes most likely to result in
behavior changes by covered employers and their employees and to
estimate the monetary value of these changes whenever possible. (The
preamble to the proposed rule provides a more detailed discussion of
each proposed change.) Several findings in the Department's RFI Report,
noted below, influenced the methodology used to estimate the impact of
the proposed revisions.
[[Page 7945]]
``Previous congressional testimony, the 2000 Westat
Report, other surveys, and stakeholder meetings suggest that the FMLA
has significant benefits and costs.'' (72 FR at 35627)
``Further, most surveys of workers and employers show
that, while the FMLA has been generally effective in carrying out the
congressional intent of the Act, some aspects of the statute and
regulations have created challenges for both workers and employers * *
* 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.'' (72 FR at 35627)
``[S]ome employers are likely to incur higher costs than
the `average' firm responding to Westat's employer survey. If these
high costs are clustered in specific industries or types of work, then
the FMLA could impose significant costs for those clusters of employers
while the average number of employers may have reported relatively
lower costs.'' (72 FR at 35630)
``The RFI record suggests that intermittent FMLA leave can
have significant impacts on time-sensitive business models * * * In
many situations, the absence of just a few employees can have a
significant impact * * * Comments received in response to the RFI
suggest at least four types of business operations appear to have
particular difficulty with unscheduled intermittent FMLA leave: (1)
Assembly line manufacturing; (2) operations with peak demand; (3)
transportation operations; (4) and operations involving public health
and safety.'' (72 FR at 35632)
Based on these findings, the Department used a bifurcated approach
to assessing the impacts of the proposed revisions. First, the PRIA
assesses the impacts that are generally applicable to most employers
and their employees. Second, the PRIA qualitatively discusses the
impacts on employers and employees with highly time-sensitive
operations.
Although many of the estimates presented below are developed from
the same data sources used in the Department's estimates under the
Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., and its
attendant regulations, 5 CFR part 1320, there are several differences
in the estimates. These differences, however, result from the differing
requirements imposed by the E.O. 12866 and the PRA. For example, many
of the employer estimates developed for the PRIA are based upon the
number of covered establishments while the estimates in the PRA are
based upon the number of respondents, which is often the number of
employers covered by the FMLA. In addition, the estimates in the PRIA
represent the incremental changes of the proposed rule while those in
the PRA analysis represent the total burden of the information
collection. In some cases, this results in the PRA analysis calculating
a paperwork burden for an information collection that remains unchanged
from the current regulation and is thus not considered an incremental
cost of the new regulation in the PRIA. Conversely, the regulatory
definition for ``collection of information'' for PRA purposes
specifically excludes the public disclosure of information originally
supplied by the Federal government to the recipient for the purpose of
disclosure to the public (see 5 CFR 1320.3(c)(2)), while the PRIA needs
to consider the impact of any regulatory changes in such notifications
provided by the government.
Cost of Reviewing and Implementing Revisions
Any change in a regulation will result in costs for the regulated
community to review the changes and revise their policies and
procedures. The Department estimates that, on average, a human resource
professional at each firm with FMLA covered establishments will spend
an average of six hours to review the revised FMLA provisions, adjust
existing company policies accordingly, and disseminate information to
managers and staff. Given that the average hourly wage and benefits
rate of a Human Resource compensation and benefits specialist is
$36.51,\32\ the average one time cost per covered firm is $219.06 (6
hours x $36.51). Multiplying this average cost per firm by the
estimated 273,937 firms that have FMLA covered establishments (see the
industry profile above) results in an estimated one-time cost of about
$60.0 million for firms to review the changes and revise their policies
and procedures.
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\32\ Bureau of Labor Statistics, ``National Compensation Survey:
Occupational Wages in the United States, June 2006.'' Rate assumes
hourly wage plus 40% for benefits.
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Clarifying the Treatment of Professional Employer Organizations (Sec.
825.106)
The Department is proposing to clarify how the joint employment
rules apply to Professional Employer Organizations (PEOs). Under the
proposal, PEOs that contract with client employers merely to perform
administrative functions--including payroll, benefits, regulatory
paperwork, and updating employment policies--are not joint employers
with their clients, provided: (1) They do not have the right to
exercise control over the activities of the client's employees, and do
not have the right to hire, fire or supervise them, or determine their
rates of pay, and (2) do not benefit from the work that the employees
perform.
Based upon the comments received in response to the RFI, it appears
that some commenters were under the erroneous impression that PEOs were
treated the same as temporary staffing agencies. Thus, some workers may
have been mistakenly treated as if they were covered by the FMLA when
they were not. Other comments indicated that some small employers do
not use PEOs because of uncertainty over FMLA coverage. Some of these
employers may choose to use PEOs after the clarification and provide
their employees with some of the benefits offered by the PEOs such as
access to group life and health insurance, and retirement plans.
Although data limitations inhibit the Department from estimating the
impact of this clarification, the Department expects that very few
workers or employers will be impacted by this clarification.
Clarifying the Definition of ``Eligible Employee'' (Sec. 825.110)
Current Sec. 825.110 sets forth the eligibility standards
employees must meet in order to take FMLA leave. Specifically, current
Sec. 825.110(a) restates the statutory requirement that to be eligible
for FMLA leave, an employee must have been employed by an employer for
12 months, been employed for 1,250 hours in the 12 months preceding the
leave, and be employed by an employer with 50 or more employees within
75 miles of the worksite. Current Sec. 825.110(b) provides detail on
the requirement that the employee must have been employed by the
employer for at least 12 months, stating that the 12 months need not be
consecutive.
The Department is proposing a new Sec. 825.110(b)(1) to provide
that although the 12 months of employment need not be consecutive,
employment prior to a continuous break in service of five years or more
need not be counted. The Department expects that very few workers will
be impacted by this clarification.\33\
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\33\ In order to be impacted by the proposed provision a worker
would have to (1) be employed for at least 1,250 hours during the
previous 12 months, (2) have a break in employment with that
employer for more than 5 years, and (3) need time from the earlier
period of employment with the same employer to meet the 12 months of
employment requirement for FMLA eligibility. Very few workers are
likely to meet these three conditions. For example, part-time
employees would have to work an average of 25 hours per week for 50
weeks to meet the 1,250 hours employed requirement. So the only ones
impacted are those who want to use FMLA leave and who need a few
additional weeks of employment from their previous period of
employment more than 5 years ago with the same employer. Similarly,
returning full-time employees will need more than 7 months of
employment at 40 hours per week to meet the 1,250 hours employed
requirement. So the only ones impacted are those who want to use
FMLA leave and who need a few extra months of employment from their
previous period of employment more than 5 years ago with the same
employer.
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[[Page 7946]]
The Determination of Whether 50 Employees Are Employed Within 75 Miles
(Sec. 825.111)
Current Sec. 825.111 sets forth the standards for determining
whether an employer employs 50 employees within 75 miles for purposes
of employee eligibility. Paragraph (a)(3) of this section provides that
when an employee is jointly employed by two or more employers, the
employee's worksite is the primary employer's office from which the
employee is assigned or reports. The Department is proposing to modify
Sec. 825.111(a)(3) to state that after an employee who is jointly
employed is stationed at a fixed worksite for a period of at least one
year, the employee's worksite for purposes of employee eligibility is
the actual physical place where the employee works. No changes are
being proposed with respect to employees whose worksite has not been
fixed for at least one year.
The Department expects that this clarification will have little net
impact. Some employees currently covered by FMLA may not be covered if
their official worksite is changed because they have worked more than
one year at an establishment which has less than 50 employees within 75
miles, while other employees not currently covered may become covered
if their worksite is changed to an establishment which has 50 or more
employees within 75 miles.
Clarifying the Definitions of ``Continuing Treatment'' and ``Periodic
Visit'' (Sec. 825.113, Sec. 825.114 and Sec. 825.115)
The current regulations (Sec. 825.114(a)(2)(i)(A)) define
``continuing treatment'' for purposes of establishing a serious health
condition as a period of incapacity of more than three consecutive
calendar days and treatment two or more times by a health care
provider. However, the current ``two visit'' requirement for serious
health conditions is open-ended. One of the proposed clarifications
specifies that the two visits to a health care provider must take place
within a 30 calendar-day period to meet the definition.
Similarly, a chronic serious health condition is currently defined
in Sec. 825.114(a)(2)(iii) as one that requires periodic visits for
treatment, but the regulations do not define the term ``periodic
visit.'' In the proposal, ``periodic visit'' is defined as visiting a
physician twice or more per year for the same condition. This is based
on an expectation that employees with chronic serious health conditions
will generally visit their health care providers with a minimum
frequency of semi-annually.
Although the proposed clarification will reduce uncertainty in the
workplace, it is unlikely to have any identifiable impact on FMLA
leave-takers for several reasons. First, of the five different
definitions of continuing treatment contained in current Sec.
825.114(a)(2)(i) through (v), the Department is proposing to update
only two. Those workers who meet the other tests will not be affected
(i.e., the clarifications do not impact workers who take FMLA leave for
a pregnancy or prenatal care; workers who use leave for a condition
that is permanent or long-term for which treatment may not be
effective; or workers who use leave for multiple treatments, such as
for a condition that would likely result in more than three consecutive
days of incapacity in the absence of treatment. The proposed changes
also do not affect employees who take FMLA leave for serious health
conditions that required an overnight hospital stay or workers who will
qualify on the basis of one visit to a health care professional and a
continuing regimen of treatment. Second, serious health conditions
usually require two visits to a health care provider within 30 days,
and workers with chronic serious health conditions typically visit
their health care providers twice a year. Finally, the Department has
also proposed an ``extenuating circumstances'' exception to the 30-day
rule in Sec. 825.115(a)(1), so it is likely that very few workers will
be negatively impacted by the proposed changes.
In fact, the Department believes it is providing FMLA protection to
more workers by clarifying that the period should be 30 days, instead
of adopting the stricter regulatory interpretation offered by the
United States Court of Appeals for the Tenth Circuit (see discussion in
preamble). Further, to the extent that some employers have chosen to
provide their own more stringent definition of the term ``periodic''
for FMLA purposes, clarifying the term ``periodic'' for chronic
conditions to mean two or more visits per year will reduce uncertainty
in the workplace and decrease the burden for some workers.
The following analysis illustrates how few workers and leaves this
may involve. According to both the Westat and WorldatWork surveys,
leaves based on multiple visits to a health care provider (as distinct
from leaves for self-treatment) represent only a small percentage of
FMLA leaves. In fact, the WorldatWork survey states that multiple
treatments were the basis of only 5.1 percent of FMLA episodes.\34\
However, it is very unlikely that the proposed changes will impact even
this small percentage of leaves because: (1) The multiple treatments
that most workers currently have will likely meet the revised
requirements with no change in the behavior of those workers; and (2)
other workers will simply move up the time of their second treatments
to meet the revised requirements (e.g., the 30 day period), or provide
an explanation of the ``extenuating circumstances.'' Therefore, it is
likely that on balance very few workers will be impacted by the
proposed changes.\35\ The Department specifically requests comment on
this conclusion.
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\34\ WorldatWork, FMLA Perspectives and Practices: Survey of
WorldatWork Members, April 2005, Figure 9a, p. 8.
\35\ The Department anticipates that at most 27,000 leaves may
require an additional visit to a healthcare professional to qualify
for FMLA protection.
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Substitution of Paid Leave (Sec. 825.207)
In the RFI the Department noted ``Some employers commented that the
substitution of leave provisions contribute to increased FMLA leave at
otherwise popular vacation or personal leave times.'' Moreover, this
increased use of FMLA leave resulted in some workers receiving more
favorable treatment than others. ``Many employers commented that the
regulations force employers to treat employees seeking to use accrued
paid leave concurrently with FMLA leave more favorably than those who
use their accrued paid leave for other reasons. The Madison Gas and
Electric Company, for example, stated that ``during `peak' or `high
demand' vacation periods, employees may request FMLA leave causing the
employer to deny other employees their scheduled leaves due to staffing
level concerns based on business needs.'' (72 FR at 35612) The proposed
revision will address both of these concerns by combining current
paragraphs (a), (b), and (c) of Sec. 825.207 into one paragraph (a),
which now clearly states that the
[[Page 7947]]
terms and conditions of an employer's paid leave policies apply and
must be followed by the employee in order to substitute any form of
accrued paid leave--including, for example, paid vacation, personal
leave, family leave, ``paid time off'' (PTO), or sick leave. In
addition, the proposed revision will help reduce the impact of
unforeseeable intermittent leave and uncertainty in the workplace by
providing employers with sufficient notice of their employees' need for
leave and thereby allowing for better staffing adjustments.
Proposed Sec. 825.207 requires FMLA leave-takers who are also
receiving paid leave to meet their employer's uniformly-applied paid
leave policies for accrued paid vacation and personal leave. If an
employee does not comply with the requirements in an employer's paid
leave policy, the employee is not entitled to substitute accrued paid
vacation and personal leave, but remains entitled to all the
protections of unpaid FMLA leave.
According to Westat, 65.8 percent of workers who take FMLA leave
received some type of pay during their longest FMLA leave.\36\ Further,
CONSAD estimated that 55.0 percent of these leave-takers received paid
vacation or personal leave.\37\ Therefore, about 2.5 million workers
(i.e., 7.0 million x 65.8% x 55%) received paid vacation or personal
leave during their FMLA leave. However, the proposal will not impact
all of these workers because many of them will continue to be eligible
to use paid vacation pursuant to their employers' normal vacation leave
policies.
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\36\ See the 2000 Westat Report, Table 4.2, p. 4-5.
\37\ The 2000 Westat Report indicated that of leave-takers who
received paid leave during their longest FMLA leave, 39.4% received
paid vacation leave and 25.7% received paid personal leave (Table
4.6, p. 4-6). Using probabilities, 55.0% = 39.4% + 25.7%--(39.4% x
25.7%).
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Most employers do not have very strict requirements regarding paid
leave. According to the 2000 Westat Report, 77.8 percent of leave-
takers reported that it was easy to get their employer to let them take
time off. This suggests that the vast majority of workers will have no
problem complying with their employers' paid leave policies. On the
other hand, 14 percent reported that it was difficult to get time
off.\38\ This suggests that a similarly small percentage of the 2.5
million workers who received paid vacation or personal leave during
their FMLA leave may have some difficulty satisfying their employers'
paid leave policies.
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\38\ See 2000 Westat Report, Table 4.2, p. 4-3.
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Some of these FMLA leave-takers will be encouraged to provide their
employers with additional notice of a pending absence so they can
utilize paid vacation and personal leave in conjunction with their FMLA
leave. Other FMLA leave-takers will not be able to satisfy their
employer's procedures for taking paid leave (e.g., because the
procedures require that leave be taken at specific times of the year or
in minimum blocks of time such as a week). However, workers who do not
or cannot satisfy their employer's procedures for taking paid leave
will still remain entitled to all the protections of unpaid FMLA leave.
The inability to take paid vacation leave concurrently with FMLA
leave may have a negative impact on the cash flow of those few who do
not satisfy their employer's requirements for taking paid leave, and
the Department understands that many commenters responding to the RFI
emphasized the importance of the ability to substitute paid leave.
However, for the few workers who will no longer be able to substitute
paid vacation in all situations, these workers will still be entitled
to use their accrued paid leave at some other time.
Perfect Attendance Awards (Sec. 825.215(c)(2))
The Department is proposing to replace the existing language in
Sec. 825.215(c)(2) with language that better reflects the requirements
of the statute and reduces uncertainty in the workplace. Specifically,
employers are uncertain whether their employee incentive plans are in
violation of the current regulation. The confusion stems from language
which distinguishes between bonuses for job performance such as those
based on production goals, and bonuses that contemplate the absence of
occurrences, such as bonuses for working safely with no accidents or
for perfect attendance.
Perfect attendance incentives are traditionally offered by
employers where the costs of absent employees (i.e., the cost of the
production delay itself or the cost of overstaffing or overtime to
avoid the delay) are high. Employers would offer the bonuses to
motivate workers not to be absent, thereby avoiding costs that are far
in excess of the bonus.\39\ In such situations, both employers and
employees gain from the bonus. Employers reduce their costs. Employees
increase their income.
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\39\ A rational employer would balance the perfect attendance
award cost with the cost of employee absence, and not offer such
bonuses where the cost of an absence is relatively low.
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Comments made in response to the RFI indicate that the current FMLA
regulations interfere with the effectiveness of perfect attendance
bonuses because employees could still qualify for the bonus while
absent on FMLA leave. As a result, the benefits of the bonuses to
employers are diminished because employers still incur the costs
related to absenteeism in addition to the cost of the bonuses, which
means that fewer employers may offer these awards, ultimately hurting
employees as well.
The Department believes that this revision will restore perfect
attendance awards to their intended purpose. By reducing the
uncertainty surrounding employee incentive plans, this revision may
encourage more employers to provide larger bonuses as incentives to
reduce absenteeism among all workers. Based upon the comments to the
RFI, the Department expects that some reduction in unnecessary
absenteeism will reduce overall employer costs. However, data
limitations inhibit the Department from quantifying the impact of this
revision.
The Treatment of Light Duty (Sec. 825.220(d))
The Department is proposing to delete the final sentence of current
Sec. 825.220(d) to ensure that employees retain their right to
reinstatement for a full 12 weeks of leave instead of having the right
diminished by the amount of time spent in a light duty position.
Under FMLA employees have no right to a light duty position.
Therefore, employers will only offer such duty to employees when it is
advantageous for them to do so. This will continue to be the case under
the revised provision. Although the Department believes that this
change will have a negligible impact on employers, a few workers whose
employers are counting their light duty hours towards their 12 weeks of
FMLA leave will now have more hours of leave available. The only impact
that the Department anticipates is that some workers may not be offered
light duty because their employers will not consider such duty cost-
effective if the time is not counted against the worker's FMLA
allotment, either for purposes of restoration rights or length of
leave.
Changes to the Employer Notification Requirements (Sec. 825.300)
Proposed Sec. 825.300(a)(3) requires covered employers with
eligible employees to distribute a general notice of information about
the FMLA to employees either by including it in an employee handbook or
by distributing a copy to each employee at least once a year, either in
paper or electronic
[[Page 7948]]
format, regardless of whether an employee requests leave.
Current Sec. 825.301(a)(1) requires an employer to place in an
employee handbook, if one exists, a notice of FMLA rights and
responsibilities and the employer's policies on FMLA. Current Sec.
825.301(a)(2) states that an employer without a handbook must provide
written guidance to an employee concerning all the employee's rights
and obligations under FMLA when the employee gives specific notice of
the need for leave.
The difference between the proposed and current provisions,
therefore, is that under the proposal all employees working in covered
establishments without handbooks must be notified annually rather than
just when they ask for leave that could be FMLA leave. The proposed
change will likely increase notification costs for some covered
employers (i.e., those without handbooks), and will likely increase
awareness of the Act and therefore FMLA usage.
CONSAD estimated the number of additional notices that may be
required for this provision, based upon data from the 2000 Westat
Report. The 2000 Westat Report indicates that 18.9 percent of employees
request FMLA leave annually. CONSAD added 1 percent to this estimate to
account for the growth in awareness of the FMLA from 1999 to 2005, and
then the 19.9 percent was multiplied by \2/3\ to account for the fact
that the Westat survey covered 18 months instead of 12 months. Thus,
CONSAD estimated that about 12.7 million covered employees request
leave each year (i.e., 13.3% of the 95.8 million FMLA covered
employees).\40\ Data from Westat also indicate that 8.1 percent of
covered employees did not receive information regarding their FMLA
rights in handbooks.\41\ Therefore, employers currently send out about
1 million general notices to employees requesting leave (i.e., 12.7
million x 8.1%).
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\40\ Although 12.7 million workers requested leave, only 7.0
million were eligible and took leave.
\41\ See the 2000 Westat Report, Table A2-6.1, p. A-2-50.
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Under the new provision, all FMLA-covered employees must receive an
FMLA general notice at least annually, regardless of whether they
request leave, if the information is not in an employee handbook.
Therefore, employers will have to send annual notices to about 7.8
million workers (i.e., 8.1% of the 95.8 million covered employees), and
the net impact of the proposal will be 6.8 million additional general
notices sent out each year (i.e., 7.8 million--1 million sent out under
the current rule).
The 2000 Westat Report suggests that 32 percent of employees
without FMLA information in a handbook will receive an annual notice
via e-mail, 62 percent will receive a hand-delivered memo at work, and
the remaining 6 percent will receive their annual notice via regular
mail.\42\ Therefore, among the additional notices needed each year, 2.2
million (i.e., 32% of 6.8 million) will be e-mailed, 4.2 million will
be hand-delivered at work, and 0.4 million notices will be sent by
regular mail.
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\42\ Id. The Department assumes that the distribution of the
means of communication among employees is the same as the
distribution of means of communication among establishments.
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Of the 1.135 million FMLA covered establishments, an estimated
92,000 (8.1%) do not include FMLA information in an employee handbook
and will be required to send annual notices to employees. For e-mail
notices, the Department estimates that it will take on average one hour
for a ``benefits and compensation'' specialist to prepare a notice (or
find a pre-made one from the Department of Labor's Web site) and e-mail
the notice to employees. For hand-delivered notices, the Department
assumes that it will take on average 1.5 hours to prepare the notice
and hand-deliver it through the interoffice mail. Finally, the
Department estimates that it will take a similar specialist an average
of two hours to prepare notices to be mailed by regular mail. This time
includes preparing the notice, printing mailing labels, and putting the
notices in envelopes.
Based on data from the Bureau of Labor Statistics, the average cost
for wage and benefits of a ``benefits and compensation specialist'' is
$36.51 per hour.\43\ So the estimated cost to prepare the 29,000 e-mail
notices is about $1.1 million (i.e., 92,000 establishments multiplied
by 32%, times the cost of $36.51 per establishment) and the estimated
cost for 57,000 firms to hand-deliver notices is about $3.4 million
(i.e., 92,000 establishments multiplied by 62%, times the cost of
$54.77 per establishment, plus the cost of copying the notice for 4.2
million workers at 8 cents per copy). The estimated cost for 5,500
firms to prepare and deliver the notice through regular mail is about
$0.6 million (i.e., 92,000 establishments multiplied by 6%, times the
cost of $73.02 per establishment, plus the cost of mailing a notice via
regular mail (about 49 cents) times the 0.4 million additional annual
notices sent via mail).
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\43\ National Compensation Survey: Occupational Wages in the
United States, June 2006. Based on an hourly wage of $26.08 plus 40%
for benefits.
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Adding all of these costs together yields a total estimated annual
additional cost of about $5.1 million for the general notice
proposal.\44\
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\44\ To the extent that e-mail or other electronic means of
communication may be more common now than in 2000, this may be an
overestimate of the impact of this provision.
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After receiving these general notices on an annual basis some
employees who previously did not take FMLA leave, may choose to do so
because they acquire additional information from the notice regarding
the protections afforded by the FMLA. Data from Westat employee survey
reveal that 2.7 percent, or 2.4 million, of covered and eligible
employees needed leave for FMLA covered reasons, but did not take it,
and that 8.6 percent, or 210,000, of covered and eligible leave-needers
reported that they could have afforded to take the leave, but had never
heard about the FMLA.\45\ The Department also estimates that 17.7
percent of covered and eligible leave-needers who reported they could
afford to take leave, but had never heard about the FMLA, did not take
the leave for fear of losing their jobs.\46\ Assuming these workers
would now be more aware of their FMLA protections they would most
likely take FMLA leave, the Department estimates that the number of
FMLA leave-takers will increase by about 37,000 employees (i.e., 17.7%
of 210,000) because of the proposed general notice provision.
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\45\ Department of Labor, Employment Standards Administration,
estimates from the Westat Employee Survey data.
\46\ Id.
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The estimated administrative costs associated with these additional
workers taking FMLA leave is based upon the estimate of 1.25 hours of a
``compensation and benefits specialist'' to process the paperwork for
each worker at a cost of $36.51 per hour. Thus, the administrative
burden of 37,000 additional workers taking FMLA leave will cost
approximately $1.7 million.
Proposed Sec. 825.300(b) consolidates the notice provisions
contained in existing Sec. 825.110(d) and Sec. 825.301(b) into a
paragraph entitled ``eligibility notice.'' Consistent with current
Sec. 825.110, the employer continues to be responsible under proposed
paragraph (b)(1) of this section for communicating eligibility status.
The proposed regulations require that this information be conveyed
within five business days after the employee requests leave or the
employer acquires knowledge that the employee's leave may be for an
FMLA-qualifying reason (a change from the
[[Page 7949]]
current requirement of two business days).
Proposed Sec. 825.300(b)(2) specifies what information an employer
must convey when communicating with the employee as to eligibility
status. While not required under the current regulations, the proposal
requires the employer to notify the employee whether leave is still
available in the applicable 12-month period. If the employee is not
eligible or has no FMLA leave available, then, pursuant to proposed
(b)(2), the notice must indicate the reasons why the employee is not
eligible or that the employee has no FMLA leave available. In proposing
these new notice requirements, the Department believes there will be
very little additional burden, since the employer is already required
to calculate such information in order to determine eligibility.
Moreover, any additional reporting burden will likely be more than
offset by the benefit of changing the notification requirement from two
to five days. Providing more time will reduce mistakes and provide
greater certainty in the workplace, and this typically benefits both
workers and employers.
Similarly, proposed Sec. 825.300(c) outlines the proposed
requirements of the designation notice an employer must provide to an
employee, currently located in Sec. 825.208(b). This proposed
designation notice requires that an employer notify the employee within
five business days (a change from the current requirement of two
business days) that the leave is designated as FMLA leave once the
employer has sufficient information to make such a determination.
Proposed Sec. 825.300(c)(3) explicitly permits an employer to
provide an employee with both the eligibility and designation notice at
the same time in cases where the employer has adequate information to
designate leave as FMLA leave when an employee requests the leave.
The Department estimates that the changes related to increasing the
time permitted to provide the notices and the ability to combine the
notices will save employers on average about 15 minutes of a
``compensation and benefits specialist'' time in processing each leave.
At a cost of $36.51 per hour, saving 0.25 hours on each of the
estimated 10.5 million leaves taken results in a savings of about $95.8
million. However, these savings are offset by the cost of the new
requirement that an employer notify the employee if the leave is not
designated as FMLA leave due to insufficient information or a non-
qualifying reason and the cost of providing more information to
employees in the designation notices (see below).
Proposed Sec. 825.300(c) requires that an employer notify the
employee if the leave is not designated as FMLA leave. As was noted
above, CONSAD estimated that 12.7 million covered employees request
leave each year. Subtracting the estimated 10.5 million FMLA leaves
from the number of requests for FMLA leave yields an estimated 2.2
million FMLA leave requests denied each year. Based upon an estimated
0.5 hours to process each of these requests at a cost of $36.51 per
hour, the Department estimates that notifying the 2.2 million workers
why their requests for FMLA has been denied will results in a cost to
employers of about $40.2 million.
Proposed Sec. 825.300(c)(1) requires employers to inform their
employees of the number of hours, days, or weeks, if possible,
designated as FMLA leave. To estimate the impact of this change, the
Department assumes it would take an additional 10 minutes of a
``compensation and benefits specialist'' time to process each
designation because of the new requirement to provide the amount of
time that will be designated as FMLA leave.\47\ Based upon 10.5 million
leaves, this will result in about $65.9 million in additional costs.
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\47\ This estimate is consistent with the data presented in
WorldatWork, FMLA Perspectives and Practices: Survey of WorldatWork
Members, April 2005, Figure 6, p. 7.
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Moreover, where the amount of future leave that will be needed by
an employee is unknown, such as for workers with chronic conditions,
proposed Sec. 825.300(c)(1) requires that the notice of the amount of
leave designated and counted be provided every 30 days, to the extent
that the employee took leave for the condition in the prior 30-day
period. Currently, the regulations do not specifically address the
designation of the particular amount of unforeseen, intermittent leave
used. Current Sec. 825.208 requires an employer to designate leave as
FMLA-qualifying leave, and current Sec. 825.301(c) requires that the
notice of an employee's specific obligations must be provided no less
often than once every six months, but they do not expressly address the
number of days or hours of leave used. To estimate the impact of this
change, the Department assumes that for workers with chronic conditions
(either temporary or permanent) an additional 10 notices \48\ will have
to be provided each year and that each notice will take about 10
minutes of a ``compensation and benefits specialist'' time to
process.\49\ According to the WorldatWork survey, 28.6 percent of
absences result from either chronic or permanent/long term
conditions.\50\ Assuming that this applies to leave takers, the
Department estimates that 10 additional designation notices will have
to be sent to about 2 million workers (i.e., 28.6% of 7 million) taking
FMLA for either chronic or permanent/long term conditions each year at
a cost of $121.9 million (i.e., 2 million x 10 notices x 0.167 hour x
$36.51 per hour).\51\ The Department has not estimated the cost of
alternative notification frequencies (e.g., every 60 days, every three
months, etc.) because the cost of this revision depends solely on the
frequency of the designation notices.\52\ The Department, however,
requests comment on its assumption that 10 additional designation
notices would be required each year under the proposed language of
Sec. 825.300(c)(1) and whether some alternative frequency for
employers to provide the designation notices is more appropriate than
the proposed frequency of every 30 days.
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\48\ Currently up to 2 notices are required each year.
\49\ This estimate is consistent with the data presented in
WorldatWork, FMLA Perspectives and Practices: Survey of WorldatWork
Members, April 2005, Figure 6, p. 7.
\50\ Id., Figure 9a, p. 8.
\51\ This is an upper bound estimate because it is based upon
the assumption that the workers will take some FMLA leave each month
and that a designation notice will be required every month. Clearly,
some workers with FMLA certifications for chronic health conditions
do not take FMLA leave every month. Moreover, although the current
regulations do not specifically address the designation of
unforeseen intermittent leave, the RFI record suggests that many
employers are already sending out designation notices for this type
of FMLA leave to avoid any potential legal liability.
\52\ Additional Annual Cost = (Annual Number of Notices
Required--2 Current Notices) x $12.2 million.
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The net impact of all of the revisions discussed in this
subsection, therefore, will be a net cost of about $139.0 million.
Changes Related to Employees Notifying Their Employers (Sec. Sec.
825.302, .303 and .304)
The current regulations require an employee to notify his or her
employer of the need for leave and generally to schedule leave for
planned medical treatments in a way that the absences do not unduly
disrupt the employer's business operations. These proposed revisions
are intended to reduce the impact of unforeseeable intermittent leave
and uncertainty in the workplace without negatively impacting leave-
needers.
[[Page 7950]]
Under the Department's proposal, an employee must provide notice as
soon as practicable, meaning feasible under the circumstances, and must
comply with the employer's usual procedures for calling in and
requesting leave, except when extraordinary circumstances exist such as
when the employee or covered family member needs emergency medical
treatment. The Department expects that in all but the most
extraordinary circumstances, employees will be able to provide notice
to their employers of the need for leave prior to the start of their
shift. The proposed changes should reduce some of the uncertainty and
disruptions caused by employees taking unforeseeable FMLA leave with
little or no advance notice to their employers.
As was noted in the RFI Report, unscheduled leave is more
disruptive to employers than foreseeable leave. By its very definition,
foreseeable FMLA leave can be anticipated and planned for as employees
are aware of their need in advance and can easily notify their
employers prior to taking FMLA leave. Even in cases where the exact
timing of the leave is not known 30 days in advance, the Department
believes that most employees taking foreseeable FMLA will easily be
able to comply with their employers' leave policies (see discussion in
preamble). On the other hand, by its very nature, unforeseeable leave
presents difficulties for both employees and their employers,
particularly as to the requirement that the employee provide notice of
the need for leave as soon as practicable.
According to a 2007 survey conducted by the Society for Human
Resource Management (SHRM), 34 percent of FMLA leave takers for
episodic conditions did not provide notice before the day the leave was
taken and 12 percent provided notice more than one day after the leave
was taken.\53\ Therefore, according to SHRM's survey about 46 percent
of employees are not providing notice prior to the start of their
workday. This estimate is consistent with the findings of the
Employment Policy Foundation, which found that 41 percent of employees
are not providing notice prior to the start of their workday or
shift.\54\ Thus, the Department estimates that no notice is currently
being provided prior to the start of the workday for 4.8 million leaves
(i.e., 46% of 10.5 million leaves).
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\53\ Society for Human Resource Management, FMLA and Its Impact
on Organizations, Figure 7, p. 17, available at: http://www.shrm.org/hrresources/surveys_published/FMLA%20And%20Its%20Impact%20On%20Organizations%20Survey%20Report.pdf.
\54\ Janemarie Mulvey, PhD, Employment Policy Foundation Issue
Backgrounder, ``The Cost and Characteristics of Family and Medical
Leave,'' April 19, 2005, p. 3. ``With respect to providing notice
prior to taking FMLA leave, the survey results show that nearly 50
percent of all FMLA leave takers do not provide notice before the
day the leave is taken. According to the survey, in over 30 percent
of cases, employees provide notice after the leave has started. In
another 11 percent of cases, employees providing notice [sic] at the
time the leave begins or immediately after.''
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It is this late notification that results in greatest uncertainty
and disruption to employers' business operations. For example, it
creates significant problems if the employer cannot obtain adequate
staffing; \55\ the production process is often slowed down or brought
to a halt; \56\ and the situation is particularly ominous when the
employee works in a safety-sensitive position, such as 911
operators.\57\ Moreover, workplace uncertainty can impact other
employees who may have to pull double-duty to cover for a team member
or co-worker.\58\
---------------------------------------------------------------------------
\55\ RFI Report, 72 FR at 35631.
\56\ Id. at 35633.
\57\ Id. at 35635.
\58\ Id. at 35633.
---------------------------------------------------------------------------
There are three anticipated behavioral responses that leave-takers
will have to the proposed provisions. First, most leave-takers will
simply change their notification behavior and notify their employers of
leaves prior to the start of their workday. This change will mean that
although the leaves are taken, staff uncertainty will be reduced and
employers will have more time to obtain a replacement and be in a
better position to meet staffing needs despite the unexpected absence.
The Department expects that 95 percent or 4.6 million of the 4.8
million leaves where employees are currently not providing notification
until the start of the workday will be in this category.
Better control of the unforeseen absences will reduce the
disruptions associated with the labor absence. The Westat Survey and
comments made in response to the RFI suggest that the most likely
response of employers to an unforeseen absence of short duration is to
simply assign the absent employee's work to other employees. However,
the comments to the RFI also indicate that it may take employers some
time to arrange for coverage, especially in cases where the
notification of the FMLA comes in after the start of the shift. For
this proposed rule, therefore, DOL has used one hour of the average
earnings of production and nonsupervisory workers on private nonfarm
payrolls ($17.57) \59\ plus 40 percent for benefits as a proxy for the
cost of an absence without sufficient notification. This savings is not
a productivity savings in the traditional sense because there is no
output and no time involved. Rather, the Department is using one hour
of employees' compensation \60\ as a rough estimate of the costs
related to the uncertainty and disruptions caused by unscheduled
intermittent FMLA leave (e.g., work being left undone until the absent
employee's work can be shifted to another employee or until another
employee can cover for the absent employee). Further, this estimate is
limited to the typical impact. If the absence of an employee affects
the productivity of other employees besides the one reassigned the task
(i.e., in highly time-sensitive production processes such as
manufacturing), this may be an underestimate of the effects of this
provision.\61\ Thus, the Department estimates that more timely
notifications by employees will result in a savings of about $113.2
million to employers. The Department specifically request comments on
the analysis used to develop this estimate.
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\59\ According to the October 2007 BLS Employment Report.
\60\ The wage plus benefits represents the marginal cost of the
absent employee. In a perfectly competitive market, this would be
equal to the marginal revenue brought in by that employee.
Therefore, one hour of compensation is used as a proxy for the
opportunity cost of having the worker missing for an hour.
\61\ See the later discussion on the possible impacts on highly
time-sensitive industries.
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The second possible response to this change is that some workers
who continue to avoid compliance with their employer's attendance
policies may be subject to their employer's disciplinary procedures for
being absent. No workers with a legitimate need for FMLA leave will be
in this group or decide not to take the leave in response to a last-
minute emergency because: (1) The revisions provide for ``extraordinary
circumstances'' (see below); and (2) an employee is likely to take
leave regardless of the interpretation of ``as soon as practicable''
during a serious health situation.\62\
---------------------------------------------------------------------------
\62\ The Department received a number of comments in response to
the RFI that suggest some employees may be misusing FMLA leave to
avoid their employers' attendance policies (see Chapter IV, Section
B.2, of the RFI Report, 72 FR at 35571). However, as noted in the
RFI Report, the Department cannot assess from the record how much
leave taking is actual ``abuse'' and how much is legitimate, and
therefore cannot estimate what impact this proposal would have on
the alleged misuse of FMLA leave.
---------------------------------------------------------------------------
The Department expects that 4.9 percent or 235,000 of the 4.8
million leaves where employees are currently not providing notification
until the start of the workday will be in this category. The Department
estimates that each of the leaves not covered by FMLA will save
employers' administration and
[[Page 7951]]
reduced operational costs equal to an average of about 1 hour of a
``compensation and benefits specialist's'' time. At a cost of $36.51
per hour, this will result in a savings of about $8.6 million.
The third possible response is that some leave-takers will have
``extraordinary circumstances'' with a serious health condition and
take leave without providing advance notice. However, the number of
leaves for which advance notice cannot be given will likely be very
small, on the order of 0.1 percent of the 4.8 million leaves or 48,000.
The uncertainty, disruptions, and costs associated with this type of
unscheduled leave for both employers and employees are inevitable,
unavoidable, and will likely continue, but the incremental impacts of
this continued type of leave, relative to the current rule, is minimal.
The net impact of all of the revisions discussed in this
subsection, therefore, will be a net savings of about $121.8 million.
Medical Certifications (Sec. Sec. 825.305, 825.306 and 825.307)
Current Sec. 825.305(c) provides that an employer should request
medical certification from the employee within two business days of
receiving the employee notice of the need for leave. The Department is
proposing to modify this time-frame to a five-business-day standard.
This change is being proposed to maintain consistency with the
modifications being proposed to Sec. 825.300. Providing more time will
reduce mistakes and provide greater certainty in the workplace, and
this typically benefits both workers and employers.
The Department is also proposing in Sec. 825.305(c) that when an
employer determines that a medical certification is incomplete or
insufficient, the employer must state in writing what additional
information is necessary and provide the employee with seven calendar
days to cure the deficiency (additional time must be allowed where the
employee is unable to obtain the additional information despite
diligent good faith efforts). Under the current rule no written
statement from the employer is necessary.
In Sec. 825.306 the Department is proposing several revisions to
the medical certification form, to implement the statutory requirements
for ``sufficiency'' of the medical certification as set forth in 29
U.S.C. 2613(b) and to make it easier for health care providers to
understand and complete. The Department has revised its optional form
(Form WH-380) for employees or their family members to use in obtaining
medical certifications and second and third opinions from a health care
provider.
There are three proposed changes to Sec. 825.307. First, the
proposed provision clarifies the limited nature of the authentication
process and removes the requirement that employees consent to
authentication of the certification. Second, the proposal allows
employers to contact the employee's health care provider directly,
rather than through a third-party health care provider that represents
the employer, provided the contact between the provider and the
employer comply with the privacy rule under the Health Insurance
Portability and Accountability Act (HIPAA). Third, the new provision
extends the time allowed for an employer to provide the results of
second and third opinions of medical certifications from two business
days to five.
According to the 2000 Westat Report, 73.6 percent of leave-takers
took leave for a serious health condition (either their own or for a
covered family member),\63\ and 92 percent of covered establishments
required medical documentation for covered leave due to a serious
health condition.\64\ The Department estimates that these provisions
will affect about 7.1 million FMLA leaves taken for serious health
conditions (i.e., 7.0 million leave-takers x 73.6% x 1.5 leaves x 92% =
7.1 million). The Department also estimates that these changes, as well
as the changes discussed above, will result in a net savings to
employers of on average about 15 minutes of a ``compensation and
benefits specialist'' time in processing each leave request.\65\ At a
cost of $36.51 per hour, saving 0.25 hours on each of the estimated 7.1
million leaves taken results in a savings of about $64.8 million for
employers.
---------------------------------------------------------------------------
\63\ The 2000 Westat Report, Table 2.3, p. 2-5.
\64\ The 2000 Westat Report, Table A2-6.3, p. A-2-51.
\65\ The net savings of 15 minutes includes: 1) the savings
associated with extending the time allowed to ``process'' medical
certifications from two to five days (providing more time will
reduce the number of mistakes involved in the medical certification
process and time required to address and correct those mistakes);
plus 2) the time saved by allowing employers to contact the
employee's health care provider directly; less 3) the additional
time and cost that employers will have to take to provide a written
explanation of why a medical certification is incomplete or
insufficient.
---------------------------------------------------------------------------
In response to the RFI, some employee groups stated that it was
often very challenging for workers to obtain certifications because the
ambiguities on the form made it difficult for their health care
providers to address deficiencies noted by their employers. The
proposed revisions will make it easier for employees to understand what
is required and will reduce uncertainty as to whether the condition
qualifies as a serious health condition under the FMLA. In addition,
the Department expects that employees will have to make fewer trips and
phone calls to their health care providers to obtain ``complete and
sufficient'' certifications, although the Department has not quantified
this impact.
In response to the RFI, some health care providers expressed their
frustration with the current form and the amount of time required to
provide their patients with ``complete and sufficient'' certifications.
The Department expects that the proposed clarifications will decrease
the burden on health care providers and possibly reverse the trend of
increasing numbers of health care providers charging their patients for
filling out the medical certification forms.
Recertifications (Sec. 825.308) and Certifications for Fitness-for-
Duty (Sec. 825.310)
Consistent with Wage and Hour Opinion Letter FMLA2004-2-A (May 25,
2004), the proposed change to Sec. 825.308(e) of the FMLA would allow
employers to send the absence schedule of an employee to a health care
provider and to ask the health care provider whether or not the
employee's pattern of intermittent leave use is congruent with the
employee's qualifying medical condition. Further, consistent with the
existing regulation, proposed Sec. 825.308(b) explains that if a
minimum duration for the leave is specified, the employer may not
request recertification until that time period has expired but adds
that, in all cases, recertifications may be requested every six months.
Thus, the Department assumes that this clarification will not impact
either employers or employees. The proposed change to Sec. 825.308(e)
will, however, provide employers with a tool to determine if the
employee's pattern of FMLA leave is consistent with their condition, or
possible misuse. However, as noted in the RFI Report, the Department
cannot assess from the record how much leave taking is actual ``abuse''
and how much is legitimate, and therefore can not estimate what impact
this proposal would have on the alleged misuse of FMLA leave.\66\
---------------------------------------------------------------------------
\66\ The Department received a number of comments in response to
the RFI that suggest some employees may be misusing FMLA leave. For
example, a number of commenters stated that some employees appear to
be misusing the FMLA rules to secure for themselves a preferred
schedule (see Chapter IV, Section B, of the RFI Report, 72 FR at
35575). However, the RFI Report also noted that the increase in the
use of unscheduled intermittent FMLA leave seen in the data
submitted by some employers could be due to other factors, such as
workers suffering from the adverse health effects associated with
the stress of staffing shorthanded operations (see Chapter XI,
Section L, of the RFI Report, Id. at 35635).
---------------------------------------------------------------------------
[[Page 7952]]
Current Sec. 825.310(c) states that a fitness-for-duty
certification need only be a simple statement of the employee's ability
to return to work. The proposed provision allows a fitness-for-duty
certification similar to that of the initial medical certification of
the FMLA leave. The Department is also proposing in Sec. 825.310(g)
that an employer be permitted to require an employee to furnish a
fitness-for-duty certificate every 30 days if an employee has used
intermittent leave during that period and reasonable safety concerns
exist. For example, if a bus driver takes intermittent leave for a
serious health condition that may influence his or her ability to drive
safely over the road, then a fitness-for-duty certification is
permitted. Finally, the Department is proposing in Sec. 825.310(c)
that, consistent with the HIPAA Privacy Rule, employers may contact an
employee's health care provider directly, rather than through a third-
party health care provider which represents the employer, for purposes
of clarifying and authenticating the fitness-for-duty certification.
These proposed changes have several important impacts. First, they
would better protect the safety and health of workers taking leave, and
their coworkers. Second, Sec. 825.310(c) will reduce administrative
burdens. Third, the proposed change to Sec. 825.308(e) will reduce
uncertainty in the workplace by permitting an employer to determine if
an employee's pattern of leave is consistent with the serious health
condition.\67\
---------------------------------------------------------------------------
\67\ A number of comments to the RFI questioned employee leave
patterns.
---------------------------------------------------------------------------
The additional information needed for a fitness-for-duty
certification is likely to result in additional costs. The 2000 Westat
Report found that 52.4 percent of workers took leave for their own
serious health condition;\68\ and the Department assumes that 10
percent of these leave-takers, or 367,000 workers, are required to have
a fitness-for-duty certification to return to work (i.e., 7.0 million
workers x 52.4% x 10.0% = 367,000). Their health care providers will
have to take an additional 10 minutes to provide the additional
information on the proposed fitness-for-duty certification, and this
additional time will cost an average of $51.06 per hour.\69\ Thus,
health care providers are likely to incur about $4.7 million in
additional costs and these costs are likely to be shifted to employees
in the form of higher fees for filling out the certifications.\70\
---------------------------------------------------------------------------
\68\ The 2000 Westat Report, Table 2.3, p. 2-5. The
establishment survey also found that 37.8 percent of FMLA leave-
takers took leave for their own serious health condition; Table 3.8,
p. 3-16.
\69\ Average cost of physicians' assistants from the Bureau of
Labor Statistics, National Compensation Survey, 2005. The average
hourly wage was multiplied by 1.4 to account for benefits.
\70\ Comments to the RFI indicate that many health care
providers are now charging fees for FMLA certifications. It should
be noted that the Department expects the majority of these fees will
be paid by workers' health insurance. According to the Bureau of
Labor Statistics, 2007 National Compensation Survey, unpublished
data, 90 percent of establishments with 50 or more employees offer
health care benefits, and 81 percent of workers in those
establishments have access to those health care benefits. Further,
employers with 50 or more employees paid for 81 percent of health
insurance premiums for single coverage, and 73 percent for family
coverage.
---------------------------------------------------------------------------
Although employers will take longer to review these certifications,
the Department assumes that these costs will be offset by the ability
of employers to directly contact the workers' health care providers.
The proposal in Sec. 825.310(g) to permit an employer to require
an employee to furnish a fitness-for-duty certificate every 30 days if
an employee has used intermittent leave during that period and
reasonable safety concerns exist is likely to impact very few workers.
The 2000 Westat Report found that 52.4 percent of workers took leave
for their own serious health condition and 23.9 percent of those
workers took it intermittently.\71\ The Department assumes that 5
percent of these leave-takers, or 44,000 workers, will be required to
have a fitness-for-duty certification where reasonable safety concerns
exist \72\ in order to return to work from intermittent leave (i.e.,
7.0 million workers taking FMLA leave x 52.4% x 23.9% x 5.0% =
44,000).\73\ On average the Department assumes these 44,000 workers
will be required to provide three fitness-for-duty certifications for
the intermittent leave they take, and obtaining each of these 132,000
certifications will cost an average of $50.\74\ Thus, the revised
provision will likely cost workers about $6.6 million per year.\75\
---------------------------------------------------------------------------
\71\ The 2000 Westat Report, Table 2.3, p. 2-5; and those that
answered yes to Question A5B of Westat's employee Questionnaire.
\72\ See the preamble for a discussion and examples of the term
``reasonable safety concerns.''
\73\ The Department assumed a lower rate here because of the
additional ``reasonable safety concern'' requirement on employer's
ability to require a fitness-for-duty certification for intermittent
leave.
\74\ The Department assumes that workers with chronic conditions
are under doctors' care so that for most workers the added cost of
the certifications will only be the charge for the doctor to fill
out the forms, which will probably cost less than $50. Other workers
will, of course, require medical examinations, which will probably
cost more than $50.
\75\ It should be noted that the Department expects the majority
of these costs will be paid by workers' health insurance. See
footnote 70.
---------------------------------------------------------------------------
To estimate the impact of these additional certifications on
employers, the Department assumed that it would take an additional 30
minutes of a ``compensation and benefits specialist's'' time at a cost
of $36.51 per hour to request and process each certification. Based
upon 132,000 fitness-for-duty certifications, this will result in about
$2.4 million in additional costs for employers.
Although the net impact of the revisions discussed in this
subsection will be a net cost of about $2.4 million for employers and
$11.3 million for employees, the proposed revisions to Sec. 825.310(g)
will increase workplace safety by making sure that workers are healthy
enough to return to work and do not pose a safety risk to themselves
and others. However, data limitations inhibit the Department from
estimating the number of workers who may be impacted by this proposal,
or quantifying the resulting safety benefit.
Summary of Impacts
The Department estimates that the proposed revisions will result in
a total first year net costs of about $26.1 million, and a net savings
of about $33.9 million, each year thereafter (and this does not include
the additional savings expected in the time-sensitive high-impact
industries that are discussed in the next section).
For employers, the most significant costs will be the first year
cost of reviewing and implementing the proposed revisions and the cost
of providing employees with additional and more specific notifications.
After the first year, however, these costs will be more than offset by
the reduction in administrative costs and increased productivity
resulting from employees providing better notice of their need for FMLA
leave (see previous discussion of Sec. Sec. 825.302, 825.303 and
825.304).
Although the vast majority of FMLA leave-takers will see no
difference, the Department estimates that employees will incur $11.3
million in additional expenses related to taking FMLA leave, primarily
as the result of the increased number of certifications that they will
have to provide their employers. However, since these costs are
primarily related to health care, a large portion is likely to be paid
by the employee's
[[Page 7953]]
health insurance, some of which is financed by employers. According to
the Bureau of Labor Statistics, 2007 National Compensation Survey, 90
percent of establishments with 50 or more employees offer health care
benefits, and 81 percent of workers in those establishments have access
to those health care benefits. Further, employers with 50 or more
employees paid for 81 percent of health insurance premiums for single
coverage, and 73 percent for family coverage.\76\
---------------------------------------------------------------------------
\76\ Bureau of Labor Statistics, National Compensation Survey,
2007, unpublished data.
---------------------------------------------------------------------------
Table 6 presents a summary of the impacts discussed above.
Table 6.--Summary of the Major Impacts of the Proposed Revisions
------------------------------------------------------------------------
Cost to Employees
employers or health
Provision ($ in ($
millions) millions)
------------------------------------------------------------------------
Reviewing and Implementing Revisions *........ $60.0 N/A
Sec. 825.300................................ 139.0 N/A
Sec. 825.302, Sec. 825.303 and Sec. -121.8 N/A
825.304......................................
Sec. 825.305, Sec. 825.306 and Sec. -64.8 N/A
825.307......................................
Sec. 825.308 and Sec. 825.310............. 2.4 $11.3
First Year Impact of Major Revisions.......... 14.8 11.34
Recurring Impact of Major Revisions........... -45.2 11.3
------------------------------------------------------------------------
* First Year Impact, only.
Source: U.S. Department of Labor.
Although these impacts are substantial, the Department has
determined that they do not account for all of the impacts that can be
reasonably anticipated from the proposed revisions. The Department
expects that the impact that the revisions will have in the highly
time-sensitive operations will add to the benefits. Analyses of these
impacts are presented below, however, because of data limitations the
Department has not attempted to quantify these benefits.
Impact of the Revisions on Highly Time-Sensitive Operations
Comments in response to the RFI indicate that firms in industries
with time-sensitive operations incur greater costs than the typical
establishments. These vulnerable industries include manufacturing,
health care, transportation, public safety, and communications. For
example, unexpectedly absent employees in these industries can disrupt
assembly lines for manufacturing, delay the take-off of commercial
airliners, and jeopardize adequate staffing in public safety
positions.\77\ This section discusses the impacts the proposed
revisions will have on highly time-sensitive operations.
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\77\ For example, New York City noted: ``The situation is
particularly ominous when the employee works in a safety-sensitive
position, such as 911 operators, or other employees requiring face-
to-face relief, because if the person's shift is not able to be
covered by a colleague who in some instances is required to work
overtime, then the public may receive a slow response to an
emergency call.'' Fairfax County Public Schools provided the example
of school bus drivers. ``[T]he essence of a school bus driver's job
is to deliver children to school on time and safely. A few bus
drivers have used chronic conditions such as CFS, depression, or
sleep problems as an excuse not to report on time and not to call in
when they will be late. They claim that their `condition' precludes
them from providing notice or from being on time. These behaviors
mean that children are often left waiting on street corners in all
weather for some other bus driver.'' For a complete discussion, see
Section K of Chapter XI of the Department's Report on the RFI (72 FR
at 35632).
---------------------------------------------------------------------------
Untimely notification of an absence of a high-impact employee can
have a more costly effect in highly time-sensitive industries than
others. Examples provided in response to the RFI indicate that if an
employer is unable to plan for the absence of a high-impact employee in
one of these industries because of late notification, the following
disruptive events can occur:
Manufacturing assembly lines may be interrupted if there
is not a stand-by employee to take the absent employee's place.
Passengers are delayed and productivity losses increase if
an airline pilot, flight attendant, bus driver, or train engineer does
not show up for work at their expected time.
Adequate public safety may not be provided when police
officers, emergency dispatch workers, fire fighters, and paramedic
shifts are not fully covered because of inadequate notice.
The conventional economic assumption is that the wage rate
represents the value of the marginal product for the occupation and/or
the industry. This was the reason in the previous sections that wage
rates were used as a proxy of the cost of the disruption caused by the
absence of a worker taking unscheduled FMLA leave. However, this
assumption does not hold in highly time-sensitive operations because of
the asymmetrical nature of their operations.
Workers' wages are primarily based upon their average output. Yet,
in time-sensitive operations the absence of a single worker can
sometimes result in disruptions that cost far in excess of the value of
the worker's average output or wage. For example, a worker's absence
may cause expensive equipment and other workers to be idled. In these
situations, the worker's average compensation or productivity cannot be
used to estimate the total welfare cost of the absence.
``Data on the productivity impact of FMLA, while potentially
probative, cannot by itself be used to estimate welfare effects
accurately. While it is broadly true that reductions in productivity
reduce economic welfare, the magnitude of the reduction depends on
how the effect is distributed across inputs and industries. A
regulation that reduces labor productivity, for example, will have a
larger impact on economic welfare in industries where production
requires ``fixed proportions'' of capital and labor (e.g., air
transport, which requires at least one pilot and one co-pilot per
airplane) than in industries where capital can easily be substituted
for labor. Similarly, a reduction in total factor productivity in an
industry producing products for which there are few economic
substitutes will have a larger effect on economic welfare than one
affecting an industry producing a product with many substitutes. In
the latter case, consumers will simply shift their purchases away
from the products of the less productive industry, suffering little
or no loss in consumer surplus. For these and other reasons,
economists do not generally attempt to measure the impact of
policies on economic welfare effects by tracking their effects on
productivity.'' \78\
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\78\ Jeffrey A. Eisenach, Assessing the Costs of the Family and
Medical Leave Act, Criterion Economics, February 16, 2007, p. 6.
(Doc. 10172A in response to RFI.)
This situation is akin to the peak demand situation at an electric
utility
[[Page 7954]]
company. Most customers are charged rates equal to the average cost of
power generation. During periods of peak demand (when the marginal
high-cost equipment is pressed into service and when the utility is
sometimes forced to buy power to meet customer demands), the utility
may take a loss on the sale of power. However, this loss is made up
when demand drops so that the utility can generate the needed power at
a much lower rate. This is why electric utilities offer customers
variable rates tied to overall power demand. By charging higher rates
during periods when power is more expensive to supply (so-called peak
load pricing), this pricing structure motivates customers to cut back
on their power use during periods of high or peak demand.
The U.S. labor market is not perfectly competitive. For instance,
some labor laws and regulations limit the flexibility of employers and
employees to enter into some mutually agreeable arrangements. Moreover,
most employers cannot use peak load pricing to vary the wages paid to
their employees based upon the demand at that moment.
[The] FMLA may inhibit the market's ability to allocate labor
efficiently among firms (and jobs among workers). Both firms and
workers display heterogeneity with respect to values they place on
absenteeism. In some industries, employee absenteeism will have a
relatively small effect on firms' overall ability to operate, and
therefore entail a relatively modest financial impact. In other
sectors, absenteeism hinders production substantially by, for
example, diminishing the productivity of other workers and
equipment. If the effect of worker absence on a company's
productivity is relatively modest, economists classify that firm as
operating a so called linear production technology. Firms whose
productivity is more sensitive to absenteeism are said to employ
assembly line technologies. Companies relying on assembly line
production techniques depend to a much greater extent on coordinated
efforts of labor and machinery. Therefore, the absence of a single
employee has a ripple effect throughout the organization.\79\
---------------------------------------------------------------------------
\79\ Id. at 8.
The RFI record suggests that intermittent FMLA leave can have
significant impacts on time-sensitive business models. For example, the
United States Postal Service reported ``[i]n a time-sensitive
environment * * * unscheduled leave presents significant operational
challenges.'' The United Parcel Service, Inc. stated ``employers
typically can arrange coverage for an employee who might require
intermittent leave to take his mother to regularly scheduled * * *
treatments. However, it is a huge burden for management to cover for an
employee who is certified for intermittent leave for chronic * * *
[conditions] and who calls in with no advance notice * * * especially
in time-sensitive/service-related industries.'' \80\
---------------------------------------------------------------------------
\80\ See RFI Report, 72 FR at 35632.
---------------------------------------------------------------------------
In many situations, the absence of just a few employees can have a
significant impact. For example, with respect to unscheduled
intermittent leaves, some employers find they have to over staff on a
continuing basis just to make sure they have sufficient coverage on any
particular day (such as hourly positions in manufacturing, public
transportation, customer service, health care, call centers, and other
establishments that operate on a 24/7 basis). Some employers require
their employees to work overtime to cover the absent employee's work.
Both of these options result in additional costs.\81\
---------------------------------------------------------------------------
\81\ Id.
---------------------------------------------------------------------------
Unfortunately, without an accurate production function for each of
these industries, it is not possible to quantitatively estimate the
impact that the absence of these workers, including unforeseen
absences, will have on the time-sensitive operations. However, to the
extent the proposed rule reduces the cost of uncertainty in staffing,
time-sensitive operations are likely to see larger productivity
benefits than other industries.
Appendix A: Potential Impact of Section 585(a) of H.R. 4986, the
National Defense Authorization Act for FY 2008
Introduction
As discussed in the preamble above, Section 585(a) of H.R. 4986,
the National Defense Authorization Act for FY 2008, amends the FMLA to
provide leave to eligible employees of covered employers to care for
covered servicemembers, or for any qualifying exigency arising out of
the fact that a covered family member is on active duty or has been
notified of an impending call to active duty status in support of a
contingency operation. The provisions of H.R. 4986 providing FMLA leave
to care for a covered servicemember became effective on January 28,
2008, when the law was enacted. The provisions of H.R. 4986 providing
for FMLA leave due to a qualifying exigency arising out of a covered
family member's active duty (or call to active duty) status are not
effective until the Secretary of Labor issues regulations defining
``qualifying exigencies.'' Because a significant number of United
States military are currently on active duty or call to active duty
status, the Department is fully aware of the need to issue regulations
under the military family leave provisions of H.R. 4986 as soon as
possible and is seeking public comment on any issues related to
military family leave that may need to be addressed in final
regulations.
This appendix to the PRIA indentifies the potential number of
covered and eligible workers who may be impacted by the military family
leave provisions of H.R. 4986. Commenters are invited to submit any
data relating to the economic impact of the military family leave
provisions of H.R. 4986. Estimating such impacts is required under
Executive Order 12866.
Impact of Section 585(a) of H.R. 4986 on the Number of FMLA Covered
Employers and Eligible Workers
Section 585(a) of H.R. 4986 has no impact on the number of
establishments covered by the FMLA, or on the number of workers
eligible to take FMLA. Therefore, many of the estimates presented in
the Chapter 1 of the PRIA (e.g., number of covered employers, covered
establishments, workers employed at covered establishments and FMLA
eligible workers) remain the same.
Impact of Section 585(a) of H.R. 4986 on the Number of Workers Who May
Take FMLA Leave
Under the new military family leave provisions of H.R. 4986,
workers who are eligible to take FMLA leave will be permitted to take
protected leave under two new circumstances (i.e., to care for covered
servicemembers, or for any qualifying exigency arising out of the fact
that a covered family member is on active duty or has been notified of
an impending call to active duty status in support of a contingency
operation). Since both of these circumstances are related to family
relationships with servicemembers, the first step in estimating the
number of workers who may take FMLA Leave under the military family
leave provisions of H.R. 4986 was to develop a family profile of
servicemembers.
Using data from the Defense Manpower Data Center, the Current
Population Survey (CPS), and the Decennial Census of Population, CONSAD
developed a model to estimate the number of parents, spouses, and adult
sons and daughters of
[[Page 7955]]
servicemembers.\82\ A summary of the methodology used by CONSAD to
develop its estimates of the number of parents, spouses, and sons and
daughters of servicemembers eligible to take FMLA leave is presented
below.
---------------------------------------------------------------------------
\82\ CONSAD Report, 2007, available at: http://www.wagehour.dol.gov. CONSAD developed estimates for S. 1894 which
did not include coverage of ``next of kin'' or ``nearest blood
relative'' as H.R. 4986 does.
---------------------------------------------------------------------------
CONSAD estimated the number of parents by first computing, for CPS
reference persons in a set of age ranges that are compatible with the
age ranges of servicemembers in general, the numbers and proportions of
married males living with spouses, married females living with spouses,
married males living separately, married females living separately,
separated males, separated females, divorced males, divorced females,
widowed males, widowed females, never married males, and never married
females reported in the CPS for each age range.
Next, CONSAD made adjustments for the expected separate inclusion
of both parents of the same child or children in two different
categories (married living separately, separated, or divorced), for the
expected remarriage of widowed or divorced parents, and for the
expected death of both parents of some children. Then, CONSAD summed
the adjusted estimates within each age range, to produce estimates of
the proportion of people with parents in that age range who can be
expected to have zero, one, or two living parents. For the estimate of
the number of guardians and persons in loco parentis, CONSAD assumed
that all servicemembers age 17 and 18 with no living parents would have
one guardian or a person in loco parentis.
CONSAD estimated the proportion of servicemembers with spouses
using data from the Defense Manpower Data Center.
CONSAD estimated the number of dependent adult children among
servicemembers in different age ranges based upon data from the
CPS.\83\ First, CONSAD estimated the number of dependent children among
servicemembers in different age ranges. Then based on those estimates,
CONSAD estimated the number of children 16 years of age and over with
parents in the age range of the military servicemembers to produce
distributions of the number of children 16 years of age and over among
servicemembers in each age range.
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\83\ The Department's estimates are based upon the dictionary
definition of son and daughter rather than the definition in the
FMLA. As was discussed in the Preamble above, this is an important
distinction, since the FMLA defines ``son or daughter'' to mean a
biological, adopted, or foster child, a stepchild, a legal ward, or
a child of a person standing in loco parentis, who is either under
18 years of age, or 18 years of age or older and incapable of self-
care because of a mental or physical disability. Under the
definition of ``son or daughter'' in FMLA, very few FMLA-eligible
sons or daughters would be able to provide care to a covered
servicemember with a serious injury or illness since, in order to
meet the FMLA eligibility criteria, a son or daughter ages 18 and
over must be incapable of self-care and would presumably be unable
to care for a parent with a serious injury or illness. Further, very
few parents would have FMLA-eligible sons or daughters who are
called to active duty in the armed forces because, to be covered by
the current FMLA definition of ``son or daughter,'' such sons or
daughters must either be (1) under the age of 18 or (2) 18 years or
older and incapable of self-care. (Only about 35,000 of the 1.4
million active duty servicemembers are under 18 years of age).
---------------------------------------------------------------------------
To calculate employment rates for parents and spouses who might
need to take military family leave, CONSAD used the employment rates
for age ranges expected to be associated with the age range of the
military servicemembers.\84\ CONSAD assumed that the employment rate of
adult children who might need to take military family leave was 66
percent.\85\ CONSAD also assumed that 60 percent of employed workers
who might need to take military family leave would be FMLA covered and
eligible.\86\
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\84\ For a more detailed explanation of the methodology see
Appendix A in the CONSAD Report, 2007.
\85\ According to the Bureau of Labor Statistics, the employment
population ratio for civilians 16 years and over was 63% in 2007.
CONSAD adjusted this upwards by 5% (3 percentage points) to 66% to
account for the fact the working children of servicemembers are
significantly younger than the overall workforce and the employment-
population ratio of older workers is significantly lower than that
of the overall workforce (e.g., the employment population ratio of
workers 55 years and over was 37.4 in 2007).
\86\ The estimated 77.1 million FMLA eligible workers under
Title I of the FMLA plus the 2.6 million Federal employees covered
by Title 2 of the FMLA comprise about 60 percent of U.S. civilian
employment.
---------------------------------------------------------------------------
Impact of Leave to Care for Covered Servicemembers With Serious
Injuries or Illnesses
Section 585(a) of H.R. 4986 amends the FMLA to permit an ``an
eligible employee who is the spouse, son, daughter, parent, or next of
kin of a covered servicemember'' to ``a total of 26 workweeks of leave
during a 12-month period to care for the servicemember.'' This
provision will be codified in the FMLA at 29 U.S.C. 2612(a)(3).
According to the President's Commission on Care for America's
Returning Wounded Warriors, 3,082 servicemembers have been seriously
injured since the beginning of hostilities in Iraq, or about 750
seriously injured servicemembers per year.\87\ Assuming that an equal
number of servicemembers have been seriously injured during preparation
or training for combat, the total annual number is about 1,500.\88\
Further, preliminary estimates from the Department of Defense suggest
that the DOD Disability System separates (with benefits) 14,000
servicemembers annually. Consequently, at any one time the Department
estimates that there are 1,500 to 14,000 seriously injured
servicemembers whose potential caregivers may be eligible for FMLA
leave under Section 585(a) of H.R. 4986.
---------------------------------------------------------------------------
\87\ Department of Labor estimate based on 3,082 divided by 4.1
years (the elapsed time for the Commission's estimate).
\88\ This assumption is based on preliminary discussions between
the Departments of Defense and Labor.
---------------------------------------------------------------------------
Based on the assumption that the age distribution of seriously
wounded servicemembers is the same as the age distribution of all
military servicemembers deployed in Iraq or Afghanistan, the Department
used CONSAD's model to compute the numbers of servicemembers with
serious injuries or illnesses who will have no potential caregivers,
and one, two, three, four, or five or more potential caregivers who may
be eligible for FMLA leave.\89\ The results of this analysis are
presented in Table A-1.
---------------------------------------------------------------------------
\89\ Based on the methodology in the CONSAD Report, 2007. It is
possible for a seriously injured servicemember to have more than one
caregiver such as a spouse, parent, and brother or sister.
Table A-1.--The Distribution of Servicemembers With Serious Injuries or Illnesses by Age and the Number of
Potential Caregivers
----------------------------------------------------------------------------------------------------------------
Number of servicemembers with serious injuries or
Number of illnesses with n caregivers, where n =
Age of service-member service- -----------------------------------------------------
members 0 1 2 3 4 5+
----------------------------------------------------------------------------------------------------------------
17-18........................................ 63 0 6 57 1 0 0
[[Page 7956]]
19-20........................................ 298 0 25 259 15 0 0
21-22........................................ 233 0 19 190 25 0 0
23-24........................................ 204 0 14 145 44 0 0
25-26........................................ 165 0 9 99 56 0 0
27-28........................................ 128 0 7 67 53 0 0
29-30........................................ 103 0 5 47 51 0 0
31-32........................................ 64 0 3 25 36 0 0
33-34........................................ 63 0 3 25 35 0 0
35-36........................................ 49 0 2 18 27 1 0
37-39........................................ 53 0 3 17 27 4 1
40-44........................................ 55 0 3 16 24 8 4
45-49........................................ 19 0 1 5 6 4 3
50+.......................................... 7 0 1 2 2 2 2
------------------------------------------------------------------
Total.................................... 1,500 0 98 972 402 18 10
----------------------------------------------------------------------------------------------------------------
Note: Some numbers may not sum due to rounding.
Source: U.S. Department of Labor, based on CONSAD 2007.
Of the 1,500 servicemembers with serious injuries or illnesses, 98
are likely to have one caregiver, 972 are likely to have two
caregivers, 402 are likely to have three caregivers, and 28 are likely
to have four or more caregivers. Based upon Table A-1, the Department
estimates that under the assumption of 1,500 servicemembers with
serious injuries or illnesses each year, 3,370 caregivers would be
available (i.e., 3,370 = 98 + 972 x 2 + 402 x 3 + 18 x 4 + 10 x 5);
however, not all of these caregivers are employed. Utilizing the CONSAD
model described above, the Department estimates that there is about
1,900 potential FMLA covered and eligible caregivers for the 1,500
seriously injured and ill servicemembers under Section 585(a) of H.R.
4986.\90\
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\90\ For a more detailed explanation of the methodology used to
develop this estimate see Appendix A in the CONSAD Report, 2007.
Further, since CONSAD's analysis did not account for the eligibility
of next of kin, the Department also assumed each seriously injured
and ill servicemember would be likely to have at least one FMLA-
eligible caregiver.
---------------------------------------------------------------------------
Alternatively, preliminary estimates from the Department of Defense
suggest that the DOD Disability System separates (with benefits) or
retires 14,000 servicemembers annually. Using CONSAD's model and
assuming each seriously injured and ill servicemember would have at
least one FMLA-eligible caregiver, the Department estimates there would
be about 17,700 potential caregivers for servicemembers who are
separated through the DOD Disability System every year.
Thus, the Department estimates that between 1,900 and 17,700
potential caregivers of servicemembers with serious injuries or
illnesses would be eligible for protected FMLA leave under Section
585(a) of H.R. 4986.
Impact of Leave for Qualifying Exigency
Section 585(a) of H.R. 4986 also adds an additional qualifying
reason to take FMLA leave: ``[b]ecause 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
active duty (or has been notified of an impending call or order to
active duty) in the Armed Forces in support of a contingency
operation.'' This provision will be codified in the FMLA at 29 U.S.C.
2612(a)(1)(E).
Preliminary estimates from the Department of Defense suggest that
there are approximately 339,000 servicemembers currently deployed on or
activated for contingency operations. Based on these numbers, the
Department used the model in the CONSAD Report to develop estimates of
the number of FMLA covered and eligible workers who would take leave
for a qualifying exigency.\91\ Based on the age distribution of active
duty servicemembers, the Department estimated the number of currently
deployed or activated personnel in contingency operations by age and
number of family members potentially eligible for qualifying exigency
leave.\92\ The results of this analysis are presented in Table A-2.
---------------------------------------------------------------------------
\91\ CONSAD Report, 2007, available at: http://www.wagehour.dol.gov.
\92\ Based on the methodology in the CONSAD Report, 2007. It is
possible for a servicemember on active duty or on call to active
duty in support of a contingency operation to have more than one
family member (such as a spouse, parent, and brother or sister)
eligible for leave for a qualified exigency.
Table A-2.--Distribution of Servicemembers Deployed on or Activated for Active Duty in Support of Contingency
Operations by Age and Number of Covered Family Members
----------------------------------------------------------------------------------------------------------------
Thousands of servicemembers with n family members,
Thousands where n =
Age of service-member of service------------------------------------------------------
members 0 1 2 3 4 5+
----------------------------------------------------------------------------------------------------------------
17-18........................................ 9 0 1 8 0 0 0
19-20........................................ 39 0 3 34 2 0 0
21-22........................................ 49 0 4 40 5 0 0
23-24........................................ 43 0 3 31 9 0 0
[[Page 7957]]
25-26........................................ 35 0 2 21 12 0 0
27-28........................................ 27 0 1 14 11 0 0
29-30........................................ 22 0 1 10 11 0 0
31-32........................................ 19 0 1 8 11 0 0
33-34........................................ 19 0 1 7 11 0 0
35-36........................................ 18 0 1 6 10 1 0
37-39........................................ 23 0 1 8 12 2 0
40-44........................................ 25 0 1 7 11 3 2
45-49........................................ 8 0 1 2 3 2 1
50+.......................................... 3 0 0 1 1 1 1
------------------------------------------------------------------
Total.................................... 339 0 21 197 108 8 4
----------------------------------------------------------------------------------------------------------------
Note: Some numbers may not sum due to rounding.
Source: U.S. DOL/Employment Standards Administration estimates based upon the model used in CONSAD 2007, and
Department of Defense data.
Of the 339,000 servicemembers deployed on or activated for
contingency operations, about 21,000 are likely to have one covered
family member, 197,000 are likely to have two covered family members,
108,000 are likely to have three covered family members, and 12,000 are
likely to have four or more covered family members. Based upon Table A-
2, the Department estimates 792,000 adult family members would be
impacted by servicemembers' call to active duty for a contingency
operation (i.e., 792 = 21 + 197 x 2 + 108 x 3 + 8 x 4 + 4 x 5);
however, not all of these family members are employed. Utilizing the
CONSAD model described above, the Department estimates that about
330,000 potential FMLA covered and eligible family members would be
eligible to take leave for any qualifying exigency under Section 585(a)
of H.R. 4986.\93\
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\93\ For a more detailed explanation of the methodology used to
develop this estimate see Appendix A in the CONSAD Report, 2007,
available at: http://www.wagehour.dol.gov.
---------------------------------------------------------------------------
Estimated Impacts
Based upon the preceding analyses, the Department estimates that
the number of employees eligible to take FMLA leave under Section
585(a) of H.R. 4986 range from 332,000 to 348,000 workers. Although
some of these workers may already be taking FMLA leave for other
covered conditions, some may not. If the leave usage among the workers
eligible to take FMLA leave under the new military family leave
provisions of H.R. 4986 and the costs of such leave are similar to
current FMLA leave takers, then one would expect the costs of the FMLA
to potentially increase by as much as 5 percent based upon the
potential increased number of FMLA eligible workers with qualifying
reasons to take FMLA leave.\94\ However, there are other factors that
must be considered.
---------------------------------------------------------------------------
\94\ The Department estimates that 7.0 million workers took FMLA
leave under the current statute in 2005; 332,000 to 348,000
additional workers represents an increase of 4.7 to 5.0 percent.
---------------------------------------------------------------------------
H.R. 4986 does not change the scope of the FMLA in terms
of the establishments covered or the eligibility of workers. Many of
the costs of the FMLA are related to the coverage of the establishment
or the eligibility of workers rather than the number of workers taking
leave. Since the former will not change, assuming a 5 percent cost
increase may be an over-estimate.
The Department estimates that the number of employees
eligible to take FMLA leave under the new military family leave
provisions of H.R. 4986 range from 332,000 to 348,000 workers. However,
just as all workers eligible to take FMLA leave do not take FMLA leave
when they or a qualified family member have a serious health
condition,\95\ similarly, not all employees eligible to take FMLA leave
under the new military family leave provisions of H.R. 4986 will take
such leave. Therefore, assuming a 5 percent cost increase may be an
over-estimate.
---------------------------------------------------------------------------
\95\ For example, only one family member may choose to act as
the caregiver even though other family members are eligible to take
family leave (e.g., two spouses may be eligible to take FMLA leave
for a seriously ill child but only one may choose to do so).
---------------------------------------------------------------------------
The Department requests information and data related to the impacts
of workers taking FMLA leave and how these impacts might apply to
workers taking FMLA under the additional qualifying circumstances
permitted under Section 585(a) of H.R. 4986.
Regulatory Flexibility Act
The Regulatory Flexibility Act requires that agencies prepare
initial regulatory flexibility analyses for proposed rules unless they
are not expected to have a significant economic impact on a substantial
number of small entities. 5 U.S.C. 603, 605(b).
The FMLA applies to public agencies and to private sector employers
that employ 50 or more employees for each working day during 20 or more
calendar weeks in the current or preceding calendar year. 29 U.S.C.
2611(4). In addition, the FMLA excludes employees from eligibility for
FMLA leave if the total number of employees employed by that employer
within 75 miles of that worksite is less than 50. 29 U.S.C.
2611(2)(B)(ii). As explained in the FMLA's legislative history, ``[t]he
act exempts small businesses and limits coverage of private employers
to employers who employ 50 or more employees for each working day
during 20 or more calendar weeks in the current or preceding calendar
year. * * * The employer must, in addition, employ at least 50 people
within a 75-mile radius of the employee's worksite.'' S. Rep. No. 103-
3, at 2 (1993).
The Department has examined the impact of these proposed revisions
on all the firms covered under the FMLA, including those with 50 to 500
employees, and has estimated the net impact of the proposed changes
would reduce the overall costs for all firms, both large and small.
Most small businesses (establishments), 89.4 percent, were excluded
from coverage under the FMLA by Congress. However, 6.3 percent of
establishments with less
[[Page 7958]]
than 50 employees are covered by the Act due to the ``75 mile''
provision in the statute. The Department estimates that 633,000 of the
1.1 million covered establishments, or 55.8 percent, have less than 50
employees. Another 481,000 establishments have 50 to 500 employees.
Clearly, this is a substantial number (although small percentage--
10.6%) of small employers.\96\
---------------------------------------------------------------------------
\96\ The Department of Labor based these estimates on the Westat
2000 establishment survey data.
---------------------------------------------------------------------------
On average the proposed rule is estimated to have a net cost for
these small businesses of $13 in the first year,\97\ and a net
recurring savings of $40 per small business every year after that.\98\
Consequently, the Department has determined that because the proposed
revisions primarily clarify the existing rules and reduce overall costs
to all firms (both large and small), the proposed rule as drafted will
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act and the
Department has certified to this effect to the Chief Counsel for
Advocacy of the SBA. Therefore, an initial regulatory flexibility
analysis is not required for this proposed rule.
---------------------------------------------------------------------------
\97\ This estimate is based on the first year costs of $14.8
million (see Table 6 of the PRIA) and 1.1 million establishments
(see Table 4 of the PRIA).
\98\ This estimate is based on the recurring savings of $45.2
million (see Table 6 of the PRIA) and 1.1 million establishments
(see Table 4 of the PRIA).
---------------------------------------------------------------------------
However, the new military family leave provisions of H.R. 4986 will
result in an increase in the annual number of FMLA leaves taken. If
these additional leaves significantly increase the economic impacts
imposed by the FMLA regulation on a substantial number of small
businesses, then a regulatory flexibility analysis will be required.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq,
requires agencies to prepare a written statement that identifies the:
(1) Authorizing legislation; (2) cost-benefit analysis; (3) macro-
economic effects; (4) summary of State, local, and tribal government
input; and (5) identification of reasonable alternatives and selection,
or explanation of non-selection, of the least costly, most cost-
effective or least burdensome alternative; for proposed rules that
include any Federal mandate that may result in increased expenditures
by State, local, and tribal governments, in the aggregate, or by the
private sector, of $100 million or more inflation adjusted in any one
year, or approximately $135 million in 2007 dollars.
(1) Authorizing Legislation
This rule is issued pursuant to Family and Medical Leave Act of
1993 (FMLA), Public Law 103-3, 107 Stat. 6 (29 U.S.C. 2601 et seq.).
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.
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 Regulatory
Commission. While Title I generally covers employers with 50 or more
employees, public agencies are covered employers without regard to the
number of workers employed.
The FMLA references the definition of employee in the Fair Labor
Standards Act, 29 U.S.C. 203(e) so that most individuals employed by a
State, political subdivision of a State, or interstate governmental
agency meet the definition of employee.
(2) Cost-Benefit Analysis
Based upon Table 2.2 in the CONSAD Report, the Department estimates
that approximately 90,000 State and local governmental entities will be
affected by the proposed rule. Nationwide, these entities employ more
than 19 million workers and their annual payrolls are $591 billion.\99\
---------------------------------------------------------------------------
\99\ Estimates based upon Table 2.2 on page 7 of the 2007 CONSAD
Report available at: http://www.wagehour.dol.gov. Estimates
presented above were developed by summing the CONSAD estimates for
Public Utilities, Public Transit, Public Educational Services and
Public Administration. Note, however that CONSAD did not have an
estimate for the number of establishments in public utilities.
---------------------------------------------------------------------------
The Department's Preliminary Regulatory Impact Analysis (PRIA)
includes estimates of the net costs associated with the proposed rule.
The Department estimates that the proposed revisions will result in a
total first year net costs of about $26.1 million, and a net savings of
about $33.9 million, each year thereafter. Moreover, this does not
include the additional savings expected in the time-sensitive high-
impact operations such as public safety.
On average the proposed rule is estimated to have a net cost per
employer, including State and local governmental entities, of $13 in
the first year,\100\ and a net recurring savings of $40 per such
entities every year after that.\101\ Consequently, the Department
concludes that the primary impact of the proposed revisions will be to
reduce the burden of the FMLA regulations on employers, including State
and local governmental entities.
---------------------------------------------------------------------------
\100\ This estimate is based on the first year costs for all
covered establishments of $14.8 million (see Table 6 of the PRIA)
and 1.1 million establishments (see Table 4 of the PRIA). [Note--
these numbers are all employers, not just State and local government
entities.]
\101\ This estimate is based on the recurring savings for all
covered establishments of $45.2 million (see Table 6 of the PRIA)
and 1.1 million establishments (see Table 4 of the PRIA).
---------------------------------------------------------------------------
The most significant costs associated with the proposed revisions
will be the first year cost of reviewing and implementing the proposed
revisions ($60 million) and the cost of providing employees with
additional and more specific notifications ($139 million). Based upon
their share of covered employment, the share of these first year costs
for State and local governmental entities will be about $50 million,
and the share of the first year costs for the private sector will be
about $149 million.\102\
---------------------------------------------------------------------------
\102\ State and local governmental entities employ about one-
quarter (19 million) of the 77 million workers covered by Title I of
the FMLA. One quarter of $200 million is $50 million.
---------------------------------------------------------------------------
Under the worst case assumption that no offsetting savings will
occur to the State and local entities during the first year, these $50
million first year costs would be equivalent to raising State and local
payrolls by less than one-hundredth percent (0.01 percent) of the $591
billion in total payrolls\103\ for those entities for a single year.
Therefore, we have tentatively concluded that even under the worst case
scenario, this rulemaking does not increase expenditures by State,
local, and tribal governments above the current unfunded mandate
threshold.
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\103\ See Table 2.2 on page 7 of the 2007 CONSAD Report. The
$591 billion estimate was the sum of the payrolls in Public
Utilities, Public Transit, Public Educational Services and Public
Administration.
---------------------------------------------------------------------------
Under the worst case assumption that no offsetting savings will
occur to the private sector during the first year, we estimate that the
first year impacts do exceed the approximately $135 million threshold
under the Act for the private sector. The Department feels that this
scenario is very unlikely, however, and that the net expenditures of
the private sector will be less than the Unfunded Mandates threshold.
The Department specifically requests comment on this conclusion.
Nevertheless, we believe the
[[Page 7959]]
cost-benefit analysis provided pursuant to the requirements under
Executive Order 12866 for this economically significant rulemaking
would meet the requirements for analysis under the Unfunded Mandates
Reform Act.
The above analysis does not include an assessment of the impact of
the new military family leave provisions of H.R. 4986. The Department
anticipates that the new military family leave provisions of H.R. 4986
will increase the annual number of FMLA leaves taken. If these
additional leaves increase the economic impacts imposed by the FMLA
regulation on State and local entities, then the Department will
appropriately revise this analysis for the final rule.
The FMLA does not provide for Federal financial assistance or other
Federal resources to meet the requirements of its intergovernmental
mandates. The Federal mandate imposed by this proposed rule is not
expected to have a measurable effect on health, safety, or the natural
environment.
(3) Macro-Economic Effects
Agencies are expected to estimate the effect of a regulation on the
national economy, such as the effect on productivity, economic growth,
full employment, creation of productive jobs, and international
competitiveness of United States goods and services, if accurate
estimates are reasonably feasible and the effect is relevant and
material. 5 U.S.C. 1532(a)(4). However, OMB guidance on this
requirement notes that such macro-economic effects tend to be
measurable in nationwide econometric models only if the economic impact
of the regulation reaches 0.25 percent to 0.5 percent of gross domestic
product, or in the range of $1.5 billion to $3.0 billion.\104\ A
regulation with smaller aggregate effect is not likely to have a
measurable impact in macro-economic terms unless it is highly focused
on a particular geographic region or economic sector, which is not the
case with this proposed rule.
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\104\ OMB Guidance on Implementing Title II of S.1, March 31,
1995 Memorandum from Sally Kazten to the Heads of Executive
Departments and Agencies, available at http://www.fws.gov/policy/library/rgkatze.pdf.
---------------------------------------------------------------------------
The Department's PRIA estimates that the total aggregate economic
impact of this proposed rule ranges from total first year net costs of
about $26.1 million to total net savings of about $33.9 million, each
year thereafter. Therefore, the Department has determined that a full
macro-economic analysis is not likely to show any measurable impact on
the economy. However, the analysis in the PRIA does not include an
assessment of the impact of the new military family leave provisions of
H.R. 4986. The Department anticipates that the new military family
leave provisions of H.R. 4986 will increase the annual number of FMLA
leaves taken. If these additional leaves substantially increase the
economic impacts imposed by the FMLA regulation, then the Department
will appropriately reassess this conclusion for the final rule.
(4) Summary of State, Local, and Tribal Government Input
On December 1, 2006, the Department published a Request for
Information (RFI) in the Federal Register (71 FR 69504). The RFI asked
the public, including State, local, and tribal governments, to comment
on their experiences with, and observations of, the Department's
administration of the law and the effectiveness of the FMLA
regulations. More than 15,000 comments were received from workers,
family members, employers, academics, and other interested
parties.\105\ This input ranged from personal accounts, legal reviews,
industry and academic studies, and surveys, to recommendations for
regulatory and statutory changes to address particular areas of
concern. The Department published a Report on the comments received in
response to the Department's RFI in June 2007 (see 72 FR 35550).\106\
---------------------------------------------------------------------------
\105\ All comments are available for viewing via the public
docket of the Wage and Hour Division of the Employment Standards
Administration, U.S. Department of Labor, 200 Constitution Avenue,
NW., Washington, DC 20210. Many comments are also available on
http://www.regulations.gov.
\106\ Also available at http://www.dol.gov/esa/whd/fmla2007report.htm.
---------------------------------------------------------------------------
The Department received in response to the RFI a number of comments
from various State and local government entities across the country,
including the City of Philadelphia, the City of Gillette, the City of
Portland , the City of New York, the City of Los Angeles, Ohio
Department of Administrative Services, the Ohio Public Employer Labor
Relations Association, the Commonwealth of Pennsylvania, the Indiana
State Personnel Department, Spokane County, the University of
Wisconsin-Milwaukee, Fairfax County Public Schools, the University of
Minnesota, Washington Metropolitan Area Transit Authority, Metro
Regional Transit Authority (Akron, Ohio), the Port Authority of
Allegheny County (PA), the Transit Authority (Huntington, WV), and the
Milwaukee Transport Services. Many of these entities provided input,
for instance, on applying uniform call-in procedures and seeking
medical re-certifications and return to work certifications. The
comments by State and local government entities were considered by the
Department in developing this proposed rule and are addressed above
under the sections of the rule on which they commented (see, e.g.,
preamble discussion of Sec. Sec. 825.302, 825.303, 825.308, and
825.310).
(5) Least Burdensome Option or Explanation Required
The Department's consideration of various options is described in
the preceding section in the preamble. The Department believes that it
has chosen the least burdensome option that updates, clarifies, and
simplifies the rule.
Executive Order 13132 (Federalism)
The proposed rule does not have federalism implications as outlined
in Executive Order 13132 regarding federalism. The proposed rule does
not have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
Executive Order 13175, Indian Tribal Governments
This proposed rule was reviewed under the terms of Executive Order
13175 and determined not to have ``tribal implications.'' The proposed
rule does not have ``substantial direct effects on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes.'' As a result, no tribal
summary impact statement has been prepared.
Effects on Families
The undersigned hereby certify that this proposed rule will not
adversely affect the well-being of families, as discussed under section
654 of the Treasury and General Government Appropriations Act, 1999.
Executive Order 13045, Protection of Children
Executive Order 13045, dated April 23, 1997 (62 FR 19885), applies
to any rule that (1) is determined to be ``economically significant''
as defined in Executive Order 12866, and (2) concerns an environmental
health or safety risk that the promulgating agency has reason to
believe may have a disproportionate effect on children. This proposal
is not
[[Page 7960]]
subject to Executive Order 13045 because, although this proposed rule
addresses family and medical leave provisions of the FMLA including the
rights of employees to take leave for the birth or adoption of a child
and to care for a healthy newborn or adopted child, and to take leave
to care for a son or daughter with a serious health condition, it has
no environmental health or safety risks that may disproportionately
affect children.
Environmental Impact Assessment
A review of this proposal in accordance with the requirements of
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et
seq.; the regulations of the Council on Environmental Quality, 40 CFR
1500 et seq.; and the Departmental NEPA procedures, 29 CFR part 11,
indicates that the proposed rule will not have a significant impact on
the quality of the human environment. There is, thus, no corresponding
environmental assessment or an environmental impact statement.
Executive Order 13211, Energy Supply
This proposed rule is not subject to Executive Order 13211. It will
not have a significant adverse effect on the supply, distribution, or
use of energy.
Executive Order 12630, Constitutionally Protected Property Rights
This proposal is not subject to Executive Order 12630, because it
does not involve implementation of a policy ``that has takings
implications'' or that could impose limitations on private property
use.
Executive Order 12988, Civil Justice Reform Analysis
This proposed rule was drafted and reviewed in accordance with
Executive Order 12988 and will not unduly burden the Federal court
system. The proposed rule was: (1) Reviewed to eliminate drafting
errors and ambiguities; (2) written to minimize litigation; and (3)
written to provide a clear legal standard for affected conduct and to
promote burden reduction.
List of Subjects in 29 CFR Part 825
Employee benefit plans, Health, Health insurance, Labor management
relations, Maternal and child health, Teachers.
Signed at Washington, DC, this 31st day of January 2008.
Victoria A. Lipnic,
Assistant Secretary, Employment Standards Administration.
Alexander J. Passantino,
Acting Administrator, Wage and Hour Division.
For the reasons set out in the preamble, the DOL proposes to revise
Title 29 part 825 of the Code of Federal Regulations as follows:
PART 825--THE FAMILY AND MEDICAL LEAVE ACT OF 1993
Subpart A--Coverage Under the Family and Medical Leave Act
Sec.
825.100 The Family and Medical Leave Act.
825.101 Purpose of the Act.
825.102 [Reserved]
825.103 [Reserved]
825.104 Covered employer.
825.105 Counting employees for determining coverage.
825.106 Joint employer coverage.
825.107 Successor in interest coverage.
825.108 Public agency coverage.
825.109 Federal agency coverage.
825.110 Eligible employee.
825.111 Determining whether 50 employees are employed within 75
miles.
825.112 Qualifying reasons for leave, general rule.
825.113 Serious health condition.
825.114 Inpatient care.
825.115 Continuing treatment.
825.116 [Reserved]
825.117 [Reserved]
825.118 [Reserved]
825.119 Leave for treatment of substance abuse.
825.120 Leave for pregnancy or birth.
825.121 Leave for adoption or foster care.
825.122 Definitions of spouse, parent, son or daughter, adoption,
and foster care.
825.123 Unable to perform the functions of the position.
825.124 Needed to care for a family member.
825.125 Definition of health care provider.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
825.200 Amount of leave.
825.201 Leave to care for a parent.
825.202 Intermittent leave or reduced leave schedule.
825.203 Scheduling of intermittent or reduced schedule leave.
825.204 Transfer of an employee to an alternative position during
intermittent leave or reduced schedule leave.
825.205 Increments of leave for intermittent or reduced schedule
leave.
825.206 Interaction with the FLSA.
825.207 Substitution of paid leave.
825.208 [Reserved]
825.209 Maintenance of employee benefits.
825.210 Employee payment of group health benefit premiums.
825.211 Maintenance of benefits under multi-employer health plans.
825.212 Employee failure to pay health plan premium payments.
825.213 Employer recovery of benefit costs.
825.214 Employee right to reinstatement.
825.215 Equivalent position.
825.216 Limitations on an employee's right to reinstatement.
825.217 Key employee, general rule.
825.218 Substantial and grievous economic injury.
825.219 Rights of a key employee.
825.220 Protection for employees who request leave or otherwise
assert FMLA rights.
Subpart C--Employee and Employer Rights and Obligations Under the Act
825.300 Employer notice requirements.
825.301 Employer designation of FMLA leave.
825.302 Employee notice requirements for foreseeable FMLA leave.
825.303 Employee notice requirements for unforeseeable FMLA leave.
825.304 Employee failure to provide notice.
825.305 Medical certification, general rule.
825.306 Content of medical certification.
825.307 Authentication and clarification of medical certification.
825.308 Recertifications.
825.309 Intent to return to work.
825.310 Fitness-for-duty certification.
825.311 Failure to provide medical certification.
Subpart D--Enforcement Mechanisms
825.400 Enforcement, general rules.
825.401 Filing a complaint with the Federal Government.
825.402 Violations of the posting requirement.
825.403 Appealing the assessment of a penalty for willful violation
of the posting requirement.
825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
Subpart E--Recordkeeping Requirements
825.500 Recordkeeping requirements.
Subpart F--Special Rules Applicable to Employees of Schools
825.600 Special rules for school employees, definitions.
825.601 Special rules for school employees, limitations on
intermittent leave.
825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
825.603 Special rules for school employees, duration of FMLA leave.
825.604 Special rules for school employees, restoration to ``an
equivalent position.''
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
825.700 Interaction with employer's policies.
825.701 Interaction with State laws.
825.702 Interaction with Federal and State anti-discrimination laws.
Subpart H--Definitions
825.800 Definitions.
[[Page 7961]]
Appendix A to Part 825--Index [Reserved]
Appendix B to Part 825--Certification of Health Care Provider (Form
WH-380)
Appendix C to Part 825--Notice to Employees of Rights Under FMLA (WH
Publication 1420)
Appendix D to Part 825--Eligibility Notice to Employees Under FMLA
(Form WH-381)
Appendix E to Part 825--Designation Notice Under FMLA (Form WH-382)
Authority: 29 U.S.C. 2654.
Subpart A--Coverage Under the Family and Medical Leave Act
Sec. 825.100 The Family and Medical Leave Act.
(a) The Family and Medical Leave Act of 1993 (FMLA or Act) allows
``eligible'' employees of a covered employer to take job-protected,
unpaid leave, or to substitute appropriate paid leave if the employee
has earned or accrued it, for up to a total of 12 workweeks in any 12
months because of the birth of a child and to care for the newborn
child, because of the placement of a child with the employee for
adoption or foster care, because the employee is needed to care for a
family member (child, spouse, or parent) with a serious health
condition, or because the employee's own serious health condition makes
the employee unable to perform the functions of his or her job (see
Sec. 825.306(b)(4)). In certain cases, this leave may be taken on an
intermittent basis rather than all at once, or the employee may work a
part-time schedule.
(b) An employee on FMLA leave is also entitled to have health
benefits maintained while on leave as if the employee had continued to
work instead of taking the leave. If an employee was paying all or part
of the premium payments prior to leave, the employee would continue to
pay his or her share during the leave period. The employer may recover
its share only if the employee does not return to work for a reason
other than the serious health condition of the employee or the
employee's covered family member, or another reason beyond the
employee's control.
(c) An employee generally has a right to return to the same
position or an equivalent position with equivalent pay, benefits, and
working conditions at the conclusion of the leave. The taking of FMLA
leave cannot result in the loss of any benefit that accrued prior to
the start of the leave.
(d) The employer has a right to 30 days advance notice from the
employee where practicable. In addition, the employer may require an
employee to submit certification from a health care provider to
substantiate that the leave is due to the serious health condition of
the employee or the employee's covered family member. Failure to comply
with these requirements may result in a delay in the start of FMLA
leave. Pursuant to a uniformly applied policy, the employer may also
require that an employee present a certification of fitness to return
to work when the absence was caused by the employee's serious health
condition (see Sec. Sec. 825.310 and 825.311(d)). The employer may
delay restoring the employee to employment without such certificate
relating to the health condition which caused the employee's absence.
Sec. 825.101 Purpose of the Act.
(a) FMLA is intended to allow employees to balance their work and
family life by taking reasonable unpaid leave for medical reasons, for
the birth or adoption of a child, and for the care of a child, spouse,
or parent who has a serious health condition. The Act is intended to
balance the demands of the workplace with the needs of families, to
promote the stability and economic security of families, and to promote
national interests in preserving family integrity. It was intended that
the Act accomplish these purposes in a manner that accommodates the
legitimate interests of employers, and in a manner consistent with the
Equal Protection Clause of the 14th amendment in minimizing the
potential for employment discrimination on the basis of sex, while
promoting equal employment opportunity for men and women.
(b) The enactment of FMLA was predicated on two fundamental
concerns--the needs of the American workforce, and the development of
high-performance organizations. Increasingly, America's children and
elderly are dependent upon family members who must spend long hours at
work. When a family emergency arises, requiring workers to attend to
seriously-ill children or parents, or to newly-born or adopted infants,
or even to their own serious illness, workers need reassurance that
they will not be asked to choose between continuing their employment,
and meeting their personal and family obligations or tending to vital
needs at home.
(c) The FMLA is both intended and expected to benefit employers as
well as their employees. A direct correlation exists between stability
in the family and productivity in the workplace. FMLA will encourage
the development of high-performance organizations. When workers can
count on durable links to their workplace they are able to make their
own full commitments to their jobs. The record of hearings on family
and medical leave indicate the powerful productive advantages of stable
workplace relationships, and the comparatively small costs of
guaranteeing that those relationships will not be dissolved while
workers attend to pressing family health obligations or their own
serious illness.
Sec. 825.102 [Reserved]
Sec. 825.103 [Reserved]
Sec. 825.104 Covered employer.
(a) An employer covered by FMLA is any person engaged in commerce
or in any industry or activity affecting commerce, who employs 50 or
more employees for each working day during each of 20 or more calendar
workweeks in the current or preceding calendar year. Employers covered
by FMLA also include any person acting, directly or indirectly, in the
interest of a covered employer to any of the employees of the employer,
any successor in interest of a covered employer, and any public agency.
Public agencies are covered employers without regard to the number of
employees employed. Public as well as private elementary and secondary
schools are also covered employers without regard to the number of
employees employed. (See Sec. 825.600.)
(b) The terms ``commerce'' and ``industry affecting commerce'' are
defined in accordance with section 501(1) and (3) of the Labor
Management Relations Act of 1947 (LMRA) (29 U.S.C. 142(1) and (3)), as
set forth in the definitions at Sec. 825.800 of this part. For
purposes of the FMLA, employers who meet the 50-employee coverage test
are deemed to be engaged in commerce or in an industry or activity
affecting commerce.
(c) Normally the legal entity which employs the employee is the
employer under FMLA. Applying this principle, a corporation is a single
employer rather than its separate establishments or divisions.
(1) Where one corporation has an ownership interest in another
corporation, it is a separate employer unless it meets the ``joint
employment'' test discussed in Sec. 825.106, or the ``integrated
employer'' test contained in paragraph (c)(2) of this section.
(2) Separate entities will be deemed to be parts of a single
employer for purposes of FMLA if they meet the ``integrated employer''
test. Where this test is met, the employees of all entities making up
the integrated employer will be counted in determining employer
coverage and employee eligibility. A determination of whether or not
separate entities are an integrated
[[Page 7962]]
employer is not determined by the application of any single criterion,
but rather the entire relationship is to be reviewed in its totality.
Factors considered in determining whether two or more entities are an
integrated employer include:
(i) Common management;
(ii) Interrelation between operations;
(iii) Centralized control of labor relations; and
(iv) Degree of common ownership/financial control.
(d) An ``employer'' includes any person who acts directly or
indirectly in the interest of an employer to any of the employer's
employees. The definition of ``employer'' in section 3(d) of the Fair
Labor Standards Act (FLSA), 29 U.S.C. 203(d), similarly includes any
person acting directly or indirectly in the interest of an employer in
relation to an employee. As under the FLSA, individuals such as
corporate officers ``acting in the interest of an employer'' are
individually liable for any violations of the requirements of FMLA.
Sec. 825.105 Counting employees for determining coverage.
(a) The definition of ``employ'' for purposes of FMLA is taken from
the Fair Labor Standards Act, Sec. 3(g). The courts have made it clear
that the employment relationship under the FLSA is broader than the
traditional common law concept of master and servant. The difference
between the employment relationship under the FLSA and that under the
common law arises from the fact that the term ``employ'' as defined in
the Act includes ``to suffer or permit to work.'' The courts have
indicated that, while ``to permit'' requires a more positive action
than ``to suffer,'' both terms imply much less positive action than
required by the common law. Mere knowledge by an employer of work done
for the employer by another is sufficient to create the employment
relationship under the Act. The courts have said that there is no
definition that solves all problems as to the limitations of the
employer/employee relationship under the Act; and that determination of
the relation cannot be based on ``isolated factors'' or upon a single
characteristic or ``technical concepts,'' but depends ``upon the
circumstances of the whole activity'' including the underlying
``economic reality.'' In general an employee, as distinguished from an
independent contractor who is engaged in a business of his/her own, is
one who ``follows the usual path of an employee'' and is dependent on
the business which he/she serves.
(b) Any employee whose name appears on the employer's payroll will
be considered employed each working day of the calendar week, and must
be counted whether or not any compensation is received for the week.
However, the FMLA applies only to employees who are employed within any
State of the United States, the District of Columbia or any Territory
or possession of the United States. Employees who are employed outside
these areas are not counted for purposes of determining employer
coverage or employee eligibility.
(c) Employees on paid or unpaid leave, including FMLA leave, leaves
of absence, disciplinary suspension, etc., are counted as long as the
employer has a reasonable expectation that the employee will later
return to active employment. If there is no employer/employee
relationship (as when an employee is laid off, whether temporarily or
permanently) such individual is not counted. Part-time employees, like
full-time employees, are considered to be employed each working day of
the calendar week, as long as they are maintained on the payroll.
(d) An employee who does not begin to work for an employer until
after the first working day of a calendar week, or who terminates
employment before the last working day of a calendar week, is not
considered employed on each working day of that calendar week.
(e) A private employer is covered if it maintained 50 or more
employees on the payroll during 20 or more calendar workweeks (not
necessarily consecutive workweeks) in either the current or the
preceding calendar year.
(f) Once a private employer meets the 50 employees/20 workweeks
threshold, the employer remains covered until it reaches a future point
where it no longer has employed 50 employees for 20 (nonconsecutive)
workweeks in the current and preceding calendar year. For example, if
an employer who met the 50 employees/20 workweeks test in the calendar
year as of September 1, 2007, subsequently dropped below 50 employees
before the end of 2007 and continued to employ fewer than 50 employees
in all workweeks throughout calendar year 2008, the employer would
continue to be covered throughout calendar year 2008 because it met the
coverage criteria for 20 workweeks of the preceding (i.e., 2007)
calendar year.
Sec. 825.106 Joint employer coverage.
(a) Where two or more businesses exercise some control over the
work or working conditions of the employee, the businesses may be joint
employers under FMLA. Joint employers may be separate and distinct
entities with separate owners, managers and facilities. Where the
employee performs work which simultaneously benefits two or more
employers, or works for two or more employers at different times during
the workweek, a joint employment relationship generally will be
considered to exist in situations such as:
(1) Where there is an arrangement between employers to share an
employee's services or to interchange employees;
(2) Where one employer acts directly or indirectly in the interest
of the other employer in relation to the employee; or,
(3) Where the employers are not completely disassociated with
respect to the employee's employment and may be deemed to share control
of the employee, directly or indirectly, because one employer controls,
is controlled by, or is under common control with the other employer.
(b)(1) A determination of whether or not a joint employment
relationship exists is not determined by the application of any single
criterion, but rather the entire relationship is to be viewed in its
totality. For example, joint employment will ordinarily be found to
exist when a temporary or leasing agency supplies employees to a second
employer.
(2) A type of company that is often called a ``Professional
Employment Organization'' (PEO) or ``HR Outsourcing Vendor'' contracts
with client employers merely to perform administrative functions--
including payroll, benefits, regulatory paperwork, and updating
employment policies. A PEO does not enter into a joint employment
relationship with the employees of its client companies provided it
merely performs these administrative functions. On the other hand, if
in a particular fact situation, a PEO has the right to hire, fire,
assign, or direct and control the client's employees, or benefits from
the work that the employees perform, such a PEO would be a joint
employer with the client employer.
(c) In joint employment relationships, only the primary employer is
responsible for giving required notices to its employees, providing
FMLA leave, and maintenance of health benefits. Factors considered in
determining which is the ``primary'' employer include authority/
responsibility to hire and fire, assign/place the employee, make
payroll, and provide employment benefits. For employees of temporary
help or leasing agencies, for example, the placement agency most
commonly would be the primary employer.
[[Page 7963]]
(d) Employees jointly employed by two employers must be counted by
both employers, whether or not maintained on one of the employer's
payroll, in determining employer coverage and employee eligibility. For
example, an employer who jointly employs 15 workers from a leasing or
temporary help agency and 40 permanent workers is covered by FMLA. (A
special rule applies to employees jointly employed who physically work
at a facility of the secondary employer for a period of at least one
year. See Sec. 825.111(a)(3).) An employee on leave who is working for
a secondary employer is considered employed by the secondary employer,
and must be counted for coverage and eligibility purposes, as long as
the employer has a reasonable expectation that that employee will
return to employment with that employer.
(e) Job restoration is the primary responsibility of the primary
employer. The secondary employer is responsible for accepting the
employee returning from FMLA leave in place of the replacement employee
if the secondary employer continues to utilize an employee from the
temporary or leasing agency, and the agency chooses to place the
employee with the secondary employer. A secondary employer is also
responsible for compliance with the prohibited acts provisions with
respect to its temporary/leased employees, whether or not the secondary
employer is covered by FMLA (see Sec. 825.220(a)). The prohibited acts
include prohibitions against interfering with an employee's attempt to
exercise rights under the Act, or discharging or discriminating against
an employee for opposing a practice which is unlawful under FMLA. A
covered secondary employer will be responsible for compliance with all
the provisions of the FMLA with respect to its regular, permanent
workforce.
Sec. 825.107 Successor in interest coverage.
(a) For purposes of FMLA, in determining whether an employer is
covered because it is a ``successor in interest'' to a covered
employer, the factors used under Title VII of the Civil Rights Act and
the Vietnam Era Veterans' Adjustment Act will be considered. However,
unlike Title VII, whether the successor has notice of the employee's
claim is not a consideration. Notice may be relevant, however, in
determining successor liability for violations of the predecessor. The
factors to be considered include:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of the workforce;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products or services; and
(8) The ability of the predecessor to provide relief.
(b) A determination of whether or not a ``successor in interest''
exists is not determined by the application of any single criterion,
but rather the entire circumstances are to be viewed in their totality.
(c) When an employer is a ``successor in interest,'' employees'
entitlements are the same as if the employment by the predecessor and
successor were continuous employment by a single employer. For example,
the successor, whether or not it meets FMLA coverage criteria, must
grant leave for eligible employees who had provided appropriate notice
to the predecessor, or continue leave begun while employed by the
predecessor, including maintenance of group health benefits during the
leave and job restoration at the conclusion of the leave. A successor
which meets FMLA's coverage criteria must count periods of employment
and hours worked for the predecessor for purposes of determining
employee eligibility for FMLA leave.
Sec. 825.108 Public agency coverage.
(a) An ``employer'' under FMLA includes any ``public agency,'' as
defined in section 3(x) of the Fair Labor Standards Act, 29 U.S.C.
203(x). Section 3(x) of the FLSA defines ``public agency'' as the
government of the United States; the government of a State or political
subdivision of a State; or an agency of the United States, a State, or
a political subdivision of a State, or any interstate governmental
agency. ``State'' is further defined in Section 3(c) of the FLSA to
include any State of the United States, the District of Columbia, or
any Territory or possession of the United States.
(b) The determination of whether an entity is a ``public'' agency,
as distinguished from a private employer, is determined by whether the
agency has taxing authority, or whether the chief administrative
officer or board, etc., is elected by the voters-at-large or their
appointment is subject to approval by an elected official.
(c)(1) A State or a political subdivision of a State constitutes a
single public agency and, therefore, a single employer for purposes of
determining employee eligibility. For example, a State is a single
employer; a county is a single employer; a city or town is a single
employer. Where there is any question about whether a public entity is
a public agency, as distinguished from a part of another public agency,
the U.S. Bureau of the Census' ``Census of Governments'' will be
determinative, except for new entities formed since the most recent
publication of the ``Census.'' For new entities, the criteria used by
the Bureau of the Census will be used to determine whether an entity is
a public agency or a part of another agency, including existence as an
organized entity, governmental character, and substantial autonomy of
the entity.
(2) The Census Bureau takes a census of governments at 5-year
intervals. Volume I, Government Organization, contains the official
counts of the number of State and local governments. It includes
tabulations of governments by State, type of government, size, and
county location. Also produced is a universe list of governmental
units, classified according to type of government. Copies of Volume I,
Government Organization, and subsequent volumes are available from the
Superintendent of Documents, U.S. Government Printing Office,
Washington, DC 20402, U.S. Department of Commerce District Offices, or
can be found in Regional and selective depository libraries. For a list
of all depository libraries, write to the Government Printing Office,
710 N. Capitol St., NW., Washington, DC 20402.
(d) All public agencies are covered by the FMLA regardless of the
number of employees; they are not subject to the coverage threshold of
50 employees carried on the payroll each day for 20 or more weeks in a
year. However, employees of public agencies must meet all of the
requirements of eligibility, including the requirement that the
employer (e.g., State) employ 50 employees at the worksite or within 75
miles.
Sec. 825.109 Federal agency coverage.
(a) Most employees of the government of the United States, if they
are covered by the FMLA, are covered under Title II of the FMLA
(incorporated in Title V, Chapter 63, Subchapter 5 of the United States
Code) which is administered by the U.S. Office of Personnel Management
(OPM). OPM has separate regulations at 5 CFR Part 630, Subpart L.
Employees of the Government Printing Office are covered by Title II.
While employees of the Government Accountability Office and the Library
of Congress are covered by Title I of the FMLA, the Comptroller General
of the
[[Page 7964]]
United States and the Librarian of Congress, respectively, have
responsibility for the administration of the FMLA with respect to these
employees. Other legislative branch employees, such as employees of the
Senate and House of Representatives, are covered by the Congressional
Accountability Act of 1995, 2 U.S.C. 1301.
(b) The Federal Executive Branch employees within the jurisdiction
of these regulations include:
(1) Employees of the Postal Service;
(2) Employees of the Postal Regulatory Commission;
(3) A part-time employee who does not have an established regular
tour of duty during the administrative workweek; and,
(4) An employee serving under an intermittent appointment or
temporary appointment with a time limitation of one year or less.
(c) Employees of other Federal executive agencies are also covered
by these regulations if they are not covered by Title II of FMLA.
(d) Employees of the judicial branch of the United States are
covered by these regulations only if they are employed in a unit which
has employees in the competitive service. For example, employees of the
U.S. Tax Court are covered by these regulations.
(e) For employees covered by these regulations, the U.S. Government
constitutes a single employer for purposes of determining employee
eligibility. These employees must meet all of the requirements for
eligibility, including the requirement that the Federal Government
employ 50 employees at the worksite or within 75 miles.
Sec. 825.110 Eligible employee.
(a) An ``eligible employee'' is an employee of a covered employer
who:
(1) Has been employed by the employer for at least 12 months, and
(2) Has been employed for at least 1,250 hours of service during
the 12-month period immediately preceding the commencement of the
leave, and
(3) Is employed at a worksite where 50 or more employees are
employed by the employer within 75 miles of that worksite. (See Sec.
825.105(b) regarding employees who work outside the U.S.)
(b) The 12 months an employee must have been employed by the
employer need not be consecutive months, provided
(1) Subject to the exceptions provided in paragraph (b)(2) of this
section, employment periods prior to a break in service of five years
or more need not be counted in determining whether the employee has
been employed by the employer for at least 12 months.
(2) Employment periods preceding a break in service of more than
five years must be counted in determining whether the employee has been
employed by the employer for at least 12 months where:
(i) The employee's break in service is occasioned by the
fulfillment of his or her National Guard or Reserve military service
obligation. The time served performing the military service must be
also counted in determining whether the employee has been employed for
at least 12 months by the employer. However, this section does not
provide any greater entitlement to the employee than would be available
under the Uniformed Services Employment and Reemployment Rights Act
(USERRA); or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes).
(3) If an employee is maintained on the payroll for any part of a
week, including any periods of paid or unpaid leave (sick, vacation)
during which other benefits or compensation are provided by the
employer (e.g., workers' compensation, group health plan benefits,
etc.), the week counts as a week of employment. For purposes of
determining whether intermittent/occasional/casual employment qualifies
as ``at least 12 months,'' 52 weeks is deemed to be equal to 12 months.
(4) Nothing in this section prevents employers from considering
employment prior to a continuous break in service of more than five
years when determining whether an employee has met the 12-month
employment requirement. However, if an employer chooses to recognize
such prior employment, the employer must do so uniformly, with respect
to all employees with similar breaks in service.
(c)(1) Except as provided in paragraph (c)(2) of this section,
whether an employee has worked the minimum 1,250 hours of service is
determined according to the principles established under the Fair Labor
Standards Act (FLSA) for determining compensable hours of work. (See 29
CFR part 785.) The determining factor is the number of hours an
employee has worked for the employer within the meaning of the FLSA.
The determination is not limited by methods of recordkeeping, or by
compensation agreements that do not accurately reflect all of the hours
an employee has worked for or been in service to the employer. Any
accurate accounting of actual hours worked under FLSA's principles may
be used.
(2) An employee returning from fulfilling his or her National Guard
or Reserve military obligation shall be credited with the hours-of-
service that would have been performed but for the period of military
service in determining whether the employee worked the 1,250 hours of
service. Accordingly, a person reemployed following military service
has the hours that would have been worked for the employer added to any
hours actually worked during the previous 12-month period to meet the
1,250 hour requirement. In order to determine the hours that would have
been worked during the period of military service, the employee's pre-
service work schedule can generally be used for calculations.
(3) In the event an employer does not maintain an accurate record
of hours worked by an employee, including for employees who are exempt
from FLSA's requirement that a record be kept of their hours worked
(e.g., bona fide executive, administrative, and professional employees
as defined in FLSA Regulations, 29 CFR part 541), the employer has the
burden of showing that the employee has not worked the requisite hours.
An employer must be able to clearly demonstrate, for example, that
full-time teachers (see Sec. 825.800 for definition) of an elementary
or secondary school system, or institution of higher education, or
other educational establishment or institution (who often work outside
the classroom or at their homes) did not work 1,250 hours during the
previous 12 months in order to claim that the teachers are not eligible
for FMLA leave.
(d) The determination of whether an employee has worked for the
employer for at least 1,250 hours in the past 12 months and has been
employed by the employer for a total of at least 12 months must be made
as of the date the FMLA leave is to start. An employee may be on ``non-
FMLA leave'' at the time he/she meets the eligibility requirements, and
in that event, any portion of the leave taken for an FMLA-qualifying
reason after the employee meets the eligibility requirement would be
``FMLA leave.'' (See Sec. 825.300(b) for rules governing the content
of the eligibility notice given to employees.)
(e) Whether 50 employees are employed within 75 miles to ascertain
an employee's eligibility for FMLA benefits is determined when the
employee gives notice of the need for leave. Whether the leave is to be
taken at one time or on an intermittent or reduced leave schedule
basis, once an employee is determined eligible in
[[Page 7965]]
response to that notice of the need for leave, the employee's
eligibility is not affected by any subsequent change in the number of
employees employed at or within 75 miles of the employee's worksite,
for that specific notice of the need for leave. Similarly, an employer
may not terminate employee leave that has already started if the
employee-count drops below 50. For example, if an employer employs 60
employees in August, but expects that the number of employees will drop
to 40 in December, the employer must grant FMLA benefits to an
otherwise eligible employee who gives notice of the need for leave in
August for a period of leave to begin in December.
Sec. 825.111 Determining whether 50 employees are employed within 75
miles.
(a) Generally, a worksite can refer to either a single location or
a group of contiguous locations. Structures which form a campus or
industrial park, or separate facilities in proximity with one another,
may be considered a single site of employment. On the other hand, there
may be several single sites of employment within a single building,
such as an office building, if separate employers conduct activities
within the building. For example, an office building with 50 different
businesses as tenants will contain 50 sites of employment. The offices
of each employer will be considered separate sites of employment for
purposes of FMLA. An employee's worksite under FMLA will ordinarily be
the site the employee reports to or, if none, from which the employee's
work is assigned.
(1) Separate buildings or areas which are not directly connected or
in immediate proximity are a single worksite if they are in reasonable
geographic proximity, are used for the same purpose, and share the same
staff and equipment. For example, if an employer manages a number of
warehouses in a metropolitan area but regularly shifts or rotates the
same employees from one building to another, the multiple warehouses
would be a single worksite.
(2) For employees with no fixed worksite, e.g., construction
workers, transportation workers (e.g., truck drivers, seamen, pilots),
salespersons, etc., the ``worksite'' is the site to which they are
assigned as their home base, from which their work is assigned, or to
which they report. For example, if a construction company headquartered
in New Jersey opened a construction site in Ohio, and set up a mobile
trailer on the construction site as the company's on-site office, the
construction site in Ohio would be the worksite for any employees hired
locally who report to the mobile trailer/company office daily for work
assignments, etc. If that construction company also sent personnel such
as job superintendents, foremen, engineers, an office manager, etc.,
from New Jersey to the job site in Ohio, those workers sent from New
Jersey continue to have the headquarters in New Jersey as their
``worksite.'' The workers who have New Jersey as their worksite would
not be counted in determining eligibility of employees whose home base
is the Ohio worksite, but would be counted in determining eligibility
of employees whose home base is New Jersey. For transportation
employees, their worksite is the terminal to which they are assigned,
report for work, depart, and return after completion of a work
assignment. For example, an airline pilot may work for an airline with
headquarters in New York, but the pilot regularly reports for duty and
originates or begins flights from the company's facilities located in
an airport in Chicago and returns to Chicago at the completion of one
or more flights to go off duty. The pilot's worksite is the facility in
Chicago. An employee's personal residence is not a worksite in the case
of employees such as salespersons who travel a sales territory and who
generally leave to work and return from work to their personal
residence, or employees who work at home, as under the concept of
flexiplace or telecommuting. Rather, their worksite is the office to
which they report and from which assignments are made.
(3) For purposes of determining that employee's eligibility, when
an employee is jointly employed by two or more employers (see Sec.
825.106), the employee's worksite is the primary employer's office from
which the employee is assigned or reports, unless the employee has
physically worked for at least one year at a facility of a secondary
employer, in which case the employee's worksite is that location. The
employee is also counted by the secondary employer to determine
eligibility for the secondary employer's full-time or permanent
employees.
(b) The 75-mile distance is measured by surface miles, using
surface transportation over public streets, roads, highways and
waterways, by the shortest route from the facility where the eligible
employee needing leave is employed. Absent available surface
transportation between worksites, the distance is measured by using the
most frequently utilized mode of transportation (e.g., airline miles).
(c) The determination of how many employees are employed within 75
miles of the worksite of an employee is based on the number of
employees maintained on the payroll. Employees of educational
institutions who are employed permanently or who are under contract are
``maintained on the payroll'' during any portion of the year when
school is not in session. See Sec. 825.105(c).
Sec. 825.112 Qualifying reasons for leave, general rule.
(a) Circumstances qualifying for leave. Employers covered by FMLA
are required to grant leave to eligible employees:
(1) For birth of a son or daughter, and to care for the newborn
child (see Sec. 825.120);
(2) For placement with the employee of a son or daughter for
adoption or foster care (see Sec. 825.121);
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition (see Sec. Sec. 825.113 and 825.122);
and
(4) Because of a serious health condition that makes the employee
unable to perform the functions of the employee's job (see Sec. Sec.
825.113 and 825.123).
(b) Equal application. The right to take leave under FMLA applies
equally to male and female employees. A father, as well as a mother,
can take family leave for the birth, placement for adoption or foster
care of a child.
(c) Active employee. In situations where the employer/employee
relationship has been interrupted, such as an employee who has been on
layoff, the employee must be recalled or otherwise be re-employed
before being eligible for FMLA leave. Under such circumstances, an
eligible employee is immediately entitled to further FMLA leave for a
qualifying reason.
Sec. 825.113 Serious health condition.
(a) For purposes of FMLA, ``serious health condition'' entitling an
employee to FMLA leave means an illness, injury, impairment or physical
or mental condition that involves inpatient care as defined in Sec.
825.114 or continuing treatment by a health care provider as defined in
Sec. 825.115.
(b) The term ``incapacity'' means inability to work, attend school
or perform other regular daily activities due to the serious health
condition, treatment therefor, or recovery therefrom.
(c) The term ``treatment'' includes (but is not limited to)
examinations to determine if a serious health condition exists and
evaluations of the condition. Treatment does not include routine
physical examinations, eye
[[Page 7966]]
examinations, or dental examinations. A regimen of continuing treatment
includes, for example, a course of prescription medication (e.g., an
antibiotic) or therapy requiring special equipment to resolve or
alleviate the health condition (e.g., oxygen). A regimen of continuing
treatment that includes the taking of over-the-counter medications such
as aspirin, antihistamines, or salves; or bed-rest, drinking fluids,
exercise, and other similar activities that can be initiated without a
visit to a health care provider, is not, by itself, sufficient to
constitute a regimen of continuing treatment for purposes of FMLA
leave.
(d) Conditions for which cosmetic treatments are administered (such
as most treatments for acne or plastic surgery) are not ``serious
health conditions'' unless inpatient hospital care is required or
unless complications develop. Ordinarily, unless complications arise,
the common cold, the flu, ear aches, upset stomach, minor ulcers,
headaches other than migraine, routine dental or orthodontia problems,
periodontal disease, etc., are examples of conditions that do not meet
the definition of a serious health condition and do not qualify for
FMLA leave. Restorative dental or plastic surgery after an injury or
removal of cancerous growths are serious health conditions provided all
the other conditions of this regulation are met. Mental illness
resulting from stress, or allergies may be serious health conditions,
but only if all the conditions of this section are met.
Sec. 825.114 Inpatient care.
Inpatient care means an overnight stay in a hospital, hospice, or
residential medical care facility, including any period of incapacity
as defined in Sec. 825.113(b), or any subsequent treatment in
connection with such inpatient care.
Sec. 825.115 Continuing treatment.
A serious health condition involving continuing treatment by a
health care provider includes any one or more of the following:
(a) Incapacity and treatment. A period of incapacity of more than
three consecutive calendar days, and any subsequent treatment or period
of incapacity relating to the same condition, that also involves:
(1) Treatment two or more times, within a 30-day period unless
extenuating circumstances exist, by a health care provider, by a nurse
under direct supervision of a health care provider, or by a provider of
health care services (e.g., physical therapist) under orders of, or on
referral by, a health care provider; or
(2) Treatment by a health care provider on at least one occasion,
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(b) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(c) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(1) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(2) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(3) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(d) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(e) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(1) Restorative surgery after an accident or other injury; or
(2) A condition that would likely result in a period of incapacity
of more than three consecutive calendar days in the absence of medical
intervention or treatment, such as cancer (chemotherapy, radiation,
etc.), severe arthritis (physical therapy), kidney disease (dialysis).
(f) Absences attributable to incapacity under paragraph (b) or (c)
of this section qualify for FMLA leave even though the employee or the
covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive calendar days. For example, an employee with
asthma may be unable to report for work due to the onset of an asthma
attack or because the employee's health care provider has advised the
employee to stay home when the pollen count exceeds a certain level. An
employee who is pregnant may be unable to report to work because of
severe morning sickness.
Sec. 825.116 [Reserved]
Sec. 825.117 [Reserved]
Sec. 825.118 [Reserved]
Sec. 825.119 Leave for treatment of substance abuse.
(a) Substance abuse may be a serious health condition if the
conditions of Sec. Sec. 825.113 through 825.115 are met. However, FMLA
leave may only be taken for treatment for substance abuse by a health
care provider or by a provider of health care services on referral by a
health care provider. On the other hand, absence because of the
employee's use of the substance, rather than for treatment, does not
qualify for FMLA leave.
(b) Treatment for substance abuse does not prevent an employer from
taking employment action against an employee. The employer may not take
action against the employee because the employee has exercised his or
her right to take FMLA leave for treatment. However, if the employer
has an established policy, applied in a non-discriminatory manner that
has been communicated to all employees, that provides under certain
circumstances an employee may be terminated for substance abuse,
pursuant to that policy the employee may be terminated whether or not
the employee is presently taking FMLA leave. An employee may also take
FMLA leave to care for a covered family member who is receiving
treatment for substance abuse. The employer may not take action against
an employee who is providing care for a covered family member receiving
treatment for substance abuse.
Sec. 825.120 Leave for pregnancy or birth.
(a) General rules. Eligible employees are entitled to FMLA leave
for pregnancy or birth of a child as follows:
(1) Both the mother and father are entitled to FMLA leave for the
birth of their child.
(2) Both the mother and father are entitled to FMLA leave to be
with the healthy newborn child (i.e., bonding time) during the 12-month
period beginning on the date of birth. An employee's entitlement to
leave for a birth expires at the end of the 12-month period beginning
on the date of the birth, unless State law allows, or the employer
permits, leave to be taken for a longer period. Any such FMLA leave
must be concluded within this one-year period. However, see Sec.
825.701
[[Page 7967]]
regarding non-FMLA leave which may be available under applicable State
laws. Under this section, both the mother and father are entitled to
FMLA leave even if the newborn does not have a serious health
condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for birth of the employee's son or daughter or to care for the
child after birth, for placement of a son or daughter with the employee
for adoption or foster care, or to care for the child after placement,
or to care for the employee's parent with a serious health condition.
This limitation on the total weeks of leave applies to leave taken for
the reasons specified as long as a husband and wife are employed by the
``same employer.'' It would apply, for example, even though the spouses
are employed at two different worksites of an employer located more
than 75 miles from each other, or by two different operating divisions
of the same company. On the other hand, if one spouse is ineligible for
FMLA leave, the other spouse would be entitled to a full 12 weeks of
FMLA leave. Where the husband and wife both use a portion of the total
12-week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newborn child, each could use an additional 6 weeks
due to his or her own serious health condition or to care for a child
with a serious health condition. Note, too, that many State pregnancy
disability laws specify a period of disability either before or after
the birth of a child; such periods would also be considered FMLA leave
for a serious health condition of the mother, and would not be subject
to the combined limit.
(4) The mother is entitled to FMLA leave for incapacity due to
pregnancy, for prenatal care, or for her own serious health condition
following the birth of the child. Circumstances may require that FMLA
leave begin before the actual date of birth of a child. An expectant
mother may take FMLA leave before the birth of the child for prenatal
care or if her condition makes her unable to work. The mother is
entitled to leave for incapacity due to pregnancy even though she does
not receive treatment from a health care provider during the absence,
and even if the absence does not last for more than three consecutive
calendar days. For example, a pregnant employee may be unable to report
to work because of severe morning sickness.
(5) The father is entitled to FMLA leave if needed to care for his
pregnant spouse who is incapacitated or for prenatal care, or if needed
to care for the spouse following the birth of a child if the spouse has
a serious health condition. See Sec. 825.124.
(6) Both the mother and father are entitled to FMLA leave if needed
to care for a child with a serious health condition if the requirements
of Sec. Sec. 825.113 through 825.115 and .122(c) are met. Thus, a
husband and wife may each take their 12 weeks of FMLA leave if needed
to care for their newborn child with a serious health condition, even
if both are employed by the same employer, provided they have not
exhausted their entitlements during the applicable 12-month FMLA leave
period.
(b) Intermittent and reduced schedule leave. An eligible employee
may use intermittent or reduced schedule leave after the birth to be
with a healthy newborn child only if the employer agrees. For example,
an employer and employee may agree to a part-time work schedule after
the birth. If the employer agrees to permit intermittent or reduced
schedule leave for the birth of a child, the employer may require the
employee to transfer temporarily, during the period the intermittent or
reduced leave schedule is required, to an available alternative
position for which the employee is qualified and which better
accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, Federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
mother or newborn child. See Sec. Sec. 825.202-.205 for general rules
governing the use of intermittent and reduced schedule leave. See Sec.
825.121 for rules governing leave for adoption or foster care. See
Sec. 825.601 for special rules applicable to instructional employees
of schools.
Sec. 825.121 Leave for adoption or foster care.
(a) General rules. Eligible employees are entitled to FMLA leave
for placement with the employee of a son or daughter for adoption or
foster care as follows:
(1) Employees may take FMLA leave before the actual placement or
adoption of a child if an absence from work is required for the
placement for adoption or foster care to proceed. For example, the
employee may be required to attend counseling sessions, appear in
court, consult with his or her attorney or the doctor(s) representing
the birth parent, submit to a physical examination, or travel to
another country to complete an adoption. The source of an adopted child
(e.g., whether from a licensed placement agency or otherwise) is not a
factor in determining eligibility for leave for this purpose.
(2) An employee's entitlement to leave for adoption or foster care
expires at the end of the 12-month period beginning on the date of the
placement, unless State law allows, or the employer permits, leave to
be taken for a longer period. Any such FMLA leave must be concluded
within this one-year period. However, see Sec. 825.701 regarding non-
FMLA leave which may be available under applicable State laws. Under
this section, the employee is entitled to FMLA leave even if the
adopted or foster child does not have a serious health condition.
(3) A husband and wife who are eligible for FMLA leave and are
employed by the same covered employer may be limited to a combined
total of 12 weeks of leave during any 12-month period if the leave is
taken for the placement of the employee's son or daughter or to care
for the child after placement, for the birth of the employee's son or
daughter or to care for the child after birth, or to care for the
employee's parent with a serious health condition. This limitation on
the total weeks of leave applies to leave taken for the reasons
specified as long as a husband and wife are employed by the ``same
employer.'' It would apply, for example, even though the spouses are
employed at two different worksites of an employer located more than 75
miles from each other, or by two different operating divisions of the
same company. On the other hand, if one spouse is ineligible for FMLA
leave, the other spouse would be entitled to a full 12 weeks of FMLA
leave. Where the husband and wife both use a portion of the total 12-
week FMLA leave entitlement for either the birth of a child, for
placement for adoption or foster care, or to care for a parent, the
[[Page 7968]]
husband and wife would each be entitled to the difference between the
amount he or she has taken individually and 12 weeks for FMLA leave for
other purposes. For example, if each spouse took 6 weeks of leave to
care for a healthy, newly placed child, each could use an additional 6
weeks due to his or her own serious health condition or to care for a
child with a serious health condition.
(4) An eligible employee is entitled to FMLA leave in order to care
for an adopted or foster child with a serious health condition if the
requirements of Sec. Sec. 825.113 through 825.115 and .122(c) are met.
Thus, a husband and wife may each take 12 weeks of FMLA leave if needed
to care for an adopted or foster child with a serious health condition,
even if both are employed by the same employer, provided they have not
exhausted their entitlements during the applicable 12-month FMLA leave
period.
(b) Use of intermittent and reduced schedule leave. An eligible
employee may use intermittent or reduced schedule leave after the
placement of a healthy child for adoption or foster care only if the
employer agrees. Thus, for example, the employer and employee may agree
to a part-time work schedule after the placement for bonding purposes.
If the employer agrees to permit intermittent or reduced schedule leave
for the placement for adoption or foster care, the employer may require
the employee to transfer temporarily, during the period the
intermittent or reduced leave schedule is required, to an available
alternative position for which the employee is qualified and which
better accommodates recurring periods of leave than does the employee's
regular position. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, Federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced leave. The employer's agreement is not required for
intermittent leave required by the serious health condition of the
adopted or foster child. See Sec. Sec. 825.202 through 825.205 for
general rules governing the use of intermittent and reduced schedule
leave. See Sec. 825.120 for general rules governing leave for
pregnancy and birth of a child. See Sec. 825.601 for special rules
applicable to instructional employees of schools.
Sec. 825.122 Definitions of spouse, parent, son or daughter, adoption
and foster care.
(a) Spouse. Spouse means a husband or wife as defined or recognized
under State law for purposes of marriage in the State where the
employee resides, including common law marriage in States where it is
recognized.
(b) Parent. Parent means a biological, adoptive, step or foster
father or mother, or any other individual who stood in loco parentis to
the employee when the employee was a son or daughter as defined in
paragraph (c) of this section. This term does not include parents ``in
law.''
(c) Son or daughter. Son or daughter means a biological, adopted,
or foster child, a stepchild, a legal ward, or a child of a person
standing in loco parentis, who is either under age 18, or age 18 or
older and ``incapable of self-care because of a mental or physical
disability'' at the time that FMLA leave is to commence.
(1) ``Incapable of self-care'' means that the individual requires
active assistance or supervision to provide daily self-care in three or
more of the ``activities of daily living'' (ADLs) or ``instrumental
activities of daily living'' (IADLs). Activities of daily living
include adaptive activities such as caring appropriately for one's
grooming and hygiene, bathing, dressing and eating. Instrumental
activities of daily living include cooking, cleaning, shopping, taking
public transportation, paying bills, maintaining a residence, using
telephones and directories, using a post office, etc.
(2) ``Physical or mental disability'' means a physical or mental
impairment that substantially limits one or more of the major life
activities of an individual. Regulations at 29 CFR 1630.2(h), (i), and
(j), issued by the Equal Employment Opportunity Commission under the
Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., define
these terms.
(3) Persons who are ``in loco parentis'' include those with day-to-
day responsibilities to care for and financially support a child, or,
in the case of an employee, who had such responsibility for the
employee when the employee was a child. A biological or legal
relationship is not necessary.
(d) Adoption. ``Adoption'' means legally and permanently assuming
the responsibility of raising a child as one's own. The source of an
adopted child (e.g., whether from a licensed placement agency or
otherwise) is not a factor in determining eligibility for FMLA leave.
See Sec. 825.121 for rules governing leave for adoption.
(e) Foster care. Foster care is 24-hour care for children in
substitution for, and away from, their parents or guardian. Such
placement is made by or with the agreement of the State as a result of
a voluntary agreement between the parent or guardian that the child be
removed from the home, or pursuant to a judicial determination of the
necessity for foster care, and involves agreement between the State and
foster family that the foster family will take care of the child.
Although foster care may be with relatives of the child, State action
is involved in the removal of the child from parental custody. See
Sec. 825.121 for rules governing leave for foster care.
(f) Documenting relationships. For purposes of confirmation of
family relationship, the employer may require the employee giving
notice of the need for leave to provide reasonable documentation or
statement of family relationship. This documentation may take the form
of a child's birth certificate, a court document, a sworn notarized
statement, a submitted and signed tax return, etc. The employer is
entitled to examine documentation such as a birth certificate, etc.,
but the employee is entitled to the return of the official document
submitted for this purpose.
Sec. 825.123 Unable to perform the functions of the position.
(a) Definition. An employee is ``unable to perform the functions of
the position'' where the health care provider finds that the employee
is unable to work at all or is unable to perform any one of the
essential functions of the employee's position within the meaning of
the Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., and
the regulations at 29 CFR 1630.2(n). An employee who must be absent
from work to receive medical treatment for a serious health condition
is considered to be unable to perform the essential functions of the
position during the absence for treatment.
(b) Statement of functions. An employer has the option, in
requiring certification from a health care provider, to provide a
statement of the essential functions of the employee's position for the
health care provider to review. For purposes of FMLA, the essential
functions of the employee's position are to be determined with
reference to the position the employee held at the time notice is given
or leave commenced, whichever is earlier. A sufficient medical
certification must specify what functions of the employee's position
the employee is unable to perform. See Sec. 825.306.
[[Page 7969]]
Sec. 825.124 Needed to care for a family member.
(a) The medical certification provision that an employee is
``needed to care for'' a family member encompasses both physical and
psychological care. It includes situations where, for example, because
of a serious health condition, the family member is unable to care for
his or her own basic medical, hygienic, or nutritional needs or safety,
or is unable to transport himself or herself to the doctor, etc. The
term also includes providing psychological comfort and reassurance
which would be beneficial to a child, spouse or parent with a serious
health condition who is receiving inpatient or home care.
(b) The term also includes situations where the employee may be
needed to fill in for others who are caring for the family member, or
to make arrangements for changes in care, such as transfer to a nursing
home. The employee need not be the only individual or family member
available to care for the qualified family member.
(c) An employee's intermittent leave or a reduced leave schedule
necessary to care for a family member includes not only a situation
where the family member's condition itself is intermittent, but also
where the employee is only needed intermittently--such as where other
care is normally available, or care responsibilities are shared with
another member of the family or a third party. See Sec. Sec. 825.202
through 825.205 for rules governing the use of intermittent or reduced
schedule leave.
Sec. 825.125 Definition of health care provider.
(a) The Act defines ``health care provider'' as:
(1) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(2) Any other person determined by the Secretary to be capable of
providing health care services.
(b) Others ``capable of providing health care services'' include
only:
(1) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(2) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(3) Christian Science Practitioners listed with the First Church of
Christ, Scientist in Boston, Massachusetts. Where an employee or family
member is receiving treatment from a Christian Science practitioner, an
employee may not object to any requirement from an employer that the
employee or family member submit to examination (though not treatment)
to obtain a second or third certification from a health care provider
other than a Christian Science practitioner except as otherwise
provided under applicable State or local law or collective bargaining
agreement.
(4) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(5) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(c) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Subpart B--Employee Leave Entitlements Under the Family and Medical
Leave Act
Sec. 825.200 Amount of leave.
(a) An eligible employee's FMLA leave entitlement is limited to a
total of 12 workweeks of leave during any 12-month period for any one,
or more, of the following reasons:
(1) The birth of the employee's son or daughter, and to care for
the newborn child;
(2) The placement with the employee of a son or daughter for
adoption or foster care, and to care for the newly placed child;
(3) To care for the employee's spouse, son, daughter, or parent
with a serious health condition; and
(4) Because of a serious health condition that makes the employee
unable to perform one or more of the essential functions of his or her
job.
(b) An employer is permitted to choose any one of the following
methods for determining the ``12-month period'' in which the 12 weeks
of leave entitlement occurs:
(1) The calendar year;
(2) Any fixed 12-month ``leave year,'' such as a fiscal year, a
year required by State law, or a year starting on an employee's
``anniversary'' date;
(3) The 12-month period measured forward from the date any
employee's first FMLA leave begins; or,
(4) A ``rolling'' 12-month period measured backward from the date
an employee uses any FMLA leave.
(c) Under methods in paragraphs (b)(1) and (b)(2) of this section
an employee would be entitled to up to 12 weeks of FMLA leave at any
time in the fixed 12-month period selected. An employee could,
therefore, take 12 weeks of leave at the end of the year and 12 weeks
at the beginning of the following year. Under the method in paragraph
(b)(3) of this section, an employee would be entitled to 12 weeks of
leave during the year beginning on the first date FMLA leave is taken;
the next 12-month period would begin the first time FMLA leave is taken
after completion of any previous 12-month period. Under the method in
paragraph (b)(4) of this section, the ``rolling'' 12-month period, each
time an employee takes FMLA leave the remaining leave entitlement would
be any balance of the 12 weeks which has not been used during the
immediately preceding 12 months. For example, if an employee has taken
eight weeks of leave during the past 12 months, an additional four
weeks of leave could be taken. If an employee used four weeks beginning
February 1, 2007, four weeks beginning June 1, 2007, and four weeks
beginning December 1, 2007, the employee would not be entitled to any
additional leave until February 1, 2008. However, beginning on February
1, 2008, the employee would be entitled to four weeks of leave, on June
1 the employee would be entitled to an additional four weeks, etc.
(d)(1) Employers will be allowed to choose any one of the
alternatives in paragraph (b) of this section provided the alternative
chosen is applied consistently and uniformly to all employees. An
employer wishing to change to another alternative is required to give
at least 60 days notice to all employees, and the transition must take
place in such a way that the employees retain the full benefit of 12
weeks of leave under whichever method affords the greatest benefit to
the employee. Under no circumstances may a new method be implemented in
order to avoid the Act's leave requirements.
(2) An exception to this required uniformity would apply in the
case of a multi-State employer who has eligible employees in a State
which has a family and medical leave statute. The State may require a
single method of determining the period during which use of the leave
entitlement is measured. This method may conflict
[[Page 7970]]
with the method chosen by the employer to determine ``any 12 months''
for purposes of the Federal statute. The employer may comply with the
State provision for all employees employed within that State, and
uniformly use another method provided by this regulation for all other
employees.
(e) If an employer fails to select one of the options in paragraph
(b) of this section for measuring the 12-month period, the option that
provides the most beneficial outcome for the employee will be used. The
employer may subsequently select an option only by providing the 60-day
notice to all employees of the option the employer intends to
implement. During the running of the 60-day period any other employee
who needs FMLA leave may use the option providing the most beneficial
outcome to that employee. At the conclusion of the 60-day period the
employer may implement the selected option.
(f) For purposes of determining the amount of leave used by an
employee, the fact that a holiday may occur within the week taken as
FMLA leave has no effect; the week is counted as a week of FMLA leave.
However, if an employee is using FMLA leave in increments of less than
one week, the holiday will not count against the employee's FMLA
entitlement unless the employee was otherwise scheduled and expected to
work during the holiday. Similarly, if for some reason the employer's
business activity has temporarily ceased and employees generally are
not expected to report for work for one or more weeks (e.g., a school
closing two weeks for the Christmas/New Year holiday or the summer
vacation or an employer closing the plant for retooling or repairs),
the days the employer's activities have ceased do not count against the
employee's FMLA leave entitlement. Methods for determining an
employee's 12-week leave entitlement are also described in Sec.
825.205.
Sec. 825.201 Leave to care for a parent.
(a) General rule. An eligible employee is entitled to FMLA leave if
needed to care for the employee's parent with a serious health
condition. Care for parents-in-law is not covered by the FMLA. See
Sec. 825.122(b) for definition of parent.
(b) ``Same employer'' limitation. A husband and wife who are
eligible for FMLA leave and are employed by the same covered employer
may be limited to a combined total of 12 weeks of leave during any 12-
month period if the leave is taken to care for the employee's parent
with a serious health condition, for the birth of the employee's son or
daughter or to care for the child after the birth, or for placement of
a son or daughter with the employee for adoption or foster care or to
care for the child after placement. This limitation on the total weeks
of leave applies to leave taken for the reasons specified as long as a
husband and wife are employed by the ``same employer.'' It would apply,
for example, even though the spouses are employed at two different
worksites of an employer located more than 75 miles from each other, or
by two different operating divisions of the same company. On the other
hand, if one spouse is ineligible for FMLA leave, the other spouse
would be entitled to a full 12 weeks of FMLA leave. Where the husband
and wife both use a portion of the total 12-week FMLA leave entitlement
for either the birth of a child, for placement for adoption or foster
care, or to care for a parent, the husband and wife would each be
entitled to the difference between the amount he or she has taken
individually and 12 weeks for FMLA leave for other purposes. For
example, if each spouse took 6 weeks of leave to care for a parent,
each could use an additional 6 weeks due to his or her own serious
health condition or to care for a child with a serious health
condition.
Sec. 825.202 Intermittent leave or reduced leave schedule.
(a) Definition. FMLA leave may be taken ``intermittently or on a
reduced leave schedule'' under certain circumstances. Intermittent
leave is FMLA leave taken in separate blocks of time due to a single
qualifying reason. A reduced leave schedule is a leave schedule that
reduces an employee's usual number of working hours per workweek, or
hours per workday. A reduced leave schedule is a change in the
employee's schedule for a period of time, normally from full-time to
part-time.
(b) Medical necessity. For intermittent leave or leave on a reduced
leave schedule, there must be a medical need for leave (as
distinguished from voluntary treatments and procedures) and it must be
that such medical need can be best accommodated through an intermittent
or reduced leave schedule. The treatment regimen and other information
described in the certification of a serious health condition (see Sec.
825.306) meets the requirement for certification of the medical
necessity of intermittent leave or leave on a reduced leave schedule.
Leave may be taken intermittently or on a reduced leave schedule when
medically necessary for planned and/or unanticipated medical treatment
of a related serious health condition by or under the supervision of a
health care provider, or for recovery from treatment or recovery from a
serious health condition. It may also be taken to provide care or
psychological comfort to a covered family member with a serious health
condition.
(1) Intermittent leave may be taken for a serious health condition
which requires treatment by a health care provider periodically, rather
than for one continuous period of time, and may include leave of
periods from an hour or more to several weeks. Examples of intermittent
leave would include leave taken on an occasional basis for medical
appointments, or leave taken several days at a time spread over a
period of six months, such as for chemotherapy. A pregnant employee may
take leave intermittently for prenatal examinations or for her own
condition, such as for periods of severe morning sickness. An example
of an employee taking leave on a reduced leave schedule is an employee
who is recovering from a serious health condition and is not strong
enough to work a full-time schedule.
(2) Intermittent or reduced schedule leave may be taken for
absences where the employee or family member is incapacitated or unable
to perform the essential functions of the position because of a chronic
serious health condition even if he or she does not receive treatment
by a health care provider. See Sec. 825.113.
(c) Birth or placement. When leave is taken after the birth of a
healthy child or placement of a healthy child for adoption or foster
care, an employee may take leave intermittently or on a reduced leave
schedule only if the employer agrees. Such a schedule reduction might
occur, for example, where an employee, with the employer's agreement,
works part-time after the birth of a child, or takes leave in several
segments. The employer's agreement is not required, however, for leave
during which the mother has a serious health condition in connection
with the birth of her child or if the newborn child has a serious
health condition. See Sec. 825.204 for rules governing transfer to an
alternative position that better accommodates intermittent leave. See
also Sec. 825.120 (pregnancy) and Sec. 825.121 (adoption and foster
care).
Sec. 825.203 Scheduling of intermittent or reduced schedule leave.
Eligible employees may take FMLA leave on an intermittent or
reduced schedule basis when medically necessary due to the serious
health condition of a qualified family member
[[Page 7971]]
or the employee. See Sec. 825.202. If an employee needs leave
intermittently or on a reduced leave schedule for planned medical
treatment, then the employee must make a reasonable effort to schedule
the leave so as not to disrupt unduly the employer's operations.
Sec. 825.204 Transfer of an employee to an alternative position
during intermittent leave or reduced schedule leave.
(a) Transfer or reassignment. If an employee needs intermittent
leave or leave on a reduced leave schedule that is foreseeable based on
planned medical treatment for the employee or a family member,
including during a period of recovery from a serious health condition,
or if the employer agrees to permit intermittent or reduced schedule
leave for the birth of a child or for placement of a child for adoption
or foster care, the employer may require the employee to transfer
temporarily, during the period that the intermittent or reduced leave
schedule is required, to an available alternative position for which
the employee is qualified and which better accommodates recurring
periods of leave than does the employee's regular position. See Sec.
825.601 for special rules applicable to instructional employees of
schools.
(b) Compliance. Transfer to an alternative position may require
compliance with any applicable collective bargaining agreement, Federal
law (such as the Americans with Disabilities Act), and State law.
Transfer to an alternative position may include altering an existing
job to better accommodate the employee's need for intermittent or
reduced schedule leave.
(c) Equivalent pay and benefits. The alternative position must have
equivalent pay and benefits. An alternative position for these purposes
does not have to have equivalent duties. The employer may increase the
pay and benefits of an existing alternative position, so as to make
them equivalent to the pay and benefits of the employee's regular job.
The employer may also transfer the employee to a part-time job with the
same hourly rate of pay and benefits, provided the employee is not
required to take more leave than is medically necessary. For example,
an employee desiring to take leave in increments of four hours per day
could be transferred to a half-time job, or could remain in the
employee's same job on a part-time schedule, paying the same hourly
rate as the employee's previous job and enjoying the same benefits. The
employer may not eliminate benefits which otherwise would not be
provided to part-time employees; however, an employer may
proportionately reduce benefits such as vacation leave where an
employer's normal practice is to base such benefits on the number of
hours worked.
(d) Employer limitations. An employer may not transfer the employee
to an alternative position in order to discourage the employee from
taking leave or otherwise work a hardship on the employee. For example,
a white collar employee may not be assigned to perform laborer's work;
an employee working the day shift may not be reassigned to the
graveyard shift; an employee working in the headquarters facility may
not be reassigned to a branch a significant distance away from the
employee's normal job location. Any such attempt on the part of the
employer to make such a transfer will be held to be contrary to the
prohibited acts of the FMLA.
(e) Reinstatement of employee. When an employee who is taking leave
intermittently or on a reduced leave schedule and has been transferred
to an alternative position no longer needs to continue on leave and is
able to return to full-time work, the employee must be placed in the
same or equivalent job as the job he/she left when the leave commenced.
An employee may not be required to take more leave than necessary to
address the circumstance that precipitated the need for leave.
Sec. 825.205 Increments of leave for intermittent or reduced schedule
leave.
(a) Minimum increment. When an employee takes leave on an
intermittent or reduced leave schedule, an employer may limit leave
increments to the shortest period of time that the employer's payroll
system uses to account for absences or use of leave, provided it is one
hour or less. If an employee takes leave on an intermittent or reduced
leave schedule, only the amount of leave actually taken may be counted
toward the 12 weeks of leave to which an employee is entitled. The
normal workweek is the basis of leave entitlement. Therefore, if an
employee who normally works five days a week takes off one day, the
employee would use 1/5 of a week of FMLA leave. Similarly, if a full-
time employee who normally works 8-hour days works 4-hour days under a
reduced leave schedule, the employee would use 1/2 week of FMLA leave.
(b) Calculation of leave. (1) Where an employee normally works a
part-time schedule or variable hours, the amount of leave to which an
employee is entitled is determined on a pro rata or proportional basis
by comparing the new schedule with the employee's normal schedule. For
example, if an employee who normally works 30 hours per week works only
20 hours a week under a reduced leave schedule, the employee's ten
hours of leave would constitute one-third of a week of FMLA leave for
each week the employee works the reduced leave schedule.
(2) If an employer has made a permanent or long-term change in the
employee's schedule (for reasons other than FMLA, and prior to the
notice of need for FMLA leave), the hours worked under the new schedule
are to be used for making this calculation.
(3) If an employee's schedule varies from week to week, a weekly
average of the hours worked over the 12 weeks prior to the beginning of
the leave period would be used for calculating the employee's normal
workweek.
Sec. 825.206 Interaction with the FLSA.
(a) Leave taken under FMLA may be unpaid. If an employee is
otherwise exempt from minimum wage and overtime requirements of the
Fair Labor Standards Act (FLSA) as a salaried executive,
administrative, professional, or computer employee (under regulations
issued by the Secretary), 29 CFR part 541, providing unpaid FMLA-
qualifying leave to such an employee will not cause the employee to
lose the FLSA exemption. See 29 CFR 541.602(b)(7). This means that
under regulations currently in effect, where an employee meets the
specified duties test, is paid on a salary basis, and is paid a salary
of at least the amount specified in the regulations, the employer may
make deductions from the employee's salary for any hours taken as
intermittent or reduced FMLA leave within a workweek, without affecting
the exempt status of the employee. The fact that an employer provides
FMLA leave, whether paid or unpaid, and maintains records required by
this part regarding FMLA leave, will not be relevant to the
determination whether an employee is exempt within the meaning of 29
CFR part 541.
(b) For an employee paid in accordance with the fluctuating
workweek method of payment for overtime (see 29 CFR 778.114), the
employer, during the period in which intermittent or reduced schedule
FMLA leave is scheduled to be taken, may compensate an employee on an
hourly basis and pay only for the hours the employee works, including
time and one-half the employee's regular rate for overtime hours. The
change to payment on an hourly basis would include the entire period
during which the employee is taking intermittent leave, including weeks
in which no leave is taken. The hourly rate shall be
[[Page 7972]]
determined by dividing the employee's weekly salary by the employee's
normal or average schedule of hours worked during weeks in which FMLA
leave is not being taken. If an employer chooses to follow this
exception from the fluctuating workweek method of payment, the employer
must do so uniformly, with respect to all employees paid on a
fluctuating workweek basis for whom FMLA leave is taken on an
intermittent or reduced leave schedule basis. If an employer does not
elect to convert the employee's compensation to hourly pay, no
deduction may be taken for FMLA leave absences. Once the need for
intermittent or reduced scheduled leave is over, the employee may be
restored to payment on a fluctuating work week basis.
(c) This special exception to the ``salary basis'' requirements of
the FLSA exemption or fluctuating workweek payment requirements applies
only to employees of covered employers who are eligible for FMLA leave,
and to leave which qualifies as (one of the four types of) FMLA leave.
Hourly or other deductions which are not in accordance with 29 CFR part
541 or 29 CFR 778.114 may not be taken, for example, from the salary of
an employee who works for an employer with fewer than 50 employees, or
where the employee has not worked long enough to be eligible for FMLA
leave without potentially affecting the employee's eligibility for
exemption. Nor may deductions which are not permitted by 29 CFR part
541 or 29 CFR 778.114 be taken from such an employee's salary for any
leave which does not qualify as FMLA leave, for example, deductions
from an employee's pay for leave required under State law or under an
employer's policy or practice for a reason which does not qualify as
FMLA leave, e.g., leave to care for a grandparent or for a medical
condition which does not qualify as a serious health condition; or for
leave which is more generous than provided by FMLA, such as leave in
excess of 12 weeks in a year. Employers may comply with State law or
the employer's own policy/practice under these circumstances and
maintain the employee's eligibility for exemption or for the
fluctuating workweek method of pay by not taking hourly deductions from
the employee's pay, in accordance with FLSA requirements, or may take
such deductions, treating the employee as an ``hourly'' employee and
pay overtime premium pay for hours worked over 40 in a workweek.
Sec. 825.207 Substitution of paid leave.
(a) Generally, FMLA leave is unpaid leave. However, under the
circumstances described in this section, FMLA permits an eligible
employee to choose to substitute paid leave for FMLA leave. If an
employee does not choose to substitute accrued paid leave, the employer
may require the employee to substitute accrued paid leave for unpaid
FMLA leave. The term ``substitute'' means that the paid leave provided
by the employer, and accrued pursuant to established policies of the
employer, will run concurrently with the unpaid FMLA leave.
Accordingly, the employee receives pay pursuant to the employer's
applicable paid leave policy during the period of otherwise unpaid FMLA
leave. An employee's ability to use accrued paid leave is determined by
the terms and conditions of the employer's normal leave policy.
Employers may not discriminate against employees on FMLA leave in the
administration of their leave policies. When an employee chooses, or an
employer requires, substitution of accrued paid leave, the employer
must inform the employee that the employee must satisfy any procedural
requirements and meet any additional qualifying standards of the paid
leave policy only in connection with the receipt of such payment or
benefit. If an employee does not comply with the additional
requirements in an employer's paid leave policy, the employee is not
entitled to substitute accrued paid leave, but the employee remains
entitled to all the protections of unpaid FMLA leave.
(b) If neither the employee nor the employer elects to substitute
paid leave for unpaid FMLA leave under the above conditions and
circumstances, the employee will remain entitled to all the paid leave
which is earned or accrued under the terms of the employer's plan.
(c) If an employee uses paid leave under circumstances which do not
qualify as FMLA leave, the leave will not count against the 12 weeks of
FMLA leave to which the employee is entitled. For example, paid sick
leave used for a medical condition which is not a serious health
condition does not count against the 12 weeks of FMLA leave
entitlement.
(d) Disability leave for the birth of a child would be considered
FMLA leave for a serious health condition and counted in the 12 weeks
of leave permitted under FMLA. Because the leave pursuant to a
temporary disability benefit plan is not unpaid, the provision for
substitution of paid leave is inapplicable. However, the employer may
designate the leave as FMLA leave and count the leave as running
concurrently for purposes of both the benefit plan and the FMLA leave
entitlement. Employers and employees also may agree, where State law
permits, to have paid leave supplement the temporary disability
benefits, such as in the case where a plan only provides replacement
income for two-thirds of an employee's salary.
(e) The Act provides that a serious health condition may result
from injury to the employee ``on or off'' the job. If the employer
designates the leave as FMLA leave in accordance with Sec. 825.301,
the employee's FMLA 12-week leave entitlement may run concurrently with
a workers' compensation absence when the injury is one that meets the
criteria for a serious health condition. As the workers' compensation
absence is not unpaid leave, the provision for substitution of the
employee's accrued paid leave is not applicable. However, if the health
care provider treating the employee for the workers' compensation
injury certifies the employee is able to return to a ``light duty job''
but is unable to return to the same or equivalent job, the employee may
decline the employer's offer of a ``light duty job.'' As a result the
employee may lose workers' compensation payments, but is entitled to
remain on unpaid FMLA leave until the 12-week entitlement is exhausted.
As of the date workers' compensation benefits cease, the substitution
provision becomes applicable and either the employee may elect or the
employer may require the use of accrued paid leave. See also Sec. Sec.
825.210(f), 825.216(d), 825.220(d), 825.307(a) and 825.702(d) (1) and
(2) regarding the relationship between workers' compensation absences
and FMLA leave.
(f) Section 7(o) of the Fair Labor Standards Act (FLSA) permits
public employers under prescribed circumstances to substitute
compensatory time off accrued at one and one-half hours for each
overtime hour worked in lieu of paying cash to an employee when the
employee works overtime hours as prescribed by the Act. There are
limits to the amounts of hours of compensatory time an employee may
accumulate depending upon whether the employee works in fire protection
or law enforcement (480 hours) or elsewhere for a public agency (240
hours). In addition, under the FLSA, an employer always has the right
to cash out an employee's compensatory time or to require the employee
to use the time. Therefore, if an employee requests and is permitted to
use accrued compensatory time to receive pay for time taken off for an
FMLA reason, or if the employer requires such use pursuant to the FLSA,
the time taken off
[[Page 7973]]
for an FMLA reason may be counted against the employee's FMLA leave
entitlement.
Sec. 825.208 [Reserved]
Sec. 825.209 Maintenance of employee benefits.
(a) During any FMLA leave, an employer must maintain the employee's
coverage under any group health plan (as defined in the Internal
Revenue Code of 1986 at 26 U.S.C. 5000(b)(1)) on the same conditions as
coverage would have been provided if the employee had been continuously
employed during the entire leave period. All employers covered by FMLA,
including public agencies, are subject to the Act's requirements to
maintain health coverage. The definition of ``group health plan'' is
set forth in Sec. 825.800. For purposes of FMLA, the term ``group
health plan'' shall not include an insurance program providing health
coverage under which employees purchase individual policies from
insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without endorsing the program, to permit the insurer to publicize
the program to employees, to collect premiums through payroll
deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
(b) The same group health plan benefits provided to an employee
prior to taking FMLA leave must be maintained during the FMLA leave.
For example, if family member coverage is provided to an employee,
family member coverage must be maintained during the FMLA leave.
Similarly, benefit coverage during FMLA leave for medical care,
surgical care, hospital care, dental care, eye care, mental health
counseling, substance abuse treatment, etc., must be maintained during
leave if provided in an employer's group health plan, including a
supplement to a group health plan, whether or not provided through a
flexible spending account or other component of a cafeteria plan.
(c) If an employer provides a new health plan or benefits or
changes health benefits or plans while an employee is on FMLA leave,
the employee is entitled to the new or changed plan/benefits to the
same extent as if the employee were not on leave. For example, if an
employer changes a group health plan so that dental care becomes
covered under the plan, an employee on FMLA leave must be given the
same opportunity as other employees to receive (or obtain) the dental
care coverage. Any other plan changes (e.g., in coverage, premiums,
deductibles, etc.) which apply to all employees of the workforce would
also apply to an employee on FMLA leave.
(d) Notice of any opportunity to change plans or benefits must also
be given to an employee on FMLA leave. If the group health plan permits
an employee to change from single to family coverage upon the birth of
a child or otherwise add new family members, such a change in benefits
must be made available while an employee is on FMLA leave. If the
employee requests the changed coverage it must be provided by the
employer.
(e) An employee may choose not to retain group health plan coverage
during FMLA leave. However, when an employee returns from leave, the
employee is entitled to be reinstated on the same terms as prior to
taking the leave, including family or dependent coverages, without any
qualifying period, physical examination, exclusion of pre-existing
conditions, etc. See Sec. 825.212(c).
(f) Except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1986 (COBRA) and for ``key'' employees (as
discussed below), an employer's obligation to maintain health benefits
during leave (and to restore the employee to the same or equivalent
employment) under FMLA ceases if and when the employment relationship
would have terminated if the employee had not taken FMLA leave (e.g.,
if the employee's position is eliminated as part of a nondiscriminatory
reduction in force and the employee would not have been transferred to
another position); an employee informs the employer of his or her
intent not to return from leave (including before starting the leave if
the employer is so informed before the leave starts); or the employee
fails to return from leave or continues on leave after exhausting his
or her FMLA leave entitlement in the 12-month period.
(g) If a ``key employee'' (see Sec. 825.218) does not return from
leave when notified by the employer that substantial or grievous
economic injury will result from his or her reinstatement, the
employee's entitlement to group health plan benefits continues unless
and until the employee advises the employer that the employee does not
desire restoration to employment at the end of the leave period, or
FMLA leave entitlement is exhausted, or reinstatement is actually
denied.
(h) An employee's entitlement to benefits other than group health
benefits during a period of FMLA leave (e.g., holiday pay) is to be
determined by the employer's established policy for providing such
benefits when the employee is on other forms of leave (paid or unpaid,
as appropriate).
Sec. 825.210 Employee payment of group health benefit premiums.
(a) Group health plan benefits must be maintained on the same basis
as coverage would have been provided if the employee had been
continuously employed during the FMLA leave period. Therefore, any
share of group health plan premiums which had been paid by the employee
prior to FMLA leave must continue to be paid by the employee during the
FMLA leave period. If premiums are raised or lowered, the employee
would be required to pay the new premium rates. Maintenance of health
insurance policies which are not a part of the employer's group health
plan, as described in Sec. 825.209(a)(1), are the sole responsibility
of the employee. The employee and the insurer should make necessary
arrangements for payment of premiums during periods of unpaid FMLA
leave.
(b) If the FMLA leave is substituted paid leave, the employee's
share of premiums must be paid by the method normally used during any
paid leave, presumably as a payroll deduction.
(c) If FMLA leave is unpaid, the employer has a number of options
for obtaining payment from the employee. The employer may require that
payment be made to the employer or to the insurance carrier, but no
additional charge may be added to the employee's premium payment for
administrative expenses. The employer may require employees to pay
their share of premium payments in any of the following ways:
(1) Payment would be due at the same time as it would be made if by
payroll deduction;
(2) Payment would be due on the same schedule as payments are made
under COBRA;
(3) Payment would be prepaid pursuant to a cafeteria plan at the
employee's option;
[[Page 7974]]
(4) The employer's existing rules for payment by employees on
``leave without pay'' would be followed, provided that such rules do
not require prepayment (i.e., prior to the commencement of the leave)
of the premiums that will become due during a period of unpaid FMLA
leave or payment of higher premiums than if the employee had continued
to work instead of taking leave; or,
(5) Another system voluntarily agreed to between the employer and
the employee, which may include prepayment of premiums (e.g., through
increased payroll deductions when the need for the FMLA leave is
foreseeable).
(d) The employer must provide the employee with advance written
notice of the terms and conditions under which these payments must be
made. (See Sec. 825.300.)
(e) An employer may not require more of an employee using unpaid
FMLA leave than the employer requires of other employees on ``leave
without pay.''
(f) An employee who is receiving payments as a result of a workers'
compensation injury must make arrangements with the employer for
payment of group health plan benefits when simultaneously taking FMLA
leave. See Sec. 825.207(e).
Sec. 825.211 Maintenance of benefits under multi-employer health
plans.
(a) A multi-employer health plan is a plan to which more than one
employer is required to contribute, and which is maintained pursuant to
one or more collective bargaining agreements between employee
organization(s) and the employers.
(b) An employer under a multi-employer plan must continue to make
contributions on behalf of an employee using FMLA leave as though the
employee had been continuously employed, unless the plan contains an
explicit FMLA provision for maintaining coverage such as through pooled
contributions by all employers party to the plan.
(c) During the duration of an employee's FMLA leave, coverage by
the group health plan, and benefits provided pursuant to the plan, must
be maintained at the level of coverage and benefits which were
applicable to the employee at the time FMLA leave commenced.
(d) An employee using FMLA leave cannot be required to use
``banked'' hours or pay a greater premium than the employee would have
been required to pay if the employee had been continuously employed.
(e) As provided in Sec. 825.209(f) of this part, group health plan
coverage must be maintained for an employee on FMLA leave until:
(1) The employee's FMLA leave entitlement is exhausted;
(2) The employer can show that the employee would have been laid
off and the employment relationship terminated; or,
(3) The employee provides unequivocal notice of intent not to
return to work.
Sec. 825.212 Employee failure to pay health plan premium payments.
(a)(1) In the absence of an established employer policy providing a
longer grace period, an employer's obligations to maintain health
insurance coverage cease under FMLA if an employee's premium payment is
more than 30 days late. In order to drop the coverage for an employee
whose premium payment is late, the employer must provide written notice
to the employee that the payment has not been received. Such notice
must be mailed to the employee at least 15 days before coverage is to
cease, advising that coverage will be dropped on a specified date at
least 15 days after the date of the letter unless the payment has been
received by that date. If the employer has established policies
regarding other forms of unpaid leave that provide for the employer to
cease coverage retroactively to the date the unpaid premium payment was
due, the employer may drop the employee from coverage retroactively in
accordance with that policy, provided the 15-day notice was given. In
the absence of such a policy, coverage for the employee may be
terminated at the end of the 30-day grace period, where the required
15-day notice has been provided.
(2) An employer has no obligation regarding the maintenance of a
health insurance policy which is not a ``group health plan.'' See Sec.
825.209(a).
(3) All other obligations of an employer under FMLA would continue;
for example, the employer continues to have an obligation to reinstate
an employee upon return from leave.
(b) The employer may recover the employee's share of any premium
payments missed by the employee for any FMLA leave period during which
the employer maintains health coverage by paying the employee's share
after the premium payment is missed.
(c) If coverage lapses because an employee has not made required
premium payments, upon the employee's return from FMLA leave the
employer must still restore the employee to coverage/benefits
equivalent to those the employee would have had if leave had not been
taken and the premium payment(s) had not been missed, including family
or dependent coverage. See Sec. 825.215(d)(1) through (5). In such
case, an employee may not be required to meet any qualification
requirements imposed by the plan, including any new preexisting
condition waiting period, to wait for an open season, or to pass a
medical examination to obtain reinstatement of coverage. If an employer
terminates an employee's insurance in accordance with this section and
fails to restore the employee's health insurance as required by this
section upon the employee's return, the employer may be liable for
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable relief tailored to the harm suffered.
Sec. 825.213 Employer recovery of benefit costs.
(a) In addition to the circumstances discussed in Sec. 825.212(b),
an employer may recover its share of health plan premiums during a
period of unpaid FMLA leave from an employee if the employee fails to
return to work after the employee's FMLA leave entitlement has been
exhausted or expires, unless the reason the employee does not return is
due to:
(1) The continuation, recurrence, or onset of a serious health
condition of the employee or the employee's family member which would
otherwise entitle the employee to leave under FMLA; or
(2) Other circumstances beyond the employee's control. Examples of
``other circumstances beyond the employee's control'' are necessarily
broad. They include such situations as where a parent chooses to stay
home with a newborn child who has a serious health condition; an
employee's spouse is unexpectedly transferred to a job location more
than 75 miles from the employee's worksite; a relative or individual
other than a covered family member has a serious health condition and
the employee is needed to provide care; the employee is laid off while
on leave; or, the employee is a ``key employee'' who decides not to
return to work upon being notified of the employer's intention to deny
restoration because of substantial and grievous economic injury to the
employer's operations and is not reinstated by the employer. Other
circumstances beyond the employee's control would not include a
situation where an employee desires to remain with a parent in a
distant city even though the parent no longer requires the employee's
care, or a parent chooses not to return to work
[[Page 7975]]
to stay home with a well, newborn child.
(3) When an employee fails to return to work because of the
continuation, recurrence, or onset of a serious health condition,
thereby precluding the employer from recovering its (share of) health
benefit premium payments made on the employee's behalf during a period
of unpaid FMLA leave, the employer may require medical certification of
the employee's or the family member's serious health condition. Such
certification is not required unless requested by the employer. The
cost of the certification shall be borne by the employee, and the
employee is not entitled to be paid for the time or travel costs spent
in acquiring the certification. The employee is required to provide
medical certification in a timely manner which, for purposes of this
section, is within 30 days from the date of the employer's request. For
purposes of medical certification, the employee may use the optional
DOL form developed for this purpose (see Sec. 825.306(b) and Appendix
B of this part). If the employer requests medical certification and the
employee does not provide such certification in a timely manner (within
30 days), or the reason for not returning to work does not meet the
test of other circumstances beyond the employee's control, the employer
may recover 100% of the health benefit premiums it paid during the
period of unpaid FMLA leave.
(b) Under some circumstances an employer may elect to maintain
other benefits, e.g., life insurance, disability insurance, etc., by
paying the employee's (share of) premiums during periods of unpaid FMLA
leave. For example, to ensure the employer can meet its
responsibilities to provide equivalent benefits to the employee upon
return from unpaid FMLA leave, it may be necessary that premiums be
paid continuously to avoid a lapse of coverage. If the employer elects
to maintain such benefits during the leave, at the conclusion of leave,
the employer is entitled to recover only the costs incurred for paying
the employee's share of any premiums whether or not the employee
returns to work.
(c) An employee who returns to work for at least 30 calendar days
is considered to have ``returned'' to work. An employee who transfers
directly from taking FMLA leave to retirement, or who retires during
the first 30 days after the employee returns to work, is deemed to have
returned to work.
(d) When an employee elects or an employer requires paid leave to
be substituted for FMLA leave, the employer may not recover its (share
of) health insurance or other non-health benefit premiums for any
period of FMLA leave covered by paid leave. Because paid leave provided
under a plan covering temporary disabilities (including workers'
compensation) is not unpaid, recovery of health insurance premiums does
not apply to such paid leave.
(e) The amount that self-insured employers may recover is limited
to only the employer's share of allowable ``premiums'' as would be
calculated under COBRA, excluding the 2 percent fee for administrative
costs.
(f) When an employee fails to return to work, any health and non-
health benefit premiums which this section of the regulations permits
an employer to recover are a debt owed by the non-returning employee to
the employer. The existence of this debt caused by the employee's
failure to return to work does not alter the employer's
responsibilities for health benefit coverage and, under a self-
insurance plan, payment of claims incurred during the period of FMLA
leave. To the extent recovery is allowed, the employer may recover the
costs through deduction from any sums due to the employee (e.g., unpaid
wages, vacation pay, profit sharing, etc.), provided such deductions do
not otherwise violate applicable Federal or State wage payment or other
laws. Alternatively, the employer may initiate legal action against the
employee to recover such costs.
Sec. 825.214 Employee right to reinstatement.
General rule. On return from FMLA leave, an employee is entitled to
be returned to the same position the employee held when leave
commenced, or to an equivalent position with equivalent benefits, pay,
and other terms and conditions of employment. An employee is entitled
to such reinstatement even if the employee has been replaced or his or
her position has been restructured to accommodate the employee's
absence. See also Sec. 825.106(e) for the obligations of joint
employers.
Sec. 825.215 Equivalent position.
(a) Equivalent position. An equivalent position is one that is
virtually identical to the employee's former position in terms of pay,
benefits and working conditions, including privileges, perquisites and
status. It must involve the same or substantially similar duties and
responsibilities, which must entail substantially equivalent skill,
effort, responsibility, and authority.
(b) Conditions to qualify. If an employee is no longer qualified
for the position because of the employee's inability to attend a
necessary course, renew a license, fly a minimum number of hours, etc.,
as a result of the leave, the employee shall be given a reasonable
opportunity to fulfill those conditions upon return to work.
(c) Equivalent pay. (1) An employee is entitled to any
unconditional pay increases which may have occurred during the FMLA
leave period, such as cost of living increases. Pay increases
conditioned upon seniority, length of service, or work performed would
not have to be granted unless it is the employer's policy or practice
to do so with respect to other employees on ``leave without pay.'' In
such case, any pay increase would be granted based on the employee's
seniority, length of service, work performed, etc., excluding the
period of unpaid FMLA leave. An employee is entitled to be restored to
a position with the same or equivalent pay premiums, such as a shift
differential. If an employee departed from a position averaging ten
hours of overtime (and corresponding overtime pay) each week, an
employee is ordinarily entitled to such a position on return from FMLA
leave.
(2) Equivalent pay includes any bonus or payment, whether it is
discretionary or non-discretionary, made to employees consistent with
the provisions of paragraph (c)(1) of this section. However, if a bonus
or other payment is based on the achievement of a specified goal such
as hours worked, products sold or perfect attendance, and the employee
has not met the goal due to FMLA leave, then the payment may be denied,
unless otherwise paid to employees on an equivalent non-FMLA leave
status. For example, if an employee who used paid vacation leave for a
non-FMLA purpose would receive the payment, then the employee who used
vacation leave for an FMLA-protected purpose also must receive the
payment.
(d) Equivalent benefits. ``Benefits'' include all benefits provided
or made available to employees by an employer, including group life
insurance, health insurance, disability insurance, sick leave, annual
leave, educational benefits, and pensions, regardless of whether such
benefits are provided by a practice or written policy of an employer
through an employee benefit plan as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, 29 U.S.C. 1002(3).
(1) At the end of an employee's FMLA leave, benefits must be
resumed in the same manner and at the same levels as provided when the
leave began, and subject to any changes in benefit levels that may have
taken place during the
[[Page 7976]]
period of FMLA leave affecting the entire workforce, unless otherwise
elected by the employee. Upon return from FMLA leave, an employee
cannot be required to requalify for any benefits the employee enjoyed
before FMLA leave began (including family or dependent coverages). For
example, if an employee was covered by a life insurance policy before
taking leave but is not covered or coverage lapses during the period of
unpaid FMLA leave, the employee cannot be required to meet any
qualifications, such as taking a physical examination, in order to
requalify for life insurance upon return from leave. Accordingly, some
employers may find it necessary to modify life insurance and other
benefits programs in order to restore employees to equivalent benefits
upon return from FMLA leave, make arrangements for continued payment of
costs to maintain such benefits during unpaid FMLA leave, or pay these
costs subject to recovery from the employee on return from leave. See
Sec. 825.213(b).
(2) An employee may, but is not entitled to, accrue any additional
benefits or seniority during unpaid FMLA leave. Benefits accrued at the
time leave began, however, (e.g., paid vacation, sick or personal leave
to the extent not substituted for FMLA leave) must be available to an
employee upon return from leave.
(3) If, while on unpaid FMLA leave, an employee desires to continue
life insurance, disability insurance, or other types of benefits for
which he or she typically pays, the employer is required to follow
established policies or practices for continuing such benefits for
other instances of leave without pay. If the employer has no
established policy, the employee and the employer are encouraged to
agree upon arrangements before FMLA leave begins.
(4) With respect to pension and other retirement plans, any period
of unpaid FMLA leave shall not be treated as or counted toward a break
in service for purposes of vesting and eligibility to participate.
Also, if the plan requires an employee to be employed on a specific
date in order to be credited with a year of service for vesting,
contributions or participation purposes, an employee on unpaid FMLA
leave on that date shall be deemed to have been employed on that date.
However, unpaid FMLA leave periods need not be treated as credited
service for purposes of benefit accrual, vesting and eligibility to
participate.
(5) Employees on unpaid FMLA leave are to be treated as if they
continued to work for purposes of changes to benefit plans. They are
entitled to changes in benefits plans, except those which may be
dependent upon seniority or accrual during the leave period,
immediately upon return from leave or to the same extent they would
have qualified if no leave had been taken. For example if the benefit
plan is predicated on a pre-established number of hours worked each
year and the employee does not have sufficient hours as a result of
taking unpaid FMLA leave, the benefit is lost. (In this regard, Sec.
825.209 addresses health benefits.)
(e) Other issues related to equivalent terms and conditions of
employment. An equivalent position must have substantially similar
duties, conditions, responsibilities, privileges and status as the
employee's original position.
(1) The employee must be reinstated to the same or a geographically
proximate worksite (i.e., one that does not involve a significant
increase in commuting time or distance) from where the employee had
previously been employed. If the employee's original worksite has been
closed, the employee is entitled to the same rights as if the employee
had not been on leave when the worksite closed. For example, if an
employer transfers all employees from a closed worksite to a new
worksite in a different city, the employee on leave is also entitled to
transfer under the same conditions as if he or she had continued to be
employed.
(2) The employee is ordinarily entitled to return to the same shift
or the same or an equivalent work schedule.
(3) The employee must have the same or an equivalent opportunity
for bonuses, profit-sharing, and other similar discretionary and non-
discretionary payments.
(4) FMLA does not prohibit an employer from accommodating an
employee's request to be restored to a different shift, schedule, or
position which better suits the employee's personal needs on return
from leave, or to offer a promotion to a better position. However, an
employee cannot be induced by the employer to accept a different
position against the employee's wishes.
(f) De minimis exception. The requirement that an employee be
restored to the same or equivalent job with the same or equivalent pay,
benefits, and terms and conditions of employment does not extend to de
minimis, intangible, or unmeasurable aspects of the job.
Sec. 825.216 Limitations on an employee's right to reinstatement.
(a) An employee has no greater right to reinstatement or to other
benefits and conditions of employment than if the employee had been
continuously employed during the FMLA leave period. An employer must be
able to show that an employee would not otherwise have been employed at
the time reinstatement is requested in order to deny restoration to
employment. For example:
(1) If an employee is laid off during the course of taking FMLA
leave and employment is terminated, the employer's responsibility to
continue FMLA leave, maintain group health plan benefits and restore
the employee cease at the time the employee is laid off, provided the
employer has no continuing obligations under a collective bargaining
agreement or otherwise. An employer would have the burden of proving
that an employee would have been laid off during the FMLA leave period
and, therefore, would not be entitled to restoration. Restoration to a
job slated for lay-off when the employee's original position is not
would not meet the requirements of an equivalent position.
(2) If a shift has been eliminated, or overtime has been decreased,
an employee would not be entitled to return to work that shift or the
original overtime hours upon restoration. However, if a position on,
for example, a night shift has been filled by another employee, the
employee is entitled to return to the same shift on which employed
before taking FMLA leave.
(3) If an employee was hired for a specific term or only to perform
work on a discrete project, the employer has no obligation to restore
the employee if the employment term or project is over and the employer
would not otherwise have continued to employ the employee. On the other
hand, if an employee was hired to perform work on a contract, and after
that contract period the contract was awarded to another contractor,
the successor contractor may be required to restore the employee if it
is a successor employer. See Sec. 825.107.
(b) In addition to the circumstances explained above, an employer
may deny job restoration to salaried eligible employees (``key
employees,'' as defined in Sec. 825.217(c)), if such denial is
necessary to prevent substantial and grievous economic injury to the
operations of the employer; or may delay restoration to an employee who
fails to provide a fitness for duty certificate to return to work under
the conditions described in Sec. 825.310.
(c) If the employee is unable to perform an essential function of
the position because of a physical or mental condition, including the
continuation of a serious health condition or an injury or illness also
covered by workers'
[[Page 7977]]
compensation, the employee has no right to restoration to another
position under the FMLA. However, the employer's obligations may be
governed by the Americans with Disabilities Act (ADA). See Sec.
825.702, State leave laws, or workers' compensation laws.
(d) An employee who fraudulently obtains FMLA leave from an
employer is not protected by FMLA's job restoration or maintenance of
health benefits provisions.
(e) If the employer has a uniformly-applied policy governing
outside or supplemental employment, such a policy may continue to apply
to an employee while on FMLA leave. An employer which does not have
such a policy may not deny benefits to which an employee is entitled
under FMLA on this basis unless the FMLA leave was fraudulently
obtained as in paragraph (d) of this section.
Sec. 825.217 Key employee, general rule.
(a) A ``key employee'' is a salaried FMLA-eligible employee who is
among the highest paid 10 percent of all the employees employed by the
employer within 75 miles of the employee's worksite.
(b) The term ``salaried'' means ``paid on a salary basis,'' as
defined in 29 CFR 541.602. This is the Department of Labor regulation
defining employees who may qualify as exempt from the minimum wage and
overtime requirements of the FLSA as executive, administrative,
professional, and computer employees.
(c) A ``key employee'' must be ``among the highest paid 10
percent'' of all the employees--both salaried and non-salaried,
eligible and ineligible--who are employed by the employer within 75
miles of the worksite.
(1) In determining which employees are among the highest paid 10
percent, year-to-date earnings are divided by weeks worked by the
employee (including weeks in which paid leave was taken). Earnings
include wages, premium pay, incentive pay, and non-discretionary and
discretionary bonuses. Earnings do not include incentives whose value
is determined at some future date, e.g., stock options, or benefits or
perquisites.
(2) The determination of whether a salaried employee is among the
highest paid 10 percent shall be made at the time the employee gives
notice of the need for leave. No more than 10 percent of the employer's
employees within 75 miles of the worksite may be ``key employees.''
Sec. 825.218 Substantial and grievous economic injury.
(a) In order to deny restoration to a key employee, an employer
must determine that the restoration of the employee to employment will
cause ``substantial and grievous economic injury'' to the operations of
the employer, not whether the absence of the employee will cause such
substantial and grievous injury.
(b) An employer may take into account its ability to replace on a
temporary basis (or temporarily do without) the employee on FMLA leave.
If permanent replacement is unavoidable, the cost of then reinstating
the employee can be considered in evaluating whether substantial and
grievous economic injury will occur from restoration; in other words,
the effect on the operations of the company of reinstating the employee
in an equivalent position.
(c) A precise test cannot be set for the level of hardship or
injury to the employer which must be sustained. If the reinstatement of
a ``key employee'' threatens the economic viability of the firm, that
would constitute ``substantial and grievous economic injury.'' A lesser
injury which causes substantial, long-term economic injury would also
be sufficient. Minor inconveniences and costs that the employer would
experience in the normal course of doing business would certainly not
constitute ``substantial and grievous economic injury.''
(d) FMLA's ``substantial and grievous economic injury'' standard is
different from and more stringent than the ``undue hardship'' test
under the ADA (see also Sec. 825.702).
Sec. 825.219 Rights of a key employee.
(a) An employer who believes that reinstatement may be denied to a
key employee, must give written notice to the employee at the time the
employee gives notice of the need for FMLA leave (or when FMLA leave
commences, if earlier) that he or she qualifies as a key employee. At
the same time, the employer must also fully inform the employee of the
potential consequences with respect to reinstatement and maintenance of
health benefits if the employer should determine that substantial and
grievous economic injury to the employer's operations will result if
the employee is reinstated from FMLA leave. If such notice cannot be
given immediately because of the need to determine whether the employee
is a key employee, it shall be given as soon as practicable after being
notified of a need for leave (or the commencement of leave, if
earlier). It is expected that in most circumstances there will be no
desire that an employee be denied restoration after FMLA leave and,
therefore, there would be no need to provide such notice. However, an
employer who fails to provide such timely notice will lose its right to
deny restoration even if substantial and grievous economic injury will
result from reinstatement.
(b) As soon as an employer makes a good faith determination, based
on the facts available, that substantial and grievous economic injury
to its operations will result if a key employee who has given notice of
the need for FMLA leave or is using FMLA leave is reinstated, the
employer shall notify the employee in writing of its determination,
that it cannot deny FMLA leave, and that it intends to deny restoration
to employment on completion of the FMLA leave. It is anticipated that
an employer will ordinarily be able to give such notice prior to the
employee starting leave. The employer must serve this notice either in
person or by certified mail. This notice must explain the basis for the
employer's finding that substantial and grievous economic injury will
result, and, if leave has commenced, must provide the employee a
reasonable time in which to return to work, taking into account the
circumstances, such as the length of the leave and the urgency of the
need for the employee to return.
(c) If an employee on leave does not return to work in response to
the employer's notification of intent to deny restoration, the employee
continues to be entitled to maintenance of health benefits and the
employer may not recover its cost of health benefit premiums. A key
employee's rights under FMLA continue unless and until the employee
either gives notice that he or she no longer wishes to return to work,
or the employer actually denies reinstatement at the conclusion of the
leave period.
(d) After notice to an employee has been given that substantial and
grievous economic injury will result if the employee is reinstated to
employment, an employee is still entitled to request reinstatement at
the end of the leave period even if the employee did not return to work
in response to the employer's notice. The employer must then again
determine whether there will be substantial and grievous economic
injury from reinstatement, based on the facts at that time. If it is
determined that substantial and grievous economic injury will result,
the employer shall notify the employee in writing (in person or by
certified mail) of the denial of restoration.
[[Page 7978]]
Sec. 825.220 Protection for employees who request leave or otherwise
assert FMLA rights.
(a) The FMLA prohibits interference with an employee's rights under
the law, and with legal proceedings or inquiries relating to an
employee's rights. More specifically, the law contains the following
employee protections:
(1) An employer is prohibited from interfering with, restraining,
or denying the exercise of (or attempts to exercise) any rights
provided by the Act.
(2) An employer is prohibited from discharging or in any other way
discriminating against any person (whether or not an employee) for
opposing or complaining about any unlawful practice under the Act.
(3) All persons (whether or not employers) are prohibited from
discharging or in any other way discriminating against any person
(whether or not an employee) because that person has--
(i) Filed any charge, or has instituted (or caused to be
instituted) any proceeding under or related to this Act;
(ii) Given, or is about to give, any information in connection with
an inquiry or proceeding relating to a right under this Act;
(iii) Testified, or is about to testify, in any inquiry or
proceeding relating to a right under this Act.
(b) Any violations of the Act or of these regulations constitute
interfering with, restraining, or denying the exercise of rights
provided by the Act. An employer may be liable for compensation and
benefits lost by reason of the violation, for other actual monetary
losses sustained as a direct result of the violation, and for
appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)). ``Interfering with'' the exercise of
an employee's rights would include, for example, not only refusing to
authorize FMLA leave, but discouraging an employee from using such
leave. It would also include manipulation by a covered employer to
avoid responsibilities under FMLA, for example:
(1) Transferring employees from one worksite to another for the
purpose of reducing worksites, or to keep worksites, below the 50-
employee threshold for employee eligibility under the Act;
(2) Changing the essential functions of the job in order to
preclude the taking of leave;
(3) Reducing hours available to work in order to avoid employee
eligibility.
(c) The Act's prohibition against ``interference'' prohibits an
employer from discriminating or retaliating against an employee or
prospective employee for having exercised or attempted to exercise FMLA
rights. For example, if an employee on leave without pay would
otherwise be entitled to full benefits (other than health benefits),
the same benefits would be required to be provided to an employee on
unpaid FMLA leave. By the same token, employers cannot use the taking
of FMLA leave as a negative factor in employment actions, such as
hiring, promotions or disciplinary actions; nor can FMLA leave be
counted under ``no fault'' attendance policies. See Sec. 825.215.
(d) Employees cannot waive, nor may employers induce employees to
waive, their prospective rights under FMLA. For example, employees (or
their collective bargaining representatives) cannot ``trade off'' the
right to take FMLA leave against some other benefit offered by the
employer. This does not prevent an employee's voluntary and uncoerced
acceptance (not as a condition of employment) of a ``light duty''
assignment while recovering from a serious health condition (see Sec.
825.702(d)). Nor does it prevent the settlement of past FMLA claims by
employees without the approval of the Department of Labor or a court.
(e) Individuals, and not merely employees, are protected from
retaliation for opposing (e.g., filing a complaint about) any practice
which is unlawful under the Act. They are similarly protected if they
oppose any practice which they reasonably believe to be a violation of
the Act or regulations.
Subpart C--Employee and Employer Rights and Obligations Under the
Act
Sec. 825.300 Employer notice requirements.
(a) General notice. (1) Every employer covered by the FMLA is
required to post and keep posted on its premises, in conspicuous places
where employees are employed, a notice explaining the Act's provisions
and providing information concerning the procedures for filing
complaints of violations of the Act with the Wage and Hour Division.
The notice must be posted prominently where it can be readily seen by
employees and applicants for employment. The poster and the text must
be large enough to be easily read and contain fully legible text.
Electronic posting is sufficient to meet this posting requirement as
long as it otherwise meets the requirements of this subsection. An
employer that willfully violates the posting requirement may be
assessed a civil money penalty by the Wage and Hour Division not to
exceed $110 for each separate offense.
(2) Covered employers must post this general notice even if no
employees are eligible for FMLA leave.
(3) If an FMLA-covered employer has any eligible employees, it
shall also provide this general notice to each employee by either
including the notice in employee handbooks distributed to all employees
or distributing a copy of the general notice to each employee at least
annually (distribution may be by electronic mail).
(4) To meet the general notice requirements of this section,
employers may duplicate the text of the notice contained in Appendix C
of this part. Where an employer's workforce is comprised of a
significant portion of workers who are not literate in English, the
employer shall be responsible for providing the general notices in a
language in which the employees are literate. Prototypes are available
in several languages from the nearest office of the Wage and Hour
Division or on the Internet at http://www.wagehour.dol.gov. Employers
furnishing FMLA notices to sensory impaired individuals must also
comply with all applicable requirements under Federal or State law.
(b) Eligibility notice. (1) When an employee requests FMLA leave,
or when the employer acquires knowledge that an employee's leave may be
for an FMLA-qualifying condition, the employer must notify the employee
within five business days of the employee's eligibility to take FMLA
leave and any additional requirements for qualifying for such leave.
This eligibility notice shall provide information regarding the
employee's eligibility for FMLA leave, detail the specific
responsibilities of the employee, and explain any consequences of a
failure to meet these responsibilities. See Sec. 825.110 for
definition of an eligible employee.
(2) Specifically, the eligibility notice must state whether the
employee is eligible for FMLA leave and whether the employee still has
FMLA leave available in the current applicable 12-month FMLA leave
period. If the employee is not eligible for FMLA leave, the notice must
state the reasons why the employee is not eligible, including as
applicable that the employee has no remaining FMLA leave available in
the 12-month period, the number of months the employee has been
employed by the employer, the number of hours of service during the 12-
month period, and whether the employee is employed at a
[[Page 7979]]
worksite where 50 or more employees are employed by the employer within
75 miles of that worksite.
(3) If the employee is eligible for FMLA leave and has FMLA leave
available, the eligibility notice must detail the specific expectations
and obligations of the employee and explain any consequences of a
failure to meet these obligations. Such specific notice must include,
as appropriate:
(i) That the leave may be designated and counted against the
employee's annual FMLA leave entitlement if qualifying (see Sec. Sec.
825.300(c) and 825.301);
(ii) Any requirements for the employee to furnish medical
certification of a serious health condition and the consequences of
failing to do so (see Sec. 825.305);
(iii) The employee's right to substitute paid leave, whether the
employer will require the substitution of paid leave, the conditions
related to any substitution, and the employee's entitlement to take
unpaid FMLA leave if the employee does not comply;
(iv) Any requirement for the employee to make any premium payments
to maintain health benefits and the arrangements for making such
payments (see Sec. 825.210), and the possible consequences of failure
to make such payments on a timely basis (i.e., the circumstances under
which coverage may lapse);
(v) Any requirement for the employee to present a fitness-for-duty
certificate to be restored to employment and a list of the essential
functions of the employee's position if the employer will require that
the fitness-for-duty certification address those functions (see Sec.
825.310);
(vi) The employee's status as a ``key employee'' and the potential
consequence that restoration may be denied following FMLA leave,
explaining the conditions required for such denial (see Sec. 825.218);
(vii) The employee's rights to maintenance of benefits during the
FMLA leave and restoration to the same or an equivalent job upon return
from FMLA leave (see Sec. Sec. 825.214 and 825.604); and
(viii) The employee's potential liability for payment of health
insurance premiums paid by the employer during the employee's unpaid
FMLA leave if the employee fails to return to work after taking FMLA
leave (see Sec. 825.213).
(4) The eligibility notice may include other information--e.g.,
whether the employer will require periodic reports of the employee's
status and intent to return to work--but is not required to do so.
(5) The eligibility notice should be accompanied by any required
medical certification form.
(6) Except as provided in this section, the eligibility notice must
be provided to the employee no less often than the first time in each
six-month period that an employee gives notice of the need for FMLA
leave (if FMLA leave is taken during the six-month period). The notice
shall be given within a reasonable time after notice of the need for
leave is given by the employee--within five business days if feasible.
If leave has already begun, the notice should be mailed to the
employee's address of record.
(7) If the specific information provided by the notice changes with
respect to a subsequent period of FMLA leave during the six-month
period, the employer shall, within five business days of receipt of the
employee's notice of need for leave, provide written notice referencing
the prior notice and setting forth any of the information in the
eligibility notice which has changed. For example, if the initial leave
period was paid leave and the subsequent leave period would be unpaid
leave, the employer may need to give notice of the arrangements for
making premium payments.
(8)(i) Except as provided in paragraph (b)(8)(ii) of this section,
if the employer is requiring medical certification or a ``fitness-for-
duty'' report, written notice of the requirement shall be given with
respect to each employee notice of a need for leave.
(ii) Subsequent written notification shall not be required if the
initial eligibility notice in the six-month period and the employer
handbook or other written documents (if any) describing the employer's
leave policies, clearly provided that certification or a ``fitness-for-
duty'' report would be required (e.g., by stating that certification
would be required in all cases, by stating that certification would be
required in all cases in which leave of more than a specified number of
days is taken, or by stating that a ``fitness-for-duty'' report would
be required in all cases for back injuries for employees in a certain
occupation). Where subsequent written notice is not required, at least
oral notice shall be provided. See Sec. 825.305(a).
(9) Employers are also expected to responsively answer questions
from employees concerning their rights and responsibilities under the
FMLA.
(10) A prototype eligibility notice is contained in Appendix D of
this part; the prototype may be obtained from local offices of the Wage
and Hour Division or from the Internet at http://www.wagehour.dol.gov.
Employers may adapt the prototype notice as appropriate to meet these
notice requirements.
(c) Designation notice. (1) When the employer has enough
information to determine whether the leave qualifies as FMLA leave
(after receiving a medical certification, for example), the employer
must notify the employee within five business days of making such
determination whether the leave has or has not been designated as FMLA
leave and the number of hours, days or weeks that will be counted
against the employee's FMLA leave entitlement. If it is not possible to
provide the hours, days or weeks that will be counted against the
employee's FMLA leave entitlement (such as in the case of unforeseeable
intermittent leave), then such information must be provided every 30
days to the employee if leave is taken during the prior 30-day period.
If the employer requires paid leave to be substituted for unpaid leave,
or that paid leave taken under an existing leave plan be counted as
FMLA leave, this designation also must be made at the time of the FMLA
designation.
(2) This designation notice must be in writing, but may be in any
form, including a notation on the employee's pay stub. See Sec.
825.301 for rules on leave designation. If the leave is not designated
as FMLA leave because it does not meet the requirements of the Act, the
notice to the employee that the leave is not designated as FMLA leave
may be in the form of a simple written statement.
(3) If the employer has sufficient information to designate the
leave as FMLA leave immediately after receiving notice of the
employee's need for leave, an employer may provide an employee with the
designation notice immediately, and also must provide the employee with
the information required in the eligibility notice as set forth in
paragraph (b)(3) of this section.
(4) A prototype designation notice is contained in Appendix E of
this part; the prototype designation notice may be obtained from local
offices of the Wage and Hour Division or from the Internet at
www.wagehour.dol.gov.
(d) Consequences of failing to provide notice. Failure to follow
the notice requirements set forth in this section may constitute an
interference with, restraint or denial of the exercise of an employee's
FMLA rights. An employer may be liable for compensation and benefits
lost by reason of the violation, for other actual monetary losses
sustained as a direct result of the violation, and for appropriate
equitable or other relief, including employment,
[[Page 7980]]
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)).
Sec. 825.301 Employer designation of FMLA leave.
(a) Employer responsibilities. In all circumstances, it is the
employer's responsibility to designate leave, paid or unpaid, as FMLA-
qualifying, and to give notice of the designation to the employee as
provided in Sec. 825.300. In the case of intermittent leave or leave
on a reduced schedule, only one such notice is required unless the
circumstances regarding the leave have changed. The employer's
designation decision must be based only on information received from
the employee or the employee's spokesperson (e.g., if the employee is
incapacitated, the employee's spouse, adult child, parent, doctor,
etc., may provide notice to the employer of the need to take FMLA
leave). In any circumstance where the employer does not have sufficient
information about the reason for an employee's use of leave, the
employer should inquire further of the employee or the spokesperson to
ascertain whether paid leave is potentially FMLA-qualifying. Once the
employer has acquired knowledge that the leave is being taken for an
FMLA required reason, the employer must notify the employee within five
business days, absent extenuating circumstances, that the leave is
designated and will be counted as FMLA leave.
(b) Employee responsibilities. As noted in Sec. Sec. 825.302(c)
and 825.303(b), an employee giving notice of the need for FMLA leave
does not need to expressly assert rights under the Act or even mention
the FMLA to meet his or her obligation to provide notice, though the
employee would need to state a qualifying reason for the needed leave
and otherwise satisfy the notice requirements set forth in Sec.
825.302 or Sec. 825.303 depending on whether the need for leave is
foreseeable or unforeseeable. An employee giving notice of the need for
FMLA leave must explain the reasons for the needed leave so as to allow
the employer to determine that the leave qualifies under the Act. If
the employee fails to explain the reasons, leave may be denied. In many
cases, in explaining the reasons for a request to use paid leave,
especially when the need for the leave was unexpected or unforeseen, an
employee will provide sufficient information for the employer to
designate the paid leave as FMLA leave. An employee using accrued paid
leave, especially vacation or personal leave, may in some cases not
spontaneously explain the reasons or their plans for using their
accrued leave. An employee requesting or notifying the employer of an
intent to use accrued paid leave, even if for a purpose covered by
FMLA, would not need to assert such right either. However, if an
employee requesting to use paid leave for an FMLA-qualifying purpose
does not explain the reason for the leave--consistent with the
employer's established policy or practice--and the employer denies the
employee's request, the employee will need to provide sufficient
information to establish an FMLA-qualifying reason for the needed leave
so that the employer is aware of the employee's entitlement (i.e., that
the leave may not be denied) and, then, may designate that the paid
leave be appropriately counted against (substituted for) the employee's
12-week entitlement. Similarly, an employee using accrued paid vacation
leave who seeks an extension of unpaid leave for an FMLA-qualifying
purpose will need to state the reason. If this is due to an event which
occurred during the period of paid leave, the employer may count the
leave used after the FMLA-qualifying event against the employee's 12-
week entitlement.
(c) Disputes. If there is a dispute between an employer and an
employee as to whether paid leave qualifies as FMLA leave, it should be
resolved through discussions between the employee and the employer.
Such discussions and the decision must be documented.
(d) Retroactive designation. If an employer does not designate
leave as required by Sec. 825.300, the employer may retroactively
designate leave as FMLA leave with appropriate notice to the employee
as required by Sec. 825.300 provided that the employer's failure to
timely designate leave does not cause harm or injury to the employee.
In all cases where leave would qualify for FMLA protections, an
employer and an employee can mutually agree that leave be retroactively
designated as FMLA leave.
(e) Remedies. If an employer's failure to timely designate leave in
accordance with Sec. 825.300 causes the employee to suffer harm, it
may constitute an interference with, restraint of or denial of the
exercise of an employee's FMLA rights. An employer may be liable for
compensation and benefits lost by reason of the violation, for other
actual monetary losses sustained as a direct result of the violation,
and for appropriate equitable or other relief, including employment,
reinstatement, promotion, or any other relief tailored to the harm
suffered (see Sec. 825.400(c)). For example, if an employer that was
put on notice that an employee needed FMLA leave failed to designate
the leave properly, but the employee's own serious health condition
prevented the employee from returning to work during that time period
regardless of the designation, an employee may not be able to show that
the employee suffered harm as a result of the employer's actions.
However, if an employee took leave to provide care for a son or
daughter with a serious health condition believing it would not count
toward the employee's FMLA entitlement, and the employee planned to
later use that FMLA leave to provide care for a spouse who would need
assistance when recovering from surgery planned for a later date, the
employee may be able to show that harm has occurred as a result of the
employer's failure to designate properly. The employee might establish
this by showing that he or she would have arranged for an alternative
caregiver for the seriously-ill son or daughter if the leave had been
designated timely.
Sec. 825.302 Employee notice requirements for foreseeable FMLA leave.
(a) Timing of notice. An employee must provide the employer at
least 30 days' advance notice before FMLA leave is to begin if the need
for the leave is foreseeable based on an expected birth, placement for
adoption or foster care, or planned medical treatment for a serious
health condition of the employee or of a family member. If 30 days
notice is not practicable, such as because of a lack of knowledge of
approximately when leave will be required to begin, a change in
circumstances, or a medical emergency, notice must be given as soon as
practicable. For example, an employee's health condition may require
leave to commence earlier than anticipated before the birth of a child.
Similarly, little opportunity for notice may be given before placement
for adoption. Whether the leave is to be continuous or is to be taken
intermittently or on a reduced schedule basis, notice need only be
given one time, but the employee shall advise the employer as soon as
practicable if dates of scheduled leave change or are extended, or were
initially unknown. In those cases where the employee does not provide
at least 30 days notice of foreseeable leave, the employee shall
explain the reasons why such notice was not practicable upon a request
from the employer for such information.
(b) As soon as practicable means as soon as both possible and
practical, taking into account all of the facts and circumstances in
the individual case. For example, where an employee learns
[[Page 7981]]
during the work day on Monday that a scheduled doctor appointment has
been rescheduled from Friday to Wednesday of the same week, it would
ordinarily be practicable for the employee to provide notice of the
schedule change to the employer before the end of the work day. If the
employee did not learn of the change in the scheduled appointment until
after work hours, the employee should be able to provide the employer
with notice the next business day.
(c) Content of notice. An employee shall provide at least verbal
notice sufficient to make the employer aware that the employee needs
FMLA-qualifying leave, and the anticipated timing and duration of the
leave. The employee need not expressly assert rights under the FMLA or
even mention the FMLA. The employee must provide sufficient information
that indicates that a condition renders the employee unable to perform
the functions of the job, or if the leave is for a family member, that
the condition renders the family member unable to perform daily
activities; the anticipated duration of the absence; and whether the
employee or the employee's family member intends to visit a health care
provider or has a condition for which the employee or the employee's
family member is under the continuing care of a health care provider.
The employer should inquire further of the employee if it is necessary
to have more information about whether FMLA leave is being sought by
the employee, and obtain the necessary details of the leave to be
taken. In the case of medical conditions, the employer may find it
necessary to inquire further to determine if the leave is because of a
serious health condition and may request medical certification to
support the need for such leave (see Sec. 825.305). An employee has an
obligation to respond to an employer's questions designed to determine
whether an absence is potentially FMLA-qualifying. Failure to respond
to reasonable employer inquiries regarding the leave request may result
in denial of FMLA protection if the employer is unable to determine
whether the leave is FMLA-qualifying.
(d) Complying with employer policy. An employer may require an
employee to comply with the employer's usual and customary notice and
procedural requirements for requesting leave, absent unusual
circumstances. For example, an employer may require that written notice
set forth the reasons for the requested leave, the anticipated duration
of the leave, and the anticipated start of the leave. An employee also
may be required by an employer's policy to contact a specific
individual. Unusual circumstances would include situations such as when
an employee is unable to call in due to his/her medical condition and
his/her spouse calls the direct supervisor to report the absence
instead of calling the human resources department as required by the
employer policy. Where an employee does not comply with the employer's
usual notice and procedural requirements, and no unusual circumstances
justify the failure to comply, FMLA-protected leave may be delayed or
denied. However, FMLA-protected leave may not be delayed or denied
where the employer's policy requires notice to be given sooner than set
forth in paragraph (a) of this section and the employee provides timely
notice as set forth in paragraph (a) of this section.
(e) Scheduling planned medical treatment. When planning medical
treatment, the employee must consult with the employer and make a
reasonable effort to schedule the treatment so as not to disrupt unduly
the employer's operations, subject to the approval of the health care
provider. Employees are ordinarily expected to consult with their
employers prior to the scheduling of treatment in order to work out a
treatment schedule which best suits the needs of both the employer and
the employee. If an employee who provides notice of the need to take
FMLA leave on an intermittent basis for planned medical treatment
neglects to consult with the employer to make a reasonable effort to
arrange the schedule of treatments so as not to unduly disrupt the
employer's operations, the employer may initiate discussions with the
employee and require the employee to attempt to make such arrangements,
subject to the approval of the health care provider. See Sec. Sec.
825.203 and 825.205.
(f) In the case of intermittent leave or leave on a reduced leave
schedule which is medically necessary, an employee shall advise the
employer, upon request, of the reasons why the intermittent/reduced
leave schedule is necessary and of the schedule for treatment, if
applicable. The employee and employer shall attempt to work out a
schedule which meets the employee's needs without unduly disrupting the
employer's operations, subject to the approval of the health care
provider.
(g) An employer may waive employees' FMLA notice requirements.
Sec. 825.303 Employee notice requirements for unforeseeable FMLA
leave.
(a) Timing of notice. When the approximate timing of the need for
leave is not foreseeable, an employee must provide notice to the
employer as soon as practicable under the facts and circumstances of
the particular case. Where the need for leave is unforeseeable, it is
expected that an employee will give notice to the employer promptly.
Notice may be given by the employee's spokesperson (e.g., spouse, adult
family member or other responsible party) if the employee is unable to
do so personally. For example, if an employee's child has a severe
asthma attack and the employee takes the child to the emergency room,
the employee would not be required to leave his or her child in order
to report the absence while the child is receiving emergency treatment.
However, if the child's asthma attack required only the use of an
inhaler at home followed by period of rest, the employee would be
expected to call the employer promptly after ensuring the child has
used the inhaler.
(b) Content of notice. An employee shall provide sufficient
information for an employer to reasonably determine whether the FMLA
may apply to the leave request. The employee need not expressly assert
rights under the FMLA or even mention the FMLA. The employee must
provide sufficient information that indicates that a condition renders
the employee unable to perform the functions of the job, or if the
leave is for a family member, that the condition renders the family
member unable to perform daily activities; the anticipated duration of
the absence; and whether the employee or the employee's family member
intends to visit a health care provider or has a condition for which
the employee or the employee's family member is under the continuing
care of a health care provider. Calling in ``sick'' without providing
more information will not be considered sufficient notice to trigger an
employer's obligations under the Act. The employer will be expected to
obtain any additional required information through informal means. An
employee has an obligation to respond to an employer's questions
designed to determine whether an absence is potentially FMLA-
qualifying. Failure to respond to reasonable employer inquiries
regarding the leave request may result in denial of FMLA protection if
the employer is unable to determine whether the leave is FMLA-
qualifying.
(c) Complying with employer policy. When the need for leave is not
foreseeable, an employee must comply with the employer's usual and
customary notice and procedural requirements for requesting leave,
except when extraordinary circumstances exist. For example, an
[[Page 7982]]
employer may require employees to call a designated number or a
specific individual to request leave. However, if an employee requires
emergency medical treatment, he or she would not be required to follow
the call-in procedure until his or her condition is stabilized and he
or she has access to, and is able to use, a phone. FMLA-protected leave
may not be delayed or denied where the employer's policy requires
notice to be given sooner than set forth in paragraph (a) of this
section and the employee provides timely notice as set forth in
paragraph (a) of this section. In the case of a medical emergency
requiring leave because of an employee's own serious health condition
or to care for a family member with a serious health condition, written
advance notice pursuant to an employer's internal rules and procedures
may not be required when FMLA leave is involved.
Sec. 825.304 Employee failure to provide notice.
(a) Waiver of notice. An employer may waive employees' FMLA notice
obligations or the employer's own internal rules on leave notice
requirements. If an employer does not waive the employee's obligations
under its internal leave rules, the employer may take appropriate
action under its internal rules and procedures for failure to follow
its usual and customary notification rules as long as the actions are
taken in a manner that does not discriminate against employees taking
FMLA leave and the rules are not inconsistent with Sec. 825.303(a).
(b) Foreseeable leave--30 days. When the need for FMLA leave is
foreseeable at least 30 days in advance and an employee fails to give
timely advance notice with no reasonable excuse, the employer may delay
FMLA coverage until 30 days after the date the employee provides
notice. The need for leave and the approximate date leave would be
taken must have been clearly foreseeable to the employee 30 days in
advance of the leave. For example, knowledge that an employee would
receive a telephone call about the availability of a child for adoption
at some unknown point in the future would not be sufficient to
establish the leave was clearly foreseeable 30 days in advance.
(c) Foreseeable leave--less than 30 days. When the need for FMLA
leave is foreseeable fewer than 30 days in advance and an employee
fails to give notice as soon as practicable under the particular facts
and circumstances, the extent to which an employer may delay FMLA
coverage for leave depends on the facts of the particular case. For
example, if an employee reasonably should have given the employer two
weeks notice but instead only provided one week notice, then the
employer may delay FMLA-protected leave for one week (thus, if the
employer elects to delay FMLA coverage and the employee nonetheless
takes leave one week after providing the notice (i.e., a week before
the two week notice period has been met) the leave will not be FMLA-
protected).
(d) Unforeseeable leave. When the need for FMLA leave is
unforeseeable and an employee fails to give notice in accordance with
Sec. 825.303, the extent to which an employer may delay FMLA coverage
for leave depends on the facts of the particular case. For example, if
it would have been practicable for an employee to have given the
employer notice of the need for leave promptly, but instead the
employee provided notice two days after the leave began, then the
employer may delay FMLA coverage of the leave by two days.
(e) Proper notice required. In all cases, in order for the onset of
an employee's FMLA leave to be delayed due to lack of required notice,
it must be clear that the employee had actual notice of the FMLA notice
requirements. This condition would be satisfied by the employer's
proper posting of the required notice at the worksite where the
employee is employed and the employer's provision of the required
notice in either an employee handbook or annual distribution, as
required by Sec. 825.300.
Sec. 825.305 Medical certification, general rule.
(a) General. An employer may require that an employee's leave to
care for the employee's seriously ill spouse, son, daughter, or parent,
or due to the employee's own serious health condition that makes the
employee unable to perform one or more of the essential functions of
the employee's position, be supported by a certification issued by the
health care provider of the employee or the employee's ill family
member. An employer must give notice of a requirement for medical
certification each time a certification is required; such notice must
be written notice whenever required by Sec. 825.300(b). An employer's
oral request to an employee to furnish any subsequent medical
certification is sufficient.
(b) Timing. In most cases, the employer should request that an
employee furnish certification from a health care provider at the time
the employee gives notice of the need for leave or within five business
days thereafter, or, in the case of unforeseen leave, within five
business days after the leave commences. The employer may request
certification at some later date if the employer later has reason to
question the appropriateness of the leave or its duration. The employee
must provide the requested certification to the employer within the
time frame requested by the employer (which must allow at least 15
calendar days after the employer's request), unless it is not
practicable under the particular circumstances to do so despite the
employee's diligent, good faith efforts.
(c) Complete and sufficient certification. The employee must
provide a complete and sufficient medical certification to the employer
if required by the employer in accordance with Sec. 825.306. The
employer shall advise an employee whenever the employer finds a
certification incomplete or insufficient, and shall state in writing
what additional information is necessary to make the certification
complete and sufficient. A certification is considered incomplete if
the employer receives a certification, but one or more of the
applicable entries have not been completed. A certification is
considered insufficient if the employer receives a complete
certification, but the information provided is vague, ambiguous or non-
responsive. The employer must provide the employee with seven calendar
days (unless not practicable under the particular circumstances despite
the employee's diligent good faith efforts) to cure any such
deficiency. If the deficiencies specified by the employer are not cured
in the resubmitted certification, the employer may deny the taking of
FMLA leave, in accordance with Sec. 825.311. A certification that is
not returned to the employer is not considered incomplete or
insufficient, but constitutes a failure to provide certification.
(d) Consequences. At the time the employer requests certification,
the employer must also advise an employee of the anticipated
consequences of an employee's failure to provide adequate
certification. If the employee fails to provide the employer with a
complete and sufficient medical certification, despite the opportunity
to cure the certification as provided in paragraph (c) of this section,
or fails to provide any certification, the employer may deny the taking
of FMLA leave, in accordance with Sec. 825.311. It is the employee's
responsibility either to furnish a complete and sufficient
certification or to furnish the health care provider providing the
certification with any
[[Page 7983]]
necessary authorization from the employee or the employee's family
member in order for the health care provider to release a complete and
sufficient certification to the employer to support the employee's FMLA
request. This provision will apply in any case where an employer
requests a certification permitted by these regulations, whether it is
the initial certification, a recertification, a second or third
opinion, or a fitness for duty certificate, including any
clarifications necessary to determine if such certifications are
authentic and sufficient. See Sec. Sec. 825.306, 825.307, 825.308, and
825.310.
(e) Annual medical certification. Where the employee's need for
leave due to the employee's own serious health condition, or the
serious health condition of the employee's spouse, son, daughter, or
parent lasts beyond a single leave year (as defined in Sec. 825.200),
the employer may require the employee to provide a new medical
certification in each subsequent leave year.
Sec. 825.306 Content of medical certification.
(a) Required information. An employer may require an employee to
obtain a medical certification from a health care provider that sets
forth the following information:
(1) The name, address, telephone number, and fax number of the
health care provider and type of medical practice, including pertinent
specialization;
(2) The approximate date on which the serious health condition
commenced, and its probable duration;
(3) A statement or description of appropriate medical facts
regarding the patient's health condition for which FMLA leave is
requested. The medical facts must be sufficient to support the need for
leave. Such medical facts may include information on symptoms,
diagnosis, hospitalization, doctor visits, whether medication has been
prescribed, any referrals for evaluation or treatment (physical
therapy, for example), or any other regimen of continuing treatment;
(4) If the employee is the patient, information sufficient to
establish that the employee cannot perform the functions of the
employee's job, as well as the nature of any other work restrictions,
and the likely duration of such inability (see Sec. 825.123(b) and
(c));
(5) If the patient is a qualified family member, information
sufficient to establish that the family member is in need of care, as
described in Sec. 825.124, and an estimate of the frequency and
duration of the leave required to care for the family member;
(6) If an employee requests leave on an intermittent or reduced
schedule basis for planned medical treatment of the employee or a
qualified family member, information sufficient to establish the
medical necessity for such intermittent or reduced schedule leave and
an estimate of the dates and duration of such treatments and any
periods of recovery;
(7) If an employee requests leave on an intermittent or reduced
schedule basis for the employee's health condition, including
pregnancy, that may result in unforeseeable episodes of incapacity,
information sufficient to establish the medical necessity for such
intermittent or reduced schedule leave and an estimate of the frequency
and duration of the episodes of incapacity; and
(8) If an employee requests leave on an intermittent or reduced
schedule basis to care for a qualified family member, a statement that
such leave is medically necessary to care for the family member, as
described in Sec. Sec. 825.124 and 825.203(b), which can include
assisting in the family member's recovery, and an estimate of the
frequency and duration of the required leave.
(b) DOL has developed an optional form (Form WH-380, as revised)
for employees' (or their family members') use in obtaining medical
certification, including second and third opinions, from health care
providers that meets FMLA's certification requirements. (See Appendix B
to these regulations.) This optional form reflects certification
requirements so as to permit the health care provider to furnish
appropriate medical information within his or her knowledge. Form WH-
380, as revised, or another form containing the same basic information,
may be used by the employer; however, no information may be required
beyond that specified in Sec. Sec. 825.306, 825.307, and 825.308. In
all instances the information on the form must relate only to the
serious health condition for which the current need for leave exists.
(c) If an employee is on FMLA leave running concurrently with a
workers' compensation absence, and the provisions of the workers'
compensation statute permit the employer or the employer's
representative to request additional information from the employee's
workers' compensation health care provider, the FMLA does not prevent
the employer from following the workers' compensation provisions.
Similarly, an employer may request additional information in accordance
with a paid leave policy or disability plan that requires greater
information to qualify for payments or benefits, provided that the
employer informs the employee that the additional information only
needs to be provided in connection with receipt of such payments or
benefits. If the employee fails to provide the information required for
receipt of such payments or benefits, the employee's entitlement to
take unpaid FMLA leave will not be affected. See Sec. 825.207(a).
(d) If an employee's serious health condition may also be a
disability within the meaning of the Americans with Disabilities Act
(ADA), the FMLA does not prevent the employer from following the
procedures for requesting medical information under the ADA.
(e) While an employee may choose to comply with the certification
requirement by providing the employer with an authorization release or
waiver allowing the employer to communicate directly with the
employee's health care provider, the employee may not be required to
provide such an authorization release or waiver. In all instances in
which certification is requested, it is the employee's responsibility
to provide the employer with complete and sufficient certification and
failure to do so may result in the denial of FMLA leave. See Sec.
825.305(d).
Sec. 825.307 Authentication and clarification of medical
certification.
(a) Clarification and authentication. If an employee submits a
complete and sufficient certification signed by the health care
provider, the employer may not request additional information from the
employee's health care provider. However, the employer may contact the
employee's health care provider for purposes of clarification and
authentication of the medical certification (whether initial
certification or recertification) after the employer has given the
employee an opportunity to cure any deficiencies as set forth in Sec.
825.305(c). For purposes of these regulations, ``authentication'' means
providing the health care provider with a copy of the certification and
requesting verification that the information contained on the
certification form was completed and/or authorized by the health care
provider who signed the document; no additional medical information may
be requested and the employee's permission is not required.
``Clarification'' means contacting the health care provider to
understand the handwriting on the medical certification or to
understand the meaning of a response. Employers may not ask health care
providers for additional information beyond that
[[Page 7984]]
required by the certification form. Contact between the employer and
the employee's health care provider for purposes of clarification must
comply with the requirements of the Health Insurance Portability and
Accountability Act (``HIPAA'') Privacy Rule (see 45 CFR parts 160 and
164). If an employee chooses not to provide the employer with
authorization allowing the employer to clarify the certification with
the employee's health care provider, and does not otherwise clarify the
certification, the employer may deny the taking of FMLA leave if the
certification is unclear. See Sec. 825.305(d). It is the employee's
responsibility to provide the employer with a complete and sufficient
certification or to provide the health care provider with sufficient
authorization from the employee or the employee's family member to
clarify the certification so that it is complete and sufficient.
(b) Second opinion. (1) An employer who has reason to doubt the
validity of a medical certification may require the employee to obtain
a second opinion at the employer's expense. Pending receipt of the
second (or third) medical opinion, the employee is provisionally
entitled to the benefits of the Act, including maintenance of group
health benefits. If the certifications do not ultimately establish the
employee's entitlement to FMLA leave, the leave shall not be designated
as FMLA leave and may be treated as paid or unpaid leave under the
employer's established leave policies. In addition, the consequences
set forth in Sec. 825.305(d) will apply if the employee or the
employee's family member fails to authorize his or her health care
provider to release all relevant medical information pertaining to the
serious health condition at issue if requested by the health care
provider designated to provide a second opinion in order to render a
sufficient and complete second opinion.
(2) The employer is permitted to designate the health care provider
to furnish the second opinion, but the selected health care provider
may not be employed on a regular basis by the employer. The employer
may not regularly contract with or otherwise regularly utilize the
services of the health care provider furnishing the second opinion
unless the employer is located in an area where access to health care
is extremely limited (e.g., a rural area where no more than one or two
doctors practice in the relevant specialty in the vicinity).
(c) Third opinion. If the opinions of the employee's and the
employer's designated health care providers differ, the employer may
require the employee to obtain certification from a third health care
provider, again at the employer's expense. This third opinion shall be
final and binding. The third health care provider must be designated or
approved jointly by the employer and the employee. The employer and the
employee must each act in good faith to attempt to reach agreement on
whom to select for the third opinion provider. If the employer does not
attempt in good faith to reach agreement, the employer will be bound by
the first certification. If the employee does not attempt in good faith
to reach agreement, the employee will be bound by the second
certification. For example, an employee who refuses to agree to see a
doctor in the specialty in question may be failing to act in good
faith. On the other hand, an employer that refuses to agree to any
doctor on a list of specialists in the appropriate field provided by
the employee and whom the employee has not previously consulted may be
failing to act in good faith. In addition, the consequences set forth
in Sec. 825.305(d) will apply if the employee or the employee's family
member fails to authorize his or her health care provider to release
all relevant medical information pertaining to the serious health
condition at issue if requested by the health care provider designated
to provide a third opinion in order to render a sufficient and complete
third opinion.
(d) Copies of opinions. The employer is required to provide the
employee with a copy of the second and third medical opinions, where
applicable, upon request by the employee. Requested copies are to be
provided within five business days unless extenuating circumstances
prevent such action.
(e) Travel expenses. If the employer requires the employee to
obtain either a second or third opinion, the employer must reimburse an
employee or family member for any reasonable ``out of pocket'' travel
expenses incurred to obtain the second and third medical opinions. The
employer may not require the employee or family member to travel
outside normal commuting distance for purposes of obtaining the second
or third medical opinions except in very unusual circumstances.
(f) Medical certification abroad. In circumstances when the
employee or a family member is visiting in another country, or a family
member resides in another country, and a serious health condition
develops, the employer shall accept a medical certification as well as
second and third opinions from a health care provider who practices in
that country.
Sec. 825.308 Recertifications.
(a) 30-day rule. Generally, an employer may request recertification
no more often than every 30 days and only in connection with an absence
by the employee.
(b) More than 30 days. If the medical certification indicates that
the minimum duration of incapacity is more than 30 days, an employer
must wait until that minimum duration expires before requesting a
recertification, unless paragraph (c) applies. For example, if the
medical certification states that an employee will be unable to work,
whether continuously or on an intermittent basis, for 40 days, the
employer must wait 40 days before requesting a recertification. In all
cases, an employer may request a recertification every six months in
connection with an absence by the employee.
(c) Less than 30 days. An employer may request recertification in
less than 30 days if:
(1) The employee requests an extension of leave;
(2) Circumstances described by the previous certification have
changed significantly (e.g., the duration or frequency of the absence,
the nature or severity of the illness, complications). For example, if
a medical certification stated that an employee would need leave for
one to two days when the employee suffered a migraine headache and the
employee's absences for his/her last two migraines lasted four days
each, then the increased duration of absence might constitute a
significant change in circumstances allowing the employer to request a
recertification in less than 30 days. Likewise, if an employee had a
pattern of using unscheduled FMLA leave for migraines in conjunction
with his/her scheduled days off, then the timing of the absences also
might constitute a significant change in circumstances sufficient for
an employer to request a recertification more frequently than every 30
days; or
(3) The employer receives information that casts doubt upon the
employee's stated reason for the absence or the continuing validity of
the certification. For example, if an employee is on FMLA leave for
four weeks due to the employee's knee surgery, including recuperation,
and the employee plays in company softball league games during the
employee's third week of FMLA leave, such information might be
sufficient to cast doubt upon the continuing validity of the
certification allowing the employer to request a recertification in
less than 30 days.
(d) Timing. The employee must provide the requested recertification
to
[[Page 7985]]
the employer within the time frame requested by the employer (which
must allow at least 15 calendar days after the employer's request),
unless it is not practicable under the particular circumstances to do
so despite the employee's diligent, good faith efforts.
(e) Content. The employer may ask for the same information when
obtaining recertification as that permitted for the original
certification as set forth in Sec. 825.306. The employee has the same
obligations to participate and cooperate (including providing a
complete and sufficient certification or adequate authorization to the
health care provider) in the recertification process as in the initial
certification process. See Sec. 825.305(d). As part of the information
allowed to be obtained on recertification, the employer may provide the
health care provider with a record of the employee's absence pattern
and ask the health care provider if the serious health condition and
need for leave is consistent with such a pattern.
(f) Any recertification requested by the employer shall be at the
employee's expense unless the employer provides otherwise. No second or
third opinion on recertification may be required.
Sec. 825.309 Intent to return to work.
(a) An employer may require an employee on FMLA leave to report
periodically on the employee's status and intent to return to work. The
employer's policy regarding such reports may not be discriminatory and
must take into account all of the relevant facts and circumstances
related to the individual employee's leave situation.
(b) If an employee gives unequivocal notice of intent not to return
to work, the employer's obligations under FMLA to maintain health
benefits (subject to COBRA requirements) and to restore the employee
cease. However, these obligations continue if an employee indicates he
or she may be unable to return to work but expresses a continuing
desire to do so.
(c) It may be necessary for an employee to take more leave than
originally anticipated. Conversely, an employee may discover after
beginning leave that the circumstances have changed and the amount of
leave originally anticipated is no longer necessary. An employee may
not be required to take more FMLA leave than necessary to resolve the
circumstance that precipitated the need for leave. In both of these
situations, the employer may require that the employee provide the
employer reasonable notice (i.e., within two business days) of the
changed circumstances where foreseeable. The employer may also obtain
information on such changed circumstances through requested status
reports.
Sec. 825.310 Fitness-for-duty certification.
(a) As a condition of restoring an employee whose FMLA leave was
occasioned by the employee's own serious health condition that made the
employee unable to perform the employee's job, an employer may have a
uniformly-applied policy or practice that requires all similarly-
situated employees (i.e., same occupation, same serious health
condition) who take leave for such conditions to obtain and present
certification from the employee's health care provider that the
employee is able to resume work. The employee has the same obligations
to participate and cooperate (including providing a complete and
sufficient certification or providing sufficient authorization to the
health care provider to provide the information directly to the
employer) in the fitness-for-duty certification process as in the
initial certification process. See Sec. 825.305(d).
(b) If State or local law or the terms of a collective bargaining
agreement govern an employee's return to work, those provisions shall
be applied. Similarly, requirements under the Americans with
Disabilities Act (ADA) that any return-to-work physical be job-related
and consistent with business necessity apply. For example, an attorney
could not be required to submit to a medical examination or inquiry
just because her leg had been amputated. The essential functions of an
attorney's job do not require use of both legs; therefore such an
inquiry would not be job related. An employer may require a warehouse
laborer, whose back impairment affects the ability to lift, to be
examined by an orthopedist, but may not require this employee to submit
to an HIV test where the test is not related to either the essential
functions of his/her job or to his/her impairment.
(c) An employer may seek fitness-for-duty certification only with
regard to the particular health condition that caused the employee's
need for FMLA leave. The certification from the employee's health care
provider must certify that the employee is able to resume work. An
employer may require that the certification address the employee's
ability to perform the essential functions of the employee's job by
providing a list of essential functions with the eligibility notice
required by Sec. 825.300(b). If the employer timely provides such a
list, the employee's health care provider must certify that the
employee can perform the identified essential functions of his or her
job. Following the procedures set forth in Sec. 825.307(a), the
employer may contact the employee's health care provider for purposes
of clarifying and authenticating the fitness-for-duty certification.
Clarification may be requested only for the serious health condition
for which FMLA leave was taken. The employer may not delay the
employee's return to work while contact with the health care provider
is being made.
(d) The cost of the certification shall be borne by the employee,
and the employee is not entitled to be paid for the time or travel
costs spent in acquiring the certification.
(e) The eligibility notice required in Sec. 825.300(b) shall
advise the employee if the employer will require fitness-for-duty
certification to return to work. No second or third fitness-for-duty
certification may be required.
(f) An employer may delay restoration to employment until an
employee submits a required fitness-for-duty certification unless the
employer has failed to provide the notice required in paragraph (e) of
this section. If an employer provides the notice required, an employee
who does not provide a fitness-for-duty certification or request
additional FMLA leave is no longer entitled to reinstatement under the
FMLA. See Sec. 825.311(d).
(g) An employer is not entitled to certification of fitness to
return to duty for each absence taken on an intermittent or reduced
leave schedule as set forth in Sec. Sec. 825.203 through 825.205.
However, an employer is entitled to a certification of fitness to
return to duty for such absences up to once every 30 days if reasonable
safety concerns exist regarding the employee's ability to perform his
or her duties, based on the serious health condition for which the
employee took such leave. The employer may not terminate the employment
of the employee while awaiting such a certification of fitness to
return to duty for an intermittent or reduced schedule leave absence.
Sec. 825.311 Failure to provide medical certification.
(a) Foreseeable leave. In the case of foreseeable leave, if an
employee fails to provide certification in a timely manner as required
by Sec. 825.305, then an employer may deny FMLA coverage until the
required certification is provided. For example, if an employee has 15
days to provide a certification and does not provide the certification
for 45 days without sufficient reason for the delay, the employer can
deny FMLA
[[Page 7986]]
protections for the 30 day period following the expiration of the 15
day time period, if the employee takes leave during such period.
(b) Unforeseeable leave. In the case of unforeseeable leave, an
employer may deny FMLA coverage for the requested leave if the employee
fails to provide a medical certification within 15 calendar days from
receipt of the request for certification unless not practicable due to
extenuating circumstances. For example, in the case of a medical
emergency, it may not be practicable for an employee to provide the
required certification within 15 calendar days. Absent such extenuating
circumstances, if the employee fails to timely return the
certification, the employer can deny FMLA protections for the leave
following the expiration of the 15-day time period until a sufficient
certification is provided. If the employee never produces the
certification, the leave is not FMLA leave.
(c) Recertification. An employee must provide recertification
within the time requested by the employer (which must allow at least 15
calendar days after the request) or as soon as practicable under the
particular facts and circumstances. If an employee fails to provide a
recertification within a reasonable time under the particular facts and
circumstances, then the employer may deny continuation of the FMLA
leave protections until the employee produces a sufficient
recertification. If the employee never produces the recertification,
the leave is not FMLA leave.
(d) Fitness-for-duty certification. When requested by the employer
pursuant to a uniformly applied policy for similarly-situated
employees, the employee must provide medical certification at the time
the employee seeks reinstatement at the end of FMLA leave taken for the
employee's serious health condition, that the employee is fit for duty
and able to return to work (see Sec. 825.310(a)) if the employer has
provided the required notice (see Sec. 825.300(c)); the employer may
delay restoration until the certification is provided. In this
situation, unless the employee provides either a fitness-for-duty
certification or a new medical certification for a serious health
condition at the time FMLA leave is concluded, the employee may be
terminated. See also Sec. 825.213(a)(3).
Subpart D--Enforcement Mechanisms
Sec. 825.400 Enforcement, general rules.
(a) The employee has the choice of:
(1) Filing, or having another person file on his or her behalf, a
complaint with the Secretary of Labor, or
(2) Filing a private lawsuit pursuant to section 107 of FMLA.
(b) If the employee files a private lawsuit, it must be filed
within two years after the last action which the employee contends was
in violation of the Act, or three years if the violation was willful.
(c) If an employer has violated one or more provisions of FMLA, and
if justified by the facts of a particular case, an employee may receive
one or more of the following: wages, employment benefits, or other
compensation denied or lost to such employee by reason of the
violation; or, where no such tangible loss has occurred, such as when
FMLA leave was unlawfully denied, any actual monetary loss sustained by
the employee as a direct result of the violation, such as the cost of
providing care, up to a sum equal to 12 weeks of wages for the
employee. In addition, the employee may be entitled to interest on such
sum, calculated at the prevailing rate. An amount equaling the
preceding sums may also be awarded as liquidated damages unless such
amount is reduced by the court because the violation was in good faith
and the employer had reasonable grounds for believing the employer had
not violated the Act. When appropriate, the employee may also obtain
appropriate equitable relief, such as employment, reinstatement and
promotion. When the employer is found in violation, the employee may
recover a reasonable attorney's fee, reasonable expert witness fees,
and other costs of the action from the employer in addition to any
judgment awarded by the court.
Sec. 825.401 Filing a complaint with the Federal Government.
(a) A complaint may be filed in person, by mail or by telephone,
with the Wage and Hour Division, Employment Standards Administration,
U.S. Department of Labor. A complaint may be filed at any local office
of the Wage and Hour Division; the address and telephone number of
local offices may be found in telephone directories or on the
Department's website.
(b) A complaint filed with the Secretary of Labor should be filed
within a reasonable time of when the employee discovers that his or her
FMLA rights have been violated. In no event may a complaint be filed
more than two years after the action which is alleged to be a violation
of FMLA occurred, or three years in the case of a willful violation.
(c) No particular form of complaint is required, except that a
complaint must be reduced to writing and should include a full
statement of the acts and/or omissions, with pertinent dates, which are
believed to constitute the violation.
Sec. 825.402 Violations of the posting requirement.
Section 825.300 describes the requirements for covered employers to
post a notice for employees that explains the Act's provisions. If a
representative of the Department of Labor determines that an employer
has committed a willful violation of this posting requirement, and that
the imposition of a civil money penalty for such violation is
appropriate, the representative may issue and serve a notice of penalty
on such employer in person or by certified mail. Where service by
certified mail is not accepted, notice shall be deemed received on the
date of attempted delivery. Where service is not accepted, the notice
may be served by regular mail.
Sec. 825.403 Appealing the assessment of a penalty for willful
violation of the posting requirement.
(a) An employer may obtain a review of the assessment of penalty
from the Wage and Hour Regional Administrator for the region in which
the alleged violation(s) occurred. If the employer does not seek such a
review or fails to do so in a timely manner, the notice of the penalty
constitutes the final ruling of the Secretary of Labor.
(b) To obtain review, an employer may file a petition with the Wage
and Hour Regional Administrator for the region in which the alleged
violations occurred. No particular form of petition for review is
required, except that the petition must be in writing, should contain
the legal and factual bases for the petition, and must be mailed to the
Regional Administrator within 15 days of receipt of the notice of
penalty. The employer may request an oral hearing which may be
conducted by telephone.
(c) The decision of the Regional Administrator constitutes the
final order of the Secretary.
Sec. 825.404 Consequences for an employer when not paying the penalty
assessment after a final order is issued.
The Regional Administrator may seek to recover the unpaid penalty
pursuant to the Debt Collection Act (DCA), 31 U.S.C. 3711 et seq., and,
in addition to seeking recovery of the unpaid final order, may seek
interest and penalties as provided under the DCA. The final order may
also be referred to the Solicitor of Labor for collection. The
[[Page 7987]]
Secretary may file suit in any court of competent jurisdiction to
recover the monies due as a result of the unpaid final order, interest,
and penalties.
Subpart E--Recordkeeping Requirements
Sec. 825.500 Recordkeeping requirements.
(a) FMLA provides that covered employers shall make, keep, and
preserve records pertaining to their obligations under the Act in
accordance with the recordkeeping requirements of section 11(c) of the
Fair Labor Standards Act (FLSA) and in accordance with these
regulations. FMLA also restricts the authority of the Department of
Labor to require any employer or plan, fund or program to submit books
or records more than once during any 12-month period unless the
Department has reasonable cause to believe a violation of the FMLA
exists or the DOL is investigating a complaint. These regulations
establish no requirement for the submission of any records unless
specifically requested by a Departmental official.
(b) No particular order or form of records is required. These
regulations establish no requirement that any employer revise its
computerized payroll or personnel records systems to comply. However,
employers must keep the records specified by these regulations for no
less than three years and make them available for inspection, copying,
and transcription by representatives of the Department of Labor upon
request. The records may be maintained and preserved on microfilm or
other basic source document of an automated data processing memory
provided that adequate projection or viewing equipment is available,
that the reproductions are clear and identifiable by date or pay
period, and that extensions or transcriptions of the information
required herein can be and are made available upon request. Records
kept in computer form must be made available for transcription or
copying.
(c) Covered employers who have eligible employees must maintain
records that must disclose the following:
(1) Basic payroll and identifying employee data, including name,
address, and occupation; rate or basis of pay and terms of
compensation; daily and weekly hours worked per pay period; additions
to or deductions from wages; and total compensation paid.
(2) Dates FMLA leave is taken by FMLA eligible employees (e.g.,
available from time records, requests for leave, etc., if so
designated). Leave must be designated in records as FMLA leave; leave
so designated may not include leave required under State law or an
employer plan which is not also covered by FMLA.
(3) If FMLA leave is taken by eligible employees in increments of
less than one full day, the hours of the leave.
(4) Copies of employee notices of leave furnished to the employer
under FMLA, if in writing, and copies of all eligibility notices given
to employees as required under FMLA and these regulations (see Sec.
825.300(b)). Copies may be maintained in employee personnel files.
(5) Any documents (including written and electronic records)
describing employee benefits or employer policies and practices
regarding the taking of paid and unpaid leaves.
(6) Premium payments of employee benefits.
(7) Records of any dispute between the employer and an eligible
employee regarding designation of leave as FMLA leave, including any
written statement from the employer or employee of the reasons for the
designation and for the disagreement.
(d) Covered employers with no eligible employees must maintain the
records set forth in paragraph (c)(1) of this section.
(e) Covered employers in a joint employment situation (see Sec.
825.106) must keep all the records required by paragraph (c) of this
section with respect to any primary employees, and must keep the
records required by paragraph (c)(1) with respect to any secondary
employees.
(f) If FMLA-eligible employees are not subject to FLSA's
recordkeeping regulations for purposes of minimum wage or overtime
compliance (i.e., not covered by or exempt from FLSA), an employer need
not keep a record of actual hours worked (as otherwise required under
FLSA, 29 CFR 516.2(a)(7)), provided that:
(1) Eligibility for FMLA leave is presumed for any employee who has
been employed for at least 12 months; and
(2) With respect to employees who take FMLA leave intermittently or
on a reduced leave schedule, the employer and employee agree on the
employee's normal schedule or average hours worked each week and reduce
their agreement to a written record maintained in accordance with
paragraph (b) of this section.
(g) Records and documents relating to medical certifications,
recertifications or medical histories of employees or employees' family
members, created for purposes of FMLA, shall be maintained as
confidential medical records in separate files/records from the usual
personnel files, and if ADA is also applicable, such records shall be
maintained in conformance with ADA confidentiality requirements (see 29
CFR 1630.14(c)(1)), except that:
(1) Supervisors and managers may be informed regarding necessary
restrictions on the work or duties of an employee and necessary
accommodations;
(2) First aid and safety personnel may be informed (when
appropriate) if the employee's physical or medical condition might
require emergency treatment; and
(3) Government officials investigating compliance with FMLA (or
other pertinent law) shall be provided relevant information upon
request.
Subpart F--Special Rules Applicable to Employees of Schools
Sec. 825.600 Special rules for school employees, definitions.
(a) Certain special rules apply to employees of ``local educational
agencies,'' including public school boards and elementary and secondary
schools under their jurisdiction, and private elementary and secondary
schools. The special rules do not apply to other kinds of educational
institutions, such as colleges and universities, trade schools, and
preschools.
(b) Educational institutions are covered by FMLA (and these special
rules) and the Act's 50-employee coverage test does not apply. The
usual requirements for employees to be ``eligible'' do apply, however,
including employment at a worksite where at least 50 employees are
employed within 75 miles. For example, employees of a rural school
would not be eligible for FMLA leave if the school has fewer than 50
employees and there are no other schools under the jurisdiction of the
same employer (usually, a school board) within 75 miles.
(c) The special rules affect the taking of intermittent leave or
leave on a reduced leave schedule, or leave near the end of an academic
term (semester), by instructional employees. ``Instructional
employees'' are those whose principal function is to teach and instruct
students in a class, a small group, or an individual setting. This term
includes not only teachers, but also athletic coaches, driving
instructors, and special education assistants such as signers for the
hearing impaired. It does not include, and the special rules do not
apply to, teacher assistants or aides who do not have as their
principal job actual teaching or instructing, nor does it
[[Page 7988]]
include auxiliary personnel such as counselors, psychologists, or
curriculum specialists. It also does not include cafeteria workers,
maintenance workers, or bus drivers.
(d) Special rules which apply to restoration to an equivalent
position apply to all employees of local educational agencies.
Sec. 825.601 Special rules for school employees, limitations on
intermittent leave.
(a) Leave taken for a period that ends with the school year and
begins the next semester is leave taken consecutively rather than
intermittently. The period during the summer vacation when the employee
would not have been required to report for duty is not counted against
the employee's FMLA leave entitlement. An instructional employee who is
on FMLA leave at the end of the school year must be provided with any
benefits over the summer vacation that employees would normally receive
if they had been working at the end of the school year.
(1) If an eligible instructional employee needs intermittent leave
or leave on a reduced leave schedule to care for a family member, or
for the employee's own serious health condition, which is foreseeable
based on planned medical treatment, and the employee would be on leave
for more than 20 percent of the total number of working days over the
period the leave would extend, the employer may require the employee to
choose either to:
(i) Take leave for a period or periods of a particular duration,
not greater than the duration of the planned treatment; or
(ii) Transfer temporarily to an available alternative position for
which the employee is qualified, which has equivalent pay and benefits
and which better accommodates recurring periods of leave than does the
employee's regular position.
(2) These rules apply only to a leave involving more than 20
percent of the working days during the period over which the leave
extends. For example, if an instructional employee who normally works
five days each week needs to take two days of FMLA leave per week over
a period of several weeks, the special rules would apply. Employees
taking leave which constitutes 20 percent or less of the working days
during the leave period would not be subject to transfer to an
alternative position. ``Periods of a particular duration'' means a
block, or blocks, of time beginning no earlier than the first day for
which leave is needed and ending no later than the last day on which
leave is needed, and may include one uninterrupted period of leave.
(b) If an instructional employee does not give required notice of
foreseeable FMLA leave (see Sec. 825.302) to be taken intermittently
or on a reduced leave schedule, the employer may require the employee
to take leave of a particular duration, or to transfer temporarily to
an alternative position. Alternatively, the employer may require the
employee to delay the taking of leave until the notice provision is
met.
Sec. 825.602 Special rules for school employees, limitations on leave
near the end of an academic term.
(a) There are also different rules for instructional employees who
begin leave more than five weeks before the end of a term, less than
five weeks before the end of a term, and less than three weeks before
the end of a term. Regular rules apply except in circumstances when:
(1) An instructional employee begins leave more than five weeks
before the end of a term. The employer may require the employee to
continue taking leave until the end of the term if--
(i) The leave will last at least three weeks, and
(ii) The employee would return to work during the three-week period
before the end of the term.
(2) The employee begins leave for a purpose other than the
employee's own serious health condition during the five-week period
before the end of a term. The employer may require the employee to
continue taking leave until the end of the term if --
(i) The leave will last more than two weeks, and
(ii) The employee would return to work during the two-week period
before the end of the term.
(3) The employee begins leave for a purpose other than the
employee's own serious health condition during the three-week period
before the end of a term, and the leave will last more than five
working days. The employer may require the employee to continue taking
leave until the end of the term.
(b) For purposes of these provisions, ``academic term'' means the
school semester, which typically ends near the end of the calendar year
and the end of spring each school year. In no case may a school have
more than two academic terms or semesters each year for purposes of
FMLA. An example of leave falling within these provisions would be
where an employee plans two weeks of leave to care for a family member
which will begin three weeks before the end of the term. In that
situation, the employer could require the employee to stay out on leave
until the end of the term.
Sec. 825.603 Special rules for school employees, duration of FMLA
leave.
(a) If an employee chooses to take leave for ``periods of a
particular duration'' in the case of intermittent or reduced schedule
leave, the entire period of leave taken will count as FMLA leave.
(b) In the case of an employee who is required to take leave until
the end of an academic term, only the period of leave until the
employee is ready and able to return to work shall be charged against
the employee's FMLA leave entitlement. The employer has the option not
to require the employee to stay on leave until the end of the school
term. Therefore, any additional leave required by the employer to the
end of the school term is not counted as FMLA leave; however, the
employer shall be required to maintain the employee's group health
insurance and restore the employee to the same or equivalent job
including other benefits at the conclusion of the leave.
Sec. 825.604 Special rules for school employees, restoration to ``an
equivalent position.''
The determination of how an employee is to be restored to ``an
equivalent position'' upon return from FMLA leave will be made on the
basis of ``established school board policies and practices, private
school policies and practices, and collective bargaining agreements.''
The ``established policies'' and collective bargaining agreements used
as a basis for restoration must be in writing, must be made known to
the employee prior to the taking of FMLA leave, and must clearly
explain the employee's restoration rights upon return from leave. Any
established policy which is used as the basis for restoration of an
employee to ``an equivalent position'' must provide substantially the
same protections as provided in the Act for reinstated employees. See
Sec. 825.215. In other words, the policy or collective bargaining
agreement must provide for restoration to an ``equivalent position''
with equivalent employment benefits, pay, and other terms and
conditions of employment. For example, an employee may not be restored
to a position requiring additional licensure or certification.
[[Page 7989]]
Subpart G--Effect of Other Laws, Employer Practices, and Collective
Bargaining Agreements on Employee Rights Under FMLA
Sec. 825.700 Interaction with employer's policies.
(a) An employer must observe any employment benefit program or plan
that provides greater family or medical leave rights to employees than
the rights established by the FMLA. Conversely, the rights established
by the Act may not be diminished by any employment benefit program or
plan. For example, a provision of a CBA which provides for
reinstatement to a position that is not equivalent because of seniority
(e.g., provides lesser pay) is superseded by FMLA. If an employer
provides greater unpaid family leave rights than are afforded by FMLA,
the employer is not required to extend additional rights afforded by
FMLA, such as maintenance of health benefits (other than through
COBRA), to the additional leave period not covered by FMLA.
(b) Nothing in this Act prevents an employer from amending existing
leave and employee benefit programs, provided they comply with FMLA.
However, nothing in the Act is intended to discourage employers from
adopting or retaining more generous leave policies.
Sec. 825.701 Interaction with State laws.
(a) Nothing in FMLA supersedes any provision of State or local law
that provides greater family or medical leave rights than those
provided by FMLA. The Department of Labor will not, however, enforce
State family or medical leave laws, and States may not enforce the
FMLA. Employees are not required to designate whether the leave they
are taking is FMLA leave or leave under State law, and an employer must
comply with the appropriate (applicable) provisions of both. An
employer covered by one law and not the other has to comply only with
the law under which it is covered. Similarly, an employee eligible
under only one law must receive benefits in accordance with that law.
If leave qualifies for FMLA leave and leave under State law, the leave
used counts against the employee's entitlement under both laws.
Examples of the interaction between FMLA and State laws include:
(1) If State law provides 16 weeks of leave entitlement over two
years, an employee would be entitled to take 16 weeks one year under
State law and 12 weeks the next year under FMLA. Health benefits
maintenance under FMLA would be applicable only to the first 12 weeks
of leave entitlement each year. If the employee took 12 weeks the first
year, the employee would be entitled to a maximum of 12 weeks the
second year under FMLA (not 16 weeks). An employee would not be
entitled to 28 weeks in one year.
(2) If State law provides half-pay for employees temporarily
disabled because of pregnancy for six weeks, the employee would be
entitled to an additional six weeks of unpaid FMLA leave (or accrued
paid leave).
(3) A shorter notice period under State law must be allowed by the
employer unless an employer has already provided, or the employee is
requesting, more leave than required under State law.
(4) If State law provides for only one medical certification, no
additional certifications may be required by the employer unless the
employer has already provided, or the employee is requesting, more
leave than required under State law.
(5) If State law provides six weeks of leave, which may include
leave to care for a seriously-ill grandparent or a ``spouse
equivalent,'' and leave was used for that purpose, the employee is
still entitled to 12 weeks of FMLA leave, as the leave used was
provided for a purpose not covered by FMLA. If FMLA leave is used first
for a purpose also provided under State law, and State leave has
thereby been exhausted, the employer would not be required to provide
additional leave to care for the grandparent or ``spouse equivalent.''
(6) If State law prohibits mandatory leave beyond the actual period
of pregnancy disability, an instructional employee of an educational
agency subject to special FMLA rules may not be required to remain on
leave until the end of the academic term, as permitted by FMLA under
certain circumstances. (See Subpart F of this part.)
(b) [Reserved]
Sec. 825.702 Interaction with Federal and State anti-discrimination
laws.
(a) Nothing in FMLA modifies or affects any Federal or State law
prohibiting discrimination on the basis of race, religion, color,
national origin, sex, age, or disability (e.g., Title VII of the Civil
Rights Act of 1964, as amended by the Pregnancy Discrimination Act).
FMLA's legislative history explains that FMLA is ``not intended to
modify or affect the Rehabilitation Act of 1973, as amended, the
regulations concerning employment which have been promulgated pursuant
to that statute, or the Americans with Disabilities Act of 1990, or the
regulations issued under that act. Thus, the leave provisions of the
[FMLA] are wholly distinct from the reasonable accommodation
obligations of employers covered under the [ADA], employers who receive
Federal financial assistance, employers who contract with the Federal
government, or the Federal government itself. The purpose of the FMLA
is to make leave available to eligible employees and employers within
its coverage, and not to limit already existing rights and
protection.'' S. Rep. No. 103-3, at 38 (1993). An employer must
therefore provide leave under whichever statutory provision provides
the greater rights to employees. When an employer violates both FMLA
and a discrimination law, an employee may be able to recover under
either or both statutes (double relief may not be awarded for the same
loss; when remedies coincide a claimant may be allowed to utilize
whichever avenue of relief is desired (Laffey v. Northwest Airlines,
Inc., 567 F.2d 429, 445 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086
(1978))).
(b) If an employee is a qualified individual with a disability
within the meaning of the Americans with Disabilities Act (ADA), the
employer must make reasonable accommodations, etc., barring undue
hardship, in accordance with the ADA. At the same time, the employer
must afford an employee his or her FMLA rights. ADA's ``disability''
and FMLA's ``serious health condition'' are different concepts, and
must be analyzed separately. FMLA entitles eligible employees to 12
weeks of leave in any 12-month period, whereas the ADA allows an
indeterminate amount of leave, barring undue hardship, as a reasonable
accommodation. FMLA requires employers to maintain employees' group
health plan coverage during FMLA leave on the same conditions as
coverage would have been provided if the employee had been continuously
employed during the leave period, whereas ADA does not require
maintenance of health insurance unless other employees receive health
insurance during leave under the same circumstances.
(c)(1) A reasonable accommodation under the ADA might be
accomplished by providing an individual with a disability with a part-
time job with no health benefits, assuming the employer did not
ordinarily provide health insurance for part-time employees. However,
FMLA would permit an employee to work a reduced leave schedule until
the equivalent of 12 workweeks of leave were used, with group health
benefits maintained during this period. FMLA permits an employer to
temporarily transfer an employee
[[Page 7990]]
who is taking leave intermittently or on a reduced leave schedule for
planned medical treatment to an alternative position, whereas the ADA
allows an accommodation of reassignment to an equivalent, vacant
position only if the employee cannot perform the essential functions of
the employee's present position and an accommodation is not possible in
the employee's present position, or an accommodation in the employee's
present position would cause an undue hardship. The examples in the
following paragraphs of this section demonstrate how the two laws would
interact with respect to a qualified individual with a disability.
(2) A qualified individual with a disability who is also an
``eligible employee'' entitled to FMLA leave requests 10 weeks of
medical leave as a reasonable accommodation, which the employer grants
because it is not an undue hardship. The employer advises the employee
that the 10 weeks of leave is also being designated as FMLA leave and
will count towards the employee's FMLA leave entitlement. This
designation does not prevent the parties from also treating the leave
as a reasonable accommodation and reinstating the employee into the
same job, as required by the ADA, rather than an equivalent position
under FMLA, if that is the greater right available to the employee. At
the same time, the employee would be entitled under FMLA to have the
employer maintain group health plan coverage during the leave, as that
requirement provides the greater right to the employee.
(3) If the same employee needed to work part-time (a reduced leave
schedule) after returning to his or her same job, the employee would
still be entitled under FMLA to have group health plan coverage
maintained for the remainder of the two-week equivalent of FMLA leave
entitlement, notwithstanding an employer policy that part-time
employees do not receive health insurance. This employee would be
entitled under the ADA to reasonable accommodations to enable the
employee to perform the essential functions of the part-time position.
In addition, because the employee is working a part-time schedule as a
reasonable accommodation, the FMLA's provision for temporary assignment
to a different alternative position would not apply. Once the employee
has exhausted his or her remaining FMLA leave entitlement while working
the reduced (part-time) schedule, if the employee is a qualified
individual with a disability, and if the employee is unable to return
to the same full-time position at that time, the employee might
continue to work part-time as a reasonable accommodation, barring undue
hardship; the employee would then be entitled to only those employment
benefits ordinarily provided by the employer to part-time employees.
(4) At the end of the FMLA leave entitlement, an employer is
required under FMLA to reinstate the employee in the same or an
equivalent position, with equivalent pay and benefits, to that which
the employee held when leave commenced. The employer's FMLA obligations
would be satisfied if the employer offered the employee an equivalent
full-time position. If the employee were unable to perform the
essential functions of that equivalent position even with reasonable
accommodation, because of a disability, the ADA may require the
employer to make a reasonable accommodation at that time by allowing
the employee to work part-time or by reassigning the employee to a
vacant position, barring undue hardship.
(d)(1) If FMLA entitles an employee to leave, an employer may not,
in lieu of FMLA leave entitlement, require an employee to take a job
with a reasonable accommodation. However, ADA may require that an
employer offer an employee the opportunity to take such a position. An
employer may not change the essential functions of the job in order to
deny FMLA leave. See Sec. 825.220(b).
(2) An employee may be on a workers' compensation absence due to an
on-the-job injury or illness which also qualifies as a serious health
condition under FMLA. The workers' compensation absence and FMLA leave
may run concurrently (subject to proper notice and designation by the
employer). At some point the health care provider providing medical
care pursuant to the workers' compensation injury may certify the
employee is able to return to work in a ``light duty'' position. If the
employer offers such a position, the employee is permitted but not
required to accept the position (see Sec. 825.220(d)). As a result,
the employee may no longer qualify for payments from the workers'
compensation benefit plan, but the employee is entitled to continue on
unpaid FMLA leave either until the employee is able to return to the
same or equivalent job the employee left or until the 12-week FMLA
leave entitlement is exhausted. See Sec. 825.207(e). If the employee
returning from the workers' compensation injury is a qualified
individual with a disability, he or she will have rights under the ADA.
(e) If an employer requires certifications of an employee's fitness
for duty to return to work, as permitted by FMLA under a uniform
policy, it must comply with the ADA requirement that a fitness for duty
physical be job-related and consistent with business necessity.
(f) Under Title VII of the Civil Rights Act of 1964, as amended by
the Pregnancy Discrimination Act, an employer should provide the same
benefits for women who are pregnant as the employer provides to other
employees with short-term disabilities. Because Title VII does not
require employees to be employed for a certain period of time to be
protected, an employee employed for less than 12 months by the employer
(and, therefore, not an ``eligible'' employee under FMLA) may not be
denied maternity leave if the employer normally provides short-term
disability benefits to employees with the same tenure who are
experiencing other short-term disabilities.
(g) Under the Uniformed Services Employment and Reemployment Rights
Act of 1994, 38 U.S.C. 4301-4333 (USERRA), veterans are entitled to
receive all rights and benefits of employment that they would have
obtained if they had been continuously employed. Therefore, under
USERRA, a returning service member would be eligible for FMLA leave if
the months and hours that he or she would have worked for the civilian
employer during the period of military service, combined with the
months employed and the hours actually worked, meet the FMLA
eligibility threshold of 12 months and 1,250 hours of employment. See
Sec. 825.110(b)(2)(i) and .110(c)(2).
(h) For further information on Federal antidiscrimination laws,
including Title VII and the ADA, individuals are encouraged to contact
the nearest office of the U.S. Equal Employment Opportunity Commission.
Subpart H--Definitions
Sec. 825.800 Definitions.
For purposes of this part:
Act or FMLA means the Family and Medical Leave Act of 1993, Public
Law 103-3 (February 5, 1993), 107 Stat. 6 (29 U.S.C. 2601 et seq.)
ADA means the Americans With Disabilities Act (42 U.S.C. 12101 et
seq.)
Administrator means the Administrator of the Wage and Hour
Division, Employment Standards Administration, U.S. Department of
Labor, and includes any official of the Wage and Hour Division
authorized to perform any of the functions of the Administrator under
this part.
[[Page 7991]]
COBRA means the continuation coverage requirements of Title X of
the Consolidated Omnibus Budget Reconciliation Act of 1986, As Amended
(Pub. L. 99-272, title X, section 10002; 100 Stat 227; 29 U.S.C. 1161-
1168).
Commerce and industry or activity affecting commerce mean any
activity, business, or industry in commerce or in which a labor dispute
would hinder or obstruct commerce or the free flow of commerce, and
include ``commerce'' and any ``industry affecting commerce'' as defined
in sections 501(1) and 501(3) of the Labor Management Relations Act of
1947, 29 U.S.C. 142(1) and (3).
Continuing treatment by a health care provider means any one of the
following:
(1) Incapacity and treatment. A period of incapacity of more than
three consecutive calendar days, and any subsequent treatment or period
of incapacity relating to the same condition, that also involves:
(i) Treatment two or more times, within a 30-day period unless
extenuating circumstances exist, by a health care provider, by a nurse
under direct supervision of a health care provider, or by a provider of
health care services (e.g., physical therapist) under orders of, or on
referral by, a health care provider; or
(ii) Treatment by a health care provider on at least one occasion
which results in a regimen of continuing treatment under the
supervision of the health care provider.
(2) Pregnancy or prenatal care. Any period of incapacity due to
pregnancy, or for prenatal care. See also Sec. 825.120.
(3) Chronic conditions. Any period of incapacity or treatment for
such incapacity due to a chronic serious health condition. A chronic
serious health condition is one which:
(i) Requires periodic visits (defined as at least twice a year) for
treatment by a health care provider, or by a nurse under direct
supervision of a health care provider;
(ii) Continues over an extended period of time (including recurring
episodes of a single underlying condition); and
(iii) May cause episodic rather than a continuing period of
incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(4) Permanent or long-term conditions. A period of incapacity which
is permanent or long-term due to a condition for which treatment may
not be effective. The employee or family member must be under the
continuing supervision of, but need not be receiving active treatment
by, a health care provider. Examples include Alzheimer's, a severe
stroke, or the terminal stages of a disease.
(5) Conditions requiring multiple treatments. Any period of absence
to receive multiple treatments (including any period of recovery
therefrom) by a health care provider or by a provider of health care
services under orders of, or on referral by, a health care provider,
for:
(i) Restorative surgery after an accident or other injury; or
(ii) A condition that would likely result in a period of incapacity
of more than three consecutive calendar days in the absence of medical
intervention or treatment, such as cancer (chemotherapy, radiation,
etc.), severe arthritis (physical therapy), kidney disease (dialysis).
(6) Absences attributable to incapacity under paragraphs (2) or (3)
of this definition qualify for FMLA leave even though the employee or
the covered family member does not receive treatment from a health care
provider during the absence, and even if the absence does not last more
than three consecutive calendar days. For example, an employee with
asthma may be unable to report for work due to the onset of an asthma
attack or because the employee's health care provider has advised the
employee to stay home when the pollen count exceeds a certain level. An
employee who is pregnant may be unable to report to work because of
severe morning sickness.
Eligible employee means:
(1) An employee who has been employed for a total of at least 12
months by the employer on the date on which any FMLA leave is to
commence, except that an employer need not consider any period of
previous employment that occurred more than five years before the date
of the most recent hiring of the employee, unless:
(i) The break in service is occasioned by the fulfillment of the
employee's National Guard or Reserve military service obligation (the
time served performing the military service must be also counted in
determining whether the employee has been employed for at least 12
months by the employer, but this section does not provide any greater
entitlement to the employee than would be available under the Uniformed
Services Employment and Reemployment Rights Act (USERRA)); or
(ii) A written agreement, including a collective bargaining
agreement, exists concerning the employer's intention to rehire the
employee after the break in service (e.g., for purposes of the employee
furthering his or her education or for childrearing purposes); and
(2) Who, on the date on which any FMLA leave is to commence, has
been employed for at least 1,250 hours of service with such employer
during the previous 12-month period; and
(3) Who is employed in any State of the United States, the District
of Columbia or any Territories or possession of the United States.
(4) Excludes any Federal officer or employee covered under
subchapter V of chapter 63 of title 5, United States Code.
(5) Excludes any employee of the United States House of
Representatives or the United States Senate covered by the
Congressional Accountability Act of 1995, 2 U.S.C. 1301.
(6) Excludes any employee who is employed at a worksite at which
the employer employs fewer than 50 employees if the total number of
employees employed by that employer within 75 miles of that worksite is
also fewer than 50.
(7) Excludes any employee employed in any country other than the
United States or any Territory or possession of the United States.
Employ means to suffer or permit to work.
Employee has the meaning given the same term as defined in section
3(e) of the Fair Labor Standards Act, 29 U.S.C. 203(e), as follows:
(1) The term ``employee'' means any individual employed by an
employer;
(2) In the case of an individual employed by a public agency,
``employee'' means--
(i) Any individual employed by the Government of the United
States--
(A) As a civilian in the military departments (as defined in
section 102 of Title 5, United States Code),
(B) In any executive agency (as defined in section 105 of Title 5,
United States Code), excluding any Federal officer or employee covered
under subchapter V of chapter 63 of Title 5, United States Code,
(C) In any unit of the legislative or judicial branch of the
Government which has positions in the competitive service, excluding
any employee of the United States House of Representatives or the
United States Senate who is covered by the Congressional Accountability
Act of 1995,
(D) In a nonappropriated fund instrumentality under the
jurisdiction of the Armed Forces, or
(ii) Any individual employed by the United States Postal Service or
the Postal Regulatory Commission; and
(iii) Any individual employed by a State, political subdivision of
a State, or
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an interstate governmental agency, other than such an individual--
(A) Who is not subject to the civil service laws of the State,
political subdivision, or agency which employs the employee; and
(B) Who--
(1) Holds a public elective office of that State, political
subdivision, or agency,
(2) Is selected by the holder of such an office to be a member of
his personal staff,
(3) Is appointed by such an officeholder to serve on a policymaking
level,
(4) Is an immediate adviser to such an officeholder with respect to
the constitutional or legal powers of the office of such officeholder,
or
(5) Is an employee in the legislative branch or legislative body of
that State, political subdivision, or agency and is not employed by the
legislative library of such State, political subdivision, or agency.
Employee employed in an instructional capacity. See the definition
of Teacher in this section.
Employer means any person engaged in commerce or in an industry or
activity affecting commerce who employs 50 or more employees for each
working day during each of 20 or more calendar workweeks in the current
or preceding calendar year, and includes--
(1) Any person who acts, directly or indirectly, in the interest of
an employer to any of the employees of such employer;
(2) Any successor in interest of an employer; and
(3) Any public agency.
Employment benefits means all benefits provided or made available
to employees by an employer, including group life insurance, health
insurance, disability insurance, sick leave, annual leave, educational
benefits, and pensions, regardless of whether such benefits are
provided by a practice or written policy of an employer or through an
``employee benefit plan'' as defined in section 3(3) of the Employee
Retirement Income Security Act of 1974, 29 U.S.C. 1002(3). The term
does not include non-employment related obligations paid by employees
through voluntary deductions such as supplemental insurance coverage.
(See Sec. 825.209(a)).
FLSA means the Fair Labor Standards Act (29 U.S.C. 201 et seq.).
Group health plan means any plan of, or contributed to by, an
employer (including a self-insured plan) to provide health care
(directly or otherwise) to the employer's employees, former employees,
or the families of such employees or former employees. For purposes of
FMLA the term ``group health plan'' shall not include an insurance
program providing health coverage under which employees purchase
individual policies from insurers provided that:
(1) No contributions are made by the employer;
(2) Participation in the program is completely voluntary for
employees;
(3) The sole functions of the employer with respect to the program
are, without endorsing the program, to permit the insurer to publicize
the program to employees, to collect premiums through payroll
deductions and to remit them to the insurer;
(4) The employer receives no consideration in the form of cash or
otherwise in connection with the program, other than reasonable
compensation, excluding any profit, for administrative services
actually rendered in connection with payroll deduction; and,
(5) The premium charged with respect to such coverage does not
increase in the event the employment relationship terminates.
Health care provider means:
(1) The Act defines ``health care provider'' as:
(i) A doctor of medicine or osteopathy who is authorized to
practice medicine or surgery (as appropriate) by the State in which the
doctor practices; or
(ii) Any other person determined by the Secretary to be capable of
providing health care services.
(2) Others ``capable of providing health care services'' include
only:
(i) Podiatrists, dentists, clinical psychologists, optometrists,
and chiropractors (limited to treatment consisting of manual
manipulation of the spine to correct a subluxation as demonstrated by
X-ray to exist) authorized to practice in the State and performing
within the scope of their practice as defined under State law;
(ii) Nurse practitioners, nurse-midwives, clinical social workers
and physician assistants who are authorized to practice under State law
and who are performing within the scope of their practice as defined
under State law;
(iii) Christian Science Practitioners listed with the First Church
of Christ, Scientist in Boston, Massachusetts. Where an employee or
family member is receiving treatment from a Christian Science
practitioner, an employee may not object to any requirement from an
employer that the employee or family member submit to examination
(though not treatment) to obtain a second or third certification from a
health care provider other than a Christian Science practitioner except
as otherwise provided under applicable State or local law or collective
bargaining agreement.
(iv) Any health care provider from whom an employer or the
employer's group health plan's benefits manager will accept
certification of the existence of a serious health condition to
substantiate a claim for benefits; and
(v) A health care provider listed above who practices in a country
other than the United States, who is authorized to practice in
accordance with the law of that country, and who is performing within
the scope of his or her practice as defined under such law.
(3) The phrase ``authorized to practice in the State'' as used in
this section means that the provider must be authorized to diagnose and
treat physical or mental health conditions.
Incapable of self-care means that the individual requires active
assistance or supervision to provide daily self-care in several of the
``activities of daily living'' (ADLs) or ``instrumental activities of
daily living'' (IADLs). Activities of daily living include adaptive
activities such as caring appropriately for one's grooming and hygiene,
bathing, dressing and eating. Instrumental activities of daily living
include cooking, cleaning, shopping, taking public transportation,
paying bills, maintaining a residence, using telephones and
directories, using a post office, etc.
Instructional employee: See the definition of Teacher in this
section.
Intermittent leave means leave taken in separate periods of time
due to a single illness or injury, rather than for one continuous
period of time, and may include leave of periods from an hour or more
to several weeks. Examples of intermittent leave would include leave
taken on an occasional basis for medical appointments, or leave taken
several days at a time spread over a period of six months, such as for
chemotherapy.
Mental disability: See the definition of Physical or mental
disability in this section.
Parent means a biological, adoptive, step or foster father or
mother, or any other individual who stood in loco parentis to the
employee when the employee was a son or daughter as defined below. This
term does not include parents ``in law.''
Person means an individual, partnership, association, corporation,
business trust, legal representative, or any organized group of
persons, and includes a public agency for purposes of this part.
Physical or mental disability means a physical or mental impairment
that substantially limits one or more of the major life activities of
an individual.
[[Page 7993]]
Regulations at 29 CFR part 1630.2(h), (i), and (j), issued by the Equal
Employment Opportunity Commission under the Americans with Disabilities
Act (ADA), 42 U.S.C. 12101 et seq., define these terms.
Public agency means the government of the United States; the
government of a State or political subdivision thereof; any agency of
the United States (including the United States Postal Service and
Postal Regulatory Commission), a State, or a political subdivision of a
State, or any interstate governmental agency. Under section 101(5)(B)
of the Act, a public agency is considered to be a ``person'' engaged in
commerce or in an industry or activity affecting commerce within the
meaning of the Act.
Reduced leave schedule means a leave schedule that reduces the
usual number of hours per workweek, or hours per workday, of an
employee.
Secretary means the Secretary of Labor or authorized
representative.
Serious health condition means an illness, injury, impairment or
physical or mental condition that involves inpatient care as defined in
Sec. 825.114 or continuing treatment by a health care provider as
defined in Sec. 825.115. Conditions for which cosmetic treatments are
administered (such as most treatments for acne or plastic surgery) are
not ``serious health conditions'' unless inpatient hospital care is
required or unless complications develop. Restorative dental or plastic
surgery after an injury or removal of cancerous growths are serious
health conditions provided all the other conditions of this regulation
are met. Mental illness resulting from stress, or allergies may be
serious health conditions, but only if all the conditions of Sec.
825.113 are met.
Son or daughter means a biological, adopted, or foster child, a
stepchild, a legal ward, or a child of a person standing in loco
parentis, who is either under age 18, or age 18 or older and
``incapable of self-care because of a mental or physical disability''
at the time that FMLA leave is to commence.
Spouse means a husband or wife as defined or recognized under State
law for purposes of marriage in the State where the employee resides,
including common law marriage in States where it is recognized.
State means any State of the United States or the District of
Columbia or any Territory or possession of the United States.
Teacher (or employee employed in an instructional capacity, or
instructional employee) means an employee employed principally in an
instructional capacity by an educational agency or school whose
principal function is to teach and instruct students in a class, a
small group, or an individual setting, and includes athletic coaches,
driving instructors, and special education assistants such as signers
for the hearing impaired. The term does not include teacher assistants
or aides who do not have as their principal function actual teaching or
instructing, nor auxiliary personnel such as counselors, psychologists,
curriculum specialists, cafeteria workers, maintenance workers, bus
drivers, or other primarily noninstructional employees.
Appendix A to Part 825--Index [Reserved]
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[FR Doc. E8-2062 Filed 2-8-08; 8:45 am]
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